I don't know who I distrust more.. .affiliated with this ~ carter, the lawyers, etc
62. For example, on October 16, 2019, Ms. Leane texted Billy Carter, principal of Unified, to inform him that she "didn't see the replacement consulting Agreement" and asking if he had sent it to her Yahoo email account. The next day, Mr. Carter replied "Email will go out today ... "
63. On October 23, having not received the promised email, Ms. Leane again texted Mr. Carter to inquire about the status. The next day, Mr. Carter responded that they needed "to talk about the waterfall" before he sent the email.
64. As discussed above, by "the waterfall," Mr. Carter was referring to the manner in which any recovery on the patents would be distributed among the various players who would be paid from the recovery: first to the litigation funder in agreed amounts, next to ChanBond's attorneys, and so on, until each of the litigation funder, attorneys, IPNav, inventors, and ChanBond had received distributions.
65. Ms. Leane then asked if Mr. Carter could send her the waterfall "as it currently exists", and he agreed to do so, saying that he needed to make adjustments based on the "latest amendment" of ChanBond's agreement with its litigation funder ("Bentham").
66. Later that evening, Mr. Carter sent Ms. Ms. Leane an email attaching the revised waterfall, reproduced above, reflecting, among other things, the terms of ChanBond' s amended agreement with Bentham.
67. Mr. Carter's email was sent at 10:51 p.m. on October 25, 2019 (the "10/25 Email"), and included four attachments: the initial litigation funding agreement with Bentham (which had been executed by Ms. Ms. Leane prior to her sale of ChanBond to Unified), two amendments to that litigation funding agreement, and an Excel spreadsheet.
68. The file name of the Excel spreadsheet attached to the 10/25 Email was "Copy of Chanbond Waterfal_Billy Carter_Final.xlsx" (the "10/25 ChanBond Waterfall").
69. Fully consistent with the parties' agreement that the "replacement consulting Agreement" would restore IPN av to its economic position under the Advisory Services Agreement, the 10/25 ChanBond Waterfall created by Mr. Carter identified the "IPNav Return" as "22% of gross."
73. After a series of text exchanges where Ms. Leane pressed Carter to sign the reinstated Advisory Services Agreement and Carter deflected, in February 2020, Carter finally came clean: He had no intent of reinstating IPN av as had been agreed.
74. On February 17, 2020, Carter texted Ms. Leane: "I'm not signing another Advisory Services Agreement. Rob [Howe] and I executed one when you terminated the previous one to take the Technicolor job. We can discuss the split or your compensation, but I'm not going to terminate the existing agreement in favor of another one with IPNAV, LLC."
75. Carter's claim that Ms. Leane had terminated the Advisory Services Agreement to 'take a job at Technicolor' was blatantly false.
76. In fact, Ms. Leane had taken a position as Technicolor's head ofIP in June of 2017, roughly a year before Whitman advised her that the case required that the Advisory Services Agreement be terminated.
77. Indeed, Ms. Leane had affirmatively disclosed to Technicolor that she had a connection to and financial interest in the ChanBond Litigations, and her position at Technicolor had nothing at all to do with the termination of the Advisory Services Agreement.
78. Thus, Ms. Leane immediately rejected Carter's claim, responding: "No f[sic] way. I had to execute because you didn't disclose during discovery and I spoke to it during deposition. That was always the deal - you got CB be I had IPNA V and my big out ... "
79. On February 23, 2020, Ms. Leane texted Mark Raskin, another ofChanBond's (and IPNav's) attorneys, to discuss Carter's attempt to renegotiate the deal. Raskin responded "I spoke with him [Carter] briefly. He said he's not trying to screw you out of anything but is worried about anything af dexting [sic] the case at this point."
80. Upon information and belief, the word "afdexting" was meant to be "affecting."
81. Upon information and belief, Carter had claimed in his discussion with Raskin that he had no objection to reinstating IPNav at the full 22%, as previously agreed, and as reiterated in the updated waterfall Carter had circulated, but was concerned that doing so might somehow negatively impact ChanBond' s chances of success in the litigation.
82.On February 27, 2020, Raskin texted Ms. Leane.
83. Raskin wrote "[a]t this point I don't think you need the 'ASA' per se. Just an agreement that you get paid whatever you were supposed to. I think he said he'd do that."
84. Upon information and belief, the "he" Raskin was referring to in the text message was Billy Carter.
85. Upon information and belief, Carter had again conveyed his acknowledgement that, pursuant to the terms of the parties' prior agreement, IPNav was "supposed to" get paid 22% of the gross recovery.
86. As a result of the foregoing, Respondents have effectively stripped away the economic benefits and consideration that it accepted pursuant to the ISA.
91. As described above, Respondents' material breaches have stripped the purported consideration for Unified's purchase of ChanBond of all value, causing the consideration to fail.
92. The parties can easily be returned to the status quo ante by Ms. Leane's tender of the Unified stock to Unified in exchange for the return of her membership interests in ChanBond, and Ms. Leane is prepared to, and hereby offers to, make such a tender in connection with a recission of the ISA.
93. Ms. Leane stands ready, willing, and able to return the parties to the status quo prior to execution of the ISA.
94. As such, Ms. Leane is entitled to recission of the ISA, in addition to an award of her litigation costs and attorneys' fees as the prevailing party.
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