09-1575-cv
     Katel Limited v. AT&T Corp.


 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2009
 6
 7
 8   (Argued: February 4, 2010                     Decided: May 27, 2010)
 9
10                            Docket No. 09-1575-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   KATEL LIMITED LIABILITY COMPANY,
15
16                     Plaintiff-Appellant,
17
18               - v.-
19
20   AT&T CORPORATION,
21
22                     Defendant-Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS, Chief Judge, POOLER and KATZMANN,
27                           Circuit Judges.
28
29         KATEL Limited Liability Company appeals from a judgment

30   entered by the United States District Court for the Southern

31   District of New York (Holwell, J.), dismissing by summary

32   judgment its claims against AT&T Corporation, which allege

33   breach of contract and tortious interference with

34   contractual relations, and seek relief under the

35   International Telecommunications Regulations.          We affirm.
 1                                 DAVID J. EDWARDS (Paul J.
 2                                 Yesawich, III, James P. Nonkes,
 3                                 on the brief), Harris Beach
 4                                 PLLC, Pittsford, New York, for
 5                                 Appellant.
 6
 7                                 SUZANNE L. MONTGOMERY, AT&T
 8                                 Services, Inc., Bedminster, New
 9                                 Jersey; Henry Guy Burnett, Sarah
10                                 E. O’Connell (on the brief),
11                                 Fulbright & Jaworski L.L.P., New
12                                 York, New York, for Appellee.
13
14
15   DENNIS JACOBS, Chief Judge:
16
17       In 1993 or 1994 (the date is disputed), AT&T

18   Corporation (“AT&T”) entered into an International

19   Telecommunications Services Agreement (“Agreement”) with

20   KATEL Limited Liability Company (“KATEL”), an international

21   telecommunications carrier, to govern the exchange of phone

22   calls between AT&T in the United States and KATEL in

23   Kyrgyzstan.    The essence of the Agreement was that KATEL

24   would build the necessary infrastructure in Kyrgyzstan , and

25   AT&T would use that infrastructure for a fee.    The parties

26   began exchanging telecommunications traffic shortly

27   afterward.    In 1997, AT&T began sending its

28   telecommunications traffic to Kyrgyztelecom (“KT”), a

29   competitor of KATEL.    Soon thereafter, AT&T began using an

30   intermediary service to route its calls to Kyrgyzstan and


                                    2
1    stopped paying KT; moreover, since it was no longer using

2    KATEL’s services, it was not paying KATEL, either.

3        KATEL bought an assignment of rights from KT, and sued

4    AT&T in the United States District Court for the Southern

5    District of New York (Holwell, J.) on March 28, 2002,

6    claiming breach of contract, tortious interference with

7    contractual relations, and an entitlement to fees pursuant

8    to the International Telecommunications Regulations.    The

9    district court granted summary judgment to AT&T on all

10   claims, and this appeal is taken from the judgment.

11       We affirm.

12

13                                  I

14       The controversy turns on the interplay between two

15   paragraphs of the Agreement.   Paragraph 7 provides, inter

16   alia, that “as soon as KATEL and AT&T establish direct

17   circuits, the parties will begin routing traffic between the

18   Republic of Kyrgyzstan and the United States on these

19   circuits, using the [‘indirect’] transit routes via Russia

20   and Turkey only when direct circuits are not capable of




                                    3
1    carrying the offered traffic.”1   Paragraph 19, entitled

2    “Non-Exclusive Privileges,” provides that “[n]othing in this

3    Agreement shall be deemed to restrict or prejudice the

4    rights of either party to enter into similar service

5    agreements with other parties.”

6

7        Transmission arrangements.    In 1993 or 1994, AT&T and

8    KATEL entered into the Agreement and began sending

9    telecommunications traffic to one another.    In early 1997,

10   AT&T contracted with KT to provide international

11   telecommunications services in Kyrgyzstan; at the same time,

12   AT&T stopped sending traffic to KATEL (and has sent none

13   since).   But soon thereafter AT&T stopped paying KT for its

14   call termination services.   On October 11, 1999,

15   representatives from AT&T, KATEL, and KT met at AT&T’s New



          1
            Traffic passes “directly” when it originates in the
     United States on AT&T’s infrastructure and “terminates” in
     Kyrgyzstan on KATEL’s infrastructure. AT&T, as the
     “originating carrier,” would then pay an agreed-upon fee to
     KATEL as the “terminating carrier.”

