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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
In RE: Richard L. Chang
Lead Case No. LA CV13-01340 JAK
(ANx)
PLAINTIFF’S CLOSING BRIEF
Fred Wu, a sophisticated businessperson and convicted forger,(1) created a set of false documents to exploit the goodwill of Professor Richard Chang and to acquire all his intellectual property rights. By his own admission, Wu defrauded just about everyone involved – Professor Chang, Mrs. Chang, Ben Chang, Dr. Han, and the investors – in Biosuccess by, among other things, telling the Changs that he had the $2M in August 2006 when he did not, by paying Han over $1.2M, none of which was shared with or even disclosed to the Changs, and by failing to register any of the debt owed to Chang and Han on the company books. Indeed, if his own story is believed, he regularly and repeatedly backdated, sometimes by years, nearly every (if not every) contract signed. All this was after he falsely inflated Biosuccess’ initial corporate records as though $50M in capital had been deposited and/or committed to Biosuccess from inception—all this was and is false. Exh. 402; Trial Transcript, Day 2 A.M., 62:14-64:15.
(1) Wu admitted at trial that he had been convicted of forgery in Taiwan, and it was a serious offense punishable with up to three years of imprisonment. (Trial Transcript, Day 2 P.M. 29:7-30:19);evidence of this conviction was and is therefore admissible under Rules 609(a)(1) & 609(a)(2) of the Federal Rules of Evidence. Indeed, defense counsel did not object to this testimony by both Wu and Han.
ARGUMENT
I. UNDER APPLICABLE NEW JERSEY LAW, DEFENDANTS CARRY THE BURDEN OF PROVING THEIR “REFORMATION” THEORIES THAT DISREGARD THE TEXT OF THE SIGNED WRITINGS.
A. Defendants Have the Burden of Producing “Clear and Convincing” Proof to Reform the August 2006 Agreement.
Defendants essentially seek to reform the August 2006 Agreement to be dated (to some yet-to-be-identified date in) September 2011 and to make it the controlling agreement between the parties. Under New Jersey law, “[f]or a Court to grant reformation there must be ‘clear and convincing’ proof that the contract in its reformed, and not original form, is the one that the contracting parties understood and meant it to be.” St. Pius X House of Retreats, Salvatorian Fathers v. Dioceses of Camden, 88 N.J. 571 (1982). “It is settled that reformation may be granted upon ground of mutual mistake…only where a mutual mistake is shown by a ‘high order of proof.’ Such proof must be ‘clear, cogent and convincing’ or ‘clear and conclusive.’” Asbestos Fibres v. Martin Laboratories, 12 N.J. 233, 240-41 (1953) (citations omitted).(2) That burden has not been met here as the conflicting testimony and other conflicting evidence does not change and cannot change the fact that Wu (and Han) had full knowledge of the existence of the October 12, 2006 Agreement, and yet the non-superseding August 30, 2006 date was used. A sophisticated businessman with over 35 years of experience can hardly cry fraud or mistake as his own conduct drove all this, as did his sole drafting.(3)
(2) Both Agreements should be read on their face, and should be taken by the order of the dates on the documents. New Jersey law respects the right of contracting parties to memorialize their entire agreement in a single writing, by voluntary integration. See Harker v. McKissock, 96 A.2d 660, 665 (N.J. 1953).
(3) Wu’s identification (not at deposition but at trial) of two errant secretaries—neither of which he produced at trial does not help him. See Section III.A below.
B. The Burden of Proof on Unilateral Termination of the Agreement.
Under patent law, joint inventors may each exploit the patented invention “without the consent of and without accounting to the other owners.” 35 U.S.C. § 262 (2015). Any party seeking to deviate from that default approach bears the burden of proof by a preponderance of the evidence. Synopsys, Inc. v. Magma Design Automation, 2007 U.S. Dist. LEXIS 6814, at *50–51 (N.D. Cal. Jan. 31, 2007). The parties—both Chang and Han—admit the existence of an oral agreement; accordingly, each bears the burden of proving his “version” of the oral agreement; given the terms of § 262, Han clearly bears the burden of proving any version negatively affecting Chang’s statutory right to exploit the ‘814 Patent. Han admitted there was an oral agreement at 50-50 and that Chang was in charge, and that Chang confirmed that role by hiring, paying and otherwise managing all patent attorneys, all licensing attorneys, all PTO filing fees (and deadlines) and all
licensing negotiations with Genexe initially and then with Wu and Biosuccess. There is no doubt that Chang’s version of the oral agreement was proven; the last minute new and unpled claim by Han of “fraud” with regard to a non-existing (and never proven) deal opportunity with Rutgers is simply irrelevant.(4)
(4) Defendants served a subpoena on Rutgers but never took any deposition of any Rutgers representative and never obtained any of the “evidence” to support the existence of any actual offer made by Rutgers and the attorney argument suggesting the same was and is unsupported.
