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Starting today in state trial court in Florida, 20,000 Caribbean sugar cane cutters get what could be their last shot at Big Sugar in their long-running legal battle to win tens of millions of dollars in backpay. Pre-trial motions in the class-action contract lawsuit, Bygrave v. Sugar Cane Growers Cooperative of Florida, quickly turned rancorous Monday, following a pattern set in preceding cases. One of the defense attorneys, David Coulson, insulted the plaintiffs’ proposed chief expert witness; Judge Karen Miller admonished Coulson, prompting him to apologize. The outcome of the trial, for which jury selection begins today in Palm Beach Circuit Court, could determine whether attorney David Gorman’s 14-year-long crusade on behalf of the predominantly black cutters is finally over. The case has become an obsession, decimating Gorman’s once-lucrative commercial litigation practice in the town of North Palm Beach and contributing to the breakup of his marriage. The defendant, the Sugar Cane Growers Cooperative of Florida, is represented by Greenberg Traurig shareholders Coulson, David Ross and Henry Latimer. The current case arose out of the cane cutters’ 1989 class action lawsuit that alleged the workers were cheated out of millions in wages by the five defendants — Atlantic Sugar Association, Okeelanta, U.S. Sugar, Osceola Farms and the co-op. Gorman and his co-counsel won a $51 million judgment for the cutters in 1991 against the five defendants, but the award was overturned by the 4th District Court of Appeal in 1995. The court ruled contract issues needed to be decided by a jury. The companies were granted separate trials and U.S. Sugar settled for $5.7 million in 1997. But the other defendants fought on. Since then, the plaintiffs have lost two jury trials, against Atlantic and Okeelanta. After the trial involving the co-op, they still have a trial in the case against Osceola Farms. But Gorman acknowledges that if the plaintiffs lose against the co-op, the quest may be over. “It would be very difficult to go into another case after a loss in this,” he said. Growers co-op spokeswoman Barbara Miedema said the defense verdicts in the two 1999 trials boded well for the growers co-op in this trial. “There are no new facts now that there weren’t before,” she said. The litigation has pitted poor migrant farm workers — mostly Jamaicans who were hired by the sugar companies between 1987 and 1991 to work in the United States under the federal government’s H-2A foreign guest farm worker program — against the nation’s leading sugar growers. Several of the companies are owned by the Fanjuls of Palm Beach, the rich and politically influential family of Cuban exiles. The workers were recruited on their home islands by sugar company representatives who signed them to work contracts and shipped them to the United States. They were housed in dormitories on the companies’ sugar farms around Lake Okeechobee. Every day throughout the cane-cutting season, from November through March, they worked the fields — burning, cutting down, trimming and sorting the cane. The workers’ contracts called for them to be paid either the then-federal minimum wage of $5.30 an hour or the prevailing rate per row of cut cane, whichever was greater. But the piece rate was undefined, except in documents that the workers never saw. In the companies’ work orders — applications to the federal government to import the workers — the companies stated that the workers would be paid a piece rate that varied with the variety of cane, type of soil, and tonnage cut by an average worker. Further, the work orders stated, “a worker would be expected to cut an average of eight tons of harvest cane per day.” The legal implications of that phrase are the central issue of the class action. Gorman and his colleagues argue that since the cutters were required under the work orders to cut an average of eight tons per day and the minimum hourly rate was $5.30 an hour, the row price should work out at least equal to $5.30 per ton. The cutters claim that the growers violated their contracts by paying them less than the minimum — as little as $4 per ton. The workers say on some days they’d make only $15 for an eight- to 10- hour day of hard, dangerous work in the hot fields. At most they’d make $40 to $45. But the growers argue that the phrase concerning how much the workers would be expected to cut was ambiguous and not contractually binding. And the growers claim the cutters only worked six-hour days. Gorman, now 