Legal Business

‘The wind was taken out of everyone’s sails’ – the M&A report 2023

2021 was always going to be a tough year to follow. Quite how tough, few could have foreseen at the start of 2022.

With global annual deal values totalling almost $6trn – a jump of more than 60% on 2020 – 2021 was roundly described in breathless superlatives. Following a year of pent-up demand during the pandemic, soaring levels of M&A activity were fuelled by the vaulting ambition of private equity (PE) houses, a surge in tech and pharmaceutical sector deals, and a boom in activity from special purpose acquisition companies (SPACs).

The easing of Covid-19 lockdown restrictions contributed to a sense of cautious optimism at the start of 2022, but it didn’t take long for this nascent stability to evaporate.

‘The first quarter of 2022 was really the back end of the Covid bull run,’ says Howard Corney, head of the corporate and M&A group at Macfarlanes. ‘M&A practices were phenomenally busy. Teams were burnt out by heavy workloads, exciting deals, and active clients across the whole piece. But come the spring, the wind was taken out of everyone’s sails.’

The war in Ukraine intensified inflationary pressure, exposing major vulnerabilities in energy and food supply chains across Europe, and driving up prices in the process.

By the end of 2022, euro area annual inflation had reached 9.2%, more than triple the 2021 rate. In the UK, the annual rate of inflation climbed to 11.1%, a 41-year high. The country – and its economy – was also left reeling from unprecedented political instability, including three prime ministers in just three months.

Against this backdrop, Q1 2023 has seen deal volumes and values plummet in the UK and globally, with 601 deals worth just $19.6bn in the UK and 9,400 deals worth almost $591bn globally over the first three months of this year, according to data from Dealogic. For context, the UK value represents the lowest Q1 figure since 2009, with the global equivalent the lowest since Q1 2012. Deal volumes are only marginally higher than at the height of the 2020 Q1 Covid outbreak.

While the stats could hardly look more gloomy, City partners spoken to for this feature are, for the most part, remaining resolutely upbeat – in public at least.

‘Things have changed quite dramatically in recent times. Last year started pretty well for everybody, but clearly, nervousness crept into the market as interest rates crept higher.’ Tihir Sarkar, Cleary Gottlieb

‘The last year has been incredibly busy for us over private and public M&A,’ says Simon Branigan, global head of corporate at Linklaters. ‘Despite the quieter equities market, the corporate division is on course for a second record-breaking year.’

‘As an M&A practice, we’ve had a very, very strong year,’ says Ed Barnett, global co-chair of Latham & Watkins’ M&A group. ‘Things did slow up towards the back end of 2022, but overall, it was still very successful – locally and globally.’

Lorenzo Corte, global co-head of transactions at Skadden, concedes that the last half of the year was plagued by uncertainty, but maintains that the firm remains in a strong position: ‘We still get the big mandates even in downtimes. In the first half of last year we did Activision, we did Musk’s takeover of Twitter, and we did the takeover of Selfridges.’

Market jitters

The numbers arguably paint a more negative picture. Higher interest rates have already played a major part in curbing deal activity, bringing a sharp end to a prolonged era of cheap debt financing, with the appetite for megadeals falling away in tandem. Twenty-five deals worth at least $10bn were signed globally in the first six months of 2022, compared to just 11 in the six months that followed.

Of those that got through, UK highlights include GSK’s spin-off from its consumer healthcare arm to form Haleon, a $30.9bn demerger which generated roles for Freshfields Bruckhaus Deringer, Clifford Chance, and Slaughter and May. Elsewhere, Linklaters advised National Grid on its $10.5bn sale of a 60% stake in its UK gas business to a consortium consisting of Macquarie Asset Management and British Columbia Investment Management Corporation (BCI), represented by White & Case and Latham & Watkins, respectively. Latham also advised a consortium led by Todd Boehly and Clearlake Capital Group on its £4.25bn acquisition of Chelsea Football Club – one of the largest sports M&A deals in history. The mandate generated roles for Northridge Law, Simmons & Simmons and Pillsbury Winthrop Shaw Pittman on the Chelsea side.

If the second half of 2022 was weak, thus far 2023 is worse. Looking at the first quarter of 2023, global dealmaking stood at almost half the value recorded during the same period last year. This represents the weakest Q1 performance in more than a decade.