C. The Burden of Proof on the Conditional Assignment Question.
Plaintiff bears the initial burden of proving that the Applicable Agreement contains a conditional assignment; in fact, all versions do here. See e.g. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). As all agreements unambiguously state that the assignment of all intellectual property rights is conditioned on full receipt of consideration under Article 3.1, that burden is fully met. Thus, the burden shifts to Defendants, who are seeking to reform the Applicable Agreement to remove the language of conditionality—whether on the basis of parol evidence
or some new reliance theory not previously briefed or articulated except in opening statements. Thus, the defense burden was and is to show clear and convincing evidence in support of that new theory.(5) That burden was not met here.
(5) Plaintiff objected in his opening statement and continues to object to any new, unpled defense theory.
II. BY HIS OWN ADMISSION, WU WAS AND CONTINUES TO BE DISHONEST ON DOCUMENTS AND IN PERSON TO THE CHANG FAMILY.
Even if Defendants’ version of the events is to be believed, Fred Wu’s trial disclosures demonstrate a picture of a sophisticated businessperson and convicted forger who has, since as early as 2003, consistently misrepresented facts to multiple parties and on every document signed.(6) Defendants’ version of events is one in which no date on any agreement is truthful, and where Biosuccess misrepresented its financial status to Chang, to his wife, to his son and to the other investors. As such, Defendants stand on no greater footing.
(6) For the first time at trial (never in any deposition) Wu argued that he provided a concurrent copy of the August 2006 Agreement in the fall of 2011 to another board member (Trial Transcript Day 2 P.M., 21:7-23) who is still a Biosuccess board member and who was never produced for deposition or for trial. Again, under well-established precedent, this requires an inference that the testimony of the board member would have been adverse to Mr. Wu and Biosuccess.
A. Wu Misrepresented that Biosuccess Had $2M.
It is undisputed that on July 30, 2006, Wu met with Chang to discuss starting a business based upon Chang’s intellectual property rights. At this meeting, Chang and Wu reached a tentative agreement that in exchange for their patent rights, Chang and Han would collectively receive $2M.(7) This agreement was reflected in the meeting minutes Wu sent via email on August 7, 2006. Exh. 127. On August 15, 2006—just one week later—Wu reiterated that he had $2M, in response to Tsailing Chang’s questioning. Trial Transcript, Day 2 P.M. 12:19-24. However, Biosuccess Cayman’s financials show that in 2006, it had less than $800,000 in capital, which Wu knowingly misrepresented to the Changs.(8) Trial Transcript, Day 2 P.M. 12:25-13:12, Exh. 452.
Through the end of 2010, Biosuccess did not have sufficient capital to pay the amounts due to Chang and Han. These financial statements were never disclosed to the Chang family, and Wu never truthfully told the Changs that Biosuccess lacked the funds to pay them – not when the August 2006 Agreement was signed, nor when the October 2006 Agreement was signed, nor in February
2007 when the final installment of the $2M consideration was due. When Chang finally demanded disclosure of the Company’s financials in January 2013, he was summarily terminated by Wu from all roles at Biosuccess. Indeed, Wu’s notices asserted all the Chang stock was forfeited. Trial Exhs. 218, 394.
(7) In fact, Wu testified for the first time that agreement, in principle, was already made in July 2006 in phone calls that occurred even before the July 30th meeting.
(8) Reformation is equitable and, under settled New Jersey law, unclean hands prevents any such request regardless. See Dugan Constr. Co., Inc. v. New Jersey Turnpike Authority, 398 N.J. Super. 229, 243 (App. Div. 2008).
