1 

IN THE UNITED STATES BANKRUPTCY COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

 ) 

In re: ) Chapter 11 

 ) 

INTELSAT S.A., et al., ) Case No. 20-32299 (KLP) 

 ) 

 Reorganized Debtors. ) (Jointly Administered) 

 ) 

AMENDED MEMORANDUM OPINION 

INTRODUCTION 

On May 13, 2020, the Debtors1 filed voluntary petitions for relief under 

chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq. (Docket 

No. 1) On July 14, 2020, SES Americom, Inc. (“SES”), filed proofs of claim against 

each of the Debtors (DX94), alleging that each Debtor had repudiated its 

obligations under a consortium agreement, including the obligation to split evenly 

any proceeds received by Intelsat and SES under that agreement. (DX94 at 7.) 

SES sought “at least $1.8 billion” against each Debtor, claiming it was entitled to 

“approximately $450 million” in compensatory damages, plus punitive damages. 

(DX94 at 6, 7.) 

1 Due to the large number of debtors (the “Debtors” or “Intelsat”), the Court does not list 

them all herein. The other related filing entities are listed at Docket No. 89, the Court’s 

order granting joint administration. The instant case, In re Intelsat, S.A., was designated 

the lead case. 

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On October 19, 2020, the Debtors objected to SES’s proofs of claim (the 

“Objection”). (Docket No. 946.) At the conclusion of discovery, the parties filed 

competing motions for summary judgment. (Docket Nos. 2342, 2345, 2845.) 

Following oral argument, the Court denied SES’s motion for summary judgment, 

holding that there were genuine issues of material fact precluding such a ruling. 

(Docket No. 2845, 8/19/21 Tr. at 121:5-10.) The Court took Intelsat’s motion for 

summary judgment (the “Motion”) under advisement “to consider whether or not it 

should grant partial summary judgment, summary judgment in full, or to apply 

relief under Rule 56(g).” (Id. at 121:25-122:4.) The Court deferred ruling on the 

Motion until after the scheduled trial. (Docket No. 4171, 2/2/22 Tr. at 4:5-25.) 

The Court confirmed the Debtors’ plan of reorganization (the “Plan”) on 

December 17, 2021. (DX528 (Docket No. 3894.)) In resolving SES’s objections to 

confirmation of the Plan (Docket 3468), the parties narrowed some of the issues 

raised by the Objection. (Docket No. 3719.) On the February 23, 2022, effective 

date of the Plan (see Docket No. 4279), SES waived and released its Proofs of Claim 

against all Intelsat entities except Intelsat US LLC (Proof of Claim 85), Intelsat 

Jackson Holdings S.A. (Proof of Claim 103), and Intelsat License LLC (Proof of 

Claim 84), and it released all its punitive damage claims. (See Docket No. 3719 

§ 1.2.2.) In addition, in the order confirming the Plan, the Court found that Intelsat 

License LLC was the Intelsat entity entitled to receive any earned accelerated 

relocation payments provided by the FCC’s Final Order (see infra p.6) (DX528 

¶¶ 91-96.) 

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In ruling on the Objection and the Motion, the Court has considered the 

parties’ Joint Stipulated Facts (Docket No. 4143) and the evidence presented during 

a lengthy trial. At trial, SES called six witnesses, and the Court admitted nearly 

900 exhibits, either by stipulation of the parties (Docket Nos. 4176, 4200, 4385) or 

during trial. The Court also received and considered deposition designations from 

an additional 18 witnesses. 

For the reasons stated herein, the Court will sustain the Debtors’ objections 

to the proofs of claim at issue. 

BACKGROUND 

The now-reorganized Debtors and SES (jointly “the Parties”) are two of the 

world’s largest and most sophisticated satellite operators. The Debtors and SES 

combined provide more than 90% of incumbent satellite services in the C-Band 

spectrum in the United States. (Docket No. 4143, ¶ 6.) In 2018, they entered into 

an agreement to collaborate on a specific project (the “Project”), in which they, along 

with other smaller satellite operators, would collectively negotiate to sell access to 

C-Band spectrum to mobile carriers, share in the costs of clearing that spectrum, 

and then split any remaining proceeds. (DX1; see also DX61-62, 78-79.)2 Under the 

Parties’ proposal, the profits would depend on how the market valued their shared 

spectrum, as well as their ability to collectively minimize clearing costs. (DX1 

§ 6.04.) However, the Federal Communications Commission (“FCC”) rejected their 

proposal (DX136 ¶ 37.) and instead ordered that Intelsat and SES each clear their 

2 This was part of an effort to transition their operations from a band of electromagnetic 

spectrum in what is called the “C-Band” to clear the spectrum for 5G wireless use. 

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own transmissions from 300 MHz of the spectrum (the “Final Order”). Neither 

would share in each other’s risks or clearing costs, nor would they share in or 

otherwise receive market-based proceeds. Under the Final Order, each of them may 

individually receive fixed compensation, in an amount set by the FCC, if they 

successfully complete their own individual required clearing work. (Id. ¶¶ 227-34; 

see also id. ¶¶ 171, 174, 287, 295.) 

Under the Final Order, if it completes its clearing tasks, SES should receive 

$4 billion and have certain of its own clearing costs reimbursed. (Id. ¶ 232.) 

However, SES asserts it is entitled to half of all “proceeds” from the venture the 

Parties had proposed to the FCC and had memorialized in the Agreement. SES 

alleges that this would leave it with a shortfall of $420,824,626. 

The relationship between the Parties began in 2017, when Intelsat and SES 

began discussions. On September 27, 2018, they entered into a 120-page 

Consortium Agreement (the “Agreement” or the “Consortium Agreement”), 

memorializing those discussions. (DX1.) The Agreement and its exhibits define the 

“Project” that the Parties agreed to pursue, and it also identifies alternatives they 

sought to avoid through this collaboration. Through the Project, the Parties would 

cooperate and jointly negotiate agreements to voluntarily clear portions of the CBand to give mobile carriers access. (DX101.) The actual consortium created by the 

Agreement is commonly referred to as the “C-Band Alliance” or “CBA” (the “CBA” 

or the “Consortium”). 

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Because the Parties both had the right to use the C-Band spectrum the 

Project could only succeed if they collectively negotiated with new users and 

voluntarily and collectively cleared the use of the shared spectrum by all incumbent 

users. The Consortium would negotiate access and manage the clearing, with 

compensation determined by the market’s valuation of that spectrum. The Parties 

agreed to share in the Project, both in their up-front costs (involving the 

replacement of billions of dollars of investment in satellites and equipment) and in 

potential profits from transfer of their spectrum rights. 

The Agreement was negotiated as the Parties were simultaneously urging 

the FCC to adopt their market-based approach. (DX106-08; DX310; DX172.) That 

proposal advocated a privately-run, market-based solution in which incumbent 

satellite operators would collectively negotiate with new “secondary” users over 

what spectrum to offer, how and by when to effectuate the clearing, and what the 

price would be for vacating the spectrum. The Agreement, in turn, expressly 

incorporated key aspects from the FCC’s July 13, 2018, Notice of Proposed 

Rulemaking (“NPRM”)—released during the midst of the Parties’ contract 

negotiations—including the specific concept of a satellite operator-controlled 

“transition facilitator” that would have specific powers and authority to act on 

behalf of all incumbent operators in the clearing process. (See DX114 ¶¶ 66-97; 

DX1 at SES0210335-36.) 

The FCC did not adopt the Parties’ proposal. (DX136 ¶¶ 213-14.) In the 

March 3, 2020, Final Order, it rejected the market-based approach and instead 

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mandated that the satellite operators clear certain spectrum by 2025. (Id. ¶¶ 37, 

155.) The FCC did not appoint a private “transition facilitator” to control the 

clearing process, determine the spectrum to be cleared, or negotiate compensation. 

Instead, the FCC determined how much spectrum must be cleared, imposing the 

threat of penalties on each operator individually if it did not clear as ordered. (Id. 

¶¶ 175-77.) At the same time, the FCC provided that the new users must 

reimburse each satellite operator individually for certain transition costs. (Id. 

¶¶ 178, 199.) Unlike the Project, such costs—and the risks associated with 

clearing—are not shared under the FCC’s approach. Instead, the FCC offered 

“accelerated relocation payments” on an individualized basis for each satellite 

operator—based on the operator’s own relative market share and clearing 

burdens—to encourage it individually to clear its own use earlier than mandated. 

(Id. ¶¶ 232-33, 289, 295.) Again, unlike the Project, the risks of another operator 

failing to clear its own transmissions are also not shared among satellite operators: 

Each satellite operator is paid if it succeeds in clearing early, regardless of whether 

any other operator also succeeds. (Id.) The FCC’s accelerated relocation payments 

have no relationship to the value of the spectrum itself or to the public auction—

they were set by regulatory fiat. (Id. ¶ 191.) Nothing about what the satellite 

operators are eligible to receive in either cost reimbursement or accelerated 

relocation payments appears to be determined by the market. 

