Intermountain Technology Group LLC et al v. Altigen Communications Inc.

1
THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
INTERMOUNTAIN TECHNOLOGY GROUP,
LLC, a Utah limited liability company, and
RYAN DAY, an individual,
Plaintiffs,
vs.
ALTIGEN COMMUNICATIONS, INC., a
Delaware corporation,
Defendant.
MEMORANDUM DECISION
AND ORDER
Case No. 2:24CV00538 DAK-CMR
Judge Dale A. Kimball
Magistrate Judge Cecilia M. Romero
This matter is before the court on Defendant/Counterclaimant Altigen Communications,
Inc.’s (Altigen’s) Motion for Summary Judgment as to Liability. The court held a hearing on
August 21, 2025. At the hearing, Altigen was represented by Eric B. Evans. Plaintiffs/
Counterclaim Defendants Intermountain Technology Group dba ZAACT Consulting (“ZAACT”)
and Ryan Day (“Mr. Day”) (together referred to as “Plaintiffs”) were represented by John P.
Mertens and Jacob B. Stone. At the conclusion of the hearing, the court took the matter under
advisement. Now being fully informed, the court issues the following Memorandum Decision
and Order Granting Defendant’s Motion for Summary Judgment as to Liability on their breach
of contract and declaratory judgment counterclaims.
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 1 of 12

2
BACKGROUND
This case involves a dispute concerning an Asset Purchase Agreement (“APA”) between
Altigen and Plaintiffs ZAACT and Ryan Day. Altigen, which was essentially purchasing Plaintiffs’
business, claims that Plaintiffs breached certain warranties contained in the APA.
Altigen is a leading provider of cloud communications solutions and technology
consulting services that has partnered with some of the world’s most innovative companies,
including Microsoft, Amazon, and Fiserv. Plaintiffs were a consulting firm that provided services
focused on the Microsoft technology stack. On March 4, 2022, Altigen and Plaintiffs executed
the APA in which Plaintiffs agreed to sell certain assets to Altigen, and Altigen agreed to acquire
certain assets of ZAACT in exchange for a combination of cash and stock in Altigen.
While not at issue in the instant motion, Plaintiffs allege in their Complaint that Altigen
paid a portion of the required consideration but has failed and refused to pay all consideration
owed under the APA. Instead of making the payments of cash and stock due on or about May 6,
2024, Plaintiffs contend that Altigen sent a letter purporting to be a claim against a warranty in
the APA. Plaintiffs argue that the letter failed to identify the substance of Altigen’s claim and
that the letter was sent without a reasonable or good faith belief that a valid claim under the
APA existed. Moreover, Plaintiffs contend that the letter was an attempt to mislead and
defraud Plaintiffs.
In responding to Plaintiffs’ Complaint, Altigen has asserted counterclaims against
Plaintiffs, alleging that Plaintiffs breached their warranty under Section 2.15 the APA. In the
instant motion, Altigen has moved for summary judgment as to liability on Plaintiffs’ breach of
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 2 of 12

3
contract and declaratory judgment claims and on Altigen’s breach of contract and declaratory
judgment counterclaims.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”1 The moving
party has the initial burden of showing an absence of evidence to support the non-moving
party’s case.2 The non-moving party must then “identify specific facts that show the existence
of a genuine issue of material fact,” and “must present sufficient evidence in specific, factual
form for a jury to return a verdict in that party’s favor.”3
In their Opposition Memorandum, Plaintiffs have purported to dispute several of the
facts set forth in Altigen’s Statement of Material Facts. The court finds, however, that none of
the disputes raise genuine issues of material fact, as the disputes are irrelevant for purposes of
deciding the motion or are subjective interpretations of the contract language. Moreover,
Plaintiffs’ “additional facts” are not essential to the disposition of Altigen’s claims.
DISCUSSION
Altigen argues that Plaintiffs breached the following warranty (emphasized below in
italics) under Section 2.15 of the APA:
2.15 Material Customers; Material Suppliers. Schedule 2.15 contains a list of
(a) the 10 largest customers of Seller (the “Material Customers”), based on
the gross revenues of Seller for the 12 months ending January 31, 2022, and
1 Fed. R. Civ. P. 56(a).
2 GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1200 (10th Cir. 2022).
3 Id. (quoting Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995)).
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 3 of 12

