These cases arise out of the merger of two publicly-traded corporations, McKesson Corporation and HBO & Company “HBOC”. In January 1999 McKesson acquired HBOC in a stock-for-stock deal in which McKesson purchased the stock of HBOC shareholders with McKesson stock at an exchange rate agreed to by the parties. The rate was based on the information financial and otherwise exchanged and warranted by the corporations. A few months later, McKesson discovered that, due to accounting fraud, HBOC’s common stock had been overvalued and that, consequently, McKesson had paid too much for it. To investigate the accounting problems at HBOC, McKesson’s audit committee retained the law firm of Skadden, Arps, Slate, Meagher & Flom, LLP “Skadden”, which in turn retained the accounting firm of PricewaterhouseCoopers, LLP “PwC”. Skadden and PwC spent thousands of hours investigating HBOC’s accounting practices. Their findings were set out in a 180-page report supported by three volumes of back-up materials and interview memoranda. McKesson voluntarily provided the audit documents to the SEC and the United States Attorney’s Office, both of which were conducting their own investigations of HBOC and McKesson. The documents were provided pursuant to confidentiality agreements specifying that McKesson was not waiving work-product protection. After a sharp decline in value of McKesson stock, many of McKesson’s shareholders, including plaintiffs in this case, who were former shareholders of HBOC, sued McKesson alleging that they had incurred stock losses as a result of the accounting fraud. McKesson filed a counterclaim seeking damages for unjust enrichment on the ground that the HBOC shareholders received more shares of McKesson stock than they were entitled to receive due to the accounting fraud. The trial court granted a motion to compel the production of the audit documents; it denied a motion to dismiss McKesson’s unjust enrichment counterclaim.
On appeal, the Court of Appeals affirmed the former ruling and reversed the latter. McKesson Corporation v. Green , 266 Ga. App. 157 597 SE2d 447 2004. We granted a writ of certiorari to consider 1 whether McKesson waived work-product protection when it provided its audit documents to the SEC and 2 whether McKesson’s unjust enrichment theory can withstand motion to dismiss scrutiny.
