Citing procedural irregularities and the participation in deliberations of two California appellate court justices who later determined they were required to recuse themselves, ICO Global Communications (Operations) Ltd. (“ICO”), a subsidiary of Pendrell Corporation, filed a petition yesterday seeking a rehearing of the decision of Division 8 of the California 2nd District Court of Appeal (the “Court”) that overturned one of the largest jury verdicts in the state’s history.
The motion, filed as part of ICO’s ongoing litigation with The Boeing Company and certain of its affiliates (“Boeing”), contends that ICO’s rights to due process were violated by the participation of two justices who determined that they were required to recuse themselves late in the appellate process, after oral argument had already occurred. The motion also asserts that the Court erred in substituting its own interpretation of the evidence for the jury’s conclusions.
On April 13, the Court issued an unpublished opinion overturning a 2008 California Superior Court jury verdict in the case. The jury had found Boeing liable for fraud, breach of contract and tortious interference, and after finding that Boeing engaged in “malice, oppression or fraud,” they also assessed punitive damages against Boeing. The jury’s verdict—the largest in the nation that year―was entered as a final judgment in the amount of $603 million, after extensive post-trial practice in the trial court. With interest, the award had grown to nearly $800 million over the three years that the appeal has been pending. The jury reached its verdict after twelve weeks of trial and four weeks of deliberation, which included a review of testimony and evidence reflected in thousands of pages of records and testimony from many witnesses. Notably, the Court did not overturn the jury’s conclusion that Boeing had engaged in fraud, but rather it determined that a reasonable jury could not have concluded that Boeing’s fraud caused damage to ICO.