United States District Court, N.D. California
M.A. MOBILE LTD., Plaintiff,
INDIAN INSTITUTE OF TECHNOLOGY KHARAGPUR, et al., Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DISMISSING COUNTERCLAIMS RE: DKT. NOS. 596, 599, 600, 608,
615, 616, 617, 624, 628, 638, 649
WILLIAM H. ORRICK, UNITED STATES DISTRICT JUDGE
eleven years, two interlocutory appeals, and one denied
petition for a writ of certiorari, the merits of the case
have come to the fore. From 2003 to 2005, plaintiff M.A.
Mobile Ltd. and defendant Indian Institute of Technology,
Kharagpur (“IIT” or “IITK”)
collaborated to develop a technology that would permit
applications to function on handheld devices without an
internet connection. M.A. Mobile alleges that IIT breached an
oral joint venture agreement, breached a nondisclosure
agreement, and misappropriated M.A. Mobile's trade
secrets. Before me are several motions, chief among them
IIT's motion for summary judgment on all three claims
against it. M.A. Mobile fails to present sufficient evidence
to allow a reasonable fact finder to decide in its favor
because its claims rely on speculation rather than evidence
and inference. As set forth below, I will grant summary
judgment in favor of IIT.
case arises from the soured relationship between Mandana
Farhang of M.A. Mobile and Partha P. Chakrabarti of IIT.
Farhang is the sole shareholder in M.A. Mobile, which is
registered in California and Dominica. Deposition of Mandana
Farhang (“Farhang Depo.”) [Dkt. No. 600-54]
102:11-13; 105:15-16. She formed M.A. Mobile to serve as a
holding company for the intellectual property (IP) she
obtained from a settlement with Ikonodyne, Inc., a company
where she served as CEO and focused on raising outside
capital. Farhang Depo. 16:14-18, 161:8- 24; Declaration of
Mandana Farhang (“Farhang Decl.”) [Dkt. No. 614]
¶ 4; see Radke. Decl. Ex. 2 [Dkt. No. 599-74]
(settlement agreement). Chakrabarti is the director of and a
professor at IIT's Department of Computer Science and
Engineering, although he has performed many different roles
during his more than 30 years at IIT. Declaration of Partha
Chakrabarti (“Chakrabarti Decl.”) [Dkt. No.
599-6] ¶¶ 1, 2. The Indian government created the
Indian Institutes of Technology in 1956 as an investment in
technical research and education. Chakrabarti Decl. ¶ 4.
The IIT Kharagpur, which has its principal place of business
is in Kharagpur, West Bengal, India, was the first to be
Initial Contact between Farhang and Chakrabarti,
April 27, 2003, Farhang sent an email to Chakrabarti about
the intellectual property she newly owned. Chakrabarti Decl.
Ex. 2 (April 27, 2003 and May 21, 2003 emails from Farhang to
Chakrabarti) [Dkt. No. 599-8]. She wrote that her initial
goal was to “explore the IP with [Chakrabarti] to see
if there [was] a potential fit and to determine if [he was]
interested in being involved.” Id. She
described the technology, pocketXML (“PXML”), as
In layman's terms, the technology consists of a
‘mobile markup language' based on XML, in
combination with a GUI tool that enables the quick creation
of mobile applications that run on Palm, Pocket PC, Linux,
Epoch and Windows CE. The applications can be downloaded from
a server via hopsynch and they are fully executable on the
handhelds without requiring a wireless connection (although a
connection can be established at any time).
Id. She explained that several companies had
expressed interest in the technology and gave a sense of her
understanding of its potential value. Id. Due to her
lack of technical training, she was “not the right
person to evaluate the technology and its development
status.” Id. She indicated an interest in
Chakrabarti selecting a team and proceeding as the Chief
Technology Officer. Id. Farhang and Chakrabarti met
in person in California in May 2003. Farhang Decl. ¶ 6.
In a follow-up email on May 21, Farhang indicated that once
Chakrabarti signed a short NDA, she would send him a copy of
the patent application, the source code, the business plan,
and a presentation. Chakrabarti Decl. Ex. 2. In the emails
and during the in-person meeting, Farhang “communicated
only what [she] considered to be high level, non-confidential
information.” Farhang Decl. ¶ 6.