Although the FCC rejected the Parties’ proposal, SES asserts the $9.7 billion 

in accelerated relocation payments that SES and Intelsat would secure if they 

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fulfilled their individual clearing obligations are subject to the Agreement’s 50/50 

split. Under SES’s theory, those payments are subsumed within the “Project” that 

the Parties defined in the Agreement. SES’s breach-of-contract theory turns on the 

meaning of “Project” under the Agreement. Alternatively, they proffer theories of 

unjust enrichment and breach of fiduciary duty. 

The Debtors urge that the testimony and evidence from the seven-day bench 

trial confirm what the plain text of the Agreement says and that the Consortium 

Agreement was not written to encompass any and every eventuality that the FCC 

might adopt. They argue that the Agreement spells out a market-based solution in 

detail both in directly defining the “Project”—specifying that the Consortium is to 

“serve as the transition facilitator referred to in the NPRM”—and in exhibits such 

as a model “Secondary Market Agreement,” which could only be altered with both 

Parties’ consent. (DX1 at SES0210335; see also id. §§ 2.01, 2.02, Ex. A.) The 

Debtors point to the fact that, in contrast, the Consortium Agreement does not 

address how the Parties would operate under, or share costs or benefits from, any 

other approach to clearing the C-Band spectrum, including the FCC’s eventual 

decision to order the clearing of the spectrum on its own terms. 

Further, they argue that the negotiation history, the incorporation of the 

FCC’s NPRM into the Agreement, the Parties’ contemporaneous representations to 

the FCC, and their course of conduct all provide the relevant industry context and 

confirm the “Project” exclusively entailed the Parties’ proposed market-based 

approach, in which the market—not the FCC—would determine how much 

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spectrum the Parties would offer in exchange for compensation based on the value 

of that spectrum. They argue that all presentations and documents confirm that 

the voluntary market-based approach depended on the Consortium’s negotiating 

market-based transactions with entities interested in specific parts of the C-Band 

and defining the methodology for clearing the spectrum. 

SES argues that its conduct over the period between (i) November 2019, 

when the FCC Chairman, via tweet, announced his intent to pursue a public 

auction and (2) the FCC’s February 2020 issuance of a draft final order (the “Draft 

Order”), showed that the Consortium Agreement must have encompassed more 

than the market-based proposal. The Debtors argue that rather, that conduct 

shows the Parties were simultaneously doing two things: (i) working to salvage 

aspects of their Project, at least in part—and with it, market-based compensation—

in the construct of a public auction, and (ii) considering whether to amend the 

Consortium Agreement to encompass whatever the FCC might ultimately adopt. 

Even after the FCC Chairman’s November 2019 tweet, the Parties continued 

to advocate for the transition facilitator role as defined in the NPRM and continued 

to seek a share of the proceeds from the FCC’s eventual auction as compensation 

based on the market’s valuation of the spectrum. That advocacy for market-based 

compensation continued even into the final two weeks prior to the FCC’s issuing the 

Draft Order. The Parties continued to advocate for market-based compensation 

until the very end when they jointly sought to increase the FCC’s fixed payments. 

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At the same time, SES sought to amend the Consortium Agreement. To that 

end, SES proposed a complete re-write, redefining the key terms “Project” and 

“Project Gross Proceeds” and deleting “Secondary Market Agreements” altogether. 

(DX127.) When that proposal failed, SES sought to add language to a “short-form” 

amendment that would have provided for a 50/50 split between the Parties 

regardless of the FCC’s approach. (DX42.) At the time, SES’s chief strategist and 

chief legal officer both described SES’s need for amendment as “urgent” and 

“critical.” (DX167; DX170.) 

Intelsat posits that the reason SES had an urgent need to amend was 

because its executives were concerned that the approach the FCC appeared likely to 

adopt—and ultimately did adopt—was not covered by the Consortium Agreement. 

It cites SES contemporaneous internal communications that (i) an FCC-directed 

distribution mechanism would “unravel the project” (DX411, DX470), (ii) an FCCcreated proceeds split would be “very bad” for SES (DX239), and (iii) the FCC’s 

approach would “void our 50/50 with Intelsat” (DX78) and the “50/50 with Intelsat 

would be gone” (DX79.) Attempts by SES’s executives to explain away those 

contemporaneous statements at trial were not credible. At the same time, the 

instructions from the highest levels within SES were to “find a way to preserve the 

structure of the consortium agreement” (DX239), and to seek an “upfront agreement 

with Intelsat” (DX411.) SES failed to obtain such an amendment, and Intelsat 

argues that once the contours of the Final Order became clear, it would have made 

no sense for Intelsat to give away hundreds of millions of dollars at the expense of 

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its creditors when, unlike the proposed Project, SES’s cooperation was neither 

necessary nor relevant to what the FCC had mandated. 

SES did amend other agreements to account for the FCC’s rejection of the 

market-based approach. The Parties rewrote their agreement with one vendor3 to 

remove all references to “secondary market agreements” and “project-based 

proceeds”—terms defined by the Consortium Agreement—because neither appeared 

to be in the cards. (SES244.) Intelsat’s CFO stated that the economics for a second 

vendor4 should change because the deal the Parties were working on was “clearly 

outside the old docs.” (DX477.) And with respect to a third vendor,5 SES concluded 

it neither needed to amend nor terminate its contract because, given the FCC’s 

change in approach, it simply “doesn’t apply to the situation,” as it “was not 

covered.” (DX460; DX461.) 

The timetable of the Parties’ negotiations with the FCC is as follows: 

 January 17, 2020 - The FCC informally proposes $5 billion in total payments 

to the satellite operators, with $2.55 billion allocated to Intelsat and $1.3 billion 

allocated to SES. 

February 3, 2020 – The FCC revises its offer to change the distribution 

between the Debtors and SES. The distribution proposed was $2.89 billion 

allocated to Intelsat and $1.35 billion allocated to SES. 

3 Evercore. 

4 5GEIA. 

5 Auctionomics. 

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February 4, 2020 – The FCC proposes $8.8 billion in total payments to the 

satellite operators, with $5.08 billion allocated to Intelsat and $2.4 billion allocated 

to SES. 

February 5, 2020 – The FCC informally proposes $9.7 billion in total 

payments to the satellite operators, with $4.85 billion allocated to Intelsat and 

$3.99 billion allocated to SES. 

February 7, 2020 – The FCC issues the Draft Order, reflecting the numbers 

proposed on February 5. 

March 3, 2020 – The FCC issues the Final Order, reflecting the numbers set 

out in the Draft Order and officially abandoning the market-based approach for 

clearing the C-Band Spectrum. 

Despite the Parties’ collective efforts to try to salvage aspects of the Project, 

the FCC’s decision to conduct a public auction was a significantly different from the 

Parties’ Agreement. It was in this atmosphere that the Debtors filed their chapter 

11 petitions on May 13, 2020. 

DISCUSSION 

Jurisdiction The Court has subject matter jurisdiction over this Adversary 

Proceeding pursuant to 28 U.S.C. §§ 157(a) and 1334 and the General Order of 

Reference from the United States District Court for the Eastern District of Virginia 

dated August 15, 1984. The Objection constitutes a core proceeding under 28 U.S.C. 

§ 157(b)(2)(B).

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Burden of Proof. “The Bankruptcy Code establishes a burden-shifting 

framework for proving the amount and validity of a claim. The creditor’s filing of a 

proof of claim constitutes prima facie evidence of the amount and validity of the 

claim. The burden then shifts to the debtor to object to the claim. The debtor must 

introduce evidence to rebut the claim’s presumptive validity. If the debtor carries 

its burden, the creditor has the ultimate burden of proving the amount and validity 

of the claim by a preponderance of the evidence.” Stancill v. Harford Sands Inc. (In 

re Harford Sands Inc.), 372 F.3d 637, 640 (4th Cir. 2004) (internal citations 

omitted). The Court finds that the Debtors, in introducing substantial credible 

evidence, as referenced above, have successfully shifted the burden to SES to prove, 

by a preponderance of the evidence, the validity and amount of the claims it has 

asserted. 

Conclusions of Law.6 At its essence, this is a case about a contract, the 

Consortium Agreement, and what effect the Final Order had on it. The answer will 

determine whether Intelsat is obligated to share accelerated relocation payments 

equally with SES, as SES claims. 

Breach of Contract. The Consortium Agreement’s plain language 

contemplates a private market-based approach fundamentally at odds with the 

FCC’s Order. The Agreement considers the “Project” to be a private, market-based 

approach. Such an approach is fundamentally at odds with the FCC’s Draft and 

Final Orders. 

6 6 Findings of fact shall be construed as conclusions of law and conclusions of law shall be 

construed as findings of fact when appropriate. 

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SES initially took the position in responses to Intelsat’s Requests for 

Admission that the terms “Project,” “Project Purposes,” “Project Gross Proceeds,” 

“Project Structure,” as well as §§ 10.02 (Termination Clause) and 11.04 

(Amendment Clause) of the Consortium Agreement were all ambiguous. (2/9/22 Tr. 

