Unigestion Holding, S.A. v. UPM Technology, Inc. et al

Filing 585

ORDER - The Court DENIES Digicel Haiti's motion for reconsideration, ECF 570 . The Court also DENIES Defendants' motion for reconsideration, ECF 576 . Finally, the Court DENIES Mr. Tran's renewed motion for judgment as a matter of law and his alternative motion for a new trial, ECF 577 . Signed on 3/10/2025 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A., a foreign
corporation, d/b/a DIGICEL HAITI,

Case No. 3:15-cv-185-SI
ORDER

Plaintiff and
Counter-Claim Defendant,
v.
UPM TECHNOLOGY, INC., et al.,
Defendants and
Counter-Claim Plaintiffs.

Michael H. Simon, District Judge.
After a five-day trial, the jury returned a verdict in the amount of $5.4 million in total
compensatory damages and $4.3 million in total punitive damages in favor of Plaintiff
Unigestion Holding, S.A., doing business as Digicel Haiti, Inc. (“Digicel Haiti”), and against
Defendants UPM Technology, Inc. (“UPM”) and its founder and Chief Executive Officer, Duy
“Bruce” Tran (“Mr. Tran”). The jury found that both UPM and Mr. Tran (collectively,
“Defendants”) had engaged in fraud by active concealment by using Human Behavior
Simulation (“HBS”) software to conceal the fact that they were placing international phone calls
on Digicel Haiti’s communications network in Haiti without paying Digicel Haiti’s rate for

PAGE 1 – ORDER

international calls. The jury determined that UPM was solely responsible for 75 percent of
Digicel Haiti’s actual damages and Mr. Tran was solely responsible for 25 percent of Digicel
Haiti’s actual damages. The jury also awarded punitive damages against UPM in the amount of
$3.6 million and against Mr. Tran in the amount of $700,000. The Court received the jury’s
verdict and discharged the jury but deferred entering judgment.
UPM filed a renewed motion for judgment as a matter of law and alternative motion for a
new trial. The Court heard oral argument, during which Mr. Tran orally joined UPM’s motion
and alternative motion without objection by Digicel Haiti and reserved the right to file a future
motion on any grounds that are not repetitive of UPM’s arguments. The Court granted in part
and denied in part Defendants’ renewed motion for judgment as a matter of law. The Court
reduced Digicel Haiti’s total compensatory damages to $1.8 million because the evidence did not
support the jury’s finding of $3.6 million in damages for lost profits. The Court also reduced the
punitive damage award against UPM from $3.6 million to $1.2 million and decreased the
punitive damage award against Mr. Tran from $700,000 to $233,333.33. The Court denied the
alternative motion for a new trial. The parties are familiar with the background of this case, and a
thorough discussion can be found at Unigestion Holding, S.A. v. UPM Tech., Inc., 2025
WL 33165, at *1-2 (D. Or. Jan. 6, 2025).
Now before the Court are Digicel Haiti’s motion for reconsideration of the Court’s
Opinion and Order granting in part Defendants’ motion for judgment as a matter of law,
ECF 570, Defendants’ motion for reconsideration of the same Opinion and Order, ECF 576, and
Mr. Tran’s renewed motion for judgment as a matter of law and alternative motion for a new
trial, ECF 577. For the reasons explained below, the Court denies all three motions.

PAGE 2 – ORDER

STANDARDS
A. Reconsideration
Rule 54(b) of the Federal Rules of Civil Procedure provides that any order “may be
revised at any time before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.” Fed. R. Civ. P. 54(b). The rule, however, does not address the standards
that a district court should apply when reconsidering interlocutory orders, and the Ninth Circuit
has not established a standard of review. “Rule 54(b) is not a mechanism to get a ‘do over’ to try
different arguments or present additional evidence when the first attempt failed. Thus, while the
limits governing reconsideration of final judgments under Rule 59(e) do not strictly apply, courts
frequently invoke them as common-sense guideposts when parties seek reconsideration of an
interlocutory ruling under Rule 54(b).” Stephen S. Gensler & Lumen N. Mulligan, 2 Fed. R. of
Civ. P., Rules and Commentary, Rule 54 (2022).
When reconsidering an interlocutory order, district courts in the Ninth Circuit have
stated:
Motions to reconsider under Rule 54(b), while generally
disfavored, may be granted if: (1) there are material differences in
fact or law from that presented to the court and, at the time of the
court’s decision, the party moving for reconsideration could not
have known the factual or legal differences through reasonable
diligence; (2) there are new material facts that happened after the
Court’s decision; (3) there has been a change in law that was
decided or enacted after the court’s decision; or (4) the movant
makes a convincing showing that the court failed to consider
material facts that were presented to the court before the court’s
decision.
In re Galena Biopharma, Inc. Derivative Litig., 2014 WL 5494890 (D. Or. Oct. 30, 2014)
(quoting Lyden v. Nike, Inc., 2014 WL 4631206, at *1 (D. Or. Sept. 15, 2014)); see also
Stockamp & Assocs. v. Accretive Health, 2005 WL 425456, at *6-7 (D. Or. Feb. 18, 2005)
(discussing the four factors as established in the local rules of the Central District of California
PAGE 3 – ORDER

