FILED
`United States Court of Appeals
`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 1
`Tenth Circuit
`June 29, 2022
`Christopher M. Wolpert
`Clerk of Court
`UNITED STATES COURT OF APPEALS
`
`PUBLISH
`
`TENTH CIRCUIT
`
`GEOMETWATCH CORP., a Nevada
`corporation,
`
` Plaintiff Counter Defendant -
` Appellant,
`
`v.
`
`No. 19-4130
`
`ROBERT T. BEHUNIN, an individual;
`CURTIS ROBERTS, an individual;
`SCOTT JENSEN, an individual; ALAN
`E. HALL, an individual; ISLAND PARK
`GROUP OF COMPANIES, a Utah
`limited liability company; TEMPUS
`GLOBAL DATA, a Delaware
`corporation,
`
` Defendants - Appellees,
`
`UTAH STATE UNIVERSITY
`ADVANCED WEATHER SYSTEMS
`FOUNDATION, a Utah corporation;
`UTAH STATE UNIVERSITY
`RESEARCH FOUNDATION, a Utah
`corporation, d/b/a Space Dynamics
`Laboratory,
`
` Defendant Counterclaimants -
` Appellees,
`
`and
`
`UTAH STATE UNIVERSITY, a state
`university; ERIN HOUSLEY, an
`individual; MARK HURST, an
`
`

`

`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 2
`
`individual; DEBBIE WADE, an
`individual; BRENT KELLER, an
`individual,
`
` Defendants,
`
`v.
`
`DAVID CRAIN,
`
` Third-Party Defendant.
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 1:14-CV-00060-JNP)
`
`James E. Magleby (Peggy Tomsic, Adam A. Alba, Yevgen Kovalov, with him on
`the briefs), Magleby Cataxinos & Greenwood, Salt Lake City, Utah, for Plaintiff-
`Appellant.
`
`David W. Tufts (David L. Arrington and Matthew J. Orme, with him on the brief),
`Durham Jones & Pinegar, Salt Lake City, Utah, for Defendants-Appellees Alan E.
`Hall, Tempus Global Data, Inc., and Island Park Group of Companies, LLC.
`
`Joshua D. Davidson, Assistant Utah Solicitor General (Peggy E. Stone, Assistant
`Utah Solicitor General with him on the brief), Utah Attorney General’s Office,
`Salt Lake City, Utah, for Defendants-Appellees Utah State University Research
`Foundation, Robert T. Behunin, and Curtis Roberts.
`
`Beth J. Ranschau, Ray Quinney & Nebeker P.C. (Arthur B. Berger, Ray Quinney
`& Nebeker P.C. and Ryan B. Bell, Kunzler Bean & Adamson, P.C. with her on
`the brief), Salt Lake City, Utah, for Defendants-Appellees Utah State University
`Advanced Weather Systems Foundation and Scott Jensen.
`
`Before HOLMES and KELLY, Circuit Judges, and LUCERO, Senior Circuit
`Judge.
`
`2
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`

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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 3
`
`HOLMES, Circuit Judge.
`
`Plaintiff-Appellant GeoMetWatch Corporation, (“GMW”) appeals from
`
`several district court orders granting summary judgment to Defendant-Appellees
`
`Alan Hall, Erin Housley, Brent Keller, Mark Hurst, Debbie Wade, Island Park
`
`Investments, and Tempus Global Data, Inc. (collectively, the “Hall Defendants”);1
`
`Utah State University Advanced Weather Systems Foundation (“AWSF”) and
`
`Scott Jensen (collectively, the “AWSF Defendants”);2 and Utah State University
`
`Research Foundation (“USURF”), Robert Behunin, and Curtis Roberts
`
`(collectively, the “USURF Defendants”).3
`
`The instant lawsuit was borne out of the collapse of a venture GMW
`
`entered into that was created for the purpose of constructing and deploying a
`
`Mr. Hall is an individual who was previously connected to GMW’s
`1
`failed joint venture at issue here. See Hall Defs.’ Resp. Br. at 14, 29. Ms.
`Housley, Mr. Keller, Mr. Hurst, and Ms. Wade are alleged to be “members of Mr.