21, 2003, Chakrabarti told Farhang that he had received
permission from IIT's Dean of Sponsored Research to sign
the NDA. Chakrabarti Decl. Ex. 3 (July 21, 2003 email from
Chakrabarti to Farhang) [Dkt. No. 599-9]. On August 11, 2003,
Chakrabarti sent his signed NDA to Farhang along with a copy
that his colleague Pallab Dasgupta had signed. Chakrabarti
Decl. ¶ 16. Farhang then sent him a CD of the source
code and other materials, which Chakrabarti had received by
September 21, 2003. Id. ¶ 17; see
Chakrabarti Decl. Ex. 5 [Dkt. No. 599-11] (September 21, 2003
email from Chakrabarti to Farhang). He told Farhang that
“[a]t first glance, [the technology] look[ed]
interesting to him.” Chakrabarti Decl. Ex. 5.
an early review, Chakrabarti informed Farhang that the idea
was “excellent.” See Chakrabarti Decl.
Ex. 6 [Dkt. No. 599-12] (emails between Farhang and
Chakrabarti between October 23 and November 5, 2003). He
noted that the code was “incomplete with big
gaps” and that there was far more work left to be done
than Farhang had initially indicated. Id. (November
5, 2003 email). In addition, Chakrabarti noted that there was
competition in the space, and it was not clear what new
applications this technology might have that did not already
exist. Id. He also asked for permission to have
Subrat Panda, one of his students, sign the NDA and begin
working on the code. Id.; see also Singh
Decl. Ex. 14 [Dkt. No. 608-23] (email from Farhang to
Chakrabarti) (approving others signing NDAs and beginning
February 2004, Chakrabarti told Farhang that engineers Panda
and Rakesh Gupta had signed the NDA and begun work.
Chakrabarti Decl. Ex. 7 [Dkt. No. 599-13] (February 13, 2004
email from Chakrabarti to Farhang). The engineers who
eventually signed onto the NDA and began work were Panda,
Gupta, Gurashish Brar, and Pravanjan Choudhury. Chakrabarti Decl.
¶¶ 19, 20; see Deposition of Subrat Panda
(“Panda Depo.”), Radke Decl. Ex. 14 [Dkt. No.
600-67] 16:10-18; 20:15-16; Deposition of Gurashish Brar
(“Brar Depo.”), Radke Decl. Ex. 11 [Dkt. No.
600-64] 57:3-18; Deposition of Pravanjan Choudhury
(“Choudhury Depo.”), Radke Decl. Ex. 12 [Dkt. No.
and Farhang exchanged numerous emails and had numerous phone
calls about their respective progress on the project, and on
some occasions they experienced connectivity issues.
See Chakrabarti Decl. Ex. 16 [Dkt. No. 599-21] (June
22 to June 25, 2004 emails between Farhang and Chakrabarti
with some copied to Jenkins) (expressing Farhang's wish
that they “go back to scheduling 1 call per
week”). As the work progressed, Farhang “[left]
the team building on the technical side completely up to
[Chakrabarti].” Chakrabarti Decl. Ex. 7 (February 14,
2004 email from Farhang to Chakrabarti). He had “free
rein” to hire for the technical side of the business,
and Farhang decided who to hire in California for the
operations side. Farhang Depo. 137:6-13. Chakrabarti and
Farhang deferred to one another with respect to each
one's side of the business. Id. at 137:19-23.
terms of the technical work, Panda estimated that
“around . . . 70 percent of the code was incomplete,
” and that there were “a lot of inconsistencies
in the code, all across.” Panda Depo. 23:2-5, 27:3-9.
The engineers began working to determine whether they could
make a minimum viable product out of the code. Id.
at 27:8-11. According to Farhang, these gaps existed because
she had “inadvertently failed to send IIT the CD Rom of
a third-party software package called Excelon, that the PXML
Technology required in order to fully run.” Farhang
Decl. ¶ 7. She later uploaded that software to an IIT
server and learned from Brar that the technology was working
with Excelon. Id. By March 2004, the engineers had
created a report “that described the development status
and identified the deficiencies of the code, ” and
Chakrabarti sent the report to Farhang. Chakrabarti Decl.
