Case 1:16-cv-24275-FAM Document 304 Entered on FLSD Docket 08/10/2021 Page 1 of 15
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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICTOF FLORIDA
`Miami Division
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`Case Number: 16-24275-CIV-MORENO
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`INVERSIONES Y PROCESADORA
`TROPICAL INPROTSA, S.A., a Costa Rican
`. Corporation,
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`Petitioner,
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`VS.
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`DEL MONTE INTERNATIONAL GMBH, a
`Swiss Corporation,
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`Respondent.
`I
`- - - - - - - - - - - - - - - - - -
`ORDER ADOPTING REMAINING PORTIONS OF MAGISTRATE JUDGE LOUIS'S
`JULY 16, 2020 REPORT AND RECOMMENDATION AND ORDER FINDING
`PETITIONER IN CONTEMPT
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`THE MATTER was refeiTed to the Honorable Lauren F. Louis, United States Magistrate
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`Judge, for a Report and Recomm_e11dation on Respgndent's Renewed Motion for Contempt (D.E.
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`229). The Magistrate Judge filed a Report and Recommendation (D.E. 75) on July 16, 2020. On
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`_October 30, 2020, the Court adopted the Report and Recommendation in part, deferring ruling on
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`the Magistrate Judge's recommendations as to sanctions. The Court adopted her recommendation
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`to issue a ~eparate Order ~o Show Cause as to petitioner, Inversiones y Procesadora Tropical,
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`INPROTSA, S.A. as to why it should not be held in contempt for its noncompliance with the
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`Court's Final Judgment.
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`INPROTSA, S.A. filed a response to the Order to Show Cause on
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`November 16, 2020. The Court nowreviews INPROTSA's response to the Order to Show Cause
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`and the remaining recommendatibns in the July 16, 2020 Report and Recommendation regarding
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`sanctions. The Court has reviewed the entire· file and record. The Court has made a de nova
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`review of the issues that the objections to the Magistrate Judge's Report and Recommendation
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`Case 1:16-cv-24275-FAM Document 304 Entered on FLSD Docket 08/10/2021 Page 2 of 15
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`present, and being otherwise fully advised in the premises, it is
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`ADJUDGED that the remaining portions of United States Magistrate Judge Lauren F.
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`Louis's Report and Recorrime-ndation are AFFIRMED and ADOPTED as set forth in this
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`Order.
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`I.
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`Background
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`On October 30, 2020, this Court issued an Order to Show Cause to Petitioner,
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`INPROTSA, S.A. to show cause why it should not be held in contempt for its failure to comply
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`with this Court's Order Confirming the Arbitral Award and Final Judgment. The Court's Order
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`confirmed an arbitral award, which contained a monetary award and two injunctions. The Court
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`also entere.d final judgment for the reasons stated in the confirmation order in favor of the
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`Respondent Del Monte.
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`INPROTSA's noncompliance with the injunctions is at issue in these contempt
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`proceedings. The first injunction ordered INPROTSA to "return or destroy 93% of the MD-2
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`[pineapple] vegetative materials in [INPROTSA's] farm" (the "destruction injunction") and the
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`second enjoined INPROTSA "'from selling MD-2 pineapples to third parties for as long as
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`[INPROTSA] shall not have fully complied with its obligation to destroy or return the MD-2
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`vegetative materials,' with the exception of sales in amounts not exceeding 7% of each MD-2
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`harvest" (the "sales injunction"). It is undisputed that INPROTSA did not comply from May
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`2017 t_o April 2018. INPROTSA did not destroy or return the seeds and once the pineapples were
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`grown, it elected to sell them to a third-·party until at least April 2018.
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`The Order to Show Cause finds that Respondent Del Monte International, GmbH met its
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`burden to show by clear and convincing evidence that the alleged contemnor, INPROTSA, S.A.,
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`violated the Court's prior confirmation order and final judgment. It required INPROTSA to show
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`cause why it should not be held in contempt for its noncompliance and directed INPROTSA to
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`advise the Court if it requested an additional evidentiary hearing. In response to the order,
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`INPROTSA consented to Del Monte's Motion for Contempt being determined by the Court on
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`the existing evidentiary record, without a further evidentiary hearing.