`Hall’s team.” GeoMetWatch Corp. v. Hall, No. 1:14-00060-JNP, 2018 WL
`6240991, at *5 n.7 (D. Utah Nov. 27, 2018).
`
`Mr. Jensen “is an aerospace engineer and AWSF’s former director
`2
`who spent 20 years building his career at [Utah State University (“USU”)] and its
`subsidiary foundations,” including Utah State University Research Foundation or
`USURF, which is another defendant-appellee in this appeal. AWSF Defs.’ Resp.
`Br. at 1.
`
`During the time of the relevant events, Mr. Roberts was the “Senior
`3
`Associate Vice President for Commercialization and University Advancement at
`USU,” while Mr. Behunin was the “Vice President for Advancement and
`Commercialization.” USURF Defs.’ Resp. Br. at 5–6.
`
`3
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 4
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`satellite-hosted weather sensor system. GMW describes this as a “trade secrets”
`
`case, alleging that all Defendants, led by Mr. Hall, conspired to drive GMW out
`
`of business on the eve of this successful and groundbreaking weather forecasting
`
`venture by stealing its confidential and trade secret information, forming a
`
`competing business, and pulling out of agreements that Mr. Hall made with
`
`GMW.
`
`The district court granted summary judgment to the Hall Defendants on an
`
`array of claims. That judgment was primarily based on an overarching deficiency
`
`in GMW’s case, namely, a lack of non-speculative and sufficiently probative
`
`evidence of a causal nexus between Defendants’ alleged bad acts and GMW’s
`
`asserted damages. The court also granted summary judgment in favor of USURF,
`
`AWSF, and Mr. Roberts because they are allegedly immune from lawsuit under
`
`the Utah Governmental Immunity Act (“UGIA”). Subsequently, the court granted
`
`summary judgment to Mr. Jensen and Mr. Behunin on all claims, concluding
`
`generally that GMW’s showing of causation also was deficient as to them. The
`
`court likewise awarded partial summary judgment to AWSF on its
`
`breach-of-contract counterclaim against GMW, effectively denying GMW’s
`
`cross-motion for summary judgment and affirmative defenses.
`
`GMW avers that the district court’s decisions were all made in error,
`
`raising three issues on appeal: First, whether the district court erred by granting
`
`summary judgment to the Hall Defendants based on GMW’s lack of
`
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 5
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`non-speculative causation evidence; second, whether the court erred by granting
`
`summary judgment to USURF, AWSF, and Mr. Roberts on the basis of
`
`governmental immunity under Utah law; and third, whether the court erred by
`
`granting partial summary judgment to AWSF on its counterclaim and by denying
`
`GMW’s cross-motion for summary judgment. We conclude that GMW’s
`
`arguments are either unpreserved or unavailing. As a result, we affirm the
`
`district court’s decisions.
`
`I A
`
`This suit stems from the failed development of a weather-detecting satellite
`
`sensor system. One of the players in this failed venture, USURF, developed a
`
`weather system sensor called the Geosynchronous Imaging Fourier Transform
`
`Spectrometer—or the GIFTS sensor—in the early 2000s. The GIFTS sensor was
`
`funded by the National Aeronautics and Space Administration (“NASA”) and the
`
`National Oceanic and Atmospheric Administration (“NOAA”). It possessed the
`
`ability to provide high-resolution atmospheric data that could be used to improve
`
`weather forecasting.
`
`In 2008, David Crain and Gene Pache founded GMW, a Nevada
`
`corporation, with a vision of employing sensors like GIFTS to provide proprietary
`
`weather data for sale. To this end, GMW discussed building a commercial
`
`version of the GIFTS sensor with USURF. USURF eventually agreed to build
`
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 6
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`this commercial version, which was called the Sounding and Tracking
`
`Observatory for Regional Meteorology—or the STORM sensor. GMW and
`
`USURF thus entered into a Preferred Service Provider Agreement (“PSPA”) to
`
`put onto paper their agreement. Along the way, GMW obtained a verbal
`
`commitment from NASA that GMW could have the GIFTS sensor—and, in
`
`September 2010, GMW became the first company to obtain a remote sensing
`
`license from NOAA, which would allow GMW to operate up to six GIFTS or
`
`STORM-type sensors in orbit and commercialize the resulting weather-related
`
`data.
