Feeney and Parker returned to New York at the end of September to finalize their deal with LVMH, a complicated procedure that required a team of lawyers from both sides working flat out for most of a week to draw up the terms. “There would have been twenty lawyers in the room and Chuck, myself, and Harvey in a side room where they would consult us on issues,” recalled Parker. One of the lawyers, David Gruenstein from Watchell, Lipton, Rosen & Katz, made a deep impression on Parker. “Tremendous. Tough as nails. I’ve never come across anyone like him in my life. When we were closing, he worked three days without going to bed.”
On Tuesday, October 1, everything was ready for Feeney and Parker to sign. Feeney abandoned his casual gear and turned up wearing a suit, button-down shirt, and blue silk tie, though with his trademark black plastic watch. With lawyers in shirtsleeves and gold watches hovering behind them, they signed a series of legal documents with red seals, laid out on a long glass table. It was done at last. Feeney and Parker had signed away their shareholdings in DFS to LVMH on the basis of a capital value for the whole company of $4.2 billion.
Looking up over his reading glasses, Feeney allowed himself a satisfied smile. An assistant handed him a glass of champagne. Feeney got up and posed for photographs, glass of bubbly in hand, with Harvey Dale, Jim Downey, and Chris Oechsli. Feeney and Parker then retired, exhausted, with a couple of the lawyers to celebrate their multi-billion-dollar deal in typical Feeney style, in a nondescript New York restaurant.
The deal had a “drop-dead” date of December 31, 1996 (later revised to January 15, 1997). Miller and Pilaro could sell on the same terms, up to that date, if they changed their minds. LVMH got in touch with Miller and Pilaro to say the offer could be taken up right away. They refused. Miller was furious. He complained bitterly that Feeney and Parker had “snubbed their partners of half a lifetime.”
CHAPTER 24
Cutting the Baby in Half
Three weeks later Bob Miller and Tony Pilaro threw down the gauntlet. On Thursday, October 24, 1996, motorcycle messengers brought two letters to Ira Millstein at his Manhattan law firm, Weil, Gotshal & Manges, one each from lawyers representing Miller and Pilaro. The letters reminded Millstein that the Wise Man Agreement stipulated that any dispute or controversy relating to the agreement should be resolved by arbitration before him. They claimed that the proposed sale by Chuck Feeney and Alan Parker of their shareholding in DFS to Bernard Arnault breached the Wise Man Agreement. They requested that Millstein rule that it could not go ahead.
The following day, lawyers for Miller and Pilaro filed Case Number 96605345 in the New York Supreme Court, on Centre Street in downtown Manhattan. The 200-page document called for an injunction to prevent the sale of DFS holdings by Feeney and Parker from going ahead, on the grounds that it would substantially undermine DFS Group’s ability to compete with LVMH. It also accused them of divulging confidential information to a competitor. Judge Beatrice Shainswit, a twenty-year veteran of the New York Supreme Court, ruled the same day that Feeney and Parker must show the court by November 25, 1996, why an injunction should not be issued.
Up to this point, the fight for the future of DFS had escaped media attention. The lodging of court documents changed that. DFS was forced to issue a press release on October 30 giving details of the proposed sale of Feeney’s and Parker’s holdings to LVMH. The New York Times reported that “high-flying billionaire” Robert Miller was seeking to block the sale by Chuck Feeney and Alan Parker, as he and Mr. Pilaro “do not want to be the minority shareholder in a company controlled by DFS’s largest supplier and a major competitor.” Quoting people “familiar with his far-flung interests,” it described Feeney as a billionaire whose estimated net worth was “much more” than the $975 million cited in the most recent Forbes magazine rich list. The Wall Street Journal and The Financial Times also reported the dispute. A spokesman for Arnault was quoted as saying Miller and Pilaro were just holding out to get a better price.
The day the story appeared, Caroleen Feeney was walking along Columbus Avenue in New York when she saw Andrew Pilaro coming in the opposite direction. They had been friends since childhood, when the Feeney and Pilaro kids went out in the company junk in Hong Kong on weekends. Instead of avoiding each other, however, they hugged. “This has nothing to do with us, it’s between our parents,” Caroleen remembered Andrew saying.