B. Wu Misrepresented Biosuccess’ Financials to Investors, and Concealed This Debt for Years.
Not only did Wu systematically and regularly misrepresent Biosuccess’ financial information to Chang for years, he also misrepresented this debt for many years to all the investors. According to the Defendants’ timeline, the October 2006 Agreement was signed and operative by October 2006; thus, for at least those five years, Biosuccess owed a $2M debt to Chang and Han, and should have logged this debt in its financial books. However, Biosuccess’ financial statements for 2006-2011 all show that no such debt was ever entered. Put simply, Wu fully
misrepresented Biosuccess’ financials and concealed over $2M in debt for these five years; nor can Wu claim any good faith inadvertence as he has a degree in accounting and 35+ years of business in private and public companies. Exh. 452.
III. THE LATER DATED AND LATER SIGNED OCTOBER 2006 AGREEMENT IS THE CONTROLLING CONTRACT BETWEEN PROF. CHANG AND BIOSUCCESS.
A. The Facts Do Not Support Defendants’ Alleged Timeline.
As shown at trial, the August 2006 Agreement was signed in August of 2006 and the October 2006 Agreement was signed in October 2006. The facts show that Biosuccess successfully obtained over $2M of new funding in April of 2011, over five (5) months before the Defendants allege that the August 2006 Agreement was signed. Exh. 111. If it were truly the case that the new investors required that Biosuccess sign a new agreement with Chang and Han, then it would make no sense for them or Wu, an experienced and sophisticated businessperson, to sign the Investment Agreement in April of 2011, and only fix “the problem” some five months later. Indeed, given this timeline, how can Defendants assert, as they do repeatedly, that this was required by the new investors?(9) The fact is that the new investment deal as well as the monies came in before any alleged change occurred. The fact too is that not a single investor document shows any such “demand” here.
Further, as noted, Wu first asserted at trial that at least three (3) other individuals were involved with or otherwise aware of the alleged existence and/or signing of the August 2006 Agreement in September 2011: Wu testified that after signing the agreement in September 2011, he gave a copy to Mr. Chu, the fourth Biosuccess director. Trial Transcript Day 2 P.M. 20:10-17. He also testified that the draft of the August 2006 Agreement was typed by two of his secretaries, a Ms. Chen and a Ms. Zhang, who still work with Biosuccess under his direction and that
he and his secretaries had in the Fall of 2011 Microsoft Word electronic drafts of the August 2006 Agreement. Trial Transcript Day 2 P.M., 21:7-23, 23:4-11.
Yet, tellingly, Defendants have called none of these individuals to testify, nor have any of them submitted a declaration. Further, Defendants have not produced any electronic versions of the August 2006 Agreement, which could show the progression of edits and the date of creation.(10) A legion of settled case law requires that fact finder to draw inferences that such testimony would have been unfavorable in light of their failure to produce such evidence. Apple, Inc. v. Samsung Elecs. Co., 2012 U.S. Dist. LEXIS 114715, 23 (N.D. Cal. Aug. 13, 2012) citing United States v. Kojayan, 8 F.3d 1315, 1317 (9th Cir. 1993); Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 37 L. Ed. 1021 (1893)). Here, Biosuccess’ failure to provide testimony from its current employees and fourth board member, Mr. Chu, who are fully within their control, must be read as an inference they would not have supported Wu’s chronology or his new testimony.
(9) Not a single new investor witness was brought in, nor were any deposed or even identified in initial disclosures by the Defendants, again, requiring inferences that such testimony would have been adverse to Defendants.
(10) There was no contrary evidence: Defendants’ reliance upon Chang’s passport is misplaced, as the passport scan shows that it was issued on December 30, 2006 – over two months after the signing of the October 2006 Agreement – and is therefore of zero relevance as to Chang’s travels in 2006 before that issuance date.
B. Defendants Cannot Rely Upon Biosuccess’ Business Addresses.
Biosuccess and Mr. Wu utilized multiple and different addresses over different periods of time, making any specific address reference in a document irrelevant and misleading.