‘Things have changed quite dramatically in recent times,’ says Tihir Sarkar, a corporate partner at Cleary Gottlieb Steen & Hamilton in London. ‘Last year started pretty well for everybody, but clearly, nervousness crept into the market as interest rates crept higher.’

This nervousness has significantly affected the availability of acquisition financing. Already risk-averse, lenders have been spooked by a number of high-profile deal hitches, such as the exposure faced by the banks funding Elon Musk’s chaotic $44bn takeover of Twitter.

Meanwhile, a mismatch in pricing expectations is threatening to derail transactions. Melissa Fogarty, co-head of Clifford Chance’s London corporate practice, explains: ‘Pricing is difficult. Public companies feel like they’re being undervalued but acquirers are worried about valuations generally – are they going to feel like they overpaid?’

As a result, while many partners are confident that deals will still happen in 2023, activity is not going to be as widespread as in recent years, meaning not all firms will be busy. ‘The debt market is really jammed right now,’ continues Sarkar. ‘We’re stuck in stasis. It’s going to be cash and equity-rich transactions that we see.’

‘Pricing is difficult. Public companies feel like they’re being undervalued but acquirers are worried about valuations generally – are they going to feel like they overpaid?’
Melissa Fogarty, Clifford Chance

‘[It will be] corporates with strong balance sheets – those looking for new geographies and new technologies’, agrees Nick Cline, an M&A partner at Latham in London.

‘The deals that get done in 2023 will have good focus,’ adds Natasha Good, an M&A partner and TMT specialist at Freshfields Bruckhaus Deringer. ‘Deal do-ers will have a good rationale for wanting to do deals in this market.’

Overseas corporates with the will and the means to spend may not have to look too hard for suitable targets. A period of increased political and fiscal stability in the UK may have steadied the pound, but it is still weak against the US dollar. Low valuations of UK-listed companies, combined with the strength of the dollar, present significant opportunities for ‘US acquirers going shopping,’ as Slaughter and May co-head of corporate Simon Nicholls puts it, meaning that offers for UK assets may well start rolling in again. In February this year, for example, Aberdeen-based energy firm John Wood Group was the subject of several takeover approaches by Apollo Global Management, all of which were unanimously rejected by the board.

Patrick Sarch, co-head of the UK M&A practice at Hogan Lovells, does not mince his words: ‘On the buy-side, every day in London is Black Friday – it’s bargain time. The UK market is cheap, the US has loads of firepower, and PE is on the sidelines.’

Likely driving just as much activity as the corporates seeking strategic acquisitions, will be those opting to restructure by carving out non-core operations.

Andrew Hutchings, Freshfields’ head of London transactions, points out that this activity can be good news for law firms: ‘When markets are more difficult, businesses can focus on core activities and this drives potential spin-off activities, which for law firms involves significant business separation work before any sale. They’re typically longer-term mandates, involving a lot of planning, whether demerging or selling.’

The ESG element

While the market generally may be quieter, some industries are less affected than others, with partners consistent on predicted drivers of M&A activity.

Top of the list are deals in the energy and infrastructure sectors, as corporates get to grips with their environmental, social, and governance (ESG) obligations. Leaving any doubts around greenwashing to one side, ESG’s rapid ascent into the mainstream means that deals driven by ESG considerations are very much here to stay.

Louise Wallace, head of corporate and M&A at CMS in the UK, believes that the impact on dealmaking will be significant: ‘The ESG regulations in Europe and the UK are only going one way, and I think this will drive M&A, where people want to shore up their supply chains and bring things in-house to manage their ESG risks or boost their ESG credentials. It will also impact on all M&A because the level of due diligence is only going to increase – are there skeletons in the cupboard? We’ve certainly had deals where some cleaning up has had to be done before completion.’

National Grid’s $10.5bn sale of gas and metering assets to Macquarie was one of the largest UK carve-outs of last year, while other major energy transition sales over the period include American utilities giant Exelon’s $17.3bn spin-off of its former power generation arm, Constellation Energy. Elsewhere, BP – advised by Freshfields – continued its expansion into the lower-carbon fuel market, with the $4.1bn acquisition of American renewable gas producer Archaea Energy.

