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Legions of West Indians on whose razor-sharp machetes Big Sugar once depended for its Florida cane harvests are gone, replaced with mechanical harvesters. But their decade-old class action against five companies for millions in back wages may be reborn in a Florida state appeals court. Despite a Palm Beach Circuit Court jury declaring Big Sugar’s pay scheme fraudulent and “shameful,” growers dodged a $51 million bullet in 1999 when they won two breach of contract trials now on appeal. Three of the five defendant companies are linked to the powerful Fanjul family, which dominates Florida’s billion-dollar sugar industry. The cutters contend the companies reaped illicit profits by creating confusing contract documents to cheat the mostly illiterate workers out of pay. Now, for the first time, Big Sugar has conceded that at least one of the cutters’ claims is true. “It’s the strangest type of contract dispute you’ve ever heard,” Elizabeth du Fresne, lead attorney for the sugar growers, told a three-judge panel of the 4th District Court of Appeal last month, arguing the first of the two cases. It’s strange because no one told the mostly Jamaican cutters they would be expected to cut an average of eight tons of cane during an eight-hour day and be paid no less than $5.30 per ton. Big Sugar agreed to that pay scale, which the United States Department of Labor adopted in its 1988 “clearance order” allowing growers to import 20,000 migrants on temporary work permits. These DOL orders, filed by growers each year they sought to use migrant workers, are rooted in federal regulation and policy preventing foreign workers from taking jobs from U.S. citizens. But the growers then abandoned the order, requiring workers instead to sign a two-page, fine-print contract after they arrived in Florida for each harvest season. Contrary to the order, it gives Big Sugar the right to pay by the row, choosing its own pay rate through a so-called “task-rate” system. Here’s how it worked, according to court records: The industry translated rows into tons and budgeted paying West Indian workers $4 a ton, regardless of how many hours they worked daily. Each morning, “ticket-writers” sized up the rows and assigned them a dollar value. And at the end of a typical eight- to 10-hour day, they faked the hours to fit the $4 a ton budget. The workers earned between $35 and $40 a day. Until now, growers had argued that they never agreed to pay by the ton. But in the hearing last month, du Fresne told the 4th District Court of Appeal there was a tonnage rate, but not $5.30 per ton. In any event, the sugar companies now say the two conflicting documents they crafted — first the Labor Department’s order and then the two-page contract — cannot be “harmonized.” But the issue is not about harmony, it’s about simple math, counters David L. Gorman, the West Palm Beach solo litigator, who filed the class-action suit in 1989 against United States Sugar Corp. and Sugar Cane Growers Cooperative of Florida, as well as the Atlantic Sugar Association, Okeelanta Corp. and Osceola Farms Co., all linked to the Fanjuls. “Tonnage drives the entire system,” he told the appeals court. “One ambiguous phrase doesn’t turn the contract into a legal jump ball.” Big Sugar promised to pay $5.30 for each ton of cut cane, he told judges. Moreover, Big Sugar in 1992 told Palm Beach Circuit Judge Lucy Chernow Brown that it would owe another $51 million to cutters for harvests between 1988 and 1991 if she applied Gorman’s equation. Brown did. And in 1992, she entered judgment against the five sugar titans for $51 million. Brown ruled that in the clearance order, growers clearly offered workers $5.30 a ton. Workers accepted the offer by harvesting cane, she wrote. Big Sugar appealed. And in 1995, the sweet taste of the cutters’ initial success turned sour as the 4th District Court of Appeal reversed Judge Brown’s decision, voiding the $51 million judgment. The three-judge panel ruled that ambiguities in the two grower-drafted documents should be resolved at trial. It returned the class action to circuit court, this time before Judge Edward H. Fine, who agreed with Big Sugar’s request to hold five separate trials — one for each company. Before the first of these, Florida’s largest grower decided to buy peace with their cane cutters and change its ways. In 1997, U.S. Sugar settled with cutters, paying them $5.6 million after a Miami administrative law judge in 1991 ruled that the company was bound by the per ton production standard. “After the settlement, U.S. Sugar agreed to start paying by the ton,” Gorman said. Meanwhile, the Fanjul-linked companies dug in, hiring the son of a sharecropper, millionaire trial lawyer Willie Gary of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando in Stuart, Fla., to try the case with du Fresne. Gary, who made his reputation and tons of money fighting for the little guy in class-action suits against corporate Goliaths, now spoke from Big Sugar’s corner. In April 1999, as the curtain raised in on the first trial, this one against the Atlantic Sugar Association, Gary set the theme of Atlantic’s defense: The cutters’ case was frivolous. “It’s about greed and money, the almighty dollars. It’s about trying to get something for nothing,” Gary said. Gary told the jury that if it didn’t agree this was a frivolous lawsuit, then it would have to find that the cutters indeed did have a contract paying $5.30 a ton. Unable to determine the status of the contract, the jury returned a very reluctant verdict for the grower 11 hours later. But all six jurors signed a note they asked Fine to read in open court: “Atlantic Sugar consistently misrepresented to the cutters the incentive features of their task system of payment. It was shameful.” And then the jurors directly rebuked Gary, who at least 10 times in his summation demanded that they find the cutters’ claims frivolous. “The case was not frivolous,” wrote the six jurors. “You won the moral issue,” 4th District Judge Bobby W. Gunther told Gorman at the appeal hearing last month. But Gorman said that’s not enough. Gorman argued that Fine gave the jury “impossible instructions” about the law, asking jurors to evaluate the company’s intent and to consider how the industry paid workers in the past. Fine “abdicated his responsibility” by not treating the intent of the contract as a legal issue and ruling on it himself instead of tossing to the jury. Argued Gorman: “You don’t look at what people do afterward to get at the intent of the documents.” Another hook for the appeal: Fine failed to control Gary during his final argument in the Atlantic case, when, Gorman said, the attorney manufactured facts and accused both the cutters and their lawyers of lying. Such misconduct requires a new trial, he said. Even as appellate judges ponder Atlantic, they soon will see a rematch when the second trial — held in October 1999 against Okeelanta — comes before them on appeal. In briefs prepared for the appeals panel, Gorman again focuses on Fine and Gary. In the Okeelanta trial, Gary followed a different script to the same result — a verdict in the defendant’s favor. This time, Gary hammered on another theme: “Trial by deception,” again teetering on accusing workers’ attorneys Gorman, Anthony John Natale of West Palm Beach and Edward J. Tuddenham of Austin, Texas, of extortion, trickery and lying. In addition to failing to control Gary during his summation, says Gorman, Fine erred when he suppressed critical expert testimony. Fine also rejected Gorman’s request to tell jurors that the sugar companies drafted the conflicting documents and not the cutters or the government. That’s vital, because Fine instructed them that any ambiguity in a contract should be held against whomever drafted it, a fatal omission, according to Gorman in his Okeelanta appeal brief. The 4th District Court of Appeal has set no date for oral arguments on Okeelanta. Fine has suspended further trials until the 4th District rules on both appeals.

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