UnifiedOnline Inc fka UOIP

[long uoip]

re: "Mischcon et al knew about the waterfall "

https://www.docdroid.net/EpstiDr/1-pdf#page=42

50. Just prior to the lunch break, Ms. Leane testified about the Advisory Services Agreement. Counsel for the defendants noted that ( for reasons unknown to Claimants) ChanBond had not produced the document.

51. On the lunch break, Mr. Whitman advised Ms. Leane that ChanBond's failure to produce the Advisory Services Agreement would create problems for the ChanBond Litigations, including additional discovery and severe trial delays.

52. Mr. Whitman advised her that it was in ChanBond's, IPNav's, and her own interest to terminate and cancel the Advisory Services Agreement and enter a new agreement with ChanBond at a later date that would restore her to the same 22% economic position.

53. Through its agent, Whitman, ChanBond and Unified represented to Ms. Leane that it would restore her 22% interest in the recovery on the ChanBond Patents, which she then held through IPN av and the Advisory Services Agreement, if she agreed to terminate the Advisory Services Agreement.

54. In addition, Unified's principal, Billy Carter, specifically advised Ms. Leane that she would still get paid if she terminated the Advisory Services Agreement.

55. Though the Advisory Services Agreement provided that IPN av could unilaterally terminate it, requiring no action by ChanBond, Whitman drafted a "Termination Agreement" between IPNav and ChanBond that terminated the Advisory Services Agreement effective as of April 9, 2015.

56. The Termination Agreement provided that ChanBond and IPNav were entering into an agreement to terminate the Advisory Services Agreement, in exchange for their mutual agreements and "other good and valuable consideration."

57. The only consideration IPNav received for terminating the Advisory Services Agreement was ChanBond's representation and agreement, conveyed by its attorneys, that ChanBond would execute a separate agreement binding itself to pay IPNav 22% of the proceeds of the ChanBond Patents, exactly as it had been required to do under the Advisory Services Agreement.

58. Ms. Leane relied on ChanBond's representations, and the representations of its counsel, in executing the Termination Agreement.

59. Ms. Leane's reliance on such representations was reasonable. Indeed, at the time the representations were first made, Whitman was expressly acting as her counsel.

60. In or about October 2019, Ms. Leane reached out to ChanBond to begin the process of having ChanBond execute the contemplated agreement that would restore her and IPNav to their previous economic position.

61. In response, ChanBond repeatedly reiterated its promise to restore Plaintiffs to their previous economic position, both expressly and implicitly.

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."

70. Similarly consistent, the 10/25 ChanBond Waterfall Carter created identified the "IPN av Return" as being paid from whatever proceeds were left over after payment of Bentham and ChanBond's litigation counsel.

71. Despite that confirmation of the parties' agreement that IPNav's 22% interest would be reinstated, ChanBond simply refused to execute an agreement accomplishing that result.

72. Instead, ChanBond attempted to leverage the fact that the Advisory Services Agreement had been cancelled and not formally replaced to extract a settlement from IPN av at a reduced percentage.

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."