What is your thought processing when marking up disclosure schedules on the buy side? I recognize that you don’t want to draft the schedules for them, but at the same time they need to be complete for various reasons. I’m thinking things like missing contracts, consents, litigation, etc.

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It also depends on the sophistication of seller counsel. Honestly when it’s a relatively unsophisticated seller counsel representing a mom and pop shop, I’ve been on the buy side updating the disclosure schedules just to get the deal correctly papered.

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I’ve been seller’s counsel on small deals before and we expect buyer’s counsel to help move things along by papering properly when we don’t have the bandwidth. And we rarely had the bandwidth. Buyer’s counsel usually has an extra 2-3 attorneys, not to mention support staff.

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I fill them in as needed and if seller counsel disagrees, we discuss. Everything else is a waste of time.

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Elaborate on “as needed.”

If you are getting a RWI policy, you might as well make sure to comment/disclose things you identify in your DD memo. The RWI insurer will expect for those things to be disclosed if they aren’t initially.

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Typically use comments and/or an email with a list of missing items. "thanks for providing the material contracts, we note that XYZ are missing, please provide/complete at your earliest convenience"

If the goal is accurate disclosure, then help correct any deficiencies. Let’s face it - you would want someone to do the same for you!

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