Plymouth Industrial REIT, Inc., is a real estate investment trust that buys and manages industrial properties. Its stock was publicly traded until recently. Plymouth retained Redimere Advisors, LLC, and its affiliate Hollister Associates LLC to help arrange a potential “equity financing” transaction, and promised to pay Redimere and Hollister a success fee equal to two percent of the gross proceeds on any covered deal. Redimere alleges that Plymouth later asked Redimere to seek an investor willing to buy out Plymouth’s shareholders and take the firm private, and promised to pay Redimere the same success fee upon the closing of such a transaction.
Plymouth recently closed a take-private transaction funded by Makarora Investments LLC and Ares Alternative Credit Management LLC, involving the purchase and sale of Plymouth’s outstanding shares and the merger of Plymouth into a new entity called PIR Industrial REIT LLC (“PIR”). Redimere contends that it introduced Makarora to Plymouth, helped them to negotiate this take-private transaction, and is therefore entitled to a success fee of $20 million. It asserts five different claims for breach of contract, a claim for unjust enrichment, and a claim of unfair trade practices under G.L. c. 93A.
Plymouth and PIR have moved to dismiss all claims against them pursuant to Mass. R. Civ. P. 12(b)(6). In response, Redimere served and filed a motion for leave to further amend its complaint to add Hollister as a plaintiff.
The Court will allow Defendants’ motion to dismiss this action because the factual allegations in Redimere’s amended complaint do not plausibly suggest that Plymouth, or PIR as its successor, is liable to Redimere. Redimere’s claims under its engagement letter with Plymouth fail because that contract entitled Redimere to a success fee only for a completed “equity financing,” a defined
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term that did not include the recent stock purchase and merger transaction. Redimere’s other claims are barred by the Federal Securities Exchange Act of 1934 (the “Exchange Act”) because Redimere was required to register as a broker-dealer before doing the work for which it seeks compensation, and it failed to do so.
The Court will deny Redimere’s motion to further amend the complaint because it would be futile to add Hollister as a plaintiff. Hollister not entitled to compensation under the engagement letter for the same reason as Redimere: Plymouth did not engage in any “equity financing.” And it would be futile to add Hollister as a plaintiff with respect to the other claims because the factual allegations in the proposed second amended complaint would make clear that the alleged work done on behalf of Plymouth was performed entirely by Redimere, not by Hollister. The proposed second amended complaint would not plausibly suggest that Hollister was entitled to any fee for doing nothing.
The Court will deny Defendants motion to strike Redimere’s demand for a jury trial and certain allegations in or exhibits to complaint as moot. It will allow Defendant’s motion for judicial notice of statements made on Plaintiff’s website, and that Redimere is not a registered broker-dealer under Federal or State law, because Redimere did not oppose it.
1. Defendant’s Motion to Dismiss. Let’s start with Defendants’ motion to dismiss. The Court concludes that Defendants are entitled to dismissal of Redimere’s claims. To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Redimere’s amended complaint does not meet this standard.
1.1. Claims under the Engagement Letter. Redimere is not entitled to recover any success fee under its November 2022 engagement letter with Plymouth.
This contract provided in ¶ 3(a)(i) that Redimere and Hollister would be entitled to a two percent success fee only “[u]pon the closing of any Equity Financing.” That term is defined in ¶ 1 to encompass any “equity offering, PIPE [i.e., private investment in public equity] or other private placement of equity interests or securities in the Company” or any “other form of asset or Company level capitalization.” And ¶ 5 makes clear that the engagement letter does not
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cover work on other kinds of transactions, including any “sale of securities” or “merger,” by stating that Plymouth “will consider” using Redimere and Hollister as an advisor in connection with such a transaction but “shall be under no obligation” to hire them for such work.
In sum, the plain language of the engagement letter indicates that it applied only to “equity financing” transactions that resulted in Plymouth obtaining more funding, and that it did not apply to a transaction that resulted in payments to Plymouth’s shareholders in exchange for the sale of their stock as part of a merger transaction. Thus, this plain contractual language makes clear that the term “equity financing” did not encompass, and therefore Plymouth’s obligation to compensate Redimere under the contract was not triggered by, the merger and stock purchase transaction at issue here.
