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Transactional Risk Insurance

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Seyfarth’s market leading Transactional Risk Insurance team guides insurance carriers through underwriting transactional risk insurance products that facilitate M&A deals worldwide. Offering a full suite of services, Seyfarth also maintains an active claims practice, defending insurance carriers and navigating them through the claims process.

In the past six years, the use of representations and warranties insurance (RWI) in mergers and acquisitions has exploded, in particular for private equity-backed transactions. As a result, a substantial number of today’s transactions use RWI to maximize risk mitigation. RWI carriers retain outside counsel to help underwrite product placement and analyze the legal risks in connection with the transaction, and to defend them in the event a claim arises under the policy. 

HOW WE HELP

Seyfarth boasts one of the country’s leading underwriting counsel practices. Representing over 20 insurance markets, Seyfarth’s Transactional Risk Insurance team provides world class client service in all facets of the RWI lifecycle.  Leveraging Seyfarth’s significant buy and sell-side M&A experience, including our wealth of knowledge in the capital market and secondary transaction space, the Seyfarth team provides commercial and timely advice that advances our clients’ legal and business interests. Underwriting hundreds of deals each year for numerous clients has allowed Seyfarth to gain unique insight into “market” positions. Seyfarth is frequently called upon as counsel for the primary insurer in large tower deals that have involved most of the industry in excess positions.

Understanding deal dynamics and the business reality that RWI is one of the last pieces of the deal, Seyfarth puts the utmost importance on being responsive—ensuring that the deal proceeds swiftly and that there are no unnecessary delays. Further, with an RWI-dedicated team of conflicts attorneys, we are able to quickly clear conflicts. Most often, conflicts are cleared within two hours of our being engaged. We have also mastered the 90-minute underwriting call, allowing for a smooth and efficient underwriting process.

Moreover, Seyfarth’s coverage practice calls upon years of experience in the resolution of transactional liability claims, and is specifically focused on the complex and unique risks associated with M&A deals. Seyfarth’s claims team is well-positioned to advise clients on transactional insurance issues arising from post-closing disputes.

THE SEYFARTH EXPERIENCE

Utilizing a collaborative cross-departmental, multi-office approach, Seyfarth has created a best-in-class RWI practice that draws on its strong institutional experience in M&A, day-to-day counseling and insurance carrier representation. The Seyfarth Transactional Risk Insurance team includes over 60 attorneys in our offices across the globe that provide RWI markets with the top tier, timely service designed to exceed our clients’ expectations. Appreciating the international and cross-border scope of many transactions, the RWI group has leveraged Seyfarth’s global presence to develop a strong network of advisors in niche areas of law around the globe. 

Seyfarth’s team, with multiple attorneys in core specialist areas, allows us to lead multiple underwriting calls at once, without sacrificing the quality of client service or the consistency of our legal counsel. 

An overview of additional areas of specialization include:

  • Anti-Money Laundering & KYC Rules
  • Capital Market & Secondary Transactions
  • Construction
  • Corporate
  • COVID & Supply Chain Disruptions
  • Cyber Security, Data Security & Privacy
  • Employee Benefits & Executive Compensation, including ESOPs
  • Employment, Wage and Hour & Traditional Labor/Unions
  • Environmental
  • Financial Services & Regulatory Matters
  • Food Regulatory, FDA & USDA
  • Franchise Law
  • Government Contracts
  • Healthcare Regulatory, Medical Devices, Stark, & Billing and Coding
  • Information Technology & Intellectual Property
  • International Law, including all facets of cross-border transactions
  • International Trade, OFAC, Sanctions & FCPA
  • Labeling & Advertising Matters
  • Music Publishing & Copyright
  • OHSA, Health & Safety
  • Products Liability / Warranty
  • Real Estate & Land Use, REITs
  • Telecommunications

SECONDARIES

Our nationally recognized institutional investor practice has allowed Seyfarth to rapidly become the market leader in advising insurance carriers on the placement of RWI on secondary transactions. This innovative use of RWI, especially on GP-led secondary transactions, combined with a novel underwriting process developed by the Seyfarth team has allowed the RWI secondaries market to flourish. 

CONTINGENT RISK & TAX

Seyfarth also serves as underwriting counsel on contingent risk and tax insurance policies. 

Partnering with some of the firm’s strongest litigators, we evaluate each matter on its facts and help to bring our clients comfort with the uncertainties of high-stakes litigation. 

With significant breadth on S corporations, state and local tax matters, complex tax controversies, and REITs, the Seyfarth tax team also regularly represents carriers in underwriting tax-only insurance policies. 

CLAIMS

Along with the rise in demand for insurance products in M&A, the number of disputes under RWI policies have also increased tenfold. The evaluation of coverage and an insurer’s indemnification obligations under RWI policies require in-depth forensic investigations, and industry-specific expertise. Seyfarth has created a dedicated claims practice to advise our clients through this process in the resolution of claim(s). Our coverage practice is also fully supported by Seyfarth’s litigation team, as well as attorneys throughout the firm in specialized practice areas.

INTO THE BREACH

Bryan M. O’Keefe and Gena B. Usenheimer created and co-host the industry’s first ever law firm podcast dedicated to RWI and transactional risk insurance, “Into the Breach.” Each episode features a guest from the industry and explores a different RWI topic, ranging from emerging trends, the perspectives of the parties involved in the RWI process, and lessons learned. If you’re interested in being a guest on “ITB,” please let us know.