[Kevin Deasy]

I work for a family investment office, currently. One of the biggest issues I have come across is the broad variation in DD checklists, depending on the deal. It often creates a misunderstanding between our counsel and the seller’s counsel. Has anyone encountered this before? Does anyone have a good solution (outside of forcing the seller to use our checklist, and creating a relationship rift) ?

[Dorminic Kang]

DD checklist should not be a one-size-fit-all document. It is important for you, as the acquirer/buyer, to tailor the DD checklist according to the target. Many DD checklists are based on a comprehensive template to be able to used across all industries, but some questions or sections may not be relevant or is less relevant to a particular deal. Take for example, if you are acquiring a target doing trading of retail goods, DD questions concerning intellectual property is not really relevant as compared to say you are acquiring a pharmaceutical company. As you mentioned, targets can get a sense of the amount of trust placed by the acquirer/buyer in them through looking at the extent of DD asked – if the DD is too extensive, it may signal a lack of trust in the target, and this may result in the target taking a more defensive stance in its disclosure which is not to the benefit of the acquirer/buyer. The solution, as I mentioned, is to tailor the DD according to the risk profile of the target – there is no way around that but to go through each and every question in the DD checklist and decide whether to retain or drop it from the checklist (of course after having advised your end client if you are an advisory firm).

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