          Traffic passes “indirectly” when AT&T originates a call
     in the United States and sends it to a third-party carrier,
     which then sends it along to KATEL. AT&T would pay a fee to
     KATEL, and AT&T and KATEL would each pay half of the fee
     owed to the third-party carrier.


                                   4
1    Jersey headquarters.    AT&T conceded that it owed money to

2    KATEL or KT or both, but the parties could not resolve the

3    muddle, and KATEL initiated this litigation.

4        In the meantime, AT&T continued sending direct and

5    indirect traffic to KT until May 2002, at which point it

6    adopted a different method of routing calls into Kyrgyzstan:

7    “refile.”    Under a refile arrangement, the originating

8    carrier (AT&T) sends the traffic to a third-party carrier,

9    and pays it; the third-party carrier then sends the traffic

10   into the terminating country and pays the terminating

11   carrier.    (The FCC has recognized refile as an economically

12   rational way for an international telecommunications

13   provider to structure its business dealings with other

14   carriers.    See In re Int’l Settlement Rates, 12 F.C.C.R.

15   19806, 19811-12 (Aug. 18, 1997)).     Thus AT&T delivers the

16   calls to the third party and does not deliver the calls to

17   Kyrgyzstan directly or indirectly.     In short, AT&T washed

18   its hands of business in Kyrgyzstan.
19
20       Litigation.    On March 28, 2002, KATEL sued AT&T in the

21   Southern District of New York.     Recognizing that KT might be

22   a necessary party, KATEL unsuccessfully invited KT to join

23   the litigation.    To forestall any possible Rule 12(b)(7)


                                    5
1    motion, KATEL bought an assignment of KT’s rights against

2    AT&T (through May 2002).   KATEL and KT executed a six-page

3    “Russian Language Assignment,” and (on the same day) an

4    “English Language Assignment” that was intended to replicate

5    the Russian Language Assignment and that could be used by

6    KATEL to defeat a Rule 12(b)(7) motion.

7        On September 4, 2003, KT intervened in the KATEL-AT&T

8    lawsuit and moved to compel arbitration against KATEL

9    pursuant to the terms of the Russian Language Assignment.2

10   (KATEL contends that KT’s intervention was inspired by

11   AT&T.)   AT&T then moved to file an interpleader counterclaim

12   by which it would deposit with the district court the sum of

13   $1,120,199.04, the amount that all parties agreed was owed

14   to KATEL and/or KT for the period 1997 through May 2002.

15   The court granted AT&T’s motion; the parties stipulated that

16   this was the amount owed; and the KATEL-KT litigation was

17   stayed pending the outcome of their arbitration, which was

18   to determine how the interpleaded funds would be divided

19   between them.   The arbitrator ultimately ruled that KATEL

20   was entitled to the full amount, and on October 31, 2006,


          2
            KT also brought other claims against KATEL and AT&T.
     Those claims are not relevant to the issues presented in
     this appeal.
                                   6
1    the district court ordered that the funds be disbursed to

2    KATEL.

3        Meanwhile, in the KATEL-AT&T litigation, the parties

4    had filed cross-motions for summary judgment.   At oral

5    argument on February 9, 2006, KATEL argued that: (1) AT&T

6    breached the Agreement by failing to adhere to Paragraph 7’s

7    requirement that it use KATEL’s infrastructure to send calls

8    to Kyrgyzstan; (2) AT&T tortiously interfered with KATEL’s

9    business relations with KT; and (3) AT&T owed reimbursement

10   to KATEL for traffic sent by AT&T to Kyrgyzstan--even for

11   periods when AT&T did not use KATEL’s equipment or services

12   --by virtue of the International Telecommunications

13   Regulations (“ITRs”).

14       In an oral decision, the district court ruled for AT&T

15   on all claims.   As to breach of contract, the court

16   concluded that Paragraph 19 makes the Agreement a non-

17   exclusive contract that allows AT&T to use other means to

18   route traffic into Kyrgyzstan; that absent any such

19   obligation to send a specific amount of traffic through

20   Katel, AT&T did not breach the Agreement when it stopped

21   using KATEL’s circuits; and that Paragraph 7 concerns how

22   traffic will be routed--not whether AT&T is required to


                                   7
1    offer any traffic to KATEL.

