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[*1]


Decided on October 5, 2011
Supreme Court, New York County

650747/09
Melvin L. Schweitzer, J.
Defendant Bioniche Life Sciences Inc. (Bioniche) moves for summary judgment dismissing the complaint. Plaintiff Ferghana Partners Inc. (Ferghana) cross-moves to amend its complaint.
This action involves plaintiff's claim, as an investment banking firm, for a finder's fee on a financial partnering transaction that defendant, a biotechnology company, entered into with a third party, Endo Pharmaceuticals Inc. (Endo), a pharmaceutical company, regarding the drug Urocidin, which treats bladder cancer. Defendant had engaged plaintiff to provide corporate partnering advice and assistance regarding the development and marketing rights to defendant's Urocidin product.
Defendant claims that the plain and unambiguous words of their fee agreement details how plaintiff would provide assistance in identifying potential corporate partners for a transaction, and that plaintiff has not provided such assistance, and actually did nothing to cause or consummate the transaction. Defendant contends that the fee agreement required plaintiff to identify a potential "Counterparty" in conjunction with defendant, propose the company to defendant, and obtain approval from defendant to approach such company. At the very least, defendant asserts that defendant would need to be aware of the identity of a company for it to be deemed a "Counterparty." It urges that plaintiff has admitted that it never mentioned Endo to defendant as a potential prospect for a transaction. Thus, defendant contends that plaintiff cannot be a finder, having never disclosed it findings to the party from which it demands compensation.
In opposition, plaintiff contends that Endo is a "Counterparty" because it approached plaintiff requesting suggestions with respect to mergers and acquisitions in the urology and cancer sectors, and that plaintiff responded by suggesting Urocidin. Alternatively, it urges that Endo is a "Counterparty" because defendant requested that plaintiff contact every company that would be interested in a partnering transaction regarding Urocidin, a universe which ultimately included Endo. Plaintiff also urges that Endo is a "Counterparty" by virtue of its acquisition of Indevus Pharmaceuticals, Inc. (Indevus). Plaintiff cross-moves to amend its complaint to add facts regarding contacts it had with Indevus, and to assert a claim for declaratory relief regarding the fee agreement with defendant.
[*2]Facts
Plaintiff is an investment banking firm focused on the pharmaceutical, diagnostics, healthcare, and specialty chemicals business sectors (Affirmation of William J. Kridel, Jr., dated June 29, 2011,

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