Tag Archives: m&a

Cyber’s Surprising Importance for M&A

Although many people think of cyber insurance when confronted with a data breach, cyber insurance may not be quite so top of mind in the context of corporate mergers and acquisitions. Cyber insurance should be, because policies typically contain provisions that are directly affected by such transactions. Enterprises should take a close look at their cyber insurance policy provisions early on in the deal-making process so that coverage for the affected enterprises can be maximized.

The focus on cyber should be especially acute now, both because M&A activity continues to rise and because the importance of cyber coverage is surging on the heels of recent, headline-making data breaches.

Cyber insurance policies, like most other policies, typically provide coverage to the named insured identified in the policy, as well as to any subsidiary of the named insured that was created by the date the policy took effect. Carriers generally ask enterprises to identify all such subsidiaries during the application process.

Although disclosed subsidiaries may generally be considered “insureds” at the time cyber policies are issued, cyber policies may contain provisions that specify the steps the insured must take to obtain coverage for subsidiaries acquired or created, or for entities involved in mergers or consolidations.

Insureds that are considering mergers or acquisitions should ensure compliance by carefully reviewing their cyber insurance policies early in the transaction process. Relevant provisions might be found in various places in cyber policies, including within the policy’s conditions, definitions and exclusions.

Mergers and newly acquired or created subsidiaries

The steps an insured must take to secure coverage for a newly acquired subsidiary vary from policy to policy and may depend on the financials of the subsidiary. For example, under one cyber policy, if the acquired entity has revenue greater than 10% of the named insured’s total annual revenue, the named insured must: provide written notice before the acquisition, obtain the insurer’s written consent and agree to pay any additional premium required by the insurer.

Another insurer requires an Insured that merges with, acquires or creates an entity with assets exceeding 10% of the total assets of the insured to provide full details of the transaction as soon as practicable The insurer is entitled to impose additional terms, conditions and premiums, at its sole discretion.

Under the terms of a different policy, if the named insured acquires or creates another organization in which the named insured has an ownership interest of greater than 50%, the organization is covered for insured events that take place after the date of acquisition or creation, but only if the named insured provided notice to the insurer no later than 60 days after the effective date of the acquisition of creation, along with any information the insurer should require. The insured may be exempted from that process if, among other things, the new subsidiary’s gross revenues are 10% or less than those of the named insured.

Relevant terms are implicated under another cyber policy if the insured acquires or creates an entity that becomes a subsidiary, acquires an entity by merger or purchases assets or assumes liabilities of an entity without acquiring the entity. If the total assets of the acquired or created entity, or the combined total amount of the purchased assets or assumed liabilities, are less than 30% of the consolidated assets of the insured, the new entity may be entitled to certain coverages under the policy if the named insured provides written notice as soon as practicable, but in no event later than 60 days after the effective date of the transaction. The named insured will have to provide any requested information and may be subject to an increased premium.

A different insurer requires the named insured to provide notice of a newly formed or acquired subsidiary within 60 days of the transaction if the named insured has more than 50% of the legal or beneficial interest of the entity. If, however, the total assets or total revenues of the new entity exceed 15% of the total assets or revenues of the named insured, the named insured must provide the “full particulars” of the new entity, and the insurer must agree in writing to provide coverage. The insurer may charge an increased premium and amend policy terms.

Divested entities and changes in ownership

Provisions of cyber policies also may be affected by changes affecting entities that initially are covered under the policy. For example, policies may provide that if the named insured’s legal or beneficial interest in a subsidiary becomes less than 50%, the entity will no longer qualify as a subsidiary under the policy and will lose coverage.

Cyber policies also may contain provisions that will be triggered in the event of a takeover of the named insured.

Conclusion

Corporate transactions may have important effects on the coverage provided under a cyber insurance policy. Because there are no standard-form cyber policies, the provisions that might be implicated by any such transaction, including important notice requirements, will vary from policy to policy.  Entities should carefully review their coverage at the very outset of the deal-making process to ensure that they full understand their rights and obligations and comply with all policy provisions so that coverage can be maximized.

