Electronically FILED by Superior Court of California, County of Los Angeles on 10/27/2022 10:53 AM Sherri R.

Carter, Executive Officer/Clerk of Court, by P. Perez,Deputy Clerk

1 PATRICK BALDWIN, ESQ. (SBN 93337)

CHRISTOPHER MADER, ESQ. (SBN 199605)
2 BALDWIN MADER LAW GROUP
516 North Sepulveda Boulevard
3
Manhattan Beach, CA 90266
4 Phone: (310) 363-2031
Attorneys for Plaintiff Dr. Fabio Albano
5

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8 FOR THE COUNTY OF LOS ANGELES

10

11 DR. FABIO ALBANO, ) CASE NO.: 20TRCV00731

)
12 Plaintiff, ) MEMORANDUM OF POINTS AND
13 ) AUTHORITIES IN SUPPORT OF MOTION
v. ) TO CONFIRM ARBITRATION AWARD
14 )
HENRIK FISKER, DR. GEETA ) Date: March 7, 2023
15 FISKER, FISKER, INC. and DOES 1 ) Time: 8:30 a.m.
through 10, inclusive, ) Dept.: B
16 ) Judge: Hon. Gary Y. Tanaka
Defendants. )
17
) Reservation No.: 459877238300
18 )
)
19 __________________________________ )
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

1 I. INTRODUCTION
2 Dr. Fabio Albano hereby moves to confirm the Arbitration Award against Henrik Fisker,
3
Geeta Fisker and Fisker, Inc. in the amount of Six Million, Four Hundred and Ninety-Five
4
Thousand, Six Hundred and Twenty-Seven Dollars ($6,495,627) issued by Arbitrator Hon. James
5
A. Steele (Ret.) on October 4, 2022.
6

7 A. Summary and Background of the Case

8 Dr. Fabio Albano, Fisker, Inc.’s former CTO, Vice President of Battery Systems and third

9 employee after Henrik Fisker and Geeta Fisker, voluntarily left the company in May 2019 to work
10 for Dr. Patrick Soon-Shiong at NantEnergy, Inc. Dr. Albano left Fisker, Inc. because Geeta Fisker
11
was abusive to employees and made homophobic remarks about Dr. Albano, Henrik Fisker publicly
12
misrepresented Dr. Albano’s solid-state battery technology, and the Fiskers refused to pay the equity
13
due him for his work and the technology he sold to the company. Apart from the sale of his
14

15 technology, Dr. Albano worked very hard introducing Fisker, Inc. to his industry contacts. There

16 was no interest in yet another car design, but there was significant interest in Dr. Albano’s battery

17 technology. Dr. Albano pitched Fisker, Inc. to Jeff Bezos, Vinod Khosla, Dr. Patrick Soon-Shiong,
18
Sequoia Capital, Kleiner Perkins and other top-tier venture firms. Henrik Fisker touted Dr. Albano
19
and his technology to generate funding.
20
In April 2019, Fisker, Inc. was sued by QuantumScape Corporation, a competing battery
21
company in Silicon Valley. QuantumScape alleged that Fisker, Inc. misappropriated its technology.
22

23 When Dr. Albano left Fisker, Inc., he requested his equity, but in an act of personal revenge Geeta

24 Fisker tried to pin the QuantumScape lawsuit on him. Dr. Albano offered to mediate the dispute but
25 the Fiskers filed a lawsuit for indemnity regarding the QuantumScape lawsuit. Having no choice,
26
Dr. Albano responded with his own action asserting that he had left Fisker, Inc. voluntarily, and was
27
not terminated “for cause” as falsely alleged by Fisker, Inc.
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 Judge Steele determined that Dr. Albano was correct, and issued an Award that Fisker, Inc.
2 pay the equity due to him. In an exhaustive and detailed analysis, Judge Steele completely denied
3
all of Fisker, Inc.’s claims and ruled in favor of Dr. Albano, awarding him $6,495,627 in damages.
4
Complete copies of Judge Steele’s Interim Awards and Final Award are filed concurrently herewith,
5
as exhibits to the Declaration of Christopher Mader, Esq. (“Mader Decl.”).
6

7 Judge Steele specifically found that “Dr. Albano was wrongfully denied the shares he should

8 have obtained” (Mader Decl., Exhibit A P. 37, L. 9-10) and Awarded to him the following amounts:

9 $5,777,654 639,121 Fisker Shares (“FSR”) Valued as of July 7, 2022, the

date of Judge Steele’s Interim Award No. 1
10

11 $245,758 Value of 69,445 Vested Options

12 $87,039 Interest at the Rate of 10% on the Value of the 69,445 Vested
Options, accruing August 23, 2019 - March 7, 2023 (presumed
13 date of entry of Judgment)
14 As explained herein, Dr. Albano is also entitled to pre-judgment interest on the $5,777,654
15
awarded in connection with the 639,121 Fisker Shares, accruing from July 7, 2022 (the date Judge
16
Steele valued the shares and the claim became liquidated) through the date of entry of Judgment,
17
presumably March 7, 2023, in the amount of $385,176. Thus, the total amount of the Judgment to
18

19 be entered is $6,495,627.

