In this episode of The Professor’s Corner, Mark Freedlander is back to continue the discussion on the ways a sponsor company can find themselves liable if their portfolio companies enter financial distress. 

Having debt recharacterized as equity is the next level of exposure that sponsors need to understand. 

Simply calling something debt doesn’t cut it. Being unclear in the management of debt versus equity can open sponsors up to companion fraudulent conveyance claims if the courts recharacterize a company’s debt. 

The last piece of the liability puzzle focuses on breach of duty claims. If a sponsor is sitting on the board of one of their portfolio companies, they need to stay informed of the company, its financials, and potential liquidity issues. This awareness can be the difference between creating or avoiding liability issues. 

“When a portfolio company runs into trouble [...] it may very well make sense for an independent director to be brought into a company,” explains Mark. “Having an independent director that is truly independent can provide a significant level of protection to the financial sponsor or the equity sponsor.” 

For sponsors concerned about potential liability exposures, Mark offers insight into different situations that a sponsor may encounter, discussing the protection that is available to a sponsor who recognizes problems early and takes a cautious approach. 

This is the second episode in a two-part series. If you haven’t listened to the first half yet, check out the previous episode for an overview of statutes and claims that sponsors need to keep on their radar.  

Name: Mark E. Freedlander

What he does: As a Partner at McGuireWoods, Mark has been advising clients about creative, business-oriented solutions to matters involving financial distress for the past 25 years. Mark is a goal-driven problem solver whose clients benefit from the creative, pragmatic, and strategic perspective he brings to each engagement.

Organization: McGuireWoods

Words of wisdom: “The more attention to detail you do pay, the better that your records are, the greater the level of deliberation about things that are close calls — the better off a sponsor will be.” 

Connect: LinkedIn

Top takeaways from this episode

• Calling something debt doesn’t mean it’s debt in the eyes of the law. According to Mark, recharacterization of debt will occur under common law, and the courts may consider debt instruments to be equity, which can add additional exposure to the sponsor. 
• Sponsors can be liable when you can’t differentiate the sponsor and the portfolio company. Liability is often created when the sponsor has significant control over its troubled portfolio company. The most common instances arise under ERISA for anything from COBRA claims, warrant claims, or pension plans. 
• Sponsors who sit on the board of portfolio companies need to be informed. Board members have a duty of care and a duty of liability that needs to be fulfilled. Awareness of what’s happening with the company, its financials, and any potential liquidity issues can be the difference between creating or avoiding a liability situation.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

Many investors take on an operating thesis that, by law, the obligations of investment companies are not the obligations of the investor. They apply this whether their fund has invested in the securities of a limited partnership, a limited liability company, or a corporation. 

In this episode of The Professor’s Corner, McGuireWoods’ Mark Freedlander joins host Geoff Cockrell to explore the limits of this idea. 

As chair of the bankruptcy group, Mark has seen a host of real-world examples where sponsors of private equity funds get themselves in trouble when their portfolio companies are experiencing financial challenges. 

“If you're a sponsor that owns a distressed company, you need to be careful with money and things leaving that company — both in terms of the timing of when that's happening, the nature in which it's happening, and the value,” Geoff explains. “Recognize that all of those transfers will be looked at after the fact with different eyes.”

It’s within normal course of business for sponsors to be overseeing aspects of the day-to-day management of their portfolio companies. However, if you’re a sponsor that owns a distressed company, you need to be careful about monetary decisions and money leaving that company. 

On this first of two episodes on this topic, both Mark and Geoff review examples of potential issues drawn from real-life situations they have lived through and experienced, along with their experience on the litigation side of these issues. The next episode will continue the discussion where they left off, looking deeper into the nature of these claims and reviewing proper board management. 

Name: Mark E. Freedlander

What he does: As a Partner at McGuireWoods, Mark has been advising clients about creative, business-oriented solutions to matters involving financial distress for the past 25 years. Mark is a goal-driven problem solver whose clients benefit from the creative, pragmatic, and strategic perspective he brings to each engagement.

