PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A.,

dba DIGICEL-HAITI,

Plaintiff,

v.

UPM TECHNOLOGY, INC. and 

DUY BRUCE TRAN,

Defendants.

Case No. 3:15-cv-185-SI

OPINION AND ORDER ON DIGICELHAITI’S MOTIONS FOR SUMMARY 

JUDGMENT AGAINST UPM’S 

COUNTERCLAIMS AND TO 

EXLUDE UPM’S EXPERT WITNESS,

AND UPM’S MOTION FOR PARTIAL 

SUMMARY JUDGMENT

Robert C.L. Vaughan, Cherine Smith Valbrun, Leah B. Storie, and Anisha Carla Atchanah, 

KIM VAUGHAN LERNER LLP, One Financial Plaza, Suite 2001, Fort Lauderdale, FL 33394Anne 

M. Talcott, Kathryn E. Kelly, Andrew J. Lee, and Sara Kobak, SCHWABE, WILLIAMSON &

WYATT PC, 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204; and. Of Attorneys for 

Plaintiff.

Christopher W. Savage, DAVIS WRIGHT TREMAINE LLP, 1919 Pennsylvania Avenue NW, 

Suite 800, Washington, DC 20006; and Kathryn P. Salyer, Eleanor A. DuBay, and 

Blake Van Zile, TOMASI BRAGAR DUBAY, 121 SW Morrison Street, Suite 1850, Portland, 

OR 97204. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

In its Third Amended Complaint (ECF 200), Unigestion Holding, S.A., dba DigicelHaiti, Inc. (Digicel-Haiti) alleges fraud, conversion, and unjust enrichment against UPM 

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Technology, Inc. (UPM) and Duy Bruce Tran.

1

In UPM’s Amended Answer, Affirmative 

Defenses, and Counterclaims (ECF 244), UPM asserts six counterclaims—one based on a federal 

statute and five based on Oregon common law. As its first counterclaim (with five counts), UPM 

alleges violations of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq. (the 

Communications Act). For its remaining counterclaims, UPM alleges breach of implied-in-fact 

contract, money had and received, conversion, unjust enrichment, and intentional interference 

with prospective economic advantage.

On January 18, 2022, the Court granted in part UPM’s motion for summary judgment, 

which significantly narrowed the scope of Digicel-Haiti’s claims and potential recovery. 

ECF 294. The Court also bifurcated this lawsuit into two phases. During Phase I, the Court 

planned to consider Digicel-Haiti’s claims against UPM. During Phase II, the Court planned to 

consider UPM’s counterclaims against Digicel-Haiti. Id. at 37-39. On July 26, 2022, the Court 

granted Digicel-Haiti’s informal letter request to lift the bifurcation order. ECF 383.

The Court previously had scheduled a jury trial on Phase I to begin April 4, 2022. At the 

Phase I pretrial conference held on March 29, 2022, Digicel-Haiti announced that it could not 

likely meet its evidentiary burden to establish damages under the narrowed scope that the Court 

imposed. See ECF 379, at 35, 64 (Transcript from Hearing on March 29, 2022). After that 

hearing, Digicel-Haiti filed a motion for reconsideration of the Court’s decision of January 18, 

2022, and alternative motions to certify an interlocutory appeal to the Ninth Circuit under 28 

1 Mr. Tran is the founder, owner, and chief executive officer of UPM. In this Opinion and 

Order, the Court generally refers to UPM and Mr. Tran together as “UPM.” Digicel-Haiti also 

asserted claims against other individual defendants employed by UPM, but the Court dismissed

those claims on January 18, 2022. ECF 294.

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U.S.C. § 1292(b) or certify questions to the Oregon Supreme Court under Or. Rev. 

Stat. § 28.200. On July 13, 2022, the Court denied Digicel-Haiti’s motions. ECF 380.

The Court also previously had scheduled a Phase II jury trial to begin November 14, 

2022, but after lifting the bifurcation order, all remaining issues that are appropriate for trial will 

now be decided at the November trial. There are, however, additional preliminary matters that 

need to be resolved. In this Opinion and Order, the Court addresses the following motions: 

(1) Digicel-Haiti’s motion for summary judgment against UPM’s six counterclaims (ECF 264); 

(2) Digicel-Haiti’s motion to exclude the testimony of UPM’s expert witness Joseph Gillan 

(ECF 272); and (3) UPM’s motion for partial summary judgment on portions of its first 

counterclaim (ECF 255).

STANDARDS

A. Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure states that a party is entitled to 

summary judgment if the “movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving 

party has the burden of establishing the lack of a genuine dispute of material fact. Celotex Corp. 

v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most 

favorable to the non-movant and draw all reasonable inferences in the non-movant’s favor. 

Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although 

“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for 

summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff’s 

position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). 

“Where the record taken as a whole could not lead a rational trier of fact to find for the nonCase 3:15-cv-00185-SI Document 384 Filed 07/29/22 Page 3 of 21
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moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

The first sentence of Rule 56(a) provides: “A party may move for summary judgment, 

identifying each claim or defense—or the part of each claim or defense—on which summary 

judgment is sought.” Fed. R. Civ. P. 56(a) (emphasis added). The 2010 Advisory Committee 

explains that this sentence was “added to make clear at the beginning that summary judgment 

may be requested not only as to an entire case but also as to a claim, defense, or part of a claim 

or defense.” Fed. R. Civ. P. 56(a) advisory committee’s note to 2010 amendment; see also 

Minority Police Officers Ass’n of S. Bend v. City of S. Bend, Ind., 721 F.2d 197, 200 (7th 

Cir. 1983) (“The word ‘judgment’ in the term ‘partial summary judgment’ is a misnomer. A 

partial summary judgment is merely an order deciding one or more issues in advance of trial; it 

may not be a judgment at all, let alone a final judgment on a separate claim.”). 

Further, Rule 56(g) states: “If the court does not grant all the relief requested by the 

motion, it may enter an order stating any material fact—including an item of damages or other 

relief—that is not genuinely in dispute and treating the fact as established in the case.” Fed. R. 

Civ. P. 56(g) (emphasis added). As explained by the 2010 Advisory Committee, “the court may 

decide whether to apply the summary-judgment standard to dispose of a material fact that is not 

genuinely in dispute.” Fed. R. Civ. P. 56(g) advisory committee’s note to 2010 amendment.

Finally, even if “the court believes that a fact is not genuinely in dispute it may refrain from 

ordering that the fact be treated as established. The court may conclude that it is better to leave 

open for trial facts and issues that may be better illuminated by the trial of related facts that must 

be tried in any event.” Id. 

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B. Expert Testimony

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. 

It provides:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and 

methods; and

(d) the expert has reliably applied the principles and 

methods to the facts of the case.

Fed. R. Evid. 702.

“Under Daubert2and its progeny, including Daubert II,

3

a district court’s inquiry into 

admissibility is a flexible one.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th 

Cir. 2014) (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th 

Cir. 2013)). In evaluating proffered expert testimony, the trial court is “a gatekeeper, not a fact 

finder.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quotation marks omitted). “[T]he 

trial court must assure that the expert testimony both rests on a reliable foundation and is relevant 

to the task at hand.” Id. at 564 (quotation marks omitted). “Expert opinion testimony is relevant 

if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if 

the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant 

2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

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discipline.” Id. at 565 (quotation marks omitted). “Shaky but admissible evidence is to be 

attacked by cross examination, contrary evidence, and attention to the burden of proof, not 

exclusion.” Id. at 564. The judge must “screen the jury from unreliable nonsense opinions, but 

not exclude opinions merely because they are impeachable.” City of Pomona, 750 F.3d at 1043

(quoting Alaska Rent-A-Car, 738 F.3d at 969). In short, “[t]he district court is not tasked with 

deciding whether the expert is right or wrong, just whether his testimony has substance such that 

it would be helpful to a jury.” Id. at 969-70 (alteration in original) (quoting Alaska Rent-ACar, 738 F.3d at 969-70).

Further, the court must assess an expert’s reasoning or methodology, using, when 

appropriate, criteria such as testability, publication in peer-reviewed literature, known or 

potential error rate, and general acceptance. See Est. of Barabin v. AstenJohnson, Inc., 740 F.3d 

457, 463-64 (9th Cir. 2014) (en banc). But these factors are “meant to be helpful, not definitive, 

and the trial court has discretion to decide how to test an expert’s reliability as well as whether 

the testimony is reliable, based on the particular circumstances of the particular case.” Primiano, 

598 F.3d at 564 (citations and quotation marks omitted).

The test “is not the correctness of the expert’s conclusions but the soundness of his 

methodology.” Primiano, 598 F.3d at 564 (quotation marks omitted). “The objective of 

[Daubert’s gatekeeping requirement] is to ensure the reliability and relevancy of expert 

testimony. It is to make certain that an expert, whether basing testimony upon professional 

studies or personal experience, employs in the courtroom the same level of intellectual rigor that 

characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 149. When 

an expert meets the threshold established by Rule 702, the expert may testify and the fact finder 

decides how much weight to give that testimony. Primiano, 598 F.3d at 565. Challenges that go 

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to the weight of the evidence are within the province of a fact finder, not a trial court judge. City 

of Pomona, 750 F.3d at 1044. “A district court should not make credibility determinations that 

are reserved for the jury.” Id.