Six Key Insurance Business Impacts From Analytics

Recently, I had the privilege of serving as chairman of the inaugural Insurance for Analytics USA conference in Chicago, which was very well organized by Data Driven Business, part of FC Business Intelligence. I am convinced that analytics is not only one of the most valuable and promising technology disciplines to ever find its way into the insurance industry ecosystem, but that its very adoption clearly identifies those carriers – and their information technology partners – that will be the most innovative.

Analytics has exceptionally broad enterprise potential, with the ability to permanently change the way carriers think and conduct their business. The future of analytics is even more promising than most can imagine.

The conference — where the excitement was palpable — showed the sheer diversity of carrier types and sizes as well as the many different operational areas in which analytics is being used to drive insight, business outcomes and innovation and create real competitive differentiation. From large carriers such as Chubb, Sun Life, Nationwide, American Family, CNA and CSAA, to smaller insurers including Fireman's Fund, Pacific Specialty, Great American, Westfield, National General and Houston Casualty, presentations demonstrated how broadly analytics should be applied through every function and every level of the organization. Presentations from information technology provider types including Dun & Bradstreet, L&T InfoTech, Fractal Analytics, Megaputer, EagleEye Analytics, Clarity Solutions Group, Dataguise, Quadrant, Actionable Analytics, Earley & Associates and DataDNA laid out the future potential.

Recent research shows that one major application of analytics — predictive modeling — is getting attention in pricing and rating, where more than 80% of carriers use it regularly. However, only about 50% use it today in underwriting, and fewer than 30% do so in reserving, claims and marketing.

Based on information shared during the conference, there are six major thrusts to the analytics trend:

• Analytics liberates and democratizes data, which in turn ignites innovation and change within carriers.

• Analytics is uniting insurance organizations, breaking down information silos and creating collaboration between operating units, even as enterprise data governance policies and practices emerge.

• Investment and M&A activity in information technology companies in data and analytics is surging and will create even greater disruption and innovation as more entrepreneurial thinkers continue blending art with science.

• New “as-a-service” pay-per-use models for delivery and pricing are emerging for software (SaaS) and data (DaaS), which will be appealing and cost-effective, especially for mid-tier and smaller carriers.

• Analytics is driving innovation in products, business processes, markets, competition and business models.

• Carriers will have to innovate or surrender market share and should watch for competition from new players, such as Google and Amazon, which understand data, the cloud, innovation and consumer engagement.

This article first appeared on Insurance & Technology

Analytics at the Next Level: Transformation Is in Sight

Although insurance companies are embracing analytics in many forms to a much higher degree than other businesses, adoption by the insurance industry is still only in its adolescent stage. Deployment is broad but inconsistent. The use of analytics may be about to mature considerably, though, based on a recent series of mergers and acquisitions.

Currently, while a majority of large carriers use predictive modeling in one of more lines of business, and mostly in personal lines auto, a smaller percentage use it in their commercial auto and property units. Insurers recognize predictive analytics as a critical tool for improving top-line growth and profitability while managing risk and improving operational efficiency. Insurers believe predictive analytics can create competitive advantage and increase market share.

Fueling even greater excitement – and soon to be driving transformational innovation – is the recent surge of M&A activity by both new and nontraditional players, which have combined risk management and sophisticated analytics expertise with robust and diverse industry database services. The list of recent deals includes:

  • CoreLogic’s 2014 purchase of catastrophe modeling firm Eqecat, following its 2013 acquisition of property data provider Marshall & Swift/Boeckh; a significant minority interest in Symbility, provider of cloud-based and smartphone/tablet-enabled property claims technology for the property and casualty insurance industry; and the credit and flood services units of DataQuick.
  • Statutory and public data provider SNL Insurance’s 2014 purchase of business intelligence and analytics firm iPartners, which serves P&C and life companies.
  • Verisk Analytics’ 2014 acquisition of EagleView Technology, a digital aerial property imaging and measurement solution.
  • LexisNexis Risk Solutions’ 2013 acquisition of Mapflow, a geographic risk assessment technology company with solutions that complement the data, advanced analytics, supercomputing platform and linking capabilities offered by LexisNexis.

