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2021 Insights 2021 Insights A collection of commentaries on the critical legal issues in the year ahead. Editorial Board Victor Hollender Editorial Board Chairman Boris Bershteyn Adrian J. S. Deitz Scott C. Hopkins George Knighton Alexandra J. McCormack Edward B. Micheletti Jenna Cho Marketing and Communications This collection of commentaries provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates is for educational and informational purposes only and is not intended and should not be construed as legal advice. These commentaries are considered advertising under applicable state laws. Contents Fair Lending Enforcement 01 Corporate 24 Litigation / 48 Poised To Increase Under Controversy Biden Administration US M&A Outlook: 02 Rebounding Market Fuels Despite Pandemic-Related As Blockchain Technology Optimism for Deal Activity 50 and Cryptocurrency Mature, in 2021 25 Disruptions, Securities Class Action Filings Remain High so Do Their Regulation and With No Signs of Slowing Enforcement 05 2021 Forecast for UK M&A and IPOs: Delayed Under Biden, Energy Gratification? Biden Administration 53 28 Signals Its Intention To Be Policy May Shift to Carbon Tougher on Corporate Crime Reduction 07 UK Follows Global Trend To Enhance National Security Climate Change Should Protections Impact of Brexit on UK and 55 31 EU Sanctions Frameworks Drive Energy and Environmental Policy 09 The Year of the SPAC Developments in Delaware 33 Corporation Law 58 Biden Administration’s European Debt and Equity Expected Impact on Health 12 Markets Resilient in Face of Care and Life Sciences Turbulent Year The State of Congressional Enforcement 36 Investigations in 2021 Hong Kong’s Exchange 60 Changes in Store for 14 Improves Its Allure for Fifth Circuit To Weigh Employers Under Biden Chinese Issuers 39 Enforceability of Administration Make-Whole Premiums in Chapter 11 US Corporate Governance: 63 US-China Trade and 16 The Ascension of ESG Enforcement Issues: US Courts Gain Prominence What’s Next? 41 as ‘Anchor’ Forum for Uptick in Restructurings May Enforcing International 19 Outlast COVID-19 Pandemic Arbitration Awards Major Developments 65 Continue To Reshape the Global Privacy Landscape Corporate Sponsorship 22 of Private Funds as an Regulatory Priorities To Shift for Integrated Asset Finance 43 68 Platform Biden’s SEC Transition From Trump to 44 Biden May Bring Less Growing Complexity in the Change to Antitrust 70 Tax Aspects of Transactional Enforcement Negotiations Than Expected 46 Post-Brexit, a More Demanding UK Merger Review Process Corporate US M&A Outlook: Rebounding Market 02 Fuels Optimism for Deal Activity in 2021 2021 Forecast for UK M&A and IPOs: 05 Delayed Gratification? UK Follows Global Trend To Enhance 07 National Security Protections 09 The Year of the SPAC European Debt and Equity Markets 12 Resilient in Face of Turbulent Year Hong Kong’s Exchange Improves 14 Its Allure for Chinese Issuers US Corporate Governance: 16 The Ascension of ESG Uptick in Restructurings May Outlast 19 COVID-19 Pandemic Corporate Sponsorship of Private Funds 22 as an Integrated Asset Finance Platform 2021 Insights / Corporate After nearly a decade of growth, global M&A activity in the US M&A Outlook: first quarter of 2020 was down 39.1% by deal value year Rebounding over year — comparable to levels seen in the first quarter of 2008, in the midst of the financial crisis. The chilling Market Fuels effects of the COVID-19 pandemic in the first half of the Optimism for Deal year translated to a significant backlog of M&A transactions. Approaching the end of 2020, however, dealmaking returned Activity in 2021 in full force, despite the ongoing human challenges imposed by the pandemic. Coupled with cautious optimism around the effects on dealmaking from the new administration, Contributing Partners record special purpose acquisition company (SPAC) capital Stephen F. Arcano / New York formation, favorable financing trends and the likely continued Christopher M. Barlow / New York benign interest rate environment for the foreseeable future, Sonia K. Nijjar / Palo Alto we believe that evolving conditions support a strong 2021 for U.S. M&A. The dramatic decline in M&A activ- second half of the year, with seven mega- ity around the globe in the early part deals ($10 billion or more) announced in of the year was largely attributable to the third quarter. Eight of the 10 largest the staggering effects of the pandemic, deals by transaction value announced in including the restrictive public health the U.S. in 2020 were in the technology measures many governments worldwide and life sciences sectors, showing the adopted in response to the crisis. The resilience of these sectors in the face of U.S. M&A market suffered one of the the pandemic. steepest declines in activity of any region in the first six months of the year, with Selected 2020 Trends U.S. deals declining by approximately