BACKGROUND

The factual background of this case has been thoroughly described in earlier opinions, 

including the Court’s decision dated January 18, 2022. ECF 294. As relevant here, UPM 

purchased or otherwise obtained Digicel-Haiti SIM cards4from third parties in Haiti and then 

sent the cards to UPM in Oregon. UPM placed multiple SIM cards in a server, activated the SIM 

cards, and used them to initiate and authenticate two types of calls from the United States to 

Haiti. One type of call began in the United States and was sent over the internet to a radio 

transmitter located in Haiti, resulting in the call appearing to originate on Digicel-Haiti’s network 

in Haiti as a local call. The parties refer to this as “in-country,” or “traditional,” bypass. 

Another type of call also began in the United States on a network operated by a United 

States telecommunications carrier that was a roaming partner with Digicel-Haiti (i.e., with whom 

Digicel-Haiti had a roaming partner contract). This call was sent by the United States roaming 

partner to Digicel-Haiti’s international switch, located in either New York or Florida, as part of a 

discounted calling program that Digicel-Haiti marketed and sold under the name “Roam Like 

You Are Home” (RLYH). Digicel-Haiti asserts that it intended for its SIM cards in this program 

to be used only by its subscribers who were human beings and not have multiple SIM cards 

4

“SIM” is an acronym for “Subscriber Identity Module.” Each SIM card contains a 

unique identification number and other information used to “authenticate” the card on a 

telecommunication carrier’s network, enabling the card to be used to make calls. Typically, an 

individual cell phone user would purchase a SIM card to be used for making calls from a specific 

cell phone, or handset. The SIM card would often include a certain monetary value, or “prepaid” 

amount, but could be recharged or “topped off” with new payments. If a carrier, such as DigicelHaiti, deactivates (or de-authenticates) a SIM card, that card can no longer be used to make calls.

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placed in a computer server. Digicel-Haiti refers to this as “RLYH bypass.” Thus, in one of these 

two ways, UPM connected third-party calls originating in the United States and ending (or 

terminating5) with a Digicel-Haiti customer located in Haiti. Digicel-Haiti charged, or debited,

the SIM card either the local rate or a RLYH discounted rate for these calls, rather than DigicelHaiti’s higher rate for inbound international calls. 

If, however, Digicel-Haiti determined that a particular SIM card was being used in one of 

these two ways (either in-country bypass or RLYH bypass), then Digicel-Haiti would deactivate, 

or de-authenticate, that SIM card, thereby blocking UPM from further using it. According to 

Digicel-Haiti, UPM used “human behavior software” (HBS) to actively conceal from DigicelHaiti that a SIM card was being used for some type of bypass, rather than by an individual 

human user for a specific call. The Court ruled that this use of HBS would constitute fraud by 

active concealment in violation of Oregon common law, by deceiving Digicel-Haiti into 

allowing the SIM cards still to be used. This would assist UPM in avoiding, or bypassing, higher 

charges for international calls coming from the United States to Digicel-Haiti’s customers in 

Haiti. UPM denies using HBS.

DISCUSSION

A. Digicel-Haiti’s Motion for Summary Judgment Against UPM’s Counterclaims

1. Whether UPM’s Counterclaims Are Barred by the Statute of Limitations

Under the Communications Act, “all complaints against carriers for the recovery of 

damages . . . shall be filed . . . within two years from the time the cause of action accrues, and not 

after.” 47 U.S.C. § 415. UPM filed its first iteration of counterclaims against Digicel-Haiti on 

5

In this context, “termination” means the location where a call is shown to be received 

for purposes of a cellular company’s tracking and billing records.

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March 1, 2016, which included UPM’s claims under the Communications Act as well as its 

common law state claims. ECF 73.

As Digicel-Haiti correctly observes, UPM’s claim under the Communications Act (as 

well as UPM’s common law state claims) are based on Digicel-Haiti’s actions deactivating the 

SIM cards that UPM’s agents purchased or otherwise obtained for UPM in Haiti. UPM alleges 

that “Digicel-Haiti’s actions in blocking the use by UPM of SIM cards . . . constitutes 

‘unreasonable discrimination’ against UPM” and an “unjust or unreasonable charge, practice, 

classification or regulation,” in violation of the Communications Act. See ECF 244, ¶¶ 331, 335, 

339, 343, 349. Digicel-Haiti correctly states that the undisputed record evidence establishes that 

UPM knew that Digicel-Haiti was deactivating, or blocking, UPM’s SIM cards beginning 

in 2011.