Other 2013/2014 transactions that have broad implications for the insurance analytics and information technology ecosystem include:

  • Guidewire Software, a provider of core management system software and related products for property and casualty insurers, acquired Millbrook, a provider of data management and business intelligence and analytic solutions for P&C insurers.
  • IHS, a global leader in critical information and analytics, acquired automotive information database provider R.L. Polk, which owns the vehicle history report provider Carfax. 
  • FICO, a leading provider of analytics and decision management technology, acquired Infoglide Software, a provider of entity resolution and social network analysis solutions used primarily to improve fraud detection, security and compliance.
  • CCC Information Services, a database, software, analytics and solutions provider to the auto insurance claims and collision repair markets, acquired Auto Injury Solutions, a provider of auto injury medical review solutions. This transaction follows CCC’s acquisition of Injury Sciences, which provides insurance carriers with scientifically based analytic tools to help identify fraudulent and exaggerated injury claims associated with automobile accidents.
  • Mitchell International, a provider of technology, connectivity and information solutions to the P&C claims and collision repair industries, plans to acquire Fairpay Solutions, which provides workers’ compensation, liability and auto-cost-containment and payment-integrity services. Fairpay will expand Mitchell’s solution suite of bill review and out-of-network negotiation services and complements its acquisition of National Health Quest in 2012.

Based on these acquisitions and the other trends driving the use of analytics, it will be increasingly possible to:

  • Integrate cloud services, M2M, data mining and analytics to create the ultimate insurance enterprise platform.
  • Identify profitable customers, measure satisfaction and loyalty and drive cross/up-sell programs.
  • Capitalize on emerging technologies to improve pool optimization, create dynamic pricing models and reduce loss and claims payout.
  • Encourage “management by analytics” to overcome departmental or product-specific views of customers, update legacy systems and reduce operating spending over the enterprise.
  • Explore external data sources to better understand customer risk, pricing, attrition and opportunities for exploring emerging markets.                       

As the industry is beginning to understand, the breadth of proven analytics applications and the seemingly unlimited potential to identify even more, coupled with related M&A market activity that will drive transformational innovation, indicates that the growing interest in analytics will be well-rewarded. Those that are paying the most attention will become market leaders.

Stephen will be Chairing Analytics for Insurance USA, Chicago, March 19-20, 2014.

$1.25M Backpay Highlights Risks of Mismanaging Union Risks In Merger & Acquisition Deals

September’s National Labor Relations Board (NLRB) order requiring the buyer of a California nursing home to pay approximately $1.25 million in backpay and interest, rehire 50 employees and recognize the seller’s union reminds buyers of union-organized businesses of some of the significant risks of mishandling union-related obligations in merger and acquisition, bankruptcy and other corporate transactions under the National Labor Relations Act (NLRA) and other federal labor laws.

Buyer’s Obligations To Honor Seller’s Collective Bargaining Obligations
Under the National Labor Relations Act, new owners of a union facility that are “successors” of the seller generally must recognize and bargain with the existing union if “the bargaining unit remains unchanged and a majority of employees hired by the new employer were represented by a recently certified bargaining agent.” See National Labor Relations Board v. Burns Sec. Servs., 406 U.S. 272, 281 (1972).

In assembling its workforce, a successor employer also generally “may not refuse to hire the predecessor’s employees solely because they were represented by a union or to avoid having to recognize a union.” U.S. Marine Corp., 293 National Labor Relations Board 669, 670 (1989), enfd., 944 F.2d 1305 (7th Cir. 1991).

Nasaky, Inc. National Labor Relations Board Order
September’s National Labor Relations Board Order requires Nasaky, Inc., the buyer of the Yuba Skilled Nursing Center in Yuba City, California, to recognize and honor collective bargaining obligations that the seller Nazareth Enterprises owed before the sale and rehire and pay backpay and interest to make whole 50 of the seller’s former employees who the National Labor Relations Board determined Nasaky, Inc. wrongfully refused to hire when it took over the facility from the prior owner, Nazareth Enterprises.

Before Nasaky, Inc. bought the nursing home, many of the employees at the nursing home were represented by the Service Employees International Union, United Healthcare Workers West (Union). After Nasaky, Inc. agreed to buy the facility but before it took control of its operations, Nasaky, Inc. advertised in the media for new workers to staff the facility and told existing employees at the facility that they must reapply to have a chance of keeping their jobs under the new ownership.