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`INPROTSA's response to the show cause order incorporates by reference the transcript
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`of INPROTSA's closing argument at the evidentiary hearing conducted by Magistrate Judge
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`Louis, INPROTSA's final brief concerning Respondent's Renewed Request for Finding of
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`Contempt (D.E. 261), INPROTSA's Objections to the Magistrate Judge's Report and
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`Recommendation (D.E. 292), and INPROTSA's Notice of Filing Supplemental Authority, Liu v.
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`S.E. C., 140 S. Ct. 1936 (June 22, 2020). Del Monte seeks a final judgment of civil contempt
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`based on INPROTSA's failure to destroy the plants immediately and based on its decision to sell
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`the pineapples to a third-party, in violation of the sales injunction.
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`In addition to issuing the Order to Show Cause on October 30, 2020, the Court also
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`issued an Order Adopting in part the Magistrate Judge's Report and Recommendation (ECF 297
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`& 287). The Court stopped short of adopting Judge Louis's recommendations regarding the
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`proper award of sanctions until after INPROTSA had an opportunity to show cause as to its
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`noncompliance. Specifically, the Court deferred ruling on whether disgorgement ofrevenues is a
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`proper measure of damages for contempt and on whether an award of attorney's fees to Del
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`Monte is appropriate. The Court must now decide whether INPROTSA shows cause to excuse its
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`noncompliance, and if it fails to show cause, what are the appropriate sanctions.
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`I.
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`Legal Standard and Analysis
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`Once a party meets its burden to show by "clear and convincing evidence that the alleged
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`contemnor violated a court's earlier order," the burden shifts "to the alleged contemnor to
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`produce evidence explaining [its] noncompliance at a show cause hearing." Peery v. City of
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`Miami, 977 F.3d 1061 (11th Cir. 2020) (quoting Chairs v. Burgess, 143 F.3d 1432, 1436 (11th
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`Cir. 1998)). "The clear and convincing evidence must establish that: (1) the allegedly violated
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`order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator
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`had the ability to comply with the order." Id. (quoting Riccardv. Prudential Ins. Co., 307 F.3d
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`1277, 1296 (11th Cir. 2002)). The Court must construe ambiguities in favor of the party charged
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`with contempt. Id (citing FTC. v. Leshin, 618 F.3d 1221, 1231 (11th Cir. 2010)).
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`Del Monte seeks contempt sanctions for INPROTSA's violation of this Court's May 17,
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`2017 final judgment, which was issued after the Court confirmed an arbitral award in this matter.
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`There is no dispute in this case that INPROTSA did not comply with either the destruction or
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`sales injunctions. INPROTSA, however, raises arguments that the order was unlawful because
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`the Court lacks the power to enforce an extraterritorial mandatory injunction. Second,
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`INPROTSA argues the order was not clear and unambiguous such that its failure to comply
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`should result in contempt of Court. Finally, INPROTSA argues that it could not comply with the
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`Court's order because doing so .would violate Costa Rican law. If INPROTSA's arguments do
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`not excuse its noncompliance, the Court must determine whether the appropriate remedy is
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`disgorgement of revenues and an award of attorney's fees.
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`A. Civil Contempt
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`1. Was the Court's order lawful and valid?
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`INPROTSA argues the Court cannot find it in contempt because the Court lacked
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`authority to enter an order containing an extraterritorial mandatory injunction. Put another way,
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`INPROTSA argues it cannot be found in contempt for violating an unlawful injunction. In this
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`case, the Court confirmed an arbitral award, which included two injunctions - a sales injunction
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`and a destruction injunction. This Court adopted the Magistrate Judge's Report and
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`Recommendation on this issue prior to ordering INPROTSA to show cause. The Court,
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`nevertheless, revisits the argument to determine if it excuses INPROTSA's noncompliance.
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`Responding to the show cause order, INPROTSA first asserts that confirmation of the
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`award is a separate issue from a court's power to enforce all or part of the award. Relying on
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`Four Seasons Hotels & Resorts B. V v. Consorcio Barr, S.A., 613 F. Supp. 2d 1362, 1365-66
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`(S.D. Fla. May 12, 2009), INPROTSA argues that a court's duty to confirm an arbitral award
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`does not always match its power to enforce the same award. In a confirmation proceeding, the
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`Court has a narrow scope ofreview allowing it to either accept or reject confirmation of an
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`award, and INPROTSA suggests that this Court's power ends there. Four Seasons does not
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`support INPROTSA's position. Rather, it confirms an arbitral award even if the specific
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`performance mandate might be contrary to Venezuelan law or even if the court could not enforce
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`a judgment pertaining to activities in a foreign country. The posture of this case is different,
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`where the Court converted its order confirming an arbitral award into a judgment, which is
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`provided for in the statute. It states that upon connrmation of an arbitral award, the "judgment
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`shall be docketed as if it was rendered in an action. The judgment so entered shall have the same
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`force and effect, in all respects, as and be subject to all the provisions of the law relating to, a
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`judgment in an action; and it may be enforced as if it had been rendered in an action in the court
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`in which it is entered." 9 U.S.C. § 13.