Redimere’s assertion that the engagement letter made it eligible to receive a success fee “in connection with any other transaction approved or accepted by the Company,” even if the transaction did not meet the contractual definition of “equity financing,” is without merit. Paragraph 3(a)(i) of the engagement letter states as follows:
Upon the closing of any Equity Financing, the Company shall pay to Advisor [i.e. Redimere and Hollister] a non-refundable cash fee equal to 2% of the aggregate maximum gross proceeds received or receivable in connection with the Financing or in connection with any other transaction approved or accepted by Company with an Approved Investor, including, without limitation, aggregate amounts committed by investors for future funding or to purchase securities, whether or not all securities are issued on the closing date of the Equity Financing (the “Success Fee”).
This paragraph expressly provides that a success fee would be due only “upon the closing of an Equity Financing.” It went on the clarify that the fee would be calculated based on “the aggregate maximum gross proceeds received or receivable in connection with the Financing or in connection with any other transaction approved or accepted by Company with an Approved Investor.” But it did not give Redimere any right to collect a success fee in connection with a transaction approved or accepted by Plymouth that was not an “equity financing” deal because it provided Plymouth with no additional capital.
Redimere and Plymouth are sophisticated parties that “choose to embody their agreement in a carefully crafted document,” and must be “held to the language
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they chose.” Fronk v. Fowler, 71 Mass. App. Ct. 502, 508 (2008), quoting Anderson St. Assocs. v. Boston, 442 Mass. 812, 819 (2004). The plain and unambiguous language in the engagement letter “must be enforced according to its terms.” See A.L. Prime Energy Consultant, Inc. v. Mass. Bay Transp. Auth., 479 Mass. 419, 428 (2018), quoting Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992).[1]
Defendants are therefore entitled to dismissal of the claims for breach of the express terms of the engagement letter in count I of the amended complaint.
Redimere fares no better with its claim in count IV that Plymouth breached the implied covenant of good faith and fair dealing that is part of the engagement letter. Every contract includes an implied covenant of good faith and fair dealing, which provides “that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Weiler v. PortfolioScope, Inc., 469 Mass. 75, 82 (2014), quoting Druker v. Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976). “The scope of the covenant is only as broad as the contract that governs the particular
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[1] The decision in Morad v. Haddad, 329 Mass. 730 (1953), is not to the contrary. Morad involved a “bill in equity to recover … a broker’s commission alleged to have been earned by effecting the sale of the real and personal property of the defendant.” Id. at 730. The Supreme Judicial Court upheld a decision requiring payment of the commission even though the buyer ultimately entered into a stock purchase agreement rather than an asset purchase agreement. Id. at 734– 735. It reasoned that “[t]he sale of all of the stock of the corporation was in legal effect a sale of all of its assets, and the mere fact that the parties found it more convenient to transfer all of the stock rather than to make a conveyance of its assets does not change the substance of the transaction.” Id. at 735.
Morad does not govern Redimere’s claims for breach of the engagement letter for two reasons. First, it concerned a bill in equity—akin to a modern claim for unjust enrichment or an equivalent claim for breach of an implied contract— and not a legal claim to enforce a contract. Cf. Bates Block Assocs., Inc. v. Milday’s Shop, Inc., 3 Mass. App. Ct. 776, 777 (1975) (on bill in equity, trial judge was justified in ruling that plaintiff could recover on an implied contract or an unjust enrichment theory). Redimere’s unjust enrichment claim fails for reasons unrelated to the scope of the engagement letter, as discussed below. Second, unlike the circumstances in Morad, the “equity financing” transactions for which Redimere could earn a success fee are not at all the same thing as a sale of all corporate stock, as the plain language of the engagement letter makes clear by expressly distinguishing between equity financings on the one hand and potential sales of securities or mergers on the other.
