expert report of professor john c. coates...

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

Case No. 2:15-CV-00581-LPL

MYLAN INC., MYLAN PHARMACEUTICALS INC.,

MYLAN TECHNOLOGIES, INC. AND MYLAN SPECIALTY LP, v.

KIRKLAND & ELLIS LLP

EXPERT REPORT OF PROFESSOR JOHN C. COATES IV

Case 2:15-cv-00581-JFC-LPL Document 63 Filed 05/22/15 of 34

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I. Introduction and Scope of Engagement

I have prepared this report at the request of Mylan Inc., Mylan Pharmaceuticals Inc.,

Mylan Technologies, Inc., and Mylan Specialty LP (collectively, Mylan) to respond to

materials submitted by Kirkland & Ellis LLP (K&E) and to render opinions on (a) customs

and practices with respect to the role of bidder lawyers in the context of mergers and

acquisitions (M&A) generally and hostile bids specifically, and (b) the relationship between

those customs and practices and the roles of K&E in representing Mylan, on the one hand,

and Teva Pharmaceutical Industries Ltd. (Teva), on the other hand, in Teva’s unsolicited

and hostile efforts to acquire Mylan.

II. Summary of Opinions

Based on my practice experience as an attorney (including as a partner at Wachtell

Lipton Rosen & Katz), my research and teaching at Harvard Law School and Harvard

Business School, and my consulting experience, specializing in M&A (including hostile

takeovers) and finance (including valuation of companies), and my review and consideration

of documents listed in Exhibit C, it is my opinion that:

K&E’s functioning in customary roles for lawyers representing bidders making or pursuing unsolicited or hostile acquisition proposals (which for brevity I refer to as hostile bidders) necessarily conflicts with its representation of Mylan.

K&E, to be professionally competent in its work for Teva, will need to provide advice, value-relevant information and services about antitrust, litigation, negotiation, disclosure, and regulation, all based on information about Mylan’s products, competitors, markets, regulatory strategies, and value.

K&E’s work in these areas for Teva is substantially related to K&E’s work for Mylan.1

Information that K&E has obtained in its representation of Mylan in defending, prosecuting or advising Mylan about its important existing products – such as the EpiPen®, which generates over a $1 billion per year of revenues – and about its pipeline

1 I use the phrase “substantially related” in this report as it is used in ABA Model Rule 1.9, comment 3

– that is, if, among other things, there “is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”


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of potential products, is substantially related to professionally competent work by K&E for Teva.

K&E argues there is no conflict posed by K&E’s representation of Teva because K&E does not represent Mylan N.V., and instead represents Mylan, which is (K&E argues) not adverse to Teva. This argument ignores reality and tries to obscure substance with irrelevant form. Teva’s bid is to acquire control and ownership of the products of Mylan. Mylan is the primary asset of Mylan, N.V. The fact that Mylan N.V. owns its asset through subsidiaries, and that Teva’s bid is to acquire stock of Mylan N.V., does not alter my analysis. Teva seeks to own Mylan N.V.’s stock not as an end in itself, but because it conveys control and ownership of Mylan and its products. Teva’s disclosures and bid tactics and K&E’s advice to assist Teva will need to address the value, operations, and risks of Mylan N.V.’s consolidated group of companies, including Mylan. Precisely for this reason, K&E’s engagement letter with Mylan bars it from advising a party adverse to Mylan’s “affiliates,” including Mylan N.V., in matters related to K&E’s work for Mylan.

My analysis also would not alter if Teva could prove that it was receiving financial analysis from advisors based solely on public information: competent valuation analysis of Mylan and the combination of Mylan with Teva require judgments about sensitivities of value to various factors, including legal and other risks about which K&E received non-public information; and someone at or advising Teva will inescapably receive value-relevant information if K&E continues to perform customary, professionally competent services to Teva such as those it has conceded it is already providing.

My analysis is also unaffected by the fact that Teva is offering a premium in its bid – such premiums are necessary and standard in all hostile bids and do not change the nature of the conflicts between a hostile bidder and target.

My analysis also would not alter if K&E’s witnesses were correct in describing how K&E is using “ethical walls” to prevent some of its lawyers from learning information possessed by other K&E lawyers, because such screens would not be needed if the matters on which K&E worked for Mylan were truly unrelated to its work for Teva – or, put differently, screens cannot turn a related matter into an unrelated one.

The bases for these opinions, as well as additional opinions, are set out below.

III. Background and Credentials

A. Academic Experience

I am the John F. Cogan Professor of Law and Economics and Research Director of

the Center on the Legal Profession at the Harvard Law School (Harvard). At Harvard, I

teach, among other courses: basic courses on contracts and corporations and advanced

courses on M&A, including hostile takeovers; corporate control and governance; securities

law and regulation; and the legal profession, including the roles of lawyers in transactional


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and other types of practice. I also teach finance and valuation (including in the M&A

context) and corporate governance at Harvard Business School. My research is focused on

M&A, including hostile takeovers. A copy of my curriculum vitae, including a list of my

publications in the last ten years, is attached as Exhibit A.

B. Prior Work Experience

Before joining the Harvard faculty, I was a partner at the New York law firm of

Wachtell, Lipton, Rosen & Katz, one of the nation's leading law firms, specializing in hostile

takeovers and other M&A. I worked at Wachtell Lipton from 1988 to 1997. In my practice

at Wachtell Lipton, I represented large public companies and other firms involved in large

M&A transactions. Among other deals, I worked on large completed hostile bids in 1991

(Schneider’s acquisition of Square D) and 1994 (IBM’s acquisition of Lotus). I routinely

advised parties on strategy and tactics, as well as on their rights and obligations under

transaction agreements and relevant laws and regulations, as well as the customs and

practices with respect to M&A, and I was frequently involved in the preparation of

documents filed by public companies under the U.S. securities laws.

C. Consulting and Litigation Experience

Since joining Harvard, I have provided or am providing paid or unpaid consulting

services to the U.S. Department of Justice, the U.S. Department of the Treasury, the Office

of White House Counsel, the Securities and Exchange Commission, the New York Stock

Exchange, members, subcommittees and staff of the U.S. Senate and House of

Representatives, and active participants in corporate and financial transactions, including

private equity funds, mutual funds, hedge funds, public and private companies, law firms,

investment and commercial banks, trade organizations, and entrepreneurs. As a consultant

or while at Wachtell Lipton, I am or was a principal advisor in more than 50 completed


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corporate transactions, each involving more than $100 million, including transactions

involving AT&T; GE; IBM; Sara Lee; USAir; and Valero Energy. I have testified as an

expert witness more than ten times at trial and more than thirty times by deposition. My

testimony has been on behalf of both plaintiffs and defendants. I have testified in disputes

in Federal and state court concerning M&A, including hostile takeovers, and I have been

qualified as an expert on hostile takeover defenses in the Delaware Chancery Court. I have

testified in M&A disputes between companies in the health care industry. I have never been

disqualified as an expert in these fields. A list of cases in which I have testified or been

deposed as an expert in the previous four years is attached as Exhibit B.

D. Publications, Speaking Engagements, and Affiliations

I have studied and written extensively about the law and economics of corporate

transactions, such as M&A transactions, including hostile takeovers, as well as the contracts

and customs and practices of business persons and lawyers relevant to such topics. I am the

author of numerous articles and book chapters, including material included in the leading

practitioner-oriented treatise on hostile takeovers, M. LIPTON & E. STEINBERGER,

TAKEOVERS AND FREEZEOUTS, and for seven years I co-authored the leading treatise on

M&A in the financial industry, FINANCIAL INSTITUTIONS MERGERS AND ACQUISITIONS.

