So I guess I wasn’t too far off in my previous post about the Pfizer/Novo Nordisk battle for Metsera; in fact, the case I mentioned was cited in Pfizer’s papers (though of course, Metsera disputes its relevance).

Here’s the thing: the legal ability of Metsera to terminate its deal with Pfizer, and enter into a new agreement, entirely depends on the application of the antitrust laws. Novo’s bid is unquestionably higher; the only difficulty is completion risk, given that it presents greater antitrust hurdles than Pfizer’s bid.

So, in one version of the story, there is no chance that regulators would approve the deal with Novo; therefore, it cannot constitute a superior offer. Moreover, Novo’s proposal to pay Metsera cash up front, skipping antitrust review, is itself a violation of the antitrust laws, and so Metsera cannot claim superiority solely due to that feature.

In another version of the story – the version that Metsera tells in its briefing to the Delaware Court of Chancery – Metsera was initially concerned about antitrust risk, which is why it accepted Pfizer’s bid over Novo’s higher one, but Novo has since been consulting with regulators and now is more confident there is a path to regulatory approval.

Unless a settlement of some kind is reached, VC Zurn will have to decide which is the more plausible story, which depends not only on who thought what in good faith, but also on how regulators would be likely to treat the Novo proposal.

But here’s the thing.

Pfizer’s CEO has been openly cultivating Trump for a while now. Pfizer even got early termination of the antitrust waiting period just before it filed its complaint, during a government shutdown – and I don’t know what the policy is this time around but I remember during the last government shutdown, FTC and DOJ announced there would not be any early terminations.

Meanwhile, the day after Metsera filed its brief in the Delaware Court of Chancery claiming that the path to regulatory approval seemed much smoother, the Wall Street Journal reported that Novo was considering selling its weight loss drugs at a discount on TrumpRx.

Yesterday, though – again, in the middle of a government shutdown – the FTC announced that Novo’s proposed structure for buying Metsera, including the upfront cash payment, might circumvent the antitrust laws.

Today, of course, Trump openly joked (?) about taking a stake in Novo in exchange for clearing a path for the Metsera takeover.

What is VC Zurn supposed to do with this? Does she look at the law on the books regarding anticompetitive mergers? Does she look at the personal relationships between Trump and the respective CEOs? If the latter really is driving the train – and I don’t know, of course, I’m only speculating – is that even a legitimate consideration for Delaware?

Significantly, Leo Strine warned about exactly this problem during the first Trump administration, during a panel at the Tulane Corporate Law Institute. As I blogged at the time:

[Strine] also referenced the recent dispute between Broadcom, Qualcomm, and CFIUS : though he disclaimed expressing an opinion on that particular case, he explained that judges often have to make difficult decisions– as in Williams – about the interpretation of closing conditions that involve regulatory approvals.  In the past, judges could at least be confident that, whether you agree with the regulator or not, regulation was not being done “sideways.”  If, however, regulation is going to be used for other than its original purposes – such as for protectionist purposes – that will affect how courts address after-the-fact disputes about why deals fell through.

Now on steroids, I guess.

And another thing. On this week’s Shareholder Primacy podcast, me and Mike Levin talk about the relationship between state and federal corporate law. Here at Apple, here at Spotify, and here at YouTube.