20 A review of the decision makes clear that Judge Steele went out of his way to highlight that

21 this matter was anything but a close call, specifically finding that Fisker, Inc.’s principal allegation,
22
that Dr. Albano “mined” proprietary information from a competitor firm, “was unconvincing, at
23
best.” Mader Decl., Exhibit A P. 11, L. 18 – P. 12, L. 5. Emphasis added. Regarding Fisker, Inc.’s
24
other principal allegation, that the company’s investigation of Dr. Albano showed its “good faith”
25
in purportedly terminating him, Judge Steele found that “the Fiskers themselves were shockingly
26

27 unaware” of any facts concerning that investigation. Mader Decl., Exhibit A P. 31, L. 1-9.

28 Emphasis added.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 Judge Steele also went out of his way to highlight the untruthful testimony offered by Fisker,
2 Inc., and was particularly scathing in his opinion regarding the company’s CFO, Geeta Fisker,
3
finding her testimony to be “less than credible in numerous instances” (Mader Decl., Exhibit A
4
P. 12, L. 13, emphasis added), her sworn testimony in the QuantumScape matter “should be viewed
5
with skepticism” (Mader Decl., Exhibit A P. 23, L. 5, emphasis added) and her “conduct at
6

7 deposition in the QuantumScape matter fell dramatically short of the ‘scrupulous regard for the

8 highest standards of conduct and personal integrity’ . . ..” Mader Decl., Exhibit A P. 24, L. 3-6.

9 Judge Steele also found Fisker, Inc. employee Chris Castro’s “testimony lacked credibility and some
10 of it, actually appeared to be false.” Mader Decl., Exhibit A P. 21, L. 12-16.
11
After two years of intensive litigation involving the exchange of tens of thousands of
12
documents, depositions and numerous pre-trial motions, 7 days of evidentiary hearings during which
13
12 witnesses testified, one day of closing arguments and several rounds of post-trial briefing, Judge
14

15 Steele issued 54 pages of detailed post-trial analysis and opinion, dismissing as groundless all of

16 Fisker, Inc.’s claims against its former star employee, Dr. Albano.

17 Fisker, Inc. had claimed that a lawsuit filed by QuantumScape against Fisker, Inc. in the
18
Santa Clara County Superior Court in 2019 was caused by Dr. Albano hiring a scientist away from
19
QuantumScape, and then “mining” QuantumScape confidential proprietary information from her.
20
Fisker, Inc. asked for damages in the amount of $965,212 against Dr. Albano. But Dr. Albano
21
showed Fisker, Inc.’s claims to be false. Judge Steele specifically found that Fisker, Inc.’s decision
22

23 to hire the QuantumScape scientist “was that of Dr. Fisker.” Mader Decl., Exhibit A P. 11, L. 18 –

24 P. 12, L. 5. Judge Steele particularly noted independent third-party testimony concerning “Dr.
25 Fisker’s fixation with all things QuantumScape” (Mader Decl., Exhibit A P. 13, L. 9-16), and her
26
“great interest in acquiring employees from QuantumScape.” Mader Decl., Exhibit A P. 13, L. 9-
27
16. Finally, Judge Steele found that Dr. Albano neither wanted nor needed QuantumScape
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 technology: “Nor was there any hint of evidence, or even a claim, that any of the foregoing either
2 personally or professionally benefited Dr. Albano, was ever intended to personally or professionally
3
benefit him, or that any such information was in any way misused by Dr. Albano.” Mader Decl.,
4
Exhibit A P. 32, L. 19-21.
5
Dr. Albano not only defeated Fisker, Inc.’s claims, but he also won on his counter-claims
6

7 against Henrik Fisker, Geeta Fisker and Fisker, Inc. Dr. Albano voluntarily resigned from Fisker,

8 Inc. because of the toxic work environment created by Geeta Fisker’s homophobic behavior and

9 because of Henrik Fisker’s repeated public exaggerations and misrepresentations concerning the
10 status and capabilities of the solid-state battery technology that Dr. Albano had sold the Company.
11
After Dr. Albano resigned, the company falsely claimed that he had been terminated “for cause,”
12
and therefore all of his equity in Fisker, Inc. was forfeited. Fisker, Inc.’s supposed termination was
13
purely revenge, in retaliation for Dr. Albano’s objections to Geeta Fisker’s abusive behavior and
14

15 Henrik Fisker’s repeated public misrepresentations about the company’s technology. Judge Steele

16 Awarded Dr. Albano $6,495,627 against Henrik Fisker, Geeta Fisker and Fisker, Inc.

17 No doubt in view of the Fisker Defendants’ repeated veiled threats that they “reserved all
18
rights,” it is clear that Judge Steele’s 54 pages of post-trial analysis and opinion are intended to
19
demonstrate that he exhaustively analyzed all of the claims, defenses, evidence and testimony in
20
order to preclude any attack on his decision. As stated by Judge Steele and as is fully detailed herein:
21
“[t]he parties were afforded opportunities for law and motion practice as well as extensive
22
discovery which included depositions as well as the right to call and examine both percipient
23 and expert witnesses during the evidentiary hearings.” Mader Decl., Exhibit A P. 3, L. 5-7.