UPM does not dispute any of this. Indeed, in its response, UPM states that Digicel-Haiti 

argues that UPM’s claim under the Communications Act is “barred by the Statute of Limitations. 

To the extent that UPM’s claims as pled extend to Digicel-Haiti’s actions during the 2011-2012 

period, UPM agrees.” ECF 279, at 7 (int. p. 3). UPM adds, however, that it also purchased or 

otherwise obtained Digicel-Haiti SIM cards from April through December 2014, which DigicelHaiti also blocked. UPM argues that the two-year statute of limitations does not bar DigicelHaiti’s potential liability for violations committed after March 1, 2014, including during April to 

December 2014. The Court agrees with UPM.

In Communications Vending Corp. of Arizona v. F.C.C., 365 F.3d 1064, 1074 (D.C. 

Cir. 2004), the U.S. Court of Appeals for the District of Columbia Circuit explained that under 

§ 415 of the Communications Act, “a cause of action accrues either when a readily discoverable 

injury occurs or, if an injury is not readily discoverable, when the plaintiff should have 

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discovered it.” Id. at 1074 (citing MCI Telecomms. Corp. v. F.C.C., 59 F.3d 1407, 1417 (D.C. 

Cir. 1995)). Thus, the relevant question is whether a distinct injury occurred during the two years 

immediately preceding March 1, 2016, or whether all damages ultimately trace to the first 

liability-creating act in 2011. 

In Davis v. Bostick, 282 Or. 667, 672 (1978), the Oregon Supreme Court discussed

decisions applying the doctrine of “continuing tort” and concluded that the plaintiff had not 

alleged a continuing tort because she could have asserted a separate cause of action after each of 

defendant’s acts. “[A]t the heart of the continuing tort idea is the concept that recovery is for the 

cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Id. (emphasis 

added). The doctrine of “continuing tort” provides useful guidance.

UPM contends that it paid about $4 per SIM card plus other amounts in recharge fees (or 

top-ups) and RLYH fees. Each time that UPM paid for a SIM card (or related charges) and 

Digicel-Haiti later deactivated that card, a new injury occurred for which UPM may seek 

damages, at least related to that deactivated card. UPM contends that these fees total about

$156,000. ECF 244 ¶¶ 352-356.

6

The real rub comes in UPM’s claim for consequential damages of about $50 million. 

ECF 244 ¶¶ 332, 336, 340, 344, 350. There are several potential problems with UPM’s theory of 

consequential damages. Perhaps the most serious is whether such damages are speculative and 

thus not recoverable. See Parker v. Harris Pine Mills, 206 Or. 187, 197 (1955) (“In every case 

actual damages sustained must be established by evidence upon which their existence and 

amount may be determined with reasonable certainty. Speculative damages are never allowed.”). 

6

It is unclear whether the $156,000 amount includes SIM cards deactivated by DigicelHaiti in 2011-2012 or only those deactivated by Digicel-Haiti between April and 

December 2014. For purposes of the pending motion, that is immaterial.

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The resolution of this issue, however, will have to wait for another day, perhaps at the final 

pretrial conference, perhaps at the November jury trial, or even perhaps post-trial. For now, the 

Court simply concludes that UPM’s claims between April and December 2014 are not timebarred.7

2. UPM’s Counterclaim Under the Communications Act

a. Whether the Communications Act Applies to Digicel-Haiti

Digicel-Haiti argues that the Communications Act does not apply because Digicel-Haiti 

does not operate as an “international common carrier” in the United States. UPM responds by

arguing, among other things, that because Digicel-Haiti has entered into roaming agreements 

with United States carriers to handle calls between the United States and Haiti, Digicel-Haiti is 

an international common carrier under the Communications Act, at least for those services.

Digicel-Haiti offered its discounted RLYH program to persons in Haiti who bought DigicelHaiti’s SIM cards and then subscribed to (and paid for) Digicel-Haiti’s RLYH program. 

ECF 200 ¶ 128 (Third Am. Compl.). Digicel-Haiti replies that it intended the RLYH plan to be 

used by individual customers while they are roaming outside of their home network in Haiti. Id. 

¶ 130. 

During the hearing on July 26, 2022, the Court requested additional briefing on the

question of whether the Communications Act applies to Digicel-Haiti’s challenged conduct. 

ECF 383. UPM’s legal brief explaining why the Communications Act applies is due August 16, 

2022, Digicel-Haiti’s response is due August 30, 2022, and UPM’s reply brief is due 

7 The same conclusion applies to UPM’s Oregon tort claims, which are similarly subject 

to a two-year statute of limitations. See Or. Rev. Stat. § 12.110(1) (“An action . . . for any injury 

to the . . . rights of another, not arising on contract, and not especially enumerated in this chapter, 

shall be commenced within two years . . . .”).

