American Arbitration Association International Centre for Dispute Resolution Case No. 01-17-0003-0930
Submittal of Opinions to Arbitration Tribunal and Testimony at Hearing
Technology: Laser device intended for used by healthcare providers on patients to combat MRSA and
other superbug infections.
Case Issues: In 2014, Selex agreed with Nomir to develop and commercialize Nomir’s proprietary laser device intended for use by healthcare providers on patients to combat MRSA and other
superbug infections. Nomir terminated the agreement in 2017, contending that Selex had ceased to materially develop the technology. Selex sued for wrongful termination, and Nomir
countersued, seeking the recovery of the alleged lost value of its technology. At the arbitration hearing, Mr. Malackowski addressed the appetite of Venture Capital (“VC”) firms for life science and medical device investments during the 2014 to 2017 time period. Mr. Malackowski also addressed the opportunity for Nomir to secure alternative VC funding to continue development, assuming the viability of the technology. Mr. Malackowski contended that the failure of the VC market to recognize the viability of Nomir’s technology undermined the annual sales forecasts and risk factors within Nomir’s damages calculations. Mr. Malackowski also asserted that, were Nomir’s technology viable, Nomir could have mitigated its losses by securing VC funding within a short period of time.
The Arbitration Tribunal ruled in favor of Selex, holding that Nomir had failed to prove its technology was “safe and effective” or commercially viable, making its damages claim too speculative. The Tribunal awarded Selex Galileo $7.4 million in damages, interest, and costs, upholding Selex’s claim that Nomir had wrongfully terminated the 2014 agreement.