`
`GMW sought out potential customers for data gathered from the STORM
`
`sensor throughout 2011. GMW was largely unable to secure firm purchase
`
`commitments. The only agreement it entered into, beyond letters of intent, was a
`
`non-binding License and Services Agreement with a Chinese data company. But
`
`while this Agreement reflected a willingness on the Chinese company’s part to
`
`purchase $8.9 million worth of weather data per month, the contract the company
`
`eventually entered into with GMW only obligated it to purchase a significantly
`
`lower amount: $300,000 worth of weather data per month.
`
`In early 2012, GMW began discussions with AsiaSat, a Hong Kong-based
`
`foreign entity in the business of operating commercial satellites. The discussions
`
`concerned AsiaSat hosting the STORM sensor on its AsiaSat 9 satellite.
`
`Significantly, the parties discussed the possibility of AsiaSat using its balance
`
`6
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 7
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`sheet to secure a loan of roughly $170 million from the Export-Import Bank
`
`(“EXIM Bank”). GMW would then use the loan proceeds to build the STORM
`
`sensor.
`
`The EXIM Bank “provides financing to international borrowers who buy
`
`export goods from the United States.” GeoMetWatch Corp. v. Hall,
`
`No. 1:14-00060-JNP, 2018 WL 6240991, at *2 n.4 (D. Utah Nov. 27, 2018)
`
`(emphasis added). The bank therefore could not structure a loan where GMW
`
`would be the borrower because it was a domestic entity; AsiaSat, as the foreign
`
`entity, would need to submit the loan application and be the borrower. This
`
`arrangement, however, would expose AsiaSat to significant potential financial
`
`liability given the high costs of the STORM project. See id. at *2 (“AsiaSat was
`
`concerned about its ‘exposure’ in doing a deal with [GMW] . . . . [and] was
`
`worried that it would take out a loan with EXIM Bank, [GMW’s] business would
`
`fail, and AsiaSat ‘would be on the hook to pay off the debt.’”).
`
`On April 3, 2013, GMW and AsiaSat executed a formal Cooperation
`
`Agreement, which reflected some of AsiaSat’s concerns regarding the EXIM
`
`Bank’s loan process. Under the Cooperation Agreement, GMW was required to
`
`meet two conditions before AsiaSat was required to seek out a loan with the
`
`EXIM Bank: (1) provide a guarantee, or “backstop,” and (2) provide a
`
`Convertible Note. Section 2.2.1 of the Cooperation Agreement outlined these
`
`conditions precedent:
`
`7
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 8
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`2.2.1 Conditions to Obligations of AsiaSat . . . . The
`obligations of AsiaSat . . . to consummate the transactions
`contemplated by this [Cooperation] Agreement shall be subject
`to the fulfillment or AsiaSat’s . . . waiver of each of the
`following conditions: . . .
`
`(b) AsiaSat . . . shall have received from GMW the
`Convertible Note duly executed by an authorized officer of
`GMW, which Convertible Note shall be in full force and effect
`on the Effective Date;
`
`(c) AsiaSat . . . shall have received legally valid and
`binding guarantees and/or other credit support (including letters
`of credit) in favor of AsiaSat . . . given by a guarantor (or bank,
`in the case of letters of credit) acceptable to AsiaSat . . . in [its]
`sole and absolute discretion and, in each case, in form and
`substance satisfactory to AsiaSat . . . in [its] sole and absolute
`discretion, which shall guarantee the full performance and
`payment of the obligations of GMW . . . .
`
`Aplt.’s App., Vol. 13, at 2868 (Cooperation Agreement between AsiaSat and
`
`GMW, dated Apr. 3, 2013). Under Article 15.1.1(g) of the Cooperation
`
`Agreement, AsiaSat could terminate the agreement “at any time after the Cut-off
`
`Time”—i.e., July 31, 2013—“by written notice to GMW, if the conditions set
`
`forth in Article 2.2.1 . . . [were] not fulfilled on or prior to the Cut-off Time.” Id.