and applied by other district courts within the Ninth Circuit); cf. U.S. Tobacco Coop. Inc. v. Big
S. Wholesale of Va., LLC, 899 F.3d 236, 257 (4th Cir. 2018) (noting that courts have more
discretion in evaluating reconsideration under Rule 54(b) and concluding that “a court may
revise an interlocutory order under the same circumstances in which it may depart from the law
of the case: (1) a subsequent trial producing substantially different evidence; (2) a change in
applicable law; or (3) clear error causing manifest injustice” (quotation marks omitted)).
However, “[w]hile a motion for reconsideration allows a party to bring a material oversight to
the court’s attention, it is not appropriate for a party to request reconsideration merely to force
the court to think about an issue again in the hope that it will come out the other way the second
time.” Brown v. S. Nev. Adult Mental Health Servs., 2014 WL 2807688, at *2 (D. Nev. June 20,
2014) (cleaned up).
B. Judgment as a Matter of Law
Under Rule 50(b) of the Federal Rules of Civil Procedure, judgment as a matter of law is
proper if “the evidence permits only one reasonable conclusion, and that conclusion is contrary
to the jury’s verdict.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)
(quotation marks omitted); see also Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th
Cir. 2014) (explaining that a motion for judgment as a matter of law must be granted if “the
evidence and its inferences cannot reasonably support a judgment in favor of the opposing party”
(quotation marks omitted)). Because a motion under Rule 50(b) is a renewed motion, “a party
cannot properly ‘raise arguments in its post-trial motion for judgment as a matter of law . . . that
it did not first raise in its pre-verdict Rule 50(a) motion.’” Go Daddy, 581 F.3d at 961 (quoting
Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003)).
A court reviews properly raised arguments challenging the factual sufficiency of a jury’s
verdict for substantial evidence. That means that “the jury’s verdict must be upheld if there is
PAGE 4 – ORDER

‘evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary
conclusion.’” Id. at 963 (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)); see also
Weaving, 763 F.3d at 1111 (noting that substantial evidence is “such relevant evidence as
reasonable minds might accept as adequate to support a conclusion[,] even if it is possible to
draw two inconsistent conclusions from the evidence” (quotation marks omitted)).
In evaluating a motion for judgment as a matter of law, the Court views the evidence in
the light most favorable to the non-moving party and draws all reasonable inferences in that
party’s favor. Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th
Cir. 2014). Further, the Court may not make credibility determinations, weigh the evidence, or
“substitute its view of the evidence for that of the jury.” Krechman v. County of Riverside, 723
F.3d 1104, 1110 (9th Cir. 2013) (cleaned up).
C. New Trial
Under Rule 59(a) of the Federal Rules of Civil Procedure, a district court may “on
motion, grant a new trial on all or some of the issues—and to any party . . . after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A). “Rule 59 does not specify the grounds on which a motion for new
trial may be granted.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation
marks omitted). “Rather, the court is ‘bound by those grounds that have been historically
recognized.’” Id. (quoting Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th
Cir. 2003)). “Historically recognized grounds include, but are not limited to, claims ‘that the
verdict is against the weight of the evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving.’” Id. (quoting Montgomery Ward & Co. v.
Duncan, 311 U.S. 243, 251 (1940)); see also Shimko v. Guenther, 505 F.3d 987, 993 (9th
Cir. 2007).
PAGE 5 – ORDER

