Cohen v. Elemental Path - Complaint

8/8/2019 Cohen v. Elemental Path - Complaint

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ILED: NEW YORK COUNTY CLERK 06/02/2015 10:25 AM INDEX NO. 651953/

YSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/04/

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

X

Jessica

Cohen

[your

name(s)]

-aga inst-

Elemental Path Inc.

PlamtJtf(s)

Majestyk Apps Inc.

[nametsJ or pany oemg sueoJ Defendant(s):

X

To the

Person(s) Named as Defendant(s) above:

SUMMONS

Index

Number

Date

Index Number Purchased

June

4 ,

20

22_

PLEASE TAKE NOTICE

THAT

YOU ARE SUMMONED

to

answer

the complaint of the

plaintiff(s) herein

and to serve a

copy of your answer

on

the plaintiff(s) at

the address indicated

below within

20 days

after

service

of this

Summons

(not

counting

the day of

service itself), or

within JO days after

service is complete

if

the

Summons is

not

delivered personally

to

you

within

the S

tate of New York

.

YOU ARE HEREBY NOTIFIED

THAT

should

you fa

il to answer, a

judgment will be

entered against you

by

default

for

the

relief demanded in

the complaint

.

D a t e d r ~ J _ _ e _

_____

..-_, 2 ~

[date

of summons]

~ m

e)

Jessica

Cohen

[print your name]

511 Avenue

of

the Americas 504

New York NY 10011

Phone:

1-917-436-7998

[your addressles), telephone number(s)]

Defendant(s)

Elemental Path In c .

Majestyk

Apps

In c .

261 West

35th Street,

Suite 1004 261 West 35th Street , Su ite

10 0

4

New York NY 10001 New York NY 10001

Phone :

(646)

233-4511 Phone :

(646)

233-4511

[address(es)

of

party being

s u ~ d ]

Venue: Plaintiff(s) designate(s) New York

County

as the place of . rial. The basis of this designation is:

[check

box that

applies)

Plaintiff's(s')

residence in

New York County

) Defendant

s(s')

residence in

New

York

County

c Other [See CPLR Article 5] :


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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

-------------------------------------------------------------------X

JESSICA COHEN,

Plaintiff,

-against- COMPLAINT

Elemental Path Inc.

261 West 35th Street Suite 1004

New York NY 10001

-And-

Majestyk Apps Inc.

261 West 35th Street Suite 1004

New York NY 10001

Defendant.

-------------------------------------------------------------------X

TO THE SUPREME COURT OF THE STATE OF NEW YORK

The complaint of the plaintiff, Jessica Cohen, respectfully shows and alleges and follows:

1. Breach of Written Contract: I demand damages and compensation of $1,000,000 for Breach of

Written Contract.

2. Breach of Oral Contract: I demand damages and compensation of $1,000,000 for Breach of Oral

Contract.

3.

Violation of Copyright, Intellectual Property, and Moral Rights: Use of my work for profit, andlicensing my work to be used by third parties for profit, without compensating me for my work

according to oral or written agreements. I demand damages and compensation of $5,000,000.

4.

Bad Faith Dealings: For wilful and intentional bad dealings, threatening to blacklist me in

retaliation for pursuing payment for services rendered (N.Y. LAB. LAW § 704 : NY Code - Section

704), and for false conveyances regarding my job title, and refusing to release me from a non-

compete clause, I demand an injunction, and punitive damages, to deter others from doing the

same, of $250,000, and $14,733 per month for every month that I have been unable to work in

my field.

5. Violation of New York Civil Rights Law § 51: Use of my image and credentials for advertising,

against my wishes. I claim damages and compensation of $1,000,000.


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Background

a. I, the prosecution, Jessica Cohen, am an industrial designer, working as a sole

proprietor, of 511 Avenue of the Americas, #504, New York NY 10011.

b. The defendant, Elemental Path Inc. (The Company) is a daughter company of Majestyk

Apps Inc. The two companies share the same office at 261 West 35th Street, Suite 1004,

New York NY 10001, and share the same management team: Mr. Donald Coolidge, CEO;

Mr. Sean O’Shea, President; and Mr. JP Benini, CTO.

c. The defendant Elemental Path Inc. contracted me to provide various professional

services. I provided services in the following ways:

i. Between 8/01/2014-10/28/2014: Toy development services, off-premises, for a

total payment of: $2550, according to my Invoices 1158, 1169 and 1171. We

had an oral agreement for $75/hr., and the defendant paid as requested.

ii.

Between 10/29/2014-11/20/2014: Toy development services, and model-

making services, off-premises, at a discount project rate of $1000, for a total

payment of: $1051.33, Invoice 1173, and the defendant paid as requested.

iii. Between 12/8/2014-12/10/2015 I provided industrial design services, off-

premises, at a rate of $85/hr, or 24 * $85 = $2040. I received partial payment, or

$1173, for these hours. I am owed $977.50 for these hours.

iv. Between 12/11/2014 and 3/2/2015, I provided industrial design services, and

other product and business development services, as a full time contractor on

premises, according to a signed written agreement (Appendix B). The total

services fees due for this period according to The Written Agreement is

$21,604.19, and until now Elemental Path has paid $19,479.16 (excluding

reimbursement for expenses). Therefore I am owed $2,125.03.

v. $2125.03 + $977.50 = $3102.53.

d. Due to breaches of contract by The Company, and bad faith dealings by The Company,

on 2/15/2015, I sent a Notice of Termination by email to Mr. Coolidge, offering 2 weeks’

advanced notice. I remained on staff to complete the major milestones - the working

product prototype, hiring technical staff, filing 5 patent and trademark applications, and

securing the web domain transfer – to position the defendant to receive venture capital.My final working day for the defendant was 3/2/2015.

e. My work for the defendant was the original design of an electronic toy prototype, in the

shape of a green dinosaur. Upon my arrival working with the defendant, the defendant

had no intellectual property, no products, and lacked technical resources. Nevertheless,

The Company CEO, Mr. Donald Coolidge claimed, in an initial salary discussion on

12/8/2014, that The Company valuation was “between 5 to 6 million dollars”.


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Upon my exit, three months later, the defendant had a corpus of prototypes; a portfolio

of patents, trademarks, and copyrights; a domain name; and a larger technical team,

which launched the defendant from obscurity into fame and substantial commercial

gain (Appendix C). In late February 2015, The Company CTO Mr. JP Benini claimed that

The Company had received an oral valuation from LeapFrog Inc. to buy Elemental Path

for $50,000,000, based on a discussion with Leapfrog’s CEO in San Francisco; Mr. Beninialso claimed that Intel and Mattel were interested in investing $5,000,000 each in

research in the interim.

It was precisely my creative work, and my initiative and care to protect that work by

filing patents as the inventor on behalf of The Company, which has created the wealth

that The Company is attempting to withhold from me, through false conveyances and in

bad faith.


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Appendix A: Work Products


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Appendix A: Work Products (continued)


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Appendix B: The Written Agreement

INDEPENDENT CONTARCTOR

AGREEMENT

This Independent Contractor Agreement (the Agreement

)

is effective as

of

December 11th, 2014 (the

E

ffective Date )and is made by and between Elemental Path

Inc., a Delaware Corporation ( Company )and Jessica Cohen ( Contractor ).

WHEREAS, Company wishes to hire Contractor to provide such services as shall

be assigned to Contractor by Company, and Contractor wishes to accept such

employment, on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the promises and mutual covenants set

forth herein, and other good and valuable consideration, receipt

of

which is hereby

acknowledged by the parties hereto, the parties hereto agree as follows:

ARTICLE

I

SERVICES

1 1 Term of Agreement. The term

of

this Agreement commence on the

Effective Date and continue until the separation date designated by Contractor or

Company pursuant to Article IV below (the Term ). Nothing

in

this agreement is

intended to create a fixed term

of

employment at Company. The employment relationship

shall be at-will, meaning either party can terminate Contractor's employment at any time

for any reason, subject to the notice provisions set forth in Article IV below.

1.2 Services. Contractor shall perform the services set forth on Appendix A

hereto (the Services ), which may also include services for various affiliates

of

Company. Contractor shall perform his duties and discharge the Services diligently and

to the best

of

her ability, devoting her full business time, attention and energies to the

duties and responsibilities assigned to her.

