Ferguson, Kuei Tung seek to set aside US$130m Miami judgment

FINAL judgment has not yet been entered by the Miami courts against former minister Brian Kuei Tung, and businessmen Steve Ferguson and Raul Gutierrez Jr over criminal conduct linked to the construction of the Piarco Airport development project almost three decades ago.

At a motions hearing on Thursday, Miami-Dade Circuit Court judge Reemberto Diaz agreed to adjourn Trinidad and Tobago’s motion for final judgement to April 28, when he will also hear separate motions filed by the three to set aside the jury’s verdict and a new trial.

The judge had been asked by attorneys for TT to enter final judgment against the three in the sum of US$131,403,245.64.

Thursday’s hearing was held on Zoom.

According to TT’s motion for final judgment, the US$97,157,964 sum represents treble damages of the jury’s verdict in the amount of US$32,385,988 against the three on March 29. The racketeering charges were filed under the US’s Racketeering and Influence Corruption Organisation Act (RICO).

While the bulk of the judgment is related to the jury’s award, TT is also asking for US$38,876,972.89 which constitutes prejudgment interest, minus the US$$4,631,691.25 set off from paid settlements and restitution by other defendants years ago.

An amended draft of the final judgment was filed by TT’s attorneys White and Case on April 17, ahead of Thursday’s hearing.

The State’s amended motion for the entry of the final judgment said the damages awarded by the jury “comprised of the amount of overcharges incurred by the Republic as a result of the defendants’ fraudulent scheme to overcharge the Republic for two construction contracts and a maintenance contract related to the Piarco International Airport project.”

The motion also said during the month-long jury trial, TT had established that its loss occurred on or before May 28, 2004.

In separate motions challenging the month-long jury trial and the verdicts against them, Kuei Tung, Ferguson and Gutierrez filed separate motions asking for a judgment of their own despite the jury’s verdict and a new trial.

These will also be heard by the judge on April 28.

In their motions, they say Trinidad lacks standing to bring claims for injuries alleged to have been suffered by the Airports Authority.

“While this court improvidently concluded that the RTT had alleged and sufficiently proven a pattern of criminal activity based in part on a wire fraud violation with respect to its civil RICO and fraud claims, to be sure, neither the wire fraud nor mail fraud statutes apply extraterritorially, and thus it fails to support the RTT’s claims,” one of the motions also says.

It added that the court’s order for partial summary judgment failed to consider that a civil RICO plaintiff must allege and prove a domestic injury to business or property. It says the RICO statute does not allow recovery for foreign injuries as alleged by the fifth amended complaint filed by the State.

“It is the defendants’ position that the evidence and the admission of crimes, bad acts or other wrongs allegedly committed by the defendants unfairly dominated and pervaded this trial and severely prejudiced the defendants requiring a new trial on damages,” the motions read, in part.

They also say the jury’s award was “simply excessive” as they asked the court to set aside the verdict and grant the motions for judgment notwithstanding the verdict, which, in the US legal system is a judgment by a trial judge after a jury’s verdict, setting it aside and entering one in favour of the losing party without a new trial.

In the alternative, the three are asking for a new trial.

Ferguson also filed a response in opposition to the motion for final judgment. In it, he argued that the motion was premature as post-trial motions were pending and should be ruled on before entry of the judgment.

He also says the State’s motion deprived him of the right to take discovery on the issue of setoff while it should also be denied because it requests prejudgment interest where none is available under Florida law.

“Entry of judgment now puts the cart before the horse,” Ferguson’s response says.