2        As to tortious interference, the district court ruled

3    that the declaration of KATEL principal Ross Jacoby (on

4    which KATEL wholly relied) offered no more than conclusory

5    allegations that AT&T had sought to “drive a wedge” between

6    KATEL and KT.   Separately, the court held that AT&T had a

7    reasonable basis to believe that KT rather than KATEL was

8    authorized to do business in Kyrgyzstan, and to act upon

9    that belief.

10       As to the ITRs, the court held that they confer no

11   private right of action.

12       At a status hearing two weeks after this summary

13   judgment ruling, the district court ordered KATEL to submit

14   in writing the nature of any remaining claims it had against

15   AT&T.   KATEL responded that its only remaining claim

16   concerned payment it believed AT&T owed for the period

17   January 1, 2000 through April 30, 2001.   After some

18   additional discovery, AT&T moved for summary judgment, which

19   the district court granted on the ground that KATEL offered

20   no evidence that AT&T owed anything other than the sum it

21   had already lodged with the court.   In addition, the

22   district court denied a motion by KATEL to reopen discovery


                                   8
1    for the purpose of disclosing Jacoby as an expert witness on

2    the custom and practice of the international

3    telecommunications industry.

4

5        This appeal.   KATEL raises five arguments on appeal:

6    (1) AT&T breached the Agreement by not using KATEL’s

7    services to terminate calls in Kyrgyzstan; (2) even if AT&T

8    was not in breach, industry custom and practice required

9    AT&T to pay KATEL for calls terminating in Kyrgyzstan; (3)

10   KATEL presented sufficient evidence on its tortious

11   interference claim; (4) the ITRs provide a private right of

12   action; and (5) the district court abused its discretion in

13   denying KATEL’s motion to reopen discovery for the purpose

14   of disclosing Jacoby as an expert witness.

15       Analyzing the arguments seriatim, we affirm.

16

17                                  II

18       KATEL contends that AT&T breached the Agreement by

19   sending telecommunications traffic to Kyrgyzstan by means

20   other than the AT&T-KATEL link referenced in Paragraph 7 of

21   the Agreement.

22       Our interpretation of the Agreement is governed by New


                                    9
1    York law.   See Konikoff v. Prudential Ins. Co. of Am., 234

, 98 (2d Cir. 2000).   Under New York contract law,

3    “‘the intent of the parties governs.’”    Crane Co. v. Coltec

4    Indus., Inc., 

, 737 (2d Cir. 1999) (quoting Am.

5    Express Bank Ltd. v. Uniroyal, Inc., 

, 614

6    (1st Dep’t 1990)).   “[W]e ascertain this intent ‘from the

7    plain meaning of the language employed’ in the agreements,

8    rather than from extrinsic evidence.”    

   737 (quoting Tigue v. Commercial Life Ins. Co., 

  974, 975 (4th Dep’t 1995)).   In so doing, we must “give full

11   meaning and effect to all of its provisions.”    Am. Express,

; see also Gonzalez v. Norrito, 682

, 101 (2d Dep’t 1998).   “Where the intent of the

14   parties can be determined from the face of the agreement,

15   interpretation is a matter of law and the case is ripe for

16   summary judgment.”   Am. 

.

17       The Agreement provides the terms and conditions that

18   govern business dealings between AT&T and KATEL.    Of the two

19   provisions that bear on the present dispute, one gives broad

20   rights that the other (in part) takes away, so that they

21   must be read together: Paragraph 7 provides that the traffic

22   will be routed on the AT&T-KATEL direct circuits (and may be


                                   10
1    routed indirectly via Russia or Turkey “only when direct

2    circuits are not capable of carrying the offered traffic”);

3    but Paragraph 19 says that “either party [may] enter into

4    similar service agreements with other parties.”     Thus

5    Paragraph 7 can grant no right that requires exclusive

6    dealing.     To begin with, nothing in Paragraph 7 requires the

7    parties to do business with one another at all: It is not a

8    requirements contract, and it imposes no minimum volume.