‘ESG is dominating things,’ says Mike Flockhart of Herbert Smith Freehills. ‘It isn’t just window dressing. It touches on everything and lots of clients are just coming to it for the first time.’

‘Energy transition and clean energy is the real zeitgeisty sector,’ adds Fogarty. ‘It’s a huge opportunity and relevant to all.’

Energy transition-driven deals by traditional energy companies may be dominating the headlines, but the pipeline of work extends far beyond this, as all industries battle to get to grips with making all aspects of their business more sustainable, which will involve extensive transformation of supply chains.

Breaks in the clouds

The infrastructure sector is widely expected to remain active, buoyed by the significant reserves of infrastructure investment fund capital at play. The projected success of the sector should come as no surprise. In the minds of risk-conscious investors, infrastructure assets, which are often regulated, offer a more reliable income stream in a down market, often linked to inflation.

Some predict that mining could also have a resurgence, arguably testing the reach of ESG. As Hogan Lovells corporate partner Daniel Simons comments: ‘Oil and gas and mining stocks have outperformed the rest of the market. And now these companies are investing in share buyback programmes and the wells they’re drilling. Gold and platinum prices have gone through the roof, valuations on listed mining companies have gone up. In darker times, people revert to natural resources companies as a safe harbour.’

Indeed, in May, Australian lithium producer Allkem and US lithium manufacturer Livent Corp announced an all-stock merger to create a company with a combined value of USD $10.6bn – the biggest announced deal of the year so far.

Pharmaceutical and life sciences is also predicted to be busy, after a 2022 that saw high volumes of activity but with fewer mega-deals.

Meanwhile the outlook for tech is a little more mixed in the wake of high-profile crypto and banking scandals and sweeping global layoffs at some of the tech giants.

‘Anything you read will tell you that tech is terribly troubled, and that it’s harder and harder to raise money,’ says Philip Broke, a corporate partner at White & Case in London. ‘This is all true, but we’re seeing a lot of tech companies merging – sometimes for safety, and other times for survival.’

Good believes that a challenging market will spur on the sector’s biggest players to double down on strategic acquisitions that will give them an innovation edge. ‘Innovation is everything to them, and M&A is also a sought-after exit route for those who’ve spent time and capital developing things,’ she says, pointing to Hewlett Packard Enterprise’s acquisition of Italian private networks vendor Athonet, London Stock Exchange Group’s strategic partnership with Microsoft, and Getir’s acquisition of Gorillas. ‘In some areas, where scale is important, consolidation will come sooner than it might have given the challenging economic backdrop,’ she adds.

Many believe that the volatility in tech, banking, and the intersection of the two will also lead to opportunities.

As Skadden’s Corte explains: ‘People have been calling for cross-border consolidation in the European banking sector for years, but we haven’t really seen it since the Great Recession, so it may be that the current climate spurs the sector into action.’

Karen Davies, global chair of Ashurst, predicts that tech could be one of the sectors that will see more distressed M&A. ‘Many tech businesses have had to cut back as post-pandemic business softened and the cost of financing rose sharply. We should expect to see a rising number of distressed acquisitions in due course.’

Not that many predict a significant wave of distressed M&A to arrive any time soon, despite the collapse of Silicon Valley Bank and demise of Credit Suisse earlier this year. The prevalence of covenant-lite loans, relative liquidity in the market, and a more earnest approach to risk mean few are predicting large volumes of distressed M&A or restructuring. Nor are partners expecting the market to look anything like it did after the 2008 financial crisis.

‘I don’t think it’s going to be like 2008,’ says Corte. ‘In any downturn there are going to be companies that are exposed and therefore might get gobbled up. But there’s plenty of money in financial sponsors, in private capital providers, and there are strategic players with a lot of cash.’

Richard Moulton, co-head of the global corporate and M&A team at Eversheds Sutherland, comments: ‘The money is there. It’s not an issue of liquidity, it’s an issue of confidence. People are taking comfort in the reassuring messages and the backstop efforts from the central banks. Ultimately, confidence in the system prevents us from repeating history.’

PE predictions

In stark contrast to the frenzy of buyout activity in 2021, the higher cost of borrowing means big-ticket take private activity has stalled. But few believe PE will be on the sidelines for long.

‘The sheer amount of capital that private equity houses and private lenders now have will continue to play a pivotal role in the health of the M&A market,’ says Corney.