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`In her Report and Recommendation, which this Court adopted, Magistrate Judge Louis
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`examined this argument. Because the Court confirmed the award and converted it into a
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`judgment, the Court could "enforce the judgment by punishing the parties who violated the
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`judgment through contempt or enforcement proceedings." Report and Recommendation (ECF
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`191). The adopted report adds that "[i]ssuing contempt sanctions for violation of this Court's
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`Judgment does not, as INPROTSA contends, implicate exercising jurisdiction over foreign
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`parties or assets, and it is without dispute that this Court has jurisdiction over INPROTSA."
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`Report and Recommendation (ECF 191).
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`INPROTSA' s acceptance of personal jurisdiction here also discredits its argument that
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`the Court has no power of enforcement. Because the Court has personal jurisdiction over
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`INPROTSA, an order of this Court requiring INPROTSA to act or refrain from acting anywhere
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`is valid. See, e.g., Fall v. Eastin, 215 U.S. 1, 8 (1909) (court can order party over which it has in
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`personam jurisdiction "to do or refrain from doing" an act even if the act is to occur in another
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`state or country). Certainly, the Court can enforce an injunction that prohibited INPROTSA from
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`selling pineapples to a third-party.
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`This Court has also previously examined INPROTSA's argument that the destruction and
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`sales injunctions are akin to Mareva injunctions, which are extraterritorial pre-judgment
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`prohibitive orders preventing litigants from dissipating assets worldwide. Grupo Mexicano de
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`Desarollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 328-29 (1999). This Court already
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`found that the injunctions at issue here are post-judgment injunctions, which differ from Mareva
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`injunctions. Especially with respect to the sales injunction, the Court does not find that it is
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`sufficiently similar to a Mareva injunction, so as to excuse INPROTSA's noncompliance with a
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`post-judgment order, which was affirmed on appeal.
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`Despite these findings INPROTSA again explains its noncompliance with the injunctions
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`by stating that the Court lacked jurisdiction to enforce them. INPROTSA categorizes them as
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`one in the same describing them as only one injunction containing two parts, one contingent on
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`the other. It argues that if the destruction injunction to destroy the vegetative material is invalid,
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`then any derivative interim requirement to pick, pack, deliver and sell that material to Del Monte
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`while the plants are being destroyed is also invalid. INPROTSA's position is that the injunctions
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`are inextricably intertwined because the duration of sales to Del Monte is contingent on the
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`destruction of the plants. The Court does not agree that the injunctions are inextricably
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`intertwined. Indeed, the structure of the injunctions suggests if INPROTSA elected not to
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`comply with the destruction injunction, then alternatively it was prohibited from selling 93% of
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`the pineapple product to third-parties (which is what it did by selling the pineapples to Fruver).
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`Finally, this Court has previously held that INPROTSA' s jurisdictional argument is "too
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`little too late." This Court reiterates that INPROTSA cannot explain its noncompliance now by
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`asserting a lack of jurisdiction, when it did not raise the argument in the original proceedings or
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`in the Court of Appeals. INPROTSA argues that it was not until this enforcement proceeding that
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`it was proper to raise this argument. The Court disagrees. Although INPROTSA is correct that
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`the Court's jurisdiction to enforce an injunction is not grounds for consideration under the New
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`York Convention for vacating or confirming an award, INPROTSA could have raised the
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`argument in the confirmation proceeding. Rather than argue then that the Court lacked
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`jurisdiction to enter final judgment on the terms of the arbitral award, INPROTSA waited to raise
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`the issue until this contempt proceeding, after the Court of Appeals affirmed the judgment. The
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`Federal Arbitration Act makes clear that to be enforced as a civil judgment, an award subject to
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`the Convention ... must first be confirmed and converted into a judgment by a court." Del
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`Monte Int'! GmbHv. Ticofrut, SA., No. 16-23894-CIV, 2017 WL 2901326, at *5 (S.D. Fla. Jan.
