Collision Communications, Inc. v. Nokia Corporation, et al.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Collision Communications, Inc.
v. Civil No. 20-cv-949-LM
Opinion No. 2026 DNH 081 P
Nokia Solutions and Networks OY
O R D E R
Plaintiff Collision Communications, Inc. (Collision) brought this action
against Nokia Solutions and Networks OY (Nokia) alleging claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, and
promissory estoppel. Collision claimed that Nokia made an enforceable promise to
pay Collision $23 million in exchange for the integration and licensing of Collision’s
software, and that Nokia thereafter breached this promise. After a lengthy trial, the
jury found for Collision on its breach of contract and promissory estoppel claims.
After trial, the court must resolve whether the statute of frauds bars
enforcement of the contract found by the jury. In addition, the court must determine
(1) whether New Hampshire law requires a plaintiff pursuing a promissory estoppel
claim to prove that injustice can be avoided only through enforcement of the
promise upon which his claim relies, and (2) if such an element applies, whether
Collision has adequately proven it. For the reasons that follow, the court finds that
the statute of frauds does not bar enforcement of the contract, but that Collision has
failed to prove promissory estoppel’s “injustice” element as required by New
Hampshire law.
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PREFACE
Before reciting its findings of fact and rulings of law as required by Rule 52,
the court offers the following description of the scope of its factual findings. The
parties agreed prior to trial that the applicability of the injustice element of New
Hampshire’s promissory estoppel doctrine (to the extent that element exists)
presents a question of law that the jury has no role in resolving. See doc. no. 270 at
4-6; doc. no. 278 at 2; see also doc. no. 297 at 10. The court makes the below findings
of fact in support of its rulings of law regarding the injustice element of promissory
estoppel.
However, these findings play no role in the court’s resolution of Nokia’s
statute-of-frauds defense. As explained in this court’s order certifying questions of
law to the New Hampshire Supreme Court (doc. no. 372-1), the applicability of the
statute of frauds under New Hampshire law is a mixed question of law and fact.
Tsiatsios v. Tsiatsios, 140 N.H. 173, 176 (1995). When the parties dispute whether a
contract contained certain terms that could implicate the statute of frauds, the jury
determines whether the contract contained the relevant terms. Peabody v. Wentzell,
123 N.H. 416, 418 (1983); Tsiatsios, 140 N.H. at 176. The court then determines
whether the statute of frauds applies based on the jury’s findings. Tsiatsios, 140
N.H. at 176.
In this case, Collision’s contractual claims were premised upon an oral
contract whose formation and existence Nokia denied. It was therefore clear to the
court and the parties prior to trial that, if the jury found that the parties entered
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into a contract, resolution of Nokia’s statute-of-frauds defense would require
Nokia—in advance of trial—to articulate the contractual terms it believed triggered
the statute of frauds so that the court could submit interrogatories to the jury
requesting findings as to whether the contract contained those terms. See doc. no.
270 at 2-3 (Collision’s opposition to Nokia’s proposed jury instructions, asserting
that the jury should “be asked to make fact[ual] findings about any terms that
Nokia contends put the agreement within the statute of frauds” and that the court
should then “determine whether the terms—as found by the jury—could have been
performed within one year”); doc. no. 278 at 1 (Nokia’s response to Collision’s
opposition, agreeing with the division of labor between jury and judge requested in
Collision’s opposition); doc. no. 297 at 5-9 (transcript of pretrial hearing, where
court stated that Collision’s request was correct under New Hampshire law, that
the court would adopt Collision’s request, and the parties reiterated their
agreement). Indeed, the court issued an endorsed order prior to trial registering its
concern about the complexity of the task before the jury and directing the parties to
appear for a hearing the following day to discuss “the specific factual findings
. . . the jury will need to make” to enable the court to resolve Nokia’s statute-of-
frauds defense. Endorsed Order of Feb. 20, 2024; see also doc. no. 319 (special
verdict form; five pages long).
At the hearing, the court explained that, because Nokia was the party raising
the statute of frauds as an affirmative defense, it “really has to be Nokia” making
clear the contractual terms it believed triggered the statute of frauds, so that the
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court could direct the jury to determine whether the contract contained those terms.
Doc. no. 334 at 3; see also id. (court to Nokia: “[Y]ou need to tell me what are the
. . . questions . . . that I have to ask the jury when I get to the statute of frauds
defense”). In response, Nokia stated that “there’s only a need to ask perhaps two
questions” of the jury: (1) whether the contract contained a perpetual license, and
(2) whether the contract contained a perpetual product support agreement. Id. at 4-
5. Indeed, Nokia took the position that “that’s all we would need to satisfy . . . th[is]
statute of frauds” issue. Id. at 5. In response, Collision conceded that the June 6
contract contained a perpetual license but disputed whether it contained a
perpetual product support agreement. Id. at 10-11.
Based on the parties’ positions, the court asked the jury to make only a single
factual finding as to the content of the June 6 contract: whether it contained a
perpetual product support agreement. See doc. no. 319 at 1. The jury answered that
question in the negative. What is more, despite receiving multiple iterations of
drafts of the court’s special verdict form prior to the charge, Nokia never asserted
that its statute-of-frauds defense was premised on the existence of additional terms
of the contract or that the jury needed to make any other findings.
New Hampshire law entitled Collision to insist that the jury determine
whether the contract contained the terms that Nokia asserted brought the June 6
contract within the statute of frauds. See Peabody, 123 N.H. at 418; Tsiatsios, 140
N.H. at 176. In light of Nokia’s pretrial representations to the court and Collision
regarding the “only” contractual terms that the jury needed to decide, as well as the
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jury’s verdict finding that the June 6 contract did not contain a perpetual product
support agreement, the only provision relevant to the statute of frauds’ applicability
is the perpetual license granted by Collision to Nokia pursuant to that contract.1
The following findings of fact inform the court’s assessment of Nokia’s statute-of-
frauds defense, but ultimately, the perpetual license contained in the June 6
contract is the controlling contractual term with respect to that defense.
