I have also been in this position (though on the other side) for an IP asset purchase deal with six figure lawyer fees. Obviously a lot more care went into the DD there than could possibly be justified for a distress sale of some rights related to a 20 year old game.
Basically every contract we had with anyone, and various other bits of paper were combed through. Things were discovered or deemed missing that stalled the closing for weeks, even though to me they seemed like incredibly minor things. (Look, we have two other kinds of paper showing that this person assigned all work products to the company. No, we didn’t do any separate special case patent assignment paperwork at the time.)
But even though tons of time from both sides was spent in defusing and investigating those issues, contacting the counterparties of those contracts for their interpretation was not an option anyone seriously suggested.
On top of that, in this case the people being contacted might well (for all Stardock knows) be direct competitors for buying those rights. It’s a ludicrous idea.
Absolutely, but not by contacting third parties. They should have e.g. noted the termination conditions on all contracts, and asked for documentation showing they were still valid.
Or as another example, the contract + correspondence with GOG should have surfaced at some point in the DD. Atari should have produced that document with no prompting, but clearly they weren’t even a marginally professional organization. Even so, financial records should have given a breadcrumb trail to this contract existing, and have people check their email inboxes and not just the filing cabinet.
So you’re correct in that it wasn’t a well executed DD process. I just disagree about what they should have done instead.
Sure, but that doesn’t matter. They clearly had no interest in setting the record straight, why would they have been any more helpful during DD?