As litigation funders find new disputes markets, PE firms should consider litigation funding as a growth sector — and as a valuable tool for de-risking portfolio company claims.

By Stuart Alford, Dan Smith, David Walker, Tom Evans, and Catherine Campbell

Litigation funding, the third-party financing of legal costs in disputes, is increasingly common in the UK. As litigants have become comfortable with sophisticated litigation funders, these funders are responding to business needs, and finding new disputes markets. The UK litigation funding landscape has begun to resemble the US, where external parties commonly finance a wide range of claims in return for a share of any ultimate litigation win. In our view, PE firms should consider litigation funding as a growth sector — and as a valuable tool for de-risking portfolio company claims.

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Litigation Funding: Drivers of a Growing Market

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Litigation funding is finding new markets. Increased use of group redress and group litigation orders is creating demand for funding. Following trends visible in American class action litigation, European legal systems are developing new group redress claims procedures. Germany and the Netherlands have well-established systems, and other jurisdictions (including the UK) are heading in the same direction. In fact, 60% of shareholder group actions are now outside the US. Group litigation includes related claims, e.g., mass torts affecting a large number of defendants, or similar-fact claims such as device malfunctions, or the VW emissions scandal. Group litigation can also facilitate unified actions where individual claims are financially unviable, such as shareholder actions.

Regulatory guidance on cryptoassets and digital currency companies may lead to a legitimisation of crypto-businesses as an investable asset class.

By Stuart Davis, Sam Maxson, David Walker, Tom Evans, and Catherine Campbell

Recent and upcoming regulatory guidance on cryptoassets and the regulation of companies engaged in digital currency, such as issuers, crypto-exchanges, crypto-custodians, crypto-brokers, and other service providers, could help facilitate private equity investment in this space. While there has been some institutional investment in crypto-businesses — such as Goldman Sachs’ investment in Circle (owners of the Poloniex crypto-currency exchange) and Tiger Global’s investment in Coinbase — this has been a relatively nascent market with most money coming in the form of early-stage and venture investing.

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Drivers of Volatility in Cryptoassets Values

Regulatory uncertainty has been a key driver in dampening the market value of cryptoassets. Regulators around the globe have issued warnings that cryptoassets may be regulated financial instruments, and issuers and intermediaries may require licences. Further, the application of AML/KYC rules to cryptoassets has been unclear.

By Catherine Drinnan and Shaun Thompson

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This year has seen a significant number of business failures, particularly on the high street, as businesses have struggled in the face of market fragility and Brexit uncertainty. When a UK portfolio company is underperforming, the presence of a defined benefit pension (DB) plan with a large deficit can be a significant problem. Companies with large pension deficits require contributions that affect cash flow and make exiting more difficult when the time comes to sell.

If a business slips into distressed territory, however, there are mechanisms whereby a company can divest itself of a DB scheme. As companies respond to Brexit and challenging conditions in some sectors, we believe that 2019 will see more of these types of arrangements. In our view, PE deal teams should consider how to respond if portfolio companies are at risk. While the mechanisms can be effective in allowing a company to continue trading (in some form), PE owners should note a number of important factors before deciding to attempt this.

By Drew Levin, Maarten Overmars, and Catherine Campbell

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Warranty and indemnity insurance (W&I) has become a common feature of European transactions in recent years, amid a strong sellers’ market that has enabled vendors to offload risk to buyers. According to the most recent edition of the Latham & Watkins Private M&A Market Study, which examined transactions between July 2016 and June 2018, the proportion of transactions employing W&I has continued to increase — from 8%, 13%, and 22% of deals in the previous three editions of the survey, to 32% for the latest period surveyed. We believe PE deal teams should be aware of changes and enhancements to W&I that will bring insurance coverage closer in line with the US market. In our view, the developments are positive for PE bidders.

The Impact of US Buyers on European W&I Policy Terms

US buyers are very active in the European deal market, and their influence is becoming increasingly evident in W&I terms. US buyers are pushing for more US-like W&I terms on European deals, and the changes have enhanced policies. Insurers are thinking outside of the box and providing new products. We believe US PE bidders will reap the benefits as policies begin to resemble their home market and PE bidders from other jurisdictions will also benefit as terms become enhanced.

By Suneel Basson-Bhatoa, Alex McCarney, and Catherine Campbell

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Consortium (or “club”) deals involving PE firms have become a common feature of the deal market throughout 2018, with sponsors teaming up with each other or with strategic partners to buy large-cap assets. To the start of November 2018, 20 consortium transactions worth more than US$1 billion were announced, compared to 17 transactions during 2017. Notable recent deals include a Blackstone-led consortium’s US$17 billion deal to acquire a majority stake in Thomson Reuters’ financial and risk business, and CVC and Blackstone’s US$3 billion deal to buy Paysafe. In our view, political and economic uncertainty in Europe, growing confidence in consortium deals worldwide, and the need to put significant amounts of money to work, could prompt international sponsors to target large public and private European companies previously out of reach.

Consortium deals are effective in pursuing these large transactions, however in our view, consortium deals can present challenges.