1.3 Prior Obligations. Contractor represents that she is not a party to any

agreement or subject to any policy that would pre ent or restrict Contractor from

engaging in activities competitive with the activities

of

ctor 's former employers as

of

the Effective Date or from directly or indirectly solicitin y employee, client or

customer to leave the employ of, or transfer its business awa om, such former

employer; or, if Contractor is s

ubj

ect to such an agreement or po 1 , Contractor

represents and warrants that she has complied, and will comply, with such agreement or

policy, as the case may be.

1.4. Com Hance with Policies and Procedures. Contractor agrees to comply

fully with all poli

cies and procedures in effect for Contractors including, but not limited

to, all terms and conditions set forth in any handbook and any other memoranda and

communications pertaining to policies, procedures, rules and regulations (including

among other things and without limitation, Contractor' s obligation to comply with

Company's rules regarding confidential and proprietary information and trade secrets).


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Appendix B: The Written Agreement (Continued)

1.5 Independent Contractor. Contractor is acting as an independent

contractor with respect

to

the Services provided to the Company. Neither Contractor nor

any employees or agents of the Contractor performing Services for the Company will be

considered employees or agents of the Company. The Company will not be responsible

for Contractor's acts

or

the acts

of

Contractor's employees while performing Services

under this Agreement. Nothing contained in this Agreement shall be construed to imply

a joint venture, business, partnership or principal-agent relationship between the parties,

and neither party by virtue of this Agreement shall have any right, power or authority to

act or create any obligation, express or implied, on behalfof the other party.

ARTICLEll

COMPENSATION

2.1 Base

Salarv

. Contractor shall be paid at the bi-weekly rate of

$3541.67(the

Base Salary )

, payable bi-weekly in accordance with Company's regular

payroll practices.

Contractor will invoice Company and Company will pay invoices net 7.

ARTICLE

l l

WORKFOR HIR

3.1 Work for Hire. (a) Contractor agrees that all intellectual property and other

work produced by Contractor related to the Services during the Term (the Intellectual

Property ) is work for hire within the meaning of he Copyright Act of 1976, as

amended from time to time, and th

at

the Intellectual Property shall

be

the sole property of

Company. Contractor hereby assigns to Company, without further compensation, all of

its right, title and interest in and to the Intellectual Property and any and all related

patents, patent applications, copyr ghts, o p y r i g h ~ t p l i t i o n s trademarks and trade

names in the United States and elsewhere. Alllnt lectual Property shall contain

Company's conspicuous notice of copyright. Con actor will provide commercially

reasonable assistance to Company

in

obtaining an enforc ng patent, copyright and other

forms

oflegal

protection for the Intellectual Prope in any country. Upon request,

Contractor will sign all applications, assignments, instruments and papers and perform all

acts reasonably necessary to assign the Intellectual Property fully and completely to

Company and to enable Company, its successors, assigns and nominees, to secure and

enjoy the full and exclusive benefits and advantages of this work.

(b) Company has the right to use

or

not use any intellectual Property

generated by Contractor and to use, reproduce,

re-u

se, alter, modify, edit,

or

change said

work

as

it sees fit and for any purpose.

(c) In the event that it should be determined that any of the Intellectual

Property docs n

ot

qualify as a work made for hire, Contractor will and hereby does assign

to Company all right, title, and interest that it may poss

es

s in such Intellectual Property

including, but not limited to,

ll

copyright and proprietary rights relating thereto. Upon


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request, Contractor will take such steps as are necessary to enable Company to record

such assignment, at Company s expense.

ARTICLE TV

TERMTN TION OF AGREEMENT

4.1 By Company. Company may terminate this Agreement by giving written

notice to Contractor designati ng an immediate or future separation date.

4.2 By Contractor. Contractor may terminate this Agreement by g1vtng

Company at least sixty (60) days prior written notice of a designated termination date.

ARTICLE V

RESTRICTIVE COVEN NTS

5.1 Confidentiallnformation.

(a) During the Term, Contractor will have access to Confidential Information

concerning Company, its affiliates and its clients, which constitutes a valuable and unique

asset of Company. Confidential Information includes proprietary information

pertaining

to

Company and its affi liates, including:

(i) business plans (both current and under development), information

concerning customers and clients, trade secrets, financial information, costs,

profits, trading programs and strategies, methodologies, analyses, processes,

information concerning broker/dealers with which Company transacts business,

potential clients and customers, personnel information, suppliers, vendors,

Contractors, compilations, methods of operation, systems, techniques,

technologies, computer programs, technical information, investment vehicles,

forms

of

securities; and

(ii) a

ll

other information Company and its clients treat as confiden

ti

al and

which is not generally known within the industry.

(b) During the Term and thereafter, Contractor (i) shall hold the Confidential

Information

n

strictest confidence, take a

ll

reasonable precautions to prevent the

in

advertent disclosure of the Confidential Information to any unauthorized person, and

fo llow

aU

Company s policies protecting the Confidential Information; ( ii) shall not use,

copy, divulge or otherwise disseminate or disclose any Confidential Information, or any

portion thereof, to any unauthorized person; (iii) shall not use the Confidential

Information

or

Compan

y s

trade secrets to attempt to solicit, induce, recruit or take away

Company s clients or customers; (iv) shall no t make, or permit or cause to be made,

copies of the Confidential Information, except as necessary to carry out Contractor s

authorized duties as an Contractor

of

Company; and (v) sha ll promptly and fully advise


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Company of all facts known to Contractor concerning any actual or threatened

unauthorized use

or

disclosure

of

which Contractor becomes aware.

(c) f Contractor receives any subpoena or becomes subject to any legal

obligation that might require Contractor to disclose Confidential Information, Contractor

wi ll provide prompt written notice of that fact to Company, enclosing a copy of the

subpoena and any other documents describing the legal obligation. In the event that

Company objects to the

di

sclosure

of

Confidential Information, by way

of

a motion to

quash

or

otherwise, Contractor agrees to not disclose any Confidential Information while

any such objection is pending.

5.3 Non-Interference with Clients Contractors. During the Term and for a

period of six (6) months following the expiration thereof, Contractor will not, directly

or

indirectly, on Contractor s own behalf

or

for

an

y other person

or

entity:

(a) solicit or accept the business of any person or entity who is or was a client of

Company

or

its affiliates during the twelve (

12

) month period preceding the end

of the Term with respect to services similar to those provided

or

supplied by

Company or

its affiliates;

(b) seek to induce, influence or cause any person or entity who is or was a client,

ve

ndor, or consultant of Company

or

its affiliates during the Te

rm

to terminate

or

reduce its business dealings with Company

or

its affiliates;

(c) solicit or attempt to solicit, or hire or employ any individual who was a

member, Contractor, manager, contractor, consultant or executive of Company

or

its affiliates, other than Elina Furman, Yitaly Roytenburd and Sharad Shankar, in

the six (6) month period preceding such solicitation

or

hiring;

or

(d) disclose

or

use any Confidential Information, to seek to induce, influence

or

cause any person

or

entity who is

or

was a client, vendor,

or

consultant of

Company or its affiliates during the Term to terminate or reduce its business

dealings with Company

or

its afli

li

atcs

or at

any time engage in any unfair

competition with Company.

5.4 Non-Dis ara cmcnt. During the Term and thereafter, Contractor shall

not disparage, criticize or make a derogatory statement, whether in writing, by electronic

communication or orally, concerning Company or its affiliates , or their members,

executives, Contractors

or

their business; provided, however, that nothing herein shall

prevent Contractor from responding to a lawful subpoena, reporting to a government

agency or complying with any other legal obligation, or engaging in ordinary business

communication with Company during the Term.

S S

Return o Company Materials. No later than three (3) business days

following the end of the Term, Contractor shall return to Company all company property

that is then

in

Contractor s poss

es

sion, custody

or

control, including, without limitation,

all keys, access cards, credit cards, computer hardware and software, documents, records,


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policies, marketing information, design information, specifications and plans, data base

information and

li

sts, and any other property

or

information that Contractor has or had

relating to Company (whether those

materia l

s are in paper or computer-stored form), and

including but not limited to any documents containing, summa

ri

zing or describing any

Confidential Information.

5.6 .Judicial Modification. If the scope or enforceability of the covenants and

restrictions

n

this Article V are determined

by

a court

of

competent jurisdiction to be

unreasonable, unenforceable or invalid, such covenants and restrictions shaH be limited to

the extent necessary to be enforceable and only to such extent.

