Mark D. Gerstein

  • Partner
  • Emark.gerstein@lw.com
  • 330 North Wabash Avenue, Suite 2800
  • Chicago, IL 60611
  • USA
  • T +1.312.876.7666
  •  
  • 885 Third Avenue
  • New York, NY 10022-4834
  • USA
  • T +1.212.906.1743
  •  
 

Profile

Mark D. Gerstein, a corporate partner and previous Global Co-Chair of Latham & Watkins’ Mergers & Acquisitions Practice, advises clients on complex corporate transactions and corporate governance.

Mr. Gerstein regularly represents public and private companies, special committees of boards of directors, and financial advisors. Specifically, he helps clients navigate:

  • Mergers and acquisitions (M&A), including defending and advancing unsolicited bids
  • Cross-border public company combinations
  • Shareholder activism planning and defense
  • Special committee representation, including take-private transactions
  • Spin-off transactions

Mr. Gerstein is widely recognized as a leading corporate lawyer. Clients describe him as a “superb negotiator with phenomenal commercial skills,” saying “his knowledge, skill and creativity contributes significantly to the success of the deal.”

Leadership/Pro Bono

Beyond his private practice, Mr. Gerstein serves as an adjunct faculty member of the Northwestern University School of Law. He also serves on:

  • Northwestern University’s Ray Garrett Jr. Corporate and Securities Law Institute Steering Committee
  • Youth Guidance’s Board (current member, past chair) which serves at-risk children in Chicago Public Schools
  • University of Chicago Law School’s Advisory Council
  • The University of Michigan’s Dean’s Advisory Council at the School of Literature, Science, and Arts

Experience

Mr. Gerstein’s representative experience includes:

Activism Planning and Defense

Advising clients opposite many of the most prominent activist funds, including:

  • Elliott Management
  • Icahn Associates
  • JANA Partners
  • Pershing Square
  • Starboard Value
  • Third Point
  • Trian Partners
  • ValueAct Capital
  • Cars.com regarding Starboard Value’s investment in the company
  • Cerner Corporation regarding Starboard Value
  • Ensco regarding the campaign by Arrowgrass Capital Partners against an announced merger
  • Owens-Illinois regarding Atlantic Investment Management
  • QEP Resources regarding Elliott Management Corporation
Public Company / Cross-Border M&A
  • Koch Industries in its US$22 billion acquisition of Georgia-Pacific, the second-largest going-private in US history
  • FMC Technologies in a US$13 billion merger of equals with Technip, a France-based designer and developer of offshore oil and gas processing facilities, via the EU cross-border merger regime
  • Sirona Dental Systems in its US$13+ billion merger of equals with DENTSPLY International
  • Energy Transfer Equity in its US$10 billion acquisition of Southern Union, a diversified natural gas company
  • ZF Friedrichshafen in its pending US$7 billion acquisition of global automotive supplier WABCO
  •  Host Marriott’s US$4.1 billion acquisition of Starwood Hotels’ REIT and related properties
  • CNH Global N.V., an agricultural and construction equipment company in the US$3 billion acquisition by Fiat Industrial SpA
  • Capella Education Company in its US$1.9 billion merger with Strayer Education, creating a national leader in education innovation
  • Orbitz Worldwide in its US$1.6 billion sale to Expedia
Private Company Transactions
  • Globe Specialty Metals in its US$3.1 billion merger of equals with Grupo FerroAtlantica to create a leading international silicon and specialty metals producer
  • Hu-Friedy, a global leading manufacturer of dental instruments, in its US$725 million sale to Cantel Medical
  • Koch Industries affiliates in a US$4.4 billion acquisition of INVISTA from DuPont
  • Koch Industries in its US$7.2 billion acquisition of Molex Incorporated, a designer and manufacturer of electronic components
Special Committee Representations

Special Committee of the Board of Directors of:

  • The Chicago Board of Trade in connection with its US$12 billion merger with the Chicago Mercantile Exchange (including the intervening unsolicited offer from the International Commodities Exchange)
  • Dell Technologies in the US$21 billion exchange by Dell Technologies of Class V Common Stock into Class C Common Stock and cash
  • CNA Surety Corporation in its US$463.4 million take-private acquisition by CNA Financial
  • Textura Corporation in connection with its US$663 million acquisition by Oracle
Spin-off Transactions

