welcome to advisen’s · acquisitions, paragon brokers ... •seth gillston, executive vice...
TRANSCRIPT
Welcome to Advisen’s
Transaction Insurance
Insights Forum!
Welcoming Remarks
David Bradford
Co-Founder & Chief Strategy Officer
Advisen
Thank you to our Advisory Board
Jeffrey Anderson, Allied World
Jeffrey Cowhey, Ambridge Partners LLC
Mary Duffy, AIG
Matthew Heinz, Aon
Peter Rosen, Latham & Watkins [2016 Conference Chair]
Mark Rusas, Willis Towers Watson
Thank you to our
Host Sponsor
Thank you to our Sponsors!
Opening Remarks
Peter Rosen
Partner
Latham & Watkins
[2016 Conference Chair]
Marketplace
Metrics
Marketplace Metrics
Peter Rosen
Partner
Latham & Watkins
(Moderator)
Marketplace Metrics • Peter Rosen, Partner, Latham & Watkins (Moderator)
• Jeffrey Anderson, North American Mergers &
Acquisitions Group Lead, Allied World
• Matthew Heinz, Managing Director, National Practice
Leader – Transactional Liability, Aon
• Edward Markovich, SVP, Transactional Risk, Chubb
• Craig Schioppo, Transactional Risk Practice Leader,
Managing Director, FINPRO, Marsh
Marketplace Metrics
The Buyer’s
Perspective
The Buyer’s Perspective
Bill Monat
EVP – Mergers & Acquisitions Group
Willis Towers Watson
(Moderator)
The Buyer’s Perspective • Bill Monat, EVP – Mergers & Acquisitions Group, Willis
Towers Watson (Moderator)
• Joshua Aronson, Senior Vice President & Deputy General
Counsel, Audax Group
• John Giouroukakis, Partner, Latham & Watkins
• Thomas Kim, Global Risk Manager, KKR
• John Merrigan, Managing Director, US Insurance Risk
Management Solutions Lead, PricewaterhouseCoopers LLP
The Buyer’s Perspective
Coming up next…
“International Issues”
Morning Break
Thank you to our
Host Sponsor
Thank you to our Sponsors!
International Issues
International Issues
John McNally
Transaction Advisory Practice
JLT Specialty USA
(Moderator)
International Issues • John McNally, Transaction Advisory Practice, JLT
Specialty USA (Moderator)
• Peter de Boisblanc, Associate, Ropes & Gray LLP
• Angus Marshall, UK M&A Manager, AIG
• Tan Pawar, Senior Vice President of Mergers &
Acquisitions, Paragon Brokers
• Craig Warnke, Managing Director, Marsh
International Issues
Beyond Reps &
Warranties
Beyond Reps & Warranties
Michael Schoenbach
Managing Director
Aon
(Moderator)
• Michael Schoenbach, Managing Director, Aon (Moderator)
• David De Berry, CEO, Concord Specialty Risk
• Seth Gillston, Executive Vice President, M&A and Private
Equity Practice Leader, Chubb
• Roy Reynolds, Divisional Senior Vice President,
Great American Insurance Group
• Brian Thede, President, Healthcare Risk Assessments
Beyond Reps & Warranties
Beyond Reps & Warranties
Coming up next…
“The Claims Process”
Conference Luncheon
Thank you to our
Host Sponsor
Thank you to our Sponsors!
The Claims Process
The Claims Process
Nancy Adams
Member
Mintz Levin
(Moderator)
• Nancy Adams, Member, Mintz Levin (Moderator)
• Markus Bolsinger, Partner, Dechert LLP
• Mary McIvor, Global Head of Financial Institutions
Claims, AIG
• Diane M. Parker, Vice President, North American
Claims Group, Allied World
• Dan Torpey, Partner, Fraud Investigative & Dispute
Services, EY
The Claims Process
32
Claims Study …
•Who is Making the Claims?
– First Party vs. Third Party
•What are the Claims?
– Financial Statements, Tax, Accounting, Contracts,
•Where are the Claims?
– US vs. Global
•When are Claims Being Made?
•Why are Claims Being Made?