If

Contractor is found to

have breached any part of this Article V, the court shall have the authority to: (i) extend

the restriction for the length

of

time Contractor was in breach; and (

ii

) order the

destruction

of

any work product created by Contractor, directly or indirectly, in violation

of this Agreement.

5.7 Injunctive

and Other Judicial

Relief. Contractor acknowledges and

agrees that the remedies at law for the breach

of

any

of

the covenants and restrictions

contained in this Article V are inadequate and that compliance with such agreements,

covenants and restrictions is necessary to protect the business and goodwill

of

Company

and its affiliates. Contractor further acknowledges that a breach

of

Article V wi

ll

cause

irreparable damage to Company and its affiliates. Therefore, Company and its affiliates

shall be entitled to obtain injunctive relief in any court of competent jurisdiction to enjoin

any breach or threatened breach

of

any

of

Article V; to obtain the specific pe

rf

ormance

of

the obligations set forth in this Article V, without having to prove the inadequacy

of

the

ava

il

able remedies at law and without being required to post a bond or security; to obtain

mone tary compensation for damages sustained as a res

ul

t

of

such breach; and to recover

reasonable attorneys fees, costs and expenses

in

curred as a result

of

such breach

or

threatened breach.

ARTICLE VI

MISCELLANEOUS

6.1 Assignability. Company may unilaterally assign

thi

s Agreement to any

successor Company,

or

corporation or entity that purchases the assets

of

or succeeds to

the business

of

Company. This Agreement shall not be assignable by Contractor. Subject

to the foregoing, this Agreement shall be binding upon and inure to the benefit

of

the

parties hereto and their respective heirs, personal representatives, successors and

permitted assigns.

6.2 Sevcrabili · Survivabili . If any term

or

provision

of

this Agreement

sha

ll

be held to

e

invalid or unenforceable or subject to modification pursuant to Section

5.6 above, the remaining terms and provisions hereof shall not be aiTected thereby.

Contract

or s

obligations in Article V shall survive and continue n full force

notwithstanding the termination

of

Contractor s employment

fo

r any reason.

6.3 Notices. Any notices, consents or other communications required or

permitted to be sent

or

given hereunder shall

e in

writing and shall be deemed properly


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served

if

(a) delivered personally, i.n which case the date

of

such notice shall

be

the date

of

delivery; (b) delivered to a nationally recognized overnight courier service, in which

case the date of delivery shall be the next business day;

or

(c) sent by a .PDF file copy

transmi tted by e-mail (with a copy sent by first-class mail), in which case the date

of

de

livery shall be the date

of

trans

mi ss

ion,

or if

after

5:00P M

, the next business day.

If

not personally delivered, notice shall be sent using the addresses set forth below:

If

to Contractor, to the address

li

sted on the signature page hereto, and

If

to Company:

Elemental Path Inc.

261 West

35th

Street

Suite 1004

New York, NY 0001

donald @.majestvkapps.com

With a copy to:

Shahmoon Ellisen LLP

370 Lexington Avenue

24

1

h

Floor

New

York, Y 10017

[email protected]

or

such other address

as

may hereafter be specified by notice given by either party to the

other party. Contractor shall promptly notify Company of any change in her address set

forth on the signature page.

6 4

a

ivers No provision of this Agreement may be waived except by a

wr

iting executed and

de

livered by the party against whom waiver is sought Any such

wr

itten waiver shall be effective only with respect to the event

or

circumstance described

therein and not with respect to any other event

or

circumstance, unless such waiver

expressly provides to the contrary.

6.5

ove

rning Law This

Ag

reement shall be governed by and construed

in

accordance with the laws of the State of New York, without giving effect to its conflicts

of law provisions.

6 6 Arbitration

Any dispute between the Company and the Contractor,

including but not limited to any dispute arising out of

or

relating to this Agreement

or

its

breach, or any tort theory, shall be resolved by arbitration pursuant to the rules of the

American Arbitration Association, and shall take place in New York City, a

nd

j udgment

upon the award entered by the arbitrator(s) may be entered in any court having jurisdiction

thereof. The party prevailing, in addition to other rel

ief

, shall be entitled to an award for

reasonable attorney's fees and related costs. Nothing in this paragraph, however, shall limit

or affect the Company's right to seek and obtain

from

a court inju nctive or other equitable


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relief, inc

lu

ding but not limited to relief for a breach y the Contractor of any of the

provisions

of

Article V

of

t

hi

s Agreement.

6. 7 Entire Agreement This Agreement represents the entire agreement

between the parties with respect to the subject matter hereof, and replaces and supersedes

any prior agreements or understandings. The language used

in

this Agreement will be

deemed to be the language chosen by Contractor and Company to express their mutual

intent, and no rule of strict construction will be applied against Contractor or Company.

6.8 Contractor s Representations. Contractor covenants and represents that

(i) Contractor is free to accept and comply with the terms of this Agreement and there are

no restrictions on Contractor s ability to perform Contractor s du

ti

shereunder; and (ii)

Contractor is not, directly or indirectly, involved in any legal, regulatory, or business

dispute that would affect Contractor s ability to fully perform such duties for Company

pursuant to this Agreement.

[

i

nature page follows]


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IN WITNESS WHEREOF Company and Contractor have duly executed this

Agreement as

o

he Effective Date

COMPANY:

ELEMENTAL PATH INC.

c : : = - -

Name: 0 ~ ' C «>1• y

~ u t

d

CONTRACTOR

Name:

Address:

;)t-> 5I

J\

C-?l fc,.tJ

\ ( fMC ?{

(

If


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Product design

User

group testing

D

modeling/renderings

APPENDIX A

DESCRIPTION

OF

SERVICES

Re

search

on

various topics/subjects

Sourcing

of

components

Identification management

of

vendors

Other duties

as

assigned


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Appendix C: Commercialization of my Creative Works: A Crowdfunding Campaign Raised $275,000 in

Funding; My work featured in ABC and MSNBC news.

+ a https:

www

ickstartcr.

Com

prOJCCts/5ll717158/COgnitoys•lntcrnrl·COnnected·smart-toys-thi t•lcarn/p05ts/1194()61

-

e

~ r o h

KI STAITEI

Discover

Stan

Search Projects

CogniToys: Internet-connected Smart Toys that Learn and Grow

ampaig

n Upd

at

es omments (168)

Updatel10

0

Production Update

2

omments

• l ike 9 kas

Hey CogniToys Community,

Wanted to keep you all in the loop about everyone's favorite dino

We've

been

working tirelessly to produce and manufacture

all

of theCogniToys Dinos ordered

last month. We're happy to report that delivery for a

ll

of our Kickstarter backers is

righ

t on

schedule

You all

he

l

ped

bring t he CogniToys Di

no

to life and we couldn't be more thankful Because

of

yoursupport, we've received a ton of coverage at events and in a variety of news outlets, most

recen

tly at

ABC and MSNBC. See the actual segment here

We bring toys to life w

ith

speech and a personality,

allowing them to interactively

en

gag

e and

grow

with a child.

reatedby

emental Path

2,256 backers pledged $275,

o help

bring this project to life.


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Appendix C (Continued): The Defendant Presenting my Work at a Conference in Tokyo


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Appendix C (continued): Commercialization of My Creative Works: The Defendant Licensed my Work to

be featured at an IBM conference, on 5/7/2015 and 5/8/2015, as opening remarks for IBM CEO Ginny

Rometti. IBM’s stock increased by 1% in the following week.


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Appendix C (continued): The Company displaying my work at a technology conference in Germany,

3/2015.


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Appendix C (continued): The Company using my work product in an interview with Cnet.com.

+

www.cnet.com news/speak-toy-welcome-to-the-age-of-chatting-with-your-teddy-bear/

lnet Q

Reviews

News V1deo HowTo G

CNET , Gadgets , Speak. toy Welcome

to

the age of chatting with your teddy bear

Speak toy Welcome

to

the age of

your teddy

be r

Even

so

, those concerns i ustr te the time it may take for p

eo

ple to

beco

me comfo rt ble with new

connected

tec

hnologies, especia y t

hose

fo r

ch

ild ren.

.

• •

T

,,

-·'

Elemental Pa th co-founders Donald Coolidge, left,

nd

Benini

t the

company's Manhattan office.

T IS

T IS


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Appendix C (continued): The Company using my work product in an interview with Cnet.com.

