This article explores a critical legal risk in M&A transactions: the “Stale Schedule” problem. Using the 2021 case WPP Group USA, Inc. v. RB/TDM Invs., LLC, it explains how deal delays can turn accurate financial projections into a breach of contract lawsuit. It is essential reading for sellers, buyers, and advisors in the lower middle market who want to understand how “deal slippage” impacts disclosure schedules and learn actionable pre-closing legal fixes to prevent liability.
M&A Stories
December 5, 2025
The simultaneous sign-and-close is the operational gold standard in the lower middle market. Ideally, parties execute the purchase agreement and wire funds on the same day, eliminating the uncertainty of a gap period. Yet, as experienced dealmakers know, closing dates are rarely static. A deal targeted for October 15 may slide to November 17 due to financing hiccups or third-party consent delays. In the fatigue of that delay, a dangerous administrative convenience often takes hold: the deal team recycles signature pages and disclosure schedules finalized weeks earlier. A 2021 decision from the New York Supreme Court, WPP Group USA, Inc. v. RB/TDM Invs., LLC, illustrates why this practice exposes sellers to significant liability.
The dispute in WPP involved the sale of a private company to a large strategic buyer. During negotiations, the sellers provided a disclosure schedule containing the company’s budget and profit projections for the remainder of the year. The sellers represented that these figures were prepared in good faith and consistent with past practice. The document was generated and clearly date-stamped October 10. While the deal was signed shortly thereafter, the transaction did not legally close until November 17. During that five-week interim, the company’s internal financial outlook deteriorated, rendering the October 10 projections unattainable.
Following the closing, the buyer sued for breach of contract, alleging the projections were inaccurate as of the closing date. The sellers moved to dismiss, arguing that the conspicuous “October 10” date stamp on the schedule served as sufficient warning that the data was fresh only as of that specific day. The court rejected this defense and denied the motion to dismiss. The judge emphasized the contract’s standard “bring-down” provision, which required all representations and warranties to be true and correct as of the Closing Date. A simple date in a document footer, the court ruled, cannot override an explicit contractual obligation to provide accurate information at closing. By failing to update the schedule or explicitly carve it out of the bring-down requirement, the sellers remained liable for the discrepancy.
Although WPP involved a formal deferred closing, the legal principle is acutely relevant for lower middle market sellers attempting a simultaneous close that slips. “Deal slippage” creates a hidden risk of stale data. A seller might finalize disclosure schedules—including inventory lists, active contracts, and financial projections—at the beginning of the month. If the closing is delayed by several weeks, those schedules effectively expire. By signing the agreement a month later without updating the attachments, the seller unwittingly warrants that the old data remains accurate at the moment of signing. If a key customer has cancelled or inventory has dropped during the delay, the seller is in immediate breach.
This risk can be managed through precise drafting and operational discipline. The most effective legal fix is the inclusion of a “speaking date” provision in the introduction to the disclosure schedules. Counsel should insert language stating that specific time-sensitive schedules speak only as of the date of the document, rather than the Closing Date. This creates a contractual shield that overrides the general bring-down requirement for those specific items. Alternatively, sellers must exercise rigorous operational discipline. If a closing date slips by more than a few days, the deal team must force a refresh of the data. While presenting updated numbers at the eleventh hour is uncomfortable, it is preferable to defending a breach of contract lawsuit based on stale information.
See: WPP Group USA, Inc. v. RB/TDM Invs., LLC, Docket No. 656825/2019, Motion Seq. Nos. 003, 004, Supreme Court, New York County (January 15, 2021).
Thank you for reading this blog. If you have any questions, insights, or if you’d like to engage in a more detailed discussion on this matter, I invite you to reach out directly.
Feel free to send me an email. I value thoughtful discussions and am always open to connecting with business owners, management, as well as professionals who share an interest in the complexities of M&A law in lower middle market private target deals.
By John McCauley: I write about recent problems of buyers and sellers in lower middle market private target deals.
Email: jmccauley@mk-law.com
Profile: http://www.martindale.com/John-B-McCauley/176725-lawyer.htm
Telephone: 714 273-6291
Check out my books: Buying Established Business Assets: A Guide for Owners, https://www.amazon.com/dp/B09TJQ5CL5
and Advisors and Selling Established Business Assets: A Guide for Owners and Advisors, https://www.amazon.com/dp/B0BPTLZNRM
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