Replies to post #37950 on Calypso Wireless (fka CLYW)

[Cougar6]

WOW, you have been doing your homework. Laches, estoppel and the mitigation of damages. Laches and estoppel are both equitable causes of action neither of which apply here. Laches excuses failure to act (which might help us in the bill of review but won't here) and estoppel is pretty much the basis of Diac's original claim (you promised something and I acted based on the promise you can't now deny you really meant it). Estoppel might help us if Diac ever claimed that he would not foreclose on the patent even if we failed to pay. Doubt that ever happened. Mitigation of damages is pretty much what it says, a person can act to mitigate damages on property and expect to be paid for that action (I think, feel like this is a quiz). The question of interference will help us but probably won't be decisive. Not relevant to the case.

For the interference has to be material it has to affect our ability to pay. If we got in the situation where we could not pay on our own, we are screwed. What does excuse it is the failure to join in the T-mobile case. Of course, we have to show that we could have had the money if we had started sooner. The current situation bears that out - maybe. As you point out, we had already been in default for six months. That might bring up estoppel, but I don't think it applies. It COULD open him up to a claim for waiver (Clark v. West), that Diac knew of the default but took no action, but I think the threats constitute action. But again, what will be Diac's retort? I was advised I did not need to be joined? They did not want me interfering (bad choice, but he could try)? The one that will work is " I was protecting my interest in the Patent". But (here is the beauty of the law), that claim is not relevant here.

So, The failure to join (or disallowing the Acadia deal) would be valid defenses to the default claim. But will we still have to cure? Maybe, those payments that were part of the settlement just don't disappear. All this takes us so far but no farther. We don't know what the court will do even if things go our way.

[Cougar6]

As part of our defense we have to prove that "but for" the interference (failure to join T-Mobile or his not allowing us to negotiate with T-Mobile) we could have paid. I think that is where we run into problems with the court.

Can't say you have convinced me - too many things still have to fall into place - but I do think you have made a hell of a case for the good guys. Glad you are on our side.