Unlike a motion (or renewed motion) for judgment as a matter of law under Rule 50,
when considering a motion for new trial under Rule 59 the Court is not limited to viewing the
evidence in the light most favorable to the nonmoving party. Experience Hendrix, 762 F.3d
at 842. Rather, the Court “can weigh the evidence and assess the credibility of the witnesses.” Id.
“The district court also is not limited to the grounds a party asserts to justify a new trial but may
sua sponte raise its own concerns about the damages verdict.” Id. Although a district court may
view the evidence differently than the jury, it may not substitute its “evaluations for those of the
jurors.” Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003); see
also Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001)
(“[A] district court may not grant a new trial simply because it would have arrived at a different
verdict.”); France Telecom S.A. v. Marvell Semiconductor Inc., 2015 WL 925892, at *1 (N.D.
Cal. Mar. 2, 2015) (noting that a judge should not grant a new trial unless “left with the definite
and firm conviction that a mistake has been committed” (quoting Landes Constr. Co. v. Royal
Bank of Can., 833 F.2d 1365, 1371-72 (9th Cir. 1987))).
A “trial court may grant a new trial only if the verdict is contrary to the clear weight of
the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.”
Molski, 481 F.3d at 729 (quoting Passantino v. Johnson & Johnson Consumer Prods., 212
F.3d 493, 510 n.15 (9th Cir. 2000)). In determining the clear weight of the evidence, “the district
court has the duty to weigh the evidence as the court saw it, and to set aside the verdict of the
jury, even though supported by substantial evidence, where, in the court’s conscientious opinion,
the verdict is contrary to the clear weight of the evidence.’” Id. (cleaned up).

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DISCUSSION
A. Motions for Reconsideration
Digicel Haiti seeks reconsideration of the Court’s reduction in punitive damages.
Defendants also seek reconsideration of the Court’s reduction in punitive damages, requesting
the Court to either vacate all punitive damages or order a new trial solely on the issue of punitive
damages. Defendants further move for reconsideration of the Court’s finding that Defendants
waived both their implied-in-fact contract argument and their argument that mitigation costs
cannot be the only basis for actual damages. All parties argue that reconsideration is warranted
because the Court failed to consider certain facts or law and there is clear error.
1. Punitive Damages
Digicel Haiti does not cite any authority holding that a court may not reduce punitive
damages in connection with a reduction in compensatory damages. Instead, Digicel Haiti argues
that a reduction in compensatory damages does not require a corresponding reduction in punitive
damages and the jury’s punitive damages award is consistent with due process, such that the
Court should not disturb the jury’s findings. See, e.g., McGee v. Tucoemas Fed. Credit
Union, 153 Cal. App. 4th 1351, 1362 (2007); Betts v. Allstate Ins. Co., 154 Cal. App. 3d 688,
712 (1984); Hamlin v. Hampton Lumber Mills, Inc., 349 Or. 526, 533 (2011). None of these state
court decisions, however, support Digicel Haiti’s argument for reconsideration. Instead, the cases
merely upheld a trial court’s decision not to reduce punitive damages.
Defendants argue that the Court should vacate the entire award of punitive damages.
Defendants contend that the jury would not have awarded the same punitive damages absent the
award of compensatory damages for lost profits. By decreasing the punitive damages,
Defendants assert, the Court has encroached upon a role that is the “peculiar function of the
jury.” Pac. Mut. Life Ins. v. Haslip, 499 U.S. 1, 16 (1991) (quotation marks omitted). In support,
PAGE 7 – ORDER

Defendants cite decisions from outside the Ninth Circuit in which courts vacated punitive
damage awards when the compensatory damage awards were premised on insufficient evidence.
Defendants focus on Schwigel v. Kohlmann, a Wisconsin Court of Appeals case, in which
the trial court overturned the majority of the compensatory damage award and then held that the
punitive award similarly could not stand. 254 Wis. 2d 830, 841 (Wis. Ct. App. 2002). The court
vacated $250,000 of the jury’s $262,000 compensatory award and vacated the entire $300,000
punitive damages award, explaining that “[t]he jury did not award $300,000 in punitive damages
based on a $12,000 compensatory damage award. Instead, the jury awarded $300,000 in punitive
damages based upon a $262,000 compensatory damage award.” Id. at 841-42 (emphasis in
original). “To surmise that the jury would have made the same punitive damage award based
upon a $12,000 compensatory damage award is rank speculation.” Id. at 842. The court thus
reversed the entire punitive damage award and remanded for a new trial. Defendants here note
that the jury’s punitive damage award against UPM was equal to the lost-profits award against
Defendants, which they say supports their argument that the entire award cannot stand. But this
argument ignores that only 75 percent of the lost-profits award ($2.7 million) was allocated to
UPM.
Neither party meets the required showing that the Court has overlooked material facts or
law or that there has been clear error. There is no binding authority that requires the Court either
to maintain or to vacate entirely the jury’s punitive damage award. The Court’s reduction in
punitive damages is not speculative, given the relationship between the amount of the punitive
damages awarded and the compensatory damages found by the jury. The Court thus denies both
motions for reconsideration regarding punitive damages.

