On February 8, 2018, the Los Angeles office of Nixon Peabody LLP hosted a Hot Topics in the Middle Market event entitled Private Equity Outlook: What is Next for Investing in Health Care. NP partners Stephen Reil, Jill Gordon, and Matt Grazier moderated a discussion featuring the following speakers:
- Len Anderson, Managing Director, LHA Capital Partners
- Jonathan Bluth, Sr. Vice President & Head of the Healthcare Group, Intrepid Investment Bankers
- Steven Shill, Partner/National Leader, BDO Center for Healthcare Excellence & Innovation
- Srin Vishwanath, CEO and Co-Founder, GreenWave Health Technologies
A summary of the panelists’ observations on the current state of the health care industry and investment opportunities is as follows:
Trends and Opportunities: In today’s health care market, private equity investors increasingly have the option to invest in patient-centric, cash-pay companies rather than providers that primarily rely on government and third party reimbursement models. The panelists agreed that behavioral health, including the areas of addiction, autism, and other mental disorders, represents a new frontier in the health care industry and has become increasingly viewed as an exciting area of investment. Growth in the behavioral health industry is being driven by an increasing awareness of, and a lessening of the historical stigmas associated with, mental health issues. Coupled with the sense of urgency that often accompanies patients seeking behavioral health treatment (who are increasingly connected to behavioral health communities via the internet and social media), the industry has transformed into a high cash pay, high volume and high growth sector. In addition, the panel recognized that there has been a stratification of the behavioral health field, with certain areas migrating toward in-network coverage while others remain out-of-network and primarily cash-pay. This has created a dichotomy in the sector which presents opportunities for investors. Going forward the question of whether behavioral health will be able to demonstrate patient outcomes and value will remain the critical questions for the industry and its investors. Finally, the rise of digital health has led to an explosion of international investment and medical tourism, with international investors, often from China, exporting diagnostic and digital medicine models to their home countries.
Dedicated Health Care Funds: The panel discussed the recent rise of health care specific private equity funds that not only have a high level of understanding of the field’s regulatory concerns, but also strong relationships with regulatory agencies. In the past, less-sophisticated investors have had difficulty understanding health care business valuations and deal structures due to an inability to economically quantify the industry’s risks. Now, industry savvy investors are differentiating themselves through depth of reach and connectivity. Coupled with their newfound regulatory expertise, many health care-centric private equity investors are able to not only identify appropriate targets and close deals but, post-closing, they are able to fundamentally change the growth trajectory of the target business and drive the value needle.
Digital Apps and Devices: There was general consensus among the panelists that investors are increasingly looking outside of the four walls of the hospital to alternative investment opportunities in patient-centric care. Specifically, ancillary services have become a primary area of focus as a way to identify and eliminate adverse events, and ultimately as a means to reduce the overall costs of care. In particular, investment in companies providing health services digitally through digital apps and devices and through telehealth and telemedicine (the panel used the example of rural hospitals accessing physician specialists through web and phone conferencing applications). These companies are disrupting the industry, blurring the lines of how and where care is provided and effecting how providers are paid. This growing portfolio of health care / technology hybrids has created ample opportunity for private equity investors looking for targets and, ultimately, returns.
For how long have you read articles about industry waking up to the importance of cybersecurity as high-profile data breaches continue to make headlines and cost companies millions? The reputational and bottom line consequences of a security incident are by now well understood. What appears to be less clear to many executives is how to leverage insurance to mitigate potential impacts of cyber-related threats. This blind spot is likely to change in the months and years ahead as the cyber liability insurance market grows, matures and takes on a more prominent role in corporate risk mitigation strategy as well as in deal negotiations.
What is cyber liability insurance?
First-party coverage is intended to cover costs incurred by a company when responding to a cybersecurity incident, such as:
• Third-party expert fees (e.g., forensic specialists to identify root causes and vulnerabilities, crisis management, public relations)
• Legal costs related to compliance with post-breach regulatory requirements (e.g., notification to affected individuals and states’ attorneys general)
• Credit monitoring and identity theft protection services for affected individuals as required by certain state and federal laws
• Data recovery and hardware/network repair
Third-party coverage is used to mitigate costs associated with litigation and regulatory penalties resulting from a cybersecurity incident.