FINDINGS OF FACT
I. Collision and Nokia Explore a Potential Partnership
Stan and Jared Fry formed Collision in late 2010. A father and son team,
Stan and Jared2 are well-educated, sophisticated businessmen with decades of
experience in the telecommunications industry, including numerous licensing deals.
They have founded and managed several technology companies.
Shortly after formation, Collision purchased a portfolio of patents and
software from BAE Systems (BAE). BAE had developed technology that reduced
interference in electronic telecommunications. However, BAE, as a military
contractor, was focused on the application of this technology in the military context.
Collision purchased BAE’s portfolio with the goal of adapting this interference-
1 Nokia’s arguments to the contrary are not persuasive for the reasons stated
in the court’s certification order. See doc. no. 372-1 at 14-16.
2 The parties have referred to the Frys as well as another key witness
(Francisco “Paco” Lopez Herrerias) by their first or common names throughout the
proceedings (i.e., Stan, Jared, and Paco). The court adheres to the parties’ convention
in this order. No disrespect is intended.
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reducing software for use in consumer cellular telecommunications, and then selling
or licensing its software to a telecommunications company for installation in the
hardware within such company’s cell towers.
Nokia is a large multinational business headquartered in Finland. Among
other products, Nokia produces cellular base stations, which are devices affixed to
cell towers used to collect and disseminate cellular signals. Cellular network
operators like Verizon use base stations to provide cellular service to consumers.
The name of Nokia’s base station is the “Airscale.”
In 2015, Collision and Nokia began discussing a potential collaboration that
would involve the integration of Collision’s technology into Nokia’s Airscale. In
order to begin these discussions, Collision and Nokia entered into a written, mutual
nondisclosure agreement (NDA). The NDA states that it “shall come into force upon
signature by both Parties.” Def. Ex. 202 at COL949_00028569. Jared executed the
NDA on Collision’s behalf.
Through simulated exercises involving Collision’s proprietary software,
Collision demonstrated to Nokia that its technology was superior to the technology
Nokia was then using to reduce cellular interference and process cell signals in its
Airscales. These exercises did not show, however, whether it would be feasible to
integrate Collision’s technology into the Airscale. To determine whether such an
integration would be feasible, Collision and Nokia executed a written “Proof of
Concept” agreement in November 2016.
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Jared was the primary negotiator for Collision with respect to the Proof of
Concept, and Francisco “Paco” Lopez Herrerias negotiated it for Nokia. Jared and
Paco agreed that Nokia would pay Collision $600,000 to evaluate whether
Collision’s technology could be implemented in Nokia’s base station. However, Jared
understood that, even after he and Paco agreed on that figure, Paco needed to
obtain Nokia’s approval before the parties could enter into the Proof of Concept
agreement. Jared also understood (and conveyed to Collision’s board) that, even
after he and Paco reached an agreement, Nokia’s legal and procurement
departments would be involved in drafting and approving the contract. Finally,
Jared understood (and communicated to Collision’s board) that the parties would
not be “officially under contract” until Nokia signed the written Proof of Concept
agreement.3 Doc. no. 330 at 88; see also Def. Ex. 12 at COL949_00026037. Once the
written Proof of Concept agreement was executed, Jared emailed Stan a copy of the
document and stated that “[w]e are now under agreement with Nokia.” Def. Ex. 203
at COL949_00004676.
The parties executed the Proof of Concept agreement in November 2016.
Collision’s work under the Proof of Concept took place from November 2016 through
approximately April of 2017. By all accounts, the Proof of Concept was a success:
Collision’s technology could be implemented into the Airscale, and would deliver a
substantial improvement in processing.
3 One of Collision’s board members, Ross Bott, responded to Jared’s email by
stating: “I’m sure we’ll all hold our breath a little until this is co-signed.” Def. Ex. 12
at COL949_00026037.
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II. Initial Negotiations
In February 2017 (when it was becoming clear to the parties that the Proof of
Concept would be successful), Collision and Nokia met for a multi-day workshop to
discuss technical next steps to achieve integration of Collision’s software into
Nokia’s Airscale, as well as the companies’ future business relationship. The
parties’ goal was to develop a plan to achieve a release of the integrated product for
sale to third parties (such as Verizon) in the first quarter of 2018, and to have the
integrated product ready to be showcased at the Mobile World Congress, an annual
event to be held in February 2018. Given the amount of work that integration would
entail, the parties considered this to be an aggressive—but feasible—timeline.
The parties did not enter into an oral or written contract to integrate
Collision’s software into Nokia’s Airscale at the February 2017 workshop. Collision
understood that any commercial agreement would be substantially more complex
than the Proof of Concept. However, Collision also believed that achieving the
parties’ goals would require Collision to immediately begin integration work, even
in the absence of a commercial agreement. Although Jared and Paco discussed
potentially extending the Proof of Concept agreement to encompass these new
development efforts, they ultimately did not do so. Thus, Collision began work
towards achieving integration by early 2018 in the absence of a commercial
agreement, written or otherwise.
When the Proof of Concept expired in April 2017, Jared and Paco began
discussions around forming a commercial agreement. Broadly speaking, the parties’
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negotiations centered around two primary components of a potential contract: (1)
Collision would integrate its technology into the Airscale in exchange for payment of
a “non-recurring engineering” fee (often referred to as an “NRE” fee); and (2)
Collision would license its technology to Nokia (so that Nokia could sell Airscales
including Collision’s technology to third-parties) in exchange for a lump sum
payment.
In May 2017, Paco travelled to New Hampshire to meet with Stan and Jared.