When Nasaky, Inc. took operating control of the facility, facility operations continued as before with the same patients receiving the same services. The main difference was the workforce. The new staff included 90 employees in erstwhile bargaining unit positions, of which forty were former employees of the predecessor employer and fifty were newcomers. Nasaky, Inc. then took the position that the change in the workforce excused it from responsibility for recognizing or bargaining with the union or honoring the collective bargaining agreement between the union and seller Nazareth Enterprises.

When the union demanded that Nasaky, Inc. recognize the union and honor the union’s collective bargaining agreement with Nazareth Enterprises, Nasaky, Inc. refused. Instead, Nasaky, Inc. notified the union that it would not allow the union on its premises, would not honor the union’s collective bargaining agreement with the seller, and did not accept any of the predecessor’s terms and conditions of employment. The union then filed charges with the National Labor Relations Board, charging that Nazareth Enterprises had breached its obligations as a successor under the National Labor Relations Act.

After National Labor Relations Board Regional Director Joseph F. Frankl agreed and issued a complaint, California Administrative Law Judge Gerald Etchingham found all the allegations true based on a two-day hearing. He rejected all of Nasaky’s explanations for why it declined to hire most of those who had worked for the previous employer. See the Administrative Law Judge Decision. Since Nasaky, Inc did not file exceptions, the National Labor Relations Board ordered Nasaky, Inc. immediately to recognize and bargain with the union, hire the former employees and make them whole. The amount of backpay and interest is expected to approximate $1.25 million.

Managing Labor Exposures In Business Transactions
The National Labor Relations Board’s order against Nasaky, Inc. highlights some of the business and operational risks that buyers and sellers can face if labor-management relations are misperceived or mismanaged in connection with business transactions. Because the existence of collective bargaining agreements or other labor obligations can substantially affect the operational flexibility of a buyer, buyers need to investigate and carefully evaluate the potential existence and nature of their obligations as part of their due diligence strategy before the transaction. A well-considered understanding of whether the structure of the transaction is likely to result in the buyer being considered a successor for purposes of union organizing and collective bargaining obligations also is very important so that the buyer and seller can properly appreciate and deal with any resulting responsibilities.

Beyond the potential duty to recognize a seller’s collective bargaining obligations, buyers and sellers also should consider the potential consequences of the proposed transaction on severance, pension, health, layoff and recall and other rights and obligations that may arise. At minimum, the existence of these responsibilities and their attendant costs are likely to impact the course of the negotiations.

When a worksite is union-organized, for instance, additional obligations may arise in the handling of reductions in force or other transactions as a result of the union presence. For example, in addition to otherwise applicable responsibilities applicable to non-union affected transaction, the Worker Adjustment Retraining Act (WARN) and other plant-closing laws and/or collective bargaining agreements may impose special notification or other requirements before a reduction in force or other transaction related activities.

Similarly, the existence of collective bargaining agreements also may trigger obligations for one or both parties to engage in collective bargaining over contemplated changes in terms and conditions of employment, to provide severance, to accelerate or fund severance, benefits or other obligations, to provide continued health or other coverage, to honor seniority, recall or other rights or deal with a host of other special contractual obligations.

Where the collective bargaining arrangements of the seller currently or in the past have included obligations to contribute to a multiemployer, collectively-bargained pension or welfare plan, the buyer and seller also need to consider both the potential for withdrawal liability or other obligations and any opportunities to minimize these exposures in structuring the allocation of the arrangement. In this case, both parties need to recognize that differences exist between the federals for determining when successor liability results under the withdrawal liability rules than typically apply to other labor and employment law purposes.

While buyers and sellers often presume that the stock versus assets sale distinction that typically applies for many other legal purposes will apply, this can be an expensive mistake in the case of determining a buyer’s obligation to honor the seller’s collective bargaining obligations post deal. Likewise, buyers can be exposed to multiemployer successor liability from asset transactions, although it may be possible to mitigate or avoid such liabilities by incorporating appropriate representations in the sale documents or through other steps. Since these multiemployer withdrawal and contribution liabilities generally attach on a controlled group basis, both parties need to properly appreciate and address these concerns early in the transaction to mitigate their risks and properly value the transaction.

In light of these and other potential labor-related risks that may affect corporate and other business transactions, parties contemplating or participating in these transactions are urged to engage and consult with competent legal counsel with specific experience in such labor-management relations and multiemployer benefit plan matters early in the process.