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INDEX NO.

651953/2015

FILED: NEW YORK COUNTY CLERK 06/02/2015 10:25 AM


NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/04/2015

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

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

SUMMONS

Jessica Cohen

Index Number
[your name(s)]

PlamtJtf(s) .'
-against-

Elemental Path Inc.


Majestyk Apps Inc.
[nametsJ or pany oemg sueoJ

Date Index Number Purchased


June 4

, 20.22_

Defendant(s):

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

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


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 State of New York.
YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment will be entered against you
by default for the relief demanded in the complaint.

~am

Dated:-r~-J_urn_e_4_____-..-_, 20~
[date of summons]

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 Inc.

Majestyk Apps Inc.

261 West 35th Street, Suite 1004

261 West 35th Street, Su ite 1004

New York NY 1 0001

New York NY 10001

Phone: (646) 233-4511

Phone: (646) 233-4511

[address(es) of party being

su~d]

V enue: Plaintiff(s) designate(s) New York County as the place of.trial. 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]: - - - - - - - - - - - - - - - - - - - - - - -

<CommenceAction- l/20 14

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
-------------------------------------------------------------------X
JESSICA COHEN,
Plaintiff,
-againstElemental Path Inc.
261 West 35th Street Suite 1004
New York NY 10001

COMPLAINT

-AndMajestyk 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, and
licensing 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 noncompete 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.

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 OShea, 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 modelmaking 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, offpremises, 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.
3

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 Leapfrogs CEO in San Francisco; Mr. Benini
also 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.

Appendix A: Work Products

Appendix A: Work Products (continued)

Appendix B: The Written Agreement

INDEPENDENT CONTARCTOR AGREEMENT


This Independent Contractor Agreement (the "Agreement") is effective as of
December 11th, 2014 (the "Effective 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
ctor's former employers as
engaging in activities competitive with the activities of
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 subject 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 policies 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).

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 behalf of 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 ill
WORK FOR HIRE
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 the Copyright Act of 1976, as
amended from time to time, and that 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, copyrights, copyrigh~tplications, 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 enforcing patent, copyright and other
forms oflegal protection for the Intellectual Prope
in any country. Upon request,
Contractor wi ll 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-use, 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 not qualify as a work made for hire, Contractor will and hereby does assign
to Company all right, title, and interest that it may possess in such Intellectual Property
including, but not limited to, all copyright and proprietary rights relating thereto. Upon

request, Contractor will take such steps as are necessary to enable Company to record
such assignment, at Company' s expense.

ARTICLE TV
TERMTNATION 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 COVENANTS
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 affiliates, 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)
all other information Company and its clients treat as confidential and
which is not generally known within the industry.
(b)
During the Term and thereafter, Contractor (i) shall hold the Confidential
Information in strictest confidence, take all reasonable precautions to prevent the
inadvertent disclosure of the Confidential Information to any unauthorized person, and
follow 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 Company's trade secrets to attempt to solicit, induce, recruit, or take away
Company's clients or customers; (iv) shall not 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) shall promptly and fully advise

Appendix B: The Written Agreement (Continued)

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


unauthorized use or disclosure of which Contractor becomes aware.
If Contractor receives any subpoena or becomes subject to any legal
(c)
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 disclosure of Confidential Information, by way of a motion to
quash or otherwise, Contractor agrees to not disclose any Confidential Information whi le
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 any 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,
vendor, or consultant of Company or its affiliates during the Term 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 liatcs 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 affil iates, 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 of 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 possession, custody or control, including, without limitation,
all keys, access cards, credit cards, computer hardware and software, documents, records,

10

Appendix B: The Written Agreement (Continued)

policies, marketing information, design information, specifications and plans, data base
information and lists, and any other property or information that Contractor has or had
relating to Company (whether those materia.ls are in paper or computer-stored form), and
including but not limited to any documents containing, summarizing or describing any
Confidential Information.
5.6
.Judicial Modification. If the scope or enforceability of the covenants and
restrictions in 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
o f 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 performance of
the obligations set forth in this Article V, without having to prove the inadequacy of the
available remedies at law and without being required to post a bond or security; to obtain
monetary compensation for damages sustained as a result of such breach; and to recover
reasonable attorneys' fees, costs and expenses incurred as a result of such breach or
threatened breach.

ARTICLE VI
MISCELLANEOUS
6.1
Assignability. Company may unilaterally assign this 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
shall be held to be invalid or unenforceable or subject to modification pursuant to Section
5.6 above, the remaining terms and provisions hereof shall not be aiTected thereby.
Contractor's obligations in Article V shall survive and continue in full force
notwithstanding the termination of Contractor's employment for any reason.
6.3
Notices. Any notices, consents or other communications required or
permitted to be sent or given hereunder shall be in writing and shall be deemed properly

11

Appendix B: The Written Agreement (Continued)

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
transmitted by e-mail (with a copy sent by first-class mail), in which case the date of
delivery shall be the date of transmission, or if after 5:00P.M., the next business day. If
not personal ly delivered, notice shall be sent using the addresses set forth below:
If to Contractor, to the address listed 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
241h Floor
New York, Y 10017
hellisen@sandelaw.com
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
Waivers. No provision of this Agreement may be waived except by a
writing executed and delivered by the party against whom waiver is sought. Any such
written 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
Governing Law. This Agreement 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, and 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 relief, 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 injunctive or other equitable

12

Appendix B: The Written Agreement (Continued)

relief, including but not limited to relief for a breach by the Contractor of any of the
provisions of Article V of this 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 duties hereunder; 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.
[Signature page follows]

13

Appendix B: The Written Agreement (Continued)

IN WITNESS WHEREOF, Company and Contractor have duly executed this


Agreement as of the Effective Date.

COMPANY:

ELEMENTAL PATH INC.

By: ~c::=--

Name: 0~"""' J C->1

Title:~ut\ d e.- r-

Jy

CONTRACTOR:

;)t->".5I. J\ C-?l(fc,.tJ
Name:
\1 ( fMC ,?{ ( If<:
Address:

rJ1

14

f'/'1 I~-::; II

1./ Y!,t_..::TL tc/l"r -f/ _{"0 7'

Appendix B: The Written Agreement (Continued)

APPENDIX A
DESCRIPTION OF SERVICES

Product design
User group testing
3D modeling/renderings
Research on various topics/subjects
Sourcing of components
Identification & management of vendors
Other duties as assigned

15

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


Funding; My work featured in ABC and MSNBC news.
+a
e ~SroKh~-------------'-'
https://www k.ickstartcr.Com/prOJCCts/5ll717158/COgnitoyslntcrnrlCOnnectedsmart-toys-thi!tlcarn/p05ts/1194()61

-----------

KICKSTAITEI

Discover

Stan

Search Projects

CogniToys: Internet-connected Smart Toys that Learn and Grow

We bring toys to life with


speech and a pe rson ality,
allowing them to interactively
engage and grow with a child.

Created b y

Elemental Path

2,256 backers pledged $275,000 to help


bring this project to life.

Campaign

U pdates

Comments (168)

Updatel10 0

Production Update
2 Comments

like

19 ikas

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 the CogniToys Dinos ordered
last month. We're happy to report that delivery for all of our Kickstarter backers is right on
schedule!
You all helped bring the CogniToys Dino to life and we couldn't be more thankful! Because of
your support, we've received a ton of coverage at events and in a variety of news outlets, most
recently at ABC and MSNBC. See the actual segment here!

16

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

17

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. IBMs stock increased by 1% in the following week.

18

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


3/2015.

19

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/

clnet

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 bear
Even so, those concerns illustrate the time it may take for people to beco me comfo rtable with new
connected technologies, especially those fo r child ren.

"

THIS

.-

TJ

THIS

,,

- '
~

Elemental Path co-founders Donald Coolidge, left, and Benini at the company's Manhattan office.

20

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/

clnet

Reviews

News

Vtdeo

HowTo

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

Speak. toy! Welcome to the age of


your teddy bear
Elemental Path and ToyTalk hope to p ioneer interactive toys. But will kids and p arent
and dinosaurs?
by Ben Fox Rubin 'II @b enfoxrubin I May 23, 2015 5:00 AM PDT

THI

At Elemental Path's office with co-founder JP Benini and a prototype of his company's talking dinosaur.

21

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


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

i1

Twrttt... (US} hnps:/ twittt r.com

--

0.. Nystatin

'-

llcognita 0.