¶¶ 21-23; see Id. Ex. 10 [Dkt. No. 599-15]
(March 15, 2004 email from Brar to Chakrabarti attaching the
report); id. Ex. 11 [Dkt. No. 599-16] (email from
Chakrabarti to Farhang attaching the report). Chakrabarti
indicated to Farhang that the team “may need to redo
many things in [its] own way.” Chakrabarti Decl. Ex. 12
[Dkt. No. 599-17] (March 16, 2004 email from Chakrabarti to
and Chakrabarti corresponded about equity in February 2004.
See Chakrabarti Decl. Ex. 7 (February 13, 2004 email
from Chakrabarti to Farhang) (“We, however, need to
discuss the total percentage that will be available to the
IIT team in terms of equity.”). On February 14, 2004,
Farhang indicated that “[her] thoughts [were] to offer
[Chakrabarti] 10% of the equity and to offer each key
engineer or team member an additional
1%.” Id. On March 16, 2004 Chakrabarti
told Farhang that he “wanted to know more on the equity
part.” Chakrabarti Decl. Ex. 12 [Dkt. No. 599-17]
(March 16, 2004 email from Chakrabarti to Farhang). He asked
that they correspond about equity on email in order to
“get to formalizing it slowly.” Id.
7, 2004 Farhang wrote that “the goal [was] to sign up
as many Indian companies as possible across all
industries.” Chakrabarti Decl. Ex. 17 [Dkt. No. 599-23]
(June 6 to June 7, 2004 emails between Farhang and
Chakrabarti). She wrote that she wanted Chakrabarti to select
an Indian CEO for them to hire, but before that she wanted to
“get the foundation of the company and its goals very
clear.” Id. She wanted the two of them to have
a “have a chance to get the framework set up and get
some customers on board and make plans for the device.”
engineering team decided to build a Traveling Ticket Examiner
(“TTE”) application for the Indian Railways.
Chakrabarti Decl. ¶ 27. By June 2004, the engineers had
developed a working application. See Panda Depo.
31:3-24 (reading from a June 25, 2004 email saying “the
Railway application look[ed] fantastic”); see also
Id. at 17-24 (“By [September 12, 2004] we had
already [sic] TTE app. It was in working condition and we
were just fixing a few things as and when they come
[sic].”). The engineers froze work on the application
because it was complete and “working very well.”
Id. at 46:8-20.
wrote to Farhang asking for authorization to proceed with a
meeting with Railways in early July. Chakrabarti Decl. Ex. 16.
Farhang responded to him and to attorney Ron Jenkins asking
that Jenkins create documents to allow Chakrabarti to proceed
with the meeting with Railways. Chakrabarti Decl. Ex. 16. She
requested the following:
1. One document between the Company ‘Cool e-mobile'
and IIT Kharagpur stating that the two entities will form a
joint venture company called ‘Cool e-mobile' that
will be an incubator within IIT. As part of this agreement 2%
of the company stock (in whatever form can be accepted by
IIT) will be granted to IIT for the purpose of setting up an
incubator to fund new entrepreneurs (details to be
determined); and that until this joint venture is formed, IIT
will be licensing the technology to customers (such as the
Railway) and collecting fees on behalf of the joint venture
(to be distributed to the joint venture upon its
formation). 2. A licensing agreement between IIT and
the Railway. We can leave blank spaces where fees need to be
worked out so PPC has the flexibility he needs to get them
signed up. I am not sure if it needs to be in the agreement,
but I would like them to know they will be provided devices
for free (once our devices are ready) and until that time we
will do our best to purchase low cost devices that they can
use (PPC can we buy these through IIT)?
Id. Farhang told Chakrabarti, “[Y]ou have the
complete authority and flexibility to negotiate any ee [sic]
arrangement that will enable us to sign [Railways] up as our
first early adopter customer.” Id. Chakrabarti
clarified that he would be presenting other project proposals
to Railways on behalf of IIT, and he needed a “clear
signal” from Farhang that he was allowed to talk about
the technology. Id. Farhang responded that Jenkins
would prepare documentation so that Chakrabarti could
proceed. Id. Chakrabarti responded that they would
“have to wait for a letter too.” Id. He
clarified that during the first meeting, he would only
present a set of proposals rather than doing a demonstration.