Some insurers also offer custom add-ons for companies susceptible to large or concentrated losses due to their unique business needs, such as coverage for:
• Business interruption
• Cyber extortion and terrorism
• Network security
• Lost or stolen data, laptops or other technology assets
The range of potential costs is staggering and for now remains difficult to quantify. As a result, there is still a good deal of variation across cyber liability products when compared to more traditional forms of commercial insurance. Companies can be selective when structuring their policy in order to manage their premium, but also need to make sure that the nature of their coverage is appropriate and that limits will provide adequate protection.
Who offers cyber liability insurance and what does it cost?
The cyber liability insurance market remains highly concentrated. According to reports by Fitch Ratings and A.M. Best
, the top 15 carriers controlled nearly 83% of the cyber market by the end of 2016, and American International Group, XL Group and Chubb alone wrote roughly 40% of cyber policies by the close of that year. Other prominent carriers
in the market are Travelers, Beazley, CNA, Liberty Mutual, BCS Insurance, AXIS Insurance Group and Allied World.
While the cyber liability insurance pool remains relatively small—only $1.35 billion in direct written premium was written in 2016
—there are many indicators that the market is growing. By the end of 2015 more than 130 insurance organizations had entered the market, and since that time the amount of direct written premium for cyber policies has been increasing year-over-year. Additionally, insurers are increasingly writing stand-alone cyber liability policies. In fact, more than two-thirds of cyber coverage
was written on a stand-alone basis during 2016. This trend is encouraging as it will allow insurers to refine actuarial modeling and stabilize pricing for many of their cyber products.
But presently, cyber liability insurance remains expensive. Industry commentators
surveying businesses about their coverage costs report that premiums range from $1,000 to $80,000. Of course, the amount of premium paid by a specific company will depend on a host of factors, including its risk profile, the scope of coverage selected and coverage limits for the policy. By way of example, the annual premium reported for a high risk SaaS provider was nearly $30,000 for a $10 million coverage limit, while a lower risk thermostat installation company paid only $8,000 for a $5 million policy. One industry commentator
suggests that businesses should expect to pay between $5,000 to $50,000 a year for policies offering $1–10 million in cyber-related coverage.
Is there a role for cyber liability insurance in connection with transactions?
Absolutely. Cybersecurity concerns identified in due diligence can erode a company’s valuation, and worse, a data breach during an ongoing deal process can significantly derail a transaction. Not long ago, Yahoo was forced to renegotiate terms with Verizon after reporting its data breaches and lost approximately $350 million in deal value
as a result.
Frequently, when obtaining cyber liability coverage, a company will upgrade security assets, audit IT procedures and update or create IT security policies in order to reduce its premium. A client preparing for a sale process might consider undertaking these steps in any event to appear more attractive to buyers, and securing cyber liability insurance can be an effective way to signal to prospective acquirers that the seller has a strong cybersecurity program in place.
During deal negotiations it might also be useful to consider using cyber liability insurance as a risk allocation tool where the parties are otherwise struggling to address cyber-related threats with representations and warranties or special indemnities.
One economic research organization recently estimated
that only 20–35% of U.S. companies have purchased a cyber liability policy, so there should be ample opportunities to have a discussion with your client about the possibility of obtaining coverage.
On May 3, 2017, Nixon Peabody LLP hosted a Hot Topics in the Middle Market event entitled Private Equity Investing Outlook: What is Next for Investing in Health Care in its Manchester office. NP partners Andrew Share and Allan Cohen moderated a discussion featuring the following speakers:
- Charles L. Anderson, MD, Co-Founder and Principal, Exaltare Capital Partners
- Gray Chynoweth, Advanced Regenerative Manufacturing Institute
- Troy Dayon, Senior Director, Marketing, Medtronic Advanced Energy
- Daniel Head, Senior Vice President, Corporate Advisory & Banking, Brown Brothers Harriman
A summary of the panelists’ observations on the current state of the health care industry and investment opportunities is as follows:
- Trends and Opportunities: The panelists agreed that, as in many industries, consumers are seeking lower costs and increase transparency in the way services are provided. As a result, services and technologies that drive value for consumers are ripe for investment. Examples of the push for lower cost care are the proliferation of urgent care centers, the number of which increased 10% over 2016. When compared to emergency room visits, urgent care centers can provide services at a lower cost and with quicker access to physicians. Similarly, patients are also turning to ambulatory surgical centers for procedures that once required hospital stays. Advances in technologies have allowed these centers to provide services once only available at hospitals, and at lower costs due to significantly lower overhead expenses.