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relationship.” Wortis v. Trustees of Tufts College, 493 Mass. 648, 671 (2024), quoting Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385 (2005).
This implied covenant “does not create rights or duties beyond those the parties agreed to when they entered into the contract.” Boston Med. Ctr. Corp. v. Secretary of Executive Office of Health & Human Servs., 463 Mass. 447, 460 (2012), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 680 (2011). Instead, it governs only “the manner in which existing contractual duties are performed.” Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 289 (2007).
Since the express terms of the engagement letter did not require Plymouth to pay Redimere a success fee in connection with a stock purchase and merger transaction, Plymouth did not violate the implied covenant by not doing so. See Boston Med. Ctr. Corp., supra, at 459–460 (Massachusetts Medicaid program did not breach implied covenant of good faith and fair dealing by not paying higher reimbursement rates to plaintiff hospitals, where express contract terms did not require higher rates).
1.2. Other Contract Claims. Redimere’s other claims for breach of contract in counts II through V are based on allegations that, in addition to the engagement letter discussed above, Plymouth also hired Redimere to help bring about a take-private transaction and promised to pay Redimere a success fee if its efforts helped to bring about such a deal.[2]
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[2] For present purposes it does not matter whether Redimere’s alleged contract with Plymouth’s regarding a take-private transaction was formed by an exchange of consideration or instead by reasonable reliance on a promise, which the first amended complaint refers to in Count V as a claim for “promissory estoppel.”
“When a promise is enforceable in whole or in part by virtue of reliance, it is a ‘contract,’ and it is enforceable pursuant to a ‘traditional contract theory’ antedating the modern doctrine of consideration.” Rhode Island Hosp. Trust Nat. Bank v. Varadian, 419 Mass. 841, 849 (1995), quoting Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 760–761 (1978). “Detrimental reliance on an offer or a promise (also known as promissory estoppel) is a substitute for consideration. Therefore, an offer that reasonably induces the other party to act is enforceable as a contract in the same manner as any other contract to the extent necessary to avoid injustice.” Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 714 (2012).
<continued…>
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More specifically, Redimere alleges that: (i) in January 2025, Plymouth’s CEO orally directed Redimere “to seek a buyer for the company’s shares” in a take- private transaction; (ii) in March 2025 Plymouth agreed by email “to keep Redimere on as a capital markets advisor to Plymouth” and agreed that if “something materializes into a deal that Redimere sources and that we accept and close,” then Plymouth “will pay Redimere a success fee in the amount of two (2%) percent of proceeds to be shared with any other Plym side advisors;” and (iii) in reliance on the promised success fee, Redimere provided Plymouth with a calculation of its net asset value per share of stock to use in a take-private transaction, found companies interested in buying all of Plymouth’s stock, and successfully negotiate the final per share price for the stock purchase and merger transaction.
These claims fail as a matter of law because Redimere is alleging that it worked to induce the purchase and sale of publicly-traded securities without having registered as a broker with the Securities and Exchange Commission. It is undisputed, and Redimere did not oppose the request that the Court take judicial notice of the fact, that Redimere is not registered to do business as a broker-dealer of securities under Federal or Massachusetts law. And the outstanding shares of stock of Plymouth, which at that point was a publicly traded company, were securities under Federal law. See, e.g., Landreth Timber Co. v. Landreth, 471 U.S. 681, 687 (1985) (sale of all outstanding stock in corporation was sale of “securities” covered by Security Act of 1933 and Exchange Act).
Under the Exchange Act, it is “unlawful” for any broker or dealer engaged in interstate commerce “to effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security,” unless they are registered to do so with the Commission. See 15 U.S.C. § 78o(a)(1) (also known as § 15(a)(1) of
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The Supreme Judicial Court has cautioned “that the term ‘promissory estoppel’ should not be used in deciding cases under this principle because that term ‘tends to confusion’ and overlooks the point that” a promise enforceable on the basis of detrimental reliance is enforced through a claim for breach of contract. Cataldo Ambulance Serv., Inc. v. City of Chelsea, 426 Mass. 383, 386 n.6 (1998), quoting Varadian, 419 Mass. at 849, and Loranger Constr., 376 Mass. at 761. “ ’Promissory estoppel is an equitable doctrine’ that ‘[i]n the absence of a contract in fact, ... implies a contract in law.’ ” Vacca v. Brigham & Women's Hosp., Inc., 98 Mass. App. Ct. 463, 472 (2020), quoting Malden Police Patrolman’s Ass’n v. City of Malden, 92 Mass. App. Ct. 53, 60 (2017).
