## Facts

- Global Technology & Trading, Inc. (Global) orally agreed to act as an intermediary for Satyam Computer Services Ltd. (later Tech Mahindra) in connection with Satyam’s acquisition of Bridge Strategy Group, LLC, an Illinois business.
- Global claimed it brokered the deal and was owed a 3% commission (about $600,000), which Tech Mahindra refused to pay.
- Global was not registered as an Illinois business broker, and the alleged brokerage agreement was not in writing.
- Global sued for the commission in Illinois state court; Tech Mahindra removed to federal court based on alienage diversity.
- For several years, Tech Mahindra litigated on other theories (including that it had not promised to pay Global), and did not plead the Illinois Business Brokers Act in its answer.
- About four years into the case, Tech Mahindra moved for summary judgment, invoking the Illinois Business Brokers Act’s registration and writing requirements and its bar on enforcing promises to pay unregistered brokers.
- Global did not dispute that the Act, if applicable, would defeat its claim; it argued instead that Tech Mahindra forfeited the defense by not pleading it under Federal Rule of Civil Procedure 8(c).

## Issues

1. Whether the Illinois Business Brokers Act defense was forfeited because it was not pleaded as an affirmative defense in the answer under Federal Rule of Civil Procedure 8(c).
2. Whether the district court could permit the defense to be raised at summary judgment and enter judgment for Tech Mahindra absent a showing of unfair prejudice to Global.

## Decision

- The Seventh Circuit affirmed summary judgment for Tech Mahindra.
- Rule 8(c) requires affirmative defenses to be stated, but it does not impose an automatic forfeiture rule for late assertion.
- District courts may allow a late-raised affirmative defense when the opposing party is not unfairly prejudiced and has an opportunity to respond.
- Global failed to show prejudice because the defense turned on undisputed, dispositive facts: Global was unregistered and relied on an oral brokerage agreement.
- Once the Illinois Business Brokers Act was properly considered, it barred enforcement of Global’s commission claim.

## Legal Principles

- Failure to plead an affirmative defense in the answer does not automatically forfeit the defense; the consequence of delay is committed to the district court’s case-management discretion.
- A district court may allow an omitted affirmative defense to be raised at summary judgment if the plaintiff is not unfairly surprised or prejudiced and can address the defense on the merits.
- Under the Illinois Business Brokers Act, a business-broker commission claim is unenforceable when the broker is unregistered and the brokerage agreement is not in writing.

## Conclusion

The Seventh Circuit upheld the district court’s decision to allow a late-raised affirmative defense because Global showed no unfair prejudice, and Illinois law rendered the claimed oral commission agreement unenforceable due to Global’s lack of registration and the absence of a written brokerage contract.


Global Tech. & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730 (7th Cir. 2015)