24 B. A Conforming Judgment Must Be Entered

25 This Court must confirm the Arbitration Award and enter a confirming Judgment pursuant
26
to The California Arbitration Act, Title 9 of the Code of Civil Procedure §1280, et seq. (the “Act”),
27
and in particular Sections 1285 and 1287.4 thereof.
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 Pursuant to California Supreme Court precedent, “arbitration awards are generally immune
2 from judicial review.” Moncharsh v. Heily & Blasé, 3 Cal.4th 1, 10 (1992). Under California law,
3
Courts will not review the merits of the controversy, the validity of the arbitrator’s reasoning or the
4
sufficiency of the evidence supporting the arbitrator’s award. Id. at 8, 12.
5
II. FACTS
6

7 Dr. Albano is renowned in the field of solid-state batteries, and the author of 44 U.S. and

8 international patents. His solid-state battery patent and technology was the centerpiece of Fisker,

9 Inc., an electric vehicle (“EV”) start-up founded in 2016.

10 After acquiring Dr. Albano’s patent and technology, and after his nearly three years of
11
intense work building the company, Henrik Fisker and Geeta Fisker refused to transfer to Dr. Albano
12
any of the equity that he owned and had earned in the company. After Dr. Albano voluntarily
13
resigned from Fisker, Inc. in May 2019, Geeta Fisker shockingly told the company’s then-Human
14

15 Resources Manager, Angela Flores, that she would find a reason retroactively to terminate Dr.

16 Albano “for cause.” Nearly two weeks after Dr. Albano voluntarily resigned, Henrik Fisker sent

17 Dr. Albano an e-mail falsely stating that he had been terminated “for cause,” and thus his equity in
18
the company was forfeited.
19
Dr. Albano had never done anything justifying termination from Fisker, Inc. In fact, during
20
her June 2019 deposition in the QuantumScape matter, Geeta Fisker admitted under penalty of
21
perjury that Dr. Albano had left the company voluntarily. Rather, the Fiskers purportedly
22

23 “terminated” Dr. Albano and seized his equity in retaliation for his objections to Geeta Fisker’s

24 abuse and Henrik Fisker’s public misrepresentations regarding Dr. Albano’s solid-state battery
25 technology. For two and one-half years on television, interviews with Stuart Varney, print
26
interviews and social media, Henrik Fisker exaggerated the capabilities and status of the solid-state
27
battery technology that Dr. Albano had sold to the company.
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 A. Fiskers’ Claims Against Dr. Albano – All Rejected by the Arbitrator
2 On October 5, 2020, Fisker, Inc. filed its Statement of Claim against Dr. Albano at the
3
American Arbitration Association (“AAA”). Mader Decl. Fisker, Inc. filed an Amended Claim on
4
February 12, 2021 (Mader Decl., Exhibit B), alleging the following:
5
▪ Dr. Albano hired a QuantumScape scientist to work at Fisker, Inc. “because of her
6 knowledge of QuantumScape’s battery development processes.” Mader Decl.,
7 Exhibit B ⁋14. As soon as that QuantumScape scientist started at Fisker, Inc., Dr.
Albano “began to mine QuantumScape’s proprietary information from her.” Mader
8 Decl., Exhibit B ⁋16.

9 ▪ As a result of Dr. Albano’s alleged “mining” of QuantumScape proprietary

information, Fisker, Inc. “was accused of misappropriation of a competitor’s
10 [QuantumScape’s] trade secrets and interference with the competitor’s contractual
11 relations. [Fisker, Inc.] incurred losses and attorneys’ fees defending itself in
[QuantumScape’s] lawsuit . . ..” Mader Decl., Exhibit B ⁋1.
12
Fisker, Inc. asked for damages in the amount of $965,212 against Dr. Albano.
13
B. Dr. Albano’s Counter-Claims – Granted by the Arbitrator
14

15 On October 9, 2020, Dr. Albano filed the Complaint against Henrik Fisker, Geeta Fisker

16 and Fisker, Inc. in this action. Request for Judicial Notice (“RJN”), Exhibit C. On October 23,

17 2020, the Fisker Defendants filed a Motion to Compel Arbitration based in part upon the arbitration
18
provision in the Fisker, Inc. Employee Handbook, executed by Dr. Albano:
19
“All disputes arising out of or relating to your employment with Fisker will be
20 submitted to binding, non-appealable arbitration before the American Arbitration
Association . . ..” RJN, Exhibit D P. 38 of Exhibit B thereto. Emphasis added.
21
On November 19, 2020, this Court granted that Motion to Compel Arbitration. RJN,
22