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the Exchange Act). By law “[e]very contract … the performance of which involves the violation” of Title 15 “shall be void … as regards the rights of any person who, in violation of” Title 15 “shall have … engaged in the performance of any such contract.” See 15 U.S.C. § 78cc(b) (also known as § 29(b) of the Exchange Act).[3]
Thus, violations of the Exchange Act may be raised as an affirmative defense “to avoid otherwise-valid contractual obligations.” Auctus Fund, LLC v. OriginClear, Inc., 2023 WL 2140478, at *3 (D.Mass. Feb. 21, 2023) (Saylor, C.J.); accord Costello v. Grundon, 651 F.3d 614, 626 (7th Cir. 2011) (under § 78cc(b), defendants may assert violations of the Exchange Act “as an affirmative defense to a breach of contract action”). This is an affirmative defense because § 78cc(b) does not automatically make all covered contracts void, but instead “render[s] the contract merely voidable at the option of the innocent party.” See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 387 (1970).
Though these provisions of the Exchange Act describe an affirmative defense, the detailed allegations in Redimere’s amended complaint establish that Defendants are entitled to invoke them to void the claimed contract and thus bar Redimere’s contract claims. “The purpose of rule 12(b)(6) is to permit prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff’s claim is legally insufficient.” Harvard Crimson, Inc. v. President and Fellows of Harvard Coll., 445 Mass. 745, 748 (2006). Redimere is bound by the factual allegations in its complaint. See G.L. c. 231, § 87; Adiletto v. Brockton Cut Sole Corp., 322 Mass. 110, 112 (1947). Thus, where a complaint sets out “detailed factual allegations which the plaintiff contends entitle him to
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[3] The Massachusetts Uniform Securities Act (“MUSA”) has “substantively identical requirement[s].” NTV Management, Inc. v. Lightship Global Ventures, LLC, 484 Mass. 235, 241 (2020). MUSA makes it unlawful for any person to transact business in Massachusetts as a broker-dealer unless they are registered with the Secretary of the Commonwealth. G.L. c. 110A, § 201(a). It also provides that no one that has “engaged in the performance of any contract in violation of” c. 110A “may base any suit on the contract.” Id., § 410(f). But, unlike the cognate Federal statute, MUSA provides that “any act incident to a class vote by stockholders … on a merger” does not constitute the “offer” or “sale” of a security and thus is not covered by MUSA. See Id., § 401(i)(6). The Court will assume without deciding that this exception applies here and that Redimere’s claims are therefore not barred by MUSA. It is undisputed, however, that the Exchange Act does not include any analogous carveout for the purchase or sale of stock in connection with a merger transaction.
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relief,” a claim may be dismissed if those allegations “clearly demonstrate that plaintiff does not have a claim.” Fabrizio v. City of Quincy, 9 Mass. App. Ct. 733, 734 (1980) (affirming dismissal); accord Nguyen v. Univ. of Mass., 66 Mass. App. Ct. 276, 277 (2006) (affirming dismissal). For this reason, “[i]f it is evident from the allegations of the complaint alone that the defendant is entitled to an affirmative defense, the matter may be decided by means of a motion to dismiss” (cleaned up). Fleming v. Nat'l Union Fire Ins. Co., 445 Mass. 381, 389– 390 (2005), quoting Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396, 404 (2002).
