The opinion of the court was delivered by: Honorable Dolly M. Gee, United States District Judge
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
VALENCIA VALLERY NOT REPORTED
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s) None Present None Present
Proceedings: IN CHAMBERS-ORDER RE DEFENDANT'S MOTION TO DISMISS [DOC. # 35]
On October 12, 2012, Plaintiff Global Hunter Securities ("GHS"), LLC, filed a complaint against Defendant Mannkind Corporation ("MannKind") for breach of contract. [Doc. # 1.] On February 1, 2013, MannKind filed a motion to dismiss. [Doc. # 35.] On May 1, 2013, the Court took the matter under submission because it was deemed suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. After thorough consideration of all the arguments, and for the reasons discussed below, MannKind's motion to dismiss is DENIED.
On September 6, 2011, GHS and MannKind entered into an agreement, memorialized in a letter of the same date ("Engagement Letter"). (Decl. of Koji F. Fukumara ("Fukumara Decl.")
¶ 2, Ex. A)[Doc. # 35-2.] The parties agreed that GHS would act "as [MannKind's] exclusive advisor and placement agent in connection with the placement and/or establishment . . . of [MannKind's] debt securities." (Engagement Letter at 1.) On December 2, 2011, after GHS was unable to broker a deal that satisfied MannKind, the parties agreed to terminate their relationship in order to allow MannKind to seek a better deal with Jefferies & Company, Inc. ("Jefferies") as its agent. (Compl. ¶¶ 8-10; Fukumara Decl. ¶ 3, Ex. B ("Termination Agreement").)
Jefferies was also unable to find a satisfactory deal to place MannKind's debt securities. (Compl. ¶ 16.) On February 8, 2012, MannKind announced completion of a public offering of its common stock (Id. ¶¶ 14, 16; Fukumara Decl, Ex. C.) Jefferies was one of three banks that served as underwriters for the public offering, in which JMP Securities, LLC acted as co-manager. (Fukumara Decl., Ex. C.) The public offering amounted to $86.3 million in sales of stock. (Id.) GHS was not involved in the public offering.
The relevant portions of the Termination Agreement are as follows. The Termination Agreement opens by reference to the Engagement Letter:
Reference is made to that certain engagement letter, dated as of September 6, 2011.
(Termination Letter at 1.) The parties agreed to terminate the Engagement Letter if, but only if, MannKind successfully completes a transaction with Jefferies (in which GHS is named as ...