23 Exhibit E P. 4. On March 12, 2021, Dr. Albano filed his Statement of Claim against Henrik

24 Fisker, Geeta Fisker and Fisker, Inc. at the AAA. Mader Decl. Dr. Albano filed an Amended
25 Statement of Claim on August 6, 2021 (Mader Decl., Exhibit F), wherein he alleged the following:
26
▪ In June 2016, Henrik Fisker and Geeta Fisker approached Dr. Albano, and the three
27 discussed the formation a new EV venture, which eventually became Fisker, Inc.
At the time the Fiskers approached Dr. Albano they had no electric battery and no
28 funding. Mader Decl., Exhibit F ¶2.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 ▪ Through the fall of 2016, potential investors balked at investing in Fisker, Inc.
because the company did not have the ability to develop “in-house” its own battery.
2 Mader Decl., Exhibit F ¶8. The Fiskers knew that Dr. Albano had spent years
developing a “solid-state” battery patent. Mader Decl., Exhibit F ¶9.
3

4 ▪ Fisker, Inc. and Dr. Albano entered into an agreement whereby in exchange for Dr.
Albano’s transfer to Fisker of his solid-state battery patent, Fisker, Inc. granted Dr.
5 Albano 23,530 Options to purchase Class A Common Shares of the company.
Mader Decl., Exhibit F ¶11. Fisker, Inc.’s entire line of EVs was to be based on
6 Dr. Albano’s revolutionary battery and patent, which he had spent his entire career
7 developing. Mader Decl., Exhibit F ¶13.

8 ▪ Only after Dr. Albano transferred his patented solid-state battery technology to
Fisker, Inc. thereby enabling the company to demonstrate that it could compete with
9 Tesla, was there any significant investor interest in the company. Funding sources
would not invest unless and until they met with Dr. Albano, and understood and
10 vetted his technology. Mader Decl., Exhibit F ¶15.
11
▪ On May 9, 2019, Dr. Albano was hired as the Vice President of Technology for
12 NantEnergy, Inc. He voluntarily resigned from Fisker, Inc. the next day, May 10,
2019. Mader Decl., Exhibit F ¶22. Nearly two weeks after Dr. Albano’s resignation,
13 on May 23, 2019, Fisker, Inc. falsely claimed that Dr. Albano had been terminated
“for cause,” and thus forfeited all the equity he owned and had earned in Fisker, Inc.
14 Mader Decl., Exhibit F ¶24.
15
▪ Geeta Fisker instructed the then-head of Human Resources, to retroactively terminate
16 Dr. Albano “for “cause” out of revenge. Mader Decl., Exhibit F ¶61. Henrik Fisker
had routinely made exaggerated public claims about Fisker’s development of the
17 solid-state battery, which had been an ongoing point of contention between him and
Dr. Albano. As leader of the “Battery Team” and inventor of the technology, Dr.
18
Albano would “push-back” on these false statements, to which Geeta Fisker
19 responded that he should essentially just “shut up.” Mader Decl., Exhibit F ¶58.

20 III. THE AAA ARBITRATION

21 On March 22, 2021, the AAA appointed Hon. James A. Steele (Ret.) as Arbitrator through
22
the AAA’s standard procedure and policy.1 As stated in Judge Steele’s Interim Award No. 1, “[t]he
23
parties were afforded opportunities for law and motion practice as well as extensive discovery which
24
included depositions . . ..” Mader Decl., Exhibit A P. 3, L. 5-6.
25
///
26

27
1
The parties accepted Judge Steele as the Arbitrator in writing and on the record. Judge Steele
28 retired from the Los Angeles County Superior Court in 2014. Mader Decl., Exhibit G.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD
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1 A. Judge Steele Presided Over 7 Evidentiary Hearings
2 On March 29-31, 2022, and April 1, 11-13 2022, the AAA conducted evidentiary hearings,
3
presided over by Judge Steele, on Fisker, Inc.’s claims against Dr. Albano, and on Dr. Albano’s
4
claims against Henrik Fisker, Geeta Fisker and Fisker, Inc. Mader Decl., Exhibit A P. 2, L. 1-15.
5
As stated by Judge Steele, “[a]ll parties were afforded the opportunity to call whatever witnesses
6

7 desired.” Mader Decl., Exhibit A P. 3, L. 16-17. During those evidentiary hearings, the parties

8 called and examined one dozen percipient and expert witnesses, as follows: Dr. Fabio Albano; Geeta

9 Fisker; Henrik Fisker; Dr. Marca Doeff, Senior Scientist at Lawrence Berkeley National Laboratory;
10 Dr. John Chmiola, former Fisker, Inc. Senior Scientist; Martin Welch, former Fisker, Inc. Senior
11
Vice President and Director of Engineering; Angela Flores, former Fisker, Inc. Human Resources
12
Manager; Marquie Steward, former assistant to Geeta Fisker; Christopher Castro, Fisker, Inc.
13
Intellectual Technology Senior Manager; Expert Michael Robbins, Esq., Workplace Investigation
14

15 and Employment Termination; Expert Michael Bandemer, Forensic Computer Analyst; and Expert

16 Gregg Campanella, Options Valuation. Mader Decl., Exhibit A P. 3, L. 8-13.

17 B. The Parties Filed Extensive Closing and Post-Trial Briefs

18
On April 28, 2022, the parties submitted closing briefs. On May 2, 2022, Judge Steele
19
presided over the parties’ closing arguments, and on July 7, 2022, Judge Steele issued a 38-page
20
Interim Award No. 1. Mader Decl., Exhibit A. On July 21, 2022, the parties submitted additional
21
briefing, and on August 11, 2022, Judge Steele issued a 12-page Interim Award No. 2. Mader Decl.,
22

