BHP Billiton Ltd. is asking a U.S. court not to make public specific information around its takeover bid for Potash Corp. of Saskatchewan Inc., including "sensitive" communications with government officials, arguing it would cause the company "substantial and irreparable harm."
The Australian-based miner's request comes on the eve of a crucial decision by Investment Canada on whether to approve BHP's bid as being a net benefit to Canada. The decision is expected to be released Wednesday, but could come as early as Tuesday.
BHP is expected to appear in a Chicago courtroom on Tuesday to argue against Potash Corp.'s request to have confidential information made public in a lawsuit between the two companies. In particular, BHP wants to keep private, or even strike, one part of the lawsuit that outlines communications it has had with regulatory authorities around the takeover proposal.
BHP alleges Potash Corp.'s wants the information released as part of an effort to "deter or block" its bid and gain a competitive advantage for its own business plans.
"PCS should not be permitted to use this litigation to obtain information concerning commercially sensitive communications with government authorities that would otherwise remain confidential," BHP said in the court documents filed Monday in a U.S. District Court in Illinois.
"PCS seeks to obtain commercially sensitive information from BHP Billiton that PCS can use to its competitive advantage in the event that the Tender Offer does not succeed, and PCS and BHP Billiton remain direct competitors in the potash industry."
Saskatoon-based Potash Corp. filed a lawsuit against BHP in September, alleging the world's largest miner plotted for years to drive down its share price to gain control of the company at a cheaper price. BHP denies the allegations.
Last week, an new amended complaint was filed in the case, including new details from internal documents and testimony showing BHP began pursuing an acquisition of Potash Corp. years earlier, after concluding that building its own potash mine in Canada would not give it the dominant market position it desired.
BHP responded to the amended complaint last week saying parts of it were "misquoted or taken out of context." It also said it doesn't believe the lawsuit will interfere with or delay its offer.
Potash Corp. is now asking the court to make public nine paragraphs of the amended complaint that BHP had fought to keep sealed. Potash Corp. alleges in court documents filed Monday that BHP "appears to be saving its executives from embarrassment," by trying to keep that information under wraps.
Potash Corp. said it believes none of sealed paragraphs reveal any sensitive BHP business strategies or financial information that would give it a competitive advantage.
It said three of the nine sealed paragraphs include discussions about BHP's public messaging around its plans for building its Jansen project in Saskatchewan and its intentions for the Canpotex potash marketing arm. If successful in its bid for Potash Corp., BHP has said it plans to eventually exit Canpotex, the three-member organization which markets Saskatchewan-produced potash to customers outside of North America.
"There are no business plans, no trade secrets, just information about efforts to shape public dialogue - exactly as PCS has alleged - that BHP's executives might find embarrassing if they were publicly aired. But embarrassing does not equate to confidential," Potash Corp. said in a court filing.