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COVER STORY

Gloom to boom? Outlook for M&A in 2023

Although a culmination of factors is causing subdued activity, the pressure valve may soon start to ease. Experts are scanning the horizon in hope of a resurgence in the second half of the year.

FEATURES

The future after FTX

It seems certain that tougher guidance, rules, laws and related enforcement action will be forthcoming for the crypto market. Governments will be keen to prevent another FTX-style collapse.

Formalising resilience: FIs prepare for DORA

With DORA scheduled to go live within 24 months (in late 2024 or early 2025 at the latest), all in-scope firms have a clear timetable by which to plan its implementation, allowing them to prepare well in advance and ensure they have a seamless incident response and recovery plan in place.

FCPA enforcement: primed to re-emerge under Biden?

Having done little more than simmer during the first two years of the Biden administration, FCPA enforcement activity may finally come to a boil in 2023.

Curbing the ‘gatekeepers’: the EU’s new DMA

The DMA is applicable only to companies that will be designated as ‘gatekeepers’ according to objective criteria set out in the regulation, i.e., those that have an entrenched position in respect of “core platform services”.

Secure file transfers: efficiency without threat

The human factor is a significant aspect of cyber security, and companies need to drive behavioural change to reduce cyber risks.

ROUNDTABLE

Sanctions compliance and enforcement

Companies today face an increasingly challenging sanctions compliance and enforcement landscape – a landscape awash with challenges that have grown considerably more complex since Russia’s invasion of Ukraine 12 months ago. Now more than ever, companies must be vigilant to ensure they comply with all applicable sanctions regimes. FW moderates a discussion between Andrew Hood at Fieldfisher LLP, David Wolber at Gibson Dunn, Adela Deaconu at Royal Philips, Stevenson Munro at Standard Chartered Bank, and Eytan J. Fisch at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates.

SPECIAL REPORT

Managing risk

Q&A: ESG and directors’ liability

The focus on ESG, and the evolution and growth of the law and issues constituting this area, are not a temporary phenomenon. The trend toward enforcement and increased avenues of exposure will continue. FW discusses ESG and directors’ liability with Simon Garrett at CMS Cameron McKenna Nabarro Olswang LLP and Mike Newham at RPC.

Key litigation risks and mitigation strategies for non-US companies listed in the US

Sullivan & Cromwell LLP Becoming embroiled in civil litigation in the US is a common concern of companies listed on US markets but headquartered elsewhere.

Regulation of cyber security in the UK – is it appropriate?

Norton Rose Fulbright LLP Cyber security is now regulated in a number of ways in the UK – including by way of data protection laws, specific cyber security regulations and sector-specific requirements.

Merger control and the increase in deal uncertainty

Skadden, Arps, Slate, Meagher & Flom LLP Parties may want to factor in the possibility of extended regulatory reviews and conditional clearances into transaction timetables, and add appropriate conditions precedent in deal documents.

ESG-related litigation is here and growing: check your insurance policies

Jenner & Block A thoughtful corporate insurance programme – one which focuses in particular on D&O insurance – can help to protect businesses and their management from the uncertainty inherent in the fast-developing and often ill-defined arena known as ESG.

Addressing natural and man-made catastrophic risk affecting the Florida property insurance market

Greenberg Traurig, P.A. The combination of losses sustained because of both man-made and natural disasters and an ever-tightening reinsurance market have resulted in multiple high-profile insurer insolvencies and hundreds of thousands of Florida insurance policies being cancelled or nonrenewed.

DEALfront

mergers & acquisitions

VTB’s $4.7bn deal for Otkritie Bank

The Bank of Russia has agreed to sell Otkritie Bank to the country’s number two lender, state-owned VTB Bank, in a deal worth $4.7bn.

Frontline and Euronav abandon $4.2bn merger

Despite being a highly anticipated combination that would have created the world’s largest publicly listed tanker company, tanker owner and operator Frontline plc has decided to terminate its $4.2bn deal to merge with rival Euronav.

private equity & venture capital

Thoma Bravo to take Coupa Software private in $8bn deal

In a deal which takes the global technology platform for business spend management (BSM) private, Coupa Software is to be acquired by private equity (PE) firm Thoma Bravo in an all-cash transaction valued at $8bn.

Vista Equity Partners to acquire Duck Creek Technologies for $2.6bn

Private equity firm Vista Equity Partners has agreed to acquire insurance technology company Duck Creek Technologies in an all-cash deal worth $2.6bn.

bankruptcy & corporate restructuring

Morphe files for Chapter 11 bankruptcy protection

In mid-January, a week after makeup brand Morphe took to Twitter to announce that it would be closing all its US stores, Forma Brands LLC, Morphe’s parent company, filed for Chapter 11 bankruptcy protection in Delaware. The company is to be taken over by lenders including Jefferies Finance LLC and Cerberus Capital Management.

Bitcoin miner Core Scientific files for Chapter 11

Yet another victim of the ‘crypto winter’, bitcoin (BTC) miner Core Scientific, Inc., following a comprehensive review of potential alternatives and exhaustive discussions with its stakeholders, has filed for bankruptcy protection in order to implement a restructuring support agreement.

SPOTlight

Winds of change in the crypto winter?

Freshfields Bruckhaus Deringer In the US, long the epicentre of cryptocurrency litigation and restructuring activity, lawmakers are holding hearings on FTX’s collapse and regulators continue to pursue cases against crypto industry participants for breaches of securities law and sanctions.

Unconscious bias – the blind spot threatening organisational performance

Henley Business School Despite setbacks, organisations that use accountability as their primary strategy for discouraging biased decision making can significantly minimise unconscious bias.

Trademark protection for NFTs and the metaverse: IP enforcement fit for the future

Hogan Lovells International LLP In order not to lose any first-mover advantages and to keep their own brand competitive, both NFTs and the metaverse should be on the radar of trademark owners already.

Leveraging existing compliance programmes to address US anti-forced labour laws

Miller & Chevalier Chartered In the US, human rights enforcement has been most prevalent by way of the US’s prohibition of goods made with forced labour.

Using metrics to help legal and compliance departments demonstrate value and reduce overhead

BarkerGilmore Data can be used to prove the value of a legal or compliance department to a business. Data can even make it possible to spot trends and reduce risks.

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CONTRIBUTORS

BarkerGilmore

CMS Cameron McKenna Nabarro Olswang LLP

Fieldfisher LLP

Freshfields Bruckhaus Deringer

Gibson Dunn

Greenberg Traurig, P.A.

Henley Business School

Hogan Lovells International LLP

Jenner & Block

Miller & Chevalier Chartered

Norton Rose Fulbright LLP

Royal Philips

RPC

Skadden, Arps, Slate, Meagher & Flom LLP

Standard Chartered Bank

Sullivan & Cromwell LLP