The factual allegations in the first amended complaint make clear that Redimere contends it performed its alleged contract with Plymouth by inducing or attempting to induce Makarora and Ares buy all of Plymouth’s outstanding shares of stock, and thus to purchase securities. Redimere alleges that: it “sourced and found” Makarora and Ares for Plymouth; Makarora’s first offer to Plymouth was the “direct result of weeks of negotiations by Redimere;” thereafter “Redimere negotiated Plymouth’s share price in the take-private deal on their behalf and successfully increased Makarora’s first offer of $23 per share to $23.25;” and “Redimere’s exhaustive effort led to” Makarora’s and Ares’ successful offer to purchase Plymouth’s outstanding stock.
Since Redimere’s performance under its alleged contract with Plymouth involved attempting to induce and then successfully inducing Makarora and Ares to purchase securities, even though Redimere was not a federally registered broker, the contract is voidable and Redimere may not enforce it over Plymouth’s objection. See, e.g., EdgePoint Capital Holdings, LLC v. Apothecare Pharmacy, LLC, 6 F.4th 50, 59–61 (1st Cir. 2021).
Under the Exchange Act, a “broker” is “any person engaged in the business of effecting transactions in securities for the account of others.” Id. at 57, quoting 15 U.S.C. § 78c(a)(4)(A).
Redimere’s allegations establish that it was engaged in effecting securities transactions, and thus was a broker for the purposes of the Exchange Act, because it helped “identify potential purchasers of securities,” “solicit[ed] securities transactions,” was “involved in negotiations with purchasers, and was to receive transaction-based compensation.” EdgePoint, 6 F.4th at 57 n.5. Under these circumstances, where Redimere’s actual performance under the contract “involved a violation of the Exchange Act,” it does not matter whether the contract was or was not “made” in violation of the statute. Id. at 61.
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Though Redimere insists that the Plymouth stock sale and merger is the only time that it has ever participated in a securities transaction, that does not matter under the circumstances of this case. The Court recognizes that whether someone “regularly participates in securities transactions” can be an important factor in determining that someone was obligated to registered with the SEC as a broker. See, e.g., SEC v. Feng, 935 F.3d 721, 732 (9th Cir. 2019). But “[t]ransaction-based compensation is” also “a ‘hallmark’ indication that a party has acted as a broker and must register because it ‘represents a potential incentive for abusive sales practices that registration is intended to regulate and prevent.’ ” EdgePoint, 6 F.4th at 57 n.5, quoting Legacy Res., Inc. v. Liberty Pioneer Energy Source, Inc., 322 P.3d 683, 688–689 (Utah 2013), and Cornhusker Energy Lexington, LLC v. Prospect Street Ventures, 2006 WL 2620985, at *6 (D. Neb. Sept. 12. 2006). Since Redimere claims it was promised transaction-based compensation, and further alleges that it was involved in identifying potential purchasers or securities, solicited the sale of Plymouth’s outstanding shares, and was involved in negotiations with the purchaser, Redimere was required to register as a broker even if this was the only securities transaction in which it ever participated. See EdgePoint, supra, at 57 n.5 & 59–63.
Redimere’s further argument “that a contract is not voidable – despite its performance involving a violation of the Exchange Act – unless the contract ‘necessarily’ required a violation of securities law, also fails” (emphasis in original). EdgePoint, 6 F.4th at 61. Section 78cc “is not limited to voiding contracts which ‘on their face’ violate the Exchange Act.” EdgePoint, supra, at 59, quoting Regional Properties, Inc. v. Financial and Real Estate Consulting Co., 678 F.2d 552, 560 (5th Cir. 1982). To the contrary, a contract is voidable under this provision so long as “its performance in fact involved a violation of the Exchange Act.” Id.; accord Regional Properties, supra. And the facts alleged in the amended complaint establish that Redimere’s alleged performance violated that Federal statute.
