Legal Liabilities in Mergers and Acquisitions

Due diligence is a crucial component of any M&A transaction. In this episode, Gina Cocking and Jeff Guylay discuss the second topic in our due diligence series--legal due diligence. Jeff is joined by featured guest, Will Turner, a partner at Steptoe & Johnson, to discuss lessons learned and pitfalls that sellers can avoid as they think about getting ready to go to market, from a legal due diligence perspective. Later in the episode, Gina is joined by our second featured guest, Rob Humble, Senior Vice President of Strategy and Corporate Development at IAS, who shares his insights as a buyer on legal issues that arise in diligence. This episode is one of four on M&A due diligence. Episodes 003 focuses on business due diligence, and later episodes will focus on accounting and technology diligence.

Show Notes:

Jeff Guylay talks about legal due diligence being a sub-set of the broader due diligence process and recaps why diligence is conducted – to thoroughly understand the company to best position it in the market and to prepare the company for buyer and investor diligence (00.38)

Gina Cocking talks about the different legal groups involved in a transaction, including corporate M&A attorneys, corporate contract attorneys, employment attorneys, litigation attorneys, regulatory attorneys, and tax attorneys (02:29)

Jeff and Gina discuss the importance of hiring a good law firm in a transaction (03:34)

Gina outlines what the law firms are reviewing during diligence, including contracts, formation documents, shareholder documentation, employment agreements, applications and licenses (04:42)

Jeff comments that the legal diligence process is like a house cleaning exercise. There are instances in which licensees or ways of doing business historically may not make sense going forward (06:16)

Gina talks about the importance of having attorneys review materials years before going to market. It is good business hygiene (09:04)

Jeff discusses the role of a financial advisor in the legal review. Financial advisors are not attorneys but will coordinate the assembly of information, generally via massive Excel trackers, and ultimately securely disseminate information. Over a thousand documents are collected during typical legal diligence, and all get captured in an electronic data room (09:20)

Gina discusses the importance of having a good legal tracker (11:15)

Jeff talks about how litigation is inevitable in the corporate world and how keeping track of the details of each incident is important as it demonstrates transparency and organization (12:54)

Gina talks about how legal issues may impact company valuation (14:16)

Gina and Jeff discuss how a business that litigates aggressively might be perceived negatively as some people shy away from folks that are quick to sue (14:52)

Jeff discusses background checks (15:43)

Will Turner, a partner at Steptoe & Johnson, joins the show and talks about lessons learned or pitfalls that sellers can avoid as they think about getting ready to go to market from a legal due diligence perspective. One important concept is to provide all information upfront to avoid surprises. The second is identifying who within your management and employee group is a source for valuable information about the company and including them in the process if possible (17:40)

Rob Humble, Senior Vice President of Strategy and Corporate Development at IAS, joins the show to share his thoughts as a buyer on legal issues that arise in diligence. For Bob, a big concern is the trend in legal activities (21:21)

Rob talks about how an ongoing legal situation with financial implications could very well have an impact on valuation (21:48)

Gina’s closing thoughts on today's discussion on legal diligence: The three key takeaways are, 1) it is never too early to get your attorney involved to prep for diligence; 2) legal issues will not necessarily kill the deal, but should be addressed early; and 3) sellers need to know where the bodies are buried and need to discuss the issues with their advisors upfront (22:35)

Featured guests bio and contact information:

Rob Humble

Email: rhumble@iasdirect.com

Rob Humble leads strategy and corporate development for IAS. Before coming to IAS, Rob held strategy and corporate development leadership roles with financial services firms NetSpend and Rent-A-Center. Prior to his time in financial services Rob held strategy, finance, and operations roles at Fortune 500 companies spanning the automotive, defense & aerospace, and chemical industries.

Rob earned his bachelor's degree in mechanical engineering from Washington U. in St. Louis, graduating magna cum laude. He also holds an MBA from Harvard Business School.

Rob lives in Austin, TX with his wife and two young kids. He enjoys hanging out with his family, distance running, binge-watching the hottest TV shows, watching Oklahoma Sooners football and indulging in random interests including knitting, furniture building, and home improvement.

Will Turner

Email: wturner@steptoe.com

Will Turner has more than two decades of experience in corporate and securities law, primarily with application to cryptocurrency, fund formation, investment transactions, and mergers and acquisitions. He also advises clients on matters involving capitalizations, project finance, restructurings and joint ventures. Will is well-versed in securities offerings, '40 Act work, and corporate governance matters. He also advises clients on distribution, sales, technology and financial services commercial agreements.

Will has represented a number of European companies and investors in their acquisitions, investments, commercial, and regulatory matters in the United States. He has led numerous fund and joint venture formations.

About the Hosts:

Gina Cocking serves as the Chief Executive Officer of Colonnade Advisors. Gina began her career in investment banking at Kidder Peabody, was an analyst at Madison Dearborn Partners and an associate at J.P. Morgan & Co. She was the Chief Financial Officer of Cobalt Finance, a specialty finance company. She went on to become the Chief Financial Officer of Healthcare Laundry Systems, a private-equity backed company for which she oversaw the successful sale to a strategic acquirer. Gina served as the Line of Business CFO – Consumer Banking and Lending at Discover Financial Services. Gina serves on the Board of Directors of CIB Marine Bancshares, Inc. Gina received her BA in Economics and an MBA from the University of Chicago.

Jeff Guylay is a Managing Director of Colonnade Advisors. Prior to joining Colonnade in 2000, Jeff was an investment banker at J.P. Morgan in the firm’s Mergers & Acquisitions and Fixed Income Capital Markets groups in New York. He also spent several years in J.P. Morgan’s Chicago office. Jeff has over 20 years of M&A and investment banking experience and has served as lead execution partner on over 25 M&A and financing transactions at Colonnade. Jeff received an MBA from Northwestern University’s Kellogg Graduate School of Management and a Master of Engineering Management from the University’s McCormick School of Engineering. Jeff received a BA from Dartmouth College and a BE from Dartmouth’s Thayer School of Engineering.

About the Show:

Get the insiders’ take on mergers and acquisitions. M&A investment bankers Gina Cocking and Jeff Guylay of Colonnade Advisors discuss the technical aspects of and tactics used in middle market deals. This podcast offers actionable advice and strategies for selling your company and is aimed at owners of middle market companies in the financial services and business services sectors. Middle market companies are generally valued between $20 million and $500 million.