Podcast: Global M&A Talk: Key U.S tech M&A trends and regulatory trends

The panel discusses the downturn in tech M&A during 2023, attributing it to macroeconomic factors, including geopolitical conflicts and heightened regulatory scrutiny.

A key issue highlighted is the valuation discrepancies between buyers and sellers in 2023, often bridged by earnouts.

Mara Goodman delves into the increased adoption of earnouts in tech and life sciences M&A. These arrangements, generally pegged to financial metrics like revenue, earnings or EBITDA targets, have been pivotal in reconciling differing valuation expectations. However, Dario de Martino and Mara Goodman caution that one of the issues in the use of earnout provisions is the complexity of these provisions. If not drafted simply, with clear language and objective criteria, they can lead to post-transaction disputes that are costly and time consuming. They further discuss the use of arbitration clauses for dispute resolution in the event of a post-transaction dispute.

The conversation also highlights the vital role of tech M&A in corporate growth strategies, emphasizing drivers such as AI (including AI-enabled enterprise software), cybersecurity and Web3, which are poised to propel future M&A activities in 2024.

The team also discusses the aggressive antitrust merger enforcement regime seen in the U.S. in 2023 and how it has affected dealmakings. Anti-trust specialist Puja Patel examines expected developments in 2024, including the release of new FTC/DOJ Merger Guidelines and the proposed changes to the HSR Act notification form, and discusses how these changes will influence dealmaking.

Lastly, the team discusses the outlook for cross-border tech M&A deals in 2024 and evaluates how the recent increase in scrutiny of inbound investments for national security issues may impact tech transactions. CFIUS specialist Kuang Chiang analyzes how the current regulatory regime, including mandatory filing requirements, the increase in foreign direct investment regimes, and new regulation on outbound investments, impacts dealmakers.