Sale of Toshiba's NAND Chip Unit Faces Trouble as Western Digital Threatens Legal Action

Uncertainty over which company will end up with Toshiba's much-sought-after NAND chip unit -- the second-biggest in the world -- has deepened today with a report by Reuters, which states that the Japan-based Toshiba is now facing legal actions from its business partner and chip unit bidder Western Digital. The U.S.-based data storage company is claiming that Toshiba has violated a contract by transferring Western Digital's joint venture rights entirely to the newly formed chip unit, which Toshiba is soon to sell off.

As a result, Western Digital is reportedly asking for exclusive negotiating rights with Toshiba as a means to win the bid and retain its contract with the supplier, and the U.S. company is threatening legal action in the event that it does not. Western Digital currently operates a semiconductor plant in a joint partnership with Toshiba, but it is not seen as a favored bidder in the eyes of Toshiba executives because it has placed a "much lower offer than other suitors."

The legal process set in motion by Western Digital could not only delay Toshiba's NAND chip unit sale, which the company needs to be completed to offset a nearly $9 billion loss related to its overseas nuclear division, but could put an end to the auction altogether. Toshiba has rejected any of Western Digital's claims that it has violated the joint venture contract.

The clash between Toshiba and Western Digital - both its business partner and one of the bidders for the chip unit - risks delaying or even quashing an auction that the Japanese conglomerate is depending on to plug a $9 billion hole in its accounts.

But in a May 3 letter sent by Toshiba's lawyers, the TVs-to-nuclear conglomerate disputed Western Digital' s argument and said it would pursue all available remedies if it saw continued interference in the sale process. Western Digital's "campaign constitutes intentional interference with Toshiba's prospective economic advantage and current contracts. It is improper, and it must stop," the letter, which was seen by Reuters on Tuesday, said.

Western Digital now has until May 15 to sign a few agreements related to its joint venture partnership with Toshiba, and if it doesn't all Western Digital employees will be restricted from facilities, networks and databases related to Toshiba's NAND chip unit. According to Masahiko Ishino, an analyst at Tokai Tokyo Research Center, Western Digital has a solid ground for legal action: "From a commonsense standpoint, it's hard to buy Toshiba's argument that it doesn't need approval from its JV partner because it's almost a 50-50 joint venture."

Outside of the legal battle, Toshiba executives are said to be prioritizing potential bids from what would amount to a consortium of the New York-based private equity firm KKR & Co LP and a few Japanese government-backed investors representing Japan Innovation Network Corp. The Japanese government is said to be "keeping a close eye on the process," and would prevent any deal that could potentially transfer sensitive technological information to another country, namely Foxconn and its deep China ties.

Now, KKR and Japan Innovation Network Corp are preferred bidders, and are expected to enter a joint offer in the upcoming second round of bidding in mid-May. If the duo win exclusive rights to Toshiba's NAND chip unit, the technology would stay in Japan, appeasing the local government, and the new owners of the unit could aim for an IPO down the line.

The two new preferred bidders come after TSMC and Foxconn were originally reported as the main companies interested in Toshiba's chip unit, but TSMC eventually dropped out and then Foxconn faced troubled waters with the Japanese government. Last month, Apple was rumored as willing to spend several billion dollars to obtain a "substantial stake" in the Toshiba NAND chip unit, with enough of a share ownership to allow Toshiba's executives to retain partial ownership in Japan.

Other potential buyers include South Korea's SK Hynix, Amazon, Google, Broadcom, and more, who are all looking for a major foothold in the flash memory market that could allow them to compete with the likes of Samsung. The winning bidder is expected to be revealed sometime in June.