Prior to the meeting, Paco told Jared that he hoped to have “a verbal agreement in
[sic] transfer costs and NRE fees” and a “‘handshake’ on the potential conditions” at
the conclusion of the meeting, “even if not signed on paper” so that the parties can
“have the view from both sides.” Pl. Ex. 64 at COL949_00000116. In response, Jared
expressed concerns about the tight timeline for finalizing an agreement, and asked
Paco to ensure that “the people you need to finalize any agreement are lined up in
advance.” Id. at COL949_00000115.
The meeting between Paco and Collision took place over two days on May 16
and 17, 2017. The parties were unable to reach an agreement. Following the
meeting, Jared communicated to Paco that Collision and Nokia still had “terms left
to resolve,” but that their meeting was “productive” and the parties “were better
able to understand some of the challenges we are both facing.” Pl. Ex. 56 at
NOK00007082. Jared also communicated a “concept” for an agreement that he was
“not sure we are totally comfortable with,” which would involve a $3 million NRE
fee and a $22 million license fee, with a license term of two years and “limited”
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exclusivity. Id. at NOK00007083. Paco responded that he had been unable to speak
with Nokia’s “senior leadership” following his meeting with Collision in New
Hampshire and that he “need[ed] to have” a face-to-face meeting with the
leadership team. Id. at NOK00007080. Paco said that the most likely outcome from
any partnership with Collision would generate approximately $30.8 million in
revenue for Nokia, which meant that “the maximum Nokia can come up with”
would be $20 million for the license—a figure that still “is to be approved.” Id. at
NOK00007081-82. Paco later forwarded these email communications to his boss,
Timo Viero, and commented in an email that he tried “to make clear to Collision
that my proposal still needs to be approved,” and that it would be “challenging” to
obtain approval. Id. at NOK00007080.
On June 1, 2017, Paco wrote to Jared that he had obtained approval from two
department heads within Nokia for a $20 million license fee, but that it remained a
“bold number” requiring that Paco “mov[e] to higher layers” in order to “fund the
case.” Def. Ex. 56 at COL949_00000130. Paco communicated that these higher
layers included Marc Rouanne (whom Collision understood to be President of
Mobile Networks for Nokia) and “possibly” Rajeev Suri (Nokia’s CEO). Id. Paco
stated that he was “internally organizing many calls to get to that point to
eventually [sign] the contract.” Id.
III. The June 6 Phone Call
Jared testified that he and Paco spoke over the telephone on June 6, 2017.
Paco’s and Jared’s diverging accounts of that call are at the heart of this lawsuit.
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According to Jared, Paco informed Jared that he had received all the approvals from
within Nokia that he needed to formally extend Nokia’s offer to Collision. In
response, Jared said he accepted Nokia’s offer on Collision’s behalf. Jared testified
that he understood based on this phone call that Collision and Nokia had formally
entered into a binding agreement. Specifically, he testified that, during this phone
call, Nokia made an enforceable promise to Collision that Nokia (1) would pay
Collision $3 million in exchange for integrating its software into Nokia’s Airscale
and $20 million for the license and (2) would promptly memorialize the parties’
agreement, which, according to Jared, would trigger a payment of 60% of the $20
million license fee. Jared also testified that, in order for Collision to fulfill its
integration obligations, Nokia needed to provide Collision with an Airscale.
By contrast, Paco testified that:
• He did not recall whether he spoke with Jared on the
phone on June 6;
• He had not obtained all necessary approvals to execute a
$23 million contract with Collision;
• He never communicated to Collision that he had
obtained those approvals; and
• He never extended a formal offer to Collision the
acceptance of which could have formed a binding
contract or that he otherwise made binding promises to
Collision on such a phone call.
Although no one else was on the call, Jared testified that he took handwritten
notes of what Paco communicated to him during the call, and that he later typed up
his notes. Both the handwritten and typed notes were introduced in evidence at
trial. See Pl. Exs. 104, 113. According to Jared’s notes, Paco communicated that he
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had “support for $20M” and that it has “passed,” Pl. Ex. 104, though Jared was “not
sure what he really meant by that,” Pl. Ex. 113. Jared’s notes reflected that Paco
had “sign-offs” from Nokia’s former CTO, its Architecture Head, its Portfolio Head,
its “LTE [Business Line] Head,” and from “Bell Labs.” Pl. Ex. 104. However, Paco
also told Jared that “[t]he amount of money is passing a mark that needs additional
sign-offs,” Pl. Ex. 113, including “up to almost CEO level,” Pl. Ex. 104, and that
Paco was “working on this now through documents and briefings,” Pl. Ex. 113. Paco
anticipated that he would obtain these additional sign-offs “this week or [the] very
beginning of next week,” and that he thought the parties would be in a position to
have “legal agreements . . . signed next week or the week of the 19th.” Id. Paco said
that he was “not concerned about timing” so long as Collision “start[ed] [working] in
July timeframe.” Pl. Ex. 104. Jared’s notes do not reflect that Paco stated he had
received approval from Marc Rouanne or Rajeev Suri.
IV. Communications After the June 6 Call
In the weeks following the June 6 phone call, Jared, Stan, and Paco
communicated in various fashions an understanding that Collision and Nokia were
not yet under contract. For example, two days after the June 6 phone call, Paco
wrote an email to Jared and Stan noting that they had agreed on an “aggressive
target of 3 weeks” to complete an agreement regarding Collision’s integration work,
“to be followed by [a] license agreement.” Def. Ex. 61 at COL949_00028325. Paco
stated that the integration agreement would contain a “statement alluding to [a]
follow on license agreement with max amount referenced.” Id. Paco also told
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Collision that Nokia would not make upfront payments, but rather that Nokia
would pay 60% of the license fee only after Collision had provided deliverables. Id.
at COL_94900028324. In response, Jared stated that Collision’s “concern on this is
that we are looking for the license amounts to be committed here, not just
referenced, . . . from the perspective of we are looking for the commitment from
Nokia here, not just a partial commitment.” Id. at COL949_00028325.