My articles have appeared, or are forthcoming, in top journals, both peer-reviewed and non-

peer-reviewed, including Yale Law Journal, Harvard Business Law Review, Stanford Law Review,

California Law Review, University of Pennsylvania Law Review, Texas Law Review, Journal of

Corporation Law, Business Lawyer, Accounting Horizons, Journal of Economic Perspectives, Journal of

Legal Analysis, Journal of Accounting Research, Law and Contemporary Problems, and Journal of

Empirical Legal Studies. The Delaware Supreme and Chancery Courts have cited several of my

articles, as have other courts.


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I will receive a fee of $1250 per hour for time spent on this litigation. My

compensation is not dependent either on the opinions I express or the outcome of this case.

IV. Customs Concerning Hostile Takeovers and Roles of Bidder Lawyers

Based on my experience, research, and teaching, I have the following opinions about

the customary roles of lawyers for hostile bidders.2 Lawyers representing hostile bidders

customarily provide advice about a broad range of legal and law-related issues, as well as

legal and strategic services in connection with variety of bid-related tasks. They include

(a) antitrust advice, (b) litigation advice, (c) negotiation and deal processing advice and

services, (d) disclosure advice, (e) financing advice, including negotiating the terms of loans

and other financial documents, and (f) litigation assessment advice and other value-relevant

advice and services, such as advice about intellectual property rights and risks and analysis of

the target’s public disclosures.

The antitrust advice includes advice about what antitrust enforcement officials and

courts are likely to decide about whether the hostile bid would violate the antitrust laws, as

well as what if any steps the bidder may be required to take to bring the bid into compliance,

including divestitures of businesses of the bidder, the target or both (divestitures).

Litigation advice in the context of hostile bids includes advice anticipating how a

target is likely to respond to the bid and to various types of litigation that may occur during

the bid. Targets can initiate litigation under the antitrust laws, the securities laws, or

2 Customarily, “hostile” bids are bids that are rejected or resisted by target boards; “unsolicited” bids

are bids that have not been solicited by target boards; “bid” is sometimes used as a synonym for “tender offer,” which is a public offer for securities (and also has a narrower technical legal meaning under U.S. securities laws), and sometimes more broadly to mean any acquisition proposal. Hostile bids are commonly initiated through informal or formal proposals, followed by formal tender offers or proxy fights. As noted at the outset, for brevity, I refer to unsolicited and hostile acquisition proposals as “hostile bids,” and bidders making such bids as “hostile bidders,” including through informal and formal acquisition proposals, “bear hug” letters, tender offers, proxy fights, and other efforts to induce an unwilling target board to negotiate a transaction or to change control of such a target to facilitate such a transaction. Putting aside non-serious or half-hearted proposals that are not made in good faith, any professionally competent representation of a bidder engaged in any of these forms of activity would be covered by the opinions I offer in this report.


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corporate law. In my work at Wachtell Lipton, for example, I assisted a target (Square D)

initiate antitrust litigation and engage in an effort to spur the Federal Reserve Bank of New

York and/or the Federal Reserve Board to initiate litigation against the bidder and its

shareholders. Bidders commonly bring litigation against the target, as do lawyers purporting

to represent target shareholders. Both the bidder and the target face litigation risks from

third parties, under contracts, antitrust law, or by regulators. Competent bidder lawyers

provide bidders with analyses of whether existing or threatened litigations against the target

(or the bidder) will be successful and what if any impact they will have on the target or the

bid. Such litigation can affect the value of the target to the bidder, or the ability of the

bidder to realize synergies from the proposed acquisition of the target.

The negotiation and deal processing advice and services include assisting the

bidder to pursue the customary goal of trying to convince the target’s board of directors to

reach a negotiated agreement with the bidder. In my work at Wachtell, for example, on

behalf of Lotus (the target) I directly negotiated with counsel for the hostile bidder (IBM) in

the period leading up to and after the Lotus board decided to negotiate a transaction with

IBM. It also includes assisting the bidder in dealing with third parties seeking to acquire

businesses in divestitures required under the antitrust laws or otherwise desirable as a result

of the transaction. It includes advice about deal and bid structures and tactics, and services

such as coordinating, consulting and providing legal advice useful to the bidder’s bankers

and other advisors or counterparties in their efforts to finance, value, negotiate, and give

financial advice about the pricing, structure, and other terms of the hostile bid itself, and any

subsequent transaction that it produces. It also includes carrying out services – filing

documents, dealing with government officials, communicating with the public – related to


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seeing to it that the bid and related transactions comply with securities, corporate, antitrust

and other laws.

Disclosure advice in this context includes advice about obligations of the bidder

and target under the securities and other laws. These disclosures commonly are related to

the value of the target, and risks or contingencies related to the value of the target, such as

antirust and other legal risks and uncertainties created by the hostile bid or related

transactions. Such disclosures, if materially incomplete or misleading, can subject the bidder

to fraud liability. If a bidder’s counsel has material information related to the bidder’s

disclosures concerning the value of the target, or risks or contingencies related to the value

of the target, bidder’s counsel must inform the bidder of that information for the bidder to

make appropriate adjustments in its disclosures.

Financing advice in the context of a hostile bid that includes a large cash

component includes providing the bidder with information to assist in financing the bid, or

related transactions. It also includes negotiating with or providing information to

investment and commercial banks seeking to finance or provide advice about financing the

bid. Such advice and services include working with investment banks and commercial banks

to review the reasonableness of projected cash flows of the target on a stand-alone basis, or

combined with the bidder, as well as synergies that the transaction may generate.

As part of financing advice, but also more broadly, bidder lawyers provide litigation

assessment advice and other value-relevant advice and services. They customarily

provide advice about alternative transactions that the target may contemplate initiating in

response to the bid, and legal risks associated with those alternatives. Bidder lawyers are

professionally unique in their ability to provide assessments of legal and regulatory risks

associated with cash flows, synergies, and value, such as those that arise from pending or


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threatened litigation affecting the bidder or the target or their respective assets or business

operations. They also help review bankers’ “board books” and a bidder’s investor

presentations and disclosures, as noted above, and as part of those services check the

reasonableness of the information included in statements or analyses of value.

In the context of hostile bids, all of these roles take on particular importance, for

three reasons. First, by definition, the target’s board and management have not solicited the

bid and are resisting the bid. As a result, the bidder does not have access to the target’s

private information. Lack of access to non-public information about the target makes

professional advice from bidder lawyers even more strategically important than in a standard

negotiated acquisition, where bidders have access to non-public information about the target

through an agreed-upon due diligence process.

Second, unlike proposals for many negotiated acquisitions, a hostile bid is

customarily for the entirety of the target and its business, and not merely for a part of its

business. Representing a hostile bidder is different in kind from many more narrowly

framed kinds of corporate legal work, such as representing a company in a litigation that

directly affects only one product or activity of a company.

Third, hostile bids involve an unusual package of highly complex tasks often

occurring in sudden bursts at great speed in interconnected fashion. The complexity of

hostile bids is reflected in the above summary of customary legal tasks a hostile bid requires.

The speed of legal work in hostile bids stems in part from disclosure laws that commonly

require rapid updating of public information about the bid, in part from how quickly (and

strongly) market prices react to events during the bid, and in part from the fact that

preliminary or emergency relief is commonly sought and often obtained from courts during

the course of a bid. It is also conceded by K&E’s Daniel Fox (Decl. ¶ 21), who describes


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the work K&E has been doing for Teva on its bid as “in many cases around the clock.” The

interconnected nature of the tasks is also reflected in the above sketch: bank financing, for

example, may depend on assessments of litigation risks, which may in turn affect market

values, which can affect the odds the bid will lead to a negotiated contract. Even if a bidder

divides up its work, so that no one law firm is handling all of its legal needs related to the

bid, any one lawyer or law firm playing a material role for the bidder will need to be able to

quickly and candidly coordinate and share information with other bidder lawyers, employees

and agents. This is conceded by K&E’s David Fox (Decl. ¶ 22), who describes his

responsibilities as “leading and supervising a large team of attorneys” not only at K&E but

also “lawyers in the Netherlands,” and “developing, implementing and coordinating the

extraordinarily complex legal strategies and operative corporate law principles worldwide.”