6, 2004, Chakrabarti wrote to Farhang about a teleconference.
Chakrabarti Decl. Ex. 17. He wrote,
I want to discuss a few things on structure and activities
before we go ahead. This is especially important in the phase
when we need to find early users while we have not structured
the company. This is because I will be going from IIT and so
the role of IIT needs to be clarified here.
Id. The following day, Farhang responded that
attorney Ronald Jenkins had “completed his ideas for
the structure” of the joint venture. She wrote,
“[T]he best structure for you and the engineers is to
have an Indian company where all of the value is built, and
that we all own. I wanted to have the company be a Joint
Venture with IIT and we would give IIT the 2% shares.”
Id. Chakrabarti then told Farhang that IIT itself
could not be a party to a joint venture; in a later email the
same day Farhang wrote, “Thanks for clarifying on the
IIT issue, I wasn't clear about it. Yes, an incubator is
fine as long as it is set up as a ‘joint venture'
legally.” See Chakrabarti Decl. Ex. 17;
see also Farhang Depo. 25:25-26:14 (acknowledging
learning at some point that IIT could not
“directly” be a party to the joint venture and
that the Society would “fulfill that
obligation”); id. at 26:8-9 (testifying that
“in [her] mind, IIT was always a party to the Joint
Venture throughout the whole term”). On June 10, 2004,
Farhang emailed Chakrabarti proposing the name “Cool
e-mobile” for the company. Radke Decl. Ex. 18 [Dkt. No.
599-83]. She also referred back to a prior conversation about
sales people and proposed a 70/30 revenue share, with the
possibility of paying more to the person who convinced
Railways to be a customer. Id. On June 25, 2003,
Farhang responded to an email from the engineers and
indicated that now that the TTE application was ready, the
“first internal milestone [was] to sign up the Railway
within two weeks.” Chakrabarti Decl. Ex. 32. She wrote,
“[W]e are working on all of the necessary
7, 2004, Jenkins emailed Farhang and Chakrabarti a draft
letter of intent. Chakrabarti Decl. Ex. 18 [Dkt. No. 599-24].
The draft opened as follows:
This letter will confirm the shared intention of M.A. Mobile
Ltd. (the “Company”), Ms. Mandana Farhang
(“Ms. Farhang”), Dr. Partha Pratim Chakrabarti
(“PPC”), and the Indian Institute of Technology
Kharagpur (“IIT”) (collectively, the
“Parties”) to form an Indian joint venture for
the purpose of developing and marketing certain
patent-pending technology that is presently owned outright
and exclusively by the Company; developing, protecting and
marketing derivations and extensions to that technology; and
designing, protecting and developing a hand held device
called “Tuff n' Ready” (the
Id. It provided that upon execution of the letter,
“the Company [would] grant to IIT a limited,
royalty-free license to market and continue the development
of the Technology in India until formation of the joint
venture.” Id. It further indicated that the
parties would “cooperate in formalizing the terms of
this Letter of Intent with the necessary contracts and
consents, and in obtaining all necessary government licenses
and approvals.” Id. It included signature
lines for Jenkins on behalf of M.A. Mobile, Chakrabarti on
behalf of IIT, Chakrabarti individually, and Farhang
individually. Id. Chief Financial Officer Matt
Dowling sent Chakrabarti a new draft on September 2, 2004.
Chakrabarti Decl. ¶ 35.
August 2004, Jenkins sent a revised draft letter of intent
and asked Chakrabarti to sign and return it. Chakrabarti
Decl. Ex. 33 [Dkt. No. 599-44]. Dowling told Chakrabarti that
Farhang wanted to get Railways signed within two weeks and to
bring on more customers by the end of September. Id.