Have an account? Log on

Stefan Riedel So I~Rie~e ISH Mar 16


G
3rd Highlight #cognitoy #elementalpath prasentiert Dino John powered by IBM
watson #CeBIT2015 #obmeebit
Voew translabon

22

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

23

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 between
myself 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 defendants counsel Atty. Eli Shahmoon prepared an Independent Contractors
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
<donald@majestykapps.com> wrote:
Did you have any additional questions/comments with the contractors agreement
that 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 a
contractors agreement as its a commitment to pay a certain amount and has
certain tangibles.

24

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. The
Company was satisfied with my work product. In The Companys own words:
THE original Dino prototype just got back from making a big splash at CeBIT,
the worlds largest IT expo, held in Hannover, Germany. "Grner KnuddelDino(Cuddly Green Dino) was instantly picked up and loved by the
international press! Brush up on your German and be on the lookout for those
articles as we continuously update our website and Facebook pages.
Source: https://www.kickstarter.com/projects/522717158/cognitoys-internetconnected-smart-toys-that-learn/posts/1172726
The quantity and quality of my work outdid all of the defendants 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 unprogrammed 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.

25

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 is
how YOU sent me the invoices and how we proceeded. It is in the contract as biweekly 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 are going to lobby for additional money because of a typo then I will need an
entire 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 you
are owed but will not allow for unreasonable back tracking now that the
engagement 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 biweekly. However, Mr. Coolidge then states above that these previous bi-monthly invoices were
incorrect - whereby confirming the validity of The Written Agreements 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. Coolidges specifications.
26

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 Agreements 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 Agreements 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 bemonthly, we can. Please break down in a digestible way the total amount you
were paid 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 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 of
hand.
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 biweekly pay periods. The attached excel document shows the breakdown. The
27

total due is $21,604.19, and until now Elemental Path has paid $19.479.16
(excluding reimbursement for expenses). Therefore Elemental Path 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".
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 Elemental Path, and any further claims to
additional monies due (such as, but not limited to, the 5 weekends I worked
overtime; the discount of $977.50 given as a gesture in anticipation of equity; or
using my name and picture, falsely as "CPO", to generate revenue from
investors).
Please pay the amount due and sign and return the attached termination
agreement 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 12/812/10/2014. 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 defendants counsel did not change the
agreements 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 billed
for 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 @ Elemental
Path; you prepared the attached contract. Donald seems to be having an issue
about 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 see
the discussion below. Perhaps you could "talk some sense" into Donald about the
reality of written contracts? I would really like to be paid for my work and avoid
arbitration. Your professional help would be much appreciated.
Thanks,
Jessica Cohen
28

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 us
to represent you on an issue with them.
You are welcome to suggest to Don that he contact us if he has any questions
about 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;
29

(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 the
charges 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 my
services 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 defendants 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 damage
my 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.

30

Appendix I: The Companys Initial Compensation Questions


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Re: Quick update


Donald Coolidge [donald@majestykapps.com]
Sent: 12111201411 :59 AM

To:

"Jessica Cohen" <info@jessicacohen.com>

I am not going to be back until Wednesday. Currently driving to Boston for some meetings. Lets meet Wednesday at 6pm (or
later) or Thursday at 11 am. Do either of those work for you?
I will get this invoice out. I can try now with Paypal or if you are in the area you can drop by the office and pick 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 think 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 would your full-time salary be (with no equity).
4. What would your equity +cash 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 right 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 <info@jessicacohen.com> wrote:

Hi Donald,
Welcome back to c hilly NYC!
When are you free to meet this week?
Please also remember to take care of my invoice via paypal or check, today, if possible. My paypal
acct is accounting@tambino .com.
Th anks,
Jessica
-------- Original Message -------Subject: Quick update
From: Donald Coolidge <donald@majestykapps.com>
Date: Fri, November 28, 2014 3 :06pm
To: Jessica Cohen <info@jessicacohen .com >
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 definitely meet Thursday or Friday in
person to discuss everything as wel l.

512612015 II :25 A

I of2

31

APPENDIX E: The Defendants Counsel Prepared the Independent Contractors Agreement on


12/23/2014.

32

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

33

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

Elemental Path Mail - Signed Contractors Agreement

https://mail.google.com/maiVu/O/?ui; 2&ik; 650a2 1633 ! & view; pt&q; je...

Jessica Cohen <jess@elementalpath.com>

Signed Contractors Agreement


1 message
Donald Coolidge <donald@majestykapps.com>
To: Jessica Cohen <jess@elementalpath.com>

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

Attached is the signed agreement.


Thanks!!

Donald Coolidge
Co-Founder and CEO
donald@majestykapps.com
261 W 35th ST, Suite 1004
New York, NY 10001
518.335.9622
~

Jessica Cohen Signed Contractors Agreement. pdf


8790K

34

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

35

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

36

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

37

APPENDIX L: The Defendant Disputes the Payments


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Re:checks
Donald Coolidge [donald@majestykapps.com]

Sent: 3/6/20159:58AM
To:

"Jessica Cohen" <info@jessicacohen.com>

Any chance you could do 3pm? I have a bunch of early afternoon meetings.
Expenses no problem.
In regards to the invoice - its not accurate. We agreed on bi-monthly and that is how 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 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 are 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, It would have to be the afternoon. Let me know how you want to proceed. If this 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 <info@jessicacohen.com> wrote:
Hi Dona ld,
I'd like to stop b y today sometime be t ween
payments, as fo llows:

11 :30-2:00

t o collect p ayment . T here s hould be three

expen ses: $ 160.19


Invoice # 1182 : $3541.62
I nvoice # 1183: $2125 .03
When is th e best time to stop by?
T hanks !
Jess ica

Donald Coolidge
Co-Founder and CEO
donald@majestykapps.com
261 W 35th ST, S uite 1004
New York, NY 10001
5 18.335.9622

Copyright 2003-2015. All rights reserved.

5/23/2015 4:46 p

I of I

38

APPENDIX M: Defendant Again Disputes Payment, Threatens to Blacklist


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Re:checks
Donald Coolidge [donald@majestykapps.com]
Sent: 3/10/201512:03 PM
To:

"Jessica Cohen" <info@jessicacohen.com>

Hi Jessica. Hope you had a good weekend. I wrote you a check 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 not 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 paid 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 make 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 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
of hand. Again, I wish you nothing but the best.
Best,
Don
On Fri , Mar 6, 2015 at 1:34 PM, Jessica Cohen d nfo@jessicacohen.com> 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, please mail the payment to 511 Avenue of t he Americas
#504, New York NY 10011.
Th e invoice attached (again) shows all of the bills/ payments up until now for any further questions
you might have about the billing, and the agreement . (Scroll down to t he bottom of the invoice 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 agreement to go by.
You are welcome to bring Calvin in to th is thread. Keep in mind that consistent with th e concept of
'work-for- hire', that until payment is rendered for the work, then it does not fully belong to
Elemental Path.
Please process payment in full promptly.
Regards,
Jessica

-------- Original Message - ------Subject: Re: checks


From: Donald Coolidge < donald@majestvkapps.com >
Date: Fri, March 06, 2015 9:58 am
To: Jessica Coh en < info@jessicacohen .com >
Any chance you could do 3pm? I have a bunch of early afternoon meetings.
Expenses no problem .

I of2

5/29/2015 8:23 A

39

APPENDIX N: Multiple attempts to notify the defendants counsel and collect payment for services
rendered.

40

APPENDIX O: Request for payment and explanation of charges.


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FYI -Our agreement with Jessica was for $75,000 per year.
---------- Forwarded message ---------From: Jessica Cohen < info@jessicacohen.com >
Date: Mon, Mar 16, 2015 at 5:16PM
Subject: Elemental Path ref. #790579
To: Donald Coolidge < donald@majestykaoos.com >
Cc: Eli Shahmoon < eshahmoon@sandelaw .com >, nydocs@fkm law .com

Hello Donald,
Article II, 2(a) of the "INDEPENDENT CONTARCTOR 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 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 days 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 was 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 Elemental Path has paid $19.479.16
(excluding reimbursement for expenses). Therefore Elemental Path 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 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
overtime; t he discount of $907 given as a gesture in anticipation of equity; or
using my name and picture, falsely as "CPO", to generate revenue from
investors) .
Please pay the amount due and sign and return th e attached termination
agreement withi n 7 days.
Thank you for your prompt cooperation,
Jessica

Donald Coolidge
Co- Founder and CEO
donald@majestykapps.com
261 W 35th ST, Suite 1004
New York, NY 10001
518.335.9622

2 of 3

5126/2015 7: II A

41

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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RE: questions about contract


Jessica Cohen [info@jessicacohen.com]
Sent:

12/ 12/2014 11 :30 AM

To:

"Donald Coolidge" <donald@majestykapps.com>

That would be fine.