On June 15, 2017, Stan wrote to Paco expressing concern that he had not
seen a formal document containing “the terms as you have proposed to us,” which
was “one of the multiple reasons we have not formally responded or agreed to your
terms.” Def. Ex. 62. Stan felt it was “imperative that the terms are circulated for all
to understand,” but “it appears that procurement is dealing with more hurtles and
unable to send us agreements,” and that, “[a]t this point [Collision] question[s] what
[it] will receive.” Id. Stan told Paco that Collision had been working on Nokia’s
project “without any guarantees on the part of Nokia,” and questioned how much
longer Nokia could reasonably expect Collision to proceed in this manner. Id.
Within a few weeks of the June 6 phone call, Jared completed a Nokia
questionnaire disclosing “information for the review of Collision as a potential
supplier.” Def. Ex. 7 at NOK00020703. A Nokia employee, Theresa Magalski,
communicated to Jared that, without Collision’s adequate completion of the
questionnaire, Nokia “cannot make a decision to move forward into [a] commercial
relationship nor gain spending approvals.” Id. In completing the questionnaire,
Jared stated that “[c]urrently Collision does not have a ‘live’ contract with Nokia,”
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but that “Collision has been under contract with Nokia in the recent past for
exploratory efforts.” Id. at NOK00020708. Jared stated that Collision and Nokia
were “currently negotiating.” Id. at NOK00020710; see also Def. Ex. 144 at
COL949_00000137 (Jared discussing Collision’s “continuation of development
towards the goal even without a contract in place”); Def. Ex. 105 at
COL949_00002362-64 (Jared to Paco: “We continue to feel strongly that for us to
share the details that will need to be shared, that an agreement will be in place”;
“[w]e have continued our efforts without a contract”; “[i]f Nokia eventually proposes
other terms, Collision may need to renegotiate”; “I keep harping on needing a real
commitment from Nokia”; “I have heard repeatedly that once we are under contract
everything moves smoothly and swiftly, but it is hard for us to have that perspective
at this point”; “[t]hese discussions include aspects of a deal that haven’t necessarily
been approved on Collision’s side”).
In any event, Collision continued to work towards completing the parties’
goal of achieving integration of Collision’s software into Nokia’s hardware by early
2018, but were limited in what they could accomplish due to the fact that Nokia had
not sent Collision an Airscale. Although Paco communicated in the months leading
up to June 2017 that Nokia would be sending Collision an Airscale in short order,
he also told them that, because the Airscale contained proprietary Nokia
technology, Nokia could not provide one to Collision until the parties executed a
formal, written agreement. See Def. Ex. 145.
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V. The Parties’ Relationship Breaks Down
Throughout the summer of 2017, Paco and other Nokia employees
communicated to Stan and Jared that Nokia would be sending Collision proposed
draft agreements. Jared, Stan, and Paco spoke on the phone on September 19, 2017.
According to Jared’s notes from that call, Paco explained that Nokia was “in the
process of translating [the] offer to” Collision. Def. Ex. 237 at COL949_00002820.
Marc Rouanne decided that Nokia would undertake a “make-buy” analysis,
pursuant to which Nokia would determine what the cost would be for Nokia to
develop its own solution capable of achieving performance gains similar to what
Collision’s software could offer. According to Jared’s notes from the call, Paco
explained that the cost for Nokia to develop its own technology “will set the offer” to
Collision. Id. Jared’s notes also documented that “the offer, once it’s [formalized],
will go up to Marc [Rouanne].” Id. Jared noted that Collision “should frame any
response to the offer with [Collision’s] arguments in a form that can be provided to
Marc so that we can actually dialogue back directly to him.” Id.
In November 2017, Nokia provided a set of draft agreements to Collision that
Nokia stated would be “the starting point” for negotiations. Def. Ex. 67 at
NOK00004075. The draft agreements provided that Nokia would pay Collision $7
million for the license and a $3 million NRE fee. Jared’s understanding was that the
$7 million figure was based on Nokia’s internal make-buy analysis. Collision
rejected Nokia’s offer and countered with a $20 million license fee. Throughout
2018, the parties attempted to reach a final agreement but were not successful in
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doing so. Ultimately, Nokia informed Collision in November 2018 that it was
canceling the project altogether.
RULINGS OF LAW
Collision subsequently instituted this suit. At trial, Collision pursued three
claims, but only two are relevant for present purposes: (1) breach of contract, and
(2) promissory estoppel.4 Collision contended that, during the June 6 phone call,
Jared and Paco bound Collision and Nokia to a $23 million oral contract for the
integration and licensing of Collision’s software into Nokia’s base station, and that
Nokia subsequently breached that contract. In the alternative, Collision asserted
that Nokia was liable to it under the doctrine of promissory estoppel based on the
theory that Nokia made three enforceable promises to Collision: (a) to pay Collision
$23 million; (b) to promptly memorialize the June 6 agreement to pay Collision this
sum, which would trigger a 60% upfront payment of the license fee; and (c) to send
Collision an Airscale so that Collision could fully perform the required integration
work. Doc. no. 338 at 113-14. After a ten-day trial, the jury returned a verdict in
Collision’s favor on its breach of contract and promissory estoppel claims, and
awarded Collision $23 million in damages.
Following trial, the court took up Nokia’s statute of frauds defense as well as
Collision’s rebuttal that, even if the statute of frauds applied, the June 6 contract is
4 Collision also tried a claim for breach of the implied covenant of good faith
and fair dealing. However, because the jury returned a verdict in Collision’s favor on
its breach of contract claim, it did not return a verdict on the good faith and fair
dealing claim. See doc. no. 319.