On the provider side, panelists saw a need for services that decrease waste and the cost of patient care. Services that allow for the sharing of patient data between providers will lead to decreased costs of care. Investment opportunities also exist in companies offering genetic risk profiling, which in many cases allows providers to predict future illnesses, leading to a proactive approach to care.
- Data Sharing: As the value-based healthcare model expands, the need for more accurate patient data increases. Providers will need patient data to report performance metrics to payers in order to demonstrate patient improvement, and payers will require data to justify reimbursements to providers. As a result, data security issues will remain a key issue as data is shared between these parties. Organizations will need to determine the proper allocation of risk in sharing patient data and complying with data security laws. The use of devices and other new (and often unsecure) technologies that collect patient data also complicates things. Working through these issues, however, could lead to lower costs for patients, providers and payers.
- Health Care Reform: The panel agreed that healthcare is often not as patient-centric as it could be. An example provided is the high rate in which patients receive the wrong medication during hospital stays. An anomaly highlighted by the panel is that health care costs per capita in the US are 30% higher than those in Europe, but Americans are no healthier as a result. Bloated costs are often attributed to fraud, abuse and miscoding errors. In light of these issues, the panel agreed that there are a plethora of investment opportunities in patient-centric services in technologies that may lead to reduced costs and waste from a provider perspective.
President Trump recently issued an Executive Order called “Buy American and Hire American,” requiring certain federal agency heads to suggest reforms to the H-1B visa program including how - and to whom - these visas are awarded. (Additional coverage of this development is available here).
H-1B visas are offered to foreign workers who are coming to the United States temporarily to perform services in a “specialty occupation,” and typically require the applicants to have highly specific knowledge and a specialized degree. The White House has asserted that the H-1B program is harmful to Americans because companies routinely pay H-1B workers below-market rates, which makes it more likely that these visa holders will replace similarly qualified American workers.
Reaction to this Executive Order from the business community – and particularly the tech industry – has been cautious. The tech industry, which is the most reliant on the H-1B program, has contended that this order will impede their ability to attract and retain top talent. The industry has asserted that a visa program that favors higher-paid workers will give larger, more established companies an advantage. Silicon Valley leaders have pointed to the large number of employees that are foreign born, arguing that immigration is an economic benefit, not a burden. The industry has also asserted that the H-1B program is essential to their ability to keep foreign high-tech students with unique qualifications in the US after getting their degrees, and that there is a shortage of qualified Americans for these jobs.
Specific implications from this Executive Order remain to be seen, but it is fair to say that those companies that have traditionally benefited from the H-1B program will be paying close attention to the reforms recommended by federal agencies.
The Wall Street Journal recently reported that tech is private equity’s new favorite industry.
This conclusion is based on the fact that buyout firms are increasingly targeting technology companies as stable businesses that could outperform even in a recession. In fact, tech deals account for 46% of all U.S. buyouts so far this year, which is an all-time high since 1995.
While PE firms previously shied away from tech companies because of the staggering pace of technological advances, they have warmed up to the more stable sectors of the industry that general steady revenue, such as corporate software providers. Software businesses are particularly attractive because they have recurring revenue models and strong macro tailwinds and are cycle-resistance.
Tech deals have been the exception to the otherwise slow private equity deal market and recent aversion to megadeals. Indeed, half the last year’s 10 largest buyouts were for multibillion-dollar tech companies, and many more deals are in progress.
Some firms remain gun-shy because of the high prices paid in recent deals and the dangers associated with quickly changing tech trends. However, others are confident that the private equity model of managing cost and engaging in strategic behavior will increase the value of their investments and result in healthy gains in an otherwise reluctant market.