-------- Original Message -------Subject: Re : questions about contract
From: Donald Coolidge < donald@majestykapps.com >
Date: Fri, December 12, 2014 10:52 am
To: Jessica Cohen < info@jessicacohen.com >
Good points. I'll make some changes. How about I move the start date to 12/8?

Sent from my iPhone


On Dec 12, 2014, at 10:49 AM, Jessica Cohen < info@jessicacohen .com > wrote:
Hi Donald,
Thanks for being prompt with the agreement. It looks fine. There are a few questions for
you and/or your attorney:
Preamble : start date 12/ 11/2014- does this mean I should invoice you for my
hours onsite and offsite prior to 12/11, it was about 3 biz days days total.
II: 2.1: what are applicable deductions?
III: 3.1: The scope of the IP needs to be limited to the IP that I create in relation to
this project, during work hours, and for the durat ion of my employment; I have side
projects like my jewelry and need to be able to register copyrights in my own name
for t hose.
III: 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 during and after
this project on different (but not competing) projects like my jewelry.
Best,
Jessica

Copyright 2003-20 15. All rights reserved.

511912015 2:07 p

I of I

42

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

Termination Agreement
Between Elemental Path Inc. and Jessica 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 December 11, 2014 and terminated on

3/1/2015 (inclusive).
2. Elemental Path Inc. w ill pay $2125.03 to Jessica Cohen within 7 days, for a total of $21,604.19 for
services rendered between 12/08/2014 to 03/ 01/2015.
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 f reely practice her
trade.
6. Upon fulfillment of the above, Jessica Cohen shall waive any claims:
(A) to the Intellectual Property wh ich she created on behalf of Elemental Path;
(B) of equity or options in Elemental Path;

(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.

Signed:

Jessica Cohen, Contractor

Donald Coolidge, Elemental Path Inc.

Date

Date

43

APPENDIX R: The Defendants Dismissal of My Requests for Payment and for Signature on the
Termination Agreement; Bad Faith Statements
Print :: Workspace Webmail

https://emaill O.secureserver.net/window/print/?f=html&h=385809376&ui= I

RE: Fwd: Elemental Path ref. #790579


Jessica Cohen [info@jessicacohen.com]
Sent: 3/17/201510:00 AM

To:

"Donald Coolidge" <donald@majestykapps.com>, "Calvin Chu" <Calvin@thech.us>

Cc:

fkmlaw@nydocs.com, "Eli Shahmoon" <eshahmoon@sandelaw.com>

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 you are out of the country (for the sole purpose of using my work for
financial gain -see attached). I can wait until next Monday for payment and a signature on t he
termination agreement.
Jessica
-------- Original Message -------Subject: Fwd: Elemental Path ref. #790579
From: Donald Coolidge < donald@majestvkapps.com >
Date: Mon, March 16, 2015 5:54pm
To: Calvin Chu < calvin@thech .us > , Jessica Cohen < I nfo@jessicacohen.com >
Hey Calvin. Wanted to put this on your rada r. I am out of the country and we will loop back
to this once I return.
Thanks,
Don
FYI -Our agreement with Jessica was for $75,000 per year.
---------- Forwarded message ---------From: Jessica Cohen < info@jessicaco hen .com >
Date: Mon, Mar 16, 2015 at 5:16PM
Subject: Elemental Path ref. #790579
To: Donald Coolidge < donald@majestykapps.com >
Cc: Eli Shahmoon < eshahmoon@sandelaw.com >, nydocs @fkmlaw .com

Hello Donald,
Article II, 2(a) of the "INDEPENDENT CONTARCTOR AGREEMENT" states: "Contractor shall
be paid at the bi-weekly rate of $3541.67(the "Base Sala ry"), payable bi-weekly in
accordance with the Company's regular payroll practices."
The agreement start date was 12/11/2014. At your email requ est, I consented to backdate
the start date to 12/08/2014, to include 3 days of work as a freelancer at $85/hr.
Backdating this start date constitutes a discou 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 -weekly pay
periods. The attached excel document shows the breakdown. The total due is $21,604.19,
and until now Elemental Path has paid $19.479.16 (excluding reimbu rsement for expenses).
Therefore Elemental Path 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".

I of2

5/29/20 15 8:48 A

44

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 defendants 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 we
will 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. Coolidges 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 a
large part of our funding. . . .We are looking at all avenues and what we
45

appreciate the most is flexibility. As cash is tight right 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.
Are you able to do all equity, until we get funding?
Regarding flexibility, it is clear from Mr. Coolidges 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 you
can send to me so my attorney can review and advise me before Thursday? I'm
new 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 least
a large part of our funding. OK
2. What amount of time do you have available and if needed could you do this
full 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 be
comfortable 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.
46

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 Years 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
Companys 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 low
salary 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 overtime hours; and to commercialize full ownership
of The Company and my work product without properly compensating me for it.
2.17.
I claim that in our initial conversation regarding full-time employment, on 12/8/2014,
privately in Mr. Coolidges office, he offered me $80,000 in salary and 2% equity. I said that
$80,000 was below what I could accept in salary. We then agreed on payments of $3541.67,
47

and Mr. Coolidge said, Well pay you bi-weekly, or bi-monthly, whatever the policy is. He
explained that The Company was currently worth five to six million dollars, so the 2% equity
he was offering was worth $100,000 to $120,000. Mr. Coolidge explained that vested over 4
years, $100,000 4 = $25,000 per year, or, the difference between my low-end salary
requirement of $85,000 and my high-end requirement of $110,000. He explained that if The
Company gets more investments, such as another $10,000,000, then my shares would be
diluted, but their net value would go up. I told Mr. Coolidge that I needed to research the
equity and get back to him. Mr. Coolidge said, No problem. We can reopen this conversation
later when you feel more comfortable. I began working for The Company that day without a
written agreement, according to an oral agreement of 2% equity in a company worth
$5,000,000, and paychecks of $3541.67, to be paid according to the companys payment
schedule which was either bi-weekly or bi-monthly as Mr. Coolidge described.
2.18.
My invoices reflected that oral agreement, because Mr. Coolidge had promised to
compensate me with equity, which would make up the difference for my full salary
requirements. However, since Mr. Coolidge was unwilling to honor that oral equity agreement,
I deferred to The Written Agreement, which Mr. Coolidge had executed and signed, and states
my compensation in very unambiguous, black-and-white terms. However, Mr. Coolidge was not
willing to abide by The Written Agreement either. When I called Mr. Coolidge on his selective
memory about our oral agreement and the enforceability of The Written Agreement, he
attempted to intimidate me into retracting my claims, by threatening to prevent me from
finding work again (APPENDIX M):
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 of
hand.
2.19.
Over the course of the work relationship, I followed up with Mr. Coolidge regarding his
equity offer several times. However in each successive conversation, Mr. Coolidge tried to
renegotiate, deny, postpone, reduce, or alter his offer. After each conversation I followed up
with an email, and each time, Mr. Coolidge carefully and deliberately avoided responding to the
emails.
2.20.
I spoke with Mr. Coolidge again on 12/30/2014 regarding the equity he had offered.
Now that I was already working full-time, Mr. Coolidge denied his original offer of 2% equity.
Now, he said he might be open to 1%, and contingent upon completion of milestones, or, 0.5%
after the Kickstarter campaign in March 2015, and another 0.5% upon delivery of the product in
November 2015. Mr. Coolidge also now hesitated regarding the title of Chief Product Officer.
He claimed that he was concerned that I would soon request a promotion. I asked, Do you
mean a promotion to Vice-President or Co-Founder?, and Mr. Coolidge became alarmed.
2.21.
If Mr. Coolidge had decided to retract his offer of equity for salary, at that point, my
salary should have increased to $110,000, or bi-weekly payments of $4230.76. However Mr.
Coolidge did not offer to compensate me for the difference, and instead chose to string me
along with the false hope of equity.
48