The news that DFS was for sale brought the barbarian to the gate. Henry R. Kravis, of Kohlberg Kravis Roberts & Co. (KKR), whose 1988 leveraged buyout of RJR Nabisco had been dramatized in the book Barbarians at the Gate,4 wrote to Ira Millstein, expressing his interest in buying out DFS for a price higher than that offered by LVMH. The corporate raider, who had a reputation for buying companies, restructuring them, selling off selected assets, and then getting rid of the company at a profit, and who had bought and sold such American brand names as Gillette, Texaco, Samsonite, and Safeway, said he could back his bid with more than $5 billion in equity capital. “We believe that KKR is uniquely positioned to facilitate a transaction in a timely manner,” he wrote.
LVMH brushed off the Kravis bid. Such an offer wasn’t permissible under the terms of the agreement to purchase signed with Feeney and Parker, a spokesman said. None of the four owners of DFS took it seriously. The Wise Man invited the legal representatives of the owners to come to his office at 10:00 AM on November 6 to begin his arbitration. Eleven highly paid New York lawyers crowded into the room. Chuck Feeney’s team was headed by Frederick A.O. “Fritz” Schwarz of Cravath, Swaine & Moore, who in 1975 was general counsel to Senator Frank Church’s Senate committee that investigated U.S. intelligence agencies. Bob Miller was represented by Peter Fleming, who had appeared for former attorney general John N. Mitchell in the Watergate hearings, and by William Brickern, both from Curtis, Mallet-Prevost, Colt & Mosle. Pilaro had two teams, one headed by Thomas J. Schwarz from Skadden, Arps, Slate, Meagher & Flom, the other by Anthony Genovese of Robinson, Brog, Leinwand, Greene, Genovese & Gluck. Alan Parker was represented by Bernard Nussbaum of Wachtell, Lipton, Rosen & Katz, who until two years previously had been President Bill Clinton’s White House counsel.
Ira Millstein spoke with some weariness. The four shareholders were his friends, he said. He had tried everything to avoid arbitration. “I’ve been discussing the various proposals for sales to LVMH from day one, starting with Chuck’s desire to sell by himself, and continuing on through the various confederations thereafter, with some selling and some not selling, and some agreeing and some not agreeing. I’ve been involved in every one of these discussions with every single one of the partners. Chuck has come to see me alone. Bob has come to see me alone. Tony has come to see me alone. I’ve met them together and separately and in every combination known to man.” He had also had “untold” numbers of discussions with Bernard Arnault, asking him to help get a deal on track with one, two, or three, or all four of the owners. Nothing had worked. “I am a totally unsuccessful arbitrator or Wise Man or whatever in trying to get them to agree to do this together,” he said. “I flunked.” Now, he went on, he would listen to their arguments and then go off into a corner and make his own mind up.
“I have to find a way to cut the baby in half,” he said, “and somebody is going to be very unhappy.”
When Miller’s lawyer sought a delay to consider whether or not to give Millstein a waiver for any conflicts of interest in past dealings with individual DFS owners, the Wise Man responded with exasperation. His seventieth birthday was coming up in two days’ time, on Friday, he told them. He was planning a weekend away with his family. He would not be back until the following Wednesday. Without a waiver, “I’m out of here,” he said, and they would have to pick another arbitrator very quickly. He had a nice career, and he wanted to keep it that way, so he did not want anyone accusing him later of conflict of interest. The Miller lawyers went into a huddle. Fleming came back to say, “Mr. Miller waives.”
Millstein requested that both sides file briefs and re
sponses by December 4, after which he would make his ruling. Until then the deal signed by Feeney and Parker was on hold. One other thing, he said, as the lawyers stuffed files back into their briefcases. He wanted any outstanding bills due to him settled right away so there was no question of seeming bias. The Wise Man, who charged $500 an hour as a senior partner in his firm, also asked for a check for $250,000 against his fees.
In the following days, claims and counter claims piled up on the Wise Man’s desk. From Paris, Bernard Arnault sent a sworn declaration that he would maintain DFS as an independent business. He pointed to the experience of Le Bon Marché, the French department-store chain that LVMH had acquired in 1988 and which he claimed was left to its own devices. He enclosed a floor plan to show that competing boutiques were located as prominently in the Le Bon Marché stores as LVMH affiliates.