`
`at 2895. The Cut-off Time also could be modified by a written agreement
`
`between the parties.
`
`The guarantee, or “backstop,” in Article 2.2.1(b) was intended to protect
`
`AsiaSat’s financial interests in the event GMW would be unable to pay off the
`
`loan, and it was a critical facet of AsiaSat’s agreement and relationship with
`
`GMW. See GeoMetWatch, 2018 WL 6240991, at *2; see also id. at *3 (“The
`
`8
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 9
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`CEO of AsiaSat described [GMW’s] obligation to provide a guarantee or backstop
`
`for the Proposed EXIM Loan as ‘the basis for the agreement’ and a ‘key element’
`
`of the Cooperation Agreement,” and GMW “understood that obtaining a guarantee
`
`or backstop for the . . . Loan was ‘critical’ to AsiaSat.”). But the Convertible
`
`Note—which was intended to provide AsiaSat with a way to obtain equity in
`
`GMW—proved controversial. Specifically, GMW’s attorneys objected to GMW
`
`issuing the Convertible Note because it would make the STORM sensor the
`
`collateral for the EXIM loan, which NOAA would not accept. As a consequence,
`
`GMW refused to issue the Convertible Note, viewing it as too onerous, despite
`
`such issuance being included as an express condition in the Cooperation
`
`Agreement and AsiaSat’s insistence that it receive the Convertible Note before
`
`further pursuing the loan from the EXIM Bank.
`
`While it was working with AsiaSat, GMW terminated the PSPA with
`
`USURF and, in turn, entered into a Preferred Provider Agreement (“PPA”) with
`
`AWSF—USURF’s subsidiary— in April 2013. Among other things, the PPA
`
`obligated GMW to maintain and fulfill a soon-to-be entered contract with AWSF
`
`called the STORM 001 Contract, to be executed in October 2013. Included
`
`within the scope of maintenance and fulfillment under the contracts was
`
`compliance by GMW with the STORM 001 Contract’s payment schedule. Failure
`
`to comply with this schedule was considered a “default” under the PPA. In the
`
`event of default, AWSF was authorized to terminate the PPA by giving written
`
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 10
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`notice and a thirty-day cure period to GMW. If, after thirty days, GMW had not
`
`cured the default, the PPA would be terminated.
`
`As contemplated in the PPA, GMW and AWSF executed the STORM 001
`
`Contract on October 4, 2013. The payment schedule in this agreement required
`
`GMW to make an initial payment of $5,384,022 to AWSF on January 6, 2014,
`
`toward a total payment of $124,933,872; the balance remaining after the
`
`$5,384,022 payment would come later. GMW knew that AWSF would be unable
`
`to build the STORM sensor unless it received the payment. Like the PPA, the
`
`STORM 001 Contract considered GMW’s failure to make a payment when due a
`
`“default,” and AWSF was empowered to discontinue its performance and
`
`terminate the agreement in the event of default.
`
`GMW and AWSF also executed on the same day the STORM 002 Contract
`
`for “Field Support” of the sensor system. Per the STORM 002 Contract, GMW
`
`was required to initially pay AWSF $27,131 by February 4, 2014, toward a total
`
`payment of $26,509,120, which was scheduled to be paid in full later. In sum,
`
`under these two STORM Contracts (collectively, the “Build Agreements”), GMW
`
`was required to ensure adequate funding to comply with the payment schedules
`
`contemplated. And GMW’s failure to make any milestone payments would
`
`amount to an “Event of Default,” entitling AWSF to immediately cease
`
`performance and terminate the Build Agreements.
`
`10
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 11
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`For its part, AsiaSat commenced the EXIM Bank’s loan process in early
`
`2013. But by July 2013, “it became apparent that [GMW] would not be able to
`
`provide a guarantee or backstop for the Proposed EXIM Loan before the July 31,
`
`2013, Cut-off Time.” Id. at *4. In light of this, AsiaSat informed GMW that it
`
`was not going to submit the Proposed EXIM Loan to the EXIM Bank for
`
`approval. Hoping they could continue working towards a mutual goal, however,
`
`AsiaSat and GMW extended the Cut-off Time to September 30, 2013. AsiaSat
`
`informed GMW that the “only outstanding thing” was the guarantee, and that it
`
`would resume the EXIM loan process once it got more clarity on this issue. Id.;
`
`see id. (excerpting an email from AsiaSat’s CEO to GMW in which the CEO
`
`stated that AsiaSat suspended the EXIM loan process “until [it] ha[d] the
`
`guarantee sorted out” and that the “key driver [was] still the guarantee”).