First, Defendants’ logic is inconsistent between the two Agreements. They argue that, despite a decision to backdate the August 2006 Agreement from 2011 to August 30, 2006, the parties also decided to include on it the new business address for Biosuccess. However, when signing the October 2006 Agreement, which Defendants allege occurred in November of 2007 – five months after Biosuccess moved to a new address – the parties did not include that new business address. Thus, both Agreements were allegedly signed after Biosuccess moved to a new address; both Agreements were backdated to 2006, yet only the August 2006 Agreement somehow included the “new” business address, that Wu admitted in deposition was the office of Mr. Chu for over 20 years. Deposition Transcript of Fred Chi-Ming Wu (“Wu Depo.”) at 142:15-144:24.
Second, the lease agreements that Defendants rely upon for this argument do not support their story. Exh. 381, the lease agreement for the Lin-Shen North Road Address, a) was signed on May 31, 2005, at least a year before Biosuccess’ formation, b) makes no mention of either Biosuccess or Fred Wu, and c) was leased to two companies: Yatai Health Biotechnology Co., Ltd., and Yudong Technology Co., Ltd. The evidence here points to the fact that this address was never a Biosuccess business address, and supports Chang’s testimony that he visited this address, which was a health care company owned and run by Wu’s sister. Declaration of Richard Chang, Dkt. 388 (“R.Chang Decl.”), ¶ 72.
Third, the evidence demonstrates that Fred Wu has a long history of interchangeably using addresses of his family and friends as business addresses on contracts, and that these addresses are inconsistent and unreliable as indicators of actual places of business. For instance, on the Patent License Agreement with Genexe Development Company (Exh. 183, the “Genexe Agreement”), Genexe’s business address is listed as 4Fl., No. 35, Alley 5, Lane 125, Sec. 3, Yangde Blv., Taipei. This address reappears in Exh. 381, the lease agreement for the Lin-Shen North Road Address, as the address of Wu Mei-En, one of the guarantors and Fred Wu’s relative. Fred Wu also used it as his own address later in April of 2011, when he signed the Biosuccess Investment Agreement. Exh. 111. Chu’s office address— admitted by Wu to be used by him for over 20 years (Wu Depo. at 142:15- 144:24)—could easily have been used in August 2006.
C. Company Titles Were a Constantly Moving Target.
Biosuccess and Wu have a history of inconsistently applying company titles and cannot rely on any such argument. The August 2006 Agreement lists Chang as CSO, and Han as CTO/CRO. The October 2006 Agreement lists Chang as CTO, and Han as VP, R&D China. Exh. 102, an email dated November 18, 2006, again lists Chang as CSO and Han as CTO, while Exh. 120, an email dated June 18,
2007, lists Chang as CSO and Han as VP of Global Research. Exh. 284, dated June 14, 2011, also lists Chang as CSO, while Han’s title changes to CTO/CRO. The evidence shows that Biosuccess never kept consistent titles for its employees and consultants, and Han’s title changed frequently and can provide no reliable indication as to when the August 2006 Agreement was in fact signed.
IV. PROFESSOR CHANG CANNOT BE HELD HOSTAGE IN A CONTRACT BY SOMEONE WHO HAS BEEN PAID $1.2M THAT WAS NEVER SHARED.
A. Han’s Decade-Long Conduct Confirms The Verbal Agreement He Had With Chang.
Han’s decade-long history of behavior was that Chang both represented him in all matters relating the ‘814 patent and had control over the related patent rights. At his deposition, Han admitted that he paid none of the fees of the ‘814 Patent, was not in contact with any patent attorneys, and “did not care” about the patent. Transcript of Deposition of Zheng Tao Han (“Han Depo.”), 23:24-24:13, 54:11-16, 55:1-3. He also admitted that Chang discovered and negotiated the Genexe Agreement on his behalf, hired and paid the licensing lawyers who created the draft License Agreement, and when Genexe breached the Agreement, it was Chang who made the decision to terminate the Genexe Agreement and drafted and sent all the necessary letters.(11) Han Depo. 70:25-71:11. Han further admitted that Chang negotiated both Patent Assignment Agreements with Biosuccess, and represented him in all of these negotiations. Han Depo. 87:15-88:21. In fact, the first time that Han argues that he disagreed with Chang on any contract was in 2011, when he allegedly refused to sign the original undertaking for Karen Chang, over a decade after the ‘814 Patent issued and almost three decades since he first met Chang.
