Deal Lawyers Download Podcast – Mike O’Bryan on M&A Trends for 2026

Key Takeaways

• AI due diligence now mandatory for high‑value deals
• Antitrust scrutiny intensifies under new national security rules
• SB21 safe harbor reshapes controller transaction structures
• Earnout clauses drafted to limit post‑closing disputes
• Activist investors drive faster strategic review processes

Summary

The Deal Lawyers Download podcast features Morrison & Foerster’s Mike O’Bryan outlining M&A trends for 2026. Topics include AI‑driven due diligence, evolving antitrust and national‑security review regimes, new SB 21 safe‑harbor rules, recent tax law changes, and strategies for acquihires, earnouts, and activist‑influenced board reviews. The 32‑minute discussion highlights how these forces reshape deal structuring and risk management. Listeners are invited to suggest future podcast subjects relevant to corporate counsel.

Pulse Analysis

The 2026 Deal Lawyers Download episode spotlights how artificial‑intelligence tools are reshaping due‑diligence workflows. Practitioners now run algorithmic risk models on target data sets, flagging hidden liabilities and compliance gaps that traditional checklists miss. This shift not only accelerates the review timeline but also raises new obligations under data‑privacy statutes, prompting counsel to embed AI‑specific clauses in information‑request letters. Firms that adopt AI‑enhanced diligence gain a competitive edge, while those that ignore it risk regulatory penalties and missed deal value.

Antitrust and national‑security reviews have entered a more aggressive phase, driven by recent legislative reforms and heightened geopolitical tensions. The expanded jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) and the European Commission’s stricter merger thresholds mean that cross‑border transactions face longer clearance periods. Simultaneously, the SB 21 safe‑harbor provision offers a limited shield for controller‑type deals, but only when parties meet precise disclosure and timing requirements. Tax law updates, especially the 2025 corporate‑rate adjustments, further complicate structuring, forcing deal teams to reassess earnout mechanisms and purchase‑price allocations.

Hybrid structures such as acquihires and earnouts are gaining prominence as companies seek flexibility amid market volatility. Drafting earnout provisions with clear performance metrics and dispute‑resolution triggers can dramatically reduce post‑closing litigation. Meanwhile, activist shareholders are pressuring boards to accelerate strategic reviews, often demanding higher returns or divestitures. Counsel must therefore embed robust governance clauses and contingency plans within acquisition agreements to address activist‑driven board changes. By proactively integrating these considerations, M&A practitioners can navigate regulatory uncertainty, protect value, and close deals with greater confidence.