By NEIL HARTNELL
Tribune Business Editor
Peter Nygard yesterday blasted the “incessant and utterly irrelevant personal attacks” made against him by Louis Bacon and the Coalition to Protect Clifton Bay, dismissing them as lacking “any factual basis”.
The Canadian fashion mogul, in response to the latest New York court filings by his Lyford Cay neighbour and the environmental advocacy group, said his merely “being acquainted with Bahamian government officials” did not justify the subpoenas they were seeking.
The filings by Mr Nygard’s attorneys are his first public response to the numerous allegations levied against him by Mr Bacon and the Coalition, plus purported ‘whistleblower’ Stephen Feralio.
While they are not a ‘point by point’ rebuttal to every claim against him, the documents make clear Mr Nygard is denying every allegations raised by Mr Bacon and the Coalition to-date.
And they argue that his mere “acquaintance” with Bahamian politicians and law enforcement officials is no justification for Feralio’s claim that he ‘fears’ returning to the Bahamas to give evidence against Mr Nygard, or that the authorities may seize him and his video footage ‘evidence’.
Mr Nygard’s latest filings are intended to strengthen his argument for the southern New York district court not to grant the subpoenas that his ‘arch enemy’, Mr Bacon, and the Coalition are seeking.
The latter want the New York court to authorise Feralio, Mr Nygard’s former videographer, to hand over to them video footage they believe will provide evidence that can be used in seven separate actions that are currently live before the Supreme Court in the Bahamas.
In particular, Mr Bacon believes the video footage may provide evidence of who orchestrated an alleged four-year ‘smear campaign’ against him - the subject of five different defamation actions he has launched in the Bahamian courts.
And the Coalition is arguing that the videos may contain evidence of Mr Nygard’s dealings with Bahamian politicians and civil servants over plans for the development/expansion of Nygard Cay. It is challenging this via two different Judicial Review actions.
Yet Mr Nygard and his attorneys are sticking to their argument that it should be the Bahamian - not the New York - courts that decide whether Feralio and his evidence should be admitted in the seven court actions.
They are citing a ‘compensation agreement’ between Mr Bacon and Feralio, in which the latter allegedly agreed to testify or participate in any court proceedings - whether in the US or the Bahamas.
As such, Mr Nygard and his attorneys are arguing that Feralio has already agreed to ‘voluntarily’ subject himself to the jurisdiction of the Bahamian courts, rendering the New York proceedings launched by Mr Bacon and the Coalition as irrelevant.
Describing the Bacon/Coalition petition as having “insurmountable flaws”, Mr Nygard and his attorneys alleged: “On July 31, 2014, Feralio and petitioners executed an agreement by which Bacon would pay Feralio millions of dollars for Feralio to voluntarily testify or otherwise participate in any domestic or foreign proceeding involving the Nyg�rd parties.
“Petitioners’ and Feralio’s claim that he is too fearful to travel to the Bahamas is belied by, among other things, that as of July 31, the only proceedings involving the Nyg�rd parties were in the Bahamas, and Feralio agreed to appear there notwithstanding that he already supposedly feared ‘for his personal safety and security’.
“As Feralio is a voluntary witness, who has agreed to appear in the Bahamas, petitioners can obtain the discovery in the Bahamas.”
Then, while not directly tackling any of the allegations made against Mr Nygard, his legal filings described them all as “lacking any factual basis whatsoever” and being irrelevant to the case in hand.
They decided not to address the claims due to “respect for the court, and due to space constraints”, even though, Feralio, for example, has alleged that the Canadian fashion mogul intervened with Customs over his seized equipment, despite there being no valid work permit or tax paid.
Mr Nygard’s legal filings alleged: “Faced with legal burdens they cannot meet, petitioners again resort to lashing out at Mr Nyg�rd with unsubstantiated allegations of purported misconduct that have nothing to do with this proceeding.
“Petitioners’ new allegations of Mr Nyg�rd allegedly yelling at an employee and being acquainted with Bahamian government officials still cannot justify granting relief to which petitioners clearly are not entitled.”
Mr Nygard and his attorneys suggested that Feralio’s reluctance to travel to the Bahamas to testify, and that of Bacon/the Coalition to make him do so, might change if the New York court denied their subpoena application.
“Moreover, Feralio’s latest allegations, that Mr Nyg�rd allegedly yelled at an employee and is an acquaintance of members of the Bahamian government, are not supported, and do not, in any event, explain why Feralio cannot travel safely to the Bahamas,” they claimed.
“There is no precedent for granting a Section 1782 application where, as here, the witness is volunteering to participate in the underlying foreign proceeding.
“Petitioners’ contention that Feralio is too fearful to honour his obligation to participate in the Bahamian Actions is belied by the Compensation Agreement’s very terms. The court should disregard Feralio’s spurious claims.”
Mr Nygard and his attorneys also alleged that Bacon/the Coalition were seeking to use Feralio’s video footage, if they obtained it, in court proceedings beyond the existing Bahamian actions.