23 Exhibit H. The parties submitted additional briefing on August 26, 2022. Mader Decl.

24 IV. JUDGE STEELE ISSUED A FINAL AWARD ON OCTOBER 4, 2022

25 On October 4, 2022, Judge Steele issued a 4-page Interim Award No. 3 and the Final Award
26
(Mader Decl., Exhibit I) which consolidated Interim Award Nos. 1 and 2 and was served upon the
27
parties by the AAA that same day. Mader Decl., Exhibit J.
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 A. Judge Steele’s Award is Thorough, Decisive and Scathing as to the Fiskers
2 In his 54 pages of detailed analysis and opinion, Judge Steele was extraordinarily decisive
3
regarding the Award in favor of Dr. Albano. Several of Judge Steele’s observations and conclusions
4
are cited hereinbelow. While the following excerpts are not exhaustive, they make clear that there
5
is no room to parse Judge Steele’s Award.
6

7 1. Geeta Fisker Was Found to be “Less than Credible”

8 Judge Steele found Geeta Fisker to be “less than credible in numerous instances” (Mader

9 Decl., Exhibit A P. 12, L. 13), finding that her sworn testimony in the QuantumScape matter “should
10 be viewed with skepticism” (Mader Decl., Exhibit A P. 23, L. 5), and that “[a]t the very least, Dr.
11
Fisker’s conduct at deposition in the QuantumScape matter fell dramatically short of the
12
‘scrupulous regard for the highest standards of conduct and personal integrity’ . . ..” Mader Decl.,
13
Exhibit A P. 24, L. 3-6. Emphasis added.
14

15 2. Dr. Albano’s Patent was Critical to Fisker, Inc.’s Success

16 Judge Steele found that acquiring Dr. Albano’s solid-state battery patent and technology was

17 critical to Fisker, Inc.’s ability to raise capital and overall success, contrary to the company’s
18 opposing argument:
19
“. . . the Fiskers downplayed what the Arbitrator finds to have been a critically important
20 role Dr. Albano played in ensuring Fisker’s success, although it had nothing to do with
the actual development and production of a proprietary battery system for Fisker vehicles.
21 . . . It was as a direct result of [Henrik Fisker’s prior EV venture] Fisker Automotive’s prior
failure that Henrik Fisker felt compelled to not only retain a battery expert of Dr.
22 Albano’s stature, but to almost immediately after acquiring Dr. Albano’s . . .
23 provisional patent, publicly tout Dr. Albano’s and Fisker’s advances in the field,
including Fisker’s acquisition of the [Dr. Albano’s] intellectual property. Not only is it
24 a reasonable inference from the evidence, but common-sense dictates that few rational
investors would be willing to put their capital at risk only to have the very same fate befall
25 the ‘new’ Fisker as befell its predecessor, Fisker Automotive. Henrik Fisker’s public
campaign in this regard included multiple interviews with Stuart Varney, articles in Forbes
26
Magazine, and events at the Las Vegas Consumer Electronics Show. Discussion of Fisker’s
27 battery program was prominent. Henrik Fisker also admitted to having Dr. Albano meet
with prospective investors, including Jeff Bezos, and having Dr. Albano travel with
28 Henrik Fisker to Europe and China in order to pitch investors [record citation]. Again,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 the evidence indicated that discussion of the battery under development was an important
aspect of the securing of investment and financing. For example, Caterpillar, apparently
2 having little or no interest in an automobile manufacturer, provided roughly $2.2 million
based on the company’s battery work.” Mader Decl., Exhibit A P. 4, L. 9 – P. 5, L. 9.
3
Emphasis added.
4
3. Fisker, Inc. Failed to Prove that its Purported Termination “For Cause”
5 of Dr. Albano was Made in “Good Faith”
6 Judge Steele found that Fisker, Inc. failed to prove that its purported termination of Dr.
7
Albano was made in “good faith”:
8
“And, Fisker, having taken the position, including by way of its 24th Affirmative Defense, that
9 it terminated Dr. Albano in good faith, thereby voiding Dr. Albano’s option rights as a result,
must bear the burden of proof with respect to whether or not the termination decision
10 was made in good faith. As explained in some detail below, Fisker has failed to meet
11 that burden.” Mader Decl., Exhibit A P. 7, L. 4-7. Emphasis added.

