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Boustead Secs. LLC v. Leaping Grp. Co. Ltd.

Breach Action Denied Dismissal; Performance, Satisfaction of Condition Precedent Alleged

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OPINION AND ORDER Plaintiff Boustead Securities, LLC (“Boustead”) brings this action against Defendants ATIF Holdings Limited (“ATIF”) and Leaping Group Co., Ltd. (“Leaping”) for breach of contract. See generally Second Am. Compl., Dkt. 115. ATIF moved to dismiss the Second Amended Complaint (“SAC”) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). Def. Mem., Dkt. 119. For the following reasons, ATIF’s motion to dismiss is DENIED. BACKGROUND In May 2018, Defendants ATIF and Leaping1 entered into a Consulting Agreement pursuant to which ATIF would provide support services (e.g., due diligence, identification of professional firms) in connection with Leaping’s potential public offering in the United States, which Leaping hired Plaintiff Boustead to underwrite. Second Am. Compl.

16-17. On or around September 4, 2018, Plaintiff entered into an exclusive financial advisor agreement with ATIF. Id. 29. Plaintiff was to act as ATIF’s exclusive financial advisor in connection with ATIF’s application for listing on NASDAQ or the New York Stock Exchange (the “ATIF Agreement”). Id. Thereafter, on or around October 17, 2018, Plaintiff entered into an exclusive financial advisor engagement agreement with Leaping (the “Leaping Agreement”). Id. 19. Pursuant to the Leaping Agreement, Plaintiff was to act as an underwriter for Leaping’s initial public offering as well as to facilitate fund raising transactions. Id. Plaintiff alleges that ATIF and Leaping were aware of the other’s agreement with Boustead. Id. 25. Plaintiff’s agreements with Leaping and ATIF each included a twelve-month tail period, a Future Services provision, and a Success Fee provision for all Equity Investment Transactions (“EIT”). Id.

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