Organization: McGuireWoods

Connect: LinkedIn

Top takeaways from this episode

• Patterns emerge in troubled portfolios. According to Mark, it’s common for sponsors to see potential claims asserted against them.
• It’s important to understand preference statutes when it comes to payments. A preference statute exists to ensure creditors are treated fairly. Often this will come into play when reviewing payments and antecedent debt with a transferee.
• Fraudulent conveyance is designed to protect creditors from fraud. Compared to preference statutes, fraudulent conveyance exposure doesn’t have the same defenses as a preference action.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

It’s nine to 12 — maybe even 18 — months after the deal closed. There’s an R&W policy in place; the purchase agreement covers an array of representations and warranties. But you become aware of something that might be a breach. 

Tony Tatum, a partner at McGuireWoods and head of the Insurance Recovery Practice, certainly knows the ins and outs of claims, and how to properly see them through to fulfillment. 

In this episode of The Professor’s Corner, Tony walks listeners through the process of filing a claim, citing the internal and external issues that might arise, as well as errors to look out for from the beginning. He discusses the importance of gathering evidence, being thorough, advocating for your company, and mitigating losses.

“In some ways, you don't want to go overboard, but you certainly want to start gathering [evidence] — two or three key buckets of emails or other communications. Of course, right off the bat are things that are critical to whatever that issue is,” says Tony. “And be looking at the knowledge provision and the insurance policy.”

Name: Tony Tatum

What he does: As a Partner at McGuireWoods, Tony is co-lead of the Insurance Recovery Practice. With more than 23 years of litigation practice, Tony represents both prominent public and private companies on insurance coverage and complex commercial disputes.

Organization: McGuireWoods

Words of wisdom: “You want someone who's got that expertise to be thinking about the issues and making sure that you're crossing the Ts and dotting the Is as needed.”

Connect: LinkedIn

Top takeaways from this episode

• There are two sides to every claim: internal and external. When a claim is filed, Tony breaks it down into two buckets. Doing so helps prevent missteps while also preparing for every possible outcome. 
• Be thorough with information gathering. From the moment of a potential breach, information and evidence gathering should begin. This is crucial to proving a breach and reaping the benefits of the filed claim. 
• Advocate for answers. When it seems like the insurer might be dragging their feet with little intention to pay the claim, do not hesitate to advocate for your company. Call, ask questions, and be a little reminder that the claim is still there and you have proof to back it up.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

The women’s health sector is an incredibly diverse subset of businesses covering multiple specialties, including women’s health, fertility, and ancillary services. 

Kayla McCann Marty, an Associate at McGuireWoods, shares her expertise on women’s health investing, broadening how people think of the many different sub-sectors attracting regulatory and investor interest in the space. 

Ancillary services and connections from practices to the local health system are two of the ways Kayla sees businesses in this sector growing. For example, building surrogacy matching programs internally or utilizing referrals are both successful growth strategies that businesses can use to expand their footprint. 

Increased demand through market conditions, attractive ancillary services, and new opportunities for reimbursement are playing into the fertility market, which Kayla describes as “white hot.” These combined factors are contributing to the attention being paid to businesses catered towards women’s health. 

On this episode of The Professor’s Corner, Kayla and McGuireWoods’ Geoff Cockrell talk through all aspects of women’s health investing from growth models, regulatory concerns, and what to expect in the future from this very active sector of the market.  

Name: Kayla McCann Marty

What she does: As an Associate at McGuireWoods, Kayla focuses her practice on healthcare transactional law, representing healthcare providers, including hospitals, ambulatory surgical centers, dialysis centers, physician practices, private equity funds, and lenders, in healthcare transactions and compliance matters.

Organization: McGuireWoods

Words of wisdom: “I think the next frontier of value-based care in the women's health sector is trying to bring in the cost of the total continuum of care by preventative care for a woman — from day one when they become pregnant, all the way through excellent care when they deliver their baby and maybe even on into pediatrics.” 

