AbbVie faced no shortage of criticism and questioning over its decision to abandon its proposed $55 billion Shire buyout back in 2014. But after years of legal back-and-forth, the company has escaped one high-profile case from hedge funds that alleged the company misled them about its true intentions.
When AbbVie unveiled its proposed Shire deal in July 2014, the company cited a "strong strategic rationale" for the move—not just the tax benefits of acquiring an Irish drugmaker. But shortly after the U.S. Treasury Department rolled out new rules in September 2014 to crack down on controversial so-called tax inversions, the company gave up on the merger.
That sequence of events led to some big losses at hedge funds, which later sued AbbVie alleging fraud. In their lawsuits, the hedge funds said they bought Shire shares hoping the deal would close but that they suffered losses when AbbVie walked away from the deal in October 2014. They said AbbVie's public statements didn't match with its private intentions for pursuing Shire.
In a decision Monday, Cook County Circuit Judge Margaret A. Brennan ruled in AbbVie's favor, granting summary judgement and tossing the hedge funds' claims. The plaintiffs were "kind of rolling the dice, hoping to make some money" by buying Shire shares after the buyout announcement, the judge said. They "had to do their own analysis" and "had to be aware that there were possibilities that this may not come through," she added.
Representing AbbVie, Gabor Balassa of law firm Kirkland Ellis said the company's statements about the merger talks—both before and after the July 14, 2014, announcement—contained cautionary language and opinions about the proposed deal, not statements of fact.
The hedge funds saw things differently. Representing the plaintiffs, Robert B. Tannenbaum of Bartlit Beck said AbbVie "repeatedly" told its clients the deal was "not driven by the tax benefits" but that it was "strategically and financially compelling well beyond the tax benefits." That didn't match with the company's behind-the-scenes beliefs, Tannenbaum told the court, as evidenced by the company's decision to walk away from the deal after the U.S. Treasury Department rolled out its anti-inversion rules.
Even after the U.S. Treasury Department issued those rules, AbbVie's CEO Richard Gonzalez said in a memo to Shire employees that he was "more confident than ever about the potential of our combined organizations," Tannenbaum pointed out.
Behind the scenes, AbbVie's execs sought the deal primarily for tax purposes, Tannenbaum said. At the time, tax inversions were "extremely controversial and nearly universally unpopular." In that environment, AbbVie developed a "messaging strategy," he said, to talk up more favorable aspects of the deal.
"AbbVie pursued this false messaging strategy to minimize government scrutiny of the deal, avoid long-term reputational harm as a tax avoider and to avoid losing essential Shire shareholder support for the deal," Tannenbaum said.
In 2016, hedge fund Elliott Management sued AbbVie over the failed merger, and other funds followed with their own lawsuits over subsequent years. Discovery in the litigation has spanned years, with lawyers taking nearly 100 depositions.
In a separate case, AbbVie settled with Shire shareholders in 2019 for an undisclosed amount.
After AbbVie and Shire parted ways on their talks, Takeda ended up buying the Irish drugmaker in 2018 for $62 billion. AbbVie, for its part, scored another megamerger with its massive Allergan buyout. AbbVie and Allergan merged last May in a deal worth $63 billion.