Criminal Allegations Threaten Merger

Abbott Laboratories' $5.8 billion proposed purchase of Alere, a Massachusetts medical testing company, is in trouble now that multiple criminal allegations have been leveled against Alere. Abbott, apparently now reluctant, reportedly offered Alere around $50 million to release it from its agreement. Alere declined the offer, then claimed in an August 2016 suit that Abbott was dragging its feet due to a severe case of buyer's remorse.

The problems appear to stem from several legal actions now threatening Alere. The first sign of trouble came on Feb. 26, 2016, when Alere announced that it would delay the filing of its annual 10-K form with the U.S. Securities and Exchange Commission (SEC) because of concerns over its revenue recognition practices in Africa and China. The delayed form, finally filed in August 2016, contained little of major concern to the markets, but it did reveal the company's independent auditor's conclusion that Alere had not been maintaining effective internal controls over its financial reporting process. The company's August 2016 filing also showed revised financial results for fiscal years 2013, 2014 and three quarters of 2015.

That did not end Alere's troubles for the year, however, because the Department of Justice (DOJ) handed the company two criminal subpoenas, one related to sales on other continents and the other alleging violations of federal health care and anti-kickback laws. In addition, Alere and its subsidiary, Arriva Medical, are under investigation by the U.S. Attorney for the Middle District of Tennessee concerning possible improper claims submitted to Medicare and Medicaid.

Alere's complaint states that Abbott has made life a “living hell” by drowning it in a “sea of forensic-level informational” demands in an attempt to scuttle the merger. The claim, which seeks to compel consummation of the deal, is slated for a mediation hearing on Jan. 27 before former Delaware Chancery Court Chancellor William B. Chandler II.

Meanwhile, Abbott filed a breach of contract claim in November seeking information about Alere. In its 19-page complaint, the plaintiff asserts that “Abbott cannot acquire and operate Alere's businesses without timely, unfettered access to information regarding Alere's operations, finances, legal compliance and other aspects of its business.” Further, it states, “Any acquirer of a business as large, complex and geographically diverse as Alere must be afforded full transparency in advance of closing.”