- FUKU-BONSAI V. DUPONT
- An epic battle of might vs. right!
Two separate lawsuits included simple facts but complex issues of law. It pitted two exceptional litigation teams backed by our commitment to principles against DuPont who used their financial and legal resources and tried to squash us! Fuku-Bonsai was intimately involved in both the product liability and DuPont fraud lawsuits.
DuPont is clearly the winner in that they successfully settled thousands of lawsuits for a small percentage of the total actual damages. By withholding, falsifying and misrepresenting evidence, they repeatedly and arrogantly committed the most egregious settlement fraud in our country's history! The relatively small amounts of judicial sanctions and adverse publicity they received will not prevent them from utilizing the same tactics in the future!
Their legal bullying overwhelmed opposition. Many plaintiffs simply went out of business. Others are fighting for survival. Fuku-Bonsai is a victim of foreclosure, lost our most valuable assets, but was able to cancel the Chapter 11 Bankruptcy and paid all creditors 100% + interest.
We totally reinvented ourselves and are now poised to launch an exciting future. We have a settlement confidentiality clause that the court will interpret very narrowly and cannot disclose terms. But the following is a matter of record!
- 1. DUPONT BENLATE DF WAS A DEFECTIVE PRODUCT.
- It killed, stunted, or deformed plants and/or flowers. (1988-1990)
- There is no question that defective Benlate caused problems. Seedlings sprayed with Benlate died. Those not sprayed grew well. University of Hawaii researchers monitored Fuku-Bonsai trials.
- Seedlings in media previously sprayed with Benlate collapsed immediately when sprayed while those in new media took longer. New media seedlings not sprayed grew well.
- In addition to the huge bonsai inventory that had been in training since 1973, Fuku-Bonsai also eventually lost the Kona Fuku-Bonsai Center which opened in 1992. All surviving plants
- quickly sold out and Fuku-Bonsai was forced into Chapter 11 Bankruptcy. Our only choice was to settle or be liquidated. But DuPont's product liability settlement was based on fraud!
Fuku-Bonsai suffered nursery losses of over $10 million including the "old bonsai plant bank" created from 1973 including over 100,000 bonsai in training for up to 16 years, five entire annual seedling crops, as well as rare and older valuable bonsai. There was damage to Fuku-Bonsai's reputation, loss of markets and opportunities, the need to develop new growing procedures, new crops and the physical, emotional, financial, mental trauma and stresses of foreclosure, bankruptcy, and the possible demise of the corporation.
In addition, we lost the 17-acre Fuku-Bonsai Center in Keauhou-Kona and the dream of creating a major visitor destination and establishing Hawaii as a center of international bonsai. The center could be valued conservatively at $10-$20 million so total losses exceed $20-$30 million.
- 2. PRODUCT LIABILITY REPRESENTED BY THE KEVIN MALONE
- (Began 1992; settled 1994)
DuPont fraudulently induced settlement for far less than actual damages. Fuku-Bonsai, as part of a mass tort action, lost its opportunity to go to trial even though we had field trial and analytical evidence to prove that Benlate was the cause of the problems.
As the last of 220 cases, Fuku-Bonsai had the choice of settling or obtaining other legal representation. The Bankruptcy Court option was to accept the settlement or be liquidated.
3. UPON LEARNING OF THE FRAUD IN 1995, FUKU-BONSAI HAD TWO CHOICES:
a. Return the original settlement funds within a short time and retry the entire product liability claim including seeking punitive damages for fraud. This route was not open to Fuku-Bonsai because the Bankruptcy Court had already dispersed the settlement and we could not obtain legal representation within the time allowed.
b. Affirm the product liability settlement and sue for fraud. This option limited damages to the difference in settlement value between what we got on the first settlement and what our case would have been worth if the fraud was known at the time of the settlement (with possible punitive damages).
- 4. DUPONT FRAUD REPRESENTED BY STEPHEN COX
- (Began 1997; settled April 24, 2007)
Ten years of litigation included a change from Hawaii State court to Federal court, to the 9th Circuit Court of Appeals, to Delaware Supreme Court, back to Hawaii District Court, to Hawaii Supreme Court, to Hawaii District Court, back to the 9th Circuit Court of Appeals, and back again to Hawaii District Court! The options:
a. Go to trial with a good likelihood of winning a jury verdict (including punitive damages) but having to face additional years of legal battles. Much of our legal battle was due to the courts' unwillingness to establish precedent to reopen settlements. We were able to head to trial due to a favorable ruling by the Hawaii Supreme Court that does not allow fraud as part of litigation. Fraud plaintiffs outside of Hawaii (including other product liability plaintiffs who were also represented by Kevin Malone) were not able to go to trial in spite of the egregious fraud that is a matter of court rulings and records!