A recent study released last week from West Monroe Partners highlights the continued and increasing focus on data privacy and cyber-security issues in M&A transactions. While the report notes that compliance problems at target companies are the most common cyber-security issue uncovered during the due diligence process, the report also notes that 40% of acquirers had discovered a cyber-security issue after a deal had closed, thus suggesting that there is significant room for improvement on the level of due diligence focus given to cyber-security matters during the pre-closing period.
Taking that a step further, acquirers will want to consider implementing a comprehensive review of a target company’s data privacy matters, rather than merely including one or two "check the box" questions on a due diligence questionnaire. Given the ever changing sophistication of cybercriminals, let alone the fact that many companies provide employees with the ability to access IT systems through non-company owned equipment (ie. telecommuting from home computers and mobile devices), the risk of data being lost, stolen, misdirected or misappropriated is simply unavoidable. Just how quickly acquirers can come to terms with a target’s risks, however, will not only help mitigate data losses, but will also help acquirers quantify the inevitable costs that will be required to be incurred to address issues (which no doubt will affect company valuations and purchase price multiples).
2015 was a record year for M&A activity in the semiconductor sector, with semiconductor companies spending a record $113 billion on acquisitions in 2015. However, 2016 brought a slowdown in the chip space, partially due to digestion of the 2015 acquisitions. With that slowdown in semiconductor mergers, enterprise software transactions have been there to fill the void. For example, recently, Qlik Technologies Inc. agreed to be bought by private equity firm Thoma Bravo LLC for about $3 billion, Salesforce.com announced a $2.8 billion takeover of Demandware Inc., and Vista Equity Partners LLC’s announced a $1.8 billion acquisition of marketing-software firm Marketo Inc.While the cluster of software deals has not risen to the 2015 record level of chip transactions, it is a growing trend of which both strategic and private equity investors should take note. In February, valuations of software companies retreated to the point private equity buyers started expressing interest, which then increased interest in these assets from strategics. This competition, in turn, has led to the best start to enterprise software M&A in five years in terms of deal volume, and is a trend that is likely to continue when analyzing the assets that remain available for both strategic and private equity investors.
The folks at PitchBook have crunched the data for U.S. private equity deal activity in the first quarter of this year and have outlined some very interesting early trends for 2016:
1. Private equity’s “buy-and-build” strategy continues to be a significant portion of the private equity investment activity with add-on investments representing nearly 70% of the private equity investment activities in Q1.
2. Macro-economic uncertainty and a competitive middle-market lending environment continues to reduce the use of debt in private equity deals in Q1.
3. While deals in the lower middle market may require additional effort, funds continue to find attractive valuations in this segment of the middle market with a bit less competition.
4. U.S. PE-backed sales saw a dramatic decrease in Q1 (as compared to the same period in 2015) with only 198 completed sales and not one PE-backed IPO!
5. PE-backed exits remain robust in the healthcare, business-to-consumer, and financial services sectors.
6. Private equity fundraising remains strong. Of the 71 U.S. private equity funds closed in Q1, 98% of all these funds either hit or exceeded their fundraising target. (More info on this trend from PitchBook can be found here.)
7. The median size of U.S. private equity fund vehicles in Q1 were larger relative to prior years.
8. Notwithstanding the increased median size of fund vehicles, limited partners appear to have an increased appetite for smaller fund vehicles (between $250 million to $500 million) with focused and niche investment strategies.
9. There is a higher success rate of private equity fundraising due to increased limited partner demand for established fund managers and for new managers with unique/specialized strategies.
(For additional information from PitchBook, please click here.)
Thus, while private equity deal activity was off to a slow start in Q1, the strong fundraising environment demonstrates limited partners’ continued confidence in private equity as an asset class and in the ability of private equity managers to carefully and creatively execute on their focused strategy in an otherwise uncertain economic time to generate consistent and attractive returns for its LPs.