+ www.cnet.com news/speak-toy-welcome-to-the-age-of-chatting-with-your-teddy-bear/

lnet

Q Reviews News Vtdeo HowTo G

CNET , Gadgets , Speak, toy Welcome to the age of chamng with your teddy bear

Speak toy

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to the age of

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E

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ho

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by en

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Rubin II @b enf

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AM

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At Elemental Pat

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office with co-founderJP Benini and a prototype of his company s talking dinosaur.


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22

Appendix C (continued): The Company displaying my work at a technology conference in Germany,

3/2015, with the Vice President of IBM Germany.

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Appendix C (continued): The Company displaying my work at Toy Fair 2015, Javits Center, 2/14/2015.

Source: http://www.examiner.com/review/elemental-path-newest-cognitoy-smart-dino

http://www.examiner.com/review/elemental-path-newest-cognitoy-smart-dinohttp://www.examiner.com/review/elemental-path-newest-cognitoy-smart-dinohttp://www.examiner.com/review/elemental-path-newest-cognitoy-smart-dinohttp://www.examiner.com/review/elemental-path-newest-cognitoy-smart-dino


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1. Breach of Written Contract

1.1. Before The Written Agreement of 12/11/2014, I worked for the defendant Elemental Path Inc.,

as a freelancer, as described in Section A, according to an oral agreement existed betweenmyself and the defendant, for freelance industrial design services at $75/hr. The defendant

paid according to my invoices.

1.2. I then designed and produced an electro-mechanical prototype of a dinosaur for the defendant,

according to an email agreement. I billed the defendant $1000 + materials and the defendant

paid. Within two weeks of delivering my prototype (Appendix A) on 11/12/2014, the defendant

presented the prototype to an investor named Mr. Stephen Krauss, who then transferred

$200,000 in cash in investment capital to Elemental Path Inc.

1.3. From 12/8/2014 to 12/10/2014, I provided additional product design and development services

for the defendant, at a rate of $85/hr, according to an email agreement.

1.4. On 12/1/2014, Mr. Coolidge, CEO of Elemental Path and Majestyk Apps (The “Defendant”, and

The “Company”), expressed an interest to hire me full-time for the position of CPO, or Chief

Product Officer. (APPENDIX I):

“In regards to the CPO position. We would definite be interested in discussing

with you before I make a decision with [another candidate].”

1.5. I began working for defendant (The Company) full-time on-premises on 12/11/2014.

1.6.

The defendant’s counsel Atty. Eli Shahmoon prepared an “Independent Contractor’s

Agreement” and served me the first draft (APPENDIX E) on 12/23/2014.

1.7. The defendant Mr. Coolidge followed up with me to sign the agreement (APPENDIX F):

“On Mon, Jan 12, 2015 at 8:50 PM, Donald Coolidge wrote:Did you have any additional questions/comments with the contractors agreementthat Eli sent to you? Lets get that paperwork taken care of.”

1.8. I signed the agreement on Jan. 12, 2015, and the defendant returned it signed on Jan. 13, 2015.

(APPENDIX G).

1.9. Mr. Coolidge described his responsibility in managing vendor contracts on behalf of The

Company, as he wrote on 1/6/2015: (APPENDIX H):

“Paperwork needs to go through me. That way I am a "gatekeeper." Especially acontractors agreement as it’s a commitment to pay a certain amount and hascertain tangibles.”


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Therefore, Mr. Coolidge clearly understands his responsibility and assumes full ownership of

The Written Agreement on behalf of The Company.

1.10. Mr. Coolidge also represents himself to be the liaison for legal affairs on behalf of The

Company, as he wrote on 2/19/2015, regarding a trademark infringement claim submitted by a

third party (APPENDIX J):

“I'm handling it with legal just to make sure. But I got it. Eyes on the prize

everyone.”

1.11. Article II, 2(a) of The Written Agreement states:

"Contractor shall be paid at the bi-weekly rate of $3541.67(the "Base Salary"),

payable bi-weekly in accordance with The Company's regular payroll practices."

The numbers in The Written Agreement are extremely clear with no ambiguity.

1.12.

The Company never claimed that the quantity or quality of my work was lacking. TheCompany was satisfied with my work product. In The Company ’s own words:

“THE original Dino prototype just got back from making a big splash at CeBIT,the world’s largest IT expo, held in Hannover, Germany. "Grüner Knuddel-Dino”(Cuddly Green Dino) was instantly picked up and loved by theinternational press! Brush up on your German and be on the lookout for thosearticles as we continuously update our website and Facebook pages.”

Source: https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726

The quantity and quality of my work outdid all of the defendant’s expectations, and was

instrumental in raising at least $2,000,000 in capital, to date, to my knowledge. When I joined

the team in December 2014, the defendant announced participation as an exhibitor at Toy Fair

in February 2015. Mr. Coolidge did not expect to have a working prototype ready, and said they

would discuss their project in abstract terms (“hand gestures”) with the press. The only other

tangible that The Company possessed was a non-exclusive vendor contract with IBM, an un-

programmed Texas Instruments motherboard, and one rudimentary, unoriginal algorithm. Due

to my concentrated efforts, skills, vendor relations, and alumni connections, I provided the

defendant with a full display of sculptural and mechanical prototypes, a package of intellectual

property documents, and technical staff capable of delivering the promised technology.

My timely, multi-disciplinary, and creative work was instrumental and pivotal in creating at least

$2,000,000 in revenue for the defendant. There is no possibility that the defendant would have

received any of the investments described above, by displaying an un-programmed Texas

Instruments motherboard, a non-exclusive sales agreement with IBM, and one rudimentary

algorithm.

https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726https://www.kickstarter.com/projects/522717158/cognitoys-internet-connected-smart-toys-that-learn/posts/1172726


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1.13. Therefore, The Company was fully responsible for executing The Written Agreement;

The Company is in receipt of deliverables above and beyond expectations; and The Company is

using those deliverables for exponentially greater commercial gain.

1.14. During the period of which I worked for The Company on-premises, 12/11/2014 to

3/2/2015, I had billed The Company, and received payment for, a total of $19,479.16.According to The Written Agreement, a total of $21,604.19 was due for my work (APPENDIX K).

Therefore upon my exit on 3/2/2015, I billed The Company for $2125.03 in Invoice 1183.

1.15. When I attempted to collect on this invoice 1183 for $2125.03, Mr. Coolidge disputed

and denied payment, in an email from 3/6/2014 (APPENDIX L):

“In regards to the invoice - its not accurate. We agreed on bi-monthly and that ishow YOU sent me the invoices and how we proceeded. It is in the contract as bi-weekly which is a typo and even if it was the way we had assumed to be movingforward, then your invoices to me were incorrect.

I am ok with paying the current invoice which is due to you and the expenses. Ifyou are going to lobby for additional money because of a typo then I will need anentire layout of payments to date and where you think the errors were with each payment.

. . . Again, I don't want to end on a bad note and I am happy to pay you what youare owed but will not allow for unreasonable back tracking now that theengagement is finished.”

Mr. Coolidge denied the remainder of my fees, citing an oral agreement which he claims

supersedes The Written Agreement. He claims that my previous invoices, which were mostly

billed bi-monthly, support said oral agreement, over The Written Agreement, which states bi-

weekly. However, Mr. Coolidge then states above that these previous bi-monthly invoices were

incorrect - whereby confirming the validity of The Written Agreement ’s bi -weekly stipulation.

Since Mr. Coolidge does not seem to be in agreement with himself about the validity or

invalidity of the invoices as evidence of an oral agreement, it is logical to default to The Written

Agreement, which Mr. Coolidge prepared, signed, and executed on behalf of The Company.

1.16. The lack of payment had nothing to do with performance and everything to do with

greed.

1.17. The Written Agreement, which Mr. Coolidge executed on behalf of The Company states:

“6.7 Entire Agreement. The Agreement represents the entire agreement between

the parties with respect to the subject matter hereof, and replaces and supersedes

any prior agreements or understandings.”

Therefore, Mr. Coolidge hereby invalidated any previous oral agreements, such as “We agreed

on bi-monthly”, when he served me The Written Agreement with Clause 6.7, which Atty.

Shahmoon drafted at Mr. Coolidge’s specifications.


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1.18. An amendment to the contract, stating a new payment schedule, would have to be in

writing, and would have to be signed by both parties that we intended to alter the contract to

make this the new provision. In a written amendment to The Written Agreement, The Company

would need to provide something to me in return, to induce me to accept the lower salary of

$85,000 instead $92,083. However no such written amendment exists.

