Page 1 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

Anne M. Talcott, OSB #965325 

Email: atalcott@schwabe.com 

SCHWABE, WILLIAMSON & WYATT, P.C. 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503.222.9981 

Facsimile: 503.796.2900 

Robert C. L. Vaughan (Pro Hac Vice) 

E-mail: rvaughan@kvllaw.com 

Cherine Smith Valbrun (Pro Hac Vice) 

E-mail: cvalbrun@kvllaw.com 

Anisha Carla Atchanah (Pro Hac Vice)

Email: Aatchanah@kvllaw.com 

KIM VAUGHAN LERNER LLP 

312 SE 17th Street, Suite 300 

Fort Lauderdale, FL 33316 

Telephone: 954.527.1115 

Facsimile: 954.527.1116 

Kent D. Bressie (Pro Hac Vice) 

Email: kbressie@hwglaw.com 

HWG LLP 

1919 M Street N.W., Suite 800 

Washington, D.C. 20036 

Telephone: 202.730.1337 

Facsimile: 202.730.1303 

(Additional counsel shown on signature page) 

Attorneys for Plaintiff, Unigestion Holdings, S.A., 

a foreign corporation, d/b/a Digicel Haiti

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNIGESTION HOLDINGS, S.A., d/b/a 

DIGICEL HAITI, 

Plaintiff and Counterclaim 

Defendant, 

v. 

UPM TECHNOLOGY, INC., et al.,

Defendants and Counterclaim 

Plaintiffs.

 No. 3:15-cv-00185-SI 

PLAINTIFF UNIGESTION HOLDINGS, 

S.A.’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL 

BRIEFING IN SUPPORT OF PROPOSED 

JURY INSTRUCTIONS AND VERDICT 

FORM 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 1 of 10
Page 2 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

Plaintiff Unigestion Holdings, S.A., d/b/a Digicel Haiti (“Digicel Haiti”) submits the 

following Response in Opposition and Objections to Defendants UPM Technology, Inc.’s 

(“UPM”) and Duy “Bruce” Tran’s (“Tran”) (collectively, “Defendants”) Supplemental Briefing in 

Support of Defendants’ Jury Instruction and Verdict Form [ECF 505], and related Proposed Jury 

Instructions [ECF 473] (“Response”). This Response is supported by the record and the points and 

authorities below. 

I. Digicel Haiti Reiterates its Objections to Defendants’ Proposed Jury Instructions 

[ECF 479] 

Digicel Haiti reiterates its objection to Defendants’ modifications to the uniform 

instructions (MCJI, UCJI) and Defendants’ special instructions. Digicel Haiti requests that the 

Court adopt Digicel Haiti’s proposed jury instructions [ECF 447] and/or its alternative changes to 

Defendants’ proposed jury instructions as noted herein. Digicel Haiti specifically outlined its 

objections to Defendants’ individual instructions in Plaintiff’s Objections to Defendants’ Proposed 

Phase I Jury Instructions and Verdict Form [ECF 479] and incorporates same by reference here. 

II. Defendants’ Fourth Attempt to Reargue Reviewed and Rejected Jury 

Instructions is Improper 

This Court set the following scheduling order outlining pre-trial jury instructions and 

verdict form deadlines, which the parties worked diligently to comply with [ECF 191, 420]: 

October 4, 2022 Plaintiff’s Amended Phase I Jury Instructions [ECF 447]

October 11, 2022 

First Attempt

Defendants’ Proposed Jury Instructions [ECF 473]; 

Defendants’ Objections to Plaintiff’s Phase I Jury Instructions [ECF 470]

October 18, 2022 Plaintiff’s Objections to Defendants’ Proposed Jury Instructions [ECF 479]; 

Plaintiff’s Response to Defendants’ Objections to Plaintiff’s Phase I Jury 

Instructions [ECF 476]

October 25, 2022 

Second Attempt

Defendants’ Response to Plaintiff’s Objections to Defendants’ Proposed Jury 

Instructions [ECF 496]

On October 21, 2022, this Court circulated tentative preliminary jury instructions, tentative 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 2 of 10
Page 3 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

final jury instructions and a tentative verdict form. In receipt of the Court’s proposed tentative 

jury instructions and verdict form, and in anticipation of the final pre-trial conference scheduled 

on October 28th, on October 25th undersigned counsel submitted a letter to the Court with proposed 

comments to the neutral statement of the case and jury instructions. 

Third Attempt: Counsel for Defendants likewise prepared a response for the Court’s 

consideration and submitted same on October 27, 2022. 

