M&A Reps and Warranties Breach Claims: Strategies for Pursuing or Defending Recovery

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A M&A Reps and Warranties Breach Claims: Strategies for Pursuing or Defending Recovery THURSDAY, APRIL 14, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Rachel S. Morse, Partner, Jenner & Block, Chicago Jason D. Osborn, Partner, Jenner & Block, Chicago Brendan A. Donahue, Jenner & Block, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 M&A Reps and Warranties Breach Claims: Strategies for Pursuing or Defending Recovery April 14, 2016 Presenters: Jason D. Osborn, Jenner & Block LLP Rachel S. Morse, Jenner & Block LLP Brendan A. Donahue, Jenner & Block LLP

6 The material contained herein is the work product of Jenner & Block LLP and should not be construed to represent the opinions of the panel members. Nothing contained in this packet is to be considered as rendering legal advice for specific contracts or cases and readers are responsible for obtaining such advice from their own legal counsel. This packet is intended for educational and informational purposes only Jenner & Block LLP. All rights reserved. 6

7 Overview Tension between Getting the Deal Done and Positioning for Post-Closing Litigation Using Representations and Warranties to Allocate Risk Trouble Spots: Which representations lead to claims? Structural Impediments to Recovery Contractual Impediments to Recovery Common Law Impediments to Recovery Fraud Claims & Extra-Contractual Representations Litigating Third-Party Claims Trends in R&W Insurance Payouts 7

8 Tension: Perfect Timing v. Perfect Documents Goal: Get the deal done within the valuation requirements and risk profile of the participants Mandate: Get the Deal Done! Timing drivers: Competitive Auctions (particularly when comments are due in advance of a bid) Execution Risk Favorable Announcement Timing Need to realize on synergies quickly Risk Management Probability/Materiality Weighting: How likely is this to become an issue? How material would it be if it did become an issue in terms of dollars spent and time to resolve? Tail Risk: Even if unlikely, would the results be catastrophic (e.g., material environmental liability, underfunded pension or multiemployer plan liability, litigation with a key customer or sole supplier)? 8

9 Setting the Stage: Allocating Risk with Representations and Warranties For purposes of our discussion today, we are assuming a transaction between sophisticated parties involving the sale of a private company Although representations and warranties are also used to elicit disclosure, allocate transaction execution risk between signing and closing and establish conditions for closing, we are focused on allocation of risk for losses arising post-closing 9

10 Trouble Spots: Which Reps are likely to be the subject of a Claim? How often are claims made? According to J.P. Morgan s 2014 M&A Escrow Study, 23% of all deals with an indemnification escrow had at least 1 claim (although this includes specific indemnity claims) AIG Warranties and Indemnities Insurance Claims Review identifies claims for breaches of reps & warranties in 28% of all deals in North America Shareholder Representative Services 2013 SRS M&A Post-Closing Claims Study found non-purchase price adjustment claims (including reps and warranties, but also including fraud and specific indemnities) in 44% of deals According to J.P. Morgan and SRS, the closer the escrow is to expiring, the more likely a claim is to be received 10

11 Trouble Spots: Claims Made by Rep J.P. Morgan (2014) Taxes SRS Acquiom (2015) Taxes 23% 14% 16% 28% 19% 38% Litigation Financial Statements Employment Other AIG (2015) 11% 13% 10% 28% 35% 10% Taxes IP 11% Financial Statements Contracts Other 31% 13% IP Undisclosed Liabilities Employee- Related Other 11

12 PLC s Pro-Buyer Financial Statements Rep Financial Statements. Complete copies of the Company's audited financial statements consisting of the balance sheet of the Company as at [DATE OF FISCAL YEAR END] in each of the years [YEAR 1], [YEAR 2] and [YEAR 3] and the related statements of income and retained earnings, stockholders' equity and cash flow for the years then ended (the "Audited Financial Statements"), and unaudited financial statements consisting of the balance sheet of the Company as at [DATE OF MOST RECENT QUARTER END] and the related statements of income and retained earnings, stockholders' equity and cash flow for the [three-/six-/nine- month] period then ended (the "Interim Financial Statements" and together with the Audited Financial Statements, the "Financial Statements") [are included in the Disclosure Schedules/have been delivered to Buyer]. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments [(the effect of which will not be materially adverse)] and the absence of notes [(that, if presented, would not differ materially from those presented in the Audited Financial Statements)]. The Financial Statements are based on the books and records of the Company, and fairly present [in all material respects] the financial condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the periods indicated [The Company maintains a standard system of accounting established and administered in accordance with GAAP.] 12

