Due Diligence Rules of Engagement

By Joe Aberger

Until the deal closes, the two companies are still fully independent competitors — full stop — and every single person involved in integration planning needs to understand exactly what that means in practice, not in theory. This deck draws a hard, unambiguous line around what is and isn't permissible during the pre-close period, and it doesn't leave room for interpretation, good intentions, or the well-meaning improvisation that gets people and companies into serious legal trouble. 

No joint commercial decisions of any kind. No coordinating on pricing, customer strategy, market positioning, or competitive responses. No influencing the other party's business decisions, product development initiatives, hiring plans, or customer outreach activities. No early integration of any operations, systems, workflows, or business processes before legal completion of the transaction — regardless of how much easier it would make the post-close integration and regardless of how confident everyone is that the deal will close on schedule. 

Prohibited behaviors are spelled out in specific, concrete terms that leave no room for "I didn't realize that was off-limits": no joint participation in trade associations or industry forums, no representations that the two companies have common ownership before they legally do, no agreements or suggestions that either company refrain from pursuing business activities or initiatives, and no actions — direct or indirect — that could be construed as coordinating commercial behavior between two entities that are still legally required to compete independently. Competitively sensitive information is subject to the strictest controls: it can only be shared with Clean Team members who have been formally designated and briefed on their obligations, and even then only to the extent strictly and demonstrably necessary for integration planning activities that genuinely cannot be completed after close. 

The data harvesting process is covered comprehensively — how to submit data requests through the proper channel, how information gets classified into one of three categories (restricted information, competitively sensitive information, or general party information that can be shared with all integration team members), and how approved data flows appropriately into the designated folders of the Virtual Data Room where access is controlled and audited. Document creation guidance gets its own section, because the written record of integration planning creates real legal exposure: integration materials may be reviewed by regulators, third parties, or opposing counsel who will read them without the context in which they were written, and every email and document needs to be drafted with that reality firmly in mind. 

The rules here aren't bureaucratic obstacles designed to slow down integration planning. They're what keeps the deal on track, keeps both companies out of antitrust enforcement actions, and protects every individual involved from personal legal exposure that can follow them long after the integration is complete. Follow them without exception, without shortcuts, and without assuming that a violation too small to matter won't become the detail that defines how this deal is remembered.