12 Fisker, Inc. had claimed that Dr. Albano’s allegedly poor job performance evidenced that his

13 purported “termination” was made in “good faith.” Judge Steele rejected that claim, finding that the
14 performance “milestones” established for Dr. Albano were based on “top-down pressure,” as
15
opposed to “any realistic assessment of achievable goals,” and thus were “virtually unattainable”:
16
“The testimony of Dr. Marca Doeff of The Lawrence Berkely National Laboratory, an expert
17 in the field who had been closely working with Fisker and Dr. Albano with respect to certain
facets of the battery technology, characterized some of those milestones, and aspects thereof,
18
as being virtually unattainable [record citation].” Mader Decl., Exhibit A P. 8, L. 12-16.
19
“Similarly, Martin Welch, who the Arbitrator found to be extremely credible, probably more
20 so than any other witness, and who had been Dr. Albano’s direct line supervisor, expressed
the difficulty that the financing limitations posed with respect to the battery team’s ability
21 to perform and deliver.” Mader Decl., Exhibit A P. 9, L. 12-15. Emphasis added.
22
“Those consequences, in the Arbitrator’s view, manifested themselves in the inability, or at
23 least contributed to the inability, of achieving at least some of the milestones. Judging from
the Fiskers’ demeanor, and the testimony of various witnesses regarding their management
24 styles, the Arbitrator infers that even the development of those milestones was far more likely
the product of top-down pressure or possibly mandate, as opposed to any realistic
25 assessment of achievable goals.” Mader Decl., Exhibit A P. 10, L. 4-8. Emphasis added.
26
Fisker, Inc. also claimed that it had “investigated” Dr. Albano, thereby evidencing that his
27
purported termination was made in “good faith.” Judge Steele rejected that claim:
28

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1 “Here, even ignoring the inconsistent sworn admission in deposition by Dr. Fisker which
occurred within just weeks of Dr. Albano’s termination for Cause, the entire process was
2 fraught with all sorts of problems.” Mader Decl., Exhibit A P. 29, L. 19 – P. 30, L. 1.
Emphasis added.
3

4 “. . . [T]he termination letter itself [record citation], says nothing about what Dr. Albano
actually did or failed to do, or when he did or failed to do so which constituted violations
5 of the cited provisions of the Handbook; only that Dr. Albano violated at least these 2
sections. Arguably, one could have given the very same notice to every single employee at
6 the time, and thereafter rooted around in order to determine whether or not there were
7 sufficient facts to later justify the initial decision. The fact that the investigation itself was
undertaken by counsel charged with defending the claim, and therefore not a neutral,
8 impartial and unbiased party, also created significant problems.” Mader Decl., Exhibit
A P. 30, L. 5-10. Emphasis added.
9
“Here, the Fiskers themselves were shockingly unaware of what the investigator did or
10 did not do. The Fiskers never received a written report and apparently never looked
11 at or prepared any notes or other documents. What little they knew at the time of the
investigation, if any, was what they were told in perhaps one telephone call by someone in
12 the firm representing the Company in these proceedings. Neither the Fiskers, nor the
Arbitrator, can be sure when that call actually occurred or what was said. Nor did the
13 Fiskers have any real sense of who was and who was not actually interviewed, what was
revealed in the interviews, if any, and/or what documentary or other evidence, separate and
14 apart from the Choi PowerPoint, might have supported the termination decision.” Mader
15 Decl., Exhibit A P. 31, L. 1-9. Emphasis added.

16 “Setting aside the lack of fairness to the employee in all this, from the evidence and what
may be inferred therefrom, the Arbitrator is of the opinion that the Fiskers were likely told
17 by someone, perhaps or perhaps not a person who actually conducted the investigation, that
after an ‘investigation’ of several days involving who knows what, something to the effect
18
of ‘don’t worry about the details but you’re good to go ahead and terminate Dr. Albano.’
19 The Fiskers then did so, presumably with [record citation] which, as earlier noted, recites no
factual basis for the decision but which, for good measure, included one basis having nothing
20 at all to do with [the former QuantumScape scientist]. None of this was consistent with
good faith as required by the parties’ agreement.” Mader Decl., Exhibit A P. 31, L. 10-
21 16. Emphasis added.
22
Fisker, Inc. also claimed that Dr. Albano’s purported termination was made in “good faith”
23
because: (1) he allegedly copied a PowerPoint presentation containing QuantumScape proprietary
24
information; (2) during a conference call with a third-party supplier, Dr. Albano allegedly discussed
25
QuantumScape proprietary information; and, (3) Dr. Albano used DropBox while at Fisker, Inc.
26

27 Judge Steele emphatically rejected each of these claims.

28 ///

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 Regarding the PowerPoint presentation, he found Geeta Fisker’s denial that she instructed
2 Dr. Albano to copy that presentation did not “ring true.” He also rejected Fisker, Inc.’s claim that it
3
was unaware of the presentation:
4
“. . . Dr. Fisker’s explanation of the events didn’t ring true.” Mader Decl., Exhibit A P.
5 16, L. 6. Emphasis added.
6 “Therefore, aside from the question of whether or not any of QuantumScape’s trade secrets
7 had actually been misappropriated, the Arbitrator finds untrue the claim that the Fiskers
were unaware until May 23, 2019 that the PowerPoint had been downloaded to Dr.
8 Albano’s laptop and/or that Dr. Albano had not informed senior management that he had
been in possession of the PowerPoint until after the QuantumScape litigation was
9 commenced.” Mader Decl., Exhibit A P. 18, L. 1-4. Emphasis added.
10 Regarding the conference call with the third-party material supplier, Judge Steele found no
11
credible evidence supporting Fisker, Inc.’s allegations:
12
“However, if there was any evidence supporting these allegations, Fisker never presented
13 it.” Mader Decl., Exhibit A P. 18, L. 14. Emphasis added.
14 “Nor was there any credible evidence presented in this arbitration that Dr. Albano was trying
15 to obtain any confidential or proprietary information from or pertaining to QuantumScape
incident to the [third-party supplier] call.” Mader Decl., Exhibit A P. 20, L. 11-13.
16
Regarding Dr. Albano’s use of DropBox while employed at Fisker (supposedly against the
17
company’s rules), Judge Steele found Fisker, Inc.’s chief witness lacked credibility:
18