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September 9, 2022. After receiving this briefing, the Court may decide as a matter of law 

whether the Communications Act applies to Digicel-Haiti’s RLYH activities in the United States

or may defer that decision until trial.

b. Whether the Foreign Sovereign Compulsion Doctrine Applies

Digicel-Haiti argues that UPM’s claim under the Communications Act must be dismissed 

because its action in blocking UPM’s SIM cards was compelled by Haitian law. For now, the 

Court puts aside the fact that the “foreign sovereign compulsion” doctrine has never been applied 

as a defense to violations of the Communications Act and appears only to apply in the context of 

antitrust cases.8 Because Digicel-Haiti has moved for summary judgment on this issue, it must 

show the lack of a genuine issue of material fact. The record evidence, however, appears to 

show, at most, that Digicel-Haiti did not violate Haitian law by blocking the SIM cards that UPM 

was using; it does not show that Digicel-Haiti had to do so. It also appears that Digicel-Haiti’s 

evidence of Circular No. 009 may not even apply to companies like Digicel-Haiti but only to 

internet service providers. See ECF 60, at 6-8. The Court may revisit this issue at the pretrial 

conference, depending on the evidence the parties submit, but Digicel-Haiti has not yet met its 

burden on this issue at summary judgment.

c. Whether International Law or Comity Requires Abstention

Digicel-Haiti argues that the Court should “abstain” from exercising its jurisdiction over 

UPM’s claim under the Communications Act. ECF 264, at 16-17 (int. pp. 12-13). Digicel-Haiti, 

8

Indeed, the FCC has expressly declined to apply the foreign sovereign compulsion 

doctrine to limit entities’ obligations under the Communications Act. See Petition of AT&T Inc. 

for Settlements Stop Payment Order on the U.S.-Tonga Route, Memorandum Opinion and Order, 

29 FCC Rcd 4186 (2014) (“Tonga Order”) at ¶ 13 (rejecting foreign carrier’s attempt to rely on 

the foreign sovereign compulsion defense because the matter before the FCC did not involve 

antitrust liability).

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however, provides no legal authority for that conclusion, either in its opening memorandum or its 

reply. Without legal authority called to the Court’s attention, the Court declines Digicel-Haiti’s 

suggestion that the Court abstain from hearing UPM’s counterclaims.

3. UPM’s Counterclaim of Breach of Implied-in-Fact Contract

As its second counterclaim, UPM alleges breach of implied-in-fact contract. According to 

UPM, its agents purchased or otherwise obtained Digicel-Haiti SIM cards at retail prices from 

authorized Digicel-Haiti dealers in Haiti and there was no writing on the SIM cards themselves 

or contained in the packaging surrounding the SIM cards that imposed any restrictions or limits 

on how the SIM card or its minutes may be used, nor were such restrictions imposed by any 

other materials that Digicel-Haiti or its vendors provided to UPM in connection with its

acquisition of SIM cards, recharges, or payments for RLYH plans. ECF 244 ¶¶ 352, 354 (Am. 

Ans., Aff. Defs., and Counterclaims). UPM further alleges that it or its agents purchased or 

otherwise obtained a total of about 10,705 Digicel-Haiti SIM cards, at a cost of about $4.00 per 

card, for a total purchase payment of about $42,836. UPM also paid about $111,209 for 

recharges and RLYH plans to be added to UPM’s other costs relating to the SIM cards. Id. ¶ 355. 

Based on these allegations, UPM contends:

Digicel-Haiti’s conduct regarding the sale and use of its SIM cards, 

both in its transactions with UPM’s agents and in its general SIM 

card transactions with its other customers, manifested its intent that 

Digicel-Haiti would provide access to its Haiti network for the 

specified number of minutes in exchange for the purchase of its 

SIM cards, recharges/top-ups, and RLYH plans.

Id. ¶ 356.

When parties manifest their agreement by conduct, rather than by words, the contract is 

said to be “implied-in-fact.” A contract implied-in-fact is still a contract. An express contract and 

a contract implied-in-fact are both contracts formed by a mutual manifestation of assent; the only 

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significant difference is the form or proof of the mutual assent. See In re Premera Blue Cross 

Customer Data Sec. Breach Litig., 198 F. Supp. 3d 1183, 1198-99 (D. Or. 2016). Thus, an 

implied-in-fact contract has the same legal requirements and the same legal effect as an express 

contract. See Helicopter Transp. Servs., LLC v. Sikorsky Aircraft Corp., 448 F. Supp. 3d 1127, 

1135-36 (D. Or. 2020) (quoting Staley v. Taylor, 165 Or. App. 256, 262 (2000)).