1.19. There are many “typos” in The Written Agreement. The definition of “typo” is

“typographical error, or a mistake made in the typing process (such as a spelling mistake) of

printed material”. The Written Agreement’s title, “Independent Contarctor Agreement” is an

example of a typo. It is understood that two letters ‘a’ and ‘r’ within the word “Contarctor”

were exchanged, and that the intended word is “Contractor”. The correctly-spelled word

“Contractor” is used in the same context many times again throughout The Written Agreement

to support this interpretation.

1.20. The word ‘bi-weekly’ is used twice in The Written Agreement, indicating a conscious

decision to use that word.

1.21. A ‘typographical error’ does not indicate the replacement of an entire word, in the case

of ‘bi-weekly’ and ‘bi-monthly’. Using the wrong word, that still falls within the same linguistic

context, is called semantic paraphrasia, a symptom of neurologic trauma. Both Mr. Coolidge

and Atty. Shahmoon, who drafted the agreement, present themselves as free from neurologic

trauma, and as competent to manage business affairs such as contracts and employees. Mr.

Coolidge and Atty. Shahmoon have proven quite competent in preparing contracts for

accepting investment capital.

1.22.

Therefore, claims that The Written Agreement’s payment schedule is invalid, due to

either a prior oral agreement or a typo, are invalid.

1.23. Mr. Coolidge again disputed and denied payment on 3/10/2015, and threatened to

blacklist me in retaliation (APPENDIX M):

“If you would like to discuss the additional invoice, which not only do I dispute but I don't see how it would make any sense seeing how you invoiced me be-monthly, we can. Please break down in a digestible way the total amount youwere paid over the engagement being paid bi-monthly and how much you wouldhave been paid if it were bi-weekly. If there is a discrepancy there and it makessense we will make sure you are paid what you deserve.

. . If this is how you want to continue, so be it but I promise its not in your best

interest. I would like to keep you in my network and lets not let this get out ofhand.”

1.24. I contacted the defendant and his counsel multiple times regarding payment (APPENDIX

N). In an email dated 3/16/2015, I wrote (APPENDIX O):

“The total time worked during this agreement was 12 weeks and 1 day, or 6.1 bi-weekly pay periods. The attached excel document shows the breakdown. The


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total due is $21,604.19, and until now Elemental Path has paid $19.479.16(excluding reimbursement for expenses). Therefore Elemental Path owes JessicaCohen $2,125.03.

By billing less than the amount in the agreement, I did not waive my rights to be paid in full as per the "INDEPENDENT CONTARCTOR AGREEMENT".

In return for payment of $2125.03, and your signature on the attachedtermination agreement, I am willing to forego: any claims to the IP, any claims toequity and options, any litigation with Elemental Path, and any further claims toadditional monies due (such as, but not limited to, the 5 weekends I workedovertime; the discount of $977.50 given as a gesture in anticipation of equity; orusing my name and picture, falsely as "CPO", to generate revenue frominvestors).

Please pay the amount due and sign and return the attached terminationagreement within 7 days.

Thank you for your prompt cooperation,

Jessica”

The Company also owes me $977.50 for the difference in payment for the period of 12/8-

12/10/2014. I had worked off-site for 3 days, or 24 hours, at a rate of $85/hr. Mr. Coolidge

requested that I ‘roll these hours’ into the service agreement, by backdating my full-time start

date to 12/8/2014 (APPENDIX P). However, the defendant’s counsel did not change the

agreement’s start date from 12/11/2014 to 12/8/2014. Therefore since The Written Agreement

begins on 12/11/2014, The Company should pay me according to my full hourly rate of $85/hr.

for the days worked prior to entering into the agreement. The difference between what I billedfor these days and what I am owed is $977.50, and this sum is not included in Invoice 1183 for

$2125.03.

1.25. As Mr. Coolidge was uncooperative, I contacted his counsel, Atty. Eli Shahmoon, in an

attempt to avoid litigation:

“Hi Eli,

My name is Jessica Cohen and I worked as a contractor for Donald @ ElementalPath; you prepared the attached contract. Donald seems to be having an issueabout payment for my services and expenses, for a total of $5826.24; not to

mention reneging on at least five documented verbal offers of equity. Please seethe discussion below. Perhaps you could "talk some sense" into Donald about thereality of written contracts? I would really like to be paid for my work and avoidarbitration. Your professional help would be much appreciated.

Thanks,

Jessica Cohen


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917 436 7998”

(The sum of $5826.24 includes the disputed invoice for $2125.03, and the invoice previous to

that, which was paid.)

Atty. Shahmoon responded:

“Jessica,

We have counsel to Elemental Path, and it would be a conflict of interest for usto represent you on an issue with them.

You are welcome to suggest to Don that he contact us if he has any questionsabout the contract, but we cannot initiate a discussion on your behalf.

Eli”

Therefore, I copied Atty. Shahmoon on subsequent email correspondence with Mr. Coolidge, to

ensure that the defendant was aware of the possibility of litigation and of the enforceability of

the written agreement (APPENDIX M).

1.26.

On 3/16/2015, I emailed Mr. Coolidge and counsel a termination agreement (APPENDIX

Q). The termination agreement stated:

“1. The service agreement between the two parties, Elemental Path Inc.,

(“Company”), of 261 West 35th Street, Suite 1004, New York NY 10001, and

Jessica Cohen (“Contractor”), of 511 Avenue of the Americas #504, New York,

NY 10011, which commenced on December 11, 2014 and terminated on

3/1/2015 (inclusive).

2. Elemental Path Inc. will pay $2125.03 to Jessica Cohen, within 7 days.

Including this payment, the total compensation for services rendered between

12/08/2014 to 03/01/2015 will be $21,604.19.

3. Elemental Path Inc., its owners, agents, employees, and contractors, shall not

disparage, criticize, blacklist, or make a derogatory statement, whether in writing,

by electronic communication or orally, concerning Jessica Cohen or her affiliates

or her business.

4. Elemental Path Inc. has removed Jessica Cohen's name, face, and resume,

from marketing materials, including but not limited to, investor pitch decks.

5. Elemental Path Inc. releases Jessica Cohen from Clause 5.3 of the Agreement,

to freely practice her trade.

6. Upon fulfillment of the above, Jessica Cohen shall waive any claims:

(A) to the Intellectual Property which she created on behalf of Elemental

Path;

(B) of equity or options in Elemental Path;


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(C) to further compensation for work performed for Elemental Path;

(D) to breach of contract by Elemental Path;

(E) and shall forgo any type of legal action against Elemental Path.”

1.27.

I did not receive a response to this termination agreement, or to the detail of thecharges which Mr. Coolidge asked me to prepare for his perusal (APPENDIX K). The last I heard

from The Company or its counsel, was an email from Mr. Coolidge on 3/16/2015 (APPENDIX R):

“I am out of the country and we will loop back to this once I return.”

1.28. Therefore, despite multiple attempts to close the working relationship cleanly, and for a

small amount of money which I was legitimately owed according to The Written Agreement,

Mr. Coolidge, on behalf of Elemental Path Inc., refused to address any of the issues regarding

payment, breach of contract, or my need to generate income by working in my field as a free

agent. I waited two months, and after no response, and several warnings, I was left with no

choice but to pursue litigation for breach of contract, bad faith dealings, and payment for myservices according to The Written Agreement.

1.29. As a party to a two-way commercial agreement, The Company cannot claim the specific

written provisions granting its rights to be enforceable, while the specific written provisions

regarding its responsibilities are not enforceable.

1.30. As shown above, the defendant’s behavior describes willful breach of contract. Aside

from not paying my fees, Mr. Coolidge acted in bad faith in the following ways: requested a

detail of the charges yet never bothered to read them; never addressed the termination

agreement, which was designed to prevent further litigation; did attempt to further reduce my

compensation by inventing an oral agreement for an even lower salary; threatened to damagemy career; and claimed that he was unaccountable for The Written Agreement which he had

executed.

1.31. I demand a judgment against the defendant in the sum of $1,000,000.00, payment of

my fees of $3102.53 ($2125.03 + $977.50), plus any other relief the Court finds to be just and

proper.


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Appendix I: The Company’s Initial Compensation Questions

Print

::

Workspace Webmail https://emai ll O.secureserver.net/window

lp

rint/?f=html h=362

J

39739 ui= I

I of

Re

Quick

update

Donald Coolidge [[email protected]]

Sent

12111201411 :59 AM

To

"Jessica Cohen"

I am

no

t going to

be

back

until Wednesday. Currently driving to Boston for some meetings. Lets meet Wednesday at 6pm (

or

later) or Thursday at 11am.

