PORT ST. LUCIE, Fla., April 17, 2014 /PRNewswire/ -- Liberty Medical Supply, Inc., together with its parent company FGST Investments, Inc., holding company, ATLS Acquisition, LLC., and Polymedica Corporation, the legacy parent company of Liberty Healthcare Group, Inc., and their collective affiliates (collectively, "Liberty" or "the Company"), today reaffirmed its commitment to supporting its patients, business partners, employees and communities as it takes the necessary steps to restructure under chapter 11 of the U.S. Bankruptcy Code. Liberty is focused on operating in the normal course of business while it develops its exit strategy from chapter 11 and positions itself for long-term success.
The Company highlighted today a recent complaint that it filed with the U.S. Bankruptcy Court for the District of Delaware ("Bankruptcy Court") against Medco Health Solutions, Inc. ("Medco"), a subsidiary of Express Scripts Holding Company (NASDAQ: ESRX). In the complaint, the Company alleges that Medco engaged in inequitable conduct related to Liberty management's December 2012 buyout of Medco's then-subsidiary Polymedica, a transaction that included the Liberty business.
Among other remedies, Liberty seeks damages relating to a series of transactions and over $1 billion in equity redemptions that left Liberty and its subsidiaries insolvent at a time when the businesses were being prepared for sale. The complaint also asks the Bankruptcy Court to find that Medco improperly failed to pay certain pre-closing taxes, improperly refused to transfer certain assets and breached various material contract and financial statement warranties in connection with the sale of the Liberty business to management.
Liberty issued the following statement with respect to the substance of its complaint against Medco:
The Liberty Board and management team believe it is important to set the record straight with respect to the causes, effects and outlook of our restructuring, particularly with respect to the inequitable conduct taken by Medco leading up to the chapter 11 cases and the impact that conduct has in connection with the Liberty's emergence from chapter 11.
In early April 2012, Medco, which included Polymedica and the Liberty business, was acquired by Express Scripts Holding Company for $29.1 billion. Subsequently, in December 2012, Medco sold Polymedica and the Liberty business to the Liberty management team for $30 million in cash. Less than three months later, Liberty found itself unable to survive without the immediate intervention of the Bankruptcy Court and was forced into bankruptcy.
It is our view that Medco was aware that Liberty would be unable to survive as a stand-alone company should Medco fail to perform as promised in connection with the management buyout. We are further disappointed that the inequitable conduct and overreaching that we have alleged against Medco occurred under the oversight of Medco's parent company, Express Scripts, which claims a strong commitment to ethical business practices. Indeed, Express Scripts has itself benefited from Medco's actions: in late 2012 it recorded an impairment charge of $23 million in connection with the sale of Liberty and Polymedica, and it is currently pursuing an additional tax write-off of approximately $545 million to reflect a claimed loss on the sale.
Liberty's complaint details that in October 2012, with preparations for a sale of Liberty already underway, Medco caused Polymedica to redeem a large portion of Medco's equity in a series of transactions that left Polymedica and its subsidiaries insolvent. Specifically, we allege that Medco cancelled more than $900 million in outstanding debt that it owed to Liberty and saddled those entities with an additional $200 million in new debt due to Medco. It is alleged that Medco's actions reduced Liberty's stockholder equity from more than $1.3 billion to negative $80 million in the months leading to its sale to management, all in violation of state and federal laws. In addition, from October through December 2012, Liberty alleges that Medco caused Polymedica to transfer approximately $27 million in cash from Liberty's accounts for which Liberty received no cognizable value and at a time when Liberty was insolvent.
Liberty alleges that Medco prepared certain financial statements that overstated the value of the Liberty business by more than $26 million. It was only after the filing of the chapter 11 cases that Liberty's management learned that more than $42 million listed in accounts receivable were uncollectable, that the value of Liberty's property and equipment was overstated by $9 million and that Liberty owed potentially millions of dollars in undisclosed credit payables.
Liberty also alleges that Medco, in addition to breaches of various financial warranties, also breached its contractual obligations under the purchase agreement to provide certain vital assets and payments that were and remain critical to Liberty's operations. Among other things, Medco:
- Did not deliver software that was essential to Liberty's accounting and management functions, causing a $4 million loss;
- Refused to indemnify Liberty officers in lawsuits arising out of pre-closing activity; and
- Failed to compensate Liberty management for third-party expenses associated with the transaction.
Most significantly, despite the urging of its own accounting staff, the Company alleges that Medco has refused to pay pre-closing taxes for Polymedica leaving Liberty on the hook for millions of dollars in taxes.
Liberty's complaint seeks to compel Medco to comply with the purchase agreement, to recover funds associated with the allegedly fraudulent transfers of value from Liberty and to subordinate and disallow Medco's claims against Liberty. Should Liberty be successful in its case, the Company intends to use this additional liquidity to pay its creditors and support its business of providing lifesaving treatments to patients who depend on Liberty.
About Liberty Medical
Liberty® Medical, headquartered in Port St. Lucie, Florida, is among the largest direct-to-patient providers of diabetes testing supplies in the country. In operation for over 20 years, Liberty is contracted with more than 200 commercial and government insurance programs and provides products, service and support to hundreds of thousands of patients across the U.S. In addition to diabetes testing supplies, Liberty offers CPAP, Catheter and Ostomy supplies, and operates an Insulin Pump Center of Excellence and full-service pharmacy. Liberty is currently among the largest employers in Port St. Lucie and St. Lucie County.
Andy Brimmer / Nick Lamplough / Eve Binder
Joele Frank, Wilkinson Brimmer Katcher
SOURCE Liberty Medical Supply, Inc.