Mr. Gerstein has also represented clients in spinning-off business segments and divisions to create stand-alone, independent publicly listed companies, including:

  • Aptiv (formerly Delphi Automotive) in connection with the US$4.5 billion spin-off and listing of its powertrain systems segment, forming Delphi Technologies
  • TechnipFMC, a global oilfield services company, in its planned spin-off of its engineering and construction segment, forming Technip Energies
  • Entercom Communications US$3 billion Reverse Morris Trust combination with CBS Radio to create a nationwide preeminent radio platform

 

Thought Leadership

  • Proactively Adopting a Poison Pill in Response to the COVID-19 Crisis -  March 30, 2020
  • M&A, Valuations and Activism: Board Lessons From 2008 -  March 20, 2020
  • Directors, Take Note: ESG Can Drive Value in 2020 -  February 19, 2020
  • Spin-offs Unraveled: Complex ‘IPOs’ With a Sophisticated Tax Overlay -  October 09, 2019
  • US Tax Reform: Strategies for Executing Transactions in the Face of Uncertainty -  June 19, 2017
  • Board Considerations in the Face of Tax Reform Uncertainty -  June 5, 2017
  • US Tax Reform: Strategies for Executing Transactions in the Face of Uncertainty -  March 02, 2017
  • Activists in Your Boardroom: Planning for and Managing the New Dynamic  -  August 31, 2016
  • Evolving Director-Investor Communications: Preparing for Your Board’s Direct Engagement with Shareholders -  June 27, 2016
  • China’s NDRC Proposes Changes to Outbound Investment Rules  -  May 25, 2016
  • DOJ Suit Against ValueAct Shines Spotlight on HSR Requirements for Shareholder Activists -  April 14, 2016
  • Activist Hot List: Fall 2015 -  October 02, 2015
  • Anticipating Activism: Implications for Your 2016 Annual Meeting of Stockholders -  October 02, 2015
  • Defending Against The Hostile Bid: Lessons Learned From Allergan -  September 10, 2015
  • Activists in Your Boardroom - Planning for and Managing the New Dynamic -  September 02, 2015
  • Acquiring a US Public Company: An Overview for the Non-US Acquirer -  April 29, 2015
  • Delaware Courts’ Recent Decisions on Appraisal May Discourage Opportunistic Appraisal Arbitrageurs -  February 20, 2015
  • Activism: Every Season is Now Open Season -  November 03, 2014
  • Dealing with Activist Hedge Funds and 'Hushmail' -  September 24, 2014
  • The Resilient Rights Plan: Recent Poison Pill Developments and Trends -  July 03, 2014
  • Hushmail: Are Activist Hedge Funds Breaking Bad? -  June 23, 2014
  • Third Point LLC v. Ruprecht — Activism Confronts the Rights Plan -  May 14, 2014
  • Entire Fairness in Controlling Stockholder Transaction: In re Orchard Enterprises, Inc. Stockholder Litigation -  March 11, 2014
  • Key Trends & Lessons Learned from the 2013 Proxy Season -  July 23, 2013
  • FTC Takes Hard Line on Premerger Filing Requirements -  June 26, 2013
  • M&A Commentary - Amendments to Delaware Merger Statutes: An Arrow in Your Quiver, Not a Silver Bullet -  June 13, 2013
  • Obtaining Business Judgment Deference in a Controlling Stockholder Take-Private -  May 31, 2013
  • Martin Marietta’s Bid for Vulcan Stayed -  May 10, 2012
  • Special Negotiating Committees: If, When, Who and How — A Guide for the General Counsel -  January 01, 2012
  • Corporate Governance Commentary: Proxy Access and Advance Notice Bylaws in the Wake of Invalidation of the SEC’s Proxy Access Rule: An Approach to Private Ordering -  November 30, 2011
  • Corporate Governance Commentary: Future of Institutional Share Voting Revisited: A Fourth Paradigm -  September 7, 2011
  • Corporate Governance Commentary: A 12-Step Program to Truly Good Corporate Governance -  May 9, 2011
