The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Peter Nygard has accused his arch enemy, Louis Bacon, of performing an “end-run around” the Bahamian judicial system by attempting to access more than 1,000 hours of allegedly incriminating video footage via the New York courts.

Mr Nygard, in a batch of documents filed in the southern New York district court, is asserting that the admissibility of alleged testimony and evidence gathered by purported ‘whistleblower’, Stephen Feralio, would be best determined by the Bahamian Supreme Court.

His argument is grounded in the fact that the video ‘evidence’ being sought by Mr Bacon and the Save the Bays/Coalition to Protect Clifton environmental advocacy group is related to seven separate actions that are all before the Bahamian courts.

The Canadian fashion mogul’s Friday filings with the New York courts set out his arguments for refusing the subpoenas sought by Mr Bacon and the Coalition, centred on the allegation that Feralio stole materials that belonged to him and his companies.

Other developments, in a legal battle that is now picking up pace, include the following:

• A September 19, 2014, affidavit from Mr Nygard’s Bahamian attorney, Thomas Evans QC, suggests that government ministers and public officials may assert “claims of privilege or public interest immunity” in relation to Feralio and his purported ‘evidence’.

• For US Justice Denise Cote, in a September 11, 2014, hearing in the New York courts, hinted that she was leaning towards granting the subpoena that would allow Mr Bacon and Save the Bays to obtain Feralio’s video footage and testimony.

However, she has yet to give a final ruling, and wants a “further briefing on several issues” before ordering Feralio to comply. These relate to matters such as confidentiality rights and copyright.

• And Mr Bacon is not the only party accused of performing a judicial “end-run around”. For he is levying similar charges against Mr Nygard, in relation to the latter’s September 17 action filed in the Los Angeles Superior Court.

Mr Bacon’s attorneys, in a letter to Judge Cote, said the Los Angeles judge, Joanne O’Donnell, had denied Mr Nygard’s request for a temporary restraining order (TRO) to block Feralio from disclosing the alleged footage.

Mr Bacon and his attorneys claimed this was “forum shopping at its worst”. This, though, was denied by Mr Nygard’s attorneys, who said they had been seeking a “status quo injunction” to prevent Feralio from “further breaching” his non-disclosure obligations to their client’s companies.

Back in New York, which is the current ‘hot spot’ for the ongoing Nygard versus Bacon/Coalition battle, the Canadian fashion mogul’s attorneys argued that the opposite side should obtain permission to access Feralio’s alleged ‘evidence’ through the Bahamian - not the US - courts.

“The application constitutes an attempted end-run around to at least some of the Bahamian actions,” Mr Nygard and his companies alleged. They added that the Canadian was not named as a party in any of the five defamation actions initiated by Mr Bacon in the Bahamas.

As for the two Judicial Review actions, challenging the statutory processes and permits issued for construction work and development at Nygard Cay, the Canadian and his companies argued: “The court should reject petitioners’ effort to ‘end-run around’ the Judicial Review proceedings.

“Mr Nygård is a party to one of the Judicial Review proceedings, so petitioners should seek the misappropriated materials through an application to the Bahamian court there.

“Thus, at minimum, requests for documents related to the Judicial Review actions are improperly part of the application.”

Mr Nygard and his attorneys further alleged that the co-operation agreement between Feralio and Mr Bacon’s property management company showed that the videographer had “expressly agreed to participate in the Bahamian actions where Mr Nygard is a party”.

Arguing that this made the New York action “unnecessary and superfluous”, Mr Nygard and his companies alleged: “Just like they paid Feralio – a California resident – to travel to New York, petitioners have agreed to pay for Feralio to travel to the Bahamas with the misappropriated materials or for a deposition, and Feralio has agreed to comply.

“As Feralio has voluntarily agreed to submit to the jurisdiction of the Bahamian courts, petitioners have no need for Section 1782 relief.”

They were quick, though, to add: “Of course, the misappropriated materials do not belong to Feralio and are instead the property of the Nygård Parties.

“Mr Nygård’s availability in the Bahamas also weighs against the application. Mr Nygård is a party to the Judicial Review proceeding. Therefore, Mr Nygård is the proper party and the Bahamas Supreme Court (where the Judicial Review Proceedings are pending) is the proper court from which petitioners should seek discovery from him.”

