Many eyes are on the Delaware Court of Chancery to see whether it will compel Fresenius SE to close on a $4.5 billion acquisition of generic drugmaker Akorn Inc. Fresenius terminated the merger agreement in April 2018 and Akorn sued immediately. The parties engaged in expedited discovery, went to trial in July, and completed post-trial briefing last week.

Fresenius argues it can break the deal because Akorn breached its obligations to comply with U.S. Food and Drug Administration regulations and that a “material adverse effect” exists. Akorn says that Fresenius developed a strategy to prod the FDA into launching investigations of Akorn, thereby injecting regulatory uncertainty into Akorn’s prospects.

While the case raises a number of interesting questions of corporate transactional practice — due diligence, the meaning of “ordinary course” requirements, and the possibility that Delaware will do something it has yet to do, i.e. allow an acquirer with admitted buyer’s remorse to use a material adverse effect clause to escape a merger — the case also presents an interesting question about the meaning of stock price as evidence in litigation.

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