Nelson Mullins Riley & Scarborough partner Rusty Pickering in Atlanta advised a Chicago hedge fund on its proxy battle for control of the board of apartment developer Post Properties Inc. Skadden, Arps, Slate, Meagher & Flom partner Daniel E. Stoller in New York advised Post.

Last week, Atlanta-based Post Properties said it reached an agreement with Pentwater Capital Management LP to support the nomination of Chicago real estate investor David R. Schwartz as director. Post and Pentwater also agreed to nominate another director who has yet to be named. Pentwater also said it would vote for the eight incumbent Post directors up for re-election this year. Previously, Pentwater had sought to replace five Post directors. One of the incumbent Post directors up for re-election is King & Spalding senior counsel Herschel M. Bloom.

In January, Pentwater launched the proxy battle in an attempt to force Post to put itself up for sale. In response, Post said it was doing just that. But on June 25, Post said it was dropping its attempt to find a buyer, citing an “increasingly difficult market environment.”

Luis A. Aguilar was sworn in on Thursday as the newest commissioner at the U.S. Securities and Exchange Commission.

In a brief ceremony at the SEC’s regional office on Lenox Road in Atlanta, Aguilar took his oath from Clayton County (Ga.) Superior Court Judge Matthew O. Simmons, whom Aguilar described as a law school classmate and a long-time friend.

Aguilar will also have a second swearing-in ceremony in Washington, but the soon-to-be former McKenna Long & Aldridge partner said he wanted Atlanta to host a swearing-in as a way for him to pay tribute to where he began his legal career. Aguilar will also maintain a satellite SEC office in Atlanta, in addition to his official office in the District of Columbia.

Aguilar’s ceremony was attended by numerous members of the SEC’s Atlanta staff, as well as members of the local securities bar and other attorneys. Some of those in attendance were U.S. Attorney David Nahmias; Atlanta SEC regional director Kit Addleman; DeKalb State Court Judge Antonio DelCampo; Paul, Hastings, Janofsky & Walker partner Walt Jospin; Powell Goldstein partner Scott Sorrels; Schiff Hardin partner Michael Wolensky; and McKenna Long partner David Brown.

McKenna Long & Aldridge partner Luis Aguilar will break with tradition when he’s formally appointed a commissioner of the Securities and Exchange Commission.

Aguilar’s official swearing-in will be in Atlanta—not Washington, where the SEC is headquartered. Aguilar wanted the SEC’s Atlanta office to be the site of his swearing-in because that’s where he began his legal career, said Kit Addleman, SEC regional director in Atlanta.

“This is his way of providing a tribute to his roots here, to his beginnings as a young staff SEC lawyer,” Addleman said.

The swearing-in, by invitation only, is scheduled for Thursday, July 31 at 9 a.m. Aguilar will also have an unofficial swearing-in at the SEC offices in Washington, Addleman said.

Elisse B. Walter was sworn in as SEC commissioner on July 9 at the SEC's headquarters in Washington.

Aguilar’s primary office will be in Washington, but he will also maintain a satellite office in the Atlanta SEC office. That’s not uncommon, Addleman said. Other SEC commissioners have done the same: former commissioner Roel Campos maintained an office in Houston and former commissioner Norman S. Johnson kept an office in Salt Lake City.

Aguilar said that when he officially becomes an SEC commissioner, he’ll resign as a partner of McKenna Long & Aldridge, as per SEC rules.

A New York hedge fund recently went after one of David Stockton’s clients, launching a proxy battle for control of Alabama healthcare software company Emageon Inc. But instead of fighting a crippling battle to the death, it appears that the Kilpatrick Stockton partner reached a compromise with the activist investors on behalf of Emageon.

Stockton faced a formidable foe. The activist shareholder, Oliver Press Partners LLC, is led by Augustus “Gus” Oliver, a former Skadden, Arps, Slate, Meagher & Flom M&A partner whose activist hedge funds prompted big changes at Gillette and United Airlines in the 1980s. But Stockton’s foe also had a weak spot. One of the people Oliver Press Partners nominated to serve on Emageon’s board, Clifford Press, had an arrest record.

Oliver Press Partners this year launched a proxy battle for control of Birmingham, Ala.-based Emageon. Oliver Press Partners, which owns about 16.6 percent of Emageon’s outstanding stock, complained that Emageon wasn’t trying hard enough to sell itself and that its stock was “trading at an extreme discount valuation when compared to enterprise software trading levels,” according to regulatory filings.

But Emageon replied that it had sought buyers but had not received strong offers and that its stock price was in the toilet like other companies of its ilk. Emageon sells software to hospitals and healthcare-management organizations that allows doctors to view and manage digital medical images. Emageon said in a regulatory filing that it and its peers have been hammered by “decreases in government reimbursement programs.”

