Deal Insurance: Representation & Warranty Insurance in Mergers and Acquisitions

Deal Insurance: Representation & Warranty Insurance in Mergers and Acquisitions

Sean Griffith

Series number :

Serial Number: 
464/2019

Date posted :

July 12 2019

Last revised :

August 06 2020
SSRN Share

Keywords

  • Mergers • 
  • acquisitions • 
  • contract • 
  • insurance • 
  • representations • 
  • warranties • 
  • private equity • 
  • indemnification • 
  • escrow • 
  • adverse selection • 
  • moral hazard • 
  • credible commitment • 
  • M&A • 
  • deal • 
  • rep & warranty • 
  • transaction insurance

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 500 acquisition agreements, approximately half of which involved RWI.

Analysis of this data reveals a broad transfer of mispricing risk from transacting parties 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.

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Published in

Published in: 
Publication Title: 
104 Minnesota Law Review, 1839 (2020)

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