‘There’s so much money in private equity which they need to invest,’ adds Aisling Zarraga, global co-head of healthcare at Linklaters. ‘Debt funding is making things difficult at present, but the PE houses are still busy. They’re looking at assets, and they’re ready to go as soon as a path ahead is clear.’

Others, such as David Avery-Gee and Mike Francies at Weil, suggest buyout houses are now so involved in the public M&A markets that there is no going back, even if the cost of borrowing makes very big, highly leveraged deals less attractive for now. After all, many houses are still sitting on vast amounts of dry powder.

Sonica Tolani, a partner in White & Case’s global M&A and corporate team points out: ‘Private equity obviously did deals at higher interest rates in the past. It’s not that they can’t do these deals, it’s more that the banks need to price them based on updated models. We should see things pick up once this happens.’

Longer term thinking

Overall, despite the headwinds, partners are standing firm in their belief that activity will pick up.

‘I would challenge the assumption that there won’t be many deals,’ Hutchings contests. ‘I think that in some areas it’s going to be a hot market. Inflation is expected to come down, growth is picking up, and interest rates are stabilising. There’s still a lot of dry powder and the debt markets are there for the right transaction.’

Nor do partners believe that the increasing regulatory scrutiny from authorities such as competition regulators is likely to have a significant long-term impact on activity levels, even though it is prompting companies to rethink the way they engage with regulators and carry out transactions.

‘Debt funding is making things difficult at present, but the PE houses are still busy. They’re looking at assets, and they’re ready to go as soon as a path ahead is clear.’ Aisling Zarraga, Linklaters

However, looking at the longer-term future of the UK deals market and wider economy, many are concerned about the competitiveness of London as a financial centre, amid the decisions by a number of high-profile companies to pursue sole US listings instead of UK-only or dual listings. In March this year for example, Cambridge-based microchip designer Arm – worth an estimated $40bn – elected to pursue a sole US listing, despite the efforts of prime minister Rishi Sunak to persuade the company otherwise.

‘The disconnect between stock market valuations in Europe and the US is a real thing and it is very well documented that companies are exploring moving their UK listing to the US,’ says Avery-Gee, who argues that while this is bad news for the UK economy it presents opportunities for US firms.

Over at Slaughters, Nicholls argues that while listings migrating to the US is a concern, the bigger question is around new company listings. He is calling for tangible government action to help the UK maintain its place as a leading financial centre.

‘An equally important question is whether London is still a natural choice for a new company listing,’ he stresses. ‘London as a leading financial centre and its stock exchange is one of the things the UK does best and staying in the premier league is important. We didn’t keep our place in Europe but we need to keep it globally. The financial centre is fundamental to the UK economy, as is the investment and employment driven by UK-listed and headquartered groups. That is not something that should ever be in any jeopardy.’

The lateral outlook

While markets may be uncertain, high-profile partner moves have continued unabated, with some Magic Circle firms continuing to see partners leave for US rivals, while infrastructure M&A has proved to be a particular hotspot for lateral activity.

Linklaters saw M&A partner Nick Rumsby leave for Cleary Gottlieb as part of the US firm’s resurgent plans to build up in London in November last year, while infrastructure M&A heavyweight Jessamy Gallagher left the Magic Circle firm for Paul Hastings in February this year alongside finance-focused infrastructure partner Stuart Rowson.

That same month, former Travers Smith partner Phil Cheveley joined Sidley after less than two years running the EMEA and Asia M&A team at Shearman & Sterling, which has seen a large number of partners leave around the world since news of its (now-aborted) merger talks with Hogan Lovells emerged. Cheveley’s former Travers colleague, private equity partner Ian Shawyer, meanwhile joined Cleary Gottlieb in January this year.

The infra merry-go-round picked up pace in March when high-profile partner Brendan Moylan moved to Weil after five years at Latham & Watkins. New of his recruitment emerged only days after two infrastructure partners – James MacArthur and Ed Freeman – quit Weil for Sidley in London.

Reflecting on headcount, Weil London head Mike Francies stresses that the firm, which has brought in a number of partners across M&A, competition and private equity in recent years, is hiring strategically in London, adding that the firm’s position contrasts with others that perhaps over-hired during the M&A boom, only to find themselves with surplus lawyers in today’s quieter market. ‘We’ve taken a sensible, measured approach and we’re still recruiting. Anecdotally, there seem to be a lot of people on the market now – some, possibly, from firms that, perhaps, hired too many.’

