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M.A. Mobile Ltd. v. Indian Institute of Technology Kharagpur

United States District Court, N.D. California

September 5, 2019

M.A. MOBILE LTD., Plaintiff,
v.
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

         After 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.

         BACKGROUND

         I. FACTUAL BACKGROUND

         This 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.[1] Chakrabarti Decl. ¶ 4. The IIT Kharagpur, which has its principal place of business is in Kharagpur, West Bengal, India, was the first to be established. Id.

         A. Initial Contact between Farhang and Chakrabarti, NDAs

         On 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 a follows:

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.

         On July 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.

         After 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 work).

         In 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.[2] 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. 600-65] 13:20-25.

         B. Early Efforts

         Chakrabarti 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.

         In 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 Farhang).

         Farhang 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%.”[3] 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.

         On June 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.” Id.

         The 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.

         Chakrabarti wrote to Farhang asking for authorization to proceed with a meeting with Railways in early July.[4] 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).[5] 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[6] too.” Id. He clarified that during the first meeting, he would only present a set of proposals rather than doing a demonstration. Id.

         On June 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 paperwork.” Id.

         On July 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 “Technology”).

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.

         In 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.[7] 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 28%.”[8] Id.

         In 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.

         On December 8, 2004, Chakrabari wrote a letter to the chairman of the Railway Board about “long-term collaborative research” between IIT Kharagpur and Railway.[9] 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.

         C. Draft Letters of Intent and Efforts with Railways and JUSCO

          Emails 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 Farhang. Id.

         Around 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.

         In May 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 wrote,

[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 Cool-e.

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.

         On May 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 problem later.

         Chakrabarti Decl. Ex. 21 [Dkt. No. 599-27].

         On June 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.

         Farhang 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].

         Singh 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.”).

         Chakrabarti 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. Id.

         Singh 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.

         On June 19, Chakrabarti sent an email to Singh with a document for Railways. Singh Decl. Ex. 8 [Dkt. No. 613-2].[10] 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 to work:

         (Image Omitted)

         It included a diagram of the backend database:

         (Image Omitted)

         On July 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, ...


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