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enforceable pursuant to the doctrine of part performance. In addition, the court
considered whether New Hampshire law requires that a party seeking recovery
under promissory estoppel to demonstrate that injustice can be avoided only
through enforcement of the promise relied upon. The court concluded that
consideration of these matters required resolution of difficult and unclear questions
of New Hampshire law, and therefore certified questions to the New Hampshire
Supreme Court. See Collision Commc’ns, Inc. v. Nokia Sols. & Networks OY, 764 F.
Supp. 3d 19 (D.N.H. 2025) [hereinafter “Collision I”]. The New Hampshire Supreme
Court answered this court’s question regarding the statute of frauds and declined to
answer its questions on the doctrines of part performance and promissory estoppel,
concluding that its resolution of the statute of frauds issue was dispositive. See
Collision Commc’ns, Inc. v. Nokia Sols. & Networks OY, 2026 N.H. 4, ¶ 1
[hereinafter “Collision II”].
Upon remand from and with the guidance of the New Hampshire Supreme
Court, this court first turns to Nokia’s statute of frauds defense, then addresses the
parties’ arguments regarding the injustice element of promissory estoppel.
I. The New Hampshire Supreme Court’s Answer to This Court’s First Certified
Question Requires Rejection of Nokia’s Statute-of-Frauds Defense
Under New Hampshire’s statute of frauds, “[n]o action shall be brought
. . . upon any agreement . . . that is not to be performed within one year from the
time of making it, unless such . . . agreement, or some note or memorandum thereof,
is in writing and signed by the party to be charged or by some person authorized by
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him.” RSA 506:2. “The statute of frauds . . . requires all agreements not to be
performed within one year to be in writing and signed by the party to be charged.”
Phillips v. Verax Corp., 138 N.H. 240, 245 (1994). The statute, however, renders
unenforceable “only those contracts which cannot be performed according to their
terms within a year from the time of their inception.” Id. at 246 (emphasis added)
(quoting Davis v. Grimes, 87 N.H. 133, 135 (1934)). An oral agreement “will not run
afoul of the statute of frauds if it was possible for performance to be completed
within one year of the agreement without breach by either party.” Proctor v.
MacDonald, 141 N.H. 621, 624 (1997). This is true regardless of whether the parties
expected the contract’s obligations to be performed within one year. Collision II,
2026 N.H. 4, ¶ 11.
For the reasons discussed above, the only provision of the June 6 oral
contract relevant to resolution of Nokia’s statute of frauds defense is the perpetual
license contained within that contract. In the New Hampshire Supreme Court’s
opinion addressing this court’s certified question, the Supreme Court
unambiguously “h[e]ld that it is possible to perform within one year the obligations
imposed on the licensor by a perpetual intellectual property license.” Id. ¶ 19. While
acknowledging that the Court had previously held in Pro Done, Inc. v. Basham, 172
N.H. 138 (2019), that express covenants not to sue give rise to an ongoing obligation
to forbear, the Court reasoned that intellectual property licenses merely operate as
covenants not to sue. Id. ¶ 16. Absent an express promise not to sue, a perpetual
intellectual property license “is performed upon the effective date of the license,”
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and the “licensor does not have any ongoing obligations to the licensee.”5 Id. ¶ 17.
Given the New Hampshire Supreme Court’s answer to this court’s certified
question, Nokia has failed to demonstrate that the perpetual license contained in
the June 6 contract renders that contract unenforceable pursuant to the statute of
frauds.6 See Akwa Vista, LLC v. NRT, Inc., 160 N.H. 594, 600 (2010) (statute of
frauds is an affirmative defense).
II. Collision Fails to Demonstrate That Injustice Can Be Avoided Only Through
Enforcement of Nokia’s Promise
In light of the court’s conclusion regarding Nokia’s statute of frauds defense,
Collision is entitled to recovery on its breach of contract claim. As breach of contract
and promissory estoppel are mutually exclusive theories, Collision cannot also
obtain recovery on its promissory estoppel claim. See Great Lakes Aircraft Co., Inc.
v. City of Claremont, 135 N.H. 270, 290 (1992) (“[A]pplication of promissory
estoppel is appropriate only in the absence of an express agreement.”). However, in
the event of an appeal affecting the jury’s verdict on the breach of contract claim,
judicial economy favors this court issuing rulings of law on Collision’s promissory
estoppel claim at this time.
5 Nokia’s contention that Collision previously represented to the court that the
June 6 contract contained an express covenant not to sue (as opposed to a license
which operates as an implied covenant not to sue) is without merit.
6 Having so concluded, the court need not address Collision’s contention that
any partial performance of the June 6 contract by Collision removes the contract from
the statute of fraud’s ambit.
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The parties dispute whether a successful promissory estoppel claim under
New Hampshire law requires the plaintiff to demonstrate that injustice can be
avoided only through enforcement of the promise upon which the plaintiff
detrimentally relied. The court first addresses the applicability of this element.
Then, after concluding that this injustice element applies, the court considers
whether Collision proved at trial that enforcement of Nokia’s promise is necessary
to prevent injustice.
A. The New Hampshire Supreme Court Would Likely Hold That a
Plaintiff Pursuing a Promissory Estoppel Claim Must Demonstrate
that Injustice Can Be Avoided Only Through Enforcement of the
Promise
In its order certifying questions to the New Hampshire Supreme Court, this
court asked the Supreme Court to resolve whether New Hampshire’s promissory
estoppel doctrine includes the disputed injustice element. Collision II, 2026 N.H. 4,
¶ 1. Given the Supreme Court’s resolution of the statute of frauds question, the
Supreme Court declined to answer the promissory estoppel question. Id. This court
must therefore predict how the New Hampshire Supreme Court would resolve it.
Butler v. Balolia, 736 F.3d 609, 612-13 (1st Cir. 2013).
