The pace of health care transactions is robust, purchase price multiples are increasing, and many health care businesses are taking advantage of a sellers’ market.  Recently, our clients have increasingly turned to representation and warranty (“R&W”) insurance, finding a market more amenable to the nuances of health care deals than in the past. In the right deal, R&W insurance can limit risk to both seller and buyer and increase value to a seller by allowing for “walk-away” or “naked” deals.  R&W insurance may also be used as a tool by a buyer to increase the attractiveness of its offer in a competitive environment.

The acquisition of a company or its assets is typically governed by a purchase agreement and related transaction documents. The purchase agreement will contain various representations and warranties by the seller regarding a variety of matters, such as the seller’s assets and financial performance (including growth projections), and the accuracy of its billings for services, and its compliance with law (including healthcare laws and regulations). The buyer must do its own diligence before consummating a transaction, but in connection with such diligence it also relies on the seller’s representations and warranties. Following the closing of the transaction, if it is determined that one of the seller’s representations was incorrect (i.e., breached) and the buyer suffers damages as a result, the buyer usually has a right to compensation pursuant to the purchase agreement and related transaction documents.  Frequently, however, those agreements limit the amount that the buyer may recover, either in total, or by using various formulas, deductibles, and/or caps.   Even in the absence of these limits, if the cash purchase price has been distributed by a seller to its creditors and owners, a buyer seeking recovery may face a complex and difficult process.

The most common way to protect a buyer from potential losses that may be difficult to recover using simple indemnification is to escrow a portion of the purchase price from which claims may be paid. The amount of the escrow and how long it must be held are important negotiated terms in the purchase agreement. At the conclusion of the agreed-upon escrow period, the funds remaining in the escrow account will be released to the seller. Naturally, a buyer will want the most protection (and a large escrow amount), while a seller will want to retain the largest portion of the purchase price (and a small escrow amount). That’s where R&W insurance comes in.

R&W insurance shifts the risk of liability for breaches of representations and warranties from the seller to the insurance company in order to provide the parties to the transaction with greater protection post-closing. By utilizing R&W insurance, a buyer will be more comfortable placing a smaller portion (or even none) of the purchase price in escrow, resulting in a larger portion of the purchase price being paid to the seller at closing. In the event a breach of covered representations and warranties by the seller is discovered post-closing, the buyer may look to the insurance company rather than to the escrow (and therefore to the seller) to be made whole.

R&W insurance is an interesting way to shift the risk involved in a transaction and to provide a buyer with greater certainty of collection in the event of a breach. Further, making R&W insurance a component of a bid may provide a buyer a way to favorably distinguish itself from other bidders in a typical “sale process” run by investment bankers (or in auction-style sale). There are many other considerations, however, when deciding whether to use R&W insurance in lieu of the traditional escrow model. Such considerations include, among others:

• The size of the policy needed for the transaction, and whether the resulting cost of the policy makes good business sense. The size of a policy can range significantly, in theory covering losses up to the full purchase price, which will impact the cost of the insurance.

• Whether, and the extent to which, the buyer wants the seller to have “skin in the game” post-closing (i.e., in the form of an escrow), potentially making R&W insurance less desirable.

• Which representations and warranties the policy excludes. If significant claims are excluded (e.g., Medicare claims, HIPAA violations, or specific matters already under government investigation or subject to litigation), there may be a weaker business case for buying R&W insurance.

• Who will pay for the R&W insurance (buyer? seller? split?).

• Some healthcare deals are harder to insure for representations and warranties relating to billing and coding compliance, such as providers with a higher percentage of government payor reimbursement and a greater number of “high-end” CPT codes.

• The policy’s requirements for a buyer to make (and collect) a claim under the policy. For example, does the policy contain a materiality requirement?  Are the policy requirements consistent with the term of the purchase agreement?

Buyers and sellers should be aware of the existence of R&W insurance, as well as the above considerations, when analyzing and negotiating transactions. It may provide a valuable alternative to the traditional indemnification escrow model.