Revenge of the Soft Power
Hi everyone!
I trust you have had some fun reading about the unsealed unredacted revelations. If not, here is a quick selection:
The last one also contains links to various unsealed-unredacted raw documents and emails.
In summary, these documents show what we have always known (and what has been described here as
Soft Power) -- that Allergan was fully engaged in a Soft Power battle plan, including media, investor relations, regulatory engagement, and attacking Valeant's business model and share price for sustainability and valuation.
Q: What is Ackman claiming?
A: Ackman's main claim is that he discovered evidence of Allergan deliberately putting out information it believed to be false, that it ignored it's own advisers to engage Valeant, and that it set out to manipulate Valeant share price.
Q: Did Allergan lie?
A: If they did, it wasn't in any of the unsealed documents. Every document provided, including some of the most intense ones, shows a very clear theme of Allergan Board and Management firmly believing that
Valeant is Vile (which is actually the title of a slide deck referred to in various emails), unsustainable, accounting-trickery-laden, and overpriced. Every bit of information Allergan put out, it believed was true, relevant, and reflective.
Q: Did Allergan manipulate Valeant Stock Price?
A: You bettcha. The unsealed documents show that Allergan went out on a very determined effort to damage Valeant share price. Not that anyone has thought otherwise since day 1. They published a stream of damaging analysis, reports, and decks; provided information to media outlet; counter-played Valeant's own media initiatives; and spoke directly with Valeant's investors. But here is what I think is the crucial element: At every point, Allergan's attack on Valeant was using publicly available information (such as Valeant's on SEC filings, or available-for-purchase vendor-supplied product sales data). When you say something about someone else and state that it is entirely based on publicly available information then you are giving an
OPINION, which, by definition, can't be lie. The audience, with access to exactly the same information, can do their own math, reach their own conclusions, and make up their own mind if they agree with you. With Allergan's interest in pushing Valeant's share price downward, the audience is not deceived into thinking this is some neutral party providing an unbiased opinion. (Note that even if Allergan's board thought a deal with Valeant is in the shareholders interest, it would still be in their interest to push Valeant's pre-deal share price down, so as to get more shares or more cash from Valeant).
Q: Did Allergan ignore it's own advisers to engage Valeant?
A: Goldman Sachs is an Allergan deal adviser that has previously advised Valeant and still owns many Valeant shares from a prior deal. (There have been various rumors and articles as to why Allergan hired an adviser with such an obvious conflict of interest. My own theory was, and still is, that they just did it to take GS out of play. In the overall scheme of things, the fees aren't that high, and just because you hired an adviser doesn't mean you have to follow their advise. This way GS won't be available to defend Valeant, either as a paid adviser or in defense of their prior paid Valeant jobs. Theories aside, it has been widely noted that GS was uncharacteristically quiet throughout this whole saga). According to Ackman, the unredacted documents show that GS advised Allergan to engage Valeant, and Allergan not only ignored the advise, but sidelined GS and looked for other advisers who would give the advise they wanted to hear. I've read the exact same document Ackman is presumably referring to (
http://cdn1.valuewalk.com/wp-content/uploads/2014/10/04_AGN-CA00081676-00081679_HConf-1.pdf ) . To say that he twisted things around would be a major understatement. GS was suggesting that Allergan feign interest in Valeant's offer, obtain due-diligence rights with respect to Valeant's accounting (since Valeant is offering shares, such would be natural), fish for bad stuff in their books, and then use NDA loopholes to sue Valeant over that bad stuff (modeled after a tactic used in the ongoing defense of Tenet hospital chain from the hostile takeover attempts of Community Health Systems -- which GS included a write-up in their email). Allergan rejected this maneuver (which I'd label a
Dirty Trick) saying they already know enough bad stuff about Valeant.
Q: Did Allergan do anything illegal?
A: I'm not a lawyer, but from the unsealed documents, I didn't see anything illegal. I saw a very determined full-court-press-take-the-gloves-off-bare-knuckle engagement, but nothing that involves lying, breaking fiduciary duties, or fraud. I didn't even see any dirty tricks. In fact, the one time a dirty trick was suggested it was rejected by Allergan.
Q: If there is bad stuff in there, will it effect the Insider Trading Case?
A: Hard to see how. All this happened long after the alleged Insider Trading. Even if there is hard evidence that Allergan hired hitmen to go kill their nemeses, the FBI may want to see that evidence, but it still won't change the determination (one way or the other) if Valeant/PS engaged in Insider Trading when they acquired Allergan shares prior to the announcement of the takeover bid.
Q: If there is bad stuff, and it won't change the Insider Trading case, what will it legally do?
A: As far as the Hostile Takeover attempt -- nothing. All this evidence is coming as a result of the counter-suit Valeant filed against Allergan's Insider Trading suit. The counter-suit has no expediting element, since none of the alleged bad stuff need to be resolved prior to any calendared event. In plain English, by the time any of the Valeant allegations are actually resolved, the hostile takeover battle would have long been settled, one way or another. If Valeant wins, the suit is moot. If it loses the takeover battle, in theory, it could try to keep the suit going and claim some provable damages from Allergan; but hard to say what those provable damages would be (the Allergan board has no fiduciary duty to Valeant shareholders, so where are the damages?)
Q: So, if there is no realistic chance of any legal effect in relevant time, why all the hoopla?
A: (Entirely speculative) To me this is super-obvious. And this is why I labeled this post
Revenge of the Soft Power. With the last Hard Power plays (the Q3 earnings) prior to the special shareholder meeting out (other than, obviously, potential bid raises), it is now Soft Power, and Soft Power only for Valeant (Allergan still has plenty of Hard Power play left). The Valeant share price is at $130 -- probably at the bottom of where it needs to be to win with no Hard Power play from Allergan at all, and way too low to compete with any serious counter-play from Allergan. So, Ackman is now on an emergency Soft Power only program to rehabilitate Valeant shareprice from all the damage it took. And, as anyone watching the TV commercial for the upcoming Congressional (and other) election campaigns in the US knows, negative attack ads work better than positive ones. So, the Ackman rehabilitation program of the Valeant shareprice goes something like that:
"All the attacks you heard against Valeant were false, they came from a bunch of entrenched self-interested trolls on the Allergan Board -- who didn't even themselves believe the lies they were putting out -- and our blowout Q3 quarter and raised guidance proves it all!"
And there you have it.
Dan.