Banas

Re: Dkt. Nos. 64-3, 65,

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Defendant Volcano Corporation merged with CardioSpectra, Inc. in 2007 in exchange for $25 million in cash to CardioSpectra’s shareholders, the plaintiffs in this action, and four additional payments if certain milestones were achieved. Volcano achieved the first milestone and made the first payment of $11 million. Milestone 2 obligated Volcano to pay the plaintiffs $10 million if Volcano achieved FDA approval of a medical device system developed from CardioSpectra’s assets. Milestones 3 and 4 obligated Volcano to pay the plaintiffs $17 million if Volcano achieved sales of $25 million of certain products. Volcano did not make those payments. The plaintiffs allege that Volcano breached its contractual obligation to use good faith and reasonable commercial efforts to achieve Milestone 2. The plaintiffs also allege that Milestones 3 and 4 were satisfied by sales of products developed by Volcano’s subsidiary, Axsun Technologies.

I must decide on the parties’ cross-motions for summary judgment whether there is a material factual dispute that…