Unlike other types of legal representation, representations of hostile bidders are not

customarily conducted in a segmented or “silo-ed” fashion.

A final fact about customary roles of bidder lawyers should be noted. Hostile

takeover bidders generally are advised and customarily seek to pursue negotiated transactions

with targets. They do so in the first instance by attempting to convince the target board that

the value being offered by (or that could be negotiated with) the bidder is greater than the

value the target could generate as an independent company, or in combination with other

companies. Bidder lawyers, as a result, must be prepared to and in fact customarily give the

bidder advice about numerous legal issues relating to valuation. These issues include

regulatory issues, particularly as they relate to intellectual property protection for future

products that may affect the target’s value. These issues also include antitrust issues, such as

how to analyze market structure, assess potential competition, and measure pricing impacts

of the bid itself, or alternatives to the bid. Antitrust risks affect deal certainty and therefore


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the probability-weighted expected value to the target of the potential acquisition. These

issues also include more general assessments of the likelihood that competitors will be able

to enter the markets for the target’s key products, which are often determined in large part

by a combination of intellectual property rights, regulation, and litigation risks surrounding

new entry or product development.

Hostile bidders commonly do not acquire targets, because they are unable to

persuade their boards or shareholders to accept their bids. When they do acquire targets,

however, they customarily at some point negotiate with the target, leading to an acquisition

agreement. In such an agreement, as in the hostile bid leading up to it, the parties have

directly conflicting interests. These conflicts relate to value (price), antitrust risk (what a

bidder is obliged to do to obtain antitrust clearance, and what happens if they cannot), and

other terms (such as what happens if another bidder subsequently bids more). Bidder

lawyers must anticipate all of this in their initial work for a bidder, including strategic and

tactical advice about how much to offer in its initial bid.

V. Background Facts

For purposes of this report, and based upon the facts stated in the documents listed

on Exhibit C, I note the following:

K&E has recently represented Mylan, and is currently representing Mylan. Its

representations concern important rights relating to important products, including lidocaine

patches, Benicar®, and the EpiPen®. Contrary to the implications of K&E’s briefs and

declarations (e.g., Fox Decl. ¶ 17, K&E Memorandum of Law in Response to Plaintiffs

Motion for Preliminary Injunction at page 28), the products about which K&E obtained

confidential information from Mylan are not simply a “few” minor products among many

thousands of products sold by Mylan. “During 2014, the EpiPen® Auto-Injector became


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the first Mylan product to reach $1 billion in annual net sales.”3 Indeed, according to the

Miner Supplemental Declaration, the products on which K&E advised Mylan approach

$4 billion in annual market sales – hardly de minimis, as the K&E papers try to suggest.

K&E has received from Mylan in the course of its representation of Mylan

confidential information regarding regulatory and product strategies, which bear on risks

relating to the value of those products, as well as to financial forecasts related to Mylan’s

products. (I recognize that K&E disputes the precise extent and significance of the

information that it received, but the general fact and types of information appear to be

largely undisputed.) K&E received confidential information relating to Mylan’s strategies for

pricing products. K&E received confidential information about Mylan’s future plans and

products, including potential future product introductions and regulatory status of

unlaunched products, as well as helping to shape Mylan’s strategies on these issues. K&E

received confidential market and financial information, legal and strategic analyses, and other

confidential information about EpiPen® as recently as November and December of 2014.

VI. Additional Facts from the Public Record

I also note the following facts derived from public documents filed by Teva. Teva’s

own presentations regarding its acquisition proposal for Mylan identify antitrust issues as a

key item of interest to the public. In its presentation dated May 5, 2015, entitled “Teva and

Mylan,” Teva mentions “antitrust” more than 15 times, and lists it third in a list of seven

items on the “agenda” of the presentation. While the presentation asserts that “antitrust is

not a barrier to completion” of its bid for Mylan, it recognizes that it has already had to

“carefully stud[y] regulatory aspects of the proposed combination,” that it is prepared to

conduct “divestitures” to obtain antitrust clearance, and that “several potential purchasers

3 Mylan Inc. Form 10-K for the year ended 12/31/2014 at 8.


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have already shown interest in acquiring likely divested assets.” In its presentation and other

public statements it acknowledges that it will need to raise substantial funds to complete its

bid, as is also apparent from the amount of cash its current proposal will require (over $20

billion) relative to the cash on hand it has disclosed in its financial statements (less than $5

billion as of December 31, 2014).4

VII. Opinions Concerning Relationship Between Facts and Customs Stated Above

In this section, I relate my opinions (stated above) about customs and practices

concerning hostile bids and the roles of lawyers in hostile bids to the facts concerning Mylan,

K&E and Teva summarized above. The bottom-line of the combination of customs and

facts of this dispute is clear. K&E’s work for Mylan is directly and substantially related to

professionally competent work as bidder counsel for Teva. That this is so approaches the

self-evident. Teva (with K&E's assistance) now seeks to acquire, in a hostile manner, the

very products – released and unreleased – about which Mylan confidentially disclosed legal

and pricing strategies and FDA issues to K&E and on which K&E advised Mylan. As stated

by K&E’s Michael Shumsky (Decl. ¶55), who represents Mylan, “I suspect that Teva would

engage Teva USA to commercialize the actual branded EpiPen® on Teva’s behalf” if Teva

acquires Mylan. A more obvious relationship, and conflict, is hard to imagine – a lawyer

helping a buyer in its efforts to buy products (including unreleased products) about which

the seller has been and is being advised by the same lawyer, about which the seller is

providing non-public information to the lawyer under the shelter of the attorney-client

relationship. Considering that K&E agreed it would not take on any adverse engagement

that was merely “related" to the work K&E performed and continues to perform for Mylan

– plainly a lower standard than “substantially related” – any argument that K&E’s Teva

4 Teva Pharmaceutical Industries Ltd. Form 20-F for the year ended 12/31/2014 at 3.


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engagement is not related at all to its work for Mylan could be fairly characterized as

frivolous.

The analysis leading to this bottom-line is straightforward. First, K&E’s functioning

in customary roles for lawyers in hostile bids necessarily conflicts with its representation of

Mylan. Even if Teva focuses its efforts solely on Mylan’s shareholders, trying to persuade

them to tender their shares to Teva, K&E – to be professionally competent – must advise

Teva about how Mylan might respond, including through litigation against Teva. It will need

to advise Teva about antitrust risks and value-relevant legal positions that Mylan may take in

litigation that K&E itself is handling or has recently handled for Mylan, and in defending and

augmenting Mylan’s intellectual property rights, regulatory strategies, and pricing strategies.

K&E’s witness, Professor Painter, concedes this (Decl. ¶67) when he argues that it would

harm Teva if Teva were “denied Kirkland’s assistance in the legal issues associated with the

proposed transaction[, which] include contract law issues, antitrust law issues, regulatory

requirements, and securities laws.”

As Professor Painter also emphasizes (id.), K&E’s advice must also include

disclosure counsel about how best to describe to the public (and hence Teva’s own

shareholders, as well as to Mylan’s shareholders) whether it can easily, quickly, or with

certainty persuade antitrust authorities to approve specified divestitures and so obtain

antitrust clearance for its bid, as Teva has already promised the public it can do. As

Professor Painter states (id.), “A bidder has substantial disclosure obligations” that include

“any potential problems with the bid (including for example antitrust matters that could arise

from the combination of the two companies).” That antitrust advice will necessarily involve

assessing the competitive structure of the industry in which Mylan and Teva both already

operate, as well as the potential value or loss in value of various divestiture alternatives.