56, had a prosperous North Palm Beach commercial litigation practice when he joined the plaintiff team in 1989. He was recruited by West Palm Beach attorney and ACLU leader James Green to serve as co-counsel with Edward Tuddenham, a Texas public interest attorney who originated the case in 1989. Willie Gary was hired by the three Fanjul-owned defendants, Atlantic, Okeelanta and Osceola. He served as co-counsel with Steel Hector & Davis labor lawyers Elizabeth Du Fresne and Mark Cheskin, who is now of Morgan Lewis in Miami. The drama of the 1999 trials involving Atlantic and Okeelanta was heightened by the fact that Gary, an African-American, grew up in a migrant farm-worker family and had long portrayed himself as a champion of the underdog. A member of the defense team acknowledged that Gary was hired to blunt the cutters’ heart-tugging claims of mistreatment by saying essentially, “I’ve been there myself and it ain’t so.” Gary predictably stole the spotlight during the two trials, but his performance prompted controversy. Gorman claimed Gary made up facts during his closing arguments and virtually accused the plaintiff lawyers of lying. After reaching a defense verdict in the Atlantic case, the six jurors sent Judge Edward H. Fine a note chastising Gary for his repeated statement that the cutters’ suit was frivolous. “The case was not frivolous,” the note said. The jurors also rebuked Atlantic for its “shameful” treatment of the workers. Gary did not return calls for comment. The 1999 losses still rankle Gorman. “We could have won that last [Okeelanta] trial,” he said. “The jury was 5-1 in our favor at one point.” This time, Gorman and his co-counsel, Green and West Palm Beach criminal attorney Anthony Natale, hope to bolster their odds of success by relying on extensive post-trial interviews they conducted with the jurors in the Atlantic and Okeelanta trials. Gorman declined to discuss case strategy in detail. But he did say he hoped to make more effective use of a 1989 letter from U.S. Department of Labor regional administrator Daniel Lowry to growers’ representative Walter Kates. In the letter, Lowry rejected a growers’ proposed work order that reduced from eight to six the number of hours a cutter would be expected to work daily. The Labor Department refused to allow that unless the order also was changed to reduce expected daily output from eight to six tons of cane, consistent with the department’s one-ton-per-hour guideline. “This is necessary in order to ensure that there is no increase in the productivity standard required of workers,” Lowry wrote. Gorman said that in the 1999 trials, the jurors “overlooked” that piece of evidence, which, in his view, proves that the sugar growers were obligated to pay by the ton and not by a highly variable piece rate. “I promise you we won’t lose on that point this time around.” Gorman also hopes for better success with Judge Karen Miller than he had with Judge Fine. “Fine’s jury instructions killed us in the [Atlantic] case,” he said. “He failed to tell [the jurors] what they could consider in determining the legal intent of a contract.” But Gorman also seems to have looked in the mirror in examining the 1999 defeats. “These are not complicated cases, though I may have made them too complicated in the past,” he said. “Maybe I put on more testimony and evidence than we needed.” Defense attorneys in the case referred most questions to growers co-op spokeswoman Barbara Miedema. She said she expects the latest sugar trial to feature “the same central question — were the cutters to be paid by the task or by the ton?” Miedema expressed confidence based on the outcomes of the last two trials. The note from the jury in the Atlantic case criticizing that company’s conduct was “specific to that company,” she said. Miedema and Gorman agreed that jurors’ sympathies could be critical in this week’s trial. “Anytime there’s a dispute between big business and manual laborers, there’s an emotional card to be played,” Miedema said. Gorman contends that because Willie Gary is not involved in this trial, the defense hopes that Henry Latimer, another African-American, will put a more sympathetic face on the defense case against the mostly black plaintiff class. It’s not unusual for corporate defendants to hire black attorneys to influence the perception of juries in racially tinged cases. “It’s obvious,” Gorman said. But Latimer denied that. “If that was any part of the reason they hired me, I wouldn’t be here,” he said.

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