Redimere’s reliance on NTV Management, Inc. v. Lightship Global Ventures, LLC, 484 Mass. 235 (2020), is misplaced. “In NTV the parties agreed to limit the analysis to whether the contract on its face was made in violation of securities law and no evidence was presented as to whether performance involved NTV attempting to broker a securities transaction.” EdgePoint, 6 F.4th at 61 n.8 (distinguishing NTV). The Supreme Judicial Court took pains to note that “[t]he posture in which” the NTV case arose “is unusual,” because there was no “evidence of actual performance” and as a result the narrow issue raised in that
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case was whether “NTV was required to ‘effect’ a transaction in ‘securities’” under the parties’ contract. 484 Mass. at 244–245. In contrast, the detailed factual allegations in the amended complaint permit evaluation of Redimere’s view of its actual performance on behalf of Plymouth.
1.3. Unjust Enrichment Claim. Defendants are also entitled to dismissal of the claim for unjust enrichment in count VI of the amended complaint.
The unjust enrichment count is a quasi-contractual claim in which Redimere seeks compensation for services rendered based on an allegedly shared expectation that Plymouth would pay Redimere for its work on a take-private transaction, such that Plymouth would be unjustly enriched if it did not fairly compensate Redimere. Cf. Liss v. Studeny, 450 Mass. 473, 479–480 (2008).
Under the circumstances of this case, recovery on an unjust enrichment theory “would be indistinguishable from enforcement of the contract, which the statute prohibits.” Novelos Therapeutics, Inc. v. Kenmare Cap. Partners, Ltd., No. 2001 WL 893449, at *9 (Mass. Super. June 29, 2001) (Fabricant, J.) (holding that where contract was unenforceable under MUSA, G.L. c. 110A, § 401(f), because plaintiff failed to register as a broker, plaintiff could not recover on theory of unjust enrichment either); accord Lemelson v. Lemelson, 2015 WL 5822629, at *6 (D.Mass. Oct. 1, 2015) (Hillman, J.); see also Indus Partners, LLC v. Intelligroup, Inc., 77 Mass. App. Ct. 793, 793–794 (2010) (affirming dismissal of quantum meruit claim where contract claim was barred because plaintiff failed to register as a broker-dealer).
Since Redimere’s alleged contract to be paid for work on a take-private transaction is voidable under § 78cc(b), the quasi-contractual unjust enrichment claim is barred as well. “[T]he purpose of the Securities Exchange Act, including Sections 78o and 78cc(b), to institute a regulatory scheme for the long-range protection of investors, would be thwarted if brokers could ignore registration requirements, conduct their business, and then recover compensation for services rendered under equitable theories such as unjust enrichment.” Rhee v. SHVMS, LCC, 2023 WL 3319532, at *12 (S.D.N.Y. May 8, 2023), quoting Lawrence v. Richman Group Capital Corp., 2005 WL 3448056, at * 2 (D.Conn. Dec. 15, 2005), aff’d, 199 Fed.Appx. 55 (2d Cir. 2006); accord Regional Properties, 678 F.2d at 564 (“If the broker who has performed can recover his commission” under an equitable theory “despite non-registration, then the prohibition is a toothless tiger.”).
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1.4. Chapter 93A Claim. Redimere’s “c. 93A claim in count VII “must fail as well, since it depends on the allegation that” Plymouth strung Redimere along but then “refused to pay compensation due under the contract.” Novelos, 2001 WL 893449, at *9; see also Indus, 77 Mass. App. Ct. at 793–794 (affirming dismissal of c. 93A claim where underlying contract claim was barred because plaintiff failed to register as a broker-dealer).
This follows from the general rule that, where a plaintiff had “no enforceable contract” because they failed to comply with statutory requirements, and they assert a claim under c. 93A that “is derivative of [plaintiff’s] breach of contract claim,” their c. 93A “claim must also fail.” Park Drive Towing, Inc. v. City of Revere, 442 Mass. 80, 82 & 86 (2004) (c. 93A claim that was derivative of contract claim failed because contract was not enforceable due to failure to comply with municipal contracting requirements imposed by G.L. c. 43, § 29); accord Gattineri v. Wynn MA, LLC, 93 F.4th 505, 511–513 (1st Cir. 2024) (c. 93A claim that was derivative of contract claim failed because alleged contract with applicant to casino license was unenforceable on public policy grounds).