Do

either of those work for you?

I will

ge

t this invoice out. I can try now with Paypal

or

f you are in the area you can drop

by

the office and pi

ck

it

up

. If you want

to pick it

up

instead let me know and I will call sean and have him write the check. Sorry

for

the delay traveling makes these

simple tasks difficult.

In regards

to

the CPO position. We would definite be interested in discussing with you before I make a decision with Echo. Lets

have this the focal point of our meeting this week. Please th

in

k about these considerations prior to our meeting.

1 We are pre-funding so cash conservation is key until we get funding or at least a large part of our funding.

2 What

amount of t ime do you have available and if needed could you

do

this full time?

3 What wo

uld your full-time salary

be

(with no equity).

4

What

would your equity

+cas

h salary be

or

what range could you be comfortable with?

5. Are you able to

do

all equity, until

we get

funding?

6 Are you comfortable handling the sourcing of parts and supply chain?

7 When would you

be

available.

We are looking

at

all avenues and what

we

appreciate the most is flexibility.

As

cash is tight ri

ght

now

we are

looking for flexible

options to make an awesome product. The right fit will be flexible and focused on creating an awesome product. And I am

confident we can get the funding and that is always easier with a more advanced product.

These are just some things to think about before our meeting. Echo and I are getting close to finalized details so lets make sure

we are efficient

in

our meeting on Wed/Thurs.

So let me know what

day

you can meet.

Cheers,

Don

On Men, Dec 1, 2014 at 7:28AM, Jessica Cohen wrote:

Hi

Donald ,

Welcome back

to

chil

ly

NYC

When are you free

to meet th

is week?

Please also remember

to

take care of

my

invoice

via

paypal

or

check, today, if possible. My paypal

acct is accounting@tambino .com.

Thanks,

Jessica

-------- Original Message -------

Subject: Quick update

From: Donald Coolidge

Date: Fri, November 28, 2014 3 :06pm

To: Jessica Cohen

Hi Jess. I got your emails but I am traveli ng. I ll

get

you a proper response back very

soon. I won t be back in

NY

until Wednesday . Let's defin itely meet Thursday or Friday in

person

to

discuss everything as wel l.

5

26 2

015 II :25

A


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APPENDIX E: The Defendant’s Counsel Prepared the Independent Contractor’s Agreement on

12/23/2014.


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APPENDIX F: The Defendant Followed Up with me to ensure that The Written Agreement was signed


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APPENDIX G: The Defendant returned the signed written agreement to me on 1/13/2015.

Elemental Path Mail - Signed ContractorsAgreement

ht

tps:

//

mail.googl

e co

m/

mai

Vu

/O/?

ui;

2

ik; 650a2 1633 & view; pt&q; je ..

Signed Contractors greement

1 message

Donald

Cool

idge

To: Jessi

ca

Cohen

Attached is the signed agreement.

Thanks

Donald Coolidge

Co-Founder and CEO

donald@maj

es

tykapps.com

261 W 35th ST, Suite 1004

New York, NY 10001

518.335.9622

Jessica

Cohen Si

gned

Contractors Agreement.pdf

8790K

Jessica Cohen

Tue, Jan 13, 201 5 at 3:21 PM


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APPENDIX H: Mr. Coolidge describes his responsibility over contractor agreements.


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APPENDIX J: Mr. Coolidge takes responsibility for legal matters on behalf of Elemental Path Inc.:


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APPENDIX K: The Detail of the Charges Which I Sent to the Defendant


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APPENDIX L: The Defendant Disputes the Payments

Print Workspace W

cb

mail hnps://cmaillO.securcscrvcr.nclfwindow/prinlf?f=html&h=383386590&ui= I

I

of

I

Re checks

Donald

Coolidge

[[email protected]]

Sent

3/6/

20159:58AM

To

"Jessica Cohen"

Any chance you could do 3pm? I have a bunch

of

early afternoon meetings.

Expenses no problem.

In rega

rd

s to the invoice - its not accurate. We agreed on bi-monthly and that is

how

YOU sent me t

he

invoices and how we

proceeded.

t

is in the contract as

bi

-weekly which is a typo and even if it was the way we had assumed to be moving forward,

then your invoices

to

me were incorrect.

I am ok with paying the current invoice which is due to you and the expenses. If you a

re

going to lobby for additional money

because of a typo then I w ill need an entire layout of payments to date and where you think the errors were with each payment.

Either way,

t

would have to be the afternoon. Let me know how you want to proceed.

If

th is gets out of hand then I will bring

Calvin in to mediate. He seems to be a good buffer and reasonable. Again, I don't want

to

end on a bad note and I am happy to

pay you what you are owed but will not allow for unreasonable back tracking now that the engagement is finished.

Thanks,

Don

On Fri , Mar 6, 2015 at 9:18AM, Jessica Cohen wrote:

Hi Dona ld,

I d

l ike

to stop b y today somet ime be tween 11 :30-2:00 t o collect p

aymen

t . T here s

ho ul

d

be

three

payments,

as fo ll ows:

expen

ses:

$ 160 .19

Invoice 1182 : 3541.62

I

nvoice

1183: 2125 .03

When is th e best t ime to stop by?

T hanks

Jes

s i

ca

Donald oolidge

Co-Founder and

CEO

[email protected]

26

1 W

35

th ST, Suite 1004

New York, NY 10001

51

8.335.9622

Copyright © 2003-2015. All rights reserved.

5/23/

20

15 4:46 p


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APPENDIX M: Defendant Again Disputes Payment, Threatens to Blacklist

Print :: Workspace Webmail hnps:/ /emai

ll O se

cureserver.nelfwindow/p rinlf?f=htm l h=384230 1

26 ui=

I

I

o

f2

Re checks

Donald Coolidge

[[email protected]]

Sent

3/

10

/

201512:03 PM

To

Jessica Cohen

Hi Jessica. Hope you had a good weekend. I wrote you a che

ck

for invoice 1182 and the expenses and its been dropped in the

mail.

I am going to disregard your work for hire comment

as

you being heated and I don't know why you feel the need to burn this

bridge.

It

did not work

out

between you and EP and for that

I

am sorry and

I

wish it would have but

we

are happy to give you

positive references and move on. Claiming any right to IP is no t the way you want to

go

and fully unprofessional.

If

you would like to discuss the additional invoice, which not only do

I

dispute but

I

don't see how it would make any sense seeing

how you invoiced me be-monthly, we can. Please break down in a digestible way the total amount you were pa id over the

engagement being paid bi -monthly and how much you would have been paid if it were bi-weekly.

If

there is a discrepancy there

and it makes sense we will ma ke sure you are paid what you deserve.

It

fully seems that you have left, not happy about it and now you are making claims that are unreasonable .

If

this is how you

wan

t

to continue, so be it but

I

promise its not n your best interest.

I

would like to keep you in my network and lets not let this

get out

of hand. Again, I wish you nothing but the best.

Best,

Don

On Fri,

Mar

6, 2015 at 1:34 PM, Jessica Cohen d [email protected]> wrote:

Hey Donald,

Unfortunately I am only free today during unt il 2pm as mentioned below. Can't someone else

at

the

office give me the checks? I f

not

, plea

se

mai l

the

payment to 511 Avenue

of

t

he

Amer icas

504, New York

NY

10011.

The invoice attached (again) shows all of

the bills/ payments up unti l now for any

further

questions

you

might

have about the billing, and the agreement . (Scro ll down

to

t he bottom of the invo ice to

see past invoices.) Honestly, I am so confused by all of your offers of equity, options, and salary,

that

I have only your

written

agreem

ent to

go by.

You are welcome

to

bring a lvin in

to th

is thread. Keep in

mind th

at consistent w

ith th

e conce

pt

of

'wo

rk

-fo r-hire ', that

un t

il pa

yment

is rendered for the work , then it does not

fully

belong

to

El

emental

Pa

th.

Please process payment in fu ll promptly.

Regards,

Je

ssi

ca

--------

Original Message - -

-----

Subject: Re: checks


Date: Fri, March 06, 2015

9:58

am

To: Jessica Cohen < info@jessicacohen .com >

Any chance you could do 3pm? I have a bunch

of

early afternoon meetings.

Expenses no problem.

