Recent Trends in US Mergers and Acquisitions: Litigation and Regulatory Actions

Abstract

Both anecdotal and quantitative data confirm that global mergers and acquisitions (‘M&A’) activity collapsed alongside the global financial markets in the second half of 2008. According to Capital IQ deal volume fell from roughly 1300 deals closed in 2008 with an aggregate value of roughly $1.5 trillion to roughly 1100 deals closed in 2009 with an aggregate value of only $814 billion – the lowest total in the US since 2004. For in-house counsel at companies with active M&A portfolios, however, reduced deal volume did not necessarily equate to a quiet year. 2008 and 2009 saw some very important developments in the M&A world in terms of litigation and regulatory activity, and deal structures implemented in response to these developments. This article outlines some of the more important recent trends, focusing on lessons for in-house counsel in negotiating US M&A transactions and advising executives and board members of new pitfalls that may fall outside the scope of traditional M&A legal risks. In each section we analyse relevant legal developments and offer suggestions for managing new risks and advising our business partners both prior to launching significant transactions and during the deal process.