13 PLC s Pro-Buyer Undisclosed Liabilities Rep Undisclosed Liabilities. The Company has no liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise ("Liabilities"), except (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount. Sellers attempt to limit "Liabilities" by: Defining "Liabilities" to those required to be disclosed on a balance sheet prepared in accordance with GAAP What about notes to the financial statements? Using a knowledge qualifier Using a dollar threshold to limit risk basically a "super" deductible Excluding liabilities addressed by other representations and warranties 13

14 PLC s Pro-Buyer Legal Proceedings Rep Legal Proceedings. Except as set forth in Section [X] of the Disclosure Schedules, there are no Actions pending or, to Seller's Knowledge, threatened (a) against or by the Company affecting any of its properties or assets (or by or against Seller or any Affiliate thereof and relating to the Company); or (b) against or by the Company, Seller or any Affiliate of Seller that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. [No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.] "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, [inquiry, audit,] notice of violation, proceeding, litigation, citation, summons, subpoena or [investigation] of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity. "Knowledge of Seller or Seller's Knowledge" or any other similar knowledge qualification, means the actual [or constructive] knowledge of any director or officer of Seller or the Company[, after due inquiry]. 14

15 Case Study: Winshall v. Viacom Int l Merger Agreement between Viacom International, Inc. and Harmonix Music Systems, Inc. Harmonix s IP infringement R&Ws: No activity, business operation, or Current Game of Harmonix violates 3 rd party IP Harmonix has adequate rights in software used in Current Games or games in development to permit the company s current use of such software Indemnity provision allowed Viacom to recover for breaches of representations & warranties from two sources of funds: Portion of purchase price (~7%) held in escrow for 18 months after closing Upon exhaustion of escrow funds, deductions against earn-out payments that would otherwise be owed to Harmonix s selling shareholders based on two years of post-closing financial performance After closing, four IP infringement claims were asserted against Harmonix in relation to its successful Rock Band video game franchise Viacom sought indemnification from escrow 15

16 Case Study: Winshall v. Viacom Int l Delaware s Chancery Court and Supreme Court agreed that Viacom was not entitled to indemnification for costs of defending & settling the 3 rd party IP claims Timing is everything: the IP reps were not breached IP reps & warranties were written in the present tense; covered infringement existing at the time of closing The alleged infringement related to the public release of the Rock Band game, but the "current use" of the IP in question at the time of closing was merely for internal development & testing Court stated that it would not make sense for selling shareholders to indemnify the buyer for actions occurring long after control over the business changed hands No Breach of R&W No Indemnity One word makes all the difference: the indemnity covered actual breaches of the reps & warranties not costs related to any and all alleged breaches Case might have come out differently if the indemnity provision required the sellers to "indemnify, defend, and hold harmless," as many M&A transaction agreements do Court ordered release of escrow funds to the selling shareholders Winshall v. Viacom Int l, Inc., C.A. No. 39, 2013 (Del. Oct 7, 2013) 16

17 Litigating a Third-Party Claim Picture this: Seller represents to Buyer that "the Acquired Assets do not infringe on the intellectual property rights of any third party." After the Closing, a third party sues Buyer, alleging that the software product it purchased from Seller infringes on a patent. The purchase agreement requires Seller to indemnify for losses arising from the third party s claim. Seller, being economically responsible for any damages awarded, understandably wants to assume control over the defense of the litigation. Buyer wants to restrict the types of lawsuits which Seller may control: Claims adverse to key customers, suppliers, or personnel Specific performance / injunction and criminal charges Claims for which Seller isn t really economically responsible Indemnification cap has been or will likely be exhausted Seller is judgment proof / insolvent or an adverse judgment would likely force it into bankruptcy Most litigation settles, but the parties interests are not aligned Indemnifying party wants the cheapest cash settlement amount possible Indemnified party cares about future obligations and non-monetary issues, including the success of the business as a going concern 17