The Court held a pre-trial conference on October 28, 2022, at which time it indicated that 

another iteration of the tentative jury instructions and verdict form would be circulated. On 

October 29, 2022, the Court circulated a revised set of tentative jury instructions and verdict form. 

Fourth Attempt: On Friday evening (November 11, 2022), less than one business day 

before the commencement of trial, Defendants circulated redlines to the Court’s October 29, 2022 

set of tentative jury instructions and verdict from, and a brief in support thereof. Even more 

surprising however, is that on November 10, 2022, the parties exchanged correspondence and 

conferred regarding various pre-trial matters, and at no time did Defendants indicate an intention 

to reargue jury instructions by way of further redlines and supplemental briefing. Certainly, there 

was no conferral regarding same. 

Notably, the redlines to the proposed tentative jury instructions seek to reinsert language 

that this Court already rejected in its first two iterations of the proposed tentative jury instructions. 

Without regard to the Court’s prior iterations of the tentative jury instructions, Defendants seek to 

reargue and reinsert language proposed in their initial set of jury instructions. Instructions that 

were considered and rejected, not once, but twice. By way of example, Defendants’ eleventh hour 

redlines to the Court’s tentative jury instructions, include the following language that was 

previously proposed in [ECF 473], previously before the Court for consideration and previously 

rejected by this Court: 

 Jury Instruction No. 2 – insertion of the following language that was previously 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 3 of 10
Page 4 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

submitted to the Court, reviewed and rejected: “Clear and convincing evidence is 

evidence which is free from confusion, fully intelligible, distinct, and establishes that 

the defendant intended to deceive the plaintiff.” 

 Jury Instruction No. 3 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “After weighing all the evidence, if 

you cannot decide that something is more likely true than not true, you must 

conclude that the party did not prove it.” 

 Jury Instruction No. 9 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “...and other factors affecting their 

cognitive abilities” and “Evidence concerning the character of the witness for 

truthfulness.” 

 Jury Instruction No. 16 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “...the reasonableness of any 

assumptions underlying the opinions.” 

 Jury Instruction No. 20 – replacement of the Joint and Several Liability jury 

instruction with Defendants’ previously reviewed and rejected Personal Liability 

And Corporate Director jury instruction. 

 Jury Instruction No. 21 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “A fraudulent representation must 

be both false and material,” and “[A]dditionally, a fraudulent misrepresentation of 

a material matter is one that is made by the defendant with knowledge of its falsity 

or ignorance of its truth.” Now Defendants seek to insert these previously rejected 

individual jury instructions and Defendants’ proposed jury instruction on 

Reasonable Reliance, into Jury Instruction 21, seemingly seeking to convert it into 

a catch-all jury instruction. 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 4 of 10
Page 5 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

 Jury Instruction No. 22 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “...unverifiable estimates of loss”` 

 Jury Instruction No. 23 – insertion of the following language that was previously 

submitted to the Court, reviewed and rejected: “Punitive damages should only be 

awarded if the defendant's culpability, after having paid compensatory damages, is so 

reprehensible as to warrant the imposition of further sanctions to achieve punishment 

or deterrence.” 

This constant re-argument is not proper and not in good faith. If Plaintiff were to follow 

suit, we would still be rearguing the limitation of the case and fraud claims. Plaintiff respectfully 

indicates that any failure to respond—over and over—to the consistent re-argument is not a waiver 

of any previously argued position or argument which are restated and reincorporated herein by 

reference. 

III. Defendant’s Proposed Jury Instructions and Supplemental Brief in Support 

Thereof Contains Improper Argument 

Defendants’ proposed redlines to the Court’s tentative preliminary and final jury 

instructions read like an advocate’s brief—not a neutral set of legal instructions as they are 

supposed to be. For example, Defendants’ latest redline edits and proposed instructions either 

ignore or unreasonably and prejudicially modify the model instructions. Specifically, Defendants 

seek to modify basic jury instructions like Model Jury Instruction 1.14 - Credibility of Witnesses, 

to include self-serving and unprecedented language relating to a witness’s’ “cognitive ability” in 

an attempt to pre-try their case. 

Defendants now appear to string together bits and pieces of previously rejected jury 

instructions to cobble together instructions that simply parrot Defendants’ arguments in this case. 

Many arguments that have been addressed time and again by this Court. Defendants’ instructions 

create the false impression that the Court has resolved contested issues of fact in Defendants’ favor. 