(11) Indeed, Wu flew from Taiwan to New Jersey and back twice in a 2 week period--an admitted 50+ collective hours of flights–to discuss and negotiate with Chang, not Han—even though Han was just a 1.5 hour flight away. Trial Transcript Day 2 A.M, 56:3-14.
B. There Is No Provision in Any Version of the Agreements that Bars Professor Chang from Terminating for Lack of Payment.
Seeking yet another reformation, Defendants also claim that the language of the Applicable Agreement somehow bars Chang from terminating his agreement with Biosuccess and retrieving his patent rights. Not only is this inequitable, it is allowing Biosuccess to pay just one party (here, over $1.2M to Han) and not pay the other (Chang) and yet maintain ‘814 patent rights, and that too is entirely without support in any of the underlying agreements, whichever controls. There is no statement of any sort of unilateral termination, nor can it be fairly implied from
the language of any Applicable Agreement that simply defined Chang and Han as the “Assignors.” All of the evidence supports that it was Chang who made all decisions as to those agreements, as admitted by Han. Han Depo. 87:15-88:21.
V. ALL VERSIONS OF THE AGREEMENT CONTAIN A CONDITIONAL ASSIGNMENT OF THE ‘814 PATENT AND RELATED PATENT RIGHTS.
A. All Agreements Unambiguously Condition Any Assignment on Actual Receipt of Consideration.
Section 5.1 in both Patent Assignment Agreements unambiguously establishes that Chang and Han’s assignment of intellectual property rights are conditioned upon full receipt of all consideration under Section 3.1, and that the assignment of all applicable intellectual property rights is not complete until receipt of the agreed-upon consideration. “[W]here by the terms of the contract performance on one side is made a condition precedent to performance by the other, such an intention expressed in the contract will be given effect.” Kennedy v.
Westinghouse Electric Corp., 101 A.2d 592, 598 (N.J. Super. App. Div. 1953) “If the language of a contract ‘is plain and capable of legal construction, the language alone must determine the agreement's force and effect.’” Manahawkin Convalescent v. O'Neill, 2014 N.J. LEXIS 228, 32-33 (N.J. Mar. 11, 2014) (quoting Twp. of White v. Castle Ridge Dev. Corp., 16 A.3d 399, 403 (N.J. Super).
B. Defendants’ New Unpled Argument of Alleged “Reliance” Is Belied by the Facts of This Case.
Plaintiff objects to Defendants’ new (and unpled) argument that Biosuccess expended millions of dollars in “reliance” upon Chang’s absolute assignment of the patent rights; regardless, it is without merit and belied by the facts of this case. Both Biosuccess Cayman’s incorporation documents and Wu’s testimony show that Chang and Han were already shareholders of Biosuccess by July 30, 2006 and Board Members as of August 3, 2006. Trial Transcript, Day 2 P.M., 58:21-60:5, 61:24-62:13; Exhs. 145, 229, 402, 424, 452. Months before any assignment of the ‘814 Patent or related Patent Rights were recorded with the USPTO, Biosuccess had already made Chang a 15% shareholder and a Board member. Further, when Wu sent the forms for submission to the PTO, he said it was only for external use for the PTO only. Therefore, Defendants’ arguments that Biosuccess expended millions of dollars in reliance upon those PTO “form” assignments are false and entirely disproven by Mr. Wu’s admissions and conduct.
CONCLUSION
For the above reasons, the Court should rule for Plaintiff and find that
1 - the October 2006 Agreement is the Applicable Agreement between the parties,
2 - Plaintiff Chang has the right to terminate the October 2006 Agreement pursuant to Article 5, and
3 - any and all assignments of the ‘814 Patent and its related rights are and have always been conditioned upon full receipt of consideration under Article 3.1 of the October 2006 Agreement, none of which has ever been paid.(12)
(12) Plaintiff submitted proposed Findings of Fact and Conclusions of Law (Dkt 383-1) in advance of the start of trial; Plaintiff has compiled additional findings based on the new testimony of Fred Wu and that of Han and accordingly, Plaintiff is submitting its slightly revised and updated statement of proposed Findings of Fact and Conclusions of Law concurrently with the filing of this Closing Brief.
Respectfully submitted,
ENTREPRENEUR LAW GROUP LLP
Dated: January 28, 2015 By: /s/Jack Russo
Jack Russo
Attorneys for PLAINTIFF
RICHARD L. CHANG
