NEW YORK (The Deal) -- Activist investor Eminence Capital LLC threw the latest volley in the battle over the future of Jos. A. Bank Clothiers (JOSB) by filing an amended lawsuit in Delaware court arguing that the company not only is refusing to negotiate a potential acquisition by Men's Wearhouse (MW) but that they also appear to be on the "cusp" of announcing a "blocking" acquisition of Eddie Bauer.
The insurgent, which filed an amended complaint obtained by the Deal Wednesday morning, said that the "non-core" acquisition would "diminish" the company's value and make Jos. A. Bank an "unattractive target for Men's Wearhouse."
The original suit, which was filed by Eminence on Jan. 13, came after Jos. A. Bank rejected efforts by Men's Wearhouse to buy the men's apparel company. That rejection itself was preceded by Jos. A. Bank's unsuccessful unsolicited proposal in late September to acquire Men's Wearhouse for $48 per share or $2.3 billion. Reports that Jos. A. Bank was considering an acquisition offer for Eddie Bauer emerged over the past week.
However, Delaware lawyers at firms not involved in the suit argue that Eminence's action is unlikely to succeed on its merits because, at the very least, it is premature - Jos. A. Bank hasn't made an acquisition yet, and Eminence is seeking an injunction against a hypothetical deal that has not been announced.
Also, should Jos. A. Bank strike a deal to acquire Eddie Bauer or another company, observers note that they would need to demonstrate that they were considering acquisitions as part of their strategic plan prior to the Men's Wearhouse bid.