In sum, where Defendants’ proposed redlines to the jury instructions contain improper argument 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 5 of 10
Page 6 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

they should be rejected. See Venezia v. Bentley Motors, Inc., No. CV-07-1511-PHX-SMM, 2009 

WL 10673383, at *2 (D. Ariz. Apr. 2, 2009), aff'd, 374 F. App’x 765 (9th Cir. 2010) (“A district 

court may refuse the requested instructions because they are unduly argumentative.”) Defendants’ 

proposed revisions to the Court’s tentative jury instructions should be disregarded in their entirety 

in favor of instructions that more closely track the model instructions and set the appropriate tone 

for a court “neutrally” instructing a jury. Indeed, jury instructions should “direct and assist the 

jury toward an intelligent understanding of the legal and factual issues.” United States v. Seawell, 

550 F.2d 1159, 1166 (9th Cir. 1977) (Wright, J., concurring) (quotation marks omitted). 

Defendants’ proposed redline edits to the following tentative final jury instructions 

proposed by the Court on October 29, 2022, include improper and prejudicial argument and deviate 

unnecessarily from the model jury instructions on the relevant legal issues: 

 Instruction No. 16 Opinion Testimony 

Defendants’ insertion of the phrases “credibility” and “the reasonableness of the 

assumptions underlying the opinions” within the model jury instructions is an improper attempt to 

reargue the Daubert motion within the instruction. The Court has not disqualified the witnesses 

as experts and has already determined that Digicel Haiti’s experts meet the Daubert standard to 

permit their testimony in this matter. Defendants’ attempts to reargue their challenges to the 

experts’ methodologies and opinions within the jury instructions are improper and best left for 

cross examination of the expert witnesses. 

 Instruction No. 20: Joint or Separate Liability 

After the Court first rejected their suggested Officer and Director instruction, Defendants 

simply reinsert it as a part of another instruction as if it was never previously considered. Further, 

Defendants seek to cannibalize the model instructions which address multiple tortfeasors and 

create some special or bespoke standard for a joint tortfeasor who is a director and officer of a joint 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 6 of 10
Page 7 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

tortfeasor company. Defendants purport to remove the proposed instruction that instructs the jury 

that to find an officer or director liable they must find that the officer or director personally 

participated in the fraud and seeks to replace that with a tiered analysis that suggests that an action 

cannot be maintained against the Officer/Director until after the Corporation is found liable. That 

is simply incorrect. The caselaw is clear that an officer/director is personally liable for all torts 

which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent 

of the corporation and not on his own behalf.1

 Nothing in these cases suggests this tiered approach 

that Defendants seek to argue through the jury instructions and the verdict form. 

 Instruction No. 21: Plaintiff’s Claim of Fraud by Active Concealment 

Defendants’ proposed redline edits to jury instruction no. 21 improperly seeks to insert 

disputed facts into the jury instructions. For example, Defendants include the following qualifying 

language to suggest that the only allegation of fraud by active concealment is that the Defendants 

used HBS “by simulating the calling patterns of local callers to mislead Digicel-Haiti and avoid 

detection by Digicel-Haiti (and deactivation of the associated SIM cards).” That is simply untrue. 

Plaintiff has not limited the allegations of HBS activity used by UPM to the mere simulation of calling 

patterns. Defendants further argue in footnote 12 of the Supplemental Brief that there is no allegation 

that Tran, individually, used human behavior software, the claim is only that UPM implemented human 

behavior software. However, Defendants disregard the Third Amended Complaint [ECF 300] which 

alleges that human behavior software was used by the Defendants, and ignore Plaintiff’s position that 

UPM and Tran are jointly and severally liable for the fraud committed. Furthermore, Defendants 

 

1

 ECF 294 at p. 35-36 citing to Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1069 (9th 

Cir. 2016), citing Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 823 (9th Cir. 1996) 

(internal quotation marks omitted). 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 7 of 10
Page 8 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

include additional argument and proposed language that attempts to define active concealment. Not 

only is the proposed language prejudicial, the Court has already provided the elements of active 

concealment in jury instruction no. 21 and informed the jury that Plaintiff must prove each element by 

clear and convincing evidence. 

 Instruction No. 22: Compensatory Damages 

Defendants persist in their efforts to recharacterize the case. That is argument and it is 

improper. The case has been described by the Court and is “Digicel Haiti alleges that UPM used 

HBS software to try to avoid Digicel-Haiti’s efforts to detect and deactivate SIM cards being used 

by UPM. In other words, Digicel Haiti alleges that UPM used Human Behavior Simulation 

software to commit fraud by actively concealing, or hiding, UPM’s bypass and RLYH activities 

from Digicel Haiti.” (See Voir Dire and Preliminary Jury Instructions). UPM conveniently seeks 

to ignore that HBS was used to hide bypass.