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The information that K&E has obtained – including but not limited to confidential

pricing strategies, “legal and strategic analyses,” the status of unlaunched products, and

“market and financial forecast information” – and would continue to obtain in its

representation of Mylan is directly related to advice that Teva needs from its counsel.

Pricing power (or its absence) and the ability of competitors to bring competitive products

to market (which is affected by Mylan’s intellectual property rights and regulatory position

and strategy), and the substitutability of existing products for Mylan’s current and future

products are all related to antitrust analysis. All of these factors will also determine how high

Teva must bid to persuade Mylan shareholders to support Teva’s bid for Mylan’s shares,

because they affect the certainty and value of the bid to Mylan’s shareholders. Because Teva

(unlike K&E) does not have access to non-public information from Mylan, K&E’s advice

would be of significant value in reducing the degree of financial and operational uncertainty

that a bid of this magnitude creates for the bidder, its shareholders, and its banks.

In addition, to fulfill the customary roles for bidder counsel, K&E will have to advise

Teva about how best to persuade Mylan to agree to a negotiated transaction, and assist Teva

in negotiating directly with Mylan (and against Mylan’s interests) in pursuing such a

negotiated transaction. This advice will need to include informed assessments of Mylan’s

legal positions, its negotiating resources, and the risks that its cash flows may be impaired by

litigation with third parties or the government. Should Teva’s efforts be successful in

convincing Mylan to negotiate a deal, the contract for such a deal will necessarily address

antitrust risks affecting the deal, as well as a price, which will in material part be determined

by the synergies that Teva expects to obtain in the deal.

The potential synergies from a possible combination – whether obtained by

negotiation or by appeal directly to Mylan shareholders – will depend in part on Mylan’s


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pricing of its products, both current and future. Those synergies will also depend in part on

what divestitures are most likely to result in antitrust clearance. While much information

relevant to antitrust analysis is publicly available, much information about the precise size

and types of necessary divestitures, the identity of the likely buyers, the likely terms on which

divestitures can be conducted, and how they will impact the value of the combined company

all depend on a complex blend of public and confidential information, including the kinds of

information disclosed by Mylan to K&E. This is conceded by K&E’s witness, Ashish

Contractor, managing director at Greenhill & Co., Inc. and one of Teva’s financial advisors,

when he states (Decl. ¶4) that “Greenhill used in [its] Valuation Analyses ... an analysis

prepared by management of Teva of projected synergies to be derived from certain strategic,

financial, tax, and operational benefits anticipated from the transaction, as well as the

financial and tax implications of potentially making certain product divestitures in

connection with the proposed Transaction” (emphasis added). Even the stand-alone value

of Mylan will be relevant for Teva to determine how much to offer to Mylan and its

shareholders, and that value is a function of Mylan’s future cash flows, and their risk. K&E

has confidential Mylan information directly related and material to an assessment of the

riskiness and levels of those cash flows, and thus to Mylan’s value.

The banks with which Teva will have to obtain financing will also have an interest in

the same risks and value-relevant confidential facts that K&E has obtained from Mylan.

Banks or other sources for more than $20 billion of financing will expect to be repaid from

the cash flows of the combined firm. They will seek due diligence information from Teva

about Teva, Mylan, and how the combined company will generate cash to repay the loans.

They will be required to seek information about the legal risks (such as those affecting

important products such as the EpiPen®) attached to those cash flows. These legal risks


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include but are not limited to the very matters on which K&E is currently representing

Mylan. They will also customarily seek information about Mylan’s current and future

product strategies, to determine if they pose risks to repayment.

K&E’s access to Mylan’s confidential current, historic, and future strategies goes to

the core of Mylan’s current and future valuation. It is precisely the type of private

information that a bidder for Mylan would be most interested in having. It would provide

crucial assistance for a bidder to determine exactly how much Mylan is worth, on its own

and in combination with itself.

In sum, to be professionally competent in its work for Teva, K&E needs to provide

advice and value-relevant information about, and services related to, antitrust, litigation,

negotiation, disclosure, and regulation, and to base its advice, information and services on

material information about Mylan’s products, competitors, markets, regulatory strategies, and

value. Information K&E has obtained in its representation of Mylan in defending,

prosecuting or advising Mylan about its important products and pipeline of potential

products, such as the EpiPen®, is directly and substantially related to professionally

competent work by K&E for Teva, and such information would materially advance Teva’s

position in its hostile acquisition efforts if disclosed.

VIII. Response to Arguments Made by K&E and by Teva’s Financial Advisors

In this final section, I respond to four arguments made by K&E and Teva’s financial

advisors: (1) K&E’s conduct is permissible because Teva is bidding for Mylan N.V., rather

than for its wholly owned subsidiaries; (2) K&E’s conduct is permissible because Teva is

relying on financial advisors who have prepared valuation analyses based on public

information; (3) K&E’s conduct is permissible because Teva’s bid is at a premium to the

market price of the target’s shares; and (4) K&E’s conduct is permissible because it


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purportedly has established “ethical walls” preventing K&E’s lawyers who have or are

working for Mylan from sharing information with K&E’s lawyers working for Teva.

A. Mylan N.V. versus Mylan

K&E argues there is no conflict posed by K&E’s representation of Teva because

K&E does not represent Mylan N.V., and instead represents Mylan, which is (K&E argues)

not adverse to Teva. K&E partner David Fox tries to buttress this argument by asserting

that “Mylan N.V. is very different from Mylan Inc.” because they own “different assets,” are

incorporated in different jurisdictions, and have principal offices in different locations.

These arguments ignore reality and try to obscure substance with irrelevant form.

Teva’s bid is to acquire control and ownership of the products of Mylan. The stock of

Mylan is the primary asset of Mylan, N.V. Mylan produces over 90% of the revenue of

Mylan N.V.5 As a result, the value of Mylan N.V. is predominantly a function of the value of

Mylan. The facts that Mylan N.V. owns the assets through subsidiaries, and owns other

assets, and that Teva’s bid is to acquire stock of Mylan N.V., does not alter my analysis.

Teva seeks to own Mylan N.V.’s stock not as an end in itself, but because it conveys control

and ownership of Mylan and its products.

In addition, Mylan Inc.’s businesses and operations are attributed to or controlled by

Mylan N.V. for securities, antitrust law and corporate law purposes. Disclosure obligations

of Mylan N.V., for example, attach to any company over which it has control, much less

100% ownership. If Teva were to enter into a material contract with Mylan Inc., for

example, that contract would have to be publicly filed by Mylan N.V. Likewise, because the

businesses of Teva or its subsidiaries are in competition with businesses owned by Mylan

Inc., any antitrust analysis of Teva’s acquisition of Mylan N.V. requires knowledge and

5 Id.


19

judgment about Mylan Inc. If Teva acquires Mylan N.V., it acquires Mylan Inc., a Mylan

Pharmaceuticals Inc., Mylan Technologies, Inc. and Mylan Specialty LP, to each of which

K&E owes a duty of loyalty. None of this is altered by the facts that Mylan N.V. owns

assets other than Mylan Inc., or has a different headquarters, or jurisdiction of incorporation.

In sum, the fact that Teva’s bid is directly to acquire Mylan N.V., and only indirectly

to acquire control and ownership of Mylan N.V.’s subsidiaries does not alter my analysis.