19 “The chief witness offered against Dr. Albano in this regard was Christopher Castro. . . .
Overall, much of Mr. Castro’s testimony lacked credibility and some of it, actually
20 appeared be false (e.g., the date Mr. Castro testified when Dr. Albano allegedly received a
Fisker issued laptop was in direct contradiction to Fisker’s forensic analysis expert).” Mader
21 Decl., Exhibit A P. 21, L. 12-16. Emphasis added.
22
“Notwithstanding the conspicuous absence of any documentary support whatsoever for this
23 apparently extraordinarily important policy, the Arbitrator also finds it hard to believe that
Mr. Castro, as the sole IT person for the Company, would not have realized that Dr. Albano
24 was using DropBox . . . if Mr. Castro had ever made even the most cursory examination of
Dr. Albano’s laptop.” Mader Decl., Exhibit A P. 22, L. 3-7.
25
4. No Evidence that Dr. Albano “Mined” QuantumScape Information
26

27 Fisker, Inc. claimed that the lawsuit filed by its competitor firm, QuantumScape, was caused

28 by Dr. Albano. Fisker, Inc. claimed that Dr. Albano hired a scientist away from QuantumScape, and

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 then “mined” QuantumScape confidential proprietary information from her. Fisker, Inc. sought
2 damages in the amount of $965,212 against Dr. Albano, but Judge Steele rejected those claims:
3
“. . . the Arbitrator finds that Dr. Albano did not recruit, select or make the decision to
4 hire [the former QuantumScape scientist]. . . . The Arbitrator also finds that not only did
Dr. Albano not make the hiring decision, but he also had no intention of obtaining from Ms.
5 Choi any of QuantumScape’s proprietary or other such information. The claim that Dr.
Albano had a plan to mine any such information from Ms. Choi was unconvincing, at
6 best.” Mader Decl., Exhibit A P. 11, L. 18 – P. 12, L. 5. Emphasis added.
7
“Based on Mr. Welch’s testimony, as well as that of all others who testified on the subject,
8 including Dr. Fisker who the Arbitrator has previously stated was found less than
credible in numerous instances, the Arbitrator finds that [the former QuantumScape
9 scientist’s] hiring decision was that of Dr. Fisker. As stated above, there was also no credible
evidence that Dr. Albano ever mined or intended to mine proprietary information from [her].
10 The Arbitrator also found it odd that given the professed need for trade secret and other
11 confidentiality objectives within the Fisker organization, that Dr. Fisker invited [the former
QuantumScape scientist] to sit in on a Fisker battery team meeting on December 13th, and
12 therefore weeks before [she] was scheduled to actually start work at Fisker.” Mader Decl.,
Exhibit A P. 12, L. 13-19. Emphasis added.
13
“Dr. Fisker freely admitted to her interest in acquiring employees from QuantumScape
14 who she identified as a ‘competitor [record citation]. . . . Dr. Chmiola also spoke of Dr.
15 Fisker’s fixation with all things QuantumScape, what he referred to as her “singular focus”
in that regard [record citation]. Again, all of this appears to be at the behest and design of
16 Dr. Fisker, like virtually all of the hiring decisions made at Fisker, but in any event, it was
clearly not that of Dr. Albano.” Mader Decl., Exhibit A P. 13, L. 9-16. Emphasis added.
17
Finally, Judge Steele found that Fisker, Inc. failed to present any credible evidence that
18

19 Dr. Albano benefitted from “mining” QuantumScape proprietary information, or even tried to

20 acquire such information:

21 “Nor was there any hint of evidence, or even a claim, that any of the foregoing either
personally or professionally benefited Dr. Albano, was ever intended to personally or
22
professionally benefit him, or that any such information was in any way misused by Dr.
23 Albano.” Mader Decl., Exhibit A P. 32, L. 19-21. Emphasis added.

24 “. . . [I]t was never established that Dr. Albano had, in fact, misappropriated
QuantumScape’s information, confidential or not. To the contrary, the Arbitrator found
25 compelling Dr. Albano’s testimony regarding the events surrounding the . . . PowerPoint, the
fact that Dr. Chmiola and Dr. Fisker were able to successfully track virtually all of the
26
information in [the] PowerPoint to what was within the public domain . . ..” Mader Decl.,
27 Exhibit A P. 33, L. 5-9. Emphasis added.