Connect: LinkedIn 

Top takeaways from this episode

★ There are many growth models worth exploring in women’s health. Some firms opt for de novo growth, while others will focus more on acquisition.

★ The fertility sub-sector is “white hot.” Increased interest in the fertility sector is due to a combination of factors. Demand is growing with more women utilizing fertility services combined with the shortage of physicians specializing in the field.

★ Do your research to avoid regulatory compliance issues. The number one area that can trip up investors in the space is not thoroughly reviewing state law restrictions on ownership, investment, and profitability of ancillary investments.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

In the healthcare industry, some of the biggest policy compliance issues and violations can go unnoticed for too long — until it’s too late.

Just ask Timothy J. Fry, today’s guest on The Professor’s Corner. As someone who worked in the healthcare policy world for five years, including nearly two years as a staffer at the Centers for Medicare & Medicaid Services, Timothy has seen just about every mistake in the business. 

As a current Partner at McGuireWoods, that experience gives him a unique perspective on healthcare regulatory compliance. 

So when it comes to some of the most common mistakes like Stark Law violations or billing and coding issues, is the smartest strategy to self-disclose to the government, or to settle with indemnity? The answer isn’t as simple as you might think.

Tim joins us on this episode of The Professor’s Corner to talk about the most common mistakes he sees in healthcare policy compliance, the potential consequences, and the smartest ways to resolve these issues.

Name: Timothy J. Fry

What he does: As a Partner at McGuireWoods, Tim helps clients navigate compliance and regulatory issues in the healthcare industry. As a former staffer at the Centers for Medicare & Medicaid Services, he has unique insight into healthcare policy from the perspective of policymakers.

Organization: McGuireWoods

Words of wisdom: “Today, it is very much a market position of many of these transactions, as they trade for self-disclosure to take place. And so as a buyer, if you don't cut it off at the time you do your transaction, it is very likely you're going to get pushed into it. And you have to bear that expense during that recap opportunity.” 

Connect: LinkedIn  

Top takeaways from this episode

★ Stark Law violations often go unnoticed. Also known as the physician self-referral law, it’s common for healthcare groups to make mistakes on revenue splits for referrals. Unfortunately, these mistakes are often not caught until a client begins working with counsel.

★ Indemnity is not always an option. That’s because the Stark Law has the potential to trigger the False Claims Act, which comes with exorbitant fines. To avoid triggering the False Claims Act and a potential whistleblower situation, the best thing healthcare companies can do is self-disclose to the government.

★ For billing and coding violations, go with indemnity. Unlike Stark Law violations, common billing and coding mistakes should be settled with indemnity or smaller repayments rather than full self-disclosure. These settlements often offer some flexibility based on the scale of the issue.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

In healthcare transactions, people often think that antitrust is a big corporation’s problem. However, smaller companies need to think about these issues, too.

There have been recent developments on both state and federal levels, calling for greater regulation in the healthcare space. More statutes have been put in place to catch smaller transactions statewide, and in 2021, the Federal Trade Commission and Department of Justice were ordered to take a close look at antitrust in the healthcare industry. 

In the last couple of years, multiple criminal cases have been brought against individual healthcare providers and corporate entities alike. Oftentimes, these people don’t even realize that certain actions can subject them to criminal liability. 

Luckily, there are specific measures you can take to mitigate risk and ensure that you maintain antitrust compliance. From your pipeline strategy and business goals to team training and education, analyzing through an antitrust lens can help you avoid issues and efficiently secure a deal.

In this episode of The Professor’s Corner, host Geoff Cockrell interviews Holden Brooks, Partner of McGuireWoods’ Antitrust, Trade, and Commercial Litigation Department, to discuss the best practices to manage antitrust risk in the healthcare space. 

As an expert in antitrust law, Holden details new developments and regulations to help prepare you for deals and avoid antitrust risk — no matter the size of your business.  