Nixon Peabody hosted a roundtable discussion on March 9th in its New York City office in which panelists discussed the private equity investing outlook in the health care industry. This discussion was a part of Nixon Peabody’s ongoing Hot Topics in the Middle Market series. Panelists for this discussion included:
• Charles Anderson, MD, Co-Founder and Principal at Exaltare Capital Partners
• Keith Anderson, Managing Director at Piper Jaffray
• Lance Beder, Director, Transaction Advisory Services at Grant Thornton LLP
• Noah Kroloff, Partner at NGN Capital
• Barbara Morrissey, Esq., Legal Director, Office of the CIO at Northwell Health, Inc.
Following are a few takeaways from the various areas discussed by the panel:
- Investors in the healthcare industry are currently focusing on healthcare IT and medical devices as areas that will have strong investment opportunities in the coming year. In addition, investors are focusing on (i) the outsourcing of services, staffing and training with the goal to provide healthcare that does not require hospitalization, (ii) telehealth, and (iii) the mobility of information including secure texting. Healthcare IT is of particular importance to the segment given that the healthcare industry's adoption of technology continues to lags as compared to other industries.
- With respect to how healthcare systems themselves are investing, Barbara Morrissey, (Northwell Heath) reported that Norwell is looking to focus on joint ventures with small and large companies that either provide a product or service to the healthcare industry. One example of this is their partnership with GoHealth where the joint venture established urgent care centers whereby Northwell had the expertise and GoHealth had the infrastructure for such urgent care centers.
- As for the outlook for the deal market in this industry, the panelists thought that it remains a seller’s market. Accordingly, one main area of focus for service providers has been preparing a company to be sold. Associated with that preparation are a variety of tasks to complete to ensure that a company is ready for a sale, one being the conversion from a cash to an accrual based accounting methodology. With respect to legal due diligence, there are various tasks that need to be completed to ensure that a company is ready for a sale, including confirming that the selling company has been complying with all healthcare regulations, including securing all state licenses, obtaining all required insurance and complying with all privacy law issues.
2016 is a seller’s market, according to the panelists at our recent Hot Topics events. Investors, dealmakers and advisors came together in Boston and Los Angeles to discuss what’s on the horizon for private equity in 2016, including the impact of high valuations and rising interest rates on M&A activity, and the regulatory hurdles facing the financial institutions supporting the industry.
In Boston, panelists included:
• Gregory Bondick, Managing Director at Windjammer Capital Investors
• Jason Fennessy, Director at RSM US LLP
• Jay Hernandez, Director at Harris Williams & Co.
• Kevin Jolley, Managing Director at MHT MidSpan
• Matthew Keis, Managing Director at Gemini Investors
• William Nolan, Managing Director at H.I.G. Capital
• Andrew Shiftan, Managing Director at BHC Interim Funding, LP
The panelists had the following observations and predictions for middle market M&A activity:
Recap of 2015 – The past year had a healthy volume of M&A deals, with valuations in many instances at levels not seen since 2007. For many PE funds, fundraising was strong, giving these funds ample capital to deploy in 2016. The credit markets were also friendly to buyers with healthy balance sheets, giving many buyers sufficient cash to deploy on M&A activity. The health care and health care IT sectors were big winners in the past year, as companies and investors became increasingly familiar with the Affordable Care Act and corresponding investment opportunities. Brewery and SaaS-based businesses also drove high multiples.
The Year Ahead – The panelists agreed that while growth may have moderated, it is still a seller’s market. That said, sellers’ expectations may have started to exceed the market reality and valuations are likely plateauing. Despite this realization, the metrics driving deals will hold true. The middle market and lower middle market are a good place for buyers seeking reasonable valuations. Buyers who are flexible in terms of the capital structure of an acquisition and can provide certainty related to the closing of a transaction will continue to be more successful in competitive bid processes.
M&A activity will continue to follow growth sectors. The panel agreed that the natural and organics, outdoors, pet product and business services industries would remain hot. The pet products industry, for example, is growing faster than GDP and appears not to be affected by market cycles. The industrial sector will likely not fare as well, and finding growth here may be challenging. The revenue of companies in this sector is often tied to the oil and gas industry, which is hurting, and the U.S. dollar, the strength of which hurts companies who have operations offshore.
