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Commitments and Contingencies
6 Months Ended
Jun. 30, 2014
Commitments and Contingencies [Abstract]  
Commitments and Contingencies

14. Commitments and Contingencies

 

Financial Matters

 

In the fourth quarter of 2012, we sold our former subsidiary, SS/L, to MDA pursuant to the Purchase Agreement. Under the terms of the Purchase Agreement, we are obligated to indemnify MDA from (1) liabilities with respect to certain pre-closing taxes; and (2) certain litigation costs and litigation damages relating to the ViaSat Suit, subject to a $200 million cap in the event of a change of control of Loral. The amounts of certain indemnification claims relating to pre-closing taxes have not yet been determined. Where appropriate, we intend vigorously to contest the underlying tax assessment, but there can be no assurance that we will be successful. Although no assurance can be provided, we do not believe that these tax-related matters will have a material adverse effect on our financial position or results of operations. For a discussion of the ViaSat Suit, see Legal Proceedings, below. See Note 2 for the amount of liabilities recorded related to indemnification obligations.

 

In connection with the sale in 2008 by Loral and certain of its subsidiaries and DASA Globalstar LLC to Globalstar Inc. of their respective interests in GdB, the Globalstar Brazilian service provider, Loral agreed to indemnify Globalstar Inc. and GdB for certain GdB pre-closing liabilities, primarily related to Brazilian taxes. As a result of an April 2013 adverse court decision in Brazil relating to a potential tax liability, an adverse outcome for which was previously believed to be remote, Loral recorded a loss contingency of $4.8 million in the first quarter of 2013. A payment of $3.7 million related to this loss contingency was made in the second quarter of 2013, and, in the third quarter of 2013, this loss was adjusted to $3.7 million, primarily due to a favorable court decision. Our condensed consolidated balance sheets include liabilities of $1.3 million as of June 30, 2014 and December 31, 2013 for indemnification liabilities relating to the sale of GdB.

 

See Note 15— Related Party Transactions — Transactions with Affiliates —  Telesat for commitments and contingencies relating to our agreement to indemnify Telesat for certain liabilities and our arrangements with ViaSat and Telesat.

 

 

Legal Proceedings

   

ViaSat

 

In 2012, ViaSat sued SS/L and Loral in the United States District Court for the Southern District of California alleging various patent infringement and breach of contract claims. In April 2014, the jury in the trial of the ViaSat Suit returned a verdict against SS/L. The jury found that SS/L directly infringed the patents asserted by ViaSat in the case in connection with the manufacture of a satellite by SS/L for a customer other than ViaSat and also that SS/L breached certain agreements with ViaSat. Damages of $283 million were awarded against SS/L. The jury also found that Loral was not liable for either patent infringement or breach of contract. SS/L elected not to pursue its patent infringement counterclaim against ViaSat at the trial.

 

Under the terms of the Purchase Agreement, Loral has retained control and assumed the defense of the ViaSat Suit (the “Assumption of the Defense”) and is obligated to indemnify SS/L for certain damages arising out of the ViaSat Suit, after a final non-appealable judgment has been entered. The damages subject to indemnification include amounts awarded in such final and non-appealable order and costs to SS/L resulting from any injunction that may be granted such as remediation and modification costs with respect to satellites being constructed, subject to SS/L’s duty to use reasonable best efforts to mitigate to the fullest extent practicable the amount of any such damages. Under the terms of the Purchase Agreement, following a change of control of Loral, the indemnification liability of Loral for damages, including for costs arising from any possible injunction, in the ViaSat Suit is subject to a $200 million cap.

 

In June 2014, Loral, SS/L and ViaSat filed post-trial motions in the ViaSat Suit. A hearing on the post-trial motions is scheduled for August 7, 2014.

 

Loral and SS/L filed several joint post-trial motions seeking entry of a judgment by the trial court as a matter of law that the patents asserted by ViaSat in the ViaSat Suit are invalid. SS/L filed several post-trial motions seeking a judgment by the trial court as a matter of law that the jury’s damages award should be vacated in its totality or at the very least reduced and that SS/L did not infringe the asserted patents or breach any contracts with ViaSat. SS/L also filed a motion seeking a new trial.