In their depositions, Miller and Pilaro argued that the Wise Man Agreement prohibited a transaction of the sort contemplated by Feeney and Parker. They claimed the sale would hurt DFS because it would damage relations with other luxury goods houses. They produced correspondence and memos purporting to show, inter alia, that Feeney had recognized the right of the other shareholders to approve or disapprove a sale of his holdings. Feeney and Parker responded with eight affidavits and boxes of correspondence. They argued that the Wise Man Agreement did not restrain a shareholder from selling and that it would not be in LVMH’s interests to run DFS as anything other than an independent company. They pleaded that if the sale were blocked, they might never be able to find another buyer. They also threw back at Pilaro the statement he made at the board meeting in 1990, when Chuck’s representatives were thrown out, that the will of the majority “can and does control.”
When Fleming, acting for Miller, again asked for a delay, pointing out that his client had to read through the affidavits, “a chore which unfortunately takes some period of time,” Nussbaum responded sharply: “Messrs Miller and Pilaro can complete this chore in a few hours if they sit down to read the affidavits.” As tempers frayed, Fritz Schwarz accused Miller and Pilaro of just wanting to continue their personal lifestyles.
On November 18, Chuck Feeney submitted an affidavit, sworn before U.S. Counsel Robert Dolce in London, that the assets of his General Atlantic Group, including the entire 38.75 percent interest in DFS, had been transferred irrevocably to the Atlantic Foundation in 1984, and later in part to the Atlantic Trust, “exclusively for charitable and philanthropic purposes.” This, he argued, underscored the point that they “would never have consented to any restraint” on their ability to sell the shareholding in DFS. The Atlantic Foundation had up to that point committed in excess of half a billion dollars in grants and was one of the world’s largest international charitable institutions, Feeney disclosed. Satisfying the charities’ commitments required that its holdings remain freely transferable so that return on investment would have an acceptable level of risk and volatility.
Only Feeney’s own counsel had prior knowledge that Feeney had given everything away: Fritz Schwarz had for some time been on the board of his foundation. All the lawyers and their clients had access to his deposition, but this bombshell did not leak to the media. However, Feeney’s statement was included in the documents filed before Judge Beatrice Shainswit, who was expected to issue her decision after the Wise Man ruled. It was now only a matter of time before it became public knowledge.
In an attempt to persuade Ira Millstein that Bernard Arnault was not an acceptable buyer, Bob Miller’s lawyer, Peter Fleming, launched a strong attack on Arnault’s business ethics in a submission to the Wise Man in early December. The French businessman could hardly be trusted, argued Fleming. The Sunday Times had described Arnault’s four-year campaign to take over LVMH as “the most vicious corporate battle ever seen in France” and the Mail on Sunday had charged that Arnault raised cash for LVMH by ensuring that Christian Dior and Le Bon Marché, both of which had minority shareholders, took on large amounts of debt. He demanded that Arnault sign a tough cooperation and noninterference agreement to protect Miller’s and Pilaro’s interests if they became minority shareholders.
Parker was shocked when he read it. “They filed all sorts of documents about Mr. Arnault and what a bad guy he was; I was horrified to hear that in a private case such documents could be available to the public,” he said.
The antagonism between Arnault and Miller led to a minor crisis in New York’s fashionable society. Miller’s daughter Marie-Chantal, who had married Crown Prince Pavlos of Greece and was living in Manhattan, withdrew as cochairman of the Metropolitan Museum of Art Costume Institute Ball—the most glittering event of Manhattan’s black-tie season—on December 9 because Bernard Arnault was a guest of honor.
On December 12, the Wise Man received a letter and a box of documents from Arnault to provide reassurances to him that Miller and Pilaro would have their status as minority shareholders protected. The box contained copies of highly confidential investment bankers’ reports and internal memoranda for the Wise Man’s eyes only. The lawyers argued all morning over whether Millstein should read them or not and finally agreed that he should go through them in camera. Only when Millstein started poking through the LVMH documents did he realize that they were all in French, and he had to get a French-speaking colleague to help him out.