Name: Holden Brooks

What she does: Holden is a Partner of McGuireWoods’ Antitrust, Trade, and Commercial Litigation Department. Her practice focuses on mergers, complex litigation, civil and criminal enforcement, and counseling across industries with significant experience in the area of healthcare.

Organization: McGuireWoods

Words of wisdom: “I think there are a lot of ways that providers can get in trouble in that market allocation area, because I think there's always a sense that they're professionals, that making decisions about who's going to do what is part of practicing medicine in a collaborative way. But the antitrust division really is looking at that in the same way they would in any other industry where there's an effort to reach agreement about how you're going to compete or not compete.”

Connect: LinkedIn

Top takeaways from this episode

★ There are common antitrust myths regarding smaller companies. The biggest risk for healthcare businesses — even smaller ones — entering into transactions is that they don’t know what they don’t know. There are specific state requirements and federal enforcements that have recently developed. For example, in Nevada, Washington, and Connecticut, there are state statutes and sophisticated Attorney General offices that can catch smaller transactions. Ultimately, a greater amount of smaller deals in the healthcare space are being scrutinized.

★ Managing antitrust risk requires time in the pipeline stage. You can get great ROI if you’re smart about your pipeline, and this is the first step to help you manage risk. If you can create an acquisition strategy that doesn’t involve consolidation in anything within an antitrust-relevant market, then you can still harness the scale without incurring antitrust risk. 

★ Certain behaviors can tie into criminal aspects of antitrust. Within the last couple of years, there have been multiple criminal cases brought against individual healthcare providers and corporate entities. These criminal behaviors include price fixing, dividing the market by geography, or dividing the market by drugs. Sometimes, people have no idea they’re executing criminal behaviors. So, it’s important to get educated and train your team to understand the guardrails. 

[01:19] The myth around antitrust issues: Holden explains why everyone needs to think about antitrust issues — not just big companies.

[02:06] State and federal statutes: Holden discusses the recent changes in specific state and federal statutes and how they could affect small roll-up deals. 

[05:39] Managing antitrust risk: Spend more time in the pipeline stage and highlight the positive motivations behind a transaction.

[08:42] Criminal aspects of antitrust: The different ways that individual healthcare providers and corporate entities can get in trouble.

[12:27] Educating your people on antitrust topics: Holden details what investors and businesses should do to get educated, train their people, save time and money, and ultimately avoid liability. 

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

The last quarter of 2021 was a rough one for the health care sector, and naturally, carriers felt the effects: they had written beyond their budgets, and resources were stretched to their limits.

“I don't think the market has ever seen rates go that high,” says Sumit Agarwal, who works in mergers and acquisitions at Marsh, one of the world’s leading insurance brokerage firms. Demand was high and deals were closing at a record pace, which made placing deals that much more difficult. 

The strain on the system led to the reintroduction of exclusions of important factors like representations and warranties insurance which, if not included in the deal, “it’s not worth it,” Sumit says.

Prospects are looking a bit brighter for 2022: those exclusions have mostly fallen away, but the market is still recovering as prices go down and carriers try to settle rate prices and averages.

In this episode of The Professor’s Corner, we’re joined by Marsh’s Sumit Agarwal and Sam Bell who tell us more about the current climate for healthcare acquisitions, what we can expect for the year ahead, and mistakes to avoid when making deals.

Name: Sumit Agarwal

What he does: Sumit is the Senior Vice President of Mergers and Acquisitions at Marsh, where he deals with transactional risk.

Organization: Marsh

Words of wisdom: “Being involved in the conversation from the start helps us overcome some challenges that may arise later in the process. And when you're looking at the eleventh hour to secure a policy, we could have gotten well ahead of it if we were brought in a lot earlier.” 

Connect: LinkedIn

Name: Sam Bell

What he does: Sam is Vice President of Marsh, where he is responsible for attracting new clients and servicing all of their commercial insurance brokerage and risk management consultation needs.

