Organizing and Conducting Due Diligence
Here are some tips derived from the experience of lawyers performing due diligence:
- Obtain a due diligence document request list suitable for your
transaction. This is a list of documents and disclosures that
the lawyers for the party conducting due diligence would like
to review. Ask the assigning lawyer which due diligence request
form is most suited to your transaction.
- Before starting on your assignment, ask the assigning lawyer
about the exact content expectations for your end product: (1)
a list of issues you uncovered? (2) a list of all agreements
reviewed and the issues you uncovered? (3) a “due diligence
memo” that formally presents issues uncovered and documents
reviewed for presentation to the client and, if so, would the
assigning lawyer like for you to attach the relevant due diligence
documents to the memo and bind them together for client review?
- Do not assume you have all of the diligence materials just
because some have been sent to you. Often the most important
documents come at the end of a long series of requests for the
documents. Get written confirmation that the other side has sent
you everything on your request list.
- Note the chronological order of the documents you are reviewing
to make sure they are dated and numbered correctly, and that
your review is current, not outdated.
- Start asking the other side for documents you know you are
missing as soon as you miss them. Do not wait until you have
a longer list of missing items. Keep track of missing documents
on a separate list.
- There will be documents or issues that require an expert in
a legal specialty other than yours, such as litigation, intellectual
property, environmental law, or employee benefits. Ask the assigning
lawyer whether you should also send a copy of a document raising
special issues to an expert in the relevant specialty to review.
More information about the book The
Corporate, Securities, and M&A Lawyer’s Job: A Survival
Guide
Related CLE
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Antitrust Aspects of M&A Transactions: How to Avoid and Allocate
Risks
Negotiating
Antitrust Aspects of M&A Transactions: How
to Avoid and Allocate Risks narrows the focus of due diligence
protocol as it applies to allocating antitrust risk in corporate
transactions. For example, recent enforcement actions highlight
how a transaction agreement can run afoul of premerger notification
rules, whether or not parties compete. Attorneys will learn how
to properly conduct due diligence where there are antitrust concerns
in this audio CD package.
Featured Faculty: Patricia A. Brink, Kathryn M. Fenton,
Samuel D. Scruggs
Section of Antitrust Law and the ABA Center for Continuing Legal
Education
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