18 Structural Impediments to Recovery Where s the Money? Are the sellers judgment proof? Are the sellers accessible? Escrow, Holdback or Earnout? R&W Insurance Policy? I have the Sellers I can sue, but do I really want to sue them? Management Customer or Supplier Do we anticipate doing deals with these people in the future? Otherwise a key business relationship? Is it worth it? Litigation expenses Time and resource allocation (depositions, discovery) Publicity (positive and negative) 18

19 Contractual Impediments to Recovery: Survival Periods Specified R&Ws only survive the closing for a limited period of time Generally intended to shorten the deadline for breach and indemnity claims, but courts may not interpret them consistently: Depends on state law; Delaware is more likely to strictly enforce a survival clause than California. Depends on precise wording. Does the survival provision require the non-breaching party to file suit by the deadline or merely to give the other party notice of the claim? Must a loss have occurred or a third-party lawsuit been initiated, or is establishing that a breach which could give rise to such losses enough? Varying time horizons for survival of representations: Short: Past performance and current condition of business (e.g., financial statements, insurance) Long / Indefinite: "Fundamental" reps (e.g., good standing, capitalization) 19

20 Contractual Impediments to Recovery: Caps/Baskets Caps: limits on recovery Baskets: hurdles to recovery Tipping (first-dollar) basket? Deductible basket? Mini-basket? Dollar amounts usually based on a percentage of purchase price May not apply to breaches of fundamental reps Materiality or knowledge qualifiers make it harder to fill the basket or reach the cap, but may be mitigated, in the case of materiality by a "materiality scrape" Materiality scrape has 2 flavors: (i) scrape for determining breach and damages and (ii) scrape for purposes of determining damages only 20

21 Contractual Impediments to Recovery: Limits on Damages Not just a laundry list: these words have important meanings. 21

22 Contractual Impediments to Recovery: Limits on Damages (PLC formulation) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple [(other than indemnification for amounts paid or payable to third parties in respect of any third-party claim for which indemnification hereunder is otherwise required)]. 22

23 Contractual Impediments to Recovery: Limits on Damages Direct damages: naturally and necessarily flow from the breach E.g., market price for improving or replacing assets not delivered in the condition promised Incidental damages: costs related to rejection of goods being sold Not a major issue in M&A transactions Consequential damages Everything else! Losses that result from a breach because of the particular circumstances of the non-breaching party; e.g., inability to perform on 3 rd party contracts because of the breach Like all contract damages, must be reasonably foreseeable not remote Lost profits Often misunderstood as a subset of consequential damages, but can be direct too Recent trend of pushing back on broad boilerplate: 2008 article piqued interest in true meaning of damages waivers (Glenn D. West & Sara G. Duran) Buyers do not have to accept a complete waiver of consequential damages as a foregone conclusion 23

24 Contractual Impediments to Recovery: Exclusive Remedies Indemnification as the exclusive remedy for breaches of representations & warranties ABA Study: > 90% of M&A purchase agreements contain this provision May limit buyer s rights in numerous, and sometimes unexpected, ways: Calculation of damages Time limits on bringing claims Dispute resolution procedures Availability of equitable remedies, except as specified In some jurisdictions, do not preclude alternative remedies for securities law claims or certain tort claims (e.g., claims based on intentional misconduct or gross negligence) Usually some exclusions (e.g., purchase price adjustments, equitable remedies for specifically negotiated restrictive covenants) 24

25 Contractual Impediments to Recovery: Anti-Sandbagging Buyer knew of a breach, but it was not listed as an exception to the representation on the disclosure schedules. Can the buyer seek indemnification? Contentious issue: Buyers want to enforce the allocation of risk they negotiated Sellers fear intentional exploitation of oversights in the due diligence and scheduling processes ABA study: 41% of M&A deals have a pro-sandbagging clause; 5% anti-sandbagging What about the "silent majority"? State law fills in the blanks with default rules Delaware: Pro-sandbagging New York: Depends on the expectations of the parties Illinois: Pro-sandbagging California: Anti-sandbagging Sandbagging generally an exception under R&W insurance policies, but can be limited to things known at signing 25