118:18-120:9 (Purvis) (discussing (DX249); see also DX249 at 8-11, 14-15, 18, 22, 25-

26, 30.) But at trial, SES’s counsel stated that “we think the contract language is 

clear.” (2/7/22 Tr. 16:6-13 (SES Opening).) Regardless of this statement, the Court 

will address whether the Agreement is unambiguous as to the private, marketbased approach contemplated as the “Project.” 

The Agreement is governed by New York law (see DX1 § 11.02), and New 

York courts apply a high bar respecting ambiguity. Ambiguity does not arise simply 

“because two interpretations are technically possible; both interpretations must also 

be reasonable.” Maxim Grp. LLC v. Life Partners Holdings, Inc., 690 F. Supp. 2d 

293, 304 (S.D.N.Y. 2010). Likewise, where “the meaning of an agreement among 

sophisticated parties is unambiguous on its face, the agreement does not become 

ambiguous simply because one of the parties later asserts that it intended a 

different interpretation.” Rahl v. Bande, 328 B.R. 387, 401 (Bankr. S.D.N.Y. 2005) 

(citation omitted). “A written agreement that is complete, clear, and unambiguous 

on its face must be enforced to give effect to the meaning of its terms and the 

reasonable expectations of the parties, and the court should determine the intent of 

the parties from within the four corners of the contract without looking to extrinsic 

evidence to create ambiguities.” Hoeg Corp. v. Peebles Corp., 60 N.Y.S. 3d 259, 261 

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(N.Y. App. Div. 2017); see also Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998) 

(“[a]mbiguity is determined by looking within the four corners of the document, not 

to outside sources”). Rather, a contract is ambiguous only where a relevant term 

within the agreement is “reasonably subject to differing interpretations.” 

Scholastic, Inc. v. Harris, 259 F.3d 73, 82 (2d Cir. 2001). 

The plain and unambiguous language of the Agreement makes clear that the 

“Project,” “Project Purposes,” “Project Scope,” “Project Structure,” and “Project 

Gross Proceeds” apply only to a private, market-based approach to clearing the CBand spectrum. Thus, consideration of extrinsic evidence is unnecessary and 

improper. 

“Project.” From the opening page of the Agreement, the Parties plainly 

contemplated the Project to be the market-based solution they discussed among 

themselves and repeatedly presented to the FCC, and which the FCC described in 

detail in the July 2018 NPRM. The Agreement states that the members “desire to 

enter into ... a consortium . . . to act as the transition facilitator referred to in the 

NPRM, for the purpose of implementing the Project.” (DX1 at SES0210335.) The 

Agreement then immediately states that the Project “will entail a market-based 

solution . . . as described in more detail herein and in the NPRM.” (Id.) The 

Agreement is also clear that the term “will” has the same meaning as “shall,” which 

SES concedes is mandatory. (DX1 § 1.03(d)(viii); 2/9/22 Tr. 103:17-21 (Purvis).) The 

“Project” is therefore the market-based solution described in the Consortium 

Agreement and in the NPRM that the FCC explicitly rejected in its eventual Order. 

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“Project Purposes.” The Project Purposes confirm that the Project refers only 

to the “market-based approach” contemplated by the NPRM. The first reason the 

Parties indicated they wished to “develop and implement the Project” was to “act as 

transition facilitator”—a role exclusively associated in the NPRM with the marketbased approach—“and ensure expedited transition of the [C-Band] Spectrum.” 

(DX1 at SES0210335.) The Project lacks any mention of any other method for 

clearing the spectrum that may have been under consideration by the FCC, other 

than to state expressly—and as a further “Project Purpose”— that the Agreement 

was designed to “avoid certain complications associated with other potential options 

for clearing a portion or portions of the C-Band.” (Id.) It would make little sense 

that an approach to clearing the C-Band that the Parties were expressly developing 

their Project to “avoid”—an FCC-run auction over which the Parties lacked 

control—would nonetheless fall within that Project, as SES insists.

“Project Scope.” The structure of the Project definition in the Agreement 

confirms it remained singularly focused on the private market-based approach. The 

description of the Project Scope in § 2.01 provides a list of nine tasks that the 

Parties “shall undertake” “[i]n furtherance of the Project Purposes.” The list of 

tasks is conjunctive, with each undertaking separated by “and,” rather than a 

disjunctive list from which the Parties could pick and choose. The private marketbased approach is the only method under which all nine undertakings would be 

applicable, and many of the undertakings could only be applicable to a privatelyrun, market-based auction where proceeds flowed directly to satellite operators (not 

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to the government). As an example, the Project Scope required the Consortium to 

“negotiate and enter into” secondary market agreements that were unique to the 

private market-based approach. (DX1 § 2.01(c).) In negotiating such agreements 

with 5G providers, the Project also required the Parties to “determine amounts of Cband spectrum to be offered,” (DX1 § 2.01(a)), petition the FCC to transfer the 

spectrum licenses to the mobile operators with whom the Consortium had entered 

into Secondary Market Agreements, (§ 2.01(b)), “create . . . a master plan setting 

forth the authorized Spectrum Clearing activities” for all Protected Incumbent 

Users (§ 2.01(d)), and establish procedures to compensate and reimburse members 

for Eligible Spectrum Clearing Costs from Project Gross Proceeds (§§ 2.01(e), (f))—

all facets of a market-based solution and not a public auction approach, none of 

which are compatible with the FCC’s Orders. (DX1 §§ 2.01(a)-(h); see also 2/15/22 

Tr. 31:11-16, 31:25-32:5 (Bryan).)

After identifying eight specific tasks that the Parties “shall undertake” as 

part of the private market-based approach, the ninth and final conjunctive charge is 

that the Parties would “otherwise serve as the transition facilitator referred to in 

the NPRM.” (DX1 § 2.01(i).) The use of the word “otherwise,” an adverb meaning 

“in all other respects,” demonstrates that the preceding eight undertakings listed in 

the Project Scope are simply some of the tasks the Parties understood would be 

associated with serving as the Transition Facilitator, a function only relevant under 

the private auction, market-based approach. See Otherwise, Merriam-Webster 

(11th ed. 2003); see also 242-44 E. 77th St., LLC v. Greater N.Y. Mut. Ins. Co., 815 

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N.Y.S.2d 507, 510 (N.Y. App. Div. 2006) (“The meaning of a word in a series of 

words is determined by the company it keeps.”).

The “Transition Facilitator” role is unique; the FCC defined that role in the 

NPRM, and it existed solely under the proposed market-based approach. The 

NPRM contemplated that the “Transition Facilitator” would serve several 

important functions that would be relevant only within a market-based private 

auction. These included “negotiat[ing] with any interested terrestrial operators and 

incumbent users, [and] clear[ing] the negotiated-for spectrum, making it available 

for flexible use while protecting incumbent earth stations through a variety of 

potential means.” (DX114 ¶ 72.) SES’s Chief Legal Officer suggested they “tie in” 

the Agreement with the NPRM. (DX110 at SES00091323.) That is reflected in the 

final Agreement: almost every time the term “Transition Facilitator” is used in the 

Agreement, the NPRM itself is explicitly referenced. (DX1.) 

The Court finds that the Project undertakings were rejected in the FCC’s 

Final Order. Under the FCC’s Order, the Consortium does not pick blocks of 

spectrum to auction; the FCC does. Under the FCC’s Order, neither the CBA nor 

any satellite firm has any role in the auction; the FCC runs it exclusively. Under 

the FCC’s Order, the FCC, not a Transition Facilitator, manages the clearing; thus, 

there is no need for a master plan. Under the FCC’s Order, the satellite companies 

play no role in processing reimbursements or allocating compensation (which the 

FCC itself determined). 

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SES’s argument that the optional amendment provision in § 2.01 of the 

Agreement establishes the Parties’ intent to include more than just the marketbased approach fails under New York law. SES argues the fact that the Parties 

“acknowledged and understood that various details of the Project shall be subject to 

change” means that the Parties were required to amend the Agreement to 

encompass a public auction. But if that were the case, the Parties could have used 

mandatory language—“shall”—for amendments, as they did in other parts of the 

agreement, rather than note the Agreement “may be amended.” (2/9/22 Tr. 100:9-

15, 123:20-125:5 (Purvis); Campbell 4/26/21 Dep. Tr. 223:20-224:6;7 see 2/15/22 Tr. 

10:17-11:22 (Bryan).)

There is nothing in the four corners of the Agreement to suggest such an 

interpretation, and it is not a reasonable one. Rather, it is more a case of SES, in 

retrospect, trying to do exactly what the New York courts cautioned against in Rahl

– that where “the meaning of an agreement among sophisticated parties is 

unambiguous on its face, the agreement does not become ambiguous simply because 

one of the parties later asserts that it intended a different interpretation.” 328 B.R. 

at 401. 