2.22.
On 12/31/2014, I followed up in writing about this oral conversation from 12/30/2014
(APPENDIX V):
hi donald,
i feel like did not 'present my case' very well yesterday regarding the title and
terms we were discussing, in terms of what is relevant for you. may i talk with
you again tomorrow?
regarding the title chief product officer:

the tasks i am doing right now are bona fide CPO tasks: from wikipedia:
"A CPO is responsible for all product-related matters. Usually includes
product conception and development, production in general, innovation,
project management and product management. This position includes
release management and production. In small and mid-sized companies
the CPO typically also play the role of the COO. They typically work on
the product strategy based upon the goals set by the CEO or board
members." and on top of that i am doing IP and industrial design.
i'm willing to sign something saying that i should not expect a different
title for a period of however many months/years you set.

regarding the equity for salary

since i am a contractor, my salary is your total cost; if i were an


employee my total cost would be 20% (?) higher, so i am saving you a
lot of money; i'll be paying my own wage taxes and health insurance out
of that, rather than the company paying it
i took two cuts of $1k each already, once as a discount for the dinosaur
design invoice (when you guys were pre-funding), and the other time for
the three days of consulting time prior to being hired, which were rolled
into the monthly salary

Mr. Coolidge indirectly responded that day with the following message, in a separate email
thread that did not include the word equity (APPENDIX W):
Dec On Dec 31, 2014, at 5:09 PM, Donald Coolidge
<donald@majestykapps.com> wrote:
Yes. Shoot me over the invoice. Heading back now.
I'm didn't ignore your other emails :) I'll loop back on them shortly
However, I did not hear back from Mr. Coolidge about these evasively-described other emails.
I did receive an indirect response regarding the position of Chief Product Officer, via Mr. Garcia
who then sent me business cards with this title (APPENDIX Z).
2.23.
I followed up again with Mr. Coolidge by email on 1/12/2015, prior to signing The
Written Agreement:

49

I understood via Mark's business cards that you had approved the title CPO.
Does this mean I am a real corporate officer?
We had also discussed milestone-based equity; should that be in this agreement
or a second agreement? (APPENDIX F)
Mr. Coolidge did not respond to this third email regarding equity.
2.24.
On 1/13/2015, I contacted Mr. Coolidge again, with the content of the email expressed
as the email title (APPENDIX U):
Let me know when you want to discuss terms, patent, & one-pager
Mr. Coolidge did not respond to this fourth email regarding equity.
2.25.
One week later, I confronted Mr. Coolidge about the equity offer. He said: If you
wanted equity, your salary would have to go down to $50k or $60k a year. 1% would cost you
$10k in salary. So, again, I followed up with him by email (APPENDIX X):
Also I wanted to check if you had checked with the team about 1% equity for
$10k in salary.
Mr. Coolidge did not respond to this fifth email regarding equity. He did say to me, And about
that other thing, that should be fine, I just need to check it with the guys. I did not hear back
from Mr. Coolidge regarding any such consultation with the management team.
2.26.
By 2/24/2015, I was confused by Mr. Coolidge, and unable to determine the cause of
the delay in serving me the equity paperwork (APPENDIX Y):
Hi Donald,
Regarding the equity discussions we were having, I wanted to let you know that I
do not have any past or pending lawsuits, or any criminal background, or any
other liabilities (other than some small biz loans which I told you about). I wasn't
sure if that was a concern on your part.
Jessica
Mr. Coolidge did not respond to this sixth email regarding equity.
2.27.
If, theoretically, I had invented the content in these 6 emails (which I did not), a shrewd
business owner would have swiftly and deliberately clarified, in writing, that no such
conversations took place. However, by not answering any of these emails, Mr. Coolidge avoided
a confrontation with me: he did wish to maintain my services and my credentials on staff, but
did not wish to pay the amount he had originally promised. By confirming my emails, Mr.
Coolidge would lose partial ownership of his company. By denying my emails, he would have
had to increase my compensation, or risk losing Elemental Paths only employee, only female
employee, and top technical talent. Therefore Mr. Coolidge deftly avoided answering these
50

emails in writing, for the purpose of continued delivery of my work product at below-market
compensation.
2.28.
Between 8/12/2014 and 3/2/2015, Mr. Coolidge sent me 378 email messages, but,
refrained from confirming or denying these 6 emails regarding our equity conversations. Nonresponse, indirect and evasive responses, to 6 emails that specifically addressed compensation
- among 378 emails that he did write that addressed receipt of my work product - is indicative
of a pattern of avoidance. Even without written direct confirmation from the defendant on
these emails, the defendants behavior indirectly confirms that these conversations took place,
meaning, he did offer me equity in exchange for a lower salary in our conversation on
12/8/2014, and in his recruitment email from 12/1/2014.
2.29.
Mr. Coolidge made the following oral excuses at other times when I confronted him
about his oral offer of equity:
2.29.1.1. The paperwork is very complicated. We dont have the paperwork set up for
Elemental Path yet.
2.29.1.2.

Dont worry, [we can process the paperwork] after the Kickstarter campaign.

2.29.1.3. We gave JP 10% equity in Majestyk Apps, not Elemental Path. Were going to
convert half his shares to Elemental Path. The paperwork for Elemental Path is not
ready.
2.29.1.4. [Regarding the equity] Its a big red flag for me that you havent posted your
title as Chief Product Officer for Elemental Path on your LinkedIn profile.
2.29.1.5.

Quit bugging me about the equity.

2.29.1.6.

Im a man of my word.

2.29.1.7.

Give me another week to think about it, and Ill either respond or I wont.

2.29.1.8.

This is all in your head.

2.29.1.9.

Youre being greedy.

2.29.1.10. Thats really good ju-ju [that you are willing to [reduce your salary even further
for equity]. That means that you believe in our company.
2.29.1.11. About that other thing, that should be fine. I just need to clear it with the guys.
2.29.1.12. We gave you a job. You should be happy about that.
2.29.1.13. [Instead of equity], we can offer you stock options, since you are Employee #1.
Ill look in to that.

51

2.30.
While some of these statements are pure intimidation, some cite bureaucratic reasons
for not furnishing the paperwork. Yet, during my time working with the defendant, The
Company successfully processed signed paperwork for company ownership for five other
individuals: Investor Stephen Krauss, Co-Founder Arthur Tu, CTO JP Benini, Employee Eric
Schlanger, and another investor who paid $50,000 in return for stock options.
2.31.
Mr. Coolidge baited me to work for The Company with promise of equity, since The
Company at that time did not have funding to pay a full salary. He manipulated my trust in our
oral agreement, and manipulated the de facto situation of having already begun working for
The Company based on that trust and oral agreement. The trust was built upon timely payment
of the previous invoices, professional long-term relationships with mutual colleagues, and
required participation in office bonding parties. The defendant abused this trust to sign me
on reduced-fee service agreement, and continued to manipulate my trust in him to extract
services at a below-market rate, while deliberately delaying serving me the equity paperwork,
with a series of excuses and false promises.
2.32.
My termination of The Written Agreement does not mean that I accepted the lack of
paperwork for the oral offer of equity, but it did mean that I would no longer provide services
for the defendant without proper compensation. In the two week advance notice period, the
defendant did not remedy the breach of oral contract.
2.33.
Before I began working with The Company, The Company had no assets: it had no
patents, no products, and no sales contracts. The defendant advertises that it has an exclusive
license to use the IBM supercomputer, however, this license is not exclusive and is fairly easy to
obtain, as 150 other developers have already done so. The defendant also advertises that it
possesses an extremely advanced and unique artificial intelligence. In reality, the Companys
technology is good salesmanship that packages a rudimentary speech-to-text protocol that can
handle prerecorded question and answer sessions. After I worked with The Company for 12+
weeks, The Company had: 10 physical prototypes that have been photographed extensively in
the news, 2 US patent filings, 2 US trademark filings, and 1 copyright filing; successful purchase
and transfer of the domain name, cognitoys.com; and 2 top-notch engineer contractors. I saved
The Company over $250,000 in royalty fees by noticing a stipulation in The Companys contract
with a vendor, Advanced Digital, whom the company had alienated, and then successfully
sourced a world-class technical expert as an alternate vendor via my Stanford alumni network.
After the publication of my work in the press, The Company received an oral valuation of
$50,000,000 from the CEO of LeapFrog Inc., according to an account by CTO Mr. JP Benini, who
had visited their offices in California, with my prototype.
2.34.
Therefore, 2% equity of The Company is currently valued at $1,000,000, and I demand
to be compensated accordingly.
2.35.