Chakrabarti responded, “As I said when we talked, it is
not going to be possible to sign up the Indian Railways in
such a short period beacuse [sic] I have to first process
Ron's letter with ITT and then get into the formal
process of writing to the Railways and having meetings. It
will take more time, but we should get the process
started.” Id. At the end of August,
Chakrabarti told Jenkins that he had sent the draft letter to
the Institute to ask for permission to sign, but “per
[their] rules, for incubation the institute need[ed] 3%
holding and not 2%.” Farhang Decl. Ex. 2 [Dkt. No.
614-2]. He emailed again later to say “IIT [had]
approved the signing of the agreement” pending that
change. Id. On September 2, 2004, Dowling
sent Chakrabarti another draft letter of intent. Chakrabarti
Decl. Ex. 19 [Dkt. No. 624-19]. He wrote, “We decided
to give 25% to the team and 3% to IIT for a total of
November 2004, IIT formed the Technology Incubation and
Entrepreneurship Training Society (“TIETS” or
“the Society”). Chakrabarti Decl. ¶ 8. It
was intended to train and mentor IIT students who were
interested in entrepreneurship. Id. Chakrabarti was
ex-officio Secretary of the Society, a member of the
Governing Board, and early on a member of the technical
committee that reviewed incubation projects. Id.
Also in November 2004, Jenkins emailed Chakrabarti to inquire
about a signed letter of intent because he had not seen one.
Chakrabarti Decl. Ex. 30.
December 8, 2004, Chakrabari wrote a letter to the chairman
of the Railway Board about “long-term collaborative
research” between IIT Kharagpur and
Railway. Chakrabarti Decl. Ex. 35 [Dkt. No.
599-48]; Singh Decl. Ex. 4 [Dkt. No. 613-7]. He described the
on-train TTE assistant, which could “load specific
information railway [sic] regarding passengers, check in the
traveling passengers, fill up the vacant seats from
waitlisted passengers, etc.” Id. He described
the technology, which “[was] being developed under
IIT[']s incubation programme, as “unique and patent
pending.” Id. He requested a meeting, and he
followed up again on December 27. See id.;
Chakrabarti Decl. Ex. 36 [Dkt. No. 599-50]. Chakrabbarti did
not meet with anyone from Indian Railways about the TTE
application or PXML. Chakrabarti Decl. ¶ 57.
Draft Letters of Intent and Efforts with Railways and
in February 2005 indicate that the team was experiencing
roadblocks. After receiving a call from Brar, Farhang emailed
Chakrabarti that she would begin having “direct contact
with the engineering team in order to provide them with the
necessary direction they are seeking.” Chakrabarti
Decl. Ex. 30. He responded that he understood that she
believed he was “not doing what [was] required of
[him], ” and he would be fine to “be out of
this” but would still help his students in any way.
Id. Farhang clarified that she did want him to be
involved but felt that the company was “simply not a
priority for [him].” Id. She wrote, “Now
I am faced with one particular investor who would like to
give us our first amount of capital yet we don't have a
company formed, or even an LOI to show him. I am sure you can
understand the implications of this.” Id. In
March 2005, Jenkins emailed Chakrabarti to ask about the
“blockage” to signing the letter of intent, which
they needed to proceed. Id. Chakrabarti responded
that issues needed to be “sorted out” with
this same time, the engineering team was pursuing the
Jamshedpur Utilities and Services Company
(“JUSCO”) as a customer. On December 3, 2004,
Dasgupta emailed Singh and Farhang attaching a development
plan and roadmap describing the plan to build a billing
application for JUSCO. Chakrabarti Decl. Ex. 38 [Dkt. No.
599-52]. On February 5, 2005, Choudhury sent an email to
Chakrabarti, Dasgupta, and Brar describing a meeting with
JUSCO that he, Panda, and Gupta had attended. Singh Decl. Ex.
17 [Dkt. No. 608-17]. After introductions, a JUSCO
representative told the engineers about his system, and the
group discussed the ways in which the application might be
able to help JUSCO. Id.; see Panda Depo.
84:18-20. The engineers then presented a demo of the
application on a device where it was installed. See
Singh Decl. Ex. 17; Panda Depo. 84:7-25. The meeting was
about thirty minutes to one hour long. Panda Depo. 84:12-15.
