As investment bankers and their lawyers pore over the details of a potential corporate merger, a new and troubling issue has emerged that could affect the terms of the deal, or even derail it. Cyber risk is now a top agenda item, not only for deal makers but for shareholders, regulators and insurance companies.
While assumption of risk is nothing new when acquiring a company, assuming cyber risk raises a whole new set of concerns that must be addressed early in the M&A process. Specific industries, such as healthcare, financial services and retail might require detailed attention to data risk as it applies to HIPAA (Health Insurance Portability and Accountability Act) standards, financial regulation and PCI (payment card industry) compliance. A thorough analysis of the target company’s network systems needs to be part of the due diligence process and may require the services of a network assessment vendor. Insufficient cyber security and the need for significant remediation of these networks could lead to unforeseen expense and may be a consideration in final negotiations of the target price.
Understanding the evolving face of hackers should also be a consideration. Hackers have traditionally been motivated solely by financial gain. However, as evidenced by recent cyber attacks against Sony, Ashley Madison and the Office of Personnel Management, hackers may be driven by political agendas or moral outrage or may be part of state-sponsored cyber espionage. If the acquired company comes with intellectual property or produces controversial products or services, it could be at higher risk of attack.
Regulatory Issues Affecting M&A
Increased regulatory risk for the acquiring company should also be of concern. Regulators in the U.S. and around the world have had a laser focus on privacy matters and have made their authority known in two recent court decisions.
- On Aug. 24, 2015, a decision was made that will have profound impact on how the CIO, compliance officers, cyber security officials and others view what is an acceptable level of cyber security. In Federal Trade Commission v. Wyndham Worldwide Corp. et al. No. 14-3514, slip op. at 47 (3rd Cir. Aug. 24, 2015), the FTC alleged Wyndham failed to secure customers’ sensitive data in three separate incidents. As a result, 619,000 customer records were exposed, leading to $10.6 million in fraudulent charges. The Third Circuit Appeals Court affirmed the FTC’s authority to regulate cyber security standards under the “unfair practices” of the Federal Trade Commission Act. Therefore, key stakeholders in the acquiring and target companies need to come to terms regarding acceptable levels of cyber security before the deal is closed.
- On Oct. 5, 2015, the European Union’s Court of Justice declared the U.S. and E.U. Safe Harbor framework invalid. The ruling abolishes an agreement that once allowed U.S. companies to move E.U. residents’ digital data from the E.U. to the U.S., and it will affect approximately 4,000 companies. For some companies, the ruling could drastically alter their business models. Therefore, an acquisition of any of these companies will require careful consideration as to how the company collects and uses the online information of the residents in the 28 countries that make up the E.U. An acquiring company could face regulatory scrutiny and costly litigation for noncompliance of their newly acquired entity.
Transferring Your Cyber Risk
One method to provide protection for the acquiring company would be to enter into a cyber security indemnity agreement with the targeted company. The agreement can exist for a period after closing, but there should be an expectation that—after a specified length of time long enough to remediate and integrate the target company’s IT networks—the agreement will expire. The liability protections should be as broad as possible and should include all directors and officers, who are often named in derivative lawsuits in the aftermath of a data breach. The agreement should address the many different actions that might be required after an unauthorized network intrusion of the target company. Costs related to defense attorneys, IT forensics firms, credit monitoring vendors, call centers, public relations companies and settlements should be anticipated. The firms to be hired, the rates they will charge and the terms of reimbursement to the acquiring company should be outlined in the agreement.
Many businesses have also turned to cyber insurance as a means to transfer cyber risk. In fact, the cyber insurance industry has grown to $2 billion in written premiums, with some expecting it to double by 2020. Cyber policies typically cover a named insured and any subsidiaries at the time of policy inception. Parties in a merger should be aware that M&A activity will likely have an impact on existing cyber insurance policies and often require engagement with insurance companies. When an insured makes an acquisition during the policy term, the insurance carrier often requires notification of the transaction pursuant to policy terms specifically outlined in the policy. Because cyber insurance policies are written on manuscript forms, there is no one standard notification requirement, and compliance terms will vary from insurance company to insurance company. If the target company has revenue or assets over a certain threshold, the named insured may be required to:
- Provide written notice to the insurance carrier before closing;
- Include detailed information of the newly acquired entity;
- Obtain the insurer’s written consent for coverage under the policy;
- Agree to pay additional premium;
- Be subject to additional policy terms.
Cyber risk can have a huge impact on any M&A activity. Legal liability and the means to transfer it should be a top priority during the transaction. There likely will be a big impact on existing insurance coverage. All parties need to focus on their rights and responsibilities and must engage the right experts to maximize protections in the process.