b. SETTLE. Although we preferred to go to trial to obtain a fraud and punitive damage judgment and jury award, on April 24, 2007 Fuku-Bonsai agreed to settle to exchange the costs, risks and potential rewards for the certainty of a settlement to end ten years of litigation. DuPont escaped the negative publicity of a jury fraud judgment, but their embarrassing extensive record of litigation fraud is public information for anyone to see. We won a moral victory but DuPont won in not having to fully compensate us or other plaintiffs for the huge amount of damage defective Benlate caused!
SUMMARY AND CONCLUSION
LIFE IS NOT FAIR! It is easy to be bitter and produce a rant that we got screwed royally twice by DuPont and it's true. DUPONT WON!
● No DuPont officer, manager, scientist or employee has ever gone to prison. Their CEO falsely testified that DuPont had turned over all records of all tests and field trials in response to discovery orders.
● No DuPont associate individual or company who knowingly participated in the concealment, falsification and misrepresentation of evidence has ever been criminally persecuted.
● No DuPont attorney who conspired and misrepresented evidence has ever been disbarred.
But we celebrate that we live in the finest country in the history of mankind and that anywhere else, persons in our position could not challenge DuPont! Courageous judges largely off-set DuPont's resources and advantages.
● Judge Ronald Ibarra, Hawaii State Court (Kona, Hawaii) presided over Kawabata-Tomono v. DuPont in 1994-96 in which the Alta Lab fraud was discovered. He issued DuPont fraud sanctions.
● Judge Robert Elliot, Georgia District Court presided over Bush Ranch v. DuPont in 1993-95 and ruled: "Put in layman's terms, DuPont cheated. And it cheated consciously, deliberately, and with purpose. DuPont has committed a fraud on this Court, and the Court concludes that DuPont should be, indeed it must be severely sanctioned if the integrity of the Court system is to be preserved." Judge Elliot imposed sanctions totaling $115 million. Due to DuPont's fraud, plaintiffs in his trial settled for less than 1% of damages!
● Judge Simeon Acoba Jr., Hawaii Supreme Court in Matsuura v. DuPont noted that DuPont had not disclosed the Costa Rica field tests prior to the settlement and issued a concurring and dissenting opinion recognizing an independent action for fraud and reliance issues.
● Judge Susan Oki Mollway, Hawaii District Court demonstrated a full knowledge of the case, earned the respect of all plaintiffs and the attorneys of both sides, and got them to agree to accept the certainty of a settlement to end the litigation.
MAHALO TO OUR LITIGATION TEAMS!
Benlate DF product liability litigation (1992-1994)
Kevin Malone; (Krupnick, Campbell, Malone, Buser, Slama, Handcock, Liberman & McKee) 700 SE Third Ave; Ft. Lauderdale, FL 33316; Phone (954) 763-8181; www.krupnicklaw.com
Wayne Parsons; 1406 Colburn St # 201C, Honolulu, HI 96817
(808) 845-2211; www.wayneparsons.com
DuPont fraud ligitation (1997-2007)
Stephen Cox; (Cox & Moyer) 1000 Marina Village Parkway; Suite 120, Alameda, CA 94501; Phone (501) 522-1200; www.coxmoyer.com
A. Camden Lewis; (Lewis & Babcock LLP), 1513 Hampton St., Columbia, SC 29201; Phone (803) 771-8000
Carl H. Osaki; 900 Fort Street Mall; Suite 1510, Honolulu, HI 96813; Phone (808) 528-4666; CHO@hawaii.rr.com
Kris A. LaGuire; 80 Pauahi Street; Suite 203; Hilo, HI 96720; Phone (808) 961-6611; KALaGuire@aol.com
- For more information, contact David W. Fukumoto, president and founder, FUKU-BONSAI INC., PO Box 5000, Kurtistown, Hawaii 96760; Phone (808) 982-9880
- www.fukubonsai.com ; firstname.lastname@example.org
*** Return to Fuku-Bonsai Records, Achievements and Accomplishments
*** Return to Fuku-Bonsai home page
*** Go to THE CHALLENGE OF BONSAI!
- POSTSCRIPT: Fuku-Bonsai has successfully reinvented itself. In the September 2007 Annual Meeting of Stockholders, a new Kurtistown Fuku-Bonsai Cultural Center was authorized and planning has begun!
- *** Go to REINVENTING FUKU-BONSAI!