By Nicola Higgs, Fiona MacLean, Brett Carr, and Catherine Campbell

Technology outsourcing by financial institutions (FIs) has increased in recent years as FIs look to the latest innovations to improve their day-to-day business processes and to reduce costs. FIs outsource key functions to a host of regulated and unregulated third-party service providers, and the sector is poised for continued growth. According to research conducted by business outsourcing provider Arvato and analyst firm NelsonHall, outsourcing agreements worth £6.74 billion were agreed in the UK last year across all industries (a 9% increase on the prior year), and financial services firms signed £3.26 billion of them. With this continued growth, the outsourcing sector is increasingly likely to be a hotbed of PE deal activity; and, as regulators place a greater focus on outsource providers, deal teams should monitor regulatory engagement and policy developments.

Outsourcing Companies Evolve

IT and business process outsourcing are converging, meaning outsourcing deals are now different to the traditional, bespoke, dedicated service arrangements firms have entered into in the past. Modern-day outsource providers who have grown exclusively as tech companies are looking to meet the demand for processing and administration solutions for financial products and services in a heavily regulated environment. Notably, the Financial Conduct Authority’s (FCA’s) recent Investment Platforms Market Study identified that most investment platforms purchase their technology from third-party providers, and more than half of the platforms the study considered are in the process of re-platforming to a new provider. Less than a third of firms in the study rely on proprietary technology. Areas such as cybersecurity and data analytics have also become increasingly important for the sector, driving demand for specialist third-party providers with robust processes.

By Simeon Rudin and Beatrice Lo

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Recent private equity investments in high-profile deals, such as Bain Capital’s acquisition of esure and Apollo’s acquisition of Aspen Insurance, have brought European insurance sector deal values to record highs. Regulatory changes and regulators’ changing perceptions of PE firms have contributed to increased M&A activity, bringing new opportunities for insurance business investments from buyout firms and increasing competition for insurance assets. In our view, with more PE firms and other new entrants in the market for insurance sector targets, there will be a strategic advantage for firms that are well-prepared and familiar with industry-specific issues, which require navigation to achieve a successful deal.

Drivers of Insurance M&A

The implementation of the European Solvency II Directive (Solvency II) in 2016 introduced major changes to solvency and supervisory regulation for the insurance industry. As the industry has adapted to Solvency II requirements, the process of achieving capital compliance has required that European insurance groups examine their businesses. Such examination has resulted in these groups frequently identifying assets and businesses suitable for divestment. Brexit may lead to further review of assets and capital requirements, which in turn may create sale opportunities — for example, disposals by UK insurers of marginal EU businesses. This shuffling of assets (by sale of companies, transfers, or reinsurance, depending on the circumstances) has created opportunities for private equity to access insurance investments.

By Paul Davies and Catherine Campbell

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In recent years, China has taken significant steps in developing its environmental policy. In 2014 China’s Premier Li Keqiang declared a “war on pollution”, which began in earnest in 2017. Since then, regulators have been more proactive in enforcing environmental regulations. Factory closures have become a key part of this strategy, causing significant disruption to the global supply chain this year.

In our view, dealmakers should carefully consider environmental and supply chain due diligence in China, as companies work out how to navigate the factory shutdown process. PE firms should review whether portfolio investments and target companies are likely to be affected in the event that critical supply chains are broken. Engagement with environmental agencies in China is useful, but environmental policy and consistent regulatory enforcement are still maturing. The appropriate level of due diligence could prove to be critical to a portfolio company’s ongoing operations.

By Ben Coleman and Catherine Campbell

Public to private deals (P2Ps) have remained a strong feature of the UK private equity deal market in 2018, with five take-private bids reaching an enterprise value of more than £1 billion already this year. Large P2Ps have already surpassed 2017 totals, which saw just one PE bid for a public company above the £1 billion mark. The increase in P2P deal values has also been coupled with greater P2P activity generally over the past couple of years. There were 18 P2Ps in 2016 and 14 in 2017, compared to just four P2Ps in 2013 and nine in 2014. Club deals have also become more common, demonstrated by Blackstone and CVC’s acquisition of payments company Paysafe last year.

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Will the trend continue?

We believe that the steady flow of P2P transactions is likely to continue, driven in part by a scarcity of high-quality private assets for sale in the UK market. PE deal teams are seeking opportunities in public markets and are increasingly scouring these markets for value. Companies under siege from short sellers, or undervalued by shareholders, can result in under valuations, offering PE firms opportunities and offsetting the significant bid premium required on a public takeover deal.

By Jonathan Parker, Calum Warren, and Catherine Campbell

The UK government has assumed an increasingly interventionist approach to foreign takeovers in recent years. In June 2018, the UK adopted new powers to review deals on national security grounds, extending the scope and breadth of its control regime. In July, the UK went a step further and published a White Paper on a new and significantly extended foreign investment notification regime, which likely will lead to wider and closer scrutiny of many transactions, including private equity deals.

The government’s jurisdiction over transactions is expanding with most areas of the economy within scope, new information-gathering powers, longer review periods, and stricter penalties for noncompliance. Changes could come into effect as early as next year, and deal teams must assess the implications for private equity deals.

National security review anticipated to catch more deals than current merger control regime

The new regime is intentionally broad and has the potential to catch almost all deals. Indeed, the government has made it clear that no sector is off limits. Energy, communications, transport, and nuclear likely will receive the most focus; however, national security concerns can arise in any deal.