Last updated on March 1, 2025.
This is a summary of the Hotshot course “Updating Disclosure Schedules: Market Trends,” in which ABA M&A Committee members John F. Clifford from McMillan LLP and Ann Beth Stebbins from Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates discuss market trends for disclosure schedules updates provisions, drawing on data from the ABA M&A Committee’s Private Target Deal Points Study. View the course here.
Updating Disclosure Schedules: Market Trends
- The 2023 ABA M&A Committee’s Private Target Deal Points Study looked at how often parties allow updates to a seller’s disclosure schedules between signing and closing.
- The study found that in 2022 and the first quarter of 2023:
- Updates were expressly permitted or required in 14% of deals;
- Updates were expressly prohibited in 5% of deals; and
- The remaining 81% of deals were silent on the point.
- The study found that in 2022 and the first quarter of 2023:
- Over the years, the number of deals allowing updates has been consistently less than half.
- 14% in 2022 to 2023;
- 24% in 2020 to 2021;
- 31% in 2018 to 2019; and
- 28% in 2016 to 2017.
- Of the deals that permitted or required updates in the latest study, there was a decrease in those that allowed updates for information occurring both pre- and post- signing, from 62% in the 2021 study to 60% in the 2023 study.
- The buyer had a right to close and seek indemnification for updated matters in 67% of the deals that permitted or required updates.
- This marks a significant decrease from the last study, where it was 90%.
- The buyer’s right to terminate the agreement was not affected by updated disclosure in 80% of the deals in the 2023 study.
- In 20% of the deals, the buyer could terminate because of the disclosure, but only within a specific time period.
The rest of the video includes interviews with ABA M&A Committee members John F. Clifford from McMillan LLP and Ann Beth Stebbins from Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates.
