The Corner Series The Legal Implications of Board-Driven Decision Making (Pt. 2)
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.
Featured Experts
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
Notes From the Professor’s Corner
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.
Episode Insights
[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.
Contact
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.