Terminations and 70% compared to the same period in 2019 Withdrawals and representing just one-third of global COVID-19 resulted in a M&A by deal value (down from over 50% spike in deal withdrawals in 2019).1 During the same period, global and terminations in late M&A activity declined 53% by aggregate March 2020 globally, with deal value and 32% by deal volume, year many acquirers having buyer’s remorse over year. as business deteriorated for targets as a In the second half of the year, U.S. deal result of the pandemic. By the end of June activity jumped more than 400% by value 2020, more than $100 billion of U.S. M&A between the second and third quarters (a deals had been terminated. Interestingly, 38% increase year over year), and U.S. the value of terminated deals during M&A once again represented nearly half the first half of 2020 was only slightly of global deal value for the full year, up from the same period in 2019 ($94.8 in part as a result of pent-up demand billion) and down from the same period from the early stages of the COVID-19 in 2018 ($152.64 billion), indicating that pandemic. Large deals (those valued at the aggregate effect of COVID-19 on deal $5 billion or more) had a resurgence in the terminations may not have been as signif- icant as initially suspected. Some delayed or disrupted transactions ultimately moved 1 Sources for the data in this article are: Mergermarket forward with adjustments to pricing terms. M&A Report, Bloomberg, Deal Point Data, S&P Global Market Intelligence, SPACInsider.com, Lazard, Activistmonitor and PitchBook. 2 2021 Insights / Corporate Unsurprisingly, M&A practitioners adapted moderate or progressive enforcers. from the effects of the pandemic. (See by introducing explicit contractual provisions Typically, change comes more slowly at “Growing Complexity in the Tax Aspects of to allocate deal risk resulting from COVID- the Federal Trade Commission (FTC) than Transactional Negotiations.”) 19. While a limited number of transaction the Department of Justice (DOJ) because agreements signed in February 2020 (such as the president has to wait for openings on Year of the SPAC the agreement between E*Trade and Morgan the five-member commission before new 2020 was a banner year for SPACs, and 2021 Stanley) reflected a “pandemic exception” ones can be appointed. However, due to shows no sign of slowing. SPAC IPOs in 2020 to the definition of material adverse effect the recent announcements that Republican left over 200 post-IPO SPACs actively search- (MAE), once the effects of the COVID-19 Chairman Joseph J. Simons will be resign- ing for targets, which most are required to pandemic became apparent, MAE provisions ing on January 29, 2021, and Democratic find within the first two years after the initial routinely began to clearly and specifically Commissioner Rohit Chopra will be nomi- public offering (IPO). The popularity of SPAC exclude effects resulting from the outbreak or nated to head up the Consumer Financial transactions had been gradually increasing in spread of COVID-19. Interim operating cove- Protection Bureau, President Biden will recent years, but the onset of the COVID-19 nants now regularly provide some degree of have at least two slots to fill and can thereby pandemic, coupled with perceived inefficien- flexibility for targets in responding to the flip control of the FTC to the Democrats. cies in the traditional IPO market, appears to pandemic, for example, including actions (See “Transition From Trump to Biden May have acted as a catalyst to the meteoric rise in necessary to protect the health and safety of Bring Less Change to Antitrust Enforcement the popularity of SPACs. (See “The Year of employees or others having business dealings Than Expected.”) the SPAC.”) with the company. However, the specific details and general scope of such flexibil- In terms of industry-specific enforcement, In 2020, SPACs raised over $75 billion, in ity are varied and the subject of significant federal agencies and the Biden campaign have the aggregate, across 247 completed IPOs negotiation between the parties, as alleged indicated that the pharmaceutical and health (compared with $12.01 billion raised across breaches of these covenants are often the care industries may face increasing scrutiny 59 IPOs in 2019). The average SPAC IPO basis acquirers assert when seeking to walk from antitrust enforcers under the new admin- size increased from $230.5 million in 2019 away from a signed deal. We expect practi- istration. In recent months, the technology to more than $334.8 million. In July 2020, tioners to continue to allocate pandemic risk sector, particularly where some of the indus- Pershing Square Tontine Holdings, Ltd. in 2021 and beyond. try’s largest players are concerned (further became the largest SPAC following its IPO, highlighted by the antitrust lawsuits filed in raising $4 billion.
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