What is Due Diligence?
Due diligence relates to an investigation or review of all the facts and details about a specific matter. The term applies more commonly within the business context where the buyer undertakes a complete and appropriate view of all facts about an asset before completing the purchase.
Within the financial context, due diligence may refer to examining all records about a specific deal before entering into a proposed transaction. This exercise of care has become an essential principle in governing modern-day interactions.
In most cases, the burden of due diligence is with the buyer. However, the two parties may agree to share the costs depending on the underlying arrangements. Even then, the seller also has a duty to ensure full disclosure.
What is Due Diligence in Law?
Due diligence is a legal obligation in some circumstances. For example, the events of the stock market crash 1929 necessitated the need to investigate material facts as a legal requirement in specific contexts. In addition, in 1933, the Securities Act came into operation, effectively making due diligence a legal obligation to enhance transparency.
The legal changes meant that security brokers and dealers are entirely liable for full disclosure of any information related to the instruments they may be selling. Today, the law requires that companies undergo complete audits before any securities are auctioned. The audit process seeks to assure buyers that the instruments are healthy.
The application of due diligence in law attempts to protect and minimize the risk of risky dealings. Full disclosure is a critical foundation of due diligence. In addition, the process allows both parties to identify red flags before entering any contractual agreements.
Types of Due Diligence
Due diligence may take different types and forms. It all depends on the area of operation a party operates in at a given time. Here're some common types of due diligence.
By obtaining the necessary legal opinions and assistance from qualified lawyers, a company can maneuver the different types of due diligence that exist today.
Financial Due Diligence
Financial due diligence is among the most important due diligence in the current world. Before proceeding with any transaction, firms should understand the financial information, stability, and risks.
Financial due diligence seeks to investigate the accuracy of all the financial records presented in the confidentiality information memorandum or (CIM). For example, one may consider financial statements, company forecasts, and projections in a financial audit.
It's also important to consider inventory schedules when conducting financial due diligence. Financial due diligence is perhaps the most common form of care exercise today.
Legal Due Diligence
Legal due diligence is the other common form of due consideration today. Legal due diligence assesses whether a target firm has any underlying issues of legal subservience. It further attempts to understand whether the company may be embroiled in any legal issues.
The focus will be on the contracts and compliance doctrines during legal due diligence. However, the legal due diligence process may also focus on other important papers such as corporate documents and board meeting minutes. It's important to involve a lawyer during such an investigation to help you confirm facts.
Human Resources Due Diligence
Human resource due diligence is an essential process for any organization. This type of due diligence focuses on the most asset within the organization, which is the employee. Therefore, when undertaking human resources due diligence, the most important considerations include a company's organizational structure.
The other key focus, in this case, is the compensation and benefits inherent within the company's system. The investigation may also pay specific attention to existing union contracts between a company and other unions.
Due diligence at the human resource level also considers any existing harassment and wrongful terminations within a company. Such factors that may present legal consequences for a firm should be top of the agenda when conducting human resources due diligence.
Operational Due Diligence
When undertaking operational due diligence, the focus should be more on the company's operations. This process aims to identify all the existing issues pertaining to the company's operations. Such investigations may focus more on technology, assets, and existing facilities.
The goal of operational due diligence should be to unearth any hidden risks in the operations of a business. Further, operational due diligence focuses on unearthing potential liabilities in the business's operations.
Environmental Due Diligence
Every company interacts with the external environment in one way or another. As such, environmental due diligence seeks to ensure that these companies undertake the process of external due diligence within the confined set out environmental regulation procedures.
Some of the common areas of focus during environmental due diligence include the company's facilities, processes, and equipment. In addition, the goal is to understand whether the company might have infringed on any existing regulations governing environmental protection.
The primary purpose of conducting this review is to negate any risk of penalties in the present and the future. Companies that work environmental due diligence in advance can easily avoid the legal backlash of pollution.
Common areas of focus during environmental due diligence include the list of environmental permits and licenses. Every organization should have these permits and licenses to confirm their compliance. In addition, a close check of all the correspondences and notices from local and federal regulatory agencies is also necessary at this point.
Business Due Diligence
Business due diligence involves closely investigating all the business transactions and strategies adopted by a business and their impact on the bottom line. In addition, the examination may consider some important processes within the business, such as mergers, acquisitions, or privatization.
Buyers opt for either self-due diligence or reverse due diligence to capture all the material facts about the company beforehand. It's important to have a lawyer by your side during the process.
Acquisition lawyers, for instance, provide adequate information and legal support when dealing with matters such as asset purchase agreements.
Even when the issue is a pending acquisition with complex paperwork, you can still trust lawyers with the business purchase agreement.
Due Diligence Checklist
It's important to note that due diligence is a process with many moving parts. Therefore, it takes a greater focus on the due diligence checklist to determine the priority areas and the steps to help you get the best results.
The good thing is that today, the internet provides a wide range of checklists in the form of templates that parties can utilize to undertake comprehensive reviews effectively.
A checklist helps parties tick all the necessary moving parts during the review process. However, this also means consuming and analyzing loads of important information.
Examples of Due Diligence
There are varying examples that indicate due diligence. Here're some common and not-so-common examples.
- A thorough investigation of a company to determine whether it's a sound investment before commencing a merger is a practical example of due diligence.
- A consumer reviewing all the online reviews about a product before buying is another common example of due diligence.
- When an underwriter audits an issuer's business and operations before selling it, this is also a practical example of due diligence.
- In the case of human resources, an employer may undertake due diligence by initiating prior contact with the referees to ensure that they apt candidates.
- Conducting a comprehensive review of the property before purchasing is also an excellent example of due diligence.
Get Help with Due Diligence
Due diligence is an important yet very tasking process. Whether you are undertaking business purchase agreement pricing or asset purchase, getting consulting agreement review is extremely important.
We have a team of seasoned lawyers who can handle your asset purchase agreements and draft your letter of intent. Contact us today for exceptional legal support.