9    Paragraph 7 fixes a preference for direct transmission of

10   telecommunications that go from AT&T and terminate with

11   KATEL, but (particularly in light of Paragraph 19) that does

12   not bar AT&T from sending calls toward Kyrgyzstan other than

13   via KATEL.    Rather, as the district court correctly

14   concluded, paragraph 7 describes only how the

15   telecommunications services covered by the Agreement will be

16   provided and does not concern whether telecommunications

17   services so provided are covered by the Agreement.

18       KATEL argues that, under Paragraph 7, its direct

19   circuits are the “primary” means for sending AT&T-originated

20   calls into Kyrgyzstan, and AT&T may route traffic indirectly

21   only if these direct circuits fail.     The Agreement itself

22   does not use the word “primary.”     But, more fundamentally,


                                     11
1    such an understanding cannot be squared with the right of

2    the parties (under Paragraph 19) “to enter into similar

3    service agreements with other parties.”   Two “similar

4    service agreements” could not compatibly require two

5    Kyrgyzstani companies to provide “primary” termination

6    services to the same place.3   KATEL’s interpretation of the

7    Agreement therefore leads to an illogical result, and we

8    decline to endorse it.   Cf. Long Island Lighting Co. v.

9    Allianz Underwriters Ins. Co., 

, 495 (1st

10   Dep’t 2002) (avoiding a contractual interpretation that

11   would lead to an illogical result); PNC Capital Recovery v.

12   Mech. Parking Sys, Inc., 

, 397 (1st Dep’t

13   2001) (same).

14       Accordingly, we agree with the district court that the

15   Agreement imposed no obligation on AT&T to send traffic to

16   KATEL.   It follows that AT&T was not in breach by electing

17   to send traffic to Kyrgyzstan by other carriers and other

18   means.

19

20


          3
            See The Random House Dictionary of the English
     Language 1142 (Unabridged ed. 1971) (defining “primary” as
     “first” or “highest in rank or importance”).
                                    12
1                                  III

2        KATEL next argues that, even if AT&T is not liable for

3    breach of contract, AT&T must nonetheless pay KATEL for all

4    AT&T-originated calls that terminated in Krygyzstan.

5        On April 26, 2006, AT&T, KATEL, and KT entered into a

6    stipulation (which took the form of a court order) providing

7    that, for the period January 1997 through May 2002, AT&T

8    owed $1,120,199.04 for termination services in Kyrgyzstan.

9    AT&T lodged that sum with the district court, to be

10   distributed according to the result of the ensuing KATEL-KT

11   arbitration (which KATEL won in full).    But though the payee

12   was in doubt, the sum was rendered certain by the

13   stipulation.

14       “[A] stipulation is generally binding on parties that

15   have legal capacity to negotiate, do in fact freely

16   negotiate their agreement and either reduce their

17   stipulation to a properly subscribed writing or enter the

18   stipulation orally on the record in open court.”      McCoy v.

19   Feinman, 

, 302 (N.Y. 2002); see also Calvin

20   Klein Ltd. v. Trylon Trucking Corp., 

, 194 (2d

21   Cir. 1989).    “[C]ourts should not disturb a valid

22   stipulation absent a showing of good cause such as fraud,


                                    13
1    collusion, mistake or duress[,] or unless the agreement is

2    unconscionable or contrary to public policy[,] or unless it

3    suggests an ambiguity indicating that the words did not

4    fully and accurately represent the parties’ agreement.”