 

ViaSat filed post-trial motions against SS/L seeking: an injunction to prevent the manufacture and sale by SS/L of additional satellites that are identical to or no more than colorably different from Hughes’ Jupiter-1 satellite found by the jury to infringe ViaSat’s patents and to enjoin the continued use and/or disclosure by SS/L of ViaSat’s contractually protected technologies; an award of pre- and post-judgment interest against SS/L, with pre-judgment interest asserted by ViaSat to be $41.1 million; and judgment by the trial court as a matter of law that SS/L infringed one of ViaSat’s patents through its manufacture and sale of satellites to a customer where the jury did not find infringement. Loral, by virtue of the Assumption of the Defense, intends vigorously to oppose the post-trial motions filed by ViaSat. ViaSat did not file any post-trial motions with respect to the jury’s finding that Loral was not liable for either patent infringement or breach of contract.

 

In the event that Loral’s and SS/L’s post-trial motions are denied, or if ViaSat’s post-trial motions are granted, and judgment is ultimately entered by the trial court against SS/L, Loral, by virtue of the Assumption of the Defense, intends to appeal the judgment on behalf of SS/L. Loral and SS/L have agreed to share equally the cost of any appeal bond that may be necessary to stay execution of the judgment against SS/L during the appeal. Because the amount of damages, if any, ultimately included in the judgment is not yet known, the cost of any necessary appeal bond cannot be determined at this time. If the court enters judgment against SS/L with no reduction in the damages awarded by the jury and also awards pre-judgment interest as sought by ViaSat, we expect that Loral’s share of the cost of the appeal bond could be up to approximately $400,000 per month during pendency of the appeal.

 

As a result of the uncertain outcome of the post-trial motions and appeal, if necessary, we have not determined that a loss is probable and have not recorded a liability as of June 30, 2014 related to the jury verdict in the ViaSat Suit. There can be no assurance that any of Loral’s or SS/L’s post-trial motions or appeals will be successful with respect to reversing the verdict, reducing all or a portion of the damages awarded against SS/L or obtaining a new trial. In addition, there can be no assurance that ViaSat will not be successful in obtaining an injunction against SS/L which may result in indemnifiable damages above and beyond the jury’s verdict and which may be material.

 

We expect that the damage award against SS/L in the ViaSat Suit will not have a significant effect on Loral’s liquidity during the next 12 months. Loral is obligated to indemnify SS/L for damages in the ViaSat Suit only after a final non-appealable judgment has been entered. If all or a portion of the damage award against SS/L is ultimately upheld on appeal, we currently intend to fund our indemnification obligation through one or a combination of the following:  cash on hand, proceeds from a strategic transaction (if any), a rights offering or other equity financing and debt financing.

 

In September 2013, ViaSat filed an additional complaint against SS/L in the United States District Court for the Southern District of California alleging, among other things, that SS/L directly infringed, and induced and encouraged infringement of, certain newly issued ViaSat patents not asserted in the 2012 ViaSat Suit in connection with the manufacture of satellites by SS/L for customers other than ViaSat. ViaSat’s additional complaint seeks, among other things, damages (including treble damages) in amounts to be determined at trial and to enjoin SS/L from further infringement of the ViaSat patents. The complaint did not name Loral as a defendant. MDA has asserted that Loral is obligated to defend and indemnify SS/L with respect to the additional litigation under the Purchase Agreement on the same terms and conditions as Loral’s defense and indemnification of SS/L in the 2012 ViaSat Suit. Loral has rejected MDA’s assertion that it is obligated to defend and indemnify SS/L on the basis that the additional lawsuit does not fall within its defense and indemnification obligations under the Purchase Agreement. SS/L is defending the additional lawsuit. The parties have agreed, however, to defer determination of whether Loral is obligated to defend and indemnify SS/L for the additional lawsuit until the earlier of 30 days following judgment or settlement of either of the ViaSat actions and October 25, 2016. There can be no assurance that a dispute will not arise as to whether Loral is obligated to defend and indemnify SS/L for the additional ViaSat lawsuit or if such a dispute were to arise that Loral would prevail. If a dispute arose and MDA prevailed, Loral’s indemnification liability for damages in the additional lawsuit would arise only after entry of a final non-appealable judgment and, following a change of control of Loral, would be subject to the $200 million cap referred to above, such that Loral’s total indemnification liability following a change of control for both the 2012 ViaSat Suit and the additional lawsuit could not exceed $200 million.

 

Other Litigation

 

Other than the litigation with ViaSat discussed above, we are not currently subject to any other legal proceedings that, if decided adversely, could have a material adverse effect on our financial position or results of operations. In the future, however, we may become subject to other legal proceedings and claims, either asserted or unasserted, that may arise in the ordinary course of business.