`
`By August 2013, though, GMW still had not provided the required
`
`guarantee or the Convertible Note, leading AsiaSat to halt the EXIM loan process
`
`entirely. And while GMW discussed alternatives to the Article 2.2.1 conditions,
`
`AsiaSat never agreed to any.
`
`In September 2013, still awaiting GMW’s fulfillment of the conditions
`
`precedent, AsiaSat agreed to extend the Cut-off Time once again, pushing the
`
`cut-off to November 30, 2013. A week before this extended cut-off, on
`
`November 24, 2013, GMW reached out to AsiaSat and asked if there was an
`
`alternative way to structure their deal—that is, alternatives to the Article 2.2.1
`
`11
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 12
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`conditions—and if AsiaSat could support AWSF for a few months. AsiaSat,
`
`again, reiterated it needed the guarantee, as provided in the Cooperation
`
`Agreement, before it would resume the loan process. November 30, 2013, came
`
`and went without GMW’s performance of the Article 2.2.1 conditions, and
`
`AsiaSat, accordingly, declined to proceed further.
`
`While AsiaSat was waiting for GMW to fulfill its contractual obligations,
`
`GMW’s attorney introduced GMW’s then-CEO to Mr. Hall on September 20,
`
`2013. AWSF and USURF had encouraged GMW to meet with Mr. Hall, believing
`
`he could provide the critical backstop required by the Cooperation Agreement.
`
`GMW shared confidential business and technical information with Mr. Hall and
`
`his team, having received assurances from AWSF and USURF that Mr. Hall
`
`would maintain confidentiality.
`
`On November 3, 2013, however, Mr. Hall emailed AsiaSat’s CEO and
`
`explained that GMW was “in trouble” and was contractually obligated to pay
`
`AWSF $6 million in January 2014, with another $8 million required in February
`
`2014. Aplt.’s App., Vol. 18, at 4489 (Email from Alan Hall to William Wade,
`
`AsiaSat, dated Nov. 3, 2013). Mr. Hall further explained that, if GMW failed to
`
`pay AWSF, he was prepared to obtain an NOAA license like the one GMW held.
`
`He then proposed that AsiaSat go into business with him; specifically, they would
`
`each own forty-two percent in a new venture, with Utah State University owning
`
`one percent, and the employees of the business venture owning fifteen percent.
`
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`Mr. Hall noted that Utah State University and AWSF were excited about the plan,
`
`but he requested AsiaSat to not speak about it with GMW.4
`
`Mr. Hall, on behalf of Island Park Properties, entered into a Mutual
`
`Non-Disclosure Agreement (“Mutual NDA”) with GMW on November 6, 2013.
`
`The Mutual NDA limited how Island Park could use GMW’s confidential
`
`information, with Island Park agreeing that it would not disclose, discuss, or use
`
`the information for any purpose other than to facilitate the development and
`
`distribution of GMW’s systems and services. Despite the Mutual NDA, the Hall
`
`Defendants launched a business entity called Tempus Global Data, Inc., on
`
`December 20, 2013.5 A few months later, on April 1, 2014, Tempus announced it
`
`Mr. Hall specifically stated in his email that “GMW is in trouble,”
`4
`with its leaders “hav[ing] spent nearly 6 million dollars with no revenue
`commitments.” Aplt.’s App., Vol. 18, at 4489. Mr. Hall adds that “AWS is
`facing a severe financial crisis” and “USU is in turmoil as it sees the opportunity
`failing.” Id. Mr. Hall then proposed a “solution” in the form of him “cover[ing]
`the AWS payroll for the next 2 months.” Id. He then claimed, “I’m ready if
`GMW defaults to obtain the storm license. I’m ready to build a new firm that
`oversees construction of six storm sensors (in the next 36 months); aggressively
`land scores of clients; raise funds to cash flow the business until profitable and
`ultimately create a multi-billion dollar enterprise.” Id. Mr. Hall then asked for
`AsiaSat’s “help as a business partner and as a potential owner in the new
`business,” inviting AsiaSat to invest in the company and lend support. Id. He
`ended his email by stating that “USU and AWS love this plan and will happily
`discuss it with you.” Id. Mr. Hall also wrote that he “ha[d] not broached this
`matter with GMW and ask you to not speak with me in the near term.” Id.
