NOVEMBER 1, 2008

Boeing Hit With Penalty in Suit Over Satellites

By ANDY PASZTOR
Wall Street Journal

http://online.wsj.com/article/SB122548019660688725.html?mod=googlenews_wsj


LOS ANGELES -- Boeing Co. and its satellite operations were hit with 
$236.1 million in punitive damages, ending a protracted lawsuit in state 
court in Los Angeles that featured allegations of fraud and breach of 
contract by ICO Global Communications Holdings Ltd., a former Boeing 
customer.

The jury agreed on the damages less than two weeks after awarding ICO at 
least $370 million in compensatory damages. In all, Boeing faces 
potentially more than $700 million in total damages, depending on 
interest and other issues.

Boeing previously said it will appeal the verdict, contending that the 
judge in the case made legal errors during the course of the trial

But the size of the latest verdict, coupled with previous statements in 
court by a Boeing lawyer about high-level management focus on the trial, 
highlight the importance of the case for the Chicago aerospace giant. 
ICO, a startup communications firm that fell on hard times when the 
Internet bubble burst years ago, is controlled by cellular phone pioneer 
Craig McCaw.

The jury decided in favor of ICO's claims that Boeing breached a 
contract to provide a fleet of satellites for ICO and illegally demanded 
hundreds of millions of dollars in extra payments to complete and launch 
the proposed satellite-telephone project. In awarding the punitive 
damages, the jury also agreed with ICO's allegations that Boeing 
misrepresented certain issues to ICO and that the satellite-maker's 
actions years ago were motivated, at least in part, by Boeing's interest 
in potentially competing with ICO in some segments of the 
satellite-services market.

A Boeing spokeswoman reiterated that the company "believes there were 
fundamental flaws throughout this trial that provide significant grounds 
for appeal. We will seek an appeal after the final judgment is filed 
with the court, and we expect that the appeal may well take several 
years to run its course. We continue to believe that we conducted 
ourselves in accordance with the law and our contracts."

More than $177 million of the punitive damages were awarded against 
Boeing, the parent company, reflecting the jury's conclusion of 
high-level corporate responsibility and Boeing's arguments to the jury 
that its commercial satellite-making unit is shrinking and has been 
slightly in the red for both 2007 and 2008. Before the punitive award, 
Boeing's lead lawyer, Brad Brian, told the jury it already had awarded 
compensatory damages that exceeded "the net worth" of the satellite unit.

In his argument for punitive damages, Barry W. Lee, ICO's lead lawyer, 
told the jury that "no piece of evidence was more telling" of Boeing's 
mindset than a handwritten note by an official of the satellite unit. 
The note, Mr. Lee reminded the jurors, read: "Yes, we would like to put 
a knife into ICO."

The suit had been closely watched by many in the satellite industry 
partly because ICO's claims came to about $2 billion, but also due to 
the nature of the allegations.

For Boeing, which acquired the satellite-making operations eight years 
ago from what was then Hughes Electronics Corp., Friday's verdict is a 
blow to its reputation.

In the trial's opening statement, ICO's lead lawyer told the jury that 
Boeing's "fraudulent and wrongful conduct" resulted in the project's 
demise. ICO's lawyers argued that Boeing had "conflicts of interest" 
because at one point it had its own plans to try to enter the same 
business segment.

Boeing's defense was that it resolved disputes with ICO in July of 2003, 
and that ICO retroactively wanted to convince jurors that "somehow it 
was tricked into" signing those agreements. The project fell apart, the 
original company was reorganized under federal bankruptcy court 
protection and only one ICO satellite is currently in orbit.

ICO also introduced evidence that allegedly showed that some inside 
Boeing were interested in using ICO's satellite-broadcast spectrum for 
Boeing's own potential project or projects. ICO's lawyer told the jury 
that a punitive award would send a message to Boeing executives and 
board members "that it's not okay to engage in fraud, it's not okay to 
conceal material information and it's not okay to interfere with your 
customer's business and contracts."

Boeing initially sued ICO after the mobile-phone company terminated its 
contract for the satellites. ICO countersued, alleging that Boeing 
misrepresented or concealed information and charged excessive prices to 
complete the project.

ICO, which now intends to provide television programming to cars and 
mobile devices in the U.S., also is battling to acquire some satellite 
spectrum in Europe. With 10 of its satellites still in storage, ICO 
officials have said a final judgment could help pay for international 
expansion plans.

ICO had sought up to $2.4 billion in total damages. Ending with what is 
believed to be the largest such jury award involving a 
commercial-satellite contract dispute in U.S. courts, the trial lasted 
more than three months and altogether the jury deliberated for more than 
23 days.

ICO's lead lawyer, with the law firm of Manatt, Phelps & Phillips LLP in 
Los Angeles, said after Friday's verdict that "this was not a case of an 
isolated incident" intended to damage and interfere with ICO's business 
plans. Rather, Mr. Lee said the evidence showed Boeing engaged in "a 
series of steps" over a number of years, adding that the "verdict at 
least demonstrates" the jury's belief that improper activities occurred 
throughout Boeing's executive ranks.

-- 
================================
George Antunes, Political Science Dept
University of Houston; Houston, TX 77204 
Voice: 713-743-3923  Fax: 713-743-3927
Mail: antunes at uh dot edu

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