Event Driven Takeaways
- Vice Chancellor Travis Laster held a teleconference call at noon to discuss post-trial developments, including the FDA’s latest inspection at Akorn’s Somerset facility and the agency’s subsequent Form 483 letter to the company.
- Laster observed that for the sake of completeness, Akorn’s response to the FDA’s latest Form 483, and a subsequent response by Fresenius should be made part of the record.
- Akorn’s response to the FDA letter is due Sep. 21, 2018.
- The fact that the court will look to have Akorn’s response to the FDA (and Fresenius’ subsequent response within 24 hours) included in the record, a decision is unlikely to come before Sep. 22, 2018.
Today, Sep. 11, Vice Chancellor Travis Laster held a teleconference call to discuss post-trial developments, including the FDA’s latest inspection at Akorn’s Somerset facility and the agency’s subsequent Form 483 letter to the company.
Laster wondered if these post-trial developments were material enough to warrant additional proceedings and live testimony from expert witnesses. However, both parties agreed that the court need not engage in further proceedings and that Akorn should be allowed to submit its response to the FDA’s letter, which is due Sep. 21, 2018.
Importantly, Vice Chancellor Laster observed that for the sake of completeness, Akorn’s response to the FDA’s latest Form 483, and a subsequent response by Fresenius (within 24 hours) should be made part of the record.
With regards to resolution of the pending merger situation as a whole, Laster also made sure to inform the parties that this situation will not be finally resolved “until the Delaware Supreme Court speaks.” We would interpret Vice Chancellor Laster’s statement as expressing his discomfort with the fact that he has to pick an ultimate winner and loser in this situation, and that this was his attempt to push the parties toward a possible settlement. The judge also stated that “one of you will be disappointed with my ruling.”
The fact that the court wants to have Akorn’s response to the FDA (and Fresenius’ subsequent response within 24 hours) included in the record seems to indicate a decision is unlikely to come before Sep. 22, 2018.
-- Shrey Verma and Patrick Flavin