Further, SES’s argument ignores “the common (and commonsensical) rule” 

that specific contractual language governs over more general language. Cap. 

7 SES objects to part of this testimony, claiming that the questions were leading. (See

Docket No. 4112, SES Depo. Objs., Appx. p. 5.) The Court does not find either of these 

questions to be leading, but in any case, the Court is not swayed by this evidence in making 

its decision. The Court further notes that all other evidence subject to objections not 

specifically addressed herein was not considered by the Court in making its ruling.

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Ventures Int’l v. Republic of Argentina, 652 F.3d 266, 272 (2d Cir. 2011); see also 

Cnty. of Suffolk v. Alcorn, 266 F.3d 131, 139 (2d Cir. 2001); John Hancock Mut. Life 

Ins. Co. v. Carolina Power & Light Co., 717 F.2d 664, 669 n.8 (2d Cir. 1983) (“New 

York law recognizes that definitive, particularized contract language takes 

precedence over expressions of intent that are general.”). Here, SES cannot identify 

any language in the Agreement explicitly referring to any of the alternative 

approaches (other than the agreed-to, private market-based “Transition Facilitator” 

role) outlined in the NPRM. When read as a whole, the Agreement clearly 

establishes that the Consortium members intended only to collaborate on and, if 

successful, share the proceeds from, the Parties’ proposed market-based approach. 

CNR Healthcare Network, Inc. v. 86 Lefferts Corp., 874 N.Y.S.2d 174, 177 (N.Y. App. 

Div. 2009) (a “contract should be read as a whole, with every part interpreted with 

reference to the whole; if possible, the contract will be interpreted as to give effect to 

its general purpose.”) Even if the language in the optional amendment paragraph 

did somehow require the Parties to amend the Agreement “to reflect the final rules 

promulgated by the FCC, SES identifies nothing in the Agreement to indicate that, 

under a mandatory amendment that would require rewriting the majority of the 

contract, the Parties would nevertheless be obligated to maintain the same proceed 

splits to which they agreed for the market-based proposal. (See 2/15/22 Tr. 69:5-12 

(Bryan) (“[A]ll of the terms would have been contemplated [to be on the table in a 

potential amendment], but most importantly is, if [the FCC Order] was the result, 

and we were going to have to amend to have [the Agreement] apply, is how the 

proceeds would be split.”).)

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“Project Structure.” The Consortium Agreement also provided that the 

Project “shall” be implemented through other agreements that would be necessary 

only under the CBA’s proposed market-based approach. (DX1 § 2.02.) These 

include secondary market agreements, an escrow agreement, and an operating 

manager services agreement. (DX1 § 2.02 and Exhibits A-C.) The forms of these 

agreements attached to the Consortium Agreement all reaffirm the nature and 

intent of the Agreement, and they are not compatible with the Final Order. 

“Project Gross Proceeds.” The Agreement also defines “Project Gross 

Proceeds” as “all proceeds received by or for the benefit of the Consortium Members 

in respect of the Project.” (DX1 at SES0210338.) SES’s Chief Legal Officer 

admitted that the “[p]roject gross proceeds definition is tied to the definition of the 

defined term capital P Project.” (2/9/22 Tr. 126:1-4 (Purvis).) It is those Project 

Gross Proceeds and no other monies, that are, after the deduction of various fees 

and expenses, subject to the revenue sharing agreement in the Agreement. For all 

the reasons set forth above, the accelerated relocation payments for which Intelsat 

is eligible under the FCC’s Order are not “in respect of the Project”: they are not “in 

respect of” the market-based process described in detail in the NPRM and the 

Consortium Agreement (inclusive of its Exhibits and Schedules). Thus, under the 

FCC’s approach, there are no Project Gross Proceeds and, consequently, none 

subject to the sharing agreement, even if were to apply.” 

SES’s argument that the Parties intended revenues to be shared no matter 

what approach the FCC adopted for clearing the C-Band is found nowhere in the 

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Agreement. Given the sophistication of the Parties, if SES really wanted “Project 

Gross Proceeds” to encompass any proceeds that could possibly be generated from 

the NPRM’s proposed provisions, SES should have included that in the Agreement. 

It cannot now rely on the Court to read it into the Agreement through a convoluted 

process that requires supposition and a tortured reading of the provisions of the 

Agreement. See Kreiss v. McCown De Leeuw & Co., 37 F. Supp. 2d 294, 301 

(S.D.N.Y. 1999) (noting that “New York law gives full effect to integration ... 

clauses.”). SES’s proffered amendment in February 2020 included proposing such a 

broad term as “C-Band Proceeds”, demonstrates that such an agreement might have 

been possible but was never adopted. Instead, from beginning to end, the 

Agreement’s plain language reflects that it only applies under the CBA’s private, 

market-based approach, characterized by voluntary cooperation between private 

parties and driven by market demand and private incentives. 

If a contract is unambiguous, the Court looks to the plain language of the 

contract rather than to extrinsic evidence of the Parties’ alleged wishes. See World 

Ambulette Transp., Inc. v. Lee, 78 N.Y.S.3d 137 (N.Y. App. Div. 2018) (reversing 

district court ruling that relied on extrinsic evidence to override contract’s plain 

language ); Modern Art Servs., LLC v. Fin. Guar. Ins. Co., 79 N.Y.S.3d 4 (N.Y. App. 

Div. 2018). In other words, “[w]here a contract is unambiguous, it is unnecessary 

for the court to resort to extrinsic evidence such as business practice to interpret it.” 

In re Aerovias Nacionales de Colombia, S.A. Avianca, 323 B.R. 879, 890 (Bankr. 

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S.D.N.Y. 2005). Since there is no relevant ambiguity here, the Court must not 

consider extrinsic evidence. 

Even if it were proper for the Court to consider extrinsic evidence, however, 

the evidence here confirms Intelsat’s contention that the Consortium Agreement 

was intended to apply only in the context of the Parties’ proposed market-based 

approach to C-Band Spectrum clearing that the FCC rejected in its entirety. In 

reaching that conclusion, the Court considers “(1) the acts and circumstances 

surrounding execution of the ambiguous term, (2) conversations, negotiations and 

agreements made prior to or contemporaneous with the execution of a written 

agreement, and (3) the parties’ course of conduct throughout the life of the contract.” 

Nuance Commc’ns, Inc. v. Int'l Bus. Machines Corp., 2021 WL 602989, at *1 

(S.D.N.Y. Feb. 16, 2021). 

During the period in which the Parties were negotiating the Consortium 

Agreement, their goal was to persuade the FCC to allow them to clear the C-Band 

through a market-based approach and to follow through on that approach once that 

approval was granted. For example, in June 2018, after months of term sheet 

negotiations and as they were beginning to negotiate the Consortium Agreement 

itself, the Parties’ CEOs signed a letter agreement titled “Understanding reached 

for C-Band Secondary Market Proposal.” (See DX69; DX70; see also DX61-62.) 

That letter explained that the Parties would develop the Project through the 

creation of a consortium to clear portions of the C-Band “in each case as 

contemplated by the [C-Band Secondary Market] Proposal.” (DX69 at 

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SES0001488.) And, while drafting the Consortium Agreement itself, SES suggested 

that the Parties tie the definition of “Project” in the Consortium Agreement to what 

the FCC had described as the market-based approach in the NPRM. (2/9/22 Tr. 

100:25-103:2 (Purvis) (discussing DX110 at INT00091323).) Along similar lines, 

SES described the Consortium Agreement to its Board as the “Transition Facilitator 

(Consortium) Agreement,” using the same term as the FCC had in the NPRM to 

describe the entity that would control the C-Band clearing process in the context of 

the market-based approach. (2/11/22 Tr. 213:20-214:2 (De Hauwer); DX75 at 

SES0436866-67.) Moreover, in the months preceding the Consortium Agreement’s 

execution, Intelsat and SES told the FCC repeatedly they were working together to 

develop the “market-based proposal” that would “create a Consortium of C-Band 

satellite operators” to clear the spectrum through “secondary market agreements.” 

(DX106 at SES0178670; DX107 at SES178666-67; DX108 at SES0006564.) 

Second, after the Parties executed the Consortium Agreement and formed the 

CBA, they described its purpose to the FCC, the public at-large, and each other. 

For example, the CBA’s October 1, 2018, press release, which it also filed with the 

FCC, confirms the Consortium Agreement reflected the transition facilitator in the 

NPRM and designed the CBA to be that transition facilitator. (DX115 at 

SES0077303; 2/10/22 Tr. 55:17-55:5 (VanBeber).) Related documents state that the 

CBA was formed to effectuate the satellite operators’ “breakthrough market-based 

proposal to clear portions of this CBand spectrum.” (DX115 at SES0077306.) Other 

filings the CBA submitted to the FCC throughout the course of the C-Band 

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proceedings also reflect that the CBA was formed and existed only to facilitate the 

market-based approach. (See, e.g., DX26; DX117 at INT0029315; DX 119 at 

SES0141104; DX198; DX342; DX415.) The CBA’s head of advocacy testified to 

Congress in 2019 that the CBA’s proposal “depend[ed] on a private sale overseen by 

the FCC.” (DX15; DX16; Pitsch 3/23/21 Dep. Tr. at 129:5-18; Pitsch 3/24/21 Dep. Tr. 

at 331:15-332:10.) 

