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

Kenneth Thompson, Chief Legal Officer, LexisNexis, USA

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.

Ken Thompson is Global Chief Legal Officer for the LexisNexis Global Legal Department. He joined LexisNexis in 2001. As a member of the LexisNexis Group Management Committee, Ken leads and advises at the highest levels of the company and is the principal legal advisor to the LexisNexis Global Chief Executive Officer. Prior to joining LexisNexis Ken was a partner in a highly respected Cincinnati, Ohio, law firm for more than 15 years. Ken is a past chair of the Ohio State Bar Association’s Computer and High Technology Law Committee, where he did ground-breaking work on the work-made-for-hire doctrine, as well as the state’s white collar computer crime laws, then in their infancy. In addition, Ken is a former member of the Ohio State Bar Association Intellectual Property Section Board of Governors, and a former member of the Ohio State Bar Association’s Council of Delegates. Ken has a B.A. degree from Capital University and a JD from the University of Cincinnati College of Law. His broad expertise makes him an authoritative and highly engaging public speaker on a range of issues: intellectual property, acquisitions and divestitures, anti-trust, and Internet security.

LexisNexis is a leading global provider of content-enabled workflow solutions designed specifically for professionals in the legal, risk management, corporate, government, law enforcement, accounting, and academic markets. LexisNexis originally pioneered online information with its LexisNexis services. A member of Reed Elsevier, LexisNexis serves customers in more than 100 countries with more than 18,000 employees worldwide.