`
`Tempus, along with Mr. Hall, AWSF, and others, filed an intellectual
`5
`property suit against GMW on April 25, 2014. Tempus eventually ceased all
`operations in June 2016, having never paid any salaries, dividends, or
`(continued...)
`
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 14
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`had commenced operations in Utah “to deliver a hyperspectral weather sensor and
`
`. . . was in the final stages of securing a[n] NOAA license.” GeoMetWatch, 2018
`
`WL 6240991, at *7.
`
`On January 6, 2014, GMW failed to pay AWSF the roughly $5.4 million it
`
`was required to remit under the terms of the STORM 001 Contract. The next day,
`
`AWSF notified GMW that its failure to remit the required payment constituted a
`
`default of the STORM 001 Contract and a material breach of the PPA. As a
`
`consequence, AWSF was discontinuing performance of and terminating the
`
`STORM 001 Contract and the PPA if GMW did not cure the default within thirty
`
`days. GMW failed to cure during this period; consequently, AWSF terminated
`
`the agreements.
`
`At around the same time, GMW resumed talks with AsiaSat—that is, just
`
`months after AsiaSat had stopped the EXIM Bank loan process at the end of 2013
`
`when GMW failed to fulfill either its backstop or Convertible Note obligations
`
`under the Cooperation Agreement. AsiaSat notified GMW that the Cooperation
`
`Agreement’s terms still applied to any potential deal, and the parties reached no
`
`agreement as to another extension of the Cooperation Agreement’s Cut-off Time.
`
`Following AWSF’s termination of the agreements it had with GMW, GMW
`
`5(...continued)
`compensation of any kind. It never generated revenue, has pursued no business
`opportunities since it ceased operations, and has no employees or operating
`capital.
`
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`sought out another entity that could construct the STORM sensor. In February
`
`2014, it approached AsiaSat with a new proposal, where another business entity
`
`(i.e., the “American Manufacturer”)6 would take AWSF’s role and construct the
`
`STORM sensor. Indeed, GMW had prior discussions about such an arrangement
`
`with the American Manufacturer in 2012.
`
`AsiaSat, however, wanted something “concrete” from the American
`
`Manufacturer before it considered re-engaging with GMW. The American
`
`Manufacturer also was concerned that GMW lacked sufficient funds to move
`
`forward with the STORM project, and it believed GMW was running out of
`
`money and was hoping to use the American Manufacturer to obtain funds from
`
`AsiaSat to stave off collapse. The American Manufacturer never agreed to
`
`provide the Cooperation Agreement’s guarantee for any potential EXIM loan.
`
`Nonetheless, GMW and the American Manufacturer entered into a Time and
`
`Materials Purchase Agreement in February 2014, under which the entity would
`
`“figure out integration” of its sensor model with GMW’s needs, in exchange for
`
`The district court initially provided the identity of the American
`6
`Manufacturer in an order disposing the Hall Defendants’ motion for summary
`judgment. The court, however, amended the order a week later “to remove
`references to specific entities not party to this litigation.” GeoMetWatch, 2018
`WL 6240991, at *1 n.1; see supra note 9 (addressing the amended order). The
`district court in that amended order deleted any reference to the American
`Manufacturer’s identity, opting instead to refer to it as the “American
`Manufacturer.” Id. at *6. We follow the district court’s naming convention in
`this opinion, and similarly refer to that entity as the American Manufacturer.
`
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`$500,000 from GMW. Id. at *6. But this was not an agreement to build the
`
`STORM sensor or any other type of sensor.
