M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

Thursday, June 27, 2019

Griffith on Reps/Warranties Insurance

Here's a new paper by Sean Griffith, Deal Insurance: Representation & Warranty Insurance in M&A Contracting:

Abstract: Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions? Second, why do transacting parties use RWI? And third, why do insurers sell RWI?

The paper follows a two-fold empirical methodology. It develops data both by surveying RWI market participants—insurers, brokers, lawyers, and private equity managers—and also by analyzing a sample of over 400 acquisition agreements, approximately half of which involved RWI.

The results show a broad transfer of mispricing risk from buyers and sellers to insurers. RWI allows sellers to minimize risk at exit and allows buyers to control risk aversion in selecting investments. At the same time, RWI threatens to disrupt the contracting process by introducing problems of credible commitment, moral hazard, and adverse selection. Insurers’ ability to respond to these problems through shifts in the deal market and the underwriting cycle may determine whether RWI ultimately facilitates or impedes mergers and acquisitions.

Reps & Warranties insurance is an interesting innovation in the last decade. Rather than rely on indemnification and/or escrows, private equity sellers, looking for an exit, rely on insurance to give them a clean break from deals when they are exiting through a sale to a third party.  Griffith does a deep dive into the the role of insurance in a sale.



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