Justice Barbara Jaffe
Petitioner sought an order directing respondents to provide limited pre-action disclosure. Petitioner purchased and held various industry-sector trusts, HOLDRS, under a trust agreement that provided the trusts would be liquidated 12 months after respondents announced their termination. Yet, respondents amended the agreement to shorten the period to four months, and in reliance on the amendment, petitioner established various short positions in HOLDRS options. However, respondents change the period back to 12 months after receiving complaints from an owner of HOLDRS, and petitioner lost millions of dollars on its positions. Thus, petitioners sought to ascertain the identity of the person or entity in order to file an action for unjust enrichment. The court stated pre-action discovery was not intended to discern the existence of a cause of action, noting a petitioner must demonstrate a meritorious claim, and that the information sought was material and necessary to the actionable wrong. It stated conclusory allegations failing to show the other party was unjustly enriched at petitioner's expense warranted denial and dismissal of the petition.