SES recognized that the CBA’s existence depended on the market-based 

approach outside of these public statements as well. For example, the SES former 

Chief Legal Officer acknowledged “that the CBA would not continue in the face of 

an adverse FCC Order,” meaning one other than the “Market Based Approach” 

(SES283 at SES0036043.), and he also observed to his colleagues at SES that if the 

FCC ordered a distribution different than what was in the Consortium Agreement, 

SES would need a new agreement with Intelsat. (DX411 at SES0233403.) 

Finally, the Parties’ actions after the public-auction tweet show they 

understood that the Consortium Agreement did not apply once the FCC rejected the 

market-based approach. In particular, the Court notes SES’s repeated efforts to 

amend the Consortium Agreement to redefine the Project Scope and change how 

monies that might be earned would be distributed. (DX127 at INT00322395-96, 

INT00322410-12; see also DX42; DX169.) SES believed that it was “urgent” that 

before the FCC released its order, Intelsat agree to SES’s proposed amendment that 

would provide for 50/50 sharing regardless of what the FCC decided. (DX42; 

DX322; DX167.) SES’s conduct after the public auction tweet demonstrates SES’s 

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recognition that the Consortium Agreement, as written and signed, did not align 

with the FCC’s anticipated order. 

The Court finds that the Agreement is not ambiguous in any reasonable way. 

The Project contemplated by the Agreement will not come to pass; any monies the 

Parties receive related to their individual clearing efforts are not “in respect of the 

Project” and therefore not subject to the Agreement’s revenue-sharing provisions. 

SES’s effort to “reinvent an obviously straightforward contract [] that was signed 

and executed by [] sophisticated parties” is without merit. Am. Home Assurance Co. 

v. Merck & Co., 329 F. Supp. 2d 436, 444 (S.D.N.Y. 2004). 

SES argues that § 10.02(e) of the Agreement prohibits Intelsat from 

terminating the Agreement without SES’s consent. SES contends that the section 

requires a determination by the Operating Subcommittee that an FCC order “would 

prevent the Project from moving forward.”8 The Debtors disagree. The Court need 

not address this argument, as the Agreement had already terminated prior to the 

8 Section 10.02 of the Agreement provides as follows: 

Termination . This Agreement may be terminated by and upon any of 

the following: 

(a) the third (3rd) anniversary of the date of this Agreement, if by such 

time no Secondary Market Agreement has been entered into; 

(b) by a Supermajority of the Members, upon their written agreement; 

(c) by Intelsat, upon a material breach of this Agreement by SES that 

remains uncured by SES sixty (60) days after notice thereof by 

Intelsat to SES; 

(d) by SES, upon a material breach of this Agreement by Intelsat that 

remains uncured by Intelsat sixty (60) days after notice thereof by 

SES to Intelsat; or 

(e) by either Intelsat or SES, upon the determination by the Operating 

Subcommittee that any final, non-appealable FCC C-Band Orders or 

order of any other Governmental Authority would prevent the Project 

from moving forward. 

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receipt of any accelerated relocation payments by any party. This is the case 

because there were no secondary market agreements as of the third anniversary of 

the Agreement. (September 27, 2021). (2/8/22 Tr. 155:1-20, 240:22-24 (Collar); 

2/9/22 Tr. 109:13-22 (Purvis); DX443 (citing DX1 § 10.02(a)); 2/15/22 Tr. 2:14-4:13 

(Bryan); DX136 ¶ 232).) Thus, even if accelerated relocation payments could 

theoretically be proceeds “in respect of the Project,” Intelsat US LLC 

unquestionably had the right to terminate before any accelerated relocation 

payments were received and in fact did so.9 

SES argues the termination under § 10.02(a) should have no effect, since 

Intelsat allegedly breached the Agreement before termination. SES has asserted 

two bases for this claim: (i) Intelsat’s independent contacts with the FCC in the 

final days preceding the FCC’s February 2020 Draft Order, and (ii) Intelsat’s 

rejection of the Consortium Agreement pursuant to 11 U.S.C. § 365 on December 7, 

2020, during the course of these chapter 11 cases. (See 2/7/22 Tr. 48:8-11, 50:10-15, 

55:23-25 (SES Opening); 2/15/22 Tr. 101:5-16 (Bryan).) 

The Court finds that these actions did not constitute material breaches of the 

Agreement under the facts in this case, and neither alleged breach resulted in 

damages to SES. New York courts recognize that “inconsequential or de minimis 

9 After the third anniversary of the Agreement passed, Intelsat sent a termination letter to 

all Consortium members, stating that “to the extent the Consortium Agreement had any 

continuing effect following the FCC’s February and March 2020 Orders (and Intelsat 

believes it had none), it is formally terminated pursuant to Section 10.02(a).” (DX443; see

2/15/22 Tr. 3:12-21 (Bryan) (Intelsat sent termination letter “out of an abundance of 

caution” as “no secondary market agreement had occurred, so the agreement terminated on 

its own terms.”).) 

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breaches that are not so substantial and fundamental as to strongly tend to defeat 

the object of the parties in making the contract” will not give rise to damages. See., 

e.g., Smolev v. Carole Hochman Design Grp., Inc., 913 N.Y.S.2d 79 (N. Y. App. Div. 

2010). 

Further, SES has not shown any damages as a result of either alleged breach, 

even if the breaches were material. In re MS Angeln GmbH & Co. KG, 10 F. Supp. 

3d 424, 431 (S.D.N.Y. 2014) (“[I]n order to prove a breach of contract claim, a 

plaintiff must establish that his damages were caused by the defendant's wrongful 

conduct.”). Because the FCC rejected the Parties’ Project, there never were any 

Project Gross Proceeds—i.e., monies earned “in respect of the Project.” Further, 

there is no evidence that any of Intelsat’s independent contacts with the FCC had 

the impact of reducing payments to SES. Quite the opposite. During the time SES 

complains about, Intelsat’s individual payments were reduced while SES’s 

payments were increased by $1.5 billion. 

As to SES’s second basis for its claim that Intelsat breached the Agreement 

by rejecting the Agreement during the progression of its case in this Court, the 

Court finds that the rejection of the Agreement is consistent with the Debtors’ 

position that the Agreement had no application following the FCC’s order, 

rendering it effectively irrelevant. The Court does not read into the rejection any 

admission that the Agreement was still in effect. To do so would be to infer an 

intent that is not supported by the evidence presented to the Court. The Debtors 

urge, in their Proposed Findings of Fact and Conclusions of Law, that the 

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Agreement was rejected in the bankruptcy case in an abundance of caution, to the 

extent it was still in force and construed to somehow impose obligations on them 

despite the FCC’s rejection of the market-based approach, Intelsat US LLC rejected 

the Agreement because it provided no benefit to the Debtors’ estates following the 

FCC’s Final Order. See 11 U.S.C. § 365; COR Rte. 5 Co. v. The Penn Traffic Co. (In 

re The Penn Traffic Co.), 524 F.3d 373, 378 (2d Cir. 2008) (Section 365 of allows a 

trustee or chapter 11 debtor-in-possession to assume or reject any executory 

contract or unexpired lease of the debtor.)10

Intelsat’s independent contacts with the FCC in the final days preceding the 

FCC’s February 2020 Draft Order did not damage SES. The Debtors’ rejection of 

the Agreement in the bankruptcy case did not harm SES. Because the two alleged 

breaches claimed by SES did not cause damages, there can be no recovery for them. 

Unjust Enrichment. SES asserts a claim for unjust enrichment as an 

alternative to its breach of contract claims. The Court finds that SES’s unjust 

enrichment claim fails for two reasons. First, the unjust enrichment claim arises 

out of the same subject matter as the Consortium Agreement and is thus barred as 

a matter of law. Second, even putting aside this contractual bar, SES cannot 

establish the elements of an unjust enrichment claim. 

New York courts are clear that “where a valid and enforceable contract 

governs the relevant subject matter of the parties’ dispute, the contract—rather 

than principles of restitution—should determine the measure of a party’s recovery 

10 The rejection of a contract may give rise to damages for the contract’s breach, but, as has 

been established here, there were no damages incurred by SES because of the rejection. 

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for events arising from that subject matter.” Chesapeake Energy Corp. v. Bank of 

N.Y. Mellon Tr. Co., N.A., 837 F.3d 146, 159 (2d Cir. 2016) (per curiam) (emphasis 

added).11 By contrast, “unjust enrichment . . . is an obligation the law creates in the 

absence of any agreement.” Goldman v. Metro. Life Ins. Co., 841 N.E.2d 742, 746 

(N.Y. 2005); Miller v. Schloss, 113 N.E. 337, 339 (N.Y. 1916). Thus, “a party may 

not recover in . . . unjust enrichment where the parties have entered into a contract 

that governs the subject matter” at issue in the dispute. Catlyn & Derzee, Inc. v. 