The defendants behavior is egregious and unconscionable.

2.36.
Either Defendant has breached The Written Agreement by using my Intellectual
Property without paying me accordingly, or the Defendant has breached the oral agreement
52

which it claims supersedes the written agreement. I ask the court to look outside the four
corners of The Written Agreement, in a matter of fairness, to properly compensate me for my
work as agreed upon orally, as the key factor in the Companys success.
2.37.
By reason of the facts and circumstances stated above, I demand judgment against the
Defendant for fraud and breach of oral contract, in the sum of $1,000,000, together with any
other relief the court finds to be just and proper.

53

APPENDIX S: Average Chief Product Officer Salary in New York City

54

APPENDIX T: A Follow-Up Email to Mr. Coolidge Regarding Equity

Re: equity documents, answers to questions


Donald Coolidge [donald@majestykapps.com]
Sent 121312014 8:06PM
To:

Jessica Cohen <info@jessicacohen.com>

Thanks Jessica. Sorry for the delay on ALL my communications. It was frustrating for me traveling as my hotel wifi was down.
Lets talk about this all more tomorrow morning so I can provide the appropriate context to it. I have really enjoyed working with you
thus far and would love to work with you more as wei. Your answers to my above questions were a big help :)
See you tomorrow morning. If you have any other questions prior please let me know!
On Tue, Dec 2, 201 4 at 8:03 AM, Jessica Cohen <info@jessicacohen.com> wrote:
Hi Donald,
Do you have any contracts or documents regarding the equity agreement that you can send to me so
my attorney can review and advise me before Thursday? I'm new 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 least a large part of our
funding . OK
2. What amount of time do you have ava lable and if needed could you do this full time? I can work now
about 4 days or 30 hours a week due to two other contract pro]ects ; I m1qht be available tull t1me 1n 2
months. {Don't worry, I can do in 30 hrsjweek what I've seen takes some folks 1 month. )
3. What would your full-time salary be (with no equityj . I t depends on the size of the company, the
benefits, flexibility, etc. It could range from $85-llOK. Below that I can make more freelancinq.
4. What would your equity + cash salary be or what ran!']e could you be comfortable with? I would need
$3500L!:no 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.
6 . Are you comfortable handlin!l the sourcing of parts and supply chain? I can do a lot of the
paperwork, cost documents, and vendor interface, but would need to outsource Vitaly, an
electromechanical engineer, to specify the components and factories, which would be an additional
expense. However we could save since we would not have to 12ay for me or him to travel to China, as
he is going anyway
7, When would you be available, I can start next week.
Here is what I can bring to this project:
package design ( the graphics ; the engineering would be done by factory)
industrial design ( the look and feel, ergonomics)
user testing
process management, gant chart management
safety testing
manage subcontractors ( such as marketing, mechanical engineer)
branding design ( logo, images for website, etc)
Best,
Jessica

majestyk.

Donald Coolidge
Co-Founder and CEO
donald@majestykapps.com
261 W 35th ST. Suite 1004
New York, NY 10001
518.335.9622

Copyri,ht 2003-2015. All rights reserved.

55

APPENDIX U: A Follow-Up Email to Mr. Coolidge Regarding Equity

56

APPENDIX V: A Follow-Up Email to Mr. Coolidge Regarding Equity

57

APPENDIX W: A Follow-Up Email to Mr. Coolidge Regarding Equity

58

APPENDIX X: A Follow-Up Email to Mr. Coolidge Regarding Equity

59

APPENDIX Y: A Follow-Up Email to Mr. Coolidge Regarding Equity

60

3. Wilful and Intentional Bad Dealings


3.1. Threatening to Blacklist, Injunction Against Tortious Interference, Infliction of Emotional
Distress
3.1.1.While attempting to collect the service fees that the defendant owed me, according to The
Written Agreement, Mr. Coolidge wrote in an email on 3/10/2015,
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.
Making claims to the IP is fully unprofessional and not the way you want to go. .
. . 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 of
hand. (APPENDIX M).
3.1.2.Mr. Coolidge threatens in the email that my compliance with his demands (to cancel the
invoice, claims to equity, and claims to the intellectual property) would allow me to remain
in Mr. Coolidges professional network; conversely, non-compliance would remove me
from his network. The network of New York City consumer electronics startups is small
and familiar, so one business owner could conceivably limit a service providers
employment opportunities, if so inclined. This interference could occur by blacklisting me
to prevent me from gaining employment, or contacting my future employers or clients
with spurious information.
3.1.3.I hope that Mr. Coolidge was not suggesting any other type of violence.
3.1.4.Threatening to blacklist me is a threat of tortious interference with an employment
relationship. According to N.Y. LAB. LAW 704 : NY Code - Section 704: Unfair labor
practices,
It shall be an unfair labor practice for an employer . . . 2. To prepare, maintain,
distribute or circulate any blacklist of individuals for the purpose of preventing
any of such individuals from obtaining or retaining employment because of the
exercise by such individuals of any of the rights guaranteed by section seven
hundred three.
3.1.5.Mr. Coolidge chose to use intimidation tactics, and to intentionally inflict emotional
distress, i.e. fear of unemployment, to deny payment paying my service fees, and to deny
executing an equity agreement as orally promised.
3.1.6.This type of threatening behavior is unfortunately a pattern with Mr. Coolidge and one of
the reasons I became disillusioned with The Company.
At 7pm on 1/26/2015, the defendant approached me at my desk, in the presence of two
Company owners, CTO JP Benini and President Sean OShea. Mr. Coolidge asked me if the
prototype would be ready in time for a video shooting. I replied I hope so. I believe so.
61

Everything is on schedule. The defendant said Well, if its not good, youre fired. I
asked, What? Mr. Coolidge repeated, with a straight face: If its not good, youre fired.
Considering that I had worked the previous two days (Saturday and Sunday, 1/24/2015
and 1/25/2015) alone in the office to achieve this goal, I was confused and discouraged by
this behavior, and answered, I guess no good deed goes unpunished. Mr. Benini and Mr.
OShea were silent. Tuesday 1/27/2015 the office was closed due to snow. On Wednesday
morning 1/28/2015 at 10am, I approached Mr. Coolidge about his threat, and explained
how inappropriate and demotivating his comments were, especially after having worked
all the previous weekend, unpaid, to meet some fairly unrealistic demands. Mr. Coolidge
said: I dont remember saying that. When did I say that? Sean, can you come here
please? ... Im very sorry, it was a joke. I make jokes like that all the time. I am always
threatening to fire other employees. Watch how I tell JP hes fired.
Although I was discouraged, I continued to work as a gesture of professionalism in order to
complete the major milestones expected of me.
3.2. False Representations Chief Product Officer
3.2.1.The Company interviewed me for the position of Chief Product Officer (APPENDIX I), and
granted me this title, by ordering business cards for me with this title (APPENDIX Z), and
providing an email signature format with this title (APPENDIX AA). I used this email format
to communicate with hundreds of vendors and my professional contacts.
3.2.2.However, the office of Chief Product Officer was never incorporated into The Company bylaws of Elemental Path Inc., with my name or any other name; nor was I included in any
corporate governance meetings; nor granted any authority to legally bind the corporation;
nor introduced to the Board of Directors for election to the position; nor did The Company
uphold any other stipulation of a corporate officer as described in N.Y. BSC. LAW 715 :
NY Code - Section 715: Officers.
3.2.3.Three months, the duration of my work for the Defendant, is enough time for the
Company to process this one page of paperwork.
3.2.4.During my employment, Mr. Coolidge repeatedly complained to me that I did not post my
title as Chief Product Officer on my Linkedin profile Page, saying Thats a big red flag. How
can we give you equity if you wont post your job title on LinkedIn? However, I was
unsure about publicly posting employment information that neither I nor a potential
employer could officially verify.
3.2.5.The Company falsely represented to me and to its investors my role as Chief Product
Officer, and, licensed and encouraged me to falsely represent myself to my professional
colleagues as Chief Product Officer while conducting business on behalf of The Company.
The Company benefited financially from advertising me as a corporate officer, without
actually granting me the rights or responsibilities which are legally associated with a
Corporate Officer, or compensating me commensurate to the industry standard. This
62

afforded The Company the benefit of advertising to investors that it employs a female
officer (when in fact The Company does not employ any female officers, or any paid
female employees), and that it has the financial resources to pay the salary of a Chief
Product Officer (when in fact, The Company paid me less than half of the average
compensation for this position).
3.2.6.Therefore the defendant should compensate me according to the role that was presented
to me and the public, and compensate me for damages for false conveyances, and should
advise all of the third party organizations -to whom I was presented as an Officer for
investment purposes- of such false representations.

