Steve Ferguson, Brian Kuei Tung fail to quash multi-million$ Miami verdict

MIAMI-DADE Circuit Court judge Reemberto Diaz has dismissed the motions by former minister Brian Kuei Tung and businessman Steve Ferguson challenging the multi-million verdicts against them in the Miami courts over their conduct linked to the construction of the Piarco International Airport development project almost three decades ago.

Diaz also dismissed a similar motion filed by Miami businessman Raul Guiterrez Jr on Friday during a hearing set a week ago for arguments in support and against the men’s motions as well as on Trinidad and Tobago’s own motion for final judgement.

The three had asked for the jury’s verdict of March 29 to be set aside and for a new trial.

Diaz dismissed the motions after hearing from attorneys for the three. Ferguson filed his own motion while Kuei Tung and Guiterrez filed a joint motion.

They were denied by Diaz who also adjourned to May 12, TT’s motion for final judgment.

Friday’s hearing was held on the Zoom platform. Newsday attended the hearing with the judge’s permission.

Diaz called on attorneys for the three to submit what their proposed final judgment would be and said he would decide on which he thought was appropriate. However, he warned that he was not, again, going to have a trial of the facts.

“We already had a trial. This verdict needs to have a final judgment along with it. Get your affairs in order and submit your proposal and I will assign a judgment I think appropriate.”

There were some earlier arguments on the final judgment figures.

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.

The judge's dismissal of the motions means the three now have limited routes by which to appeal, Newsday was told.

Newsday also understands that the three will also have to post a bond for the full amount awarded by the jury along with two years interest and the clock will start running when the final judgment is entered in two weeks' time. Their 30 days by which they have to appeal also begins on that date when final judgment is given.

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.

In their motions, they said 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 said.

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 were 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 judgement.

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.

Presenting submissions on behalf of Ferguson was attorney Scott Cosgrove while Michael Petit-Garcia presented Kuei Tung and Guiterrez’s motions. TT was represented by Jim Robinson. Former attorney general Faris Al-Rawi was also present on the Zoom platform for Friday’s hearing.