The end is near

Genesco/Finish Line battle enters the homestretch as both sides begin closing arguments this afternoon

Email | Print By Walker Duncan

12-18-2007 3:42 PM — The three-way battle between Genesco Finish Line, and UBS is coming to a close as attorneys began their closing arguments this afternoon.

Taking the podium first was Genesco attorney Jim Denvir of New York's Boies, Schiller & Flexner.  

To hear him tell it, this case was in large part born of UBS’s desire to avoid losses at all costs. In the argument he cited internal documents from the finance giant which indicated unsurprising concern that this deal had gone from one that would generate a great deal of fees for the bank, to one that would constitute a sizable loss.

The loss though, as he puts it, has less to do with Genesco than it does with, among other factors, the general state of the economy.

Denvir was quick to note a specific carve out in ‘MAC’ clause of the merger agreement which states that a general downturn in the overall economy cannot constitute a MAC unless Genesco was disproportionately affected as compared to others in the industry. As Mr. Denvir endeavored to point out, citing charts of market data, Genesco’s recent performance has not been drastically worse than that of its competitors.

He accused UBS of slinging mud at Genesco’s executives, namely with the fraud allegations brought in New York, simply in order to avoid taking a loss.

Denvir painted Genesco as wholly honest in this deal, noting that all closing conditions for the deal had been met and that all of the information requested by the opposing side had been provided.

He further indicated that Finish Line’s CEO Cohen, should not be surprised by the general ebb and flow of performance experienced by Genesco. Denvir had graphs put on the screen showing the year over year ups and downs experienced by both companies noting their common sinusoidal shape.

All of that, he said, was information available to Finish Line prior to the signing of the merger agreement.

Denvir went on to downplay the significance of the May numbers, asking why, if they were so significant, were they not requested.  For the purposes of comparison he also argued that while Genesco is being accused of fraud for missing its May projections by $2 million, UBS recently announced that it  had missed its own projections by more than $10 billion.

Overton Thompson, Genesco’s lead local attorney, will be next at the podium to address the fraud allegations.

Then it will be the other table’s turn

So far, the Genesco camp has argued for about an hour. Chatting with audience members during the recess, one of UBS’s attorneys indicated that both sides with have roughly one and a half hours for their closing statements.