5/29/2015 8:23 A


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40

APPENDIX N: Multiple attempts to notify the defendant’s counsel and collect payment for services

rendered.


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41

APPENDIX O: Request for payment and explanation of charges.

Print :: Works

pace

Webmail

hnp

s:

e

maill

O secures

erver.n

elf

window prinlf?f=htm l h

=38599

7537 ui= I

2 of 3

FYI -Ou r

agreement

with Jessica was

for $75,

000

per

year.

---------- Forwarded message

----------

From:

Jessica

ohen < info@jessicaco h

en.com

>

Date: Mon,

Mar 16, 2015 at

5:16PM

Subject:

Elemental

Path re f.

#790579

To:

Donald Coolidge < [email protected]>

Cc: Eli

Shahmoon

< eshahmoon@sandelaw .

com

>, nydocs@fkm law .

com

Hello Donald,

Ar ticle I I , 2(a)

of

the INDEPENDENT CONTARCTOR AGREEMENT states:

Contractor

shall be pa id

at the bi-weekly rate of $3541.67

(the Base

Salary ),

payable

bi-weekly

in accordance

with

the Company's regul

ar

payroll practices.

The agreement start

date

was 12/1 1/ 2014. At your email request, I consented to

backdate

the start date

to

12

/ 08/2014,

to

include 3

da

ys

of work

as a freelancer

at

$85/hr. Backdating this start

date

constitutes a discount of

$907. The

agreement

finish

date

was

3/1/2015.

The total time worked

during

this

agreement wa

s 12 weeks and 1 day, or

6.1

bi-weekly

pay

periods. The attached excel

document

shows the breakdown. The

total

due

is $21,604.19, and until now Elementa l Path has paid $19.479 .16

(exc

luding reimbursement

for

expenses) . Therefore El

ementa

l Path owes Jessica

Cohen

$2,125.03.

By billing less than the amount in the

agreement,

I

did

not waive

my

rig

hts

to be

paid in

fu

ll

as

per

the

INDEPENDENT CONTARCTOR AGREEMENT .

In

return for payment of $2125.03,

and your

signature

on

the

attached

termination agreement,

I am willing

to

forego :

any

claims

to the

IP,

any

claims to

equity and options,

any

litigation with Elementa l Path, and any further claims to

additional

monies due

(such as, but

not limited to,

the 5 weekends I

worked

overti

me;

t

he discount

of

$907

given as a

gesture

in anticipation

of equity; or

using my name and pi

cture,

fals

ely

as C

PO

, to

generate

revenue from

inves tors) .

Please

pay

the amount

due

and sign and

return

th e attached

termination

agreement withi

n 7 days.

T

hank

you

for your prompt

cooperation,

Jessica

Donald

oolidge

o -Fou n

der

and EO

[email protected]

261 W 35th ST, Suite

10

04

New York,

NY

10001

518.335.9622

5126/2015 7 : II A


42/86

42

APPENDIX P: The Defendant Requested to Backdate the Start Date of Our Agreement to Include

Freelance Hours, Yet Did Not Change the Written Agreement.

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eb

mail

https://e

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escrvcr.n

elfw

indow/prin lf?f=html h=364991276 ui=

I of I

RE

questions about contract

Jessica Cohen

[[email protected]]

Sent: 12/12/2014 11 :30 AM

To

Donald Coolidge

That would be fine.

--------

Original Message

-------

Subject:

Re

:

questions about contract


Date: Fri, December 12,

2014 10:52

am

To: Jessica Cohen < info@jessicaco hen.com >

Good points.

I' ll make

some changes. H

ow about

I

move

the

start date to 12/8?

Sent

from

my iPhone

On Dec

12, 2014,

at 10:49

AM, Jessica Cohen < [email protected] >

wrote:

Hi Donald ,

Thanks

fo

r being

prompt with

the agreement.

t

looks

fine.

There

are

a few questions for

you and/or your

attorney:

• Preamble : start

date

12/ 11/2

014-

does this

mean

I should invoice you for my

hours onsite and offsi

te prior to 12/11,

it was

about

3 biz days days

total.

•

II:

2.1:

what

are applicable deductions?

• I I I :3

.1: The

scope

of the

IP

needs

to be

limited

to the

IP tha

t I create in rel

ation to

this project, during work

hours, and

for the dura

t ion of my

emp

l

oyment;

I ha

ve

side

projects like

my jewelry

and need

to

be able to

register

copyrights in my own

name

for t hose.

• I I I : 5:3: Needs

to

be

an

exclusion for my colleagues like Elina and

Vitaly whom

I

brought on

to help on this

project;

I' ll continue

to work with

t hem

duri

ng and after

this project

on

different

(but

not competing)

pro

jects like

my

jewe

l

ry.

Best,

Je

ss

i

ca

Copyright © 2003-2015. All rights reserved.

5 9 2

5 2:07 p


43/86

43

APPENDIX Q: The Termination Agreement that I Prepared, Which the Defendant Ignored.

Termination Agreement

Between Elemental Path Inc. and J

essi

ca Cohen

March 16, 2015

1. The service agreement between

the

two parties, Elemental Path Inc., ( Company ), of 261 West 35 h

Street, Suite 1004, New York NY 10001, and Jessica Cohen ( Contractor ), of 511 Avenue of

the

Americas 504, New York, NY 10011, which commenced on Dece

mber

11, 2014 and terminated

on

3 1 2015 (inclusive) .

2. Elemental Path Inc. will pay $2125.03

to

Jessica Cohen

within

7 days, for a total of $21,604.19

for

se

rvices rendered between 12 08 2014

to 03

/ 01/2015.

3. Elemental Path In

c.,

its owners, agents,

emp

loyees, and contractors, shall

not

disparage, criticize,

blacklist, or make a derogatory statement, whether in writing,

by

electronic communication or orally,

concerning Jessica Cohen

or

her ffiliat

es or

her business.

4. Elemental Path Inc. has removed Jessica Cohen's name, face, and resume,

from

marketing materials,

including but not limited to, investor pitch decks.

5.

El

emental Path Inc. releases Jessica Cohen

from

Clause 5.3 of

the

Agreement,

to

f reely practice her

tr de

.

6. Upon

fulfillment

of the above, Jessica Cohen shall waive any claims:

Signed:

(A) to the Intellectual Property wh ich

she

created on beh lf

of El

emental Path;

B)

of

equity or

options in Elemental Path;

(C) to

further compensation

for work

per

for

med for Elemental Path;

D)

to

breach of contract by Elemental Path;

E) and shall forgo any type of legal action aga inst Elemental Path.

Jessica Cohen, Contractor Donald Coo lidge, Eemental Path Inc.

Date Date


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44

APPENDIX R: The Defendant’s Dismissal of My Requests for Payment and for Signature on the

Termination Agreement; Bad Faith Statements

Print :: Works

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ow/prin t/?f=html&h=385809376&ui= I

I

of2

RE: Fwd: Elemental Path ref. 790579

Jessica Cohen

[[email protected]]

Sent: 3/17/201510:00 AM

To: Donald Coolidge

,

Calvin Chu

Cc

:

fkm [email protected]

m,

Eli

S

hahm

oon <

eshahmoon@sandelaw

.c

om>

Donald,

I did not

agree

to a salary of $75,000

per

year. I do not appreciate being repeatedly lied

to.

I still need

to get

paid, even

if

yo u are

out

of

the country

(for

the

sole

purpose

of using

my work for

financial ga in -see

attached).

I can wait un t

il

next Monday for

payme

nt and a signature on t he

termination

agreement .

Jessica

-------- Original Message --------

Subject:

Fwd: Elemental Path ref. #7

90579

Fr

om:

Donald Coo li

dge

Date: Mon, March 16,

2015 5:54pm

To: Calvin Chu , Jessica Cohen

Hey Calvin.

Wanted

to put this

on

your

radar. I

am

out

of

the

country

and we will loop back

to

this

once I

return.

Tha nks,

Don

FYI

-Our agreement

with

Jessica was

for

$75,000

per year.

---------- Forwarded message ----------

From:

Jessica Cohen

Date: Mon,

Mar 16,

2015 at 5:16PM

Sub

ject:

Elemental Path ref.

#790579

To: Donald Coolidge < donald@

majest

ykapps.com>

Cc: Eli Shahmoon < eshahmoon@s andelaw .com>, nydocs@

fkmlaw

.com

Hello Donald,

Article

I I , 2(a) of the

INDEPENDENT CONTARCTOR AGREEMENT

states: Contracto

r shall

be paid at

the bi-weekly rate

of

$3541.67(the

Base Salar

y ),

payable

bi-weekly

in

accordance

with

the Company's

regular

payroll

practices.