The Restatement (Second) of Contracts provides that a “promise which the
promisor should reasonably expect to induce action or forbearance on the part of the
promisee . . . and which does induce such action or forbearance is binding if injustice
can be avoided only by enforcement of the promise.” Restatement (Second) of
Contracts § 90(1) (A.L.I. 1981). As discussed in this court’s certification order, the
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New Hampshire Supreme Court has not yet formally adopted § 90. Collision I, 764
F. Supp. 3d at 43-45. At the same time, the New Hampshire Supreme Court
generally adheres to the Restatement, see, e.g., Skinny Pancake-Hanover, LLC v.
Crotix, 172 N.H. 372, 377 (2019), and has approvingly cited § 90 on several
occasions, see, e.g., Jackson v. Morse, 152 N.H. 48, 52-53 (2005); see also Collision I,
764 F. Supp. 3d at 44 (discussing the New Hampshire Supreme Court’s § 90
jurisprudence). The majority of (or perhaps all) jurisdictions require a plaintiff
pursuing a promissory estoppel claim to show that enforcement of the promise is
necessary to prevent injustice. See State v. First Nat’l Bank of Ketchikan, 629 P.2d
78, 81 (Alaska 1981). Collision has identified no jurisdictions which hold that an
injustice showing is not required.7 That is unsurprising, given that the very purpose
of promissory estoppel is to “provide a remedy for . . . promises or agreements that
fail the test of enforceability under . . . traditional contract doctrines, but whose
enforcement is necessary to avoid injustice.” Dixon v. Wells Fargo Bank, N.A., 798
F. Supp. 2d 336, 343 (D. Mass. 2011) (quotations omitted).
Collision contends that application of an injustice element would be in
tension with Jackson v. Morse, where the New Hampshire Supreme Court held that
7 The few cases Collision cites merely show that courts do not always analyze
the injustice element using the same factors. See Harmon v. State, Del. Harness
Racing Comm’n, 62 A.3d 1198, 1201-02 (Del. 2013) (affirming that plaintiff must
show that “injustice can be avoided only by enforcement of the promise,” but
highlighting the import of harm suffered by plaintiff from reliance on the promise in
determining injustice (quotation omitted)); Ascom Hasler Mailing Sys., Inc. v. U.S.
Postal Serv., 885 F. Supp. 2d 156, 190 (D.D.C. 2012) (similar, but also discussing
relevant factors set forth in § 90).
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an “indefinite” promise may form the basis for a successful promissory estoppel
claim. 152 N.H. at 53. Collision is incorrect. Jackson merely held that, where the
promise upon which the plaintiff detrimentally relied is indefinite or unclear, it is
generally “inequitable” for the plaintiff to recover expectation damages and that
recovery in such cases “will be limited to expenses incurred in reasonable reliance
on the vague promise.” Id. (first quoting Goldstick v. ICM Realty, 788 F.2d 456, 464
(7th Cir. 1986), and then quoting Garwood Packaging, Inc. v. Allen & Co., Inc., 378
F.3d 698, 703 (7th Cir. 2004)). If anything, Jackson supports the view that New
Hampshire’s common law of promissory estoppel incorporates consideration of the
extent to which enforcement of the defendant’s promise is necessary to prevent
injustice. And the Restatement itself makes clear that “[t]he remedy granted” under
promissory estoppel “may be limited as justice requires.” Restatement § 90(1).
For these reasons, the court predicts that the New Hampshire Supreme
Court would hold in accordance with the Restatement that, in order to recover on a
claim of promissory estoppel, the plaintiff must demonstrate that “injustice can be
avoided only by enforcement of the promise.” Id.
B. Awarding Collision $23 Million is Not Necessary to Prevent Injustice
In this case, the jury’s promissory estoppel verdict reflects the jury’s
determination that (a) Nokia made a promise to Collision that Nokia should have
reasonably expected would induce Collision to take certain action or refrain from
taking certain action, (b) Collision reasonably took or refrained from taking that
action in reliance on Nokia’s promise, and (c) Collision either suffered a detriment
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to itself or conferred a benefit upon Nokia. See doc. no. 364 at 21-22 (jury
instructions). Despite the jury’s findings, the “very existence” of the injustice
element demonstrates that, even when “all the other requirements of” promissory
estoppel are met, “sometimes the answer should be No,” injustice would not result
from failing to enforce a promise upon which the plaintiff detrimentally and
reasonably relied. 3 Timothy Murray, Corbin on Contracts § 8.9 (Matthew Bender
2026); see First Nat’l Bank, 629 P.2d at 81; see also Skebba v. Kasch, 724 N.W.2d
408, 411 (Wis. Ct. App. 2006) (explaining that, while the other elements of
promissory estoppel are “facts to be found by a jury,” the injustice element presents
“a policy decision to be made by the court”).
In evaluating the need to prevent injustice through enforcement of a
noncontractual promise, courts should keep in mind that “promissory estoppel is
fundamentally a narrow doctrine, designed to protect the legitimate expectations of
parties rendered vulnerable by the very processing of attempting to form
commercial relationships.” Ramone v. Lang, No. Civ. A. 1592-N, 2006 WL 905347,
at *14 (Del. Ch. Apr. 3, 2006). Even when promissory estoppel is narrowly deployed
to award a plaintiff damages for expenses reasonably incurred in reliance on the
defendant’s promise,8 “the doctrine of promissory estoppel hazards unfairness, as
many possible contractual relationships in commerce require the hopeful partners
to expend costs and put aside other opportunities in the hopes of forging an
8 Expectation damages are also available under promissory estoppel in some
circumstances, though not when such an award would be inequitable. Jackson, 152
N.H. at 53.