– Indemnities, Retentions, Escrows
33
Investigations of Claims – Part One
The Initial Claim Review:
– Policy, acquisition agreement, underwriting file
– Claim documents
– Other insurance
– Meeting/interview with insured & representatives
– Determining what documents exist
34
Investigations of Claims – Part Two
Complexity of investigation depends on:
– First-party or third-party claim
– Insured buyer or insured seller
– Type of misrepresentation (e.g., accounting issue v. working condition of tractor)
35
Coverage For Claims:
Key issues to be investigated:
– Whether there was a breach of a R&W
– Whether the loss was a proximate result of the breach
– How to quantify the amount of the loss
– Are there any applicable exclusions?
– Deductibles, Retentions and Indemnities
36
The First Question … Was There a Breach?
•Reps that are frequently at issue
•Disclosure schedules
•Analysis of Breach: a/k/a Not Every Post-Closing Surprise is a
R&W Breach
37
What Should You Expect … It Depends:
•Financial misrepresentations:
– Forensic Accountants and Other Experts
– Documents to be reviewed
– Analysis, Time Frame, Common Issues
•Other first-party claims
•Third-party claims
38
Case Study – Post Acquisition Dispute
•Buyer had an acquisition insurance policy excluding NWC
true-up
•Buyer identified higher liabilities after acquisition
•Buyer took seller to arbitration and received a settlement for
higher liabilities above NWC true-up
•Buyer then tried to utilize their insurance policy by turning the
higher liabilities into an expense issue
– This moved the issue from the balance sheet as NWC to income
– Buyer claimed the value of the company was lower due to lower income
39
Coverage Dispute: Arbitration or Litigation?
–Pros and Cons
– Interplay with Purchase Agreements
–Settlements
40
Subrogation?
– Interplay with Purchase Agreement
– Can we Say "Fraud or Bad Accounting"
– Trends in Anti-Fraud Due Diligence
– Who Brings the Claim
41
EY – 2016 Fraud Survey - Justifying unethical
behavior and misconduct
► Our survey found that some
executives continue to justify
unethical acts to improve a
company’s performance.
► When presented with a series
of options, more than one-third
would be willing to justify
inappropriate conduct in an
economic downturn, while
almost half would justify such
conduct to meet financial targets.
► While the behaviors that these
respondents can rationalize
differ between regions, they
should be deeply concerning
to all companies.
42
The Fraud Triangle
Internal Controls
Internal and External Pressure
Opportunity to Commit Fraud
Periodic reporting requirements to
external stakeholders
Organization may be trying to do more
with marginal increase in resources
Effects of decentralization on
internal controls
Overworked and newly acquired employees may
have greater ability to rationalize
improper actions
Pressure
Opportunity
Rationalization
Multiple acquisitions with unique data and
financial systems
Changes in workforce roles &
responsibilities may impact internal
control oversight
Increased pressure associated with
financial leverage
The Claims Process
Coming up next…
“Growing Pains”
Afternoon Break
Thank you to our
Host Sponsor
Thank you to our Sponsors!
Growing Pains
Growing Pains
David Bradford
Co-Founder & Chief Strategy Officer
Advisen
(Moderator)
• David Bradford, Co-Founder & Chief Strategy Officer, Advisen
(Moderator)
• Jeffrey Cowhey, Co-Founder & President, Ambridge Partners
LLC
• Matthew Somma, Underwriting Specialist, Transactional Risk,
The Hartford
• Howard T. Spilko, Partner, Kramer Levin Naftalis & Frankel LLP
• R. Philip Stevenson, Senior Vice President, VALE Insurance
Partners
Growing Pains
Growing Pains
The Broker’s
Perspective
The Broker’s Perspective
Dennis Kearns
SVP, Transactional Liability and
Financial Institutions
QBE North America
(Moderator)
• Dennis Kearns, SVP, Transactional Liability and Financial
Institutions, QBE North America (Moderator)
• Stacey J. Hammer, Vice President, Privacy Equity and
Corporate Acquisitions Practice, Lockton Companies
• Jeff Rubocki, Senior Managing Director, Krauter & Company
• Mark Rusas, EVP – Global Practice Leader, Mergers &
Acquisitions, Willis Towers Watson
• Kirk Sanderson, Senior Vice President, Transaction Risk
Practice Leader, Equity Risk Partners
The Broker’s Perspective
The Broker’s Perspective
Closing Remarks &
Reception