Teva’s disclosures and bid tactics and K&E’s advice to assist Teva will need to address the

value, operations, and risks of Mylan N.V.’s consolidated group of companies, including

Mylan and Mylan N.V.’s other subsidiaries. Precisely reflecting a situation like the one in

this case, K&E’s engagement letter (at page 3) bars it from advising a party “adversely to

you” [i.e., Mylan, as defined above] “or any of your affiliates” on any matters related to

services K&E has rendered to Mylan or to services to Mylan’s “affiliates,” including Mylan

N.V., in matters related to K&E’s work for Mylan.6

B. Valuation Analyses Based on Public Information

K&E also argues that its actions are permissible because Teva’s bankers have

provided valuation analyses to Teva based solely on public information, and therefore the

confidential non-public information K&E has about Mylan is not related to their valuation

analyses. K&E’s analysis tries to create illusory walls between what key advisors on hostile

bids do, when in reality such walls do not exist, as acknowledged by K&E’s own witnesses,

who acknowledge working directly with K&E’s lawyers. A hostile bidder must compare the

value it expects to derive from the bid with alternatives, and bidder lawyers customarily

6 That the engagement letter later says that no affiliate “has the status of a client for conflict of interest

purposes” does not change the analysis or my opinions. Mylan N.V. is not the party bringing this action to disqualify K&E; this action has been instituted by Mylan entities expressly covered as clients. Moreover, this language does nothing to change what K&E promised to Mylan – that it would not take on any matter adverse to Mylan “and its affiliates” if that matter was related to the legal services K&E has rendered and is rendering to Mylan.


20

informs a bidder and (directly or indirectly) its bankers about the target and the bidder’s

alternatives. Bidder lawyers customarily play important roles that help the bidder and its

financial advisors know how to assess the risks and uncertainties associated with valuation,

and by K&E’s own description, its lawyers are playing important roles in helping assess and

create the disclosures for Teva’s bid, the context for how the market will evaluate the bid,

and the likelihood that the bid will produce benefits for Teva.

Even when bankers prepare valuation analyses based on public information, their

analyses require judgment, which is best informed by a variety of informed views about

whatever is being valued. Valuations – even of publicly traded companies – involve a

number of inputs about which reasonable people can disagree in the light of experience and

informed opinions. For example, a typical valuation involves comparing a company or

transaction to other companies or transactions, but the choice of comparable companies or

transactions is not formulaic, and is best informed by a deep understanding of the industry

in which the company operates, its strategy, and growth potential. Typical valuations also

include projections of cash flows, which require assumptions about (among other things)

future growth, capital structures, and competition, as well as estimated discount rates, which

require assumptions about the risk (systematic and idiosyncratic) of those cash flows. Those

assumptions cannot be deduced or derived from public information, but require judgments

about sensitivities of those inputs to context-specific factors, including legal and other risks

about which K&E received non-public information.

Whether any particular banker was given a specific piece of non-public information

and then used it in a formal valuation model, Teva would not pay its bankers their customary

large advisory fees solely to engage in a mechanical exercise of cutting and pasting

information from Mylan’s public financial statements into a spreadsheet. The bidder’s


21

counsel will work closely with the bidder and the bidder’s bankers on the variety of issues

that ultimately determine a valuation analysis. These efforts include comparing the outputs

of a variety of valuation analyses – of Mylan on a stand-alone basis and of the synergies that

Teva can expect to realize by buying Mylan – with what they know about Teva and Mylan.

The bidder, its lawyers and bankers will ask themselves and provide each other with

assessments, explicit or not, of whether the values so derived are reasonable, and how risky

those values are. Those judgments will play a role in determining how high Teva will bid.

As part of that process, Teva or someone advising it about value will inescapably receive

value-relevant information if K&E continues to perform customary, professionally

competent services to Teva such as those it has conceded it is already providing. That is

because the value of the products owned by Mylan – about which K&E has been providing

advice – is the foundation for the value of Mylan on a stand-alone basis, to which Teva’s bid

– no matter how high the premium – will be compared. Even if K&E were not providing

any information directly to Teva’s bankers, it is providing information and counsel to Teva,

who is in a position to use that information and counsel in assessing the valuation advice it is

receiving from its bankers.

More generally, K&E’s declarations and briefs are at odds with the more general

strategic roles that bidder lawyers play in advising a bidder. As stated by K&E’s deal lawyer,

Daniel Wolf, deal lawyers focus on deal terms, which set the stage for the bidding. “In a

vacuum, if someone is willing to pay more, they will win, but the terms influence what cards

can be played and how value is deployed. That’s where the chess match begins,” he has

been quoted as saying.7 Likewise, Teva’s CFO (Desheh Decl. ¶16) states that K&E is

providing Teva with “strategic decision making and analysis.” Bidder lawyers, as outlined

7 The Deal Tacticians, 46 Mergers & Acquisitions 29 (2014).


22

above, play critical strategic roles in assisting a bidder and its bankers assess how a target will

respond to the bid, which turns on the bid’s risks, and its alternatives. They advise bidders

on what terms to propose at the outset, with the ultimate goal of a negotiated contract in

mind. Those risks, alternatives and terms are all informed by the kinds of confidential

information that K&E has concededly received from Mylan. K&E’s banker-witness, Jed. S.

Brody, acknowledges (Decl. ¶5) that he has been working directly with K&E lawyers.

C. Premium Bid

My analysis is also unaffected by the fact that Teva is offering a premium in its bid, a

suggestion made (but then dropped) by Professor Painter on K&E’s behalf (Painter Decl.

¶29) (“There are substantial grounds to challenge the proposition that Teva is acting

adversely to Mylan N.V. when it is offering to pay ... 48% more than the trading price of

Mylan N.V. shares.”) Such premiums are necessary and standard in all hostile bids, because

the result is to convey control and not a small ownership stake, as occurs when a single share

trades on the market. The fact that the bidder is offering a premium does not change the

nature of the conflicts between it and the target. The conflicts arise because the authorized

decision-maker for the target (its board) has decided to reject the bid, but the bidder is

persisting in trying to force its bid through despite the target board’s rejection. Even if the

target’s board were willing to accept a bid at some price, there is always adversity in

takeovers because the precise price (how big of a premium) is a matter of adverse

negotiation between the bidder and target. A core conflict is simple: the bidder wants to

pay less, the target wants the bidder to pay more. The conflict is even stronger if as is

currently the case the target’s board has rejected the bid and is seeking to pursue an

acquisition bid of its own, and the bidder has conditioned its bid on the target dropping its

own acquisition bid.


23

D. “Ethical Walls”

Finally, my analysis would be unaffected if K&E’s witnesses were correct in

describing how K&E is using “ethical walls” to prevent some of their lawyers from learning

information possessed by other K&E lawyers. Such screens would not be needed if the

matters on which K&E worked for Mylan were truly unrelated to its work for Teva – or, put

differently, screens cannot turn a related matter into an unrelated one. Nothing about those

screens eliminates the risks that the ethical rules against conflicted representations on related

matters create. Unlike the use of such screens in other settings, where they assist in

regulatory compliance (such as preventing trading on the basis of non-public information),

here, the screens simply cannot bear the weight that K&E seems to think they can.


24

Signed: May 22, 2015

Location: Newton, Massachusetts


25

Exhibit A JOHN C. COATES IV

647 Commonwealth Avenue (617) 496-4420 Newton, Massachusetts 02459 [email protected] EXPERIENCE Harvard Law School, Cambridge, MA John F. Cogan Jr. Professor of Law and Economics 6/06 – Present Professor of Law 6/01 – 6/06 Assistant Professor of Law 6/97 - 6/01

Corporations, Corporate Governance and Boards of Directors, Mergers & Acquisitions, Contracts, Financial Institutions Regulation, Legal Profession and advanced seminars

Chair, Committee on Executive Education 3/13 - Present Research Director, Program on the Legal Profession 6/07 – Present Harvard Business School, Boston, MA Lecturer, Boards of Directors and Corporate Governance 9/11 – 6/15 Lecturer, Finance 1/15 – 6/15 Visiting Professor, Finance effective 7/15 – 6/16 Independent Consultant 6/97 to Present

Mergers and Acquisitions, Corporate Governance, Event-Risk Arbitrage, Legal Profession, Law Firm Management, Professional Service Firms, Management of Conflicts of Interest

Securities and Exchange Commission, Washington, D.C. Independent Distribution Consultant (Fair Funds Distributions for Mutual Funds) 5/04 – 9/11

