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Respondent’s contentions throughout the course of the
litigation were inconsistent, confusing, and unconvincing.
Initially, at trial, respondent contended that the payments made
pursuant to the SRA were payments for Ventures to refrain from
the performance of services, but he later contended that the
payments were made pursuant to an employment contract. In his
opening brief, respondent changed his position and contended that
“Although Spencer Trask received a warrant to purchase 300,000
shares of Ciena Series B Stock, rather than the 150,000 shares of
Series A stock specified in the liquidated damages clause, the
warrants were granted as a result of the triggering of the
liquidated damages clause.” (Emphasis added.) None of these
positions, however, are supported by the facts. In his reply
brief, respondent continued his quest for a plausible contention.
He first suggested that “the parties renegotiated a larger
liquidated damages amount rather than settle a breach of contract
claim”, a contention squarely at odds with the plain language of
the SRA. Ultimately, respondent formed a coherent, yet flimsy
contention, asserting that the warrants were transferred in
connection with Ventures’ performance, rather than its refraining
from performance, of services. In his reply brief, respondent
states:
The essential facts in this case, which support a
finding that the warrants were transferred in
connection with the performance of services are: (1)
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Last modified: November 10, 2007