Organization: Marsh

Connect: LinkedIn

Top takeaways from this episode

★ The end of 2021 strained the health industry. That’s because there was record demand for healthcare deals with many being underwritten by managing general agents who had reached their maximums a lot earlier in the year than in years past. Because of those challenges, negotiations saw constraints that are no longer a problem in 2022. “There is no healthcare regulatory-related exclusion. Everyone is willing to underwrite it; it's just finding the right market to do it,” Sumit says.

★ Make sure your legal team is involved in acquisitions early on. One of the biggest mistakes Sumit and Sam see at Marsh is buyers involving their brokerage team too late in the game or hiring a third-party to speed up the due diligence process. At the very least, a full report detailing the diligence that has been done is necessary to smoothly carry out a deal. “That way, we can mark it to deal appropriately and accurately with the best carrier suited for the risk,” Sumit says.

★ Small transactions might not be worth it. For example, having a $20 or $30 million deal would allow as little as  $1 million to $5 million in limits. With the added acquisition costs and risks, the costs might not outweigh the benefits.

[00:32] Meet our guests: Sam and Sumit both work with Marsh, one of the world’s leading insurance brokers and advisors.

[1:23] Looking forward: The last quarter of 2021 was a difficult one for private healthcare carriers, but things are feeling a little different this year. Sam and Sumit talk about what went wrong last year and what to expect in 2022.

[07:34] What to avoid: Sumit tells all about the biggest mistakes they’ve seen in both corporate and private equity health care acquisitions.

[11:09] Too small to succeed?: Can a deal be too small to make sense? Sumit explains which transaction sizes are worth your time.

[15:06] Special products: ‘Special product’ transactions, like underwriting the risk of PPP loan reimbursement, for example, carry specific risks, Sumit explains.

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Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

When preparing a private equity-backed investment, it’s likely that something called a “representation and warranty” insurance policy, or “reps and warranty,” will be discussed. These policies help to minimize exposure in corporate transactions.

In healthcare deals, two types of exclusions can be requested by the reps and warranty insurer: general exclusions and specific exclusions. General exclusions arise before the due diligence process, while specific exclusions are a result of things uncovered in the due diligence process. 

The end of 2021 showed a significant increase in general exclusions for coding and billing, which left companies exposed to risk from the False Claims Act. This trend started shifting around in early 2022, but is still something that should be examined by counsel. 

When specific exclusions are proposed by an insurer, it’s important for counsel to narrow the scope of the exclusion so that the deal can have the most comprehensive reps and warranty coverage possible. 

In this episode of The Professor’s Corner, host Geoff Cockrell brings on a fellow McGuireWoods partner, Trey Andrews, to discuss how to navigate both general and specific exclusions when purchasing a reps and warranty policy. 

With experienced attorneys like Geoff and Trey, it’s much easier to have the leverage needed with reps and warranty insurers, establishing rapport and developing trust in their extensive private equity experience. 

Name: Trey Andrews

What he does: As a Partner at McGuireWoods, Trey is a member of the healthcare transactions team. He focuses on private equity-backed healthcare acquisitions. 

Organization: McGuireWoods

Words of wisdom: “At McGuireWoods, we do a substantial amount of these healthcare private equity-backed transactions, where quite a few [of those deals] have reps and warranty policies put in place. I think that gives us the benefit of having colleagues to go to who really understand how this issue has been dealt with by others.”

Connect: LinkedIn 

Top takeaways from this episode

★ General exclusions for billing and coding can have a far reach. Billing and coding are how healthcare organizations generate income. When that function is excluded in a reps and warranty policy, it can be very risky. For example, exposing the client to litigation from a False Claims Act. It’s more common to see these exclusions in home health and hospice providers who generate a large volume of claims. 

★ Specific exclusions are born out of the due diligence process. An insurer might discover something too risky for them to cover while reviewing a company’s due diligence. Healthcare organizations often operate in gray-area decision-making, so it’s important for counsel to explain how something that seems risky on the surface is part of the nature of the industry. 