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2. Waiver
Defendants also move for reconsideration of the Court’s finding that Defendants waived
certain arguments by failing to raise them in their Rule 50(a) motions. Defendants argue that
Digicel Haiti did not argue waiver, and thus the Court should not sua sponte have made such a
finding. See OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008, 1016 (9th
Cir. 2018) (“[I]f a party fails to object to a Rule 50(b) motion on the basis of waiver, then the
party waives its waiver defense.”). Defendants cite a Ninth Circuit case stating that if a party
“does not object to an improperly filed Rule 50(b) motion . . . before the trial court, then the
procedural flaw in the Rule 50(b) motion is waived and we will review the district court’s denial
of such a Rule 50(b) motion de novo.” Graves v. City of Coeur D’Alene, 339 F.3d 828, 838-39
(9th Cir. 2003) (emphasis added), abrogated on other grounds by OTR Wheel Eng’g, Inc., 897
F.3d 1008. This case, however, does not preclude a trial court from making waiver findings sua
sponte. It merely holds that an appellate court might not consider waiver if waiver was not raised
before the district court.
Defendants further note that district courts within the Ninth Circuit have proceeded to the
merits of a party’s Rule 50(b) motion when the nonmovant waives the waiver defense. See, e.g.,
Jones v. Nat’l R.R. Passenger Corp., 2023 WL 3852696, at *3 n.4 (N.D. Cal. June 5, 2023);
Adams v. Roberts, 2021 WL 3545315, at *6 n.7 (D. Mont. Aug. 11, 2021). But these cases do not
mandate that a court cannot find waiver sua sponte.
As Digicel Haiti also notes, the Court ruled on the merits of Defendants’ reliance
argument and the materiality and injury arguments based on the existence of an implied-in-fact
contract in ruling on Defendants’ motion for new trial. ECF 566. The Court held that the weight
of the evidence shows that Digicel Haiti reasonably relied on UPM’s representations, and that
Defendants had not raised the issue of an implied-in-fact contract during trial, such that there was
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no possibility that a reasonable jury would find that UPM’s misrepresentations were not material
or that Digicel Haiti did not suffer an injury based on an implied-in-fact contract.
Defendants also argue that they properly preserved the arguments that Digicel Haiti
suffered no injury because it was fulfilling its legal obligations under an implied-in-fact contract
and that mitigation damages cannot stand on their own. Defendants cite the Ninth Circuit’s
guidance that Rule 50(b) is not a “harsh” rule and is given “a liberal interpretation.” Go
Daddy, 581 F.3d at 961; see also Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d
276, 286-87 (2d Cir. 1998) (holding that “the JMOL motion must at least identify the specific
element that the defendant contends is insufficiently supported” and “provide the opposing party
with the requisite notice”). Accordingly, Defendants contend, their Rule 50(a) argument that
there was “an insufficient showing to go to the jury that [Digicel Haiti has] suffered any harm at
all under any theory” preserves their argument that Digicel Haiti suffered no legal injury.
ECF 537 at 121 (Tr. at 1061:8-9). Similarly, Defendants assert that their argument that Digicel
Haiti “failed to provide the jury with evidence from which one could discern the existence of any
amount of damages,” id. (Tr. at 1061:10-12), and their supplemental Rule 50(a) briefing, in
which they argued that Digicel Haiti must present evidence that its mitigation costs arose directly
from Defendants’ alleged fraud, ECF 516 at 10, preserve their argument that mitigation damages
cannot stand on their own. Digicel Haiti responds that Defendants’ Rule 50(a) motion did not
“specify the judgment sought and the law and facts that entitle the movant to the judgment,” as
required by Rule 50(a), and was merely a “general denial that Digicel Haiti has met its burden of
establishing harm and damages.”
Defendants’ Rule 50(a) arguments were not sufficiently like their Rule 50(b) arguments.
Arguing that there was an insufficient showing of harm under any theory does not encompass the

