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Open Source Due Diligence in M&A: Open Source Software Identification, Tracking, Approval for Use, Risk Allocation

Recording of a 90-minute premium CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, August 30, 2018

Recorded event now available

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This CLE course will guide counsel in conducting open source due diligence in merger and acquisition transactions. The panelist will outline best practices for determining how open source software is identified, tracked and approved for use, and leveraging the diligence results in negotiating pricing and other deal terms.


Software is a critical issue in most mergers and acquisitions across industries. As a result, businesses must ensure effective open source due diligence is carried out in M&A transactions.

Today, most targets use third-party open source software, and many contribute to open source projects as well. However, many target companies do not properly track use of open source code, and the M&A transaction is often the first opportunity to perform a thorough audit of a target’s open source bill of materials.

Acquiring companies should carefully evaluate the target company’s open source position and determine how it identifies and tracks open source software. Acquiring companies should also understand what software of its own a target company has made freely available to properly value the target’s company or assets.

Listen as Heather Meeker, Partner at O’Melveny & Myers LLP, discusses the steps involved in the diligence process; challenges and concerns of the acquirers and investors; and risk allocation, including reps and warranties, disclosures, and closing conditions and covenants.



  1. Due diligence of software code
    1. Target’s open source processes
    2. Open source bill of materials and audits
    3. Target’s contribution to third-party open source software projects, as well as target’s own code releases
  2. Interaction of open source reps and warranties with general IP reps and warranties
  3. Open source disclosures and audits
  4. Typical problems arising during due diligence and how to resolve them
  5. Leveraging due diligence results in deal negotiations


The panelist will review these and other noteworthy issues:

  • What are the best approaches for counsel to identify and track the target’s use of open source during due diligence?
  • If the target is not in compliance with the terms of an open source license, what steps should the acquiring company take to mitigate the risk?
  • How can counsel leverage information from the due diligence process in deal negotiations?


Meeker, Heather
Heather Meeker

O’Melveny & Myers

Ms. Meeker practices in the firm’s Mergers and Acquisitions practice group and is a Founding Portfolio Partner at...  |  Read More

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