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1 B. Dr. Albano Prevailed on His Claims that Fisker, Inc. Wrongfully Withheld His
Equity in the Company
2
Ultimately, Judge Steele found that “Dr. Albano was wrongfully denied the shares he should
3

4 have obtained” (Mader Decl., Exhibit A P. 37, L. 9-10) and Awarded to him the following amounts:

5 $5,777,654 (639,121 Fisker Shares); $245,758 (value of 69,445 Vested Options); $87,039 (interest
6 on the Vested Options). In addition, Dr. Albano is entitled to pre-judgment interest on the
7
$5,777,654 awarded in connection with the 639,121 Fisker Shares, accruing from July 7, 2022 (the
8
date Judge Steele valued the shares and the claim became liquidated) through entry of Judgment,
9
presumably March 7, 2023, in the amount of $385,176. Under California law, the trial court has no
10

11 discretion and must award pre-judgment interest upon request from the first day there exists both a

12 breach of contract and a liquidated claim. North Oakland Medical Clinic v. Rogers, 65 Cal.App.4th

13 824 (1998). Thus, the total amount of the Judgment to be entered is $6,495,627.
14 V. ARGUMENT
15
Code of Civil Procedure §1285 provides that any party to an arbitration in which an award
16
has been made may petition the Court to confirm the award: “Any party to an arbitration in which
17
an award has been made may petition the court to confirm, correct or vacate the award . . ..”
18

19 Arbitration awards are subject only to extremely narrow judicial review, as Courts will not

20 review the merits of the controversy, the validity of the arbitrator’s reasoning or the sufficiency of

21 the evidence supporting the arbitrator’s award. Moncharsh v. Heily & Blasé, 3 Cal.4th 1 (1992). In
22
the oft-cited Moncharsh case, the California Supreme Court reiterated the rule that “parties to a
23
private arbitration impliedly agree that the arbitrator’s decision will be both binding and final.” Id.
24
at 9. “The arbitrator’s decision should be the end, not the beginning, of the dispute.” Id. at 10.
25
“Because the decision to arbitrate grievances evinces the parties’ intent to bypass the judicial system
26

27 and thus avoid potential delays at the trial and appellate levels, arbitral finality is a core component

28 of the parties’ agreement to submit to arbitration. Thus, an arbitration decision is final and conclusive

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 because the parties have agreed that it be so. By ensuring that an arbitrator’s decision is final and
2 binding, courts simply assure that the parties receive the benefit of their bargain.” Id.
3
In Moncharsh, the California Supreme Court went on to state: “[a]s early as 1852, this court
4
recognized that, ‘The arbitrators are not bound to award on principles of dry law, but may decide on
5
principles of equity and good conscience, and make their award ex aequo et bono [according to what
6

7 is just and good].’” Id. “As a consequence, arbitration awards are generally immune from judicial

8 review.” Id. It has been California law for decades that arbitration awards are essentially immune

9 from judicial review. Morris v. Zuckerman, 69 Cal.2d 686 (1968). The reasoning for this is that
10 arbitrators do not ordinarily exceed their contractually created powers simply by reaching an
11
erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be
12
vacated because of such error, for the arbitrator’s resolution of these issues is what the parties
13
bargained for in the arbitration agreement. Gueyffier v. Ann Summers, Ltd., 43 Cal.4th 1179 (2008).
14

15 A. Request for Conforming Judgment

16 Dr. Albano hereby moves this Court to confirm the Award against Henrik Fisker, Geeta

17 Fisker and Fisker, Inc., pursuant to Section 1285 of the Act, which states: “any party to an arbitration
18
in which an award has been made may petition the court to confirm, correct or vacate the award.”
19
Section 1287.4 of the Act states: “If an award is confirmed, judgment shall be entered in conformity
20
therewith. . . .”
21
VI. CONCLUSION
22

23 Based on all of the foregoing, including the decision issued by the Arbitrator filed herewith,

24 Dr. Albano requests that the Award against Henrik Fisker, Geeta Fisker and Fisker, Inc. be

25 confirmed and judgment on same be entered in conformity therewith pursuant to Code of Civil
26 Procedure §§1285 and 1287.4. This motion is brought within four years of the Award being issued,
27
and no grounds exist to avoid the confirmation of the Award as the final judgment of the Court.
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

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1 The total amount of the Judgment to be entered is $6,495,627, as follows:
2 $5,777,654 639,121 Fisker Shares (“FSR”) Valued as of July 7, 2022, the date of
Judge Steele’s Interim Award No. 1
3

4 $245,758 Value of 69,445 Vested Options

5 $87,039 10% Interest on the Value of the 69,445 Vested Options, accruing
August 23, 2019 - March 7, 2023 (presumed date of Judgment)
6

7 $385,176 Pre-judgment interest on the $5,777,654 awarded in connection with

the Fisker Shares, accruing from the date Judge Steele valued those
8 shares and the claim became liquidated, July 7, 2022 - March 7, 2023
(presumed date of Judgment)
9
Dated: October 27, 2022 BALDWIN MADER LAW GROUP
10

11
By: _________________________
12 Patrick Baldwin, Esq.
Christopher Mader, Esq.
13
Attorneys for Plaintiff Dr. Fabio Albano
14

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