`
`Nevertheless, in March 2014, GMW and the American Manufacturer met
`
`with AsiaSat and presented the idea that the American Manufacturer would
`
`construct the STORM sensor. AsiaSat was unimpressed, still troubled by the lack
`
`of a guarantee. Consequently, AsiaSat made no commitment to GMW, declined
`
`to resume the EXIM loan process, and, on April 16, 2014, formally terminated the
`
`Cooperation Agreement with GMW.
`
`GMW ran out of money in May 2014, and it failed to make payments to the
`
`American Manufacturer required under the Time and Materials Purchase
`
`Agreement. The American Manufacturer ordered its employees to cease work a
`
`month later. It engaged with GMW in subsequent discussions in 2015, but
`
`nothing came from them.
`
`B
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`On May 16, 2014, GMW filed its initial complaint against Defendants.
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`GMW amended its complaint three times, with the Third Amended Complaint
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`serving as the action’s operative complaint. In it, GMW brought twelve claims
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`against Defendants based on the events surrounding GMW’s failed venture and its
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`supposed lost profits because of the venture’s failure.7 GMW does not so much
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`7 Those claims are: Breach of Contract against Mr. Hall, Island Park,
`(continued...)
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`16
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 17
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`contest the occurrence of the described events, as the prism through which they
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`should be viewed. In GMW’s telling, all its failures to move forward with
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`AsiaSat—and, consequently, the potential profits it lost—are attributable to the
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`bad acts of the Hall Defendants, with the remaining Defendants conspiring with
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`them to ensure GMW’s downfall.
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`Under Utah law, “[l]ost profits must be established with reasonable
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`certainty.” Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1165 (Utah 1983).
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`This requires “proof of ‘sufficient certainty that reasonable minds might believe
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`from a preponderance of the evidence that the damages were actually suffered.’”
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`Id. (quoting First Sec. Bank of Utah v. J.B.J. Feedyards, Inc., 653 P.2d 591, 596
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`(Utah 1982)). “This requirement applies to proof of (1) the fact of lost profits,
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`(2) causation of lost profits, and (3) the amount of lost profits.” Id. (emphasis
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`7(...continued)
`USURF and AWSF; Misappropriation under the Utah Trade Secrets Act, Utah
`Code § 13-24-1, against all Defendants; Breach of Implied Covenant of Good
`Faith and Fair Dealing against Mr. Hall, Island Park, the USURF Defendants, and
`AWSF; Intentional Interference with Existing or Potential Economic Relations
`against all Defendants; Violation of Section 43(a) of the Lanham Act, 15 U.S.C.
`§ 1125(a)-(b), against the Hall Defendants, USURF, and AWSF; Unjust
`Enrichment against the Hall Defendants, USURF, and AWSF; Violation of the
`Utah Truth in Advertising Act, Utah Code Ann. § 13-11a-1, et seq., against the
`Hall Defendants, USURF, and AWSF; Violation of the Utah Unfair Practices Act,
`Utah Code Ann. § 13-5-1 et seq., against the Hall Defendants, USURF, and
`AWSF; Fraudulent Inducement against Mr. Hall, AWSF, Mr. Behunin, and
`USURF; Breach of Fiduciary Duty against Mr. Behunin and USURF; Fraudulent
`Nondisclosure against all Defendants except for Island Park; and Civil Conspiracy
`against all Defendants.
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`17
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 18
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`added). To establish that Defendants’ actions were the cause of its lost profits,
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`GMW presented “four damages scenarios” and relied on expert testimony to
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`establish its two causation theories: that is, first, Defendants’ bad acts caused it to
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`lose profits; and, second, Defendants were unjustly enriched by stealing GMW’s
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`trade secrets. Aplt.’s Opening Br. at 43; see Aplt.’s App., Vol. 9, at 1762–63,
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`1884 (GMW’s Resp. to Hall Defs.’ Summ. J. Mot., filed Jan. 22, 2018).
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`Specifically, GMW articulated its first three damages scenarios under a lost
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`profits damages theory—the idea being that GMW “had the ability to complete
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`the project [under] each of [its] three [proffered scenarios], but for the Hall
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`Defendants’ interference.” Aplt.’s App., Vol. 9, at 1763. In GMW’s own words:
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`[T]here were three scenarios in which [GMW] could have
`succeed[ed], but for the Hall Defendants’ wrongful conduct . . . .