Wachtell, Lipton, Rosen & Katz, NYC Partner 1/96 – 5/97 Associate (Full- or Part-Time) 3/88 – 6/89, 9/89 – 12/95

Specialized in corporate, securities, M&A, and financial institutions law and regulation, proxy fights, auctions and hostile takeovers Managed legal work for corporate mergers and acquisitions, recapitalizations, buyouts, freezeouts, and public offerings Managed disclosure and compliance "crises" at public companies, particularly financial institutions


26

New York University School of Law, NYC Visiting Professor 7/05 – 12/05 Lecturer or Adjunct Assistant Professor 1/92 -5/97 Boston University Law School, Boston, MA Lecturer , Bank Mergers and Acquisitions 1/95 – 6/97 MEMBERSHIPS / AFFILIATIONS / AWARDS PRESENT OR PAST American Law Institute Member New York Stock Exchange Member, Legal Advisory Board American Bar Association Member, Section on Business Law American Law and Economics Association Member, Board of Directors Association of American Law Schools Member European Corporate Governance Institute ECGI Research Associate, Board of Directors National Bureau of Economic Research Invited Speaker / Researcher Harvard Ad Hoc Group on Corporate Governance Founding Member Committee on Capital Market Regulation Task Force Member + Primary Author Harvard University Financial Regulatory Discussion Group Member Society for Empirical Legal Studies Member American Finance Association Member NYU School of Law Alumni Association Teaching Award Harvard University Masters of Arts (Honoris Causa)

EDUCATION New York University School of Law J.D. Cum Laude, May 1989 New York University Law Review 1988-89 -- Editorial Board, Articles Editor 1987-88 -- Staff Member Law Review Alumni Association Award Third in Class George P. Foulk Memorial Award Scholarship Pomeroy Prize Outstanding Academic Performance Order of the Coif American Jurisprudence Awards (contracts, procedure, securities) University of Virginia B.A. (History), Highest Distinction, May 1986 Thesis: "Christianity, Kingship and a Carolingian Lord" Younger Prize Distinction in American History Jefferson Scholar Four-year Merit-Based Scholarship Echols Scholar Academic and Leadership Merit


27

PUBLICATIONS Recent or Forthcoming Publications M&A Contracts: Purposes, Types, Regulation and Patterns of Practice (April 2014), forthcoming in RESEARCH

HANDBOOK ON MERGERS AND ACQUISITIONS (Claire Hill and Steven Davidoff Solomon, eds., Edward Elgar 2015) Corporate Speech and the First Amendment: History, Data and Implications, Constitutional Commentary (forthcoming 2015) Securities Litigation In The Roberts Court: An Early Assessment, 57 Arizona Law Review 1 (2015) Mergers, Acquisitions, and Restructuring: Types, Regulation, and Patterns of Practice (July 2014), forthcoming in OXFORD HANDBOOK ON CORPORATE LAW AND GOVERNANCE (eds. J. Gordon and G. Ringe Oxford University Press 2015) Thirty Years of Evoluation in the Roles of Institutional Investors in Corporate Governance (May 2014), forthcoming in RESEARCH HANDBOOK ON SHAREHOLDER POWER (Jennifer Hill and Randall Thomas, eds., Edward Elgar 2015) Towards Better Cost-Benefit Analysis: An Essay on Regulatory Management, Law and Contemporary Problems (forthcoming 2015) Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications, 124 Yale Law Journal 882 (2014-2015) What Courses Should Law Students Take? Harvard’s Largest Employers Weigh In, 64 Journal of Legal Education (2014) (with Jesse Fried and Kathryn Spier) SOX After Ten Years: A Multidisciplinary Review, 28:3 Accounting Horizons 627 (2014) (with Suraj Srinivasan) Evidence-based M&A: Less Can Be More When Allocating Risk in Deal Contracts, 27 Journal of International Banking, Finance and Law 708 (2012) Corporate Politics, Governance, and Value Before and After Citizens United, 9 Journal of Empirical Legal Studies, 657-696 (2012), selected as one of 10 best securities law articles published during 2012-13 by academics surveyed Managing Disputes Through Contract: Evidence from M&A, Harvard Business Law Review, Vol. 2, pp. 301-349 (2012) Other Major Publications Hiring Teams, Firms and Lawyers: Evidence of the Evolving Relationships in the Corporate Legal Market, 36 Law & Social Inquiry 999-1031 (2011) (with Michele DeStefano Beardslee, Ashish Nanda and David B. Wilkins)

M&A Break Fees: U.S. Litigation versus U.K. Regulation, in REGULATION VERSUS

LITIGATION: PERSPECTIVES FROM ECONOMICS AND LAW, Daniel Kessler, ed. Chicago: University of

Chicago Press (2011) Reforming the Taxation and Regulation of Mutual Funds: A Comparative Legal and Economic Analysis, 1 J. Legal Anal. 591 (Summer 2009) Competition in the Mutual Fund Industry: Evidence and Implications for Policy, 33 J. Corp. L. 151 (2008) (with R. Glenn Hubbard)


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The Goals and Promise of the Sarbanes-Oxley Act, 21 J. Econ. Persp. 91 (Winter 2007) Ownership, Takeovers and EU Law: How Contestable Should EU Corporations Be?, in COMPANY AND

TAKEOVER LAW IN EUROPE, eds. E. Wymeersch & G. Ferrarini (Oxford University Press 2004) The Powerful Antitakeover Force of Staggered Boards: Theory, Evidence and Policy, 54 Stan. L. Rev. 887 (2002) (with Lucian A. Bebchuk and Guhan Subramanian), selected as one of 10 best corporate law articles published during 2002 by academics surveyed Explaining Variation in Takeover Defenses: Blame the Lawyers, 89 Cal. L. Rev. 1301 (2001), selected as one of 10 best corporate law articles published during 2002 by academics surveyed, reprinted in MERGERS AND THE

MARKET FOR CORPORATE CONTROL, ed. Fred S. McCheney (Edward Elgar 2010) and LAW AND ECONOMICS

OF MERGERS AND ACQUISITIONS (eds. Steven M. Davidoff and Claire A. Hill, Edward Elgar 2013) Private vs. Public Choice of Securities Regulation: A Political Cost/Benefit Analysis, 41 Va. J. Int'l L. 531 (2001), selected as one of 10 best securities law articles published during 2001 by academics surveyed A Buy-Side Model of M&A Lockups: Theory and Evidence, 53 Stan. L. Rev. 307 (2000) (with Guhan Subramanian) Takeover Defenses in the Shadow of the Pill: A Critique of the Scientific Evidence on Takeover Defenses, 79 Tex. L. Rev. 271 (2000), reprinted in 43 Corp. Practice Commentator 1 (2002) as one of 10 best corporate law articles published in 2001-02 by academics surveyed Measuring the Domain of Mediating Hierarchy: How Contestable Are US Public Corporations?, 24 J. Corp. L. 837 (1999) "Fair Value" as a Default Rule of Corporate Law: Minority Discounts in Conflict Transactions, 147 U. Penn. L. Rev. 1251 (1999), reprinted in 41 Corp. Practice Commentator 1 (2000) and selected as one of 10 best corporate law articles published in 1999-2000 by academics surveyed ANNUAL SURVEY OF DEVELOPMENTS IN MERGERS AND ACQUISITIONS OF FINANCIAL INSTITUTIONS 1990-1998 (with Herlihy et al.) (co-authored leading annual survey for eight years; privately published) State Takeover Statutes and Corporate Theory: The Revival of an Old Debate, 64 N.Y.U. L. Rev. 806 (1989)