As the Washington Supreme Court explained:

On at least four occasions, . . . this court has quoted with approval 

a definition of a contract implied in fact, ... as follows: “A true 

implied contract is an agreement of the parties arrived at from their 

acts and conduct viewed in the light of surrounding circumstances, 

and not from their words either spoken or written. Like an express 

contract, it grows out of the intentions of the parties to the 

transaction, and there must be a meeting of minds. Such a contract 

differs from an express contract only in the mode of proof.” (Italics 

ours.)

Id. (quoting Milone & Tucci, Inc. v. Bona Fide Builders, Inc., 49 Wash. 2d 363, 367-68 (1956) 

(citations omitted) (emphasis in original)). Oregon law is not materially different. See Staley, 165 

Or. App. at 262.

Digicel-Haiti contends that it expected that the users of its SIM cards would be individual 

human subscribers using the purchased SIM cards in a specific mobile phone, not a business 

purchasing multiple SIM cards and placing them in a server to bypass international calling 

charges. UPM, however, appears to be correct that Digicel-Haiti did not place any restrictive 

conditions on its SIM cards or related packaging materials. UPM add that under the objective 

theory of contract, which Oregon follows, the parties’ conduct is sufficient to show an impliedin-fact agreement, or a “meeting of the minds.” Digicel-Haiti argues that it is not. 

The Court concludes that whether an implied-in-fact contract was formed and, if so, what 

were its material terms present questions of fact that require resolution at trial. Among other 

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things, the trier of fact may need to determine how UPM acquired the SIM cards at issue and 

what, if anything, was said by a relevant party (or its agents) to the other party (or its agents).

In addition, the Court notes that consequential damages resulting from a breach of 

contract are recoverable only if they were reasonably foreseeable at the time the contract was 

formed. To hold a party responsible for a particular loss, the loss must be one that ordinarily 

follows the breach in the usual course of events or that reasonable people in the position of the 

parties would have foreseen as a probable result of a breach. See Restatement (Second) of 

Contracts § 351(1) (“Damages are not recoverable for loss that the party in breach did not have 

reason to foresee as a probable result of the breach when the contract was made.”); see also 5 

Timothy Murray, Arthur L. Corbin, Joseph M. Perillo, and E. Murray, Jr., Corbin on 

Contracts 79, § 1010 (1964); see also Cont’l Plants Corp. v. Measured Mktg. Serv., Inc., 274 Or. 

621, 625-26 (1976) (applying the English rule from Hadley v. Baxendale, 9 Exch. 341 (1854)).

B. Digicel-Haiti’s Motion to Exclude UPM’s Expert Joseph Gillan

In support of its first counterclaim, which alleges violation of the Communications Act, 

UPM offers the expert testimony of Joseph Gillan. Mr. Gillan has a Master’s Degree in 

Economics, which he received as part of a program that focused on the economics of public 

utilities and regulated industries. ECF 273-1, at 4 (Decl. of Joseph Gillan). Mr. Gillan 

summarizes what he has been asked to do by UPM as follows:

I have been asked by attorneys representing UPM Technologies to 

address: (1) the economic and policy rationale underlying various 

FCC decisions that recognize the importance of resale as a 

regulatory tool to achieve the efficient (i.e., cost-based) pricing of 

telecommunications services; (2) whether UPM’s resale of 

Digicel-Haiti’s wireless services as a means to terminate traffic in 

Haiti is consistent with (and furthers) the economic reasoning used 

by the FCC in determining that resale restrictions are generally 

prohibited under Sections 201 and 202 of the federal 

Communications Act; and, conversely, (3) whether Digicel-Haiti’s 

discontinuing the services UPM was buying from Digicel-Haiti 

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and reselling to other carriers constituted the same kind of conduct, 

from an economic and policy perspective, that the FCC’s ban on 

resale restrictions was intended to prevent.

Id. at 6, ¶ 9.

The Court is satisfied that Mr. Gillan has the technical or specialized knowledge required 

of an expert in this field but is not persuaded that Mr. Gillan’s knowledge “will help the trier of 

fact to understand the evidence or to determine a fact in issue,” which also is required under 

Rule 702(a) of the Federal Rules of Evidence. Instead, the Court is concerned that the proffered 

testimony invades the province of the Court in instructing the jury about the law and may even 

confuse jurors about the issues that they must decide.

In telecommunications cases, courts have placed boundaries on expert testimony 

purporting to give opinions about the interpretation of FCC rulings and orders and the intent or 

objectives of the FCC, concluding that such opinions impermissibly usurp the role of the judge. 

