United States District Court, D. Delaware
before me is a Motion to Enforce Settlement Agreement (D.I.
16) filed by Plaintiff Realtime Data LLC (Realtime). In its
motion, Realtime asserts that "[b]y July 19, 2019,
all terms of the agreement were fully reduced to
writing and agreed upon by the parties. All that was left was
for the parties to simply sign the document." D.I. 16 at
1 (emphasis in original). This statement is false.
2019 the parties were in the midst of negotiating a
settlement agreement. They were trading redlined versions of
the agreement back and forth, see, e.g., D.I. 21,
Exs. G & H, and were ironing out the final details of the
agreement. On July 18, counsel for Kaminario sent a draft of
the settlement agreement to Realtime's counsel.
See D.I. 21 Ex. H. At that time, lead counsel for
Kaminario emailed lead counsel for Realtime and said:
Let's get your side's reaction today, if possible.
I'm getting on an international flight at 2:30 pm PT. Let
me know if you can touch base at 11:30 am PT. I'd like to
make sure these changes are acceptable to you. If so, I think
we're done, and I'd like to get your Exhibit A for
our client to review. Our answer is due Monday, and I'd
rather not file any more extensions if we can get to the end
by then. Perhaps we just file a notice that the parties have
settled and will submit dismissal papers within 30 days.
D.I. 21, Ex. I. (emphasis added). Exhibit A was a list of
current defendants in suits initiated by Realtime.
See D.I. 21 Ex. F & Ex. J. The list of current
defendants was incorporated by reference into multiple
material terms of the contract including Section 4.1, titled
"Release to Kaminario," and Section 5.1, titled
"Covenant Not to Sue." See D.I. 21 Ex. H
next day, July 19, 2019, at 11:06 am PDT lead counsel for
Attached [i]s Exhibit A. We would like to add one small tweak
to the last sentence of Paragraph 2.3 so that it read[s]
(changes underline and in bold).:
For further clarity, in this paragraph, "in ... material
part" means that Realtime Data has accused the third
party product of infringement based in any way on that third
party's use of the Kaminario Licensed Product to perform
deduplication and/or compression."
Can you let me know if this is acceptable?
D.I. 17, Ex. 8.
counsel for Kaminario ...