The facilitators of an acquisition brought suit to recover a $20 million fee, representing 1% of the $2 billion merger. As negotiations were nearing an end, a last-hour amendment was made to the merger agreement prohibiting brokers’ fees. The Court granted the defendants’ motion for summary judgment on the Plaintiffs’ challenge to the amendment which sought reformation of the merger agreement, holding that the parties present during the late night negotiations had authority to bind the Plaintiffs and such negotiations did not become final until after the challenged amendment. Any conflict of interest on the part of counsel acting on behalf of Plaintiffs was understood and accepted by the Plaintiffs, who were sophisticated parties. However, the Court allowed an unjust enrichment claim pertaining to work done after the final negotiation of the merger documents but before closing to proceed past the summary judgment phase of the litigation, because there was a possibility Defendants knew of the work being performed.