See, e.g., TC Sys. Inc. v. Town of Colonie, 213 F. Supp. 2d 171, 181-82 (N.D.N.Y. 2002)

(excluding expert opinions when the expert’s “review of FCC rulings and regulations 

impermissibly usurps the role of the trial judge in determining the relevant law” and further 

holding that “any testimony as to the intent of the Telecommunications Act or FCC regulations 

or how the jury should ultimately decide this case, however, is inappropriate”); CFM Commc’ns, 

LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229, 1236 (E.D. Cal. 2005) (excluding expert 

testimony on (1) what factors the FCC considers in deciding control of a broadcast station and 

how such factors apply to the case; (2) whether and how any FCC action indicates its likely 

decision on any legal issue; (3) how the FCC will decide any legal issue; and (4) any other 

application of law to the facts of the case); GlobalRock Networks, Inc., v. MCI Comm’ns, 943 F. 

Supp. 2d 320, 343 (N.D.N.Y. 2013) (excluding expert opinions about violations of FCC rules); 

Qwest Corp. v. City of Santa Fe, 2013 WL 12239492, at *5 (D.N.M. Feb. 8, 2013) (refusing to 

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PAGE 17 – OPINION AND ORDER

allow an expert to testify about “the legal standards applicable to [47 U.S.C.] § 253”). Thus, the 

Court excludes Mr. Gillan’s testimony under Rule 702(a) of the Federal Rules of Evidence.

In addition, even if there were some aspects of Mr. Gillan’s proffered expert testimony 

that might have some appropriate probative value, the Court still finds that any such probative 

value is substantially outweighed by the danger of confusing the jury on the issues that need to 

be decided. If Digicel-Haiti violated the Communications Act as UPM alleges, that is enough. 

The jury need not determine “the economic and policy rationale underlying various FCC 

decisions,” whether how UPM used Digicel-Haiti’s SIM cards is “consistent with (and furthers) 

the economic reasoning used by the FCC,” or whether the deactivation of SIM cards by DigicelHaiti “constituted the same kind of conduct, from an economic and policy perspective, that the 

FCC’s ban on resale restrictions was intended to prevent.” These questions are not before the 

jury, and UPM offering expert testimony on these issues will likely confuse the jury about what 

it needs to decide. Accordingly, the Court excludes Mr. Gillan’s testimony under Rule 403 of the 

Federal Rules of Evidence as well.9

C. UPM’s Motion for Partial Summary Judgment on Its First Counterclaim

UPM seeks partial summary judgment on the following aspects of its first counterclaim, 

which alleges violations of the Communications Act:

(a) Digicel-Haiti’s roaming arrangements make it a 

telecommunications carrier subject to the Communications Act; 

and

(b) Digicel-Haiti’s blocking of UPM’s RLYH SIM cards 

prevented UPM from reselling RLYH service.

9 UPM requests leave to ask the Court to reconsider this ruling at a later time, depending 

on what, if anything, the Court allows Digicel-Haiti’s expert witnesses to present at trial. Such 

leave is granted.

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PAGE 18 – OPINION AND ORDER

ECF 265, at 38 (int. p. 34). UPM may be correct on the first point. Nevertheless, whether the 

Communications Act applies to Digicel-Haiti or any of its services is a close call, the Court’s 

understanding on this issue is evolving, and the Court’s evaluation of this question likely will 

benefit from the additional briefing and argument that has been scheduled, and maybe even from 

observing the evidence presented at trial. Accordingly, even if this is a fact issue that is not 

genuinely in dispute, the Court might refrain from ordering that the fact be treated as established

until the time of trial. 

As for UPM’s second point, this point as well may be undisputed, but it also may be 

legally irrelevant if UPM cannot show consequential damages without speculation. The Court 

certainly will allow UPM to seek as damages its out-of-pocket costs paid, within the limitations 

period, to acquire, or recharge SIM cards and to subscribe to Digicel-Haiti’s RLYH program. 

The Court, however, might not allow UPM to seek consequential, or lost profit, damages 

resulting from Digicel-Haiti’s blocking of UPM’s SIM cards in 2014, depending on the quality 

of UPM’s evidence. In any event, the Court will not decide that issue now. See Fed. R. Civ.

P. 56(g) advisory committee’s note to 2010 amendment (“it is better to leave open for trial facts 

and issues that may be better illuminated by the trial of related facts that must be tried in any 

event”).