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agreement. Id. “[C]ourts must be chary about invoking the doctrine lightly, lest the
normal failure of parties to reach a binding contract be penalized by an imprecise
judicial cost-shifting exercise.” Id.; see also Dixon, 798 F. Supp. 2d at 341 (“To
impose rights and duties ‘at the stage of “imperfect negotiation”’ would be to
interfere with the liberty to contract—or not to contract.” (citation omitted) (quoting
Lafayette Place Assocs. v. Bos. Redevelopment Auth., 427 Mass. 509, 517 (1998))).
The injustice determination “cannot be applied by a mechanical process.”
Murray, supra § 8.9; accord Restatement § 90 cmt. b (highlighting the “flexible”
nature of the inquiry). The Restatement lists several factors courts should consider:
(a) “the reasonableness of the promisee’s reliance”; (b) the “definite and substantial
character” of the promisee’s reliance “in relation to the remedy sought”; (c) “the
formality with which the promise is made”; (d) “the extent to which the evidentiary,
cautionary, deterrent, and channeling functions of form are met by the commercial
setting or otherwise”; and (e) “the extent to which such other policies as the
enforcement of bargains and the prevention of unjust enrichment are relevant.”9
Restatement § 90 cmt. b.
Here, Collision contends that, on June 6, 2017, Paco promised that Nokia
would pay Collision $23 million for the integration and licensing of Collision’s
9 Section 139(2) of the Restatement sets forth considerations for determining
whether injustice can be avoided through enforcement of a promise where recovery
for breach of the promise would otherwise be barred by the statute of frauds. In this
case, the statute of frauds does not apply, so § 90 provides the appropriate framework.
Regardless, the relevant factors under § 90 are not materially different from those
set forth in § 139(2). See Restatement § 139 cmts. b & c.
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software, and that Nokia would promptly reduce this promise to writing, which
would trigger a 60% payment of the license fee. Although the jury’s verdict reflects
that the jury almost certainly found that Nokia made this promise, it is also
undisputed that, two days after the June 6 call, Paco sent Stan and Jared an email
making clear that Nokia had not yet committed to pay Collision $23 million and
that Nokia would not make any upfront payments. The “conflicting content” of
Paco’s June 6 and June 8 statements substantially diminishes the reasonableness of
Collision’s reliance on the June 6 statement. Trifiro v. N.Y. Life Ins. Co., 845 F.2d
30, 34 (1st Cir. 1988) (“The law . . . does [not] countenance reliance on one of a pair
of contradictories simply because it facilitates the achievement of one’s goal.”).
Throughout the summer of 2017, Paco and others at Nokia repeatedly informed
Collision that any payment from Nokia to Collision was contingent on further
approvals. Stan and Jared acknowledged many times in writing after the June 6
phone call that Nokia had not committed to pay Collision anything.
The parties’ relative degrees of sophistication, as well as their history and
course of dealings, are also instructive in ascertaining the reasonableness of the
plaintiff’s reliance. Gruen Indus., Inc. v. Biller, 608 F.2d 274, 281 (7th Cir. 1979);
Greenberg v. Tomlin, 816 F. Supp. 1039, 1056 (E.D. Pa. 1993). Jared and Stan are
sophisticated, well-educated businessmen with substantial experience in the
telecommunications field. They have executed several licensing deals, and have
founded and managed several companies. In other words, “this is not a situation of
an individual taken advantage of by a corporation or individual with superior
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knowledge of legal and business practices.” Gruen, 608 F.2d at 281 (brackets
omitted) (quoting Silberman v. Roethe, 64 Wis. 2d 131, 146 (1974)). Moreover, the
parties’ course of dealing should have made it clear to Collision that Nokia did not
believe it was subject to binding obligations in the absence of a signed agreement
executed by authorized persons. The 2015 NDA expressly stated that the
obligations set forth therein did not take effect until the document was properly
signed, and Jared understood that Nokia’s obligations under the subsequent Proof
of Contract agreement were not “official[ ]” until Nokia signed that agreement.
Nor does the court conclude that Collision’s reliance was of a “definite and
substantial character . . . in relation to the remedy sought”: $23 million.
Restatement § 90 cmt. b. Collision contends that it relied upon Paco’s June 6
promises in devoting resources to beginning integration work and by ceasing to
market its technology to other companies. However, the promises that Collision
alleged Paco made on June 6 would have involved payment of the full $23 million to
Collision only after Collision successfully completed all integration work and
licensed its technology to Nokia. While the parties’ estimates differ greatly in
describing the amount of integration work Collision was able to complete, it is
undisputed that Collision never provided Nokia with a fully integrated product that
was capable of being sold to Nokia’s customers. And, while Collision makes much of
the fact that it ceased business development efforts after June 6, the evidence shows
that Collision stopped marketing its software to other businesses because Collision
concluded that other businesses were unlikely to license Collision’s technology. See
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doc. no. 342 at 46-48. In any event, Paco explicitly told Collision in writing on June
21, 2017 that he “completely underst[ood] Collision might be working on other
projects” while it waited for draft agreements from Nokia. Def. Ex. 136 at
COL949_00000038. For all of these reasons, Collision’s reliance was not so
substantial that justice requires Collision be awarded $23 million.
The promises upon which Collision’s promissory estoppel claim are based
were not made with any degree of formality, which further weighs against a finding
that justice requires the promises’ enforcement. Restatement § 90 cmt. b. As
discussed, the parties’ Proof of Concept agreement was based upon a written,
executed document, but Collision understood that any agreement to integrate and
license its technology to Collision would be far more complex. See Said v. Nat’l R.R.
Passenger Corp., 183 F. Supp. 3d 71, 79 n.10 (D.D.C. 2016) (plaintiff’s reliance on
oral promise to permit certain periods of leave from work not enforceable where it
departed from the parties’ “previous course of conduct of submitting formal, written
requests for a leave of absence”). The informality of the promises upon which
Collision’s promissory estoppel claim relies is in stark contrast with the formality
Nokia previously insisted upon in making binding promises to Collision.
