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ONEOK argues that Southern Union are unable to demonstrate that it was reasonably certain of merging with Southwest mainly because the events had been not shut to reaching a definitive merger agreement. Southern Union argues that, but for the actions of these Defendants, Southern Union was moderately confident of consummating a merger with Southwest and recognizing significant income. In gentle of this conflicting evidence, the Court finds legitimate issues of content fact no matter if Southern Union was fairly certain of consummating the merger with Southern Union. ONEOK argues that Southern Union's tortious interference claim fails because Southern Union can't show that it was "moderately certain" of consummating a merger with Southwest "but for" ONEOK's alleged interference. 8. Although ONEOK's key argument is that Southern Union was not fairly assured of merging with Southwest, ONEOK also argues that ONEOK's alleged interference did not result in the merger to fall short. ONEOK argues that the present case is distinguishable simply because the Southwest Board, as opposed to the focus on business in Megawatt, was not exclusively worried with marketing to the highest bidder. In Megawatt, which also included a unsuccessful utilities merger, the court docket denied summary judgment because there was adequate proof from which a jury could conclude that the defendant's alleged interference deprived the plaintiff of an prospect to outbid its competitor

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According to ONEOK, "Southern Union should verify that ONEOK furnished facts to the Southwest Board that was substance to the Board's conclusion to reject the Southern Union proposal. Unfortunately for Southern Union, the uncontroverted evidence is to the contrary." (ONEOK's Mot. Although Southern Union presents a dense 3-volume professional report (subject to a Daubert problem) purporting to determine the "synergistic" outcomes of a Southern Union-Southwest merger and the ensuing income, Southern Union provides inadequate proof to establish the phrases of a consummated merger with Southwest. According to ONEOK, at least 6 "sizeable" conditions remained in dispute, "like Southwest's ask for for a $200 million liquidated damages provision and Southern Union's refusal to fork out the $30 million termination charge owing to ONEOK upon termination of the Merger Agreement." (ONEOK's Mot. With respect to Southwest's stated fears about Southern Union's means to finance the merger, Southwest's very own monetary advisers testified that they considered Southern Union could have attained funding for the merger at the time the give was staying regarded as by the Southwest Board

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