From a lender’s perspective, 2016 will continue to present challenges as banks, business development companies (BDCs), SBICs and insurance companies compete to deploy capital. Uneasiness will remain in the high yield market related to macroeconomic conditions such as the price of oil and China’s economy. At the upper end of the credit market, there is a lack of liquidity. Larger institutions are holding debt in industries like oil and gas that are not faring particularly well. Lenders are also facing regulatory pressure related to balance sheet requirements. The panelists agreed that only time would tell whether this uncertainty would trickle down to the middle market.
Speakers at our Los Angeles event included:
• Brad Meadow of SPK Capital LLC
• Andrew J. Howard of Shamrock Capital Advisors, LLC
• Naeem Arastu of Solace Capital Partners
• Saif Mansour of Breakwater Investment Management, LLC
• Brad Holtmeier of CriticalPoint Partners, LLC
• Yem T. Mai of Marsh Risk & Insurance
• Tracy Washburn Bradley of Fortis Advisors LLC
• Margaret Shanley of CohnReznick LLP
• Vince R. Lawler of Bernstein Private Wealth Management
Here are some of the key takeaways from the discussion:
Deal Environment – In general, 2015 was a sellers’ market with buyers competing for fewer quality assets and generally buyers paying top dollar in the process. With relatively modest economic growth forecasted in the U.S. for 2016, the consensus at the event was that corporate strategics would continue their strong pace of M&A activity in 2016 in an effort to acquire revenue streams to bolster their profits. Private equity funds would also deploy their abundance of “dry powder” in this environment on the buy-side (platform, add-ons, and growth investments), but would continue to do so only in a very selective and careful manner. Entrepreneurs and private equity funds will likely continue to seek opportunities to sell their companies, but should be aware that the high valuation environment may be showing signs of compression.
Valuations – Valuations remained high throughout much of 2015 and, in general, the increasingly elusive high-quality assets should continue to demand higher valuations in 2016. With that said, portions of the middle market (especially the lower middle market) showed signs of valuation misalignment between buyers and sellers during the latter part of 2015, and the general consensus is that this disconnect would likely continue in 2016. As a result, this misalignment has resulted in the increased use of earn-outs in the latter part of 2015 and will likely continue in 2016, especially in the life sciences and biotech sectors.
M&A in a Rising Interest Rate Environment – The general consensus is that the Federal Reserve’s anticipated gradual increase of interest rates should not dampen M&A activity in the U.S. in the short term, and that debt should remain generally available notwithstanding the volatility in the debt markets over the past few months. In the long term, however, there was some concern as to whether a higher interest rate environment in the near future might impact a private equity fund’s internal rate of return on companies bought today but sold in a higher interest rate environment in the future.
Preparing to Buy and Sell – Notwithstanding the competitive environment for desirable companies, the general view was that it is essential for companies approaching a sale today to engage in a thorough sell-side diligence process before engaging with prospective buyers. Such a process allows the seller to identify any issues that may impact the value of the business or the ability of the seller to close the transaction quickly. As noted during the discussion, the failure to identify and address issues before engaging with prospective buyers could result in a broken deal process, which could negatively impact the company’s business and valuation. On the buy-side, it was suggested that it is equally important for buyers to be patient throughout the process and invest the time to thoroughly understand the seller’s business and build stronger relationships with the seller’s management team – an evaluation and building process that may, at times, last more than a year. Spending that investment time, however, allows a buyer to fully understand the challenges and opportunities facing a company and gives the buyer the opportunity to be transparent with the buyer’s lending sources.
2016 Forecast – There was a cautious optimism that the M&A environment will continue to remain strong in 2016. Corporate strategics will remain active on the buy-side, who will likely do more “carve-out” transactions in 2016. PE firms will keep deploying capital, but they’ll continue to be patient and disciplined in their buy-side activities. Firms will also address the perennial issue of the “portfolio company overhang” and, in doing so, will continue to sell companies into a market with so many willing buyers. The new norm of rep & warranty insurance will continue in 2016 as more and more buyers obtain these policies in an effort to remain competitive for quality assets.