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Valeant and Ackman must face an insider trading lawsuit

pic thx to ian lamont on flickr creative commons [1]

pic thx to ian lamont on flickr creative commons

In yet another setback for Valeant Pharmaceuticals, a federal judge ruled that a lawsuit accusing the drug maker and one of its biggest shareholders of insider trading can proceed.

The lawsuit [2], which was filed by shareholders, alleges that Valeant, hedge fund manager William Ackman and his Pershing Square Capital Management violated securities laws by failing to disclose legally required information in connection with their failed effort to buy Allergan. The unsolicited $51 billion bid for Allergan, which is best known for selling Botox, was launched in April 2014.

This is not the first time insider trading allegations against Valeant and Ackman have been made. Last year, Allergan filed a lawsuit [3] charging Valeant, Ackman and Pershing violated securities laws in the wake of a complicated arrangement they made to pursue Allergan.

In November 2014, a federal judge said their arrangement was problematic, but he let them proceed with their takeover bid for Allergan. However, Allergan was soon acquired by Actavis and dropped the lawsuit last April. Actavis now uses the Allergan name, as you may recall.

The arrangement between Valeant and Ackman is also at the center of the latest lawsuit. The shareholders, including state pension funds in Ohio and Iowa, argue that Valeant and Ackman failed to disclose crucial elements of their plan to finance and acquire Allergan.

Before the bid, Pershing quietly bought a 10 percent stake in Allergan, which jumped in value after Valeant announced its offer. The shareholders argue Pershing ran afoul of the law by acquiring Allergan shares before Valeant disclosed plans to make a bid for Allergan. This constituted “material, non-public information,” according to the shareholder lawsuit.

Securities laws prohibit someone with advance knowledge of an impending bid from buying up shares of the targeted company. The rule is meant to protect companies from being blindsided simultaneously by a hostile buyer and allied shareholders.

In his 23-page ruling [4], Judge David Carter of the US District Court in California, who oversaw the earlier insider trading lawsuit filed by Allergan, noted that he wrote last year there were “serious questions as to whether substantial steps to commence a tender offer were taken.”

He still holds this view. “In this case, [Valeant, Pershing, and Ackman] have not raised any arguments that alter the court’s prior consideration of this issue,” Carter wrote. The “core allegations on this issue are virtually identical to those made” in the lawsuit filed by Allergan.

We should note that Carter did not make a judgment on the merits of the claims, but simply determined that there is sufficient reason to allow the shareholders to have the opportunity to prove their case.

As for Valeant, a spokeswoman wrote us to say that “we acted at all times in consultation with our legal counsel and remain convinced that our actions complied with the securities laws. While we are disappointed the court allowed the claims to continue following this preliminary motion, we look forward to presenting evidence to establish that we did nothing improper.”

We asked Pershing for comment and will pass along any reply that we receive.