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Performance Indicator, LLC v. Once Innovations, Inc.

United States District Court, D. Massachusetts

November 4, 2014

PERFORMANCE INDICATOR, LLC, Plaintiff,
v.
ONCE INNOVATIONS, INC, Defendants

For Performance Indicator, LLC, Plaintiff Counter Defendant: Joseph F. Hardcastle, LEAD ATTORNEY, Hardcastle & Shober, Boston, MA.

For Once Innovations, Inc., Defendant, Counter Claimant: Philip M. Giordano, LEAD ATTORNEY, Garrett A. Marques, Reed & Giordano, P.A., Boston, MA.

Page 100

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.

Plaintiff Performance Indicator, LLC brought this action against Defendant Once Innovations, Inc. alleging breach of contract and related claims as well as unfair business practices under Massachusetts General Laws Chapter 93A. Once Innovations has counterclaimed, alleging, inter alia, unauthorized disclosures by Performance Indicator to a third party. Before me is a motion by Once Innovations for partial summary judgment regarding the purported failure of Performance Indicator to mitigate damages and regarding the Performance Indicator Chapter 93A claim. Neither party has moved for summary judgment on the remaining Performance Indicator claims or on the counterclaims by Once Innovations against Performance Indicator; consequently, the discussion below will be confined to the facts relevant to the claims at issue in this motion.

I. BACKGROUND

A. Factual Background

Once Innovations is a Minnesota corporation that develops and markets light-emitting diode (" LED" ) lighting products. Performance Indicator is a Delaware limited liability company with its principal place of business in Lowell, Massachusetts. Performance Indicator develops technology to modulate electromagnetic energy to create effects of color and light.

In April 2011, Once Innovations contacted Performance Indicator to discuss a potential collaboration using Performance Indicator's technology in Once Innovation's LED lighting products. As a foundation for their discussions, Once Innovations and Performance Indicator entered into a nondisclosure agreement, which has been in effect since April 21, 2011. Performance Indicator provided a proposal to Once Innovations regarding the licensing of Performance Indicator's existing technology. That proposal was rejected in June 2011.

The two companies continued their discussions. In November 2011, Zdenko Grajcar, the Chief Technology Officer and Chief Executive Officer of Once Innovations, visited the Performance Indicator facility. He conducted preliminary tests to validate a new phosphor film technology designed by Performance Indicator to smooth cyclical light output.

Following the tests, in January 2012, Grajcar informed Performance Indicator that he was interested in engaging Performance

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Indicator to produce a prototype to further validate the film technology with a plan to enter into a manufacturing agreement in the future. Performance Indicator provided Once Innovations an initial proposal (" January 2012 Proposal" ) to develop a smoothing phosphor and dye film prototype on behalf of Once Innovations.

The two companies engaged in further communication by email and telephone about the proposal, with Once Innovations requesting modifications to the proposal and Performance Indicator agreeing to modify the proposal as requested. Whether the two companies reached a final agreement about the proposal remains in dispute. Performance Indicator has presented evidence through an affidavit of Paul Hovsepian, the Vice President of Business Operations for Performance Indicator, that an agreement was reached during a phone call between him and Grajcar on February 2, 2012. Once Innovations denies that an agreement was reached. In any ...


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