★ There are 3 steps to negotiate exclusions in a reps and warranty policy. Trey recommends communicating openly with the carrier regarding gray areas, working to minimize the scope of exclusions by demonstrating an understanding of the industry, and giving the carrier a sense of how other players in the market have viewed the same risk.

[00:47] General vs. specific exclusions: Geoff runs down the basics of general and specific exclusions in reps and warranty policies.

[02:00] Billing and coding exclusions: Trey explains how the False Claims Act potentially exposes companies with billing and coding exclusions in their policies. 

[04:44] Q4 2021 to Q1 2022: Geoff and Trey go over some of the trends that have been quickly changing in the reps and warranty market. 

[07:26] Know your stuff on billing and coding: Be thorough in examining the client’s billing and coding through chart audits. 

[11:10] What to disclose to the insurance carrier: There are times when a company is operating in a gray area within healthcare law and while it’s not necessarily a deal-breaker, it’s important to disclose that in the diligence memorandum and discuss it with the carrier.

[14:36] 3 steps for fewer exclusions: Trey breaks down exactly how he negotiates with insurance carriers to minimize exclusions.

Connect with us on Facebook, Twitter, Instagram, YouTube.

Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode. 

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

In the premiere episode of The Professor’s Corner, David Pivnick, Partner at McGuireWoods, shared best board practices to mitigate risk when making challenging decisions. In this follow-up episode, David expands on a larger trend in healthcare litigation: private equity funds are finding themselves legally responsible for the activity of the companies in their portfolio.

David believes these claims are driven primarily from the whistleblower bar and not the Department of Justice. By leaning on Qui Tam laws, litigators can cast a wide net in who they name in their court filings.

Despite these cases being relatively easy to defend, they still require significant investments in time and money.

To minimize a private equity fund’s risk spectrum, investors should think proactively about board practices, ensuring that relationships are appropriately vetted, and that specific concerns are addressed and corrected. In addition, especially when making decisions that involve substantial gray areas, owners need to seek counsel to ensure the legality of their choices.

Name: Geoffrey Cockrell

What he does: Geoff is the Chair of McGuireWood's private equity group and serves on the firm's Board of Partners; he has extensive experience in mergers and acquisitions, especially in the healthcare space.

Organization: McGuireWoods

Connect: LinkedIn

Name: David Pivnick

What he does: As a partner at McGuireWoods, David co-chairs the Healthcare and Life Sciences Industry Team. David primarily practices complex commercial litigation in healthcare.

Organization: McGuireWoods

Words of wisdom: “The darker the shade of the gray, the more likely that conduct ends up coming under scrutiny generally, which means it's more likely that as an owner, you could get swept up in an investigation.”

Connect: LinkedIn

Top takeaways from this episode

★ Qui tam rules make it easier for litigators to include private equity funds in their claims. The growing trend of litigating against PE funds is driven primarily from the whistleblower bar, not the Department of Justice. While these claims rarely carry much legal weight, they can lead to significant financial strain for investors who must hire a legal defense team.

★ The darker the gray, the greater the risk. Most claims against PE funds from the Department of Justice include clear misconduct by investors who serve on their portfolio company’s board. David warns that making decisions that involve a lot of gray area opens everyone involved up to a greater risk spectrum. Seeking counsel in these situations is recommended.

★ Investors have a responsibility to ensure proper conduct. Because most boards in private equity-funded healthcare companies are decision-making boards, investors would be wise to ensure that companies in their portfolio are following regulatory compliance standards.

[01:33] A growing trend: David sees increasing instances of the government pursuing claims and investigating the potential for claims against private equity funds.

[02:06] Improper conduct: David outlines past examples of how PE funds have gone to court for allegedly engaging in improper activity for financial gain.

[03:39] Identify problematic areas: David presents a spectrum of activity for private equity funds to pursue to bolster best practices and mitigate risk.