The engineers never actually gave JUSCO a working
application; instead, the demonstration was a visual display.
Panda Depo. 83:5-11. See Deposition of Rakesh Gupta
(“Gupta Depo.”), Radke Decl. Ex. 13 [Dkt. No.
600-66] 68:7-21 (confirming when asked that the meeting with
JUCO involved only “a visual display of how the demo
worked” rather than a display of any of the code or
architecture). Singh was not aware that this meeting took
place. Declaration of Varsha Singh (“V. Singh
Decl.”), Singh Decl. Ex. 30 [Dkt. No. 613-8] ¶ 11.
2005, the team remained focused on signing the Railways up as
the first customer. See Chakrabarti Decl. Ex. 34
(May 11, 2005 email from Singh) (indicating the need to
“expedite the signing of this agreement as it is
holding up pressing matters such as the signing up of a key
customer, the railways”). On May 9, Chief Operating
Officer Varsha Singh emailed Chakrabarti about the steps each
of them should take in “in parallel” in an effort
to “sign up railways as [their] first early adopter
customer.” Chakrabarti Decl. Ex. 20 [Dkt. No. 599-26]
(May 9 to May 11, 2005 emails between Singh and Chakrabarti).
They planned to offer a “special invitation” to
Railways wherein they would develop applications for a free
demonstration to induce Railways to sign on as a customer, at
which point they could arrange fees. Id. On May 11,
Chakrabarti responded and confirmed that he would work on his
side of the plan when he returned from travel. Id.
In response to Singh's discussion of logos, Chakrabarti
[P]lease note that this is a JV company and not a JV with
ITT. The Indian Company (when it happens) will be a JV with
foreign collaboration. It is proposed to be under ITTs [sic]
incubation programme. We have not yet formed the Company.
Almost at any stage it will be impossible for you to use ITT
logo. Please do not use ITT Logo. It will cause trouble. When
Cool-e is formed, I or Pallab can use two cards because we
are employees of ITT and (will become) formal members of
Id. Singh responded the same day with an email that
attached “the same LOI which [had] been with
[Chakrabarti] the past several months, no changes or
alterations whatsoever.” Id. It continued to
list a joint venture with IIT. Id.
12, 2005, Chakrabarti responded again to Singh, with Farhang
copied on the email. He wrote:
It will be a JV Company with Indian cell company and then
foreign collaboration as discussed with Auddy, you and me.
ITT allow it to develop under its incubation program, that
too as under the Incubation Society that ITT has set up.
Please recall our discussion with Auddy. You may consult them
or Ron. ITT as per Govt act cannot form a JV company with
anyone. That will not work if I or even my Director signs
anything. Let [us] not plan to do something that will cause a
Decl. Ex. 21 [Dkt. No. 599-27].
1, Farhang and Chakrabarti met in California and discussed
the new arrangement in which the joint venture would proceed
with the Society rather than IIT. Farhang Decl. ¶ 17. On
June 2, Jenkins emailed Indian attorney R.L. Auddy to confirm
“key points” that Farhang and Chakrabarti had
agreed to during that meeting and that Jenkins and Auddy had
discussed in a conversation earlier that day. Chakrabarti
Decl. ¶ 39, Ex. 22 [Dkt. No. 599-28] (June 2005 emails
between Farhang and Chakrabarti and Jenkins and Auddy). The
email noted that the joint venture could not be a cell
company and that Farhang supported “strong employment
agreements with the engineers.” Id. Jenkins
acknowledged that IIT could not “formally be a party to
the joint venture, ” the Society needed to be a party
formally. Id. He offered terms under which Farhang
wished to retain Auddy to represent her “for the
purpose of finalizing a Letter of Intent with Dr. Chakrabarti
and the Society.” Id.
forwarded Jenkins's email to Chakrabarti, and he
responded on June 4. Id. He raised disagreement over
whether there would be a cell company, and he reiterated that
he “had clearly mentioned that as per the rules of IIT
and the Society, they cannot form JVs . . . the Society being
a party to the JV may not be a straightforward thing as Ron
[Jenkins] seems to insist.” Id. When Jenkins
separately forwarded to Chakrabarti his email to Auddy,
Chakrabarti responded that he had “clarified his
views” with Farhang, and Farhang and Jenkins should
talk. Chakrabarti Decl. Ex. 23 [Dkt. No. 599-29]. On June 28,
Jenkins sent Auddy and Farhang another draft letter of intent
that included the Society rather than IIT. Chakrabarti Decl.
