David M. Buckner and Brett E. von Borke (J. Albert Diaz)
Details: Las Vegas-based Vision Airlines flew flights under U.S. government contract, utilizing its fleet of 737s and 767s, to transport goods and personnel into Iraq and Afghanistan from 2005 to 2012 during the U.S. conflicts in the Middle East. The charter airline received hazard pay as part of its estimated $500 million worth of contracts with the U.S. government, plaintiffs say.
In 2009, Texas pilot Gerald Hester filed a class-action suit in Las Vegas federal court on behalf of all pilots and flight attendants who worked on these lengthy flights, claiming unjust enrichment and that Vision pocketed their employees’ portion of the hazard pay.
Case: Gerald Hester v. Vision Airlines
Case no.: 09-cv-00117
Description: Class-action, unjust enrichment
Filing Date: Jan. 20, 2009
Trial dates: Nov. 7, 2010 to Nov. 8, 2010
Judge: Chief U.S. District Court Judge Roger Hunt, Las Vegas
Verdict: $6 million
Additional settlement: $1.7 million
Settlement approval: July 17, 2014
Plaintiffs attorneys: David Buckner and Brett von Borke, Grossman Roth, Coral Gables; Ross C. Goodman, Las Vegas; Ken Hartmann, Kozyak, Tropin and Throckmorton, Miami
Defense attorneys: James A. Kohl, partner, Howard & Howard, Las Vegas
“These are big, slow commercial aircraft flying into really hot war zones,” Buckner said. “These aircraft were at risk of being shot down. It was a very risky exercise.”
The case was wrought with drama, drawing sanctions for Vision Airlines for discovery abuses and untruthful testimony by its CEO William Acor. Plaintiffs succeeded at trial with a verdict and later with a settlement for a total award of $7.7 million.
Plaintiff’s case: Miami forensic accountant Barry Mukamal, currently at KapilaMukamal, testified on how Vision Airlines failed to pay its staff hazard stipends. Lead plaintiff Hester also testified on the dangers of the mission and the flights.
“Basically they needed to get State Department personnel and contractors in and out of Baghdad and Kabul,” Buckner said.
Because of discovery violations, Judge Hunt ended up striking Vision’s answers to the complaint and entered a default as to liability, leaving only the matter of determining compensatory damages for the jury.
Buckner and von Borke split duties as lead counsel in the case. Hartmann worked on the case when it originated at Kozyak, Tropin & Throckmorton and Goodman served as local counsel in Las Vegas.
Defense case: Kohl did not return a phone call for comment on behalf of Vision Airlines. Buckner said Vision argued at trial that the class had been paid hazard pay through their regularly pay but the jury rejected Vision’s claims.
Verdict: The jury came back with a nearly $6 million award including interest for compensatory damages.
Appeal: Vision Airlines appealed to the U.S. Circuit Court of Appeals for the Ninth Circuit based in San Francisco. Buckner argued the case for the class. The appeals court’s opinion noted the discovery violations and Hunt’s sanctions and directed the court to allow for punitive damages, Buckner said.
The class also moved for an injunction to order Vision Airlines to produce hazard pay to class for the time during the trial and appeal. However, Vision said that there was only six to eight weeks left in the contract and plaintiffs dropped the matter.
While preparing for the punitive damages portion of the trial, plaintiffs learned there was as much as two years left on the contract. Vision’s CEO Acor testified to Hunt hat he did not know he was obligated to tell the truth about the remainder time on the contract, Buckner said. An angry Judge Hunt considered holding Acor in contempt.
Settlement: With another round of sanctions pending, Vision Airlines settled the punitive portion of the case for $1.7 million for about the amount sought through the injunction request.
Comments: “The Ninth Circuit opinion is a great opinion on the state of sanctions law. Everybody cites the case now because it was so brutal and they deserved it,” Buckner said.
Post-verdict: Vision Airlines has until Aug. 22 to pay the $1.7 million, which Buckner said is backed up by the company’s bank.