Recently the American Bar Association Section of International Law in partnership with the International Association of Young Lawyers (AIJA) held a conference entitled “Successful Transactions – What In-House Counsel Expect from their M&A and Antitrust Attorneys.” The conference provided parallel tracks in M&A and Antitrust with the focus of providing attendees a better understanding of issues in-house counsel face during an M&A transaction.
The opening session focused on the importance of project management. The panel consisted of outside counsel, in-house counsel and a consultant. The session started with the notion that clients find that outside counsel generally fall short on project management during M&A transactions. According to the panel, the key to project management is to manage and set realistic client expectations at the outset of any transaction. To provide clients with accurate expectations, outside counsel recommend having a kick-off meeting with the client to discuss the transaction’s structure, the applicable jurisdictions, the regulatory environments and the competitive nature of the industry, and to assess the client’s resources and risk tolerance. The antitrust attorneys also stressed the importance of involving antitrust counsel at the beginning of a transaction. Involving antitrust attorneys early can help most significantly with timing and expense. The most significant example of this is a second request. If antitrust counsel knows the facts of the transaction early he or she can assess the likelihood of the client receiving a second request which can affect cost, timing and ultimately a client’s willingness to continue pursuing the transaction.
To continue to manage the transaction the panel recommended that the lead M&A and antitrust counsel facilitate the following logistical tasks – coordinate efforts to gather and distribute information, set priorities and track work streams, identify and report back to the client on key issues and reevaluate priorities and strategy with clients as the matter develops.
In conclusion, the panel advised attendees that the best way to avoid project management failure is to be organized and communicate with the client and co-counsel. Under that framework the panel recommended that attorneys clearly define the scope of work, establish clear priorities, track the timeline and budget of the transaction, participate in transparent project planning, provide clear and timely reports, and be prepared for forward- looking legal issues like gun-jumping and other transaction-related issues.