In recent months, several US firms – Kirkland & Ellis, Shearman, and Goodwin among them – have parted ways with a number of associates in various US offices. Shearman cited ‘current and projected market conditions’ in the transactional space as factors, while Kirkland maintains that the associate departures at the firm are simply ‘performance-based decisions’.

Despite the inroads key US players have been making in London, firms like Freshfields and Slaughters maintain that they are unrattled. Andrew Hutchings at Freshfields, says: ‘We would never be complacent, but it would take years of very significant investment to come close to what we have here.’

Market views

On the 2023 deal market:

‘It’s an interesting time. Things are pretty quiet but there’s a lot of preparation happening under the surface and there are deals in the pipeline. March was interesting – there were a lot of conversations with prospective bidders on P2P transactions and it started to feel like it might turn a corner, with people getting ready for the return of the debt market. Then Silicon Valley Bank and Credit Suisse happened. We advised HSBC on its acquisition of SVB, which was a fantastic deal to do to. The whole thing happened over about 13 hours – we had a ringside seat as stability returned to the markets and a crisis was avoided.

‘Overall, there is a lot of dry powder and there’s a genuine pipeline of work. It isn’t all just carveouts and distressed sales – there are strategic and opportunistic deals there too.’

Melissa Fogarty – Clifford Chance

‘For those bidders who don’t need debt finance – specifically bank debt, which has become more expensive – UK targets are attractive. For big corporates who are non-sterling denominated, it’s easy for them to find existing facilities and equity with which to make deals happen. And they’re not competing with PE houses.’

Patrick Sarch – Hogan Lovells

‘The market is changing on a daily basis. I started the year thinking that the second half of 2022 had been tough and this year would be better. We’d had war, interest rates rising from 0% to 4% and the threat of it climbing further, which makes a huge difference to the cost of finance for any transaction because you have the higher cost of debt as well as the banks’ market risk perception changing. Then the mini banking crisis came and tried to rock things and the UK has had the slowest start to a year since 2002, but I still think there will be more activity than in 2022, even though some of it will be distressed.’

Louise Wallace – CMS

‘2023 is going to be a complex year. It’s not going to be a vintage year given the headwinds but there are pockets of activity – like energy transition – that are keeping us busy. There’s no sign of the return of big jumbo buyouts – the lev fin markets aren’t open and there’s no sign that’s going to change quickly so it will be about which of your clients are busy and when. It’s not going to be 2008 though – banks are better capitalised even if there are challenges around liquidity and high inflation rates when companies now have business models built for low inflation and interest.’

Mike Flockhart – Herbert Smith Freehills

‘The first half of 2022 was very strong, but it started to come off in the second. It is easy to see bad things building up and get pessimistic, but while it isn’t the heights of 21/H1 2022 it’s better than fine.’

Simon Nicholls – Slaughter and May

On distressed M&A

‘There are definitely signs that more activity is coming, especially with interest rates having risen and the diminished availability of cheaper financing. There’s lots of chatter in restructuring groups – both in the banks and the law firms – but it takes time to work through the cycle.’

Nick Cline – Latham

‘We may well see more distressed opportunities than we previously have. You can see that overleveraged companies are now struggling, and it’s going to be hard to refinance some of that debt in this credit restrained environment. Someone in the creditor community will have to be brave enough to call time on trouble assets, perhaps against powerful clients such as financial sponsors. That could make for an interesting dynamic, but it’s not to say it will be a trend. But the first one to go might start an avalanche.’