5    

(internal citations omitted).        KATEL

6    has offered no reason why it should not be bound by its

7    stipulation.     Accordingly, we hold that through May 2002,

8    KATEL has no entitlement to additional fees from AT&T.

9        Nor is KATEL owed money for events that occurred after

10   May 2002.   At that time, AT&T stopped sending international

11   calls directly or indirectly to any carrier in Kyrgyzstan;

12   instead, it exclusively used the refile method of traffic

13   termination.     Under refile, AT&T’s payment obligation was to

14   a third-party carrier, and that third-party carrier was in

15   turn responsible for paying KATEL, KT, or any other

16   Kyrgyzstani carrier.     AT&T had no payment obligation to

17   KATEL (or KT).

18       KATEL suggests that industry custom and practice

19   entitle it to payment.    Under New York law, evidence of

20   custom or practice may be admissible only “if the agreement

21   is found to be ambiguous.”     Milonas v. Pub. Employment

22   Relations Bd., 

, 785 (3d Dep’t 1996); see


                                     14
1    also W. Union Tel. Co. v. Am. Commc’ns Ass’n, C.I.O., 299

, 184 (1949); Polyfusion Elecs., Inc. v. AirSep

3    Corp., 

, 785 (4th Dep’t 2006).    Moreover,

4    such evidence “should not be admitted to create an ambiguity

5    in an otherwise clear and unambiguous agreement.”    Milonas,

.    Because the Agreement is unambiguous,

7    there is no occasion to consider evidence of custom or

8    practice.

9

10                                 IV

11       KATEL contends that AT&T tortiously interfered with its

12   (KATEL’s) business relationship with KT.    New York law

13   governs our analysis.    See 

.   “In

14   order to prevail on a cause of action for tortious

15   interference with contractual relations, a plaintiff must

16   establish the existence of a valid contract between

17   plaintiff and a third party, the defendant’s intentional and

18   unjustified procurement of the third party’s breach of the

19   contract, the actual breach of the contract[,] and the

20   resulting damages.”    Jim Ball Chrysler LLC v. Marong

21   Chrysler-Plymouth, Inc., 

, 805 (4th Dep’t

22   2005).


                                    15
1        In the district court and again on appeal, KATEL relies

2    principally on paragraph 39 of Jacoby’s declaration to

3    substantiate its claim for tortious interference.   That

4    paragraph states in full:

 5            [T]hroughout the entire history of [the
 6            Agreement,] and at least since 1995, AT&T has
 7            taken every opportunity to drive a wedge between
 8            KATEL and [KT]. By negotiating behind KATEL’s
 9            back with [KT]--a KATEL Joint Venture participant
10            --AT&T has seriously damaged KATEL’s relationship
11            with [KT]. Indeed, KATEL’s shareholders,
12            including the Ministry, were forced to vote [KT]
13            out of the joint venture in 1998. By poisoning
14            this relationship with [KT], AT&T created a
15            hostile atmosphere in which KATEL must now conduct
16            business in the Kyrgyz Republic. It has also
17            created tensions between KATEL and [KT]. This
18            relationship is critical to KATEL’s well being, as
19            the parties[’] networks are interfaced. KATEL’s
20            subscribers must have access to [KT]’s subscribers
21            and vice versa. AT&T’s actions have also, on more
22            than one occasion, prompted [KT] either to deprive
23            KATEL of access to its equipment, or to extract
24            payments from KATEL of AT&T’s debt (which only
25            resulted in a further dispute with [KT] over the
26            scope of the guarantee in the form of the
27            assignment that has also been the subject of
28            litigation before this Court). In sum, AT&T[’s]
29            actions in dealing with [KT] have resulted in
30            [KT], KATEL’s substantial Kyrgyz participant,
31            severing all partnership ties with KATEL.
32
33   As the district court concluded, this evidence is too

34   conclusory to withstand summary judgment.   There is nothing

35   that points to any instance, manner, or method of

36   interference; nor is there a reference to a document,


                                  16
1    conversation, or communication that would allow an inference

2    of tortious interference.   “A party opposing summary

3    judgment does not show the existence of a genuine issue of

4    fact to be tried merely by making assertions that are

5    conclusory. . . .”   Major League Baseball Props., Inc. v.

6    Salvino, Inc., 

, 310 (2d Cir. 2008).

