Monday, October 22, 2018
Ok, so Akorn has attracted a lot of attention - as it should. It's the first ever MAC seen in the wild. Of course, the Chancery opinion is going to get appealed, so it's not the last word on the issue. But for now, there it is and its facts are interesting. At the same time, there is another MAC case percolating in Chancery. You might remember I noted the Channel Medsystems v. Boston Scientific case. I pooh-pooh'ed the claim that an apparent embezzlement of $3 million was not a MAC/MAE under the current understanding of the law. So, is this where I eat crow? Uh...no. Here's why:
In Channel, the underlying claim is that a Vice President of Quality Assurance embezzled some $3 million from Channel. In order to cover his tracks, he apparently made up/forged receipts for stuff that was never purchased and, importantly, tests that were never conducted. All of this became known after signing of the agreement. In fact, in a surprising coincidence it came to light at basically the same time the problems with Quality Assurance came to light at Akorn. In Akorn, the blame was pinned on the VP for Quality Assurance, just like in Channel. In Akorn, those problems called into question the viability with the FDA of basically all of Akorn's products. In Channel, there is only one product, so that looks the same too. This is starting to look eerily like Akorn Part Deux. OK, Quinn, seems like it's time to eat some crow. Except it's not.
Channel is single product company where the product is still in development. At the time of the deal, getting a good sense of the valuation is hard because the company only has value if the FDA approves the project. That's reflected in the structure of the deal. The deal is basically structured as put/call rather than a typical merger. The transaction has an outside date of Sept 29, 2019. If, before the outside date, the FDA approved Channel's product, then Channel has an option to put the company to Boston Scientific for some $250 million, and Boston Scientific has a reciprocal call option. That's critical.
Boston Scientific is arguing that the embezzlement and the accompanying cover up by the VP has resulted in an MAE and so it's termination of the agreement was proper. Channel is seeking a declaratory judgment that the embezzlement was not an MAE and that the FDA will approve the company's product in the first quarter of 2019.
Let me skip to the chase. If the embezzlement and cover up is material, then one should expect the FDA to refuse to approve the product on schedule and the contracted September 29, 2019 outside will come and go without an approval, and Boston Scientific would not be required to complete the transaction since Channel's put option would not vest. If the embezzlement is not material, then the FDA will approve the product before the outside date and then Channel will put the company to Boston Scientific. In any case, this particular contract has a competent third party ready to do their thing - that is evaluate and determine whether Channel's product should be able to be sold on the market. Terminating the contract now, claiming there is a MAC, seems premature.
In the claim before the court right now, Boston Scientific's argument looks a lot more like buyer's remorse than it does a MAC. Because if the effect of the embezzlement was really bad, then under the terms of the contract, Boston Scientific will never have to close. If it's not and the product is approved before the outside date, there is no reason for Boston Scientific not to close.
Anyhow, that's how I see it, buyer's remorse, not a MAC.