D. Other Rulings Sought by UPM

In UPM’s Pre-Hearing Memorandum (ECF 381), UPM states that it seeks additional 

pretrial rulings. Among other things, UPM seeks a ruling that it was a customer and purchaser of 

Digicel-Haiti’s RLYH service by paying Digicel-Haiti for that service. According to UPM, it 

obtained SIM cards for Digicel-Haiti’s network and added funds to those specific SIM cards 

through third-party “top-up” services. UPM adds that Digicel-Haiti accepted those funds by 

crediting them to the accounts of the SIM cards that UPM had topped up, and UPM directed 

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PAGE 19 – OPINION AND ORDER

Digicel-Haiti to deduct the RLYH service fee (approximately $25 per card), which Digicel-Haiti 

did. According to UPM, this series of actions establishes an “implied-in-fact” contract between 

UPM and Digicel-Haiti that obligated Digicel-Haiti to provide RLYH service to UPM. ECF 381, 

at 3. Earlier in this Opinion and Order, the Court explained that UPM’s claim of breach of 

implied-in-fact contract presents a question of fact for the jury and UPM likely will need to 

present evidence showing how it obtained the SIM cards at issue, how UPM paid third-party 

vendors or Digicel-Haiti for the services at issue, and what, if anything, was communicated 

between the parties (or their agents) during these transactions.

Digicel-Haiti alleges that SIM cards are sometimes purchased using false or altered 

identification documents, bought in bulk in unauthorized “off-book” transactions, or bought

under the pretext that they will be used by an individual for that individual’s personal calls in a 

unique cellular device. ECF 200 ¶¶ 60, 62 (Third. Am. Compl.) UPM denies these allegations. 

ECF 244 ¶¶ 60, 62 (Am. Ans., Aff. Defs., and Counterclaims). UPM, however, has not shown 

with record evidence that Digicel-Haiti’s allegations are incorrect. Thus, because the 

circumstances showing how UPM obtained the SIM cards at issue appear to be relevant to 

UPM’s counterclaims, UPM will need to present admissible evidence on that point at trial. UPM 

also asks the Court to rule on UPM’s motions in limine seeking to exclude testimony from 

Digicel-Haiti’s expert witnesses Mr. McEwen and Mr. Castel. ECF 381, at 7-8. UPM argues that 

this testimony does not relate to UPM’s counterclaims. Id. The Court will address this issue at 

the pretrial conference to be held before the November trial begins.

E. Additional Case Management Scheduling 

As discussed during the hearing held on July 26, 2022, in addition to further briefing on 

the question of whether the Communications Act applies to Digicel-Haiti’s RLYH activities in 

the United States, the Court requested further briefing on whether, in light of the Court’s ruling 

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PAGE 20 – OPINION AND ORDER

on January 18, 2022 (ECF 294), Digicel-Haiti can present evidence sufficient to show without 

speculation that UPM’s alleged used of HBS caused damage to Digicel-Haiti and, if so, in what 

amount. As noted during that hearing, the Court set the following schedule: (1) Digicel-Haiti’s 

amended “Phase I” lay and expert witness statements, exhibits, exhibit lists, deposition excerpts 

in lieu of live testimony, and legal brief regarding causation and damages are due by August 16, 

2022;10 (2) UPM’s motion for judgment as a matter of law on Phase I (causation and damages) 

based on Digicel-Haiti’s trial documents filed on August 16, 2022 is due August 30, 2022; 

(3) Digicel-Haiti’s response to UPM’s motion for judgment as a matter of law is due 

September 9, 2022 ; and (4) UPM’s reply brief in support of motion for judgment as a matter of 

law (causation and damages) is due September 12, 2022. The Court will hear oral argument on 

this issue, as well as on the applicability of the Communications Act, on Wednesday, 

September 14, 2022 at 1:00 p.m. The Court also sets a Pretrial Conference for October 21, 2022 

at 9:00 a.m. See also ECF 383. As noted, trial will begin on November 14, 2022. 

CONCLUSION

In this Opinion and Order, the Court GRANTS IN PART AND DENIES IN PART 

Digicel-Haiti’s motion for summary judgment against UPM’s counterclaims (ECF 264), DigicelHaiti’s motion to exclude UPM’s expert Joseph Gillan (ECF 272), and UPM’s motion for partial 

summary judgment on its own counterclaims (ECF 255). The Court also addresses in this 

Opinion and Order several issues raised by UPM in its Pre-Hearing Memorandum (ECF 381). 

Finally, the Court sets a further case management schedule as described in this Opinion and 

Order and on the record during the hearing held on July 26, 2022. See ECF 383.

10 Here, “Phase I” refers to Digicel-Haiti’s remaining affirmative claim for damages 

against UPM. It does not include Digicel-Haiti’s defenses or responses to UPM’s counterclaims. 

Those materials will be due later, under the Court’s Civil Trial Management Order. ECF 191.

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PAGE 21 – OPINION AND ORDER

IT IS SO ORDERED.

DATED this 29th day of July, 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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