Amedore Land Devs., LLC, 87 N.Y.S.3d 661, 664 (N.Y. App. Div. 2018); see Poplar 

Lane Farm LLC v. Fathers of Our Lady of Mercy, 449 F. App’x. 57, 59 (2d Cir. 2011) 

(“[W]hen a valid agreement governs the subject matter of a dispute between parties, 

claims arising from that dispute are contractual; attempts to repackage them as 

sounding in ... unjust enrichment ... are generally precluded.”). For this reason, 

New York courts routinely dismiss unjust enrichment claims when they arise out of 

alleged breaches of contract. E.g., Sell It Soc., LLC v. Strauss, 2018 WL 2357261, at 

*8 (S.D.N.Y. Mar. 8, 2018); DRL Software Sols., LLC v. JourneyPure, LLC, 2018 WL 

1276856, at *2 (S.D.N.Y. Mar. 8, 2018) (dismissing unjust enrichment claim where 

“the case will center on parties’ obligations under [a written] contract”); ISS Action, 

11 See also MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 157 F.3d 956, 964 (2d Cir. 1998) 

(observing that, under “well–settled principles of New York law.... the existence of a valid 

and enforceable written contract governing a particular subject matter ordinarily precludes 

recovery in quasi contract ... for events arising out of the same subject matter” (internal 

quotation marks omitted)); Clark–Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 

389 (1987) (“It is impermissible ... to seek damages in an action sounding in quasi contract 

where the suing party has fully performed on a valid written agreement, the existence of 

which is undisputed, and the scope of which clearly covers the dispute between the 

parties.”) 

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Inc. v. Tutor Perini Corp., 95 N.Y.S.3d 298, 303 (N.Y. App. Div. 2019) (dismissing 

unjust enrichment claim because the disputed issue was addressed, one way or 

another, in the parties’ agreements”). 

SES seeks to avoid this adverse case law by arguing that the unjust 

enrichment claim acts as a gap-filler to the extent that the Consortium Agreement 

does not apply to the FCC’s decision. However, this is precisely the type of end-run 

around a contract that the above cases prohibit. Under New York law, an unjust 

enrichment claim does not arise merely because a contract does not specifically 

address a given situation. Such a rule would effectively always allow unjust 

enrichment claims if a contract were found not to govern a specific action between 

parties. Instead, the inquiry must focus on whether the events giving rise to the 

unjust enrichment claim are “events arising out of the same subject matter” as a 

“written contract governing a particular subject matter.” Clark–Fitzpatrick, Inc. v. 

Long Island R.R. Co., 516 N.E.2d 190, 193 (N.Y. 1987) (emphasis added). If the 

events arise out of the same subject matter, an unjust enrichment claim may not 

lie—even if the contract is held not to apply to that matter. Id. (“The existence of a 

valid and enforceable written contract governing a particular subject matter 

ordinarily precludes recovery in quasi contract for events arising out of the same 

subject matter.”) 

The nature of SES’s primary claim—that Intelsat has breached the 

Consortium Agreement—demonstrates why there can be no unjust enrichment 

claim here as a matter of law. The thrust of SES’s unjust enrichment claim appears 

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to be that Intelsat improperly led SES to believe the Agreement’s revenue-sharing 

obligation was still in force even after Intelsat had determined that it was not. 

Putting aside whether that is correct as a factual matter, it demonstrates that 

SES’s unjust enrichment claim arises out of precisely the same events and subject 

matter as its contract claims. The fact that SES’s unjust enrichment claim seeks to 

enforce a 50/50 split—a figure found nowhere else other than the Agreement—

confirms as much. In such a situation, New York law is clear that an unjust 

enrichment claim cannot succeed. Catlyn & Derzee, Inc., 87 N.Y.S.3d at 664. 

SES cites no case to the contrary. In its opening statement, SES argued that 

unjust enrichment is a “long-recognized stand-alone theory of liability” and cited a 

series of cases in which plaintiffs successfully asserted such claims. (See 2/7/22 Tr. 

84:22-23 (SES Opening Statement).) But none of those cases involved a valid, 

enforceable contract governing the same subject matter as the unjust enrichment 

claim. For example, in Thayer v. Dial Indus. Sales, Inc., the court noted that a 

party cannot proceed in quasi contract “when there is an express contract covering 

the subject matter involved.” 189 F. Supp. 2d 81, 92 (S.D.N.Y. 2002) (quotations 

omitted). The court held that because the plaintiff performed services for a period 

before there was a contract governing his performance, he could bring an unjust 

enrichment claim to recover for those precontract services. Id. Other cases on 

which SES relies did not concern a contractual relationship or breach of contract 

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claim.12 SES thus has provided no authority to show why New York’s rule 

disallowing unjust enrichment claims on a subject matter covered by a contract does 

not bar its claim here. 

In addition, SES has not established the elements of unjust enrichment. 

Even if SES could assert a claim for unjust enrichment in the face of the 

Consortium Agreement, the Court finds the claim would still fail because SES 

cannot establish any of the elements necessary to establish such a claim. 

To establish unjust enrichment, a plaintiff must show that “(1) the defendant 

was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good 

conscience to permit the defendant to retain what is sought to be recovered.” Deerin 

v. Ocean Rich Foods, LLC, 71 N.Y.S.3d 123, 126-27 (N.Y. App. Div. 2018) (citation 

omitted). SES cannot establish any of these elements. 

SES cannot show Intelsat was enriched at all, much less at SES’s expense. 

The undisputed evidence at trial was that the work to cause the FCC to increase its 

accelerated relocation payment offer to a total of $9.7 billion was either joint work 

or, with respect to the last $900 million (from $8.8 billion to $9.7 billion), work that 

Intelsat drove individually. As that work increased the “size of the pie” for both 

Parties, SES cannot explain how Intelsat was enriched or SES was harmed. 

Rather, as the amount of accelerated relocation payments grew to $9.7 billion, 

SES’s portion of those funds grew by $1.5 billion, while Intelsat’s share decreased 

12 In particular, SES cites State Farm Mut. Auto. Ins. Co. v. A to Z Med. Care P.C., 2019 WL 

2489901 (E.D.N.Y. June 7, 2019); Gov’t Emps. Ins. Co. v. Infinity Health Prod., Ltd., 2012 

WL 1427796 (E.D.N.Y. Apr. 6, 2012). 

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by more than $200 million. (DX524.) Because its payments were decreased when 

the total relocation payments were increased to $9.7 billion, Intelsat was not 

unjustly enriched, and in fact was not enriched at all. On the other hand, SES 

received a large increase in its award thanks to Intelsat’s continued negotiation 

efforts with the FCC. 

Various SES witnesses testified that if they had known that Intelsat believed 

the 50/50 split would no longer apply under the anticipated Final Order mandating 

individualized acceleration payments, SES may have ceased working cooperatively 

with Intelsat earlier. But SES’s witnesses also admitted that, in that scenario, the 

outcome was so uncertain that SES may itself have received less compensation—or 

even no compensation—in the market-driven clearing process set forth in the 

Agreement.13 At best, what SES may have done in recognition that a 50/50 split 

was no longer obtainable, and what may have been the effect of its actions, is 

speculative. There is no proof that SES’s walking away from the joint advocacy 

prior to the release of the Draft Order would have made SES better off. There is 

thus no evidence that SES was harmed by what it alleges to be the wrongful 

conduct. 

Finally, SES cannot establish that it would be “against equity and good 

conscience to permit [Intelsat] to retain what is sought to be recovered.” Deerin, 71 

N.Y.S.3d at 127. The ultimate split of the accelerated relocation payments was set 

by the FCC. The FCC allocated those amounts based on its views of “the relative 

13See 2/14/22 Tr. 41:25-42:7 (De Hauwer). 

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contribution that each eligible space station operator is likely to make towards 

accelerating the transition of the [C-band spectrum],” along with each license 

holder’s satellite coverage and transponder usage. (DX136 ¶ 227.) 

SES has not presented any evidence that the FCC was “duped” into 

establishing those splits or that the splits are fundamentally unfair using the 

metrics the FCC itself independently selected. To the contrary, SES’s own data 

(and own internal communications) are clear that, based on the objective metrics 

that the FCC used in allocating the accelerated relocation payments amongst the 

operators, Intelsat and SES’s share of the proceeds would not be equal “under any 

type of metric (revenue, supply etc.) that the FCC would mandate,” such that SES 

received more than it deserved from the FCC. (DX239; DX227.)14 Moreover, while 

SES criticizes “back-channeling” by Intelsat CFO David Tolley in the two-day 

period between the FCC’s “best and final offer” on February 4 and issuance of the 

Draft Order on February 7, there is no evidence that anything Intelsat did resulted 

in it receiving a larger allocation at SES’s expense. In fact, during that same time, 

Intelsat’s offer decreased while SES’s increased by $1.5 billion. (E.g., DX160.) 