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`Scenario 1: The Instrument[8] is built by [AWSF], AsiaSat . . .,
`provides an equity investment and project support as reflected in
`the Cooperation Agreement, and the [EXIM Bank] provides
`financing based upon AsiaSat’s pledge of its balance sheet,
`which AsiaSat conditioned upon an acceptable backstop to
`mitigate the financial risk associated with the Instrument.
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`is built by [the American
`Scenario 2: The Instrument
`Manufacturer], AsiaSat provides an equity investment and project
`support as reflected in the Cooperation Agreement, and EXIM
`provides financing based upon AsiaSat’s pledge of its balance
`sheet, which AsiaSat conditioned upon an acceptable backstop to
`mitigate the financial risk associated with the Instrument.
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`8
`Br. at 18.
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`The “Instrument” refers to the STORM sensor. See Aplt.’s Opening
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`18
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 19
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`is built by [the American
`Scenario 3: The Instrument
`Manufacturer], AsiaSat’s payload hosting services are replaced
`by a different commercial satellite operator . . ., and new equity
`and debt are obtained from the marketplace, including possibly
`through EXIM project financing . . . or through another export
`credit agency [ ].
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`Id. at 1762 (footnote added). GMW also proffered another damages scenario
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`based on an unjust enrichment theory—an idea that centers on “the Hall
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`Defendants [allegedly] purloin[ing] [GMW’s] confidential and proprietary
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`documents and information—its crown jewels—which were central to both
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`[GMW’s] and Tempus’s value.” Id. at 1884.
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`To provide meat to these theories, GMW specifically points to the
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`November 3, 2013, email from Mr. Hall to AsiaSat as evidence of an alleged
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`conspiracy between Mr. Hall, AWSF, and USURF. GMW also points to later
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`communications from Mr. Hall as evidence of a causal nexus between
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`Defendants’ bad acts and GMW’s alleged damages. Particularly, GMW
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`highlights a February 2014 email in which Mr. Hall stated that he “was actively
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`working to ‘put the last nail in [GMW’s] coffin,’ because he decided he
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`‘[couldn’t] leave them thinking they [were] still in the game.’” Aplt.’s Opening
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`Br. at 39 (quoting Aplt.’s App., Vol. 21, at 5314 (Email from Alan Hall to Robert
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`Behunin, Utah State Univ., dated Feb. 7, 2014)). GMW also cites a March 2014
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`email chain where Mr. Hall demanded that AsiaSat stop negotiating with GMW.
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`19
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`Appellate Case: 19-4130 Document: 010110703167 Date Filed: 06/29/2022 Page: 20
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`See Aplt.’s App, Vol. 20, at 5083–84 (Emails between Alan Hall and William
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`Wade, AsiaSat, dated Mar. 14, 2014).
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`In another email chain, William Wade of AsiaSat blind copied Mr. Hall on
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`an email to GMW stating that AsiaSat would not be moving forward with GMW
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`on the STORM project because of the “lack of financial guarantees, a credible
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`commercialization plan[,] or a deployment schedule compatible with AsiaSat 9.”
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`Id. at 5087 (Emails between Alan Hall and William Wade, AsiaSat, dated Mar.
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`19, 2014). Mr. Hall forwarded the message to others, including certain
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`Defendants—i.e., Erin Housley, Mark Hurst, Scott Jensen, and Curtis
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`Roberts—simply commenting, “Sweet!!” Id.
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`In sum, based in part on communications such as these, GMW posits that
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`the failure of its venture was caused by the Hall Defendants’ theft of GMW’s
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`trade secrets and other illicit conduct, in concert with the other Defendants.
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`While GMW does not contest the fact that it failed to fulfill the obligations and
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`conditions it owed to AsiaSat and AWSF under the respective contracts it entered
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`into with them, GMW effectively argues that any lost profits it suffered were not
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`self-inflicted, but rather were the result of Defendants’ conduct.
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`AWSF, for its part, filed a counterclaim against GMW, providing the
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`following allegations: (1) AWSF and GMW executed the Build Agreements to
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`construct the STORM sensor; (2) th