7

8                                  V

9        KATEL argues that the International Telecommunications

10   Regulations (“ITRs”) afford it a private right of action

11   against AT&T.   This is a matter of first impression for this

12   Court.

13       The ITRs have treaty status and were promulgated by the

14   International Telecommunications Union (the “Union”).    S.

15   Treaty Doc. 102-13 (Melbourne 1988).   See Cable & Wireless

16   P.L.C. v. FCC, 

, 1230 (D.C. Cir. 1999).    The

17   Union is a specialized United Nations agency responsible for

18   international telecommunications issues.   See ITU TELECOM

19   FAQs, available at http://www.itu.int/ITUTELECOM/faq.html.

20   There are currently 191 member states, including the United

21   States and Kyrgyzstan.   

“191 Member

22   States”).


                                   17
1        The United States and Kyrgyzstan both adopted the ITRs.

2    See International Telecommunications Regulations (ITRs),

3    available at http://www.itu.int/ITU-T/itr/ (follow hyperlink

4    “Status of ratification of ITRs”).   The ITRs “establish

5    general principles which relate to the provision and

6    operation of international telecommunication services

7    offered to the public as well as to the underlying

8    international telecommunication transport means used to

9    provide such services.”   See Int’l Telecomms. Regulations,

10   Art. 1, § 1.1(a).

11       There is a presumption that “treaties do not create

12   privately enforceable rights in the absence of express

13   language to the contrary.”   Mora v. New York, 

,

14   201 (2d Cir. 2008) (internal quotation marks omitted); see

15   also 

n.25 (citing cases from other circuits); 

201-02 (“Our precedents recognize a presumption against

17   inferring individual rights from treaties.”).     If a State

18   that is party to a treaty wishes to create a private right

19   of action, “we would ordinarily expect expression of these

20   obligations to be unambiguous.”    

  “Even when

21   treaties are self-executing . . . the background presumption

22   is that international agreements, even those directly


                                   18
1    benefiting private persons, generally do not create

2    private rights or provide for a private cause of action in

3    domestic courts.”   

(quoting Medellin v. Texas,

4    

, 506 n.3 (2008)).

5        No wording in the ITRs creates a private right of

6    action, and KATEL cites none.        Instead, KATEL argues that,

7    because the treaty is binding on the United States (as a

8    member state and signatory to the ITRs), it provides KATEL a

9    private right of action ipso facto.       However, membership in

10   the Union is limited to sovereign entities (not private

11   corporations such as KATEL).     See Union Const., Art. 2.

12   Furthermore, the Union’s Constitution provides for the

13   “Settlement of Disputes” only by “Member States,” not by

14   private entities in those member states.       

56.

15   Whether a Member State has rights under the treaty, or is

16   bound by it, says nothing about whether a private party in

17   that Member State has a private right of action.        See

18   

n.3.

19

20                                  VI

21       KATEL moved to reopen discovery for the purpose of

22   designating Jacoby as an expert witness who would testify


                                     19
1    that industry custom and practice required AT&T to pay a fee

2    to KATEL for calls terminating in Kyrgyzstan, regardless of

3    whether AT&T had any contractual obligation to make those

4    payments.   The district court denied the motion, and our

5    review is for abuse of discretion.    See In re Merrill Lynch

6    Ltd. P’ships Litig., 

, 58 (2d Cir. 1998).

7        In the district court, KATEL argued that discovery

8    should be reopened because “expert disclosure in connection

9    with Mr. Jacoby’s proposed testimony [had] not [previously]

10   appear[ed] necessary.”    See Memorandum of Law in Support of

11   KATEL’s Motion to Reopen Discovery at 4.    On appeal,

12   however, KATEL abandons that argument and raises for the

13   first time the argument that its failure to designate Jacoby

14   was a result of having to attend to the KATEL-KT

15   arbitration, which lasted years and which was allegedly

16   provoked as part of AT&T’s scheme to disrupt the business

17   relations between the two Kyrgyzstani phone companies.

18       An argument raised for the first time on appeal is

19   typically forfeited.     See In re Nortel Networks Corp. Sec.

20   Litig., 

, 132 (2d Cir. 2008).    True, this rule

21   is prudential, not jurisdictional, and we may consider a

22   forfeited argument if there is a risk that “manifest


                                     20
1   injustice” would otherwise result.    

  But there

2   is no such risk here.

3

4                            CONCLUSION

5       For the foregoing reasons, we affirm the judgment of

6   the district court.




                                 21