UPM’s suggested edit to Instruction 22 should be rejected. 

IV. Plaintiff’s Limiting Instruction and Proposed Jury Instructions and Verdict Form 

Plaintiff does not have an objection to the Court providing reasonable limiting 

instructions to the jury. However, Plaintiff objects to Defendants’ proposed limiting instruction 

as it purports to further impermissibly narrow the use of relevant evidence and testimony 

addressed by the instruction. Certainly, the evidence and testimony of wire transfers and fake 

shipping documents is not being admitted to prove that the Defendants committed wire fraud and 

customs fraud. That is understood. However, where Defendants suggest that they did not use 

HBS to commit fraud, the testimony and evidence of their surrounding conduct is being offered 

to prove that the surrounding conduct and circumstances of the Defendants’ conduct make it 

clear that their actions were not the product of mistake, nor was it unintentional, nor was it 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 8 of 10
Page 9 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

“innocent.” UPM’s suggested interpretation of the limiting instruction is unreasonable and 

unworkable and prejudicial to Digicel Haiti’s fraud case. Additionally, UPM conveniently 

ignores the fact that the jury is entitled to consider evidence related to shipments to Haiti and 

wire transfers when determining the issue of punitive damages. 

Additionally, Plaintiff attaches hereto and submits to this Court its own proposed limiting 

instructions regarding: (1) Defendants’ reference to Digicel Haiti as a monopoly or being 

monopolistic for the purposes of establishing Defendants’ intent as to the issue of punitive 

damages, and (2) Plaintiff’s testimony regarding bypass as being illegal or prohibited in Haiti for 

the limited purposes of establishing Plaintiff’s motives and intent regarding the blocking of SIMs 

used in bypass. 

To the extent that the Court, upon request from Defendants in the latest supplemental 

briefing [ECF 505], is reconsidering jury instructions that were previously submitted, reviewed 

and either incorporated or rejected, Plaintiff also formally resubmits its Plaintiff’s Amended 

Phase I Jury Instructions [ECF 447] for reconsideration. 

CONCLUSION 

Based on the foregoing, Digicel Haiti respectfully requests that the Court reject 

Defendants’ disputed modified and special jury instructions and verdict form, and adopt Digicel 

Haiti’s proposed jury instructions and verdict form. 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 9 of 10
Page 10 - UNIGESTION’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ SUPPLEMENTAL BRIEFING ISO 

PROPOSED JURY INSTRUCTIONS & VERDICT FORM 

SCHWABE, WILLIAMSON & WYATT, P.C. 

Attorneys at Law 

1211 SW 5th Ave., Suite 1900 

Portland, OR 97204 

Telephone: 503-222-9981 

Fax: 503-796-2900 

 Dated this 13th day of November, 2022. 

Respectfully submitted, 

By: s/ Robert C.L. Vaughan 

Anne M. Talcott, OSB #965325 

Email: atalcott@schwabe.com 

Kathryn E. Kelly, OSB #175162 

Email: kkelly@schwabe.com 

Andrew J. Lee, OSB #023646 

Email: ajlee@schwabe.com 

Sarah Kobak, OSB #043495 

Email: skobak@schwabe.com 

Schwabe, Williamson & Wyatt, P.C. 

Telephone: 503.222.9981 

Facsimile: 503.796.2900 

Robert C. L. Vaughan (Pro Hac Vice) 

Email: rvaughan@kvllaw.com 

Cherine Smith Valbrun (Pro Hac Vice) 

Email: cvalbrun@kvllaw.com 

Leah B. Storie (Pro Hac Vice) 

Email: lstorie@kvllaw.com 

Anisha Carla Atchanah 

Email: Aatchanah@kvllaw.com 

KIM VAUGHAN LERNER LLP 

312 SE 17th Street, Suite 300 

Fort Lauderdale, FL 33316 

Telephone: 954.527.1115 

Facsimile: 954.527.1116 

Kent D. Bressie (Pro Hac Vice) 

E-Mail: kbressie@hwglaw.com 

HWG LLP 

1919 M Street N.W., Suite 800 

Washington, D.C. 20036 

Telephone: 202.730.1337 

Facsimile: 202.730.1303 

Attorneys for Plaintiff

 

Case 3:15-cv-00185-SI Document 510 Filed 11/13/22 Page 10 of 10