4
(b) the 10 largest vendors of Seller (the “Material Vendors”), based on the
gross dollar purchases of Seller for the 12 months ending January 31, 2022.
Seller has not received within the past 12 months prior to the date hereof
any written (or, to Seller’s Knowledge, oral) notice from (x) any of the
Material Customers or Material Vendors that such customer or vendor has
terminated or intends to terminate or materially change its business
relationship with Seller or (y) any of the Material Customers that such
customer has requested or attempted to negotiate any discount with respect
to any Contract. Seller does not have any outstanding material dispute
concerning its or their respective products or services with any Material
Customer or Material Vendor and, to Seller’s Knowledge, there is no material
dissatisfaction on the part of any Material Customer or Material Vendor and
there is no circumstance that exists that would reasonably be expected to
cause any Material Customer or Material Vendor to terminate or materially
change its business relationship with Seller.
Altigen argues that this warranty was effective as of the APA’s effective date (March 6,
2022) and the APA’s closing date (May 6, 2022)—and that the warranty survives until three
years after the closing date (May 6, 2025).4 And Altigen has provided undisputed evidence that,
as of the May 6, 2022, the closing date, senior ZAACT employees knew of circumstances that
“would reasonably be expected to cause” three Material Customers “to terminate or materially
change their business relationship” with ZAACT because (1) one Material Customer [ABOUT
Healthcare, Inc.] had decided to cease purchasing ZAACT services, (2) another Material
Customer [IHC] had made a technical decision that made future ZAACT services unnecessary,
and (3) a third Material Customer [Boral] had decided to hire the ZAACT consultant who
4 See id. §§ 1.5(a), 5.10(a).
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 4 of 12

5
handled substantially all of ZAACT’s work for it directly, thereby ending its need for ZAACT’s
services.
Altigen contends that the purchase of ZAACT’s assets was conditioned on the truth of
this, and other, representations and warranties. Thus, according to Altigen, Plaintiffs’ breach of
this warranty is a manifest breach of the APA and Plaintiffs must indemnify Altigen for any
losses arising out of their breach.5 Further, Altigen argues that it is entitled to offset the
damages caused by Plaintiffs’ breach against any Deferred Consideration that would otherwise
be owed to Plaintiffs.6
Moreover, Altigen argues, even setting aside the undisputed evidence of a breach of
warranty that entitles Altigen to indemnification, Plaintiffs waived their right to contest
Altigen’s claims because Plaintiffs failed to timely respond to Altigen’s Claim Notice.7 Altigen
sent its Claim Notice on April 26, 2024, explaining that it was seeking indemnification for the
damages caused by Plaintiffs’ breach of the material warranties and representations in Section
2.15.8 Under Section 5.10(d) of the APA, Plaintiffs had to respond within 15 days or “any Claim
specified in [the] Claim Notice will be conclusively deemed an immediately due and payable
obligation of the Indemnifying Party.”9It is undisputed that Plaintiffs failed to respond within 15
5 Id. § 5.10(b).
6 Id. § 5.10(f).
7 Id. § 5.10(d).
8 Id., Ex. B.
9 Id., Ex. A § 5.10(d).
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 5 of 12

6
days of the Claim Notice as required by Section 5.10(d), and thus, according to Altigen, Plaintiffs
are conclusively deemed liable for the damages caused by their breach.10
As a result, Altigen argues that the court should enter summary judgment in favor of
Altigen and against Plaintiffs on all of Plaintiffs’ claims and all of Altigen’s counterclaims
because it cannot reasonably be disputed that Plaintiffs are liable for the damages caused by
their breach of Section 2.15 of the APA.
Plaintiffs, on the other hand, argue that Altigen has failed to properly authenticate its
proferred evidence (various emails) against Plaintiffs, and the court should therefore deny the
motion on this ground alone. Plaintiffs also request that the court defer ruling on the motion so
that they can conduct further discovery. Finally, they argue, even if the court considers the
email evidence on which Altigen has relied, Plaintiffs contend that the emails do not reflect any
change in, or termination of, the clients’ relationships with ZAACT. Rather, Plaintiffs argue,
ZAACT performed project-based work, and the proffered emails show no change in that
pattern. According to Plaintiffs, none of these emails indicate a termination of or material
change to ZAACT’s relationship with these customers. Rather, each of these clients had multiple
work orders with ZAACT over the course of their relationship, and it was expected that each of
them would continue to bring IT-related consulting work to Altigen moving forward. Plaintiffs
maintain that the end of a project—and a gap before engaging on the next project—is status
quo for ZAACT’s relationships with its customers, not a “termination or material change in their
relationship” that would have breached the warranty.
10 Id.
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 6 of 12

