(Reuters) – For more than 8 years, Johnson & Johnson (NYSE:JNJ) has pursued billions of dollars in damages against Boston Scientific (NYSE:BSX) after the latter won a controversial – and ultimately ill-fated – bidding war for device maker Guidant.
Now the dispute lies in the hands of a federal judge after lawyers for both companies made final presentations yesterday at the close of a non-jury trial in New York federal court.
J&J is seeking more than $7.2 billion in damages and interest from Boston Scientific as Guidant’s successor, an amount that 1 analyst has characterized as a "major near-term risk" for a company with a market capitalization of about $19 billion as of yesterday.
Judge Richard Sullivan, who oversaw the trial, did not indicate when he would rule.
The dispute stems from 2005, when J&J agreed to buy Guidant for $21.5 billion. Under the deal, Guidant was permitted to consider unsolicited competing bids.
J&J claims Guidant knowingly violated their contract by providing due diligence directly to Abbott. Without that breach, J&J argues, Abbott would have walked away from the deal, scuttling Boston Scientific’s bid and leaving Guidant with no competing offers.
"What made the breach material was that Boston Scientific was not going to make an offer if Abbott was not involved," said Harold Weinberger, a lawyer for J&J.
David Boies, a lawyer for Boston Scientific, said Guidant relied on the advice of its attorneys in sharing information with Abbott. Boston Scientific eventually acquired Guidant for $27 billion and paid J&J a $705 million termination fee.
The deal has since been widely panned as too expensive, prompting Boston Scientific to argue that J&J dodged a bullet by failing to complete the acquisition and cannot now claim any damages, even if a breach occurred.
"They have not presented any evidence that they would have been better off," Boies said.
Sullivan pressed both sides during more than 2 hours of closing arguments. At 1 point, he questioned why J&J did not aggressively challenge Guidant as soon as they became aware that Abbott had been given information in January 2006, instead of making subsequent higher bids.
"There’s a glaring absence of the sorts of emails and documents you would expect if you thought you had just been hosed on a multibillion-dollar deal," he said.
Weinberger said J&J was not fully aware of what had occurred until weeks later, after the bidding war ended.
Sullivan also told Boies it seemed likely Guidant shareholders would have had no other option but to accept J&J’s bid absent a formal offer from Boston Scientific.
Boies argued, however, that the deal might still have fallen through, citing dissatisfaction among some shareholders over the price.