Stockholders sued video game maker Activision Blizzard Inc.'s board over acts by McGimsey's clients, CEO and director, Robert A. Kotick and company co-chairman, Brian G. Kelly, for an $8.2 billion transaction that included repurchase and resale of shares involving Vivendi S.A., a French mass media multinational. "This was a really cutting edge transaction with a large dollar value," McGimsey said. "We hadn't seen examples of a transaction like this."
The plaintiffs, though, complained that the deal amounted to an abuse of authority and involved improper threats to pull off a transaction that served the executives interests at the expense of shareholders.
Santa Monica-based Activision publishes multi-million dollar franchises like Call of Duty, StarCraft and Warcraft. Like a gamer deep in an interactive challenge, McGimsey dove into the action. "M&A litigation is common, but no real case law addressed the ability of management to participate in this kind of transaction," she said of the issues under litigation in the Delaware Court of Chancery.
"We looked at all the information out there," she said. "As lawyers, we try to find analogues. We took several different areas of law and tried to predict where the court would go." Her maneuvering helped promote a pre-trial resolution. "It was favorable to my clients," she said. "It enabled the company to move forward and to be successful."
McGimsey, who joined Sullivan & Cromwell after clerking for Justice Clarence Thomas on the U.S. Supreme Court, focuses on shareholder litigation and the defense of private class action securities and antitrust litigation. Her practice also includes investigations by the U.S. Department of Justice and the Securities and Exchange Commission as well as handling matters for plaintiffs in commercial disputes.
McGimsey credits much of her success to her Thomas clerkship. "It had a much more profound impact on the way I work than I'd expected," she said. "From him I learned all the attributes I'd like to have as a manager: his love of the law, his attention to detail and to getting it right, his ability to lead by example."
She said Thomas has specifically affected the number of drafts she goes through and her tendency to anticipate. "I think of how what I do now will lead to six months down the road," she said.
? John Roemer
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