All's fair in love and war.
On July 28, Biogen started a 60-day clock on Elan, giving it that long to fix the contract that allows Johnson & Johnson (NYSE: JNJ ) to fund Elan's buyout of Biogen's half of Tysabri should Biogen be bought. Yeah, this love triangle is pretty dang convoluted.
Elan took Biogen to court, and the saga continued yesterday with the judge refusing to intercede to stop Biogen from ending its partnership with Elan and taking full control of their multiple sclerosis drug, Tysabri.
As I see it, Elan, a Motley Fool Rule Breakers pick, has four choices before the Sept. 26 deadline:
- Renegotiate the contract with Johnson & Johnson.
- End the contract with Johnson & Johnson.
- Try and escalate this up the court system, although I'm not sure there's time for that.
- Stick with Johnson & Johnson and give Tysabri to Biogen.
The last one seems like a crazy idea. Sure, Elan and Johnson & Johnson are new best buds, and Tysabri isn't a powerhouse like Teva Pharmaceuticals' (Nasdaq: TEVA ) Copaxone, EMD Serono and Pfizer's (NYSE: PFE ) Rebif, or Biogen's own Avonex. But Tysabri still has a lot of growth left in it and Elan would be insane to give it up.
The problem with completely breaking the Tysabri part of the deal with Johnson & Johnson is that it seems to be tied to the rest of J&J's investment in Elan, which included the sale of half of Elan's Alzheimer's pipeline that's partnered with Wyeth (NYSE: WYE ) . While I wasn't ecstatic about the terms that Elan got, the company needs the money, and breaking the deal would seem to put a ceiling on the value that Elan might be able to get from a subsequent deep-pocketed pharma.
The best option I can see is clearly to renegotiate the contract to remove the parts that violate the Elan-Biogen contract. I guess Elan will get to see just how good a best bud Johnson & Johnson really is.
If you think all health-care companies are hurting from Obamacare, think again.