Other Publications Corporate Purchasing Project: How S&P Companies Evaluate Outside Counsel (A White Paper), Harvard Law School Program on the Legal Profession (2011) (with Michele DeStefano Beardslee, Ashish Nanda, Erik Ramanathan and David B. Wilkins) Fulfilling Kennedy’s Promise: Why the SEC Should Mandate Disclosure of Corporate Political Activity, 2011 (with Taylor Lincoln) The Downside of Judicial Restraint: The (Non-) Effect of Jones v. Harris, 6 Duke J. of Constitutional Law and Public Policy 58 (2010) Corporate Governance After the Financial Crisis, Proceedings of the 2010 Annual Symposium: Legal Aftershocks of the Global Financial Crisis, 6 NYU J. of Law & Business 171 (2010) Lowering the Cost of Bank Recapitalization, 26 Yale J. Reg. 373 (Summer 2009) (with David Scharfstein) The Keynote Papers and the Current Financial Crisis, 47 J. Acctg. Res. 427 (May 2009)


29

The Powerful Antitakeover Force of Staggered Boards: Further Findings and a Reply to Symposium Participants, 55 Stan L. Rev. 885 (2003) (with Lucian A. Bebchuk and Guhan Subramanian), selected as one of 10 best corporate law articles published during 2003 by academics surveyed The Trouble With Staggered Boards: A Reply to Georgeson's John Wilcox, Corporate Governance Advisor (2002) (with Lucian A. Bebchuk and Guhan Subramanian) Second-Generation Shareholder Bylaws: Post-Quickturn Alternatives, 56 Bus. Law. 1323 (2001) (with Bradley C. Faris) Empirical Evidence on Structural Takeover Defenses: Where do We Stand?, 54 U. Miami L. Rev. 783 (2000) Freezeouts, Management Buyouts and Going Private, in Takeovers & Freezeouts (eds. M. Lipton & E. Steinberger, Law Journal Seminars-Press 1998) Reassessing Risk-Based Capital in the 1990s: Encouraging Consolidation and Productivity, in Bank Mergers and Acquisitions (eds. Y. Amihud & G. Miller, Kluwer Academic Publishers 1998) Purchase Accounting Deals: A Look at Pricing Formulas and Allocation Procedures, 15 Banking Policy Report 1 (Nov. 18, 1996) (with Herlihy, et al.) Acquisitions of Financial Advisory and Investment Management Businesses, 17 Bank & Corp. Gov. L. Rep. 8 (Sep. 1996) (with Herlihy et al.) New Guidance for Freezeouts and MBOs -- Negotiation Strategy Privileged from Disclosure, Corp. Rep. (Aspen Law & Business (June 1996) (with Rowe) M&A Strategies, 9 Bank Accounting and Finance 40 (Winter 1995-96) (with Herlihy, et al.) Bank M&A Preparedness, 66 Corp. Rep. 1 (Aspen Law & Business Nov. 15, 1995) (with Herlihy, et al.) Mergers and Acquisitions of Financial Institutions – 1995: An Unprecedented Year of Consolidation, Securities Activities of Banks, Fifteenth Annual Institute (1995) (with Herlihy, et al.) Deal Developments Update, Corporate Control Alert (August 1995) (with Herlihy et al.) Updating the Use of Special Committees in Freeze-Outs and Other Conflict Transactions, Corp. Rep. (Aspen Law & Business Aug. 15, 1995) Banking on Nonbank Acquisitions, The Community Banker 46 (Second Quarter 1995) Fundamental Rules For Bank Merger Transactions Remain Unchanged After Paramount, in Banking Expansion Institute, Thirteenth Annual (Aspen Law & Business 1995) (with Herlihy, et al.) Bank and Thrift Mergers and Acquisitions -- 1994, in Securities Activities of Banks, Prentice-Hall Law & Business, Fourteenth Annual Institute (1994) (with Herlihy, et al.) Stock Buybacks: Strategic, Legal and Fiduciary Issues, 8 Insights 10 (Nov. 1994) (with Herlihy et al.) Concentration Limits: New Interstate Moves Still Face Minefield of Deposit Cap Statutes, in a Special Report on Interstate Banking, 13 Banking Policy Rep. 23 (Aug. 15, 1994) (with Neill) Mergers of Equals: Achieving a Delicate Balance of Control, 13 Banking Policy Report 1 (Oct. 3, 1994) (with Herlihy et al.) Banking Developments, Banking on Non-Bank Acquisitions and Current Issues in Bank Acquisitions, in Bank Mergers and Acquisitions, Practicing Law Institute (1994) (with Herlihy, et al.)


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Current Issues in Bank Acquisitions, 7 Bank Acct’g & Fin. 44 (Spring 1994) (with Herlihy et al.) Recent Deals Feature New Pricing Formulas, 13 Banking Pol. Rep. 2 (Apr. 4, 1994) (with Herlihy et al.) M&A Strategies, 7 Bank Accounting & Finance 48 (Winter 1993- 94) (with Herlihy et al.) Assessing the Current Bank Merger Environment: A Preparedness Checklist, 12 Banking Policy Report 1 (Oct. 18, 1993) (with Herlihy et al.) Bank Mergers and Acquisitions -- 1993: A Year of Increasing Franchise Consolidation, in Securities Activities of Banks, Prentice-Hall Law & Business, 13th Annual Institute (1993) (with Herlihy, et al.) Hostile Acquisition Overtures At Smaller Banks and Thrifts, 11 Bank & Corp. Gov. L. Rep. 47 (1993) (with Herlihy et al.) Flexibility on Safety and Soundness, 3 Bank Director 3 (Third Quarter 1993) (with Wasserman) Designing Bank Governance Structures, 12 Bank Policy Report (Apr. 19, 1993) (with Herlihy et al.) Capital and Compliance Strategies in the Era of Prompt Corrective Action, in The New Implementing Regulations Under FDICIA (Prentice Hall 1992) (with Wasserman et al.) 1992 -- A Year of Continuing Financial Industry Consolidation: Current Trends and Various Considerations in Bank Mergers and Acquisitions, in Securities Activities of Banks, Prentice-Hall Law & Business, Twelfth Annual Institute (1992) (with Herlihy, et al.) Bank Regulators Turn Up Intensity in Examination of Racial Discrimination in Lending Practices, 9 Bank & Corp. Governance L. Rep. 758 (December 1992) (with Stern et al.) Meeting the Challenge of Loan Bias Scrutiny, Am. Banker (August 21, 1992) (with Stern et al.) Investment Company Act Exemption Proposed, 11 Int'l Fin. L. Rev. 41 (July 1992) (with Robinson) Dealing with Market Risks in Stock Mergers: Collars and Walk-aways, 6 Insights 4 (July 1992) (with Herlihy et al.) Market Risks in Bank Mergers, 1 Bank Governance L. Rep. 1114 (July 1992) (with Herlihy et al.) Racial Discrimination in Lending Practices, 1 Bank Gov. L. Rep. 1114 (July 1992) (with Stern et al.) Disclosure of the Analyses Underlying Investment Banker Fairness Opinions, 6 Insights 11 (March 1992) (with Herlihy et al.) Federal Reserve Board Approval Criteria for Bank Mergers, 7 Bank & Corp. Governance L. Rep. 45 (1992) (with Herlihy et al.) Consensus Needed on Early Resolution's Legal Issues, Am. Banker (Mar. 25, 1992) (with Wasserman) An Overview of Current Trends and Various Considerations in Bank Mergers and Acquisitions, in Securities Activities of Banks, Prentice-Hall Law & Business, Eleventh Annual Institute (1991) (with Herlihy et al.) Management Buyouts and the Duties of Independent Directors to Shareholders and Creditors, in Corporate Deleveragings and Restructurings, Practising Law Institute (1991) (with Lederman et al.) Liabilities Under Sections 11, 12, 15 and 17 of the Securities Act of 1933 and Sections 10, 18 and 20 of the