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implied-in-fact contract argument, especially because, as noted above, Defendants did not
present any evidence of or arguments about an implied-in-fact contract to the jury. Likewise, a
broad statement that Digicel Haiti did not provide any evidence of damages is not sufficiently
related to the argument that mitigation damages cannot stand alone.
Further, even if Defendants had not waived these arguments, the Court already
considered their merits. The Court held that Defendants did not present evidence of an impliedin-fact contract and held that Digicel Haiti had proven sufficient mitigation costs caused by
Defendants’ fraud. The Court thus denies Defendants’ motion for reconsideration.1
B. Motion for Judgment as a Matter of Law
Mr. Tran moves for judgment as a matter of law, arguing that Digicel Haiti failed to
prove that Mr. Tran participated in any fraudulent conduct and that Digicel Haiti is entitled to
punitive damages against Mr. Tran. The Court addresses these arguments in turn.
1. Mr. Tran’s Participation
Mr. Tran argues that Digicel Haiti did not provide clear and convincing evidence that
Mr. Tran participated in any fraudulent conduct, and that the jury’s apportionment of 25 percent
of liability to Mr. Tran is arbitrary and should be vacated. Digicel Haiti responds that it presented
clear and convincing evidence that Mr. Tran both had actual knowledge of the fraud and
personally participated in the fraud, as required to hold him liable.
The Court instructed the jury:
To hold an officer of a corporation liable for fraudulent conduct
committed by the corporation, a plaintiff must first establish by
clear and convincing evidence that the corporation is liable for
Defendants also argue that the Court’s modification of the jury’s special verdict
presents a material difference in fact or law that requires the Court to reconsider its finding on
whether Defendants’ motion as to out-of-pocket damages was waived. Because the Court finds
that its decision on waiver did not affect its conclusion, the Court rejects this argument.
1

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fraud. If that is your finding, the plaintiff must then prove, also by
clear and convincing evidence, that the officer either personally
participated in the fraudulent conduct or had knowledge of the
fraudulent conduct being committed and did not stop it from
occurring.
ECF 521, Final Jury Instr. No. 17. This instruction is consistent with Oregon law. See
McFarland v. Carlsbad Hot Springs Sanitarium Co., 68 Or. 530, 539 (1913) (“[I]n order to
maintain an action for deceit against an officer or agent of a corporation, it is necessary to allege
and prove that such officer or agent in some manner participated in the fraudulent
representations.”); Osborne v. Hay, 284 Or. 133, 145-46 (“[I]]n order to hold the officer of a
corporation personally liable for fraud by an agent or employee of the corporation it is necessary
to show that the officer had knowledge of the fraud, either actual or imputed, or that he
personally participated in the fraud.”); Hoff v. Peninsula Drainage Dist. No. 2, 172 Or. 630, 643
(1943) (“Directors who do not participate in or authorize the making of fraudulent
representations are not chargeable with fraud.”).
At trial, Mr. Tran presented evidence that he was responsible merely for “creating the
company’s vision and overall direction,” providing “general guidance” to “key employees,” and
making certain “key decisions.” ECF 534 at 240-41 (Tr. 382:14-383:2); see also id. (Tr. 382:23383:2) (Mr. Tran was not involved with “the minutiae on the day-to-day levels for everybody”);
id. at 240 (Tr. 382:10-13) (Mr. Tran does not “manage everybody,” as “there are layers”);
ECF 535 at 239 (Tr. 652:19-23) (SIM managers were responsible for “manag[ing] the
assignment of calls to SIMs” with respect to calls to Haiti).
The jury, however, also heard evidence from Digicel Haiti that Mr. Tran was involved in
communications regarding UPM’s use of HBS software, the installation of gateways in Haiti,
and efforts to conceal bypass-related equipment shipments. See Trial Ex. 193 (Mr. Tran copied
on emails about “implement[ing] this human behavior simulation scenarios”); ECF 534 at 224PAGE 12 – ORDER