7
The court agrees with Altigen and rejects Plaintiffs’ arguments. First, Altigen’s evidence
has been properly authenticated because the documents were produced to Altigen by Plaintiffs
themselves. Moreover, in his declaration, Altigen’s counsel does not attest to the facts
contained within the documents, only that they are true and correct copies. Also, because the
documents had been produced by Plaintiffs, “some courts would consider them to be ‘self-
authenticating’ and to ‘constitute the admissions of a party opponent.’”11 “Other courts have
even pointed out to litigants like [defendant] that ‘it is disingenuous and wasteful to object to
one’s own documents based upon personal knowledge or authentication.’”12 The court finds
that the documents were properly authenticated and/or were self-authenticating.
The court also declines to defer ruling on the motion under FRCP 56(d) because
Plaintiffs did not comply with the rules for filing a 56(d) motion. “Rule 56(d) permits a court to
defer considering a motion for summary judgment when ‘a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition.’”13 But Plaintiffs did not submit an affidavit or declaration regarding additional
discovery. The only declaration associated with the Opposition is the Day Declaration, which
contains factual assertions unrelated to Plaintiffs’ 56(d) request. Plaintiffs have failed to set forth
the facts they believe remain to be discovered that are essential to justifying their opposition to
Altigen’s motion.
11 Id. (quoting Anand v. BP W. Coast Prods. LLC, 484 F. Supp 2d 1086, 1092 n.11 (C.D. Cal. 2007)).
12 Id. (quoting OFI Intern., 2015 WL 140134, at *3).
13 Trans-W. Petroleum, Inc. v. United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016)
(emphasis added).
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 7 of 12

8
As to Plaintiffs’ argument that the email communications at issue did not reflect any
change in, or termination of, the clients’ relationships with ZAACT, the court is also not
persuaded. The warranty in Section 2.15 is broad and required Plaintiffs to disclose to Altigen
“any circumstance” that would “reasonably be expected to cause” a “termination or material
change” in Material Customers’ “business relationship” with ZAACT. Plaintiffs’ subjective belief
that these “Material Communications” did not trigger the warranty (because the work was
project-based and might pick up again in the future) is irrelevant because Delaware law governs
the APA. Delaware’s objective “reasonable investor” standard applies to Section 2.15, and
documents produced during discovery establish that Plaintiffs did indeed believe that ZAACT’s
business relationship with the at-issue customers was materially changing and/or terminating.
Under Delaware law, a fact is “material” for purposes of an acquisition if there is a “substantial
likelihood that the . . . fact would have been viewed by the reasonable investor as having
significantly altered the ‘total mix’ of information.”14
Thus, the appropriate inquiry is whether a reasonable investor such as Altigen would
have considered the Material Communications to have “significantly altered the total mix of
information” prior to acquisition.15 The court finds, as a matter of law, that Altigen would have
considered the Material Communications to have “significantly altered the total mix of
information” prior to acquisition.
Plaintiffs make one additional argument that warrants consideration. Paragraph 1.5 of
the APA states, in part, “[a]ll of the representations and warranties made by Seller or Owner in
14 Akorn, 2018 WL 4719347, at *86.
15 Id.
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 8 of 12

9
this Agreement must be (i) true and correct as of the date hereof and (ii) true and correct in all
material respects at and as of the Closing as though made on the Closing Date (except to the
extent such representations and warranties are made as of a specified date, in which case, such
representations and warranties must be true and correct in all material respects as of such
specified date).”16
Plaintiffs argue that “the date hereof,” is the effective date of the APA, March 4, 2022.
And because “the date hereof” is a “specified date,” the warranty is made as of the specified
date, not as of the closing date of May 6, 2022. Therefore, Plaintiffs maintain, even if the emails
cited by Altigen constitute written (or to the extent they refer to phone calls, oral) notices of an
intent to terminate or materially change the relationship, or a “circumstance,” of such, the
representations are limited to March 4, 2022, and Altigen’s only allegation is that ZAACT and
Mr. Day acquired relevant knowledge after that date—in April or May of 2022. Thus, Plaintiffs
argue, Altigen has not identified any such evidence that pre-dates the signing of the APA.
As stated above, Section 1.5(a) of the APA provides that “[a]ll of the representations and
warranties made by Seller or Owner in this Agreement must be (i) true and correct as of the date
hereof and (ii) true and correct in all material respects at and as of the Closing as though made
on the Closing Date (except to the extent such representations and warranties are made as of a
specified date, in which case, such representations and warranties must be true and correct in all
material respects as of such specified date).”
16 Id. § 1.5(a) (emphasis added).
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 9 of 12

