Into the Breach is the first law firm podcast exclusively devoted to reps and warranties insurance and the transactional risk markets. Hosted by Seyfarth partners Bryan M. O'Keefe and Gena B. Usenheimer, each week the hosts in their unique, buoyant style, interview leaders from the industry, and explore the latest developments, market trends, and news impacting RWI and transactional risk insurance.

Episode 11: Ensuring RWI Underwriters Understand Underlying Insurance Policies in the Deal

The oft-repeated mantra is that representations and warranties insurance is not a replacement for a target company's underlying insurance policies, making such policies an important ancillary aspect of RWI coverage.   But despite the key role that underlying insurance plays in the RWI process, insurance due diligence is not always well understood -- relegated to five minutes on the underwriting call and without the level of detail or sophistication that we customarily see in other specialists areas.   To help underwriters better understand underlying insurance policies and the critical role that other underlying insurance plays in deals utilizing representations and warranties insurance, in this episode, Bryan and Gena are joined by Josh Warren, M&A Advisory Practice Leader, the ABD Team, to discuss:

  • How RWI underwriters can assess the risk associated with the target company's underlying insurance policies
  • An explanation of prior bad acts coverage and tail policies
  • In what circumstances underlying insurers will -- and will not -- waive change in control provisions
  • What is really meant to sit "excess of and no broader than" the underlying insurance and the pros and cons of using this approach to limit RWI risk
  • How other specialty insurance products -- successor liability, discontinued products -- can be used in tandem with RWI to achieve positive outcomes for insured and insurers alike
  • Guidelines on assessing coverage limits in common underlying insurance, such as cyber insurance

To access other Into the Breach episodes, click here.

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