Instead of a proxy battle, Emageon and Oliver Press Partners cut a deal. Rather than ask all shareholders to vote on Oliver Press Partners’ slate of candidates, the two sides agreed to expand the size of Emageon’s board, and that three Oliver Press Partners nominees would join the board - Gus Oliver, Benner Ulrich and third director to be named later.

Clifford Press, whom Oliver Press Partners originally nominated, did not make the final list. Clifford Press had been arrested in March 2007 “for assaulting a 73-year old female motorist,” Emageon said in a regulatory filing. “We understand that these charges were later dismissed, but his arrest raises concerns about Mr. Press’ ability to react thoughtfully and carefully under stressful circumstances.”

In addition to expanding its board to make room for the Oliver Press Partners representatives, Emageon agreed that it would continue to pursue strategic alternatives, including a sale of the company.

Stockton [see photo, right] declined to comment on the proxy battle. Lowenstein Sandler partner Allen B. Levithan in Roseland, N.J. was adviser to Oliver Press Partners.

If InBev NV has its way in taking over Anheuser-Busch Cos., former Atlanta Olympics chief Billy Payne will be out of a job.

But at least Payne will remain chairman of The Masters golf tournament.

InBev on June 11 made an unsolicited offer to acquire Anheuser-Busch, of which Payne is a director, for $46.3 billion. The Belgian-Brazilian company is the world’s second-largest brewer. Adding Bud Light to its rotating tap list would make it the biggest.

But Anheuser-Busch on Thursday rejected InBev’s offer, according to Bloomberg News. InBev, which had expected Anheuser-Busch to say no, earlier Thursday took the first step in an attempt to remove all 13 members of the Anheuser-Busch board.

InBev filed a complaint in Delaware Chancery Court seeking an opinion on whether it can remove all Anheuser-Busch directors without cause by written consent of its stockholders. InBev cites an Apr. 26, 2006, amendment to the Anheuser-Busch charter, which says that the company’s shareholders are allowed to remove Anheuser-Busch directors without cause. The case is InBev v. Anheuser-Busch., No. CA3857.

Young Conaway Stargatt & Taylor and Sullivan & Cromwell are advising InBev on the issue. Skadden, Arps, Slate, Meagher & Flom is Anheuser-Busch’s counsel.

In addition to his duties at the golf course in Augusta, Payne is also vice chairman of investment bank Gleacher Partners and is a director of Cousins Properties and Lincoln National Corp.

A row between an Atlanta insurance company and the homebuilders’ trade association that founded it is leading Georgia State Insurance Commissioner John W. Oxendine into uncharted legal territory.

“There are a lot of matters of first impression in this case, because we’ve never really had this type of dispute,” said Oxendine (see photo), adding that he and his staff have consulted with the state attorney general on the dispute.

At issue is Builders Insurance Group, an Atlanta-based company that sells workers’ compensation and general liability insurance to homebuilders. The company was founded in 1992 by the Homebuilders Association of Georgia (HBAG). The status of that affiliation – between Builders Insurance and HBAG – is at the heart of the groups’ current fight.

HBAG argues that the directors of Builders Insurance have overpaid themselves. HBAG counsel, Nelson Mullins Riley & Scarborough corporate partner Charles R. “Rusty” Pickering, is advising the group on a proxy battle for control of Builders Insurance, introducing a slate of six new directors.

Builders Insurance president Patrick Mitchell counters that HBAG is trying to seize control of the company as a way to protect its turf as the dominant trade organization for homebuilders. King & Spalding corporate partner Alan J. Prince is advising Builders Insurance on the matter.

An additional prong in HBAG’s strategy is to rewrite Builders Insurance’s charter. That’s where Oxendine comes in, and it’s also what the state Insurance Commissioner says is new territory.More...

Nelson Mullins Riley & Scarborough partner Charles R. “Rusty” Pickering is advising the Home Builders Association of Georgia on a proxy battle for control of Builders Insurance Group.

Builders Insurance Group was founded by homebuilders in 1992 to provide workers’ compensation insurance to homebuilding companies. Since then it has grown to become the largest mutual captive insurance company in Georgia, said state Insurance Commisioner John W. Oxendine.

Home Builders Association members, who comprise a large percentage of Builders Insurance Group’s policy holders, allege that the company’s directors overpay themselves, a result of the company’s growth and success.

Builders Insurance Group has paid “excessive salaries, fees and indirect compensation to its directors, reported at more than $1.9 million in 2006 and 2007 alone,” the Home Builders Association said in a statement.

“This is out of line with market compensation for similarly sized companies and … far exceeded directors’ compensation at large public companies like United Parcel Service and Delta Air Lines,” the association said.

The Home Builders Association is launching this battle because "Builders [Insurance Group] has been endorsed by an alternative association, the Contractors Benefit Association (CBA), with much lower dues," the company said in a statement.

"This is a self-serving effort by HBAG to grow and maintain its membership rolls at a cost of increased expenses to the policyholders of Builders Insurance," the company said.More...