This analysis was backed by Mr Evans, who alleged: “It is my understanding that petitioners have entered into an agreement with Feralio where he agreed to appear in any domestic (within the United States) or foreign (outside of the United States) judicial proceedings related to or concerning the Nygard parties.

“Such agreement avails Feralio to the jurisdiction of the Bahamas Supreme Court, and enables the court to supervise the production by Feralio of documentary and deposition evidence.

“In other words, the agreement allows petitioners to seek discovery from Feralio directly in the Bahamas Supreme Court.”

Mr Evans alleged that Mr Nygard would be “prejudiced” by Feralio not submitting himself to the Bahamian Supreme Court for discovery purposes, alleging: “Indeed, Nygard has by Articles 21 and 23 of the constitution, constitutional rights to privacy and confidentiality in his correspondence.

“Further, to the extent that there are government respondents, there may be claims of privilege or public interest immunity that can be raised in respect to certain recordings and/or documents that Feralio claims are in his possession.

“Both sets of rights the Bahamas Supreme Court would be astute to protect (and would be in the best position to do so).”

Elsewhere, Mr Nygard’s attorneys accused the Bacon/Save the Bays application of being “an impermissible fishing expedition” designed merely to harass their client, and claimed it was “unduly intrusive”.

“Petitioners also make the specious claim that the presence of a Bahamian minister of labour at Mr. Nygård’s property must mean that Mr Nygård somehow manipulated government officials,” Mr Nygard and his attorneys countered.

“Yet petitioners can draw no connection between this supposed video footage and the claims they have brought in the Bahamas.

“Petitioners are seeking thousands of hours of personal data in hopes of uncovering some irrelevant tidbit that petitioners can feed to the tabloids, as they have at every turn of this proceeding.

“The application is rife with inappropriate yet wholly irrelevant attacks on Mr Nygård and his character. Indeed, petitioners dedicate an entire section in their memorandum and pages upon pages in the Afia declaration to enumerate a voluminous array of scandalous allegations that bear zero relevance to the Bahamian actions or the application.

“These and other attacks reveal the true basis for the application – to tarnish Mr Nygård’s integrity in the United States.”

Meanwhile, over in Los Angeles, Mr Nygard’s September 17 action disclosed that Feralio “recorded thousands of hours of footage” of Mr Nygard’s professional and personal events/meetings.

The lawsuit disclosed that the meetings, which took place in “several different countries”, featured discussions concerning Mr Nygard’s biotech and stem cell research interests; his personal medical procedures; personal social events; and plans for new Nygard stores.

It also alleged that, on February 21, 2014, Feralio had e-mailed Mr Nygard alleging that he was “being followed” and feared for his safety. “Specifically, Feralio stated his belief that he was being followed by individuals working for Bacon,” Mr Nygard and his attorneys alleged.

“These e-mails tell a very different story from what Feralio has recently states in papers to a New York federal court, where he claims to fear retribution by Nygard.”

The Los Angeles lawsuit also reiterated previous allegations made against Mr Bacon by Mr Nygard, namely that the former’s Lyford Cay neighbour wanted to drive him from his Nygard Cay home and seize the property for himself. The claim that Save the Bays/the Coalition to Protect Clifton was merely a ‘front’ for this objective was also regurgitated.

In response, Mr Bacon and his attorneys alleged that the Los Angeles action was “a tactical manoevere designed to interfere” with the New York action. “This application is forum shopping at its worst..... This application is a transparent ploy to scuttle an ongoing federal court proceeding,” they claimed.

“Within hours of the filing of the [New York] action, Mr Nygard frantically directed two of his proxies to contact Mr Feralio in an effort to persuade him not to co-operate with the discovery and to ‘turn on Bacon’.”

Mr Bacon and his attorneys then indicated that Judge Cote was leaning in their favour in New York, having stated during the September 11, 2014, hearing that she felt the ‘statutory requirments’ had been met by the subpeona application.

She also allegedly indicated that “the discretionary factors weigh in favour of granting the subpeona”, but wanted further briefing by the respective attorneys on the confidentiality and copyright issues.