The session ended on a sour note, with Nussbaum accusing Miller and Pilaro of putting their heads in the sand. It was a good deal, he said. “Miller knows it. Pilaro knows it. They know it. They know they will be benefited by this transaction. But it’s not going to be theirs anymore. It’s not going to be ‘my company’ anymore, as Miller tends to say. It’s not going to be ‘my baby.’ That’s what this is about. This is not about economics and harm; this is about ego and prestige.” Fleming was outraged: “Take that back, Bernie, strike that,” he said. The Wise Man intervened to say, “It’s an argument, but I promise you it’s not going to be the basis of my decision.”
At this point, Tony Pilaro tried to strengthen his and Miller’s case by raising doubts about the future of DFS’s license in Honolulu. The Hawaiian authorities could withdraw the duty-free concession if DFS changed hands. The issue was on the agenda for a meeting of the Board of Land and Natural Resources in Honolulu on December 13. The eight-member board was expected to go along with any new ownership arrangement, but at 5:30 AM Hawaii time, Tony Pilaro telephoned John Reed, the head of DFS in Honolulu, and pleaded with him to get approval of the sale taken off the agenda until the new year. Reed reported the request to DFS headquarters in San Francisco and was advised that it would be inappropriate to intervene. DFS chairman Myron Ullman in turn informed Ira Millstein confidentially about what was going on.
When the eight members of the Board of Land convened at their office on Punchbowl Street, Honolulu, on December 12, one of the them asked Reed why they should be involved in a dispute among the DFS owners. Reed replied, “I’ll tell you what this is all about. We have minority owners that are now big fish in a big pond, and if this transfer goes through, they will be little fish in a big pond. Secondly, if this transfer goes through, the minority owners will not receive any dividends for five years.” According to Anthony Takitani, a lawyer representing Miller and Pilaro at the meeting, Reed went on to claim that the dividend money would be used instead for LVMH’s debt service. The board made clear that the sale of DFS would cause no problems.
Bernard Arnault had in fact already told Millstein two days earlier that while LVMH could not continue to pay 90 percent of the dividends to the shareholders as had been the case historically, it would pay “a more customary minimum 50 percent.”
Tony Pilaro then made a direct appeal to Millstein, quoting what Reed had said. “The clarion bells are ringing, Ira,” he wrote on December 14. “Bob and I are not protected. We have close to $2 billion at risk. . . .” If they became minority shareholders to Arnault, he and Miller would not get any dividends because Arnault was going to have to pay off his debts and the Wise M
an should protect them. He enclosed records showing DFS dividends had gone up from $34 million in 1977 to $309 million in 1995. In just under two decades, $2.85 billion in cash had flowed into the accounts of the four owners. These were the stakes involved in the Wise Man’s decision. “You can, you should, and I pray you will protect us,” wrote Pilaro, concluding with a request to the Wise Man to either stop the sale or order Feeney and Parker to sell them 9 percent of the shareholding to give them majority control over LVMH.
As he drafted his arbitration, the Wise Man received a final appeal on December 15 from Peter Fleming, in which he attacked Arnault for his “basic disdain of minority shareholders” and accused Alan Parker of “shamelessly” seeking to avoid his obligations under the Wise Man Agreement. He enclosed a letter from Miller’s eighty-year-old nominee on the DFS board, Lawrence Lachman, who as head of Bloomingdale’s had transformed it from a New York department store into a national chain. Lachman warned of the damage a great company could suffer from combining a retailing and a manufacturing operation. Bloomingdale’s succeeded, he said, because he had gotten rid of an in-house manufacturing company for drugs and cosmetics that was losing money.
On getting copies of the letters, Nussbaum wrote to accuse Miller of seeking delay through Lachman, and said Reed could not possibly know about LVMH plans for dividends.
The Wise Man was finally ready to issue his decision on Tuesday, December 17. Feeney walked through the chilly streets—snow was forecast—to the offices of Cravath, Swaine & Moore, at the Worldwide Plaza on Eighth Avenue and Fiftieth Street, to await the ruling. If it was in his favor, the sale would be confirmed and the ownership transferred right away.
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