To the extent SES thought the FCC’s splits were unfair, it could have 

objected to the Draft Order or refused to participate in the accelerated clearing; it 

did neither. In short, the Court does not see anything “unjust” about allowing the 

split of accelerated relocation payments set by the FCC based on objective criteria to 

determine the amounts available to SES and Intelsat. For this reason and the 

14 SES does not dispute that Intelsat has more capacity in the C-Band (see DX227; 239). 

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reasons set forth above, the Court finds that even independent of any contractual 

bar to SES’s unjust enrichment claim, SES could not and did not establish the 

elements of an unjust enrichment claim. 

Breach of Fiduciary Duty. SES has asserted Intelsat breached a fiduciary 

duty to SES when it took the position that the Consortium Agreement did not apply 

to the FCC’s Draft and Final Orders. Despite presenting evidence and argument for 

seven days at trial, SES made little to no mention of this claim. In any event, the 

Court finds that SES’s breach of fiduciary duty claim fails. 

To establish a breach of fiduciary relationship under New York law, “a 

plaintiff must prove the existence of a fiduciary relationship, misconduct by the 

defendant, and damages that were directly caused by the defendant’s conduct.” 

Stein v. N. Assurance Co. of Am., 2012 WL 1605365, *10 (E.D.N.Y. May 7, 2012). 

SES cannot establish these elements. 

The first element of a fiduciary duty claim is the existence of a fiduciary 

relationship between the Parties. Id. To the extent SES claims a fiduciary duty is 

established by the Consortium Agreement, that claim is precluded by its plain 

terms. Section 8.04 of the Consortium Agreement states: 

Section 8.04 Fiduciary Duties. No Member or any of its past present, or 

future Representatives shall have any fiduciary duty to any Member, 

nor shall have any obligation, or be liable or accountable in damages or 

otherwise, to any Member for exercising any of the rights of such 

Member or such Representative under this Agreement or any Related 

Agreement to which it is or will be a party, or for losses sustained, 

liabilities incurred or benefits not derived as a result of errors in 

judgment or mistake of fact or law or any act or omissions, so long as 

such Member (or its Representatives) was not grossly negligent, did 

not engage in willful misconduct and did not act with bad faith or 

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deliberate dishonesty. No Member shall in any event be liable for any 

consequential, incidental or indirect damages, including loss of profit 

or goodwill. This provision shall not affect specific limitations of 

liability in any of the Related Agreements. (DX1 § 8.04.) 

As sophisticated parties, Intelsat and SES had the option to contractually “waive 

legal claims based on the fiduciary duties that arise from their relationships.” 

Union Carbide Corp. v. Montell N.V., 1998 WL 293991, at *7 (S.D.N.Y. June 5, 

1998); LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC, 10 F. Supp. 3d 504, 523-24 

(S.D.N.Y. 2014). That is precisely what they did. Section 8.04 of the Agreement 

precludes any claim that may be based on the existence of a fiduciary duty. 

SES seeks to avoid this result by pointing to language in § 8.04 that it claims 

creates a carve-out to the fiduciary duty disclaimer for willful misconduct, bad faith, 

or deliberate dishonesty by a Consortium member. Its attempt fails for two 

reasons. 

First, SES’s reading of the disclaimer is incorrect. Under the “last antecedent 

doctrine,” a modifier placed at the end of the series—like the one here pertaining to 

willful misconduct, bad faith, or deliberate dishonesty—modifies only the last item 

in the series. See Duane Reade, Inc. v. Cardtronics, LP, 863 N.Y.S.2d 14, 17 (N.Y. 

App. Div. 2008) (applying canon). The carve-out language that SES points to does 

not relate to the fiduciary duty disclaimer, but instead to the portion of § 8.04 that 

creates a limitation on damages recoverable for breaches of the Agreement. 

This interpretation is also consistent with any reasonable understanding of 

the language of the provision. It is typical for a contractual term that limits a 

party’s liability to have a carve-out for willful misconduct or bad faith; if a party has 

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engaged in such misconduct, the law generally does not permit that party to 

insulate itself from the harm it caused. Deutsche Bank Nat’l Tr. Co. v. Morgan 

Stanley Mortg. Cap. Holdings LLC (In re Part 60 Put-Back Litig.), 36 N.Y.3d 342, 

352 (N.Y. 2020). In contrast, it makes little sense to have the existence of a 

relationship (like a fiduciary duty) depend on the nature of a party’s future actions. 

Under SES’s reading, the Parties could have maintained their relationship for years 

without having any fiduciary duties to one another, only to have such a duty spring 

to life at the moment Intelsat engaged in supposedly willful or dishonest conduct. 

That makes no sense.15

Second, even if SES were correct that a willful misconduct carve-out applies 

to the fiduciary duty disclaimer, SES failed to establish that a fiduciary duty exists 

between the Parties. Section 8.04 merely disclaims fiduciary duties; it does not 

create such duties. New York law is clear that “an arms-length contract between 

two parties “does not by itself give rise to fiduciary duties between them, something 

more is required.” Hamister v. Liberty Mut. Ins. Co., 2008 WL 4365893, at *9 

(W.D.N.Y. Sept. 22, 2008). Here, there are simply no affirmative statements in the 

Consortium Agreement that establish such a fiduciary duty.

SES cites no persuasive evidence that would establish a fiduciary 

relationship. It presented no evidence that “one party’s superior position or 

superior access to confidential information is so great as virtually to require the 

15 Even if the disclaimer could have potentially applied to the “no fiduciary duty” clause, the 

facts here belie the notion that Intelsat’s actions constitute “willful misconduct,” “bad faith,” 

or “deliberate dishonesty.” 

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other party to repose trust and confidence in the first party,” which may have 

created a fiduciary duty. Pension Comm. v. Banc of Am. Sec., LLC, 592 F. Supp. 2d 

608, 624 (S.D.N.Y. 2009); Apple Records, Inc. v. Capitol Records, Inc., 529 N.Y.S.2d 

279, 293 (N.Y. App. Div. 1988). Nor did SES establish the type of “special 

circumstances” required to convert a contractual relationship into a fiduciary one, 

“such as control by one party of the other ... or creation of an agency relationship.” 

L. Magarian & Co. v. Timberland Co., 665 N.Y.S.2d 413, 414 (N.Y. App. Div. 1997). 

Intelsat and SES are competitors (Docket No. 4143, Joint Stipulated Facts, ¶ 1.); 

Intelsat and SES are not fiduciaries. 

Even if SES could establish that Intelsat owed a fiduciary duty to SES and 

that Intelsat breached that duty by seeking a greater portion of the accelerated 

relocation payments from the FCC, SES would not be able to establish damages. As 

with SES’s unjust enrichment claim, there is no evidence that Intelsat’s alleged 

breach caused any actual harm to SES. 

As discussed above, during the period in which SES alleges Intelsat was 

engaged in misconduct, Intelsat’s share of the relocation payments was reduced 

from $5.08 billion to $4.85 billion, and SES’s share increased from $2.4 billion to $4 

billion. As a result, even if Intelsat’s engaging in advocacy before the FCC during 

this time could be construed as breaching some duty owed to SES, that advocacy in 

fact benefited SES by more than a billion dollars. And to the extent SES’s fiduciary 

duty claim is based on alleged back-channeling undertaken by Intelsat or its agents, 

SES failed to prove that such advocacy improved Intelsat’s own position vis-à-vis 

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SES. Instead, the record establishes that Intelsat’s potential recovery decreased 

during the final days of the negotiations, whereas SES’s increased. Because 

Intelsat’s advocacy did not damage SES, its claim for breach of fiduciary duty (even 

if one even existed) must fail. Parametric Capital Mgt., LLC v. Lacher, 791 

N.Y.S.2d 10, 11 (N.Y. App. Div. 2005) (breach of fiduciary duty claim dismissed 

because “such breach would ripen only when plaintiffs are able to allege damages”). 

Constructive Trust. In its Proofs of Claim, SES did not seek the imposition 

of a constructive trust. (DX94.) However, in its opening statement at trial, SES 

nonetheless asked the Court to impose a constructive trust on some of the 

accelerated relocation payments that Intelsat License will receive if it satisfies the 

requirements of the Final Order. The Court declines to do so. 

As a threshold matter, even if SES were able to establish some elements of a 

constructive trust, its claim would nevertheless fail because SES disclaimed any 

allegation of fraud; neither did it prove fraud. (See DX249 at p. 45-46, Responses to 

Req. for Admission 56 & 57 (“SES admits that it does not allege that Intelsat 

committed fraud.”).) It is settled law that there can be no constructive trust in the 

absence of fraud: “New York law is clear that a constructive trust is an equitable 

remedy intended to be fraud-rectifying rather than intent-enforcing.” 