3.3. Refusal to Sign a Termination Agreement to Freely Allow Me to Practice My Trade


3.3.1.I asked Mr. Coolidge to sign the termination agreement (APPENDIX Q), which would
release me from this clause in the Independent Contractor Agreement (Appendix B):
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 any other person or
entity:
(a) solicit or accept the business of any person who is or was a client of The
Company or its affiliates during the twelve (12) month period preceding the end
of the Term with respect to services similar to those provided of supplied by
Company or its affiliates;
Mr. Coolidge and Atty. Shahmoon ignored the termination agreement altogether; they did not
even try to negotiate the agreement. Therefore, Mr. Coolidge is de facto preventing me from
working in my field and earning a living. Usually companies that require a non-compete will pay
an employee a salary during the fallow time period. If I had been earning substantial wages for
a long period of time while working for The Company, I may have been able to absorb the wait
period before working again. Locking me in to six or nine months of not being able to practice
my trade, after I earned low wages for only three months, is negligent and unfair labor
practices.
3.4. Therefore I demand an injunction against the defendant to prevent tortious interference with
my future employment; damages for infliction of emotional distress; and punitive damages for
wilful and intentional bad dealings, to deter Mr. Coolidge and others from doing the same, for
$250,000; and I demand $14,733 in employment compensation for every month that the
Defendant has prevented me from working, together with any other relief that the Court finds
to be just and proper.

63

APPENDIX Z: Business Cards Prepared for Me by The Company Stating my Title as Chief Product Officer

8 0 elemental path
[j

JESSICA COHEN jess@elementalpath.com


CHIEF PRODUCT OI'FICER et 917-4367998

64

linl<edin.com'i.VjeSSiacohendesign

APPENDIX AA: My Signature as Chief Product Officer in my Email Correspondence, as Provided by The
Company, and Evidence of My Understanding of An Equity Agreement.
Elemental Path Mail- Re: Co ntractors Agreement

https://mail.goog le.com/mail/u/O/?ui=2&ik=650a21 6331 &view=pt&q=e ..

g=ii0 elemental path

Jessica Cohen <jess@elementalpath.com>

Re: Contractors Agreement


1 message
Jessica Cohen <jess@elementalpath.com>
To: Donald Coolidge <donald@majestykapps.com>

Mon, Jan 12, 20 15 at 11:09 PM

Hey Donald,
Yes, thanks for asking. I understood via Mark's business cards that you had approved the title CPO. Does this mean I
am a real corporate oHicer?
We had also discussed milestone-based equity; should that be in this agreement or a second agreement?
Thx,
Jessica
On Mon, Jan 12, 2015 at 8:50PM, Donald Coolidge <donald@majestykapps.com> wrote :
Did you have any additional questions/comments with the contractors agreement that Eli sent to you? Lets get that
paperwork taken care of.

Donald Coolidge
Co-Founder and CEO
donald@majestykapps.com
261 W 35th ST, Suite 1004
New York, NY 10001
518.335.9622

elemental path
JESSICA C OHEN
CHIEF PRODUCT OFFICER

jess@elementalpath.com

" ' 917.436.7998


www.linkedin.com/in/jessicacohendesign

I of I

2/27/20 15 2: 17 A

65

4. Copyright Infringement, Commercial Use of Intellectual Property without Payment for Transfer of
Rights
4.1. The Intellectual Property that I created, documented, and diligently filed on behalf of the
Company consists of:
4.1.1.US Copyright # 1-1972159391. This consists of a sculptural work of a dinosaur which I
created for The Company (APPENDIX AB). The Company paid me for the design while I was
a freelancer, but has not fully paid for my work in registering the copyright on The
Companys behalf as a full-time contractor.
4.1.2.US Design Patent Application #29517627. This design patent application consists
exclusively of my work, of a dinosaur-shaped device which I created on behalf of The
Company (APPENDIX AC). I was not fully paid for either my creative work or my time in
filing this application on behalf of the defendant.
4.1.3.US Provisional Utility Patent Application #62111549. I collected and drafted all of the
teams work (one simple algorithm, a web interface, and my design) into the specifications
for a provisional patent filing on behalf of The Company (APPENDIX AD).
4.2. My work for the defendant included the creation of original sculptural works, electronic toy
design and development, and business development services including logistics, product
management, and research services.
4.3. The Company has enjoyed substantial commercial gain from marketing this product portfolio as
patent pending, as described on its Kickstarter crowdfunding page:
We've built a patent pending technology that allows kids to directly engage in
intelligent conversation with their toys.
Source: https://www.kickstarter.com/projects/522717158/cognitoys-internetconnected-smart-toys-that-learn/description
And, on its webpage:
Elemental Path. All rights reserved. Elemental Path is a patent pending
product.

And The Company claims that it owns the rights to the intellectual property that I created, as
seen in the copyright signature of its website, www.cognitoys.com (APPENDIX AE).
Note that prior to my arrival, Mr. Coolidge did not understand the concept of a provisional
patent, nor the necessity to file one before seeking capital investment. An investor would not
invest in the Company without a patent portfolio, nor engage in a licensing agreement without
a patent to license.

66

Since the delivery of my work, The Company has used these patent applications to enter into
licensing agreement with the following companies: LeapFrog, Mattel, VTech and others,
according to a recent presentation by Mr. Coolidge, using my work product for demonstration
(APPENDIX AF). The Company claims that their success is due to great technology, The Secret
Sauce. After I drafted the provisional patent, and worked alongside Company staff, it is
apparent that there is no Secret Sauce, or advanced artificial intelligence, but only smoke and
mirrors, comprised of good marketing, patent pending status protecting one very broad,
unoriginal algorithm, and my unique design as the physical sales tool.
4.4. The Company has licensed my work for advertising use by innumerable third parties, among
them IBM, who has profited substantially from my work. A week after prominently displaying
my work throughout a conference for hundreds of industry leaders on 5/7 and 5/8/2015
(Appendix C), IBM common stock rose by 1% in a day.
4.5. As discussed in Section 2 of this Document, Breach of Written Contract, and Section 3, Breach
of Oral Contract, The Company did not pay me in full for the work I delivered.
4.6. Article III of The Written Agreement states:
3.1 Work for Hire. (a) Contractor agrees that all intellectual property and other work
produced by the Contractor related to the Services during the Term (the Intellectual
Property) is work for hire within the meaning of the Copyright Act of 1976, as
amended from time to time, and that the Intellectual Property shall be the sole property of
The 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, copyrights, copyright applications, trademarks and trade
names in the United States and elsewhere.
(c) In the event that it should be determined that any of the Intellectual property does not
qualify as a work made for hire, Contractor will and hereby does assign to Company all
right, title, and interest that it may possess in such Intellectual Property including, but not
limited to, all copyright and proprietary rights relating thereto.
If my work constitutes Work for Hire, then section 3.1.a states that I, the Contractor hereby
assigns to Company, without further compensation for use of my work. However, the
Company never paid the base compensation defined immediately prior in Section 2.1.a of The
Written Agreement, and as evidenced in Section 2 of this Document, Breach of Written
Contract. The Written Agreement stipulates that assignment of the Intellectual Property is
contingent upon compensation. Therefore since The Company has not fulfilled its
responsibilities according to The Written Agreement, then The Company may not claim rights
to my deliverables according to The Written Agreement.
4.7. The Written Agreement described Work for Hire, not Work for Volunteer. The concept of
Work for Hire is commercial in nature. The word hire is defined as:
Full Definition of HIRE
67

1
a:
b:
2
a:
b:

payment for the temporary use of something


payment for labor or personal services : wages
the act or an instance of hiring
the state of being hired : employment