10
The court agrees with Altigen that Plaintiffs are mistakenly focused on the first part of
paragraph 2.15, which is limited to “the date hereof.” While Plaintiffs may have breached this
first provision, it is not the subject of Altigen’s Motion. Instead, Plaintiffs have breached the
italicized portion of Section 2.15 (as set forth above). That clause does not have a specified date,
and therefore, under the plain terms of the APA, Plaintiffs were required to make the
representation as of both the effective date of the APA and the closing date.
Further, if there were any doubt that the warranty applied on the effective date and on
the closing date, the reference to “Seller’s Knowledge” in the operative clause in Section 2.15
dispenses with such doubt because Article VII, Section 7.1 defines “Seller’s Knowledge” as
follows:
“Seller’s Knowledge” means the knowledge as of the date hereof and as
of the Closing Date of Owner and each member of the executive
management team of Seller, each after having conducted a reasonable
investigation.
Because of the reference to “Seller’s Knowledge” in the last clause of Section 2.15, it clearly
requires that, as of the APA’s signing date and “as of the Closing Date,” Plaintiffs should have
made the identified disclosures.
Regarding whether Plaintiffs’ failure to timely respond to Altigen’s letter demanding
indemnity, Plaintiffs argue that Altigen failed to satisfy the requirements established by the APA
because Altigen’s notice was not prompt, as Altigen waited two years before making the
indemnity demand, and the letter failed to include the basis for the indemnity claim. Therefore,
Plaintiffs argue, because Altigen’s letter did not comply with the requirements of the APA, it did
not constitute notice, and Plaintiffs’ response was therefore timely.
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 10 of 12

11
The court also rejects this argument. Altigen has set forth why it waited two years to
make its indemnity demand, there are no material disputes about the reasons set forth, and
the APA does not define the term “promptly.” Even if Plaintiffs’ arguments had merit, the APA
prevents the parties from arguing that knowledge of a potential breach is a defense to their
indemnification obligations under Section 5.10. That section states, “[t]he fact that a Purchaser
Indemnitee or a Seller Indemnitee conducted a due diligence investigation or had knowledge of
a breach or inaccuracy of a representation or warranty, or the nonperformance or breach of a
covenant or agreement, will not be a defense to any party’s obligations under this Section
5.10.” Id. § 5.10(j). Plaintiffs’ “delay” argument is based on the assertion that “Altigen therefore
knew or should have known everything it alleged it now knows about Plaintiffs’ supposed
breach right after closing and its purported effects as early as May 2022, and no later than April
2023, yet it waited until April 26, 2024, to send the letter.” Under Section 5.10(j), however,
Plaintiffs cannot rely on Altigen’s purported knowledge of breach as a defense to their duty to
indemnify.
Further, contrary to Plaintiffs’ assertion, Altigen properly included the basis for the
indemnity claim. There is no contractual requirement that Altigen provide more specification
than it did. Therefore, for this independent reason, the court grants Altigen’s motion based on
Plaintiffs’ failure to timely respond to Altigen’s indemnity demand.
CONCLUSION
Accordingly, Altigen’s Motion for Summary Judgment as to Liability on their breach of
contract and declaratory judgment counterclaims [ECF No. 21] is GRANTED on two independent
grounds: Plaintiffs breached the plain terms of the warranty clause in APA Section 2.15, and
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 11 of 12

12
Plaintiffs waived their right to contest Altigen’s claim because Plaintiffs failed to timely respond
to Altigen’s indemnity demand.
If the parties are interested in participating in a settlement conference before a
magistrate judge, as suggested in the parties’ recent Scheduling Order, 17 they may file a
Motion for Settlement Conference, and the court will refer the case to a magistrate judge for
the purpose of conducting a settlement conference. Otherwise, the parties should proceed
according to the October 29, 2025, Scheduling Order.
DATED this 5th day of December 2025.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
17 ECF No. 36 at 3.
Case 2:24-cv-00538-DAK-CMR Document 37 Filed 12/05/25 PageID.<pageID>
Page 12 of 12