Regarding the next factor—“the extent to which the evidentiary, cautionary,
deterrent and channeling functions of form are met by the commercial setting or
otherwise”—Section 72 of the Restatement expands upon these functions.
Restatement § 90 cmt. b (citing § 72). In particular, § 72 explains that “legal
formalities” may serve an “evidentiary function, to provide evidence of the existence
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and terms of the” promise, as well as a “channeling or signalizing function, to
distinguish a particular type of transaction from other types and from tentative or
exploratory assertions of intention.”10 Id. § 72 cmt. c.
Here, as noted, the promises upon which Collision’s promissory estoppel
claim are unaccompanied by any legal formalities that serve to provide evidence of
the existence and terms of the promises. Jared did not even memorialize the
promises upon which Collision’s promissory estoppel claim relies in his handwritten
or typed notes of his June 6 call with Paco. To the contrary, Jared’s notes from that
call reflected uncertainty as to what Paco meant in saying that “support for” $20
million had “passed.” Pl. Ex. 113. His notes also evidence statements from Paco
that, although Paco had received approval from several employees and business
units within Nokia, the figures under discussion were “passing a mark that needs
additional sign-offs,” id., and would “go up to almost CEO level,” Pl. Ex. 104.
Similarly, the lack of formality attendant to the promises upon which
Collision relies materially distinguishes those promises from the highly formal and
technical transactions that Collision and Nokia had previously executed. The
promises underlying Collision’s promissory estoppel claim are far more akin to
“tentative or exploratory assertions of intention” than the highly formal binding
promises Nokia made to Collision in the NDA and Proof of Concept. Restatement
§ 72 cmt. c. This is underscored by Paco’s repeated reminders following the June 6
10 Although § 72 also expands upon the cautionary and deterrent functions
referenced in § 90, the court does not find consideration of those functions helpful as
applied to this case.
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call that the figures he and Jared were discussing were subject to further approvals.
What is more, Jared himself testified that, in the commercial telecommunications
setting, the functions of written form are desirable and expected because “a lot of
processes, especially at Nokia, can’t occur without things being documented in
writing,” and a written document ensures that “both parties have a common
understanding . . . of what [the] agreement is.” Doc. no. 330 at 19. In short, the
“commercial setting” in which the promises were made—as well as the particular
course of dealing between Collision and Nokia—is one in which the evidentiary and
channeling “functions of form” are expected. Restatement § 90 cmt. b.
The final consideration under § 90 is the extent to which policies like “the
enforcement of bargains and the prevention of unjust enrichment are relevant.” Id.
In this case, the bargain alleged by Collision was the payment of $23 million to
Collision in exchange for a fully integrated Airscale with substantial performance
gains over the software Nokia was then using within its Airscale, along with a
license enabling it to commercialize Collision’s prototype and sell it to Nokia’s
customers. Nokia did not receive any of the benefits of this bargain. Enforcement of
this bargain would provide Collision with a windfall; Collision would obtain all of
the benefits of the bargain despite failing to provide Nokia with the technology,
license, and commercialization ability that the bargain contemplated. “To avoid
injustice, it clearly is not necessary that plaintiff[ ] be placed in a better position for
the alleged breach than they may have been had the promise been kept.” Gruen,
608 F.2d at 281.
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Collision contends that Nokia was unjustly enriched because, by promising to
pay Collision for integrating its technology into Nokia’s Airscale and for exclusive
licensing rights, Nokia induced Collision to cease marketing its technology to other
consumers. According to Collision, by preventing Nokia’s competitors from
obtaining Collision’s technology, Nokia saved itself from the risk of lost market
share at Collision’s expense. Collision’s argument is not persuasive. As discussed
above, by summer 2017 it was clear that Nokia was the only large-scale
manufacturer of base stations that was at all likely to license Collision’s technology.
Moreover, both Stan and Paco communicated to each other (in the weeks after the
June 6 phone call) their understanding that Collision was not obligated to stop
working on other projects for other customers in the absence of written agreement.
See Def. Ex. 61 at COL949_00028323 (Stan to Paco on June 9: “it doesn’t seem
appropriate that we stop our sales activity to other customers without [a]
commitment from you”); Def. Ex. 136 at COL949_00000038 (Paco to Stan on June
21: “completely understand that Collision might be working on other projects” while
awaiting execution of contract). Unjust enrichment is “not a boundless doctrine,”
and instead requires Collision to demonstrate that it conferred “a benefit [upon
Nokia] which would be unconscionable [for Nokia] to retain.” Turner v. Shared
Towers VA, LLC, 167 N.H. 196, 202 (2014) (emphasis omitted) (quoting Axenics,
Inc. v. Turner Constr. Co., 164 N.H. 659, 669 (2013)).
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In light of the foregoing, the court concludes that Collision has failed to
demonstrate that injustice can be avoided only through payment of $23 million to
Collision.11
CONCLUSION
The court finds that the statute of frauds does not bar enforcement of the
contract found by the jury. The clerk is therefore directed to enter judgment in
Collision’s favor on the breach-of-contract claim. However, because the court finds
that justice does not require enforcement of the promises upon which Collision’s
promissory estoppel claim relies, the clerk is directed to enter judgment for Nokia
on Collision’s promissory estoppel claim. After judgment is entered, the clerk is
respectfully requested to close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 18, 2026
cc: Counsel of Record
11 Collision has not argued in the alternative that, even if justice does not
require payment of $23 million from Nokia to Collision, justice nevertheless requires
that Collision be awarded some smaller amount. See Restatement § 90(1) (“The
remedy granted for breach may be limited as justice requires.”). As such, Collision
has waived this argument and the court does not consider it.
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