Source: http://www.merriam-webster.com/dictionary/hire
Therefore, the concept of payment is fundamental to the concept of hire.
4.8. If my work does not constitute Work For Hire, The Company still needs to pay me for my
work as an Independent Contractor, as described Section 1.5 of The Agreement. The contract
did not describe me as a Volunteer or Advisor or Intern. An Independent Contractor is by
nature a commercial entity, defined by the Internal Revenue Service as:
Independent Contractor Defined
People such as doctors, dentists, veterinarians, lawyers, accountants, contractors,
subcontractors, public stenographers, or auctioneers who are in an independent
trade, business, or profession in which they offer their services to the general
public are generally independent contractors. The earnings of a person who is
working as an independent contractor are subject to Self-Employment Tax.
Source: http://www.irs.gov/Businesses/Small-Businesses-&-SelfEmployed/Independent-Contractor-Defined
The Company is a for-profit corporation. Therefore relationship between an Independent
Contractor and a Corporation is inherently a commercial, paid relationship. The Company
did not contract with me for volunteer services or donations or just being nice. If so, the
defendant should have provided me with IRS Form 8232 for $3102.53, Noncash Charitable
Contributions, to describe the nature of the unpaid services rendered as per The Written
Agreement. The defendant did not provide such a form for tax reporting.
4.9. The Company does not own inalienable, legally-enforceable rights to my work, without fulfilling
its end of the bargain, namely, payment for services rendered, according to a two-way, legallyenforceable commercial services contract with an Independent Contractor.
4.10.
I notified The Company, and both parties legal counsels, of copyright infringement by
email on 3/6/2015 (APPENDIX M):
Keep in mind that consistent with the concept of 'work-for-hire', that until
payment is rendered for the work, then it does not fully belong to Elemental Path.
Please process payment in full promptly.
Mr. Coolidge dismissed my claim using threatening language, and as described in Section X,
(Appendix):
68

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.
Making claims to the IP is fully unprofessional and not the way you want to go.
4.11.
I notified the defendant of copyright infringement a second time on 3/16/2015, in the
body of an email:
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 Elemental Path, and any further claims to
additional monies due (such as, but not limited to, the 5 weekends I worked
overtime; the discount of $907 given as a gesture in anticipation of equity; or
using my name and picture, falsely as "CPO", to generate revenue from
investors).
And a third time within the termination agreement:
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;
(E) and shall forgo any type of legal action against Elemental Path.
Mr. Coolidge responded on 3/16/2015 (APPENDIX R):
I am out of the country and we will loop back to this once I return.
4.12.
I claim Moral Rights of my dinosaur designs, as described in The Intellectual Property. At
no point did I waive my Moral Rights, not in The Written Agreement nor any other agreement.
4.13.
The defendant continues to use my work and to relicense it for substantial commercial
gain (APPENDIX AF). Therefore due to lack of payment and lack of cooperation in settling
ownership of my work, and in consideration of the 10-fold to 50-fold increase in the Company
valuation as a direct result of my work, I demand judgment against the defendant in the sum of
$5,000,000, together with any other relief that the Court finds to be just and proper.

69

APPENDIX AB: US Copyright # 1-1972159391. Showing the Product I designed, and the filing I prepared
for The Company as an inventor

70

APPENDIX AC: U.S. Design Patent Application #29517627, Showing the Product I designed, and the filing
I prepared for The Company as an inventor

"\
\

Fig. 1

71

APPENDIX AD: A Drawing from U.S. Provisional Utility Patent Application #62111549, Showing the
Product I designed, and the filing I prepared for The Company as an inventor

Elemental Path Inc. Provisional Patent Application Drawing Sheets Jan. 15, 2015

(1)

d
(1)

(2)

Fig. 2
Pag e 1 of 21

72

Fig. 1

APPENDIX AD (Continued): A Drawing from U.S. Provisional Utility Patent Application #62111549,
Showing the Product I designed, and the filing I prepared for The Company as an inventor

Elemental Path Inc. Provisional Patent Applicatio n Drawing Sheets Jan. 15, 2015

(1)
(3) ~--f----#-+
(4)

(3)

Fig. 3

(4)

(7)

Fig. 4

Page 2 of 21

73

APPENDIX AE: The Company claims copyright ownership of my [unpaid] work on its website,
www.cognitoys.com. The image shows two of my designs, a red dinosaur and a green dinosaur.

74

APPENDIX AF: The Company has commercially licensed my work, and/or used my work as a sales tool to
license technology that does not yet exist

75

5. Violation of New York Civil Rights Law 51, Use of my likeness and credentials for advertising,
against multiple oral requests and three written notices.
5.1. New York Civil Rights Law 51 Section 51: Action for injunction and for damages States:
Any person whose name, portrait, picture or voice is used within this state for
advertising purposes or for the purposes of trade without the written consent first
obtained as above provided may maintain an equitable action in the supreme court of this
state against the person, firm or corporation so using his name, portrait, picture or voice,
to prevent and restrain the use thereof; and may also sue and recover damages for any
injuries sustained by reason of such use and if the defendant shall have knowingly used
such person's name, portrait, picture or voice in such manner as is forbidden or declared
to be unlawful by section fifty of this article, the jury, in its discretion, may award
exemplary damages.
5.2. On 3/15/2015, after I was no longer working for the defendant, the defendant posted a picture
of me, showing me working in their office, onto its parent company website,
www.majestykapps.com. A non-profit internet tracking service recorded these published
changes at http://web.archive.org/web/20150324083929/http://www.majestykapps.com.
(Appendix AG).
5.3. The defendant did not ask my permission to take this photograph or to use this image. In fact,
during my employment, I had repeatedly requested Mr. Coolidge and Mr. Garcia, a web
designer at Majestyk Apps, not to use my likeness in any publicly-displayed materials, citing
privacy concerns.
5.4. On 3/16/2015, I communicated my lack of consent for using my image, in a termination notice,
sent by email to Mr. Coolidge and Atty. Shahmoon, counsel to The Company:
Elemental Path Inc. has removed Jessica Cohen's name, face, and resume, from
marketing materials, including but not limited to, investor pitch decks.
(APPENDIX Q)
The Company did not remove my picture from the website.
5.5. On 4/26/2015, I again requested by email that the defendant remove my picture from their
website:
my photo on the Majestyk Apps homepage
Jessica Cohen [info@jessicacohen.com]
Sent: Apr 26, 10:02 pm
To: Mark Garcia
Cc: Donald Coolidge
Hello Mark,
I hope you are doing well.
Please remove my picture ASAP from the Majestyk Apps homepage. You did
not and do not have my permission to use my photo in any materials for
Elemental Path or Majestyk Apps.
76

Thanks,
Jessica
(Appendix AH)
I received an automated email response from Mr. Coolidge:
I am currently traveling to Asia. I will have little to no internet connectivity
during my trip.
5.6. On April 29, 2015, the defendants employee Mark Garcia, a web designer, emailed me,
No problem. Will get that updated asap. (Appendix AH)
5.7. On 5/7/2015, the defendant still had not removed my image, so my attorney sent the
defendants counsel a third written request, a Cease and Desist notice (Appendix AI):
Ms. Cohen informs us that she previously worked as an independent contractor
for your client. Ms. Cohen no longer performs services for Elemental Path, Inc.,
and did not have any commercial agreement its parent company Majestyk Apps.
During her time working with your client, Ms. Cohen repeatedly denied your
client's request to use her image in public marketing materials as she was
concerned about her privacy. On March 2, 2015 and April 26, 2015, Ms. Cohen
communicated in writing with Chief Executive Officer Donald Coolidge that
neither Elemental Path Inc. nor Majestyk Apps Inc. had permission to use her
image in conjunction with marketing or any other materials for the two
companies. Ms. Cohen requests that you client remove her image from the
website as well as from its internal marketing materials and cease and desists the
use of Ms. Cohen's image.
5.8. As 5/19/2015, no changes have been made to the majestykapps.com website and my
photograph is still visible. (Appendix AJ).
5.9. The technical task of cropping my portrait from the image is not complicated or timeconsuming. Anyone who uses a desktop computer has access to basic built-in tools, such as
Microsoft Paint, can edit an image. Indeed, Majestyk Apps is a web publishing company, it
publishes its own website, and employs several full time web developers and graphic designers.
Therefore if Majestyk Apps wanted to remove my portrait from that picture, it would have
been extremely easy for them to do so.
5.10.
I contend that my image is deliberately being used on the website
www.majestykapps.com, to falsely represent to potential clients and investors that Majestyk
Apps / Elemental Path indeed has more employees than it really has, and in particular, paid
female professionals. A balanced workforce is an essential factor in many investors decision to
invest. By using my image, gender, and academic credentials, the defendant is gaining
commercial value for his business, by representing that his staff is more educated, diverse, and
of higher salary value than in reality. Note the team portraits for the staff of both Elemental
Path and Majestyk Apps show exclusively males. (Appendix AK).
77

5.11.