26 Common Law Impediments to Recovery: Statute of Limitations Deadline for filing a particular type of claim SOL for breach of contract varies by state: Delaware: 3 years New York: 6 years Illinois: 10 years California: 4 years Clock generally starts ticking when the breach occurs, and for M&A reps, that is usually at the time of closing Equitable: may get an extension if delay was caused by other party s wrongdoing Procedural, not substantive: not always captured by a generic choice-of-law provision 26

27 Common Law Impediments to Recovery: Statute of Limitations SOL is a ceiling, but: Claims may be time barred sooner under a survival clause Equitable claims may be (although rarely are) time barred sooner under the laches doctrine Sellers can use survival periods to shorten the SOL. Can buyers extend the SOL? Delaware "Sealed" contract no longer needed New law: parties may extend SOL for breach claims: On written contracts Involving > $100,000 For up to 20 years Most states are not so flexible (e.g, New York doesn t allow extensions not even for sealed contracts) Buyers may wish to negotiate the SOL on certain claims e.g., ensure that tax reps survive until the IRS is time barred from assessing pre-closing back taxes (which is often after the standard SOL for breach of contract has run). 27

28 Beyond the "Four Corners": What About Fraud? Buyers may allege breaches of extra-contractual representations: Management presentation or Confidential Information Memorandum Virtual dataroom documents / due diligence materials Verbal discussions or s With no recourse through an indemnification or breach of contract claim, they turn to claims of securities fraud (in a stock deal) or common law fraud: False Representation of a material fact (or omission subject to a duty to disclose) Made with knowledge or recklessness as to untruthfulness Made with the intent to deceive and the purpose of inducing action Upon which the recipient justifiably relied, resulting in damages Carefully negotiated contractual limitations (caps, baskets, and exclusive remedy provisions) may not apply. State law often disfavors disclaimers of liability for fraud as incompatible with public policy, and some courts ignore waivers of 10b-5 claims as contradicting federal securities law 28

29 Beyond the "Four Corners": What About Fraud? Sellers can limit fraud liability to breaches of the R&Ws contained in the purchase agreement by ensuring that reliance on extra-contractual representations is unjustified The Seller s statement that it makes "no other representations" doesn t do the trick There are no "magic words," but the purchase agreement should at least contain: Buyer s representations that it: Has relied only on the contents of the agreement itself Has not relied on any representations made outside of the agreement Merger or integration clause acknowledging that the transaction documents contain the entire agreement of the parties in relation to the deal FdG Logistics LLC v. A&R Logistics Holdings, Inc., C.A. No CB (Del Ch. Feb. 23, 2016) Fraud by Omission: Make sure that disclaimers are broad enough. Even in an arms length transaction, a duty to speak may arise if: A partial or incomplete statement requires clarification The parties have a special fiduciary relationship One party has information not available to the other, and knows the other is acting on misinformation Even these best practices may not be effective in all states. Research your governing law. 29

30 Trends in R&W Insurance Recovery 500+ policies written in 2014 Improved pricing, coverage and product usage R&W insurance now priced between +/- 3 to 4% of limit purchased (one-time payment at closing) Usually a due diligence fee of $20,000 to $40,000 Coverage can extend beyond "market" representation, warranty and indemnity terms (however, it does not include criminal fines or, in the case of sell-side policies, fraud by the seller) Data on claims history is largely anecdotal AIG presentation provides several examples of approved "Claim Scenarios", such as: Paying out for breaches of financial statement and accounts receivable representations under a seller-side insurance policy after seller failed to disclose $1 million of outstanding gift certificates. Paying out for breaches of financial statement, good title, no material adverse change, and other representations under a buyer-side insurance policy while the parties arbitrated their dispute. Litigation involving R&W coverage Ageas (UK) Ltd. v. Kwik-Fit (UK) Ltd: England s High Court of Justice considered a dispute about proper method of calculating damages for seller s breach of accounting representations. Before the case went to trial, insurer admitted responsibility for any damages in excess of 5 million (a deductible basket amount specified in the Share Purchase Agreement and R&W policy). Good incentives to pay claims: R&W insurers are repeat players. Companies and law firms involved in future deals will only consider using their policies if they have a good reputation for promptly approving valid claims. 30

31 Questions? Jason D. Osborn Rachel S. Morse Brendan A. Donahue 31