27 (Tr. 366:13-369:4); Trial Ex. 217 (Mr. Tran emailing a project manager about gateways in
Haiti); Trial Ex. 8 (email from UPM’s former Network Operations Center Project Manager
requesting Mr. Tran’s approval for shipping procedures designed to conceal gateway devices).
In addition to Mr. Tran’s receipt of communications regarding HBS, Mr. Tran emailed
his friend Mark Baker, stating: “We tried our protection technology in Haiti and it seems to
work. My model is soon to license my technology to other companies like UPM who is doing
bypass.” Trial Ex. 48. The Court asked Mr. Tran what the term “protection technology” meant in
his email, ECF 536 at 123 (Tr. 808:12-13), and Mr. Tran responded, “So a protection—it
protects SIMs, of course. It doesn’t exist. But what it would do is try to keep the SIMs alive
longer. That’s what it would mean.” Id. (Tr. 808:20-22).
Mr. Tran argues that the email merely shows that UPM tested non-HBS technology in
Haiti. He explained that he sent this email because, “You test a few things, and it seems to work.
Then once you use it, it doesn’t work. Then you stop it. At that time I had high hope that it
actually could work. That’s why I’m saying, ‘it seems to work.’ I’m not saying it is working.” Id.
at 126 (Tr. 811:7-11). He also testified that “the statement that [the] technology ‘seems to work’
[was] made in the context” of his attempt to sell gateways to Mr. Baker. Id. at 127 (Tr. 812:6-8).
Finally, Mr. Tran testified that the protection technology was “whitelist based call
screening,” id. at 126 (Tr. 811:3-20), in which calls are accepted or rejected based on if the
number is on a known list, not HBS technology. Digicel Haiti’s expert, Kenneth McEwen,
conceded that whitelist screening without call scoring, where a phone number is assigned a score
based on how it is used, is not HBS, but that scoring is a form of HBS. Id. at 183-84, 185-86
(Tr. 868:24-869:20, 870:11-871:5). Mr. Tran argues that Mr. McEwen’s opinion on scoring is

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conclusory and must be rejected.2 Mr. McEwen, however, explained that HBS is used to affect
characteristics of a call that then determine the score, id. at 183-84, 185-86 (Tr. 868:24-869:20,
870:11-871:5), and thus his opinion is proper.
Mr. Tran testified that the protection technology was to prevent SIM cards being used in
bypass from being deactivated. ECF 536 at 129-130 (Tr. 814:20-21). A reasonable conclusion
was that the referenced protection technology was the HBS technology that disguised bypass.
There may be several interpretations of this email, but it is sufficient to support the jury’s finding
that Mr. Tran was personally involved in the use of HBS. Digicel Haiti also argues that Mr. Tran
was impeached to argue that it was reasonable for the jury to decide that Mr. Tran was not
credible. See, e.g., ECF 535 at 76-81 (Tr. 489:6-494:18) (Mr. Tran first claiming that “in the
deposition it was misunderstood” and that what he said was “[he] could have 20 gateways if [he]
really wanted to,” but then admitting to having at least 1 gateway in his Oregon residence). This
further supports that a reasonable jury could find that Mr. Tran personally participated in the use
of HBS and was responsible for 25 percent of Digicel Haiti’s damages. The Court thus denies
Mr. Tran’s motion for judgment as a matter of law on this ground.
2. Punitive Damages
Mr. Tran also argues that Digicel Haiti failed to prove that it is entitled to punitive
damages against Mr. Tran because (1) Digicel Haiti did not prove that Mr. Tran engaged in
intentional conduct; (2) there is no nexus between Mr. Tran’s conduct and Oregon; (3) Mr. Tran

2

Although Defendants did not object to this testimony at trial, they moved in limine
pretrial to exclude Mr. McEwen’s testimony. The Court denied this motion in part, holding that
Mr. McEwen could testify to the basics of how bypass works. Mr. Tran thus has not waived this
argument. See Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (“[W]here the substance of the
objection has been thoroughly explored during the hearing on the motion in limine, and the trial
court’s ruling permitting introduction of evidence was explicit and definitive, no further action is
required to preserve for appeal the issue of admissibility of that evidence.”).

