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Yogi and Casey and Due Diligence

BY Laurence S. Lese
August 27, 2008

Those of us who are baseball fans are mesmerized by the statements of those legendary personalities, Yogi Berra and Casey Stengel, who remain icons in the lore of baseball. As attorneys, little did we realize that Yogi and Casey, in making their baseball remarks, were actually intending to guide us through the due diligence process that counsel deals with on a regular basis. The following examples of “Yogi-isms” and “Stengel-ese” bear testimony to our reverence for Yogi and Casey and to give them proper accolades for enhancing the due diligence process. In effect, what Yogi and Casey are preaching, and the lesson we learn from them, are that throughout the due diligence examination and process, the team of due diligence lawyers must choose and consider the documents carefully, understand the relevant law and communicate effectively.

If You Come to a Fork in the Road, Take It (Yogi)

Management is an integral part of the due diligence examination. Its major job is to communicate with counsel, make relevant documents readily available to counsel and alert counsel to the material documents. After all, the due diligence process is predicated upon providing full disclosure to either the investing public in the case of an IPO or other securities offering or in the case of an acquisition to the company which is making the subject asset purchase. Therefore, many corporate executives, faced with the difficult decision to disclose a seeming securities violation, or to try to resolve the problem internally without talking to SEC or to due diligence counsel for that matter, are going to discover a difficult fork in the road indeed, as Yogi suggests.

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