This article is based on Using Legal Project Management in Merger and Acquisition and Joint Venture Transactions: A Guidebook for Managing Deals Efficiently and Effectively, Third Edition, edited by the article’s authors.
Sophisticated clients’ expectations of their M&A deal attorneys have not slackened in the age of remote working and back-to-back Zoom meetings in the wake of the pandemic.
Given that reality, the recent publication of the latest edition of Using Legal Project Management in Merger and Acquisition and Joint Venture Transactions is particularly timely. This unique guidebook contains downloadable and customizable checklists and other tools providing an arsenal of resources for deal lawyers seeking to drive efficiency for and deliver value to their clients. The new edition adds to that arsenal and responds to new developments in the evolving M&A marketplace. It also breaks new ground with an entirely new battery of resources focused on joint venture transactions.
The new edition marks the third iteration of the guidebook to be published in just five years. Several factors have driven the number of editions in this short period.
First, there has been an explosion in the field of legal project management generally as law firms and corporate law departments alike have added legions of project and pricing managers to their ranks. The editors recently participated in a global summit of such managers, something that would have been unthinkable just a few years ago.
Second, corporate law departments and other sophisticated clients are issuing RFPs with increasing frequency that require bidding law firms to include meaningful explanations of how they would use legal project management (LPM) in carrying out their engagement.
Third, the COVID-19 pandemic catalyzed the need for the tools in the field. In a remote work world with lawyers working from various venues, having an organized and coordinated team can be a challenge, but at the same time remains a necessity. The LPM tools found in the guidebook can go a long way to helping distributed legal deal teams stay in sync.
Finally, the 100+ deal lawyers from around the world who comprise the American Bar Association’s M&A Legal Project Management Task Force kept coming up with new and creative ideas as to how LPM might be used in particular types of transactions to respond to new ways of handling deal risks and other matters. As editors of the guidebook, we owe them our thanks for their seasoned perspectives and invaluable input.
As a consequence, the Third Edition includes eight new M&A tools that are particularly relevant to the tumultuous and ever fast-moving world in which deal lawyers find themselves. The following are thumbnail descriptions of the eight new tools:
- Cataclysmic Event Due Diligence Questionnaire: This is a list of due diligence and document requests triggered by or related to a cataclysmic or force majeure-like event, incident, occurrence or circumstance such as a pandemic, an Act of God, or anything else that is or has the potential to be, material, major and disruptive.
- Limited Auction Checklist: This is a checklist of key items to consider in connection with a limited auction process. Such a process entails a higher degree of complexity than transactions with only one potential buyer, given the need to coordinate and stage the disclosure of information to various interested parties and handle parallel negotiations with multiple bidders.
- Deal Cycle Capture Tool: This tool captures and communicate significant matters identified during the deal cycle, particularly during due diligence, where such matter requires later consideration or action, including in connection with the drafting of representations and warranties.
- Section 363 Bankruptcy Sale Checklist: This is a checklist of important items to consider in connection with the sale of distressed company pursuant to Section 363 of the U.S. Bankruptcy Code.
- M&A Escrow Agreement Checklist: This tool identifies issues to be considered in the negotiation of an escrow arrangement to satisfy a seller’s post-closing obligations, including purchase price adjustments and indemnification claims.
- Representation and Warranty Insurance (“RWI”) Tool: This tool provides practical advice and guidance on securing and structuring representation and warranty insurance as a means to make a buyer whole for seller breaches. The tool helps you consider these key questions: What is covered? What is excluded from coverage? What is the process for putting RWI in place?
- Post-Closing Reference Checklist: This tool consists of a client alert letter and accompanying list of important post-closing action items and deadlines, including items related to the bringing of indemnification claims.
- Post-Acquisition Integration Checklist: While deal making is hard, integration is even harder. Oftentimes, the projected synergies and value to be realized from M&A are lost on integration. One leading contributing factor can be buyer’s failure to consider and plan how the acquired business is to be integrated into its own business after closing. This tool provides a list of questions and action items for a buyer to consider in developing and implementing a post-closing integration plan.
The Third Edition moves beyond M&A by adding four new tools developed by lawyers from around the globe who are members of the International Subcommittee of the M&A Committee of the Business Law Section. Joint ventures are complicated transactions involving sophisticated parties, and raise a number of issues in thorny areas including government, intellectual property, tax, employment law, and regulatory law. As such they are perfect candidates for LPM. The new joint venture tools leverage tools that were developed for M&A transactions, including a task checklist, a scoping tool, a drafting guide and a negotiating tool.
Now more than ever, the Guidebook serves as an indispensable tool not just for driving efficiency and client value, but also for training young lawyers and managing risk.