31

Securities Exchange Act of 1934, in Introduction to Securities Law 1990, Practising Law Institute (1990) (with Vizcarrondo et al.) Advising the Board of Directors of a Target Company Regarding Defensive Strategies, in Dynamics of Corporate Control IV, American Bar Association National Institute (1989) (with Fogelson) State Takeover Statutes: A Fifty-State Survey (privately published) (1989) (with Robinson et al.) The Reorganization Plan: Statutory Framework and Commercial Realities, in Business Reorganizations and Workouts, Law Journal Seminars-Press (1988) (with Koplow) Working Papers Allocating Risk Through Contract: Evidence from M&A and Policy Implications (August 2012) The Link between the Acquisitions Market and the Market for CEOs (January 2011) (with Reinier Kraakman) Corporate Governance and Corporate Political Activity: What Effect will Citizens United have on Shareholder Wealth?, Olin Center Discussion Paper No. 684 (November 2010) The Powerful and Pervasive Effects of Ownership on M&A, Olin Center Discussion Paper No. 669 (June 2010) An Empirical Reassessment of MBO Bids: Techniques, Outcomes, and Delaware Corporate Law, Working Paper (October 2005) Why Are Firms Sold? The Role of the Target CEO’s Age, Tenure, And Share Ownership, Working Paper (October 2005) (with Reinier Kraakman) The Legal Origins of the Politically Puzzling U.S. “Market” for Corporate Charters, Working Paper (October 2004) The Power of Defenses, National Bureau of Economics Research Working Paper (July 2003) (with Lucian Arye Bebchuk and Guhan Subramanian) CEO Incentives and M&A Activity in the 1990s: Stock Options and Real Options, Working Paper (March 2002) (with Reinier Kraakman) An Index of the Contestability of Corporate Control: Studying Variation in Legal Takeover Vulnerability, Working Paper (June 1999) Congressional Testimony Testimony of John C. Coates IV Before the U.S. Senate Subcommittee on Securities, Insurance and Investment on Proposed Securities Law Reforms (December 2011) Testimony of John C. Coates IV before the Committee on House Administration, House of Representatives on the Disclose Act (H.R. 5175) (May 2010) Testimony of John C. Coates IV before the Subcommittee on Securities, Insurance and Investment of the Committee on Banking, Housing and Urban Affairs, United States Senate, Harvard Law School Public Law & Theory Working Paper Series, Paper No. 09-56 (July 2009) Case Studies, available at: http://www.law.harvard.edu/academics/post-grad/case-studies/products/available-cases-online/index.html


http://www.law.harvard.edu/academics/post-grad/case-studies/products/available-cases-online/index.html

32

Barclays Capital and the Sale of Del Monte Foods (with Clayton Rose and David Lane) (2012) El Paso’s Sale to Kinder Morgan (with Clayton Rose and David Lane) (2012) Emery Celli Brinckerhoff & Abady (2011) Hilton’s Hostile Bid for ITT (2011) IBM’s Hostile Bid for Lotus (2013) In a Pickle: Barclays Capital and the Sale of Del Monte Foods (with Clayton Rose and David Lane) (2011) Slater & Gordon (with Ashish Nanda and Monet Brewerton) (2012) Workers’ Rights in the Hudson Valley (with Sara Del Nido) (2012) Columns, op eds, and other short works Bill To Help Businesses Raise Capital Goes Too Far, Washington Post (March 14, 2012) (with Robert Pozen) Fulfilling the Promise of “Citizens United,” Washington Post (September 6, 2011) (with Taylor Lincoln), republished in Business Ethics (Sep. 2011) A Costly Lesson in the Rule of ‘Loser Pays’, Financial Times (November 2, 2009) The Bailout is Robbing the Banks, New York Times (February 18, 2009) (with David Scharfstein) The Greatest American Shambles: An Exchange, 38 N.Y. Rev. of Books 59 (June 13, 1991)


33

Exhibit B

Trial Testimony and Depositions (since 1/1/11) Liberty Media Corp., LLC et al. v. Vivendi Universal S.A. et al., United States District Court, Southern District of New York, C.A. No. 03 CV 2175, Deposition 3/31/08, 4/1/08, Trial Testimony 6/18/12 TriPacific Capital Advisors LLC, Lowe Enterprises Residential Advisors LLC, Lowe Enterprises Residential Investors LLC, Geoffrey S. Fearns, Paul Lucatuorto & Lisa Albanez v. JP. Hyan, Superior Ct. of the State of California for the County of Los Angeles, Case No. BC429966, Deposition 2/16/11, Trial Testimony 5/24/11 Complex Systems, Inc. v. ABN AMRO Bank N.V., Southern District of New York, C.A. No. 08 CV 7497, Deposition 5/31/12 Capital One Financial Corp. v. John A. Kanas And John Bohlsen, Eastern District of Virginia, C.A. No. 1:11-cv-750 (LO/TRJ), Deposition 5/11/12 MBIA Insurance Corp. v. Countrywide Home Loans, Inc., Countrywide Securities Corp., Countrywide Financial Corp., Countrywide Home Loan Servicing, L.P. & Bank of America Corp., Supreme Court of the State of New York; New York County, Civil Branch, Case No. 602825, Deposition 8/8/12 and 8/9/12 In re: Refco Inc., et al., Debtors, Southern District of New York, C.A. No. 05 Civ. 8626, Deposition 9/18/12 In re the Application of The Bank of New York Mellon, New York Supreme Court, Index No. 651786/2011; Deposition 5/2/13, Trial Testimony 9/23/13, 9/24/13 Kenneth J. Novack v. GSI Commerce, Inc., et al., Commonwealth of Massachusetts Trial Court, Superior Court Department, Civil Docket No. SUCV2011-2086-BLS2, Deposition 9/25/13

Johnson & Johnson v. Guidant Corporation, Boston Scientific Corporation and Abbott Laboratories, Southern District of New York, Case No. 06-7685, Deposition 4/6/11, Trial Testimony 11/21/14

Jones v. Pfizer Inc. et al., Southern District of New York, C.A. No. 1:10-cv-03864-AKH, Deposition 10/3/2014 Federal Home Loan Bank of Seattle v. Banc of America Securities LLC, et al., Superior Court of Washington for King County, No. 09-2-46319-1 SEA, Deposition 2/27/2015 Hussein v. UBS Financial Services, Inc., FINRA Dispute Resolution, FINRA Case NO. 14-00162, Trial Testimony 3/6/2015


34

Exhibit C

Documents Reviewed

1. Retention to Provide Legal Services (1/9/13), Client-Reimbursable Expenses & Other Charges

Form (Effective 1/1/12), and Addendum to 1.9.13 Retention Letter (4/3/13)

2. Memorandum of Law In Support of Motion for Preliminary Injunction (5/7/15)

3. Supreme Court of Pennsylvania – Court of Common Pleas Civil Cover Sheet (Filed 5/1/15)

4. Mylan Motion for Preliminary Injunction (Filed 5/1/15)

5. Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction (Filed 5/1/15)

6. K&E Memorandum of Law in Response to Plaintiffs’ Motion for Preliminary Injunction

(5/20/15)

7. Mylan Form 10-K for the year ended 12/31/2014

8. Teva Pharmaceutical Industries Ltd. Form 20-F for the year ended 12/31/2014

9. Teva and Mylan, Teva Pharmaceutical Industries Ltd. Presentation Dated 5/5/2015

10. Declaration of Douglas Miner dated 5/1/15

11. Declarations dated on or about 5/20/15 of:

a. Jed S. Brody

b. Ashish Contractor

c. Eyal Desheh

d. David Fox

e. Dr. Sharon F Hausdorff

f. Thomas O. Kuhns

g. Jay Lefkowitz

h. Professor Richard Painter

i. Michael Shumsky

j. Audrey Tan

12. Supplemental Declarations dated 5/22/15 of:

a. Douglas Miner

b. Jill Ondos
