Facebook-Giphy sale shows how fear of regulators is slowing M&A market
In 2020, a top Meta
Earlier this week, Meta sold Giphy to Shutterstock
It’s a paltry sum of money for most tech companies, but the possibility of regulators refusing to approve deals or unwinding them after they’ve happened has helped chill an already frigid deal-making environment, experts told CNBC.
“You’re seeing deals get done for 20, 30 cents on the dollar compared to what they would have been even six or twelve months ago,” America’s Frontier Fund advisor and former FDIC chief innovation officer Sultan Meghji told CNBC.
Regulators in Europe and the U.S. have been eyeing mammoth deals, such as Microsoft’sActivisionAmazon’siRobot
Jonathan Kanter, who helms the Department of Justice’s Antitrust Unit, and Lina Khan, the Federal Trade Commission’s chair, have been given wide latitude by President Joe Biden to pursue potentially anticompetitive behavior. The federal government has brought cases or opened probes into Amazon, GoogleJetblue Airlines
Prior to his DOJ posting, Kanter worked in private practice, advising directors and executives on potential deals and attendant regulatory pitfalls. Khan made her name with a widely cited journal article on Amazon’s anti-competitive effects.
The Biden administration “has increased the scrutiny of deals and enhanced enforcement,” Morrison Foerster global risk and crisis management co-chair Brandon L. Van Grack told CNBC.
Van Grack, the former chief of the DOJ’s Foreign Agent Registration Act unit, noted regulatory scrutiny was increasing for years prior to the current administration.
Still, top advisors say boardrooms are now giving regulatory concerns increased weight. High-profile actions have played a part in that, as has the increasing complexity and number of regulatory regimes.
From the FTC’s perspective, the heightened thinking is welcome. “Thousands of deals still happen every year. But if mergers aren’t getting out of the boardroom because they would violate antitrust laws, that means we’re doing our job,” FTC spokesperson Douglas Farrar told CNBC.
The CFIUS factor
It isn’t just FTC or DOJ concerns slowing deals either. Publicly disclosed reviews from the all-powerful Committee on Foreign Investment in the United States increased 50% since 2020, according to research from PwC.
That number doesn’t account for outreach from CFIUS attorneys warning companies off from deals, or for nonpublic CFIUS review letters. The committee generally operates in a highly secretive manner, and aside from a public and lengthy review of TikTok parent ByteDance, is rarely in the public eye.
That’s because CFIUS is charged with reviewing corporate acquisitions which, among other things, could have an effect on national security. Even the suggestion of a CFIUS probe can neuter a deal completely or displace a favored bidder from the running.
The cryptocurrency exchange Binance, for example, reached an agreement to acquire bankrupt crypto lender Voyager Digital in late 2022. Binance’s bid was accepted after Voyager’s first agreement with the allegedly fraudulent crypto exchange FTX fell through because of the latter’s November 2022 bankruptcy filing.
Shortly after the Binance-Voyager deal was announced, CFIUS filed a letter notifying Voyager it would be reviewing the deal.
CFIUS is a powerful “tool” in the U.S. government’s arsenal, Van Grack told CNBC. Through CFIUS, the DOJ has been able to take an “increasing role in reviewing and scrutinizing these transactions,” Van Grack said.
The international scope of most deals has complicated matters further. It isn’t just one regulator that can weigh in on an acquisition or a merger. The first question now has to be “how many jurisdictions do we touch,” Van Grack said.
From there, appeasing regulatory concerns, whether they are on anti-competitive or national security grounds, can mean divestiture or mitigation. It can also mean, as with the CMA in the Activision-Microsoft deal, regulators move to block a deal in its entirety.
As boardrooms and executives weigh deals large and small, advisors are being forced to confront a global panoply of competing regulatory interests, Van Grack said. “It is just [a] more complex network: ‘Are we going to get approval? How long is it going to take? Will there be mitigation and what would that mitigation look like?'”
“Those questions are becoming more challenging to answer,” he said.