The Role of Crisis Management In Pre-Investment/Acquisition Due Diligence

By Jonathan Bernstein

DUE DILIGENCE: “The process of investigation, performed by investors, into the details of a potential investment, such as an examination of operations and management and the verification of material facts.” (Source: InvestorWords.com)

The title of this article may surprise some readers. What possible role, you might ask, can crisis management play in the complex interaction between potential investors or buyers and the organizations that are the focus of their due diligence investigations?

In my experience, those who are in “acquisition mode” — be they venture capitalists, expanding companies, individual or group investors — do not garner certain types of information that could be critical to making and protecting their investment or purchase. For this article, I’m referring to buyers, those who are actually acquiring a business, and investors making significant investments.

The traditional due diligence process usually involves some formal background checking, discussions with references, and probably a thorough Internet search. What it often doesn’t give buyers/investors is information critical to (a) the reputations of all involved in the potential transaction and (b) the potential acquisition/investment target’s ability to prevent and survive crises. EVERY organization is going to have crises; if they can prevent some, and get through others quickly and effectively, then the acquisition/investment will be far better protected.

Here are some of the categories of information that can be provided via a combination of techniques generally associated with (a) a crisis management vulnerability audit and (b) investigative journalism.

  • What reputation does the acquisition/investment target have with all its stakeholders, internal and external? How does that compare with what the company says about itself? Stakeholders would include everyone from employees to customers, from board members to journalists.
  • For acquisitions, what reputation does the acquirer have with its stakeholders and with the stakeholders of the acquisition target? That reputation will very much impact the reaction of all stakeholders to news of a possible or actual acquisition.
  • How are all stakeholders affected by the acquisition or major investment going to react to it? Positively? Negatively? What can be done in advance — understanding that news of the such transactions cannot be released until appropriate — to optimize all stakeholders’ response to the news?
  • Has the acquisition/investment target done any crisis preparedness — vulnerability assessment, planning and training — that would allow it to better survive inevitable crises? Not just its ability to manage any distress caused by the initial business transaction, but the business’ ability to survive all crises to which it is vulnerable? If any reader has not previously received a copy of my free “Crisis Preparedness Checklist,” request it by email tojonathan@bernsteincrisismanagement.com. It will prove useful for a quick preliminary evaluation of any organization’s readiness for crises.

To the extent the situation permits, in an often-sensitive pre-acquisition/investment environment, stakeholders are contacted directly. But there are also many indirect sources of published/public record information that can be identified through comprehensive, Internet-based research (requiring a high level of expertise, not simply a “Google search”), as well as indirect sources of information on the opinions and beliefs of stakeholders. Collected and analyzed, they can provide investors with a sometimes eye-opening glimpse at challenges and opportunities they would not capture through traditional due diligence examinations.

I’ve had the opportunity to work with attorney Mike Lappin, a partner at Quarles & Brady LLP (https://www.quarles.com) specializing in mergers and acquisitions, on a couple of transactions of this type. We both found that combining legal and crisis management capabilities has brought substantial added value to the entire transaction, from due diligence to “done deal.” Mike had this to say about due diligence:

“Due diligence investigations often focus on financial and legal matters as a buyer attempts to rather quickly understand the target’s business and evaluate the possible risks and rewards from the transaction. However, other factors, such as how the buyer is perceived by the target’s employees or how prepared the target is to deal with unexpected events, can have a significant effect on whether a transaction is a success, and these factors often do not receive the same attention in the due diligence process.”

In the new world of corporate governance regulations and general distrust of investment-related wheeling and dealing, buyers and investors can’t afford to be without ALL possible critical intelligence. Using crisis management tactics pre-investment or pre-acquisition can provide that information.

Editor’s Note: This is one of periodic series of articles featuring both PR and legal perspectives on an important issue.

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