Veta T Richardson, president and CEO of the Association of Corporate Counsel (ACC), reviews the ACCs recent finding from its Chief Legal Officer’s Survey and what it says about M&A trends and legal strategies.
The role of in-house counsel continues to evolve as they become increasingly relied upon in the day-to-day functions of running a business. They are no longer an afterthought, only asked to weigh in to mitigate risk or navigate treacherous legal waters. Instead, they are becoming key figures in shaping business strategy and one of their key responsibilities continues to revolve around activities related to M&A. For over 20 years, the Association of Corporate Counsel (ACC) has conducted its Chief Legal Officers Survey. In 2020, this study built on responses from 1,007 chief legal officers (CLOs) and general counsel (GCs) at organisations spanning 20 industries and 47 countries. It is the largest and most comprehensive survey of its kind. Veta Richardson, ACC president and CEO, shares some key findings from recent surveys that pertain to M&A.
How do CLOs view the prospects for the M&A market over the coming 12 months?
From what ACC has seen and heard from our members, it looks like the M&A market will be fairly busy. In the 2020 ACC CLO Survey, one in five respondents reported that significant transactions (including but not limited to M&A, spin-offs, etc.) would likely require more additional law department resources than other issues over the next 12 months. More than one third of CLOs surveyed (36%) believe that M&A issues specifically will be the biggest legal challenges facing their organisation. This is also part of a greater trend as to how CLOs view M&A issues. In 2019, ACC found that 22% of CLOs listed M&A as the greatest anticipated impact on their department for the coming year.
Are there specific regulatory developments CLOs are keeping an eye on?
Increasing regulatory requirements and costs associated with compliance are becoming a greater cost of doing business. That's especially true when a company's operations cross national borders. 61% percent of CLOs believe that new, industry-specific regulations are likely to cause future legal concerns. Similarly, 59% draw the same conclusion about data protection and privacy regimes like GDPR. Meanwhile, 58% of CLOs indicated that departmental spend on regulatory compliance increased in the last year. Company size correlates to spend, too. If you look at law departments by company revenue, you see larger organisations anticipate having to increase their compliance expenditure to a much greater degree than smaller companies. It's also interesting to look at this question from the perspective of sector. CLOs in accommodation and food services, wholesale trade, and finance and banking are more likely to increase compliance spend than other industries.
Some regulators seem to be becoming increasingly interventionist (and even a little politicised), is this something that you have noted? What can companies do to meet this challenge?
The ACC is a non-profit and nonpartisan organisation, so it does not weigh in on politics. But it's worth noting that CLOs' geopolitical prognostications have changed in unexpected ways over the past few years. Somewhat surprisingly, only about a third of CLOs in our survey indicated, post-Brexit, that geopolitics triggered changes in their enterprise – a considerably lower value set compared with 2017. The results are largely consistent across big and small companies, yet some differences appear by region. In Asia and Latin America, for instance, a number of CLOs reported that they planned to adapt their strategy to an evolving political and regulatory landscape.
Most respondents are very or moderately confident that their organisation can keep track of changing regulations (60%) and tackle new risk threats (54%). This time, company size has a significant effect. The higher the annual revenue, the greater the confidence. Companies earning more than $3 billion annually are substantially more confident, with 72% and 68% of CLOs reporting high confidence levels in being ready to address new regulations and emerging risks, respectively.
Shareholder activism has been a big topic in recent years, is this likely to continue? How has it influenced companies and the in-house role?
It has and I believe it likely will. With that said, in our recent surveys CLOs have not ranked shareholder activism specifically as among their top issues to impact their organisations. However, I'd venture to say that shareholder activism is manifesting itself in other ways, as we see increasing focus on environmental issues, diversity and social responsibility. For example, 67% and 52% of respondents, respectively, felt that diversity and ESG issues will accelerate. All these various issues are broad, of course, and impact businesses in different ways, but you can't untangle them completely from shareholder activism.
Is this the year that ESG will begin to weigh in more heavily in M&A and corporate decisions?
GCs are increasingly taking leadership roles regarding ESG at their companies. Only one company in three had an active ESG strategy as of 2019 (although an equal proportion were preparing one), but in 93% of those cases the CLO led or significantly contributed to sustainability efforts. This is another sign of the changing role, broad scope and expanding strategic value of the CLO.
How are in-counsel teams evolving in relation to significant transactions and what should law firms take away from that?
It's true that corporate law departments tend to insource many of the functions that they once sent out to law firms. In-house counsel are in the driver's seat, and more inclined to direct and handle significant transactions rather than outsourcing a deal to outside counsel. Nevertheless, our 2020 data indicate that CLOs are outsourcing at a more or less stable rate year to year. Law departments of private companies tend to outsource more than their public-sector peers. All in all, that's good news for law firms who contract regularly with corporate law departments. But alternative legal service providers (ALSPs) are a growing third party in this arrangement. About one in five CLOs expects to increase the amount of work they send to ALSPs this year – a fact worth bearing in mind for law firms.
What there anything in your survey results that you found surprising?
In 2017, we saw more than 55% of CLOs respond that geopolitical events had affected their company's plans to enter new markets. By 2020, that number had dropped to 34%. On the face of it, this seems like a discrepancy, since the pace of change and disruption is increasing. But it indicates that businesses are more adjusted to the new, unpredictable economy than they used to be. And part of that is due to the rise of the CLO as a strategic partner to the c-suite.
If you had to pick one major theme that will dominate or emerge in 2020, what would it be and why?
In 2017, ACC declared that the decade to come would usher in the age of the CLO. Our research confirms that the general counsel continues to emerge as a company's key contributor to business strategy, as they are often best positioned to pilot the c-suite through the chaotic regulatory and technological landscape of modern business. Over 72% of CLOs in our 2020 survey reported that the executive leadership team almost always sought their input on business decisions. Our data also suggests that CLOs are adopting cutting-edge technological solutions to improve efficiency – including using artificial intelligence, leading ESG efforts and delivering value – not only to customers but to the company as a whole. I think in 2020 and for the years to come, we will continue to see the health of the age of the CLO.
|About the author|
Veta T Richardson
Veta T Richardson is the president and CEO of the Association of Corporate Counsel (ACC), a position she has held since 2011. Headquartered in Washington, DC with offices in Brussels, Hong Kong, Melbourne and London, the ACC is the world's largest legal association dedicated exclusively to serving the interests of in-house counsel.
Veta has been consistently recognised for corporate governance leadership by the National Association of Corporate Directors, which named her to its 'Directorship 100'. She also serves on the advisory board of the Weinberg Center for Corporate Governance. Previously, as executive director of the Minority Corporate Counsel Association (MCCA), Veta was widely recognised for thought leadership in the areas of diversity and inclusion, advising hundreds of Fortune 1000 companies and law firms. She holds a BS in business management from the University of Maryland, College Park, and a JD from the University of Maryland School of Law.