Lipton’s “To Our Clients” Memos and Scholarly Articles
An Introduction and Explanation of the Research Tools For Using Them
From the beginning of his legal practice, Marty Lipton has always taken an unusually scholarly approach for a busy corporate lawyer. That approach may have derived from a number of factors: his initial desire to go into legal academia, his passion for the intellectual side of the law, his work as Editor in Chief of the NYU Law Review, his studies with Adolf Berle and clerkship for one of the nation’s finest trial judges, Hon. Edward Weinfeld, and his having been mentored and groomed by the NYU Law faculty to trod the academic path.
Lipton’s law practice called on him to apply the law in the real world, and throughout his career he has combined practice with law teaching at NYU and professional writing. In his early days, his writings were more directly practice-oriented, even when published in law reviews. For example, in 1971, Lipton focused on securities law developments for a piece in the NYU Law Review.
Most famously, Lipton later turned his client communications into a megaphone to not only give practical, timely advice to clients (and potential clients), but to influence the direction of the law toward his own views.
In late 1969 or early 1970, Lipton hit by happenstance upon this method. After sending a pithy and timely one-page memo on a key development to clients, Lipton got very positive feedback from CEOs and General Counsel, who loved that they could grasp the key points quickly to begin their day and encouraged him to keep up the practice. Hence, began the tradition of the firm “To Our Clients” memos that are now seemingly ubiquitous, but were rare when Lipton first developed this art form. Even rarer, and rare still among law firm memos, was the pointed and candid tone of Lipton’s memos.
The memos, published by Wachtell Lipton since at least the early 1970s, were originally individually mailed until email allowed for electronic distribution. The firm’s memos are now circulated to over 18,000 recipients, including clients, lawyers in other firms, academics, judges, regulators and other policy makers. The memos are regularly featured (and discussed) on corporate law blogs including those of leading U.S. law schools.
Lipton himself has authored or co-authored hundreds of these memos to date, and continues to issue them apace.
In the earlier years, he was the sole author of the great bulk of the memos. The memos were typically albeit not consistently limited to one page. Their subject matter has encompassed a broad range — from commenting on particular case law or regulatory developments, to advocating for broad policy positions, to presenting far-reaching conceptions of the proper role of the corporation and its constituencies in the economic life of the nation.
Commencing with his iconic article Takeover Bids in the Target’s Boardroom in 1979, Lipton increasingly complemented his memos with longer scholarly articles that would flesh out his perspective on key legal and policy issues. Since Takeover Bids was published, Lipton has regularly published in the nation’s top law journals and op-ed pages. In those forums, he has not hesitated to tangle with the leading minds of the American legal and finance academy, who treat him as a respected peer, even when he disagrees with them.
Taken as a whole, Lipton’s memos and articles represent a catalogue of the corporate law and, later, corporate governance issues faced by corporate America during each period in which he wrote. Lipton’s writings illustrate the broad range and level of his interests. Although Lipton is in many ways perhaps most associated with his view of the role of the corporation in society and corporate responses to takeover threats, many of Lipton’s memos during the 1970s involved technical issues of securities and other regulatory laws. Memos such as these reflect a careful attention to the role of lawyer as craftsman and counselor in the context of increasingly complex federal regulation. And they anticipated and stimulated the increased use — by practitioners, and eventually, reliance on by courts — of special committees of independent directors in cases of conflict, investment banker financial advice, and active and careful board reaction to unsolicited tender offers and other takeover bids. Lipton’s memos counseled that boards of directors act deliberatively in takeover matters, and that independent directors be especially diligent to take the lead in any context of actual conflict between the corporate interest and that of management.
The subject matter of Lipton’s memos also illustrates how the law itself changes, and how the salient corporate law issues of the day evolved with the changing legal background and real-world dynamics. Until later in the 1970s, most of Lipton’s memos and scholarly writings covered issues of federal law. Only when Santa Fe v. Green was decided by the U.S. Supreme Court, leaving regulation of the fairness of mergers to the states, and state takeover laws began to emerge to address gaps in federal tender offer regulation that allowed raids on companies called “Saturday Night Specials,” did Lipton begin to write more about Delaware law in particular, and state law in general. As the 1970s ended, and the 1980s began, takeovers became the most salient issues, and Lipton’s memos and articles reflected that. As broader issues of corporate governance emerged toward the end of the century — such as demands for independent directors to be more assertive in all areas especially in light of market crises like those leading to Sarbanes-Oxley and Dodd-Frank — Lipton was commenting to clients and larger audiences on these developments and anticipating many of them. In this century, as activism emerged, and as growing concerns about increased economic inequality came to the fore, Lipton applied his perspective on stakeholder governance and the obligation of businesses to be good citizens to these new developments. Taken as a whole and read chronologically, the Lipton memos and articles embody a half century of corporate and securities law development.
Lipton’s writings also illustrate his interest in both academic perspectives on corporate law and those from other nations. For example, memos in the 1970s reported on important developments in English company law, and others discussed and often critiqued important academic articles, such as the perspective of leading professors Chirelstein and Brudney on what was required to fairly price tender offers and mergers. That dual focus continued over the years, as exemplified by Lipton’s use of the U.K. Takeover Code as a model for possible U.S. takeover regulation reform in the 1980s and the 1990s, and more recently in his advocacy for stakeholder governance, which has drawn heavily on developments in Europe.
Lipton has also been innovative from the outset in being willing to share his thoughts candidly, even if they might offend regulators or courts. For example, in a February 8, 1972 memo on the future of securities markets, Lipton wrote that the “NYSE appears not to be capable of initiating constructive changes” and looked to the SEC for leadership. In memos about whether federal or state law should govern the fairness of mergers, Lipton was clear in his view that state law should decide, a position that the U.S. Supreme Court eventually agreed with in Santa Fe v. Green. Famously, Lipton criticized the Delaware courts in the late 1980s when he believed their views on takeover policy were not consistent with his view of the national interest, and he has not hesitated in recent years to call out federal regulators or the Congress when he believes they have acted imprudently.
As important, Lipton was also an innovator in being willing to open-source candid advice to clients, even when that exposed Wachtell Lipton’s innovations and techniques for other law firms to attempt to use. Promoting best practices and being a thought leader has continued to redound to Wachtell Lipton’s advantage by solidifying its reputation for excellence and helping promote good corporate governance practices as the norm. Evolving from the shorter Lipton memo template came a variety of annual firm publications that dealt in more length on key issues. This included Lipton’s own annual longer memo for corporate directors and his well-known “Takeover Checklist,” but also in-depth outlines on critical corporate governance issues. These memos are widely used by practitioners, in-house counsel, and scholars, and cover topics like mergers and acquisition, compliance and risk management best practices, executive compensation, and securities law.
To help scholars, students, and practitioners in using the rich body of content Lipton has produced and continues to produce, that content has been organized in this way:
First, Lipton’s memos have been compiled in chronological order, coded by topic(s), with the goal of being overinclusive in a measured way.
Second, Lipton’s academic articles have been compiled in chronological order.
Finally, and most importantly, a search function has been created that allows, by way of example, for a researcher to search for all of Lipton’s memos within a certain time period or on specific topics or keywords.
If you use or quote from this website, we would be grateful if you could cite to the Lipton Archive, www.theliptonarchive.org, and encourage other readers to enjoy and use the site. You can also reach out to us here for any questions regarding the usage of the materials on this site.