Ex. 27 [Dkt. No. 599-33].
met with Railways on June 7, 2005. See Chakrabarti
Decl. Ex. 24 [Dkt. No. 599-31]. On July 5, 2005, she sent an
email update to Chakrabarti, Jenkins, and Auddy with the
subject line “Important Issue to be
accomplished.” Chakrabarti Decl. Ex. 24. In it she
noted that “the dream of getting the railways to give
[them] an appointment [had] finally been accomplished,
” but that Jenkins and Auddy had advised that the
letter of intent should be signed before they proceeded.
Id. The deadline by which they had promised to send
Railways documents had already passed. Id. She
indicated that they should all act with urgency so as not to
“lose this golden opportunity of demonstrating the demo
along with [their] team members.” Id.
Singh's email forwarded an email from Farhang to
Chakrabarti in which she wrote, “One thing for certain
that I do understand is that both Ron [Jenkins] and Auddy are
uncomfortable sending the proposal to the Railways until the
LOI is signed and we are already very tardy in our response
which gives me great concern.” Id.; see
also Chakrabarti Decl. Ex. 30 (August 30, 2005 email
from Farhang to Chakrabarti and Singh) (“Varsha
promised [Railways] our materials months ago . . . how long
we can stall I am not sure.”).
responded to Singh's email with Jenkins, Auddy, Farhang,
and Dasgupta copied. Id. He wrote,
Mr[.] Auddy informed me that the LOI must be signed by the
authorized representative of the Society and it must be
passed by its Governing Body. He advises that I cannot sign
on behalf of the Society or IIT, etc. since I am an involved
party. I can sign on my behalf only. I agree on this count.
Id. He expressed other uncertainties and questions
that he planned to pose to Auddy for discussion between Auddy
and Jenkins. Id. He said that he would present a
final draft to the Society for approval. Id. He
suggested, however, that the team not delay sending the
technical documents to Railways on the promised schedule.
responded with reservations about that suggestion:
With railways, thanks for the assurance PPC of confirming to
state the relationship, yes you will definitely be part of
the team when the demonstration meeting is called for.
However since here we are dealing with direct government we
need to have some papers proving the existence of Cool e in
India. You will agree that at this point of time we have
verbal commitments, however they will need black and white
proof from our end, if we fail here we can fall into serious
trouble . . . You are also well aware of how the government
bodies operate in India and if they find out we that we [sic]
are yet to start Cool e operations and don't even have a
company in place we can get into serious trouble.
Id. He asked Jenkins and Auddy to respond quickly to
advise them on how to proceed with Railways. Id.
19, Chakrabarti sent an email to Singh with a document for
Railways. Singh Decl. Ex. 8 [Dkt. No. 613-2]. The document
“contain[ed] a summary of both the technical details
and Railways applicability.” Id. The document
was three pages long and showed an image of the Railways
application running on a mobile device. Id. It
described the features of the TTE assistant and explained
what train stations would need to have for the TTE assistant
included a diagram of the backend database:
7, Auddy clarified that Chakrabarti could not sign on behalf
of IIT or the Society without “proper authority”
from them; instead, the Governing Body would have to
authorize a representative to sign on its behalf. Chakrabarti
Decl. Ex. 24. On July 6, 2005, Chakrabarti noted, “IIT
cannot hold equity and make JV's [sic] directly. It is a
different kind of institution, passed by an act of
Parliament. The Society is in a sense a part of IIT.”
Id. On July 8, 2005, Auddy emailed Jenkins, Farhang,
and Singh with thirteen “information/particulars”
Chakrabarti needed to be able to present to IIT and the
Society so that the letter of intent could be ratified.
Chakrabarti Decl. Ex. 26 [Dkt. No. 599-33]. The group
continued to correspond about the letter of intent, ...