SES responds to Intelsat in FCC dispute
January 17, 2022
Last week saw Intelsat’s lawyers submit their arguments to the court in advance of the trial scheduled for February 7th. Intelsat gave a number of reasons why they believe the SES claim for 50 per cent of the FCC’s incentive payments for clearing C-Band spectrum should fail.
Lawyers for SES, on January 14th, submitted their response and pulled no punches in dismissing Intelsat’s arguments to the court.
SES says they want a full trial on its breach-of-contract and unjust-enrichment claim against Intelsat. They add: “As this Court observed at the summary judgment oral argument, hearing testimony will benefit the Court not only by putting much of this extrinsic evidence that’s been offered into context but also [by] enabling the Court to benefit from the expertise and the knowledge of the industry that it would glean from hearing the testimony.”
Their submission adds that the two litigants have narrowed the claims to be tried, and that SES has now modified its 50/50 claim, plus breach of contract etc, to be against just three Intelsat entities (Intelsat US LLC, Intelsat Licence LLC and Intelsat Jackson Holdings SA).
In its filing to the court, SES says that at trial it will present compelling evidence that the Parties’ course of performance after the FCC’s public-auction announcement on November 18th 2019, proves that the Parties understood the Consortium Agreement including its 50/50 split to remain in full force and effect.
“SES will also prove that in the event the Court rejects SES’s breach-of-contract claim by concluding that the Agreement covered only the Parties’ preferred private-transaction approach, the inapplicability of the Agreement would make this case a paradigmatic unjust enrichment case,” states the SES filing.
Moreover, lawyers for SES are extremely blunt in their wording, saying: “Smoking-gun evidence conclusively shows that after the public-auction announcement on November 18th 2019, Debtors were unjustly enriched by continuing to work in close partnership with SES in order to present a unified front to the FCC in their joint advocacy to maximise the amount of Accelerated Relocation Payments to the Parties. From November 18th 2019 until February 7th 2020, the Parties continued to proceed on the basis of their 50/50 split. At no time did Debtors communicate to SES that the partnership or the Agreement to split all proceeds 50/50 was off. To the contrary, by their words and actions, Debtors consistently and deliberately communicated the opposite. This was no accident. Debtors needed the cooperation and joint advocacy of SES to persuade the FCC to pay out the Accelerated Relocation Payments. And they knew that 50/50 was key to that cooperation and joint work. This pattern of conduct presents a classic case for unjust enrichment.”
Finally, SES argues that throughout the dispute, and with the evidence that they say they will present, “[Intelsat has] not come close to showing that the undisputed evidence forecloses SES’s contract claim or unjust enrichment claim, and nothing in the Court’s summary-judgment decision taking Debtors’ motion under advisement suggests otherwise. Nothing has changed since the summary judgment proceedings to undercut this Court’s determination that “hearing testimony will benefit the Court not only by putting much of this extrinsic evidence that’s been offered into context but also [by] enabling the Court to benefit from the expertise and the knowledge of the industry that it would glean from hearing the testimony.”
Judge Keith Phillips will preside over the trial which is expected to take about t wo weeks.