[06:21] In pursuit of deeper pockets: The Department of Justice and the whistleblower bar have differing mindsets about when and why to pursue private equity funds in litigation.

[07:24] Qui tam’s wide net: David and Geoff discuss how whistleblowers can leverage qui tam rules to target a broad range of defendants.

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Subscribe to The Professor’s Corner in your preferred podcast app so that you never miss an episode.

This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.

A recent whistleblower case in Massachusetts has rocked the widely accepted notion that private equity investors are insulated from risk beyond the scope of their financial investment.

In the case, the Massachusetts Attorney General pursued claims for purportedly improper and fraudulent billing against the underlying healthcare provider but also pursued the private equity fund that invested in the entity and had board members involved at the management level.

While the case ended in a settlement for the private equity fund, it’s important to remember that the fund neither accepted nor denied guilt in the situation.

However, regardless of guilt, the fund was viewed as a potential area of pursuit in litigation. This fact alone is noteworthy and warrants further discussion.

David Pivnick, Partner at McGuireWoods and expert in complex corporate healthcare litigation, weighs in on the scenario and draws an important distinction between the role of investor as owner and the role of investor as decision-maker.

On the premiere episode of The Professor’s Corner, David tells McGuireWoods’ Geoff Cockrell how funds can limit risk and lead with a compliance-driven mindset. Seeking counsel, documenting deliberations, and providing regular compliance training sessions for board members are worthwhile investments.

Name: Geoffrey Cockrell

What he does: Geoff is the Chair of McGuireWood's private equity group and serves on the firm's Board of Partners; he has extensive experience in mergers and acquisitions, especially in the healthcare space.

Organization: McGuireWoods

Connect: LinkedIn

Name: David Pivnick

What he does: As a Partner at McGuireWoods, David co-chairs the Healthcare and Life Sciences Industry Team. David primarily practices complex commercial litigation in healthcare.

Organization: McGuireWoods

Words of wisdom: “If you’re not comfortable putting in writing how you landed at a decision and how factors were ultimately weighed, to me, the bigger sign is not, Don’t put this in writing at the board level. It’s: Don’t make that decision, and go on a different pathway.”

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Top takeaways from this episode

★ Having the best intentions makes a difference. According to David, there’s an important distinction to be made between a board that seeks counsel and makes an educated (but ultimately bad) decision and a board that is directly informed of misconduct and looks the other way or proceeds despite the warnings.

★ In difficult situations, document deliberations to clarify the rationale. Boards should not be afraid of documentation. Often, legal issues arise months to years after a decision is made. When a minimal paper trail exists, it is hard to demonstrate the debate and reasoning behind past choices.

★ Ensuring best practices in compliance should extend to the board level. For example, forming a compliance committee or identifying a compliance officer who can speak candidly with private equity investors allows the board to minimize risk.

[00:38] A jarring settlement: Geoff and David discuss a recent court case that has potential implications for private equity funds — risk extends beyond financial investment.

[02:51] Ownership vs. board involvement: David differentiates between a private equity investor’s role as owner and as decision-maker.

[04:52] The gray area: David discusses how board leadership can make nuanced decisions when there isn’t a clear black and white answer.

[06:48] Documenting deliberation: David explains the importance of record-keeping and compliance for board-level leadership.

[12:41] ‘Don’t put it in writing’: David raises a red flag in scenarios where individuals or groups are hesitant to document conversations.

[16:15] The ‘one purpose’ rule: Geoff and David talk about the Anti-Kickback Statute and the importance for private equity funds to operate with a compliance-focused mindset.

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This podcast was recorded and is being made available by McGuireWoods for informational purposes only. By accessing this podcast, you acknowledge that McGuireWoods makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information featured in the podcast. The views, information, or opinions expressed during this podcast series are solely those of the individuals involved and do not necessarily reflect those of McGuireWoods. This podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state and should not be construed as an offer to make or consider any investment or course of action.