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lacks the requisite reprehensibility necessary to award punitive damages; and (4) as detailed in
Defendants’ motion for reconsideration, the punitive damages award must be dismissed in its
entirety because the Court eliminated all lost-profits damages. Digicel Haiti responds that these
arguments have already been addressed in Defendants’ previous motion for judgment as a matter
of law and all fail on the merits. The Court agrees that the argument regarding the nexus to
Oregon has already been addressed3 and denies the motion on that ground, and addresses
Mr. Tran’s remaining arguments in turn.
a. Intentional Conduct
Mr. Tran cites the jury instructions provided by the Court, which state, “You may award
punitive damages against a defendant if the plaintiff shows by clear and convincing evidence that
a defendant acted with malice. In this context, ‘malice’ means intentionally doing an injurious or
wrongful act without justification or excuse.” ECF 521, Final Jury Instr. No. 20. Mr. Tran argues
that Digicel Haiti presented no evidence of his intentional conduct, and thus punitive damages
are not supported. But, as discussed above, Digicel Haiti presented sufficient evidence for a
reasonable jury to find that Mr. Tran acted intentionally in the use of HBS. See, e.g., Trial
Ex. 48. The Court thus denies Mr. Tran’s motion on this ground.
b. Reprehensibility
Mr. Tran argues that punitive damages are improper because he did not act reprehensibly.
He contends that punitive damages “are reserved for conduct that violates fundamental societal

3

Mr. Tran requests that if the Court considers its earlier Opinion and Order controlling,
the Court should treat this portion of his motion as a motion for partial reconsideration based on
Ninth Circuit caselaw holding that a jury may not punish a defendant for out-of-state conduct.
White v. Ford Motor Co., 312 F.3d 998, 1020 (9th Cir. 2002). The harm-producing activity here
occurred in Oregon and was launched from Oregon; thus, punitive damages are consistent with
White.

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norms, not ordinary business competition.” Digicel Haiti responds that the Court previously
found that there was sufficient evidence to support that UPM intentionally engaged in fraud.
Digicel Haiti argues that this finding applies to Mr. Tran as well, and that fraud is inherently
reprehensible. Badger v. Paulson Inv. Co., 311 Or. 14, 30 (1991). As discussed, Digicel Haiti
presented sufficient evidence at trial to establish that Mr. Tran acted reprehensibly: its evidence
showed that Mr. Tran intentionally engaged in HBS-assisted bypass, which injured Digicel Haiti.
The Court therefore denies Mr. Tran’s motion on this ground.
c. Compensatory Damages
Finally, Mr. Tran argues that, as set forth in Defendants’ motion to reconsider, ECF 576,
the punitive damages award cannot stand because the Court has vacated the jury’s award of all
lost-profits damages. Digicel Haiti responds that the Court has already ruled on this issue in its
Opinion and Order on Defendants’ motion for judgment as a matter of law, ECF 566, and cites
its response to Defendants’ motion for reconsideration, ECF 581. As discussed above and in the
Court’s previous Opinion and Order, Digicel Haiti adequately has established actual damages
based on its out-of-pocket expenses and an award of punitive damages is appropriate. The Court
thus denies Mr. Tran’s motion.
C. Motion for a New Trial
Mr. Tran moves in the alternative for a new trial under Rule 59(a)(1)(A) of the Federal
Rules of Civil Procedure, arguing that Digicel Haiti made improper references to the legality of
bypass under Haitian law. The Court already addressed this argument in its ruling on
Defendants’ motion for judgment as a matter of law and held that this evidence did not
substantially prejudice Defendants. ECF 566 at 21-23.4 The Court thus denies this motion.

4

Mr. Tran also argues that the Court erred in applying the substantial prejudice test, and
instead should have evaluated whether “it is more probable than not that the jury would have
PAGE 16 – ORDER

CONCLUSION
The Court DENIES Digicel Haiti’s motion for reconsideration, ECF 570. The Court also
DENIES Defendants’ motion for reconsideration, ECF 576. Finally, the Court DENIES
Mr. Tran’s renewed motion for judgment as a matter of law and his alternative motion for a new
trial, ECF 577.
IT IS SO ORDERED.
DATED this 10th day of March, 2025.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

reached the same verdict even if the evidence had been admitted.” Obrey v. Johnson, 400 F.3d
691, 701 (9th Cir. 2005). Obrey, however, provides the standard for an appellate court
“reviewing the effect of erroneous evidentiary rulings,” not for a district court deciding a motion
for a new trial. Id.

PAGE 17 – ORDER