  • The Resilient Rights Plan: Recent Poison Pill Developments and Trends -  April 2011
  • Corporate Governance Commentary - Proxy Advisory Business: Apotheosis or Apogee? -  March 3, 2011
  • M&A Commentary - Adoption of Poison Pill to Deter Activist Investor Opposition to Negotiated Mergers -  February 8, 2011
  • Establishing and Enforcing Qualifications for Directors of Delaware Corporations -  January 1, 2011
  • Corporate Governance Commentary: Private Ordering in the Brave New World of Proxy Access -  November 3, 2010
  • Corporate Governance Alert - 2011 Proxy Season: SEC Announces Dodd-Frank Rulemaking Schedule and Starts the Clock on Proxy Access -  September 22, 2010
  • Corporate Governance Alert - 2011 Proxy Season: The First 100 Days—How to Get Ready for the Brave New World of Say on Pay and Proxy Access -  August 26, 2010
  • Practical Implications of CNX Gas on Controlling Shareholder Acquisitions -  July 13, 2010
  • M&A Commentary - Practical Implications of CNX Gas on Controlling Shareholder Acquisitions -  June 30, 2010
  • Implications of Selectica for Next-Generation Poison Pills -  March 30, 2010
  • M&A Commentary - Implications for the Next Generation of Poison Pills: Selectica, Inc. v. Versata Enterprises, Inc. -  March 23, 2010
  • Interpretive Issues Related to Recent Changes to the New York Power of Attorney Law -  January 27, 2010
  • Corporate Governance Commentary: Proxy Access Analysis No. 5, The Pros and Cons of Voluntary Implementation of Proxy Access at 2010 Annual Shareholder Meetings -  December 7, 2009
  • Corporate Governance Commentary: Proxy Access Analysis No. 4, Where Are We Now And Where Should We Go -  November 3, 2009
  • Corporate Governance Commentary: Proxy Access Bulletin No. 4, Proxy Access Rules will not be in Effect for Upcoming Proxy Season -  October 5, 2009
  • Corporate Governance Commentary: Proxy Access Analysis No. 3, Some Suggestions for Public Company Responses to the Pending SEC Proxy Access Rule Proposal -  July 9, 2009
  • Corporate Governance Commentary: Proxy Access Analysis No. 2, Delaware Law Changes to Facilitate Voluntary Adoption of Proxy Access and Reimbursement Policy for Proxy Contests -  June 22, 2009
  • Corporate Governance Commentary: Proxy Access Bulletin No. 3, Proxy Access Proposed Rules Published by SEC -  June 15, 2009
  • Corporate Governance Commentary: Proxy Access Analysis No. 1, The Battle for Shareholder Access The Current State of Play -  May 19, 2009
  • Recent Poison Pill Developments and Trends -  May 12, 2009
  • The Resurgent Rights Plan: Recent Poison Pill Developments and Trends -  April 1, 2009
  • Lessons from the First Triggering of a Modern Poison Pill:
    Selectica, Inc. v. Versata Enterprises, Inc.
     -  March 2009
  • Strategies For Dealing With Shareholder Proposals -  December 15, 2008
  • Delaware Court Provides New Guidance on Go-Shops, Standstills and Management Conflicts -  June 27, 2007
  • M&A Deal Commentary - SEC Proposes Amendments To The Best Price Rule -  January 18, 2006
Praised by his peers as a “leading lawyer” who has “seen it all, done it all and has a lot of respect.”Chambers USA 2019
Bar Qualification
  • Illinois
  • New York
Education
  • JD, University of Chicago Law School, 1984
  • BA, University of Michigan, 1981
Industries
  • Aerospace, Defense & Government Services
  • Hospitality, Gaming & Leisure
  • REITs
  • Retail & Consumer Products
Practices
  • Mergers & Acquisitions
  • Activism
  • Public Company Representation
  • Private Equity
  • Corporate Governance
  • Israel Practice
  • Takeover Planning & Defense