While 2023 was a down year in the volume of M&A deal flow overall, Fasken was able to remain at the forefront of league tables.
We've also been busy sharing our insights on key developments in M&A law and market practice over the last year, including with The M&A Lawyer and the American Bar Association (ABA) M&A Deal Points quarterly newsletter.
2023 saw numerous notable developments, including:
- The increased use of earn-outs raises the need to draft with foresight and precision: the buyer's specific efforts undertaking can have widely different consequences.
- For a private equity (PE) buyer negotiating a non-compete with the seller, how much protection is too much protection? Can the non-compete extend to the PE buyer's related portfolio companies?
- Will “Great Hill clauses” catch on in Canadian M&A now that Ontario courts have followed Alberta in signalling their approval, and what guidance remains outstanding?
- Several courts have applied heightened scrutiny to conflicts of interest and nominee directors in the M&A context. Adopting a “corporate opportunity waiver” may be the answer.
- Our review of 70+ recent information circulars reveals that ESG issues have been making incremental inroads into public M&A decision-making. Will this remain a minority trend, or is it evidence of more to come?
To facilitate M&A dealmaking in the year ahead, view our Fasken M&A Year in Review 2023.
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