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Realtime Data LLC v. Kaminario, Inc.

United States District Court, D. Delaware

January 10, 2020

REALTIME DATA LLC d/b/a IXO, Plaintiff,
v.
KAMINARIO, INC. Defendant.

          MEMORANDUM ORDER

         Pending 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.

         In July 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:

         Paul,

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.
Thanks,
Rick

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

         The next day, July 19, 2019, at 11:06 am PDT lead counsel for Realtime responded:

Rick,
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.

         Lead counsel for Kaminario ...


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