Tihir Sarkar – Cleary

Top ten legal advisers on global deals by value: 2022

Ranking 22 (ranking 21) Firm Value (USD) Deal Count
1 (1) Sullivan & Cromwell $559.9bn 178
2 (5) Simpson Thacher $444.7bn 204
3 (7) Skadden $496.5bn 224
4 (3) White & Case $387.9bn 486
5 (2) Latham & Watkins $381.9bn 662
6 (4) Kirkland & Ellis $380.4bn 828
7 (9) Davis Polk $362.7bn 165
8 (8) Freshfields $360.1bn 237
9 (6) Wachtell $329.6bn 79
10 (10) Cravath $257.7bn 79

Source: Dealogic

Top ten legal advisers on UK-target deals by value: 2022

Ranking 22 (21) Firm Value (USD) Deal Count
1 (1) Freshfields $90.8bn 62
2 (8) Linklaters $78.3bn 77
3 (3) Slaughter and May $76.8bn 47
4 (10) Sullivan & Cromwell $71.3bn 23
5 (6) Clifford Chance $68.9bn 56
6 (5) Latham & Watkins $61.9bn 113
7 (9) White & Case $51.6bn 85
8 (12) Allen & Overy $40.5bn 66
9 (18) Baker McKenzie $38.3bn 36
10 (2) Kirkland & Ellis $38bn 87

Source: Dealogic

Top five global deals announced in 2022

Target Acquirer Seller Target financial advisers Acquirer financial adviser Deal value (USD) Target legal advisers Acquirer legal advisers
Activision Blizzard (100%) Microsoft Allen & Co; Morgan Stanley Goldman Sachs $75bn Skadden Osler Hoskin & Harcourt; Sidley Austin; Simpson Thacher; Weil Gotshal
VMWare (100%) Broadcom Silver Lake Group Goldman Sachs; JPMorgan; Santander Barclays; BofA Securities; Citi; Credit Suisse; Morgan Stanley; Wells Fargo Securities $71.6bn Gibson Dunn; Simpson Thacher Cleary Gottlieb; O’Melveny & Myers; Wachtell
Housing Development Finance Corporation (100%) HDFC Bank Arpwood Capital Pvt; Credit Suisse; Jefferies; JM Financial; Moelis & Co; BofA Securities BNP Paribas; Citi; CITIC Securities; Goldman Sachs; HSBC; JPMorgan; Nomura; Morgan Stanley $60.8bn AZB & Partners; Singhi & Co; Udwadia Udeshi & Argus Partners Cravath; Wadia Ghandy & Co
Atlantia (69.9%) Blackstone; Edizione BNP Paribas; Equita SIM; Morgan Stanley BofA Securities; Goldman Sachs; JPMorgan; Mediobanca; UBS; UniCredit; Citi; Lazard; Santander $46.4bn Chiomenti Studio Legale Gatti Pavesi Bianchi Studio Legale Associato; Hengeler Mueller; Legance Avvocati Associati; McCarthy Tetrault; Schoenherr Rechtsanwaelte; Simpson Thacher
Twitter (91.24%) Elon Musk Goldman Sachs; JPMorgan; Allen & Co Morgan Stanley; Barclays; BofA Securities; Centerview Partners; Perella Weinberg Partners $41.3bn Simpson Thacher; Wachtell; Wilson Sonsini Skadden; Yulchon

Top five UK deals announced in 2022

Target Acquirer Seller Target financial advisers Acquirer financial advisers Deal Value (USD) Target legal advisers Acquirer legal advisers
Haleon (54.5%) Existing Shareholders GSK BofA Securities; Citi; Goldman Sachs; Guggenheim Partners; Morgan Stanley $30.9bn Baker McKenzie; Clifford Chance; Freshfields; Slaughter and May; Sullivan & Cromwell
National Grid (UK gas transmission and metering business, 60%) Macquarie Asset Management; British Columbia Investment Management Corporation National Grid Barclays; Robey Warshaw; Goldman Sachs; Evercore Inc Macquarie Group; RBC Capital Markets $10.5bn Linklaters CMS; Latham & Watkins; White & Case
Element Materials Technology Group (100%) Temasek Holdings Bridgepoint Advisers BofA Securities; Goldman Sachs; Rothschild & Co $7bn Allen & Overy; DLA Piper; Skadden Clifford Chance; DLA Piper
Micro Focus International (100%) Open Text Corp Goldman Sachs; Jefferies; Numis Securities; BofA Securities Barclays $5.9bn A&L Goodbody; Cravath; Slaughter and May Allen & Overy; Cleary Gottlieb; Khoshaim & Associates
HomeServe (100%) Brookfield Infrastructure Partners Goldman Sachs; JPMorgan; UBS Deutsche Bank; BofA Securities $5.8bn Slaughter and May Linklaters; McCarthy Tetrault; White & Case