2. Redimere’s Motion to Add Hollister as a Plaintiff. Now let’s turn to Redimere’s motion to further amend its complaint to add Hollister as a plaintiff. The Court will deny this motion because the proposed second amended complaint would be futile.
“Courts are not required to grant motions to amend prior complaints where ‘the proposed amendment ... is futile.’ ” Johnston v. Box, 453 Mass. 569, 583 (2009), quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993)). A proposed amendment to a pleading would be futile if the new or revised claims could not a survive motion to dismiss. Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004) (affirming denial of motion to amend).
2.1. Hollister’s Claims under the Engagement Letter. It would be futile to add Hollister as a plaintiff with respect to the claims that Plymouth breached the written engagement letter for the reasons discussed above in § 1.1 of this decision. Hollister is not entitled to any success fee under the engagement letter because that contract apply only to an “equity financing” transaction, and the stock sale and merger that recently took place does not constitute such a transaction within the meaning of the engagement letter.
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2.2. Other Proposed Claims by Hollister. It would be equally futile to add Hollister as a plaintiff to the other claims in the amended complaint for an equally simple reason. Hollister is not entitled to compensation under any theory for work that it did not do.
The factual allegations in Redimere’s proposed second amended complaint would make clear that it was Redimere alone, without any assistance by Hollister, that helped bring about the take-private transaction at issue here. The proposed second amended complaint would allege that (emphasis added):
o “Redimere sourced and found” Makarora and Ares for Plymouth, and it did so “without any assistance whatsoever from Plymouth or others;”
o “Redimere contacted many prospective investors,” including Makarora and Ares, on behalf of Plymouth;
o “Redimere provided Plymouth with outlines of a definitive take- private agreement” in order to provide Plymouth with “guidance on how a take-private works;”
o “Redimere developed a valuation … of Plymouth’s shares” that could be used in a take-private transaction;
o “Redimere provided strategic advice on the contemplated take private transaction, advice and analysis on pricing and valuation of Plymouth, organized and oversaw due diligence, an investor data room, gave advice on whether to require an NDA from Makarora, advised on timing of offers, mechanics of a go-shop provision, break fees, exclusivity, etc. (sic);”
o “Redimere arranged and coordinated site visits of Plymouth’s markets and assets,” some of which were attended by Makarora’s CEO;
o “Redimere reviewed and coordinated Plymouth’s responses to Makarora’s financial and valuation analysis;”
o “Redimere arranged, organized, and attended a business dinner” during which Plymouth, Makarora, and Redimere discussed a potential take-private transaction;
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o Makarora’s first offer to Plymouth was the “direct result of weeks of negotiations by Redimere;”
o “Redimere negotiated Plymouth’s share price in the take-private deal on their behalf and successfully increased Makarora’s first offer of $23 per share to $23.25;” and
o “Redimere’s exhaustive effort led to” Makarora’s offer to purchase Plymouth’s outstanding stock.
If all of this were not clear enough, the second amended complaint would also allege that, “[e]ven though the Engagement Letter gave Redimere and Hollister an exclusive mandate to seek investors, Redimere itself sourced Makarora” on behalf of Plymouth.
Since the proposed second amended complaint will make clear that Hollister played no role in the take-private transaction, Hollister cannot successfully sue for breach of contract, unjust enrichment, or violation of G.L. c. 93A with respect to that transaction.
ORDERS
Defendants’ motion to dismiss all claims (docket no. 30) is allowed. Defendants’ motion to strike Plaintiff’s demand for a jury trial and certain allegations in or exhibits to its amended complaint (docket no. 37) is denied as moot. Defendant’s motion for judicial notice of statements made on Plaintiff’s website and that Redimere is not a registered broker-dealer under Federal or State law (docket no. 43) is allowed without opposition.
Plaintiff’s motion to further amend its complaint solely to add an additional defendant (docket no. 26) is denied.
Final judgment shall enter providing that Plaintiff shall take nothing and dismissing all claims with prejudice.
/s/Kenneth W. Salinger Justice of the Superior Court
June 15, 2026