The

agreement

s

tart date

was 12/11/2014. At your email requ est, I consented to back

date

the

start

date

to

12

/08/2014, to include 3 days of work as a freelan

cer

at $85/hr .

B

ackdat

ing

th

is start

date constitutes

a

di

scou

nt

of $907. The

agreement

fin ish

date

was

3/1/2015.

The

total

time

worked during

this agreement was

12

weeks and 1

day

, or 6.1 bi

-wee

kly pay

peri ods.

The attached

excel

document

shows

the breakdown

. The

to t

al due is

$21,604.19,

and

unti

l now Elemental Path has paid $

19.479.16

(excluding reimbu rsement for expenses).

Therefore

El

emental

Pa

th

owes Jessica Cohen

$2,125.03.

By billing less

than the amount

in

the agreement,

I did not waive

my rights to be

paid in full

as per the INDEPENDENT CONTARCTOR AGREEMENT .

5/29/20

15 8:48 A


45/86

45

2. Breach of Oral Contract

2.1. Mr. Coolidge denied the validity of The Written Agreement, citing 2 conflicting oral

agreements. Was there an oral contract, and if so, what were its terms, and did The Company

abide by those terms?

2.2. I began working the defendant full-time on-premises on 12/11/2014, and receiving payment for

my services, while waiting for the defendant’s counsel to prepare and edit The Written

Agreement. The Written Agreement was signed on 1/13/2015. Therefore, I was de facto

working according to an oral agreement with Mr. Coolidge, during the month preceding our

signatures on The Written Agreement.

2.3. The Written Agreement described “bi-weekly” payments. Mr. Coolidge claimed we had an oral

agreement for “bi-monthly payments”. ‘Bi-monthly’ payments means 24 paychecks per year, or

$3541.67 * 24 = $85,000 annually. ‘Bi-weekly’ payments means 26 paychecks per year, or

$3541.67 * 26 = $92,083.

2.4. If the defendant claims that an oral agreement for $85,000 annual compensation supersedes

The Written Agreement for $92,083, then what was the “quid pro quo” that we orally agreed

upon to compensate for the difference, or $7508?

2.5. Mr. Coolidge also claimed, in writing, and in contradiction to his previous claim, that we had

another agreement for $75,000 annual compensation (APPENDIX R):

“Hey Calvin. Wanted to put this on your radar . I am out of the country and wewill loop back to this once I return.

Thanks,

Don

FYI -Our agreement with Jessica was for $75,000 per year.”

If Mr. Coolidge claims that an [oral] agreement for $75,000 annual compensation supersedes

The Written Agreement for $92,083, then what was the quid pro quo that was agreed upon

orally to compensate for the difference, or $17,083?

However, Mr. Coolidge’s conflicting statements, and the lack of any documentation supporting

a salary of $75,000, negate his credibility to cite any oral agreement as legitimate.

2.6. The quid pro quo was 2% equity in Elemental Path Inc., as part of a trade-off of salary for

equity, which Mr. Coolidge offered to me in his office in a private conversation, on 12/8/2014.

2.7. Mr. Coolidge initiated the recruitment process by suggesting equity for salary, in writing. As he

wrote (APPENDIX I):

“We are pre-funding so cash conservation is key until we get funding or at least alarge part of our funding. . . .We are looking at all avenues and what we


46/86

46

appreciate the most is flexibility. As cash is tight right now we are looking forflexible options to make an awesome product. The right fit will be flexible andfocused on creating an awesome product. And I am confident we can get thefunding and that is always easier with a more advanced product.

… Are you able to do all equity, until we get funding?”

Regarding flexibility, it is clear from Mr. Coolidge’s email from 12/01/2014 that his intention

with the word “flexibility” referred to equity for salary. Small startup companies typically have

few resources and require long hours, therefore, it is commonly accepted to provide an equity

stake in the success of The Company as compensation.

2.8. It is clear from this email that I was also being interviewed for the position of CPO, or Chief

Product Officer:

“In regards to the CPO position. We would definite be interested in discussing

with you before I make a decision with Echo.”

2.9.

The average salary for a Chief Product Officer in New York at that time was approximately

$130,000, according to Indeed.com (APPENDIX S).

2.10. We discussed the terms in an email correspondence, entitled “equity documents,

answers to questions”, with my responses in bold face (APPENDIX T):

“Hi Donald,

Do you have any contracts or documents regarding the equity agreement that youcan send to me so my attorney can review and advise me before Thursday? I'mnew to this so would like to be informed so as to make the most of your time.

1. We are pre-funding so cash conservation is key until we get funding or at leasta large part of our funding. OK 2. What amount of time do you have available and if needed could you do thisfull time? I can work now about 4 days or 30 hours a week due to two other

contract projects; I might be available full time in 2 months. (Don't worry, I

can do in 30 hrs/week what I've seen takes some folks 1 month.)3. What would your full-time salary be (with no equity). It depends on the size

of The Company, the benefits, flexibility, etc. It could range from $85-110K.

Below that I can make more freelancing.

4. What would your equity + cash salary be or what range could you becomfortable with? I would need $3500/mo to cover my basic expenses in the

city; + equity which I am researching, we can discuss. 5. Are you able to do all equity, until we get funding? Unfortunately no.”

2.11. Therefore, my full-time salary requirements were compensation requirements were a

range of a minimum of $85,000 annual salary, with benefits and/or flexibility; or a maximum of

$110,000 without equity. I also wrote that I would need more than $85,000 to persuade me to

leave freelancing for a full-time job with an underfunded startup.


47/86

47

2.12. According to The Written Agreement and its de facto execution, I did not receive any

employment benefits such as paid time off, Christmas holiday time off, payment for overtime,

health insurance, or retirement contributions. The only “benefit” I received were 2 days of paid

time off, a snow day, and New Year’s Day. The Company did provide a chair, a desk, coffee, and

a $50 Visa gift card for Christmas.

2.13. Since I was paid as a contractor and not an employee, my compensation was The

Company’s gross cost, not an employee salary. The total compensation for an employee in the

United States is on average 30% higher than the base salary, to account for overhead, employer

taxes, vacation time, bonuses, et al. Therefore, after paying taxes, health costs, and materials

out of my payments, my de facto ’annual salary’ was closer to $62,000, which is illogically low

compared to the national average for this position or my qualifications.

2.14. Therefore, I had provided a salary range to The Company of $85,000 to $110,000, with

$85,000 being the low end, with “benefits, flexibility”, meaning equity , to compensate for the

difference of $25,000. However according to The Written Agreement and its de facto

execution, I did not receive any benefits or flexibility . Therefore what compensated for the lowsalary in The Written Agreement, $92,083, and the even lower salaries of $85,000 and $75,000,

that Mr. Coolidge claims were our conflicting oral agreements? Although The Company served

me an agreement worth $92,083, Mr. Coolidge claims his true intention was $85,000.

Therefore, there must be some additional benefit on top of the base salary of $85,000, as we

originally discussed. That benefit was 2% equity in The Company as offered to me by Mr.

Coolidge on 12/8/2014.

2.15. It is not logical that I would have intentionally and willingly accepted a full-time position

with no benefits and no equity, for less than half of the industry standard, when, as I explained

in my email, I could have earned the same amount freelancing and working far fewer hours.

“An hourly rate of $85.00 equates … an annual salary of $176,800”, according to Financial

Calculators, www.calcxml.com. It is not logical that I would have converted from a part-time

hourly contractor at $85/hr, to a full-time contractor at $75,000, $85,000, or $92,083 pre-tax

gross annual compensation. These annual wages translate to pre-tax hourly rates of $36, $41,

and $44/hr, respectively – which is less than half the compensation of what I was previously

paid as a contractor, $85/hr. There must be a quid pro quo for converting to working twice the

hours for half the rate. That quid pro quo was 2% equity in The Company.

2.16. Mr. Coolidge, on behalf of The Company, enticed me to work full-time by offering equity

for salary, then carefully acted to avoid abiding by that offer. The defendant abused my trust in

our working relationship and our oral agreement, and the fact that I had already started

working for The Company full-time, neglecting my other sources of income. The Company did

so to obtain discounts, a low salary, and ove

Documents

Cohen v. Elemental Path - Complaint