According to C-Net News:


Elemental Path went to Kickstarter to raise funds for its dinosaur, hoping to bring in
$50,000. The Company met that goal in the first 18 hours of its campaign and went on to
presell 2,600 toys, raising $275,000. Elemental Path raised an additional $1 million in
seed funding from friends and angel investors in March to bring its toy to market.

Source: http://www.cnet.com/news/speak-toy-welcome-to-the-age-of-chattingwith-your-teddy-bear/
The timing of The Companys additional $1,000,000 in funding in March coincided with The
Companys publication of my picture on their website.
5.12.
Therefore I conclude that the use of my picture, and my credentials, were instrumental
to the defendant for substantial commercial gain, and the defendant is posting my picture
online for this purpose.
5.13.
Therefore according to New Yorks Civil Rights Law 51, after prior notice of my lack of
consent to use my image, The Companys violation of three written requests and multiple oral
request, to remove my portrait from their website, I demand am claiming damages for violation
of privacy, and compensation for The Companys commercial benefit, of $1,000,000.

78

Appendix AG: My picture on the Majestyk Apps Website, uploaded on 3/15/2015, according to
web.archive.org.

79

Appendix AG (continued): My picture on the Majestyk Apps Website, uploaded on 3/15/2015.

'';l (j IP.~ \I
80

Appendix AH: My request for the defendant to remove my picture from their website.
Print :: Workspace Webmail

https://emaiiiO.secureserver.net/window/print/?f=html&h=3967 11 3 19&ui= I

Re: my photo on the Majestyk Apps homepage


Mark Garcia [mark@majestykapps.com]
Sent: 4/ 29/2015 2:10PM

To:

"Jessica Cohen" <info@jessicacohen.com>

Hi Jess,

No problem. Will get that updated asap.

Best,

On Sun, Apr 26, 2015 at 10:02 PM, Jessica Cohen <info@jessicacohen.com> wrote:

Hello Mark,
I hope you are doing well.
Please remove my picture ASAP from the Majestyk Apps homepage. You did not and do not have
my permission to use my photo in any materials for Elemental Path or Majestyk Apps.
Thanks,
Jessica

Mark Garcia

Creative Director
mark@majestykapps.com
261 W 35th ST, Suite 1004
New York, NY 10001
201 .723.6010

Copyright 2003-2015. All rights reserved.

I of I

5119/2015 I :53 P

81

Appendix AI: My attorneys request to the defendant to remove my picture from their website.

mr

FELDMAN, KRAMER & MONACO, P.C.


AT T O R N EY S

&

C O UNS ELLOR S

HERBERT KRAMER

WARREN 8. FELDMAN

WllllAM J. MONACO

3JO VANDERBILT MOTOR PARKWAY


HAUPPAUGE. NEW YORK 1171i8-S110
6)1 2311450
21280973H
800 832'182
fA)( 631 211 1732

f'kml:awrom

DONNA ROSEN
AllAN E. FOGEL

JAMfS E. ORLANDO
DANIEL J DtROSSO

STEVEN KRAMER

CANDACE DEU.ACONA

JOHN T HENDERSON
HARDI.D E. GERRY. JR
O!IUSTOPHEil J. LONGMAN
CIIIUSTOPHE.R M. PETILLO
IRJNA KARLOVA
JACQUEUN KEUY
DAVID A. PlNCUS
DANIEU.E WHm

AllSON LEIGH EPTLDNF

ANJTA Y AGINlAN

May 6, 2015
Shahmoon & Ell isen LLP
370 Lexington Avenue, 24th Floor
New York, NY 10017
Attn.: Eli Shahmoon, Esq.

OF COUNSEL
DEBORAH S. GAW~

JOHN CAJJMANO' t
KAllilEF..N COX
JOSEPH M ROSENTHAL
LUCRETIA M LUCIVE.RO
ROBERT D. SCHLESINGER

Re: Jessica Cohen


Our File No.: LS790579
Your C lient: Elemental Path, Inc.

HENRY POW

ANDREW F. BREMS

KENNETH M. SPOLE'
LEONARD M. SCHNmER
STEVRN FLYNN

GLENN LEVINE
LOREtTA MdNTOSH

Dear Mr. Shahmoon:


This office has been consulted by Ms. Jessica Cohen regarding your client's use of her image.

ROBERT H. TUCKE.R
PAMELA GOSIIMAN
KEVL~

CAMPBELL

JOANNE ZAUW-CRAWFORD
HE.RBERT NEWMAN
ALAN BORACK
WIWMt WBSELOERG

KEITH LUDWICZAK
STEVEN BRE.NNAN

MARIANNE S~tmi-STAHL
SnPHF.N SCHAETLER
ALfRED CAMIORJ!

DENISE Ft.ORIANI MANDAlU


SANTO BA!UtAVECOUO
CHARLES H ROSEN
HOPE SENZER GABOR
MIOiAEL S ROZZA
DlA.'lE V. BARRESI

PARAllGALS
n.RRY GILMORE
DEANNA GAY

Ms. Cohen informs us that she previously worked as an independent contractor for your client. Ms.
Cohen no longer performs services for Elemental Path, Inc., and did not have any commercial
agreement with its parent company Majestyk Apps. During her time working with your client, Ms.
Cohen repeatedly denied your client's request to use her image in public marketing materials as she
was concerned about her privacy. On March 2, 2015 and April 26, 2015, Ms. Cohen communicated
in writing with Chief Executive Officer Donald Coolidge that neither Elemental Path Inc. nor
Majestyk Apps Inc. had her permission to use her image in conjunction with marketing or any other
materials for the two companies. Ms. Cohen requests that your client remove her image from the
website as well as from its internal marketing materials and cease and desist the use of Ms. Cohen 's
image.

JAMIE MAI<CUSO

BARBARA aorn

MAIGARIIT SATO!WFU.
BARBARA CAPEL
DOREEN TIERNAN
LE.ANDRA CONDE

SHARON SAYLOR
)B>'NIFE.R ME.ROll.A

GINAGUEI.l.EME
UNDA TI<OJCA

CHERYL BECKER
~HAWNEICE BEUN
SUSAN BACEY
DANIEUA LUCIANO

GrNA PANZENBECK
PLAN ADMINISTRATOR

Your client's anticipated cooperation and prompt response to the within are appreciated.
truly yours,

~~ND MONACO, P.C.


anto Barravecchio
63 1-23 1-1 450, Ext. 293
SB/LS7905 79

Ell.EEN BAER
DIRECTOR OF OPERATION~

cc: Jessica Cohen

LAUllA WEIDNLR
ALSl .W\tnTED L~ NJ
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Appendix AJ: My Photo on the Majestyk Apps Website as of May 19, 2015, after several written requests
to remove my photo.

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Appendix AK: Employees of Majestyk Apps

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Appendix AK (Continued): Employees and Advisors of Elemental Path

elemental path

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MEET THE TEAM

DONALD COOLIDGE

BERNIE STOLAR

JP BENIN I

ARTHURTU

CALVIN CHU

SEAN O'SHEA

MICHAEL RINZLER

CHAD VAVRA

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Conclusion
By reason of the facts and circumstances stated above, plaintiff has been damaged by the defendant
in the sum of $8,279,466, as shown below:
For Breach of Written Contract: $1,000,000
For Breach of Oral Contract: $1,000,000
For Violation of Copyright, Intellectual Property, and Moral Rights: $5,000,000.
Bad Faith Dealings: $250,000, and $29,466 ($14,733 per month since March 16, 2015, when I asked
the defendant to release me from The Written Agreements Non-Compete Clause).
Violation of New York Civil Rights Law 51: $1,000,000.
and an additional $14,733 per month for every month that I have been unable to work in my field,
plus interest from June 4, 2015, together with any other relief the court finds to be just and proper.
Dated: June 4, 2015

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