Superintendent of Ins. v. Ochs (In re First Cent. Fin. Corp.), 377 F.3d 209, 216 (2d 

Cir. 2004) (internal quotations and citations omitted); see also Bankers Sec. Life Ins. 

Soc’y v. Shakerdge, 406 N.E.2d 440, 441 (N.Y. 1980) (noting “the constructive trust 

doctrine serves as a fraud-rectifying remedy rather than an intent-enforcing one”) 

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(citation omitted). Consistent with Second Circuit and New York case law, a 

district court in the Fourth Circuit denied a constructive trust claim governed by 

New York law where (as here) there was “no allegation or evidence that the 

transaction was false or fraudulent.” Rapoca Energy Co. v. J.L. Mining Co., 368 F. 

Supp. 2d 541, 545 (W.D. Va. 2005). SES’s constructive trust theory fails for that 

reason alone. 

The Court also finds that SES did not establish by a preponderance of the 

evidence any of the elements necessary to a constructive trust claim. “[T]o establish 

a constructive trust there must be provided: (1) a confidential or fiduciary relation, 

(2) a promise, express or implied, (3) a transfer made in reliance on that promise, 

and (4) unjust enrichment.” Bankers Sec. Life Ins. Soc., 406 N.E.2d at 440. 

First, there was no “confidential or fiduciary relation” between the Parties. 

As the Court has previously found, there was a waiver of any fiduciary duties in the 

Consortium Agreement. (DX1 § 8.04 (“No Member or any of its past, present, or 

future Representatives shall have any fiduciary duty to any Member ...”). 

Second, there was no “transfer made” to Intelsat “in reliance on” any promise 

to SES. The FCC’s Order provides for acceleration payments directly and 

separately to each of Intelsat and SES, depending on whether either meets the 

obligations of the Final Order, which were calculated based on each entity’s 

separate contribution to the repurposing process. (DX136 ¶¶ 171, 174, 232, 287, 

295.) None of those accelerated relocation payments, if earned, has anything to do 

with any promise that Intelsat made to SES. There was no promise by Intelsat to 

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share proceeds other than what may have been required under the Consortium 

Agreement. And, as the Court has determined, the Consortium Agreement does not 

require Intelsat to share its accelerated relocation payments with SES. 

Third, the Court has found that SES has no “unjust enrichment” claim. 

Among other things, just as the existence of the Consortium Agreement precludes 

an unjust enrichment claim, it would bar any constructive trust claim. See In re 

First Cent. Fin. Corp., 377 F.3d at 215 (noting the existence of an agreement 

precluded the equitable remedy of a constructive trust). 

If Intelsat earns the accelerated relocation payments for which the FCC made 

it eligible in the Final Order, it will do so through its own efforts. The FCC 

allocated the accelerated relocation payments to each firm based on the “relative 

contribution, in terms of both effort and cost, that each eligible space station 

operator will make to meet the Accelerated Relocation Deadlines based on three 

objective factors related to each space station operator’s relative contribution.” 

(DX136 ¶ 238.) The FCC also noted the burdens of accelerated clearing “will fall 

more heavily on some space station operators than others” (Id. ¶ 227), and the 

evidence establishes that Intelsat is eligible for larger accelerated relocation 

payments because it has materially more market share in the C-Band than SES 

and more work to do to earn the money for which it is eligible. (See, e.g., DX239 

(SES admitting that “SES vs Intelsat share will not be 50/50 under any type of 

metric (revenue, supply etc.) that the FCC would mandate”); DX227 (SES admitting 

that Intelsat has 50% more coverage in the C-Band than SES does); 2/15/22 Tr. 

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85:24-86:11 (Bryan) (Intelsat must do “a lot more” work than SES under the terms 

of the FCC’s Order).) Intelsat is entitled to a larger acceleration payment than SES 

because Intelsat is making a significantly larger contribution to the repurposing 

than SES. See, e.g., Rapoca Energy, 368 F. Supp. 2d at 54 (denying a constructive 

trust claim governed by New York law because the claimant failed to show unjust 

enrichment); Sharp v. Kosmalski, 351 N.E.2d 721, 724 (N.Y. 1976) (“The salutary 

purpose of the constructive trust remedy is to prevent unjust enrichment . . . .”). 

There being no fraud or unjust enrichment having been proven by SES, there is no 

basis for imposing a constructive trust on any of the accelerated relocation 

payments that Intelsat may be eligible to receive. 

Claims against Intelsat License and Intelsat Jackson. Intelsat US LCC 

is the only entity that signed the Consortium Agreement. (DX1(Consortium 

Agreement); 2/15/22 Tr. at 13:19-21 (Bryan) at 109:21-24.) Nevertheless, SES 

maintains that it may pursue its claims against other Intelsat entities despite the 

absence of language in the Consortium Agreement that would bind affiliates of 

Intelsat. 

Because SES has not satisfied its burden to prove any of its claims, the Court 

need not determine which entities may be liable. The U.S. District Court for the 

Southern District of New York recently cautioned against federal courts’ offering 

advisory opinions: 

[I]t is unnecessary for the Court reach Plaintiffs’ alternative argument 

for relief . . . see Immigration & Naturalization Serv. v. Bagamasbad, 

429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts ... are not 

required to make findings on issues the decision of which is unnecessary 

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to the results they reach.”); In re Surface Mining Regulation Litig., 627 

F.2d 1346, 1360 n.16 (D.C. Cir. 1980) (“We need not address this 

procedural challenge because of our determination that the disputed 

interim regulation itself is without support in the record and therefore 

arbitrary and capricious.”). Indeed, to do so would arguably be 

inappropriate. See, e.g., United Pub. Workers of Am. (C.I.O.) v. Mitchell, 

330 U.S. 75, 89 (1947) (“[T]he federal courts established pursuant to 

Article III of the Constitution do not render advisory opinions.”). 

New York v. Wolf, 2021 WL 185190, *3 n.4 (S.D.N.Y. Jan. 19, 2021). Having 

determined that the signatory to the Consortium Agreement has no liability to SES, 

and there being no alternative theory of relief offered that would otherwise bind an 

Intelsat affiliate in the absence of such liability, the Court will not address this 

issue further. 

CONCLUSION 

As set forth above, the Court finds that under the plain language of the 

Consortium agreement and the evidence in the record, SES has failed to carry its 

burden of establishing by a preponderance of the evidence that Intelsat is liable to 

SES under any theory of recovery set forth by SES. Accordingly, Intelsat’s objection 

to SES proofs of claim nos. 84, 85, and 103 will be sustained, and the claims will be 

disallowed.16

A separate order shall be issued. 

Signed: October 5, 2022 

 /s/ Keith L. Phillips 

 United States Bankruptcy Judge 

Copies to: 

16 The Motion for summary judgment filed by Intelsat is moot in light of the Court’s ruling. 

Entered on Docket: October 5, 2022

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Orin Snyder 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue 

New York, NY 10166-0193 

Michael A. Rosenthal 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue 

New York, NY 10166-0193 

Brian M. Lutz 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue 

New York, NY 10166-0193 

Christopher D. Belelieu 

GIBSON, DUNN & CRUTCHER LLP 

200 Park Avenue 

New York, NY 10166-0193Justine M. Goeke 

Brian M. Lutz. 

GIBSON, DUNN & CRUTCHER LLP 

555 Mission Street, Suite 3000 

20 San Francisco, CA 94105 

KAUFMAN & CANOLES, P.C. 

Dennis T. Lewandowski 

Clark J. Belote 

150 W. Main Street, Suite 2100 

Norfolk, VA 23510-1665 

Peter J. Barrett 

901 East Byrd Street 

Suite 1000 

Richmond, VA 23219-4071 

Michael A. Condyles 

901 East Byrd Street 

Suite 1000 

Richmond, VA 23219-4071 

Jeremy S. Williams 

Kutak Rock L.L.P. 

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901 East Byrd Street 

Suite 1000 

Richmond, VA 23219-4071 

Edward O. Sassower, P.C. 

KIRKLAND & ELLIS LLP 

KIRKLAND & ELLIS INTERNATIONAL LLP 

601 Lexington Avenue 

New York, New York 10022 

Steven N. Serajeddini, P.C. 

KIRKLAND & ELLIS LLP 

KIRKLAND & ELLIS INTERNATIONAL LLP 

601 Lexington Avenue 

New York, New York 10022 

Aparna Yenamandra 

KIRKLAND & ELLIS LLP 

KIRKLAND & ELLIS INTERNATIONAL LLP 

601 Lexington Avenue 

New York, New York 10022 

Michael B. Slade 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

 Chicago, IL 60654 

 

Michael A. Glick 

KIRKLAND & ELLIS LLP 

1301 Pennsylvania Avenue NW 

15 Washington, DC 20004 

B. Webb King 

Office of the United States Trustee 

210 First St, SW, Suite 505 

Roanoke, VA 24011 

John P. Fitzgerald, III 

Office of the US Trustee - Region 4 -R 

701 E. Broad Street, Ste. 4304 

Richmond, VA 23219 

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