Abbott Laboratories (ABT) - Get Report filed a breach of contract lawsuit late Thursday against Alere (ALR) in an effort to obtain documentation and information as promised under their pending $7.9 billion cash and debt merger agreement.
While Abbott has not yet publicly said that it wants to back out of the Feb. 1 deal or has the right to do so under the transaction agreement, the lawsuit adds to conjecture that the medical device and diagnostics company wants out.
That said, Abbott spokesman Scott Stoffel wrote in an email to The Deal Thursday that the objective of the lawsuit is to obtain important information before the transaction is completed, and that the suit does not ask the court to break the deal.
"Abbott has reluctantly sought court intervention only after months of repeatedly and unsuccessfully attempting to get Alere to honor the agreement and provide information about business practices that are the focus of criminal and civil investigations that came to light after the merger agreement around federal anti-corruption, anti-kickback and U.S. healthcare laws," Stoffel wrote.
"Abbott would be responsible for the company upon close and has the right to understand these issues so that it can prepare to address them immediately," he added.
The Abbott Park, Ill.-based company's Thursday suit comes after Alere sued Abbott on Aug. 26 in the Court of Chancery. The point-of-care testing company has alleged that Abbott has dragged its feet in obtaining antitrust approval for their deal in an effort to kill the transaction, which has an April 30 drop-dead date.
Although mediation efforts between the two companies fell apart in September, Vice Chancellor Sam Glasscock III subsequently scheduled a preliminary injunction hearing on Alere's claims for Jan. 27, implying he still wants the two parties to keep discussions open.
A redacted version of the complaint will likely not become public until next week. Abbott has previously reiterated that it has acted in accordance with the merger agreement but has been delayed by Alere's failure and delay in providing audited financials as well as documentation related to product recalls, criminal subpoenas, investigations and control failures.
Specific matters of issue highlighted in previous documentation include a March filing by Alere that disclosed it had received a criminal subpoena from the U.S. Dept. of Justice regarding issues relating to the U.S. Foreign Corrupt Practices Act (FCPA).
Abbott has also pointed to issues at Waltham, Mass.-based Alere, including a U.S. DOJ criminal subpoena received in July involving its toxicology business, as well as the Civil Investigative Demands from the U.S. Attorney's Office for the Middle District of Tennessee that Alere received in July related to an investigation of possible improper claims submitted to Medicare and Medicaid.
The complaint to be filed in the next few days is expected to ask the Delaware chancery court to demand more information from Alere about these issues, among others.
Meanwhile, in a redacted version of Alere's complaint against Abbott that was made public on Aug. 30, Alere alleged that at a meeting of the two companies' top executives on April 19, Abbott general counsel Hubert Allen offered Alere $30 million to $50 million to walk from the deal and threatened to find a way out of the transaction if Alere did not take the offer.
According to the complaint, Allen said that "Abbott might simply run out the clock by failing to secure the necessary antitrust approvals" by the the drop-dead date. Alere alleged that the next day Abbott CEO and Chairman Miles White said his company "would make life a 'living hell for everyone at Alere'" if the company did not take the offer.
A judge has not yet been assigned to the case.
An Alere representative did not immediately respond to a request for comment on Thursday.
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