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`30, 2017) (~iting 9 U.S.C. § 13). The proper time to object to the Court's jurisdiction to enter the
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`injunctions was when the Court entered final judgment, not in a post-judgment, post-appeal
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`contempt proceeding.
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`This Court reaffirms its prior finding that this jurisdictional argument cannot be raised as .
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`a defense in a collateral proceeding. Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)
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`(quoting Willy v. Coastal Corp., 503 U.S. 131, 137 (1992) ("[T]he practical concern with
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`providing an end to litigation justifies a rule preventing collateral attack on subject matter
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`jurisdiction.")); Beck v. Boce Grp., 04-20683-CIV, 2005 WL 8155884, *2, n.3 (S.D. Fla. Jun. 15,
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`2005) (finding defendants' argument stating that contempt cannot be found if the underlying
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`order is invalid "moot" because underlying injunction was issued by court order and
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`subsequently reaffirmed.). Res judicata would be "short-circuited" if courts were to evaluate the
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`jurisdiction that they may or may not have had to issue final judgment. In re: Optical
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`Technologies, Inc., 425 F.3d 1294, 1308 (11th Cir. 2005).
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`Res judicata principles also defeat INPROTSA's reliance on US. Steel Corp. v. United
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`Mine Workers, 519 F.2d 1236, 1249 (5th Cir. 1975) and Karaha Bodas Co. v. Perusahaan
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`Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 35, 374 (5th Cir. 2003). INPROTSA
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`argues it cannot be held in contempt for violating an invalid injunction as set forth in these cases.
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`In these cases, however, the appellate courts evaluated both the validity of the injunctions at
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`issue and the ensuing contempt orders. See US. Steel, 519 F .2d at 1249 (holding that district
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`court lacked jurisdiction to enter injunction and that union could not be found in contempt of that
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`order); Karaha Bodas, 335 F.3d at 374 ("[T]he only district court order that should be subject to
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`review on appeal to us is the preliminary injunction. By reversing and vacating the preliminary
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`injunction, we addressed the substantive provisions of the contempt order. .. thereby making it
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`unnecessary for us to address now the contempt order itself."). Here, the judgment of this Court
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`has already been reviewed and affirmed on appeal. The principles of res judicata would preclude
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`the Court from revisiting the validity of the injunctions as was the procedural posture in both
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`US. Steel Corp. and Karaha Bodas.
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`2. Was the Court's order clear and unambiguous?
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`In defense of its noncompliance, INPROTSA again argues that even if the Court did not
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`lack the equitable power to issue the extraterritorial injunctive relief, this is a complex
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`jurisdictional issue of first impression, and the Court's order was not clear and unambiguous.
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`INPROTSA's argument is not that it did not understand what the injunctions required, but rather
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`that there was a legal ambiguity with respect to the enforceability. See Drywall Tapers and
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`Pointers a/Greater New York Local 1974 of IBPAT AFL-CIO v. Local 530 of Operative
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`Plasterers & Cement Masons Int'l Assoc., 889 F.2d 389, 395 (2d Cir. 1989) (stating that order is
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`clear and unambiguous if a party can "ascertain from the four comers of the order precisely what
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`acts are forbidden."). Thus, INPROTSA's legal ambiguity argument is insufficient to explain its
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`noncompliance. Indeed, INPROTSA did not contest the clarity or ambiguity of the injunctions in
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`the confirmation proceeding, or on appeal. Certainly, it understood what it was supposed to do
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`and what it was prohibited from doing. It chose to sell the pineapples in violation of the
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`injunction.
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`It is "established doctrine that persons subject to an injunctive order issued by a court
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`with jurisdiction are expected to obey that decree until it is modified or reversed, even if they
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`have proper grounds to object to the order." GTE Sylvania Inc. v. Consumers Union of the
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`United States, Inc., 445 U.S. 375,386 (1980). "INPROTSA has advanced no evidence that it
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`acted diligently in attempting to destroy the pineapples or sell them to Del Monte, in fact the
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`opposite has been shown: INPROTSA knew of the injunctions, knew that it had been ordered to
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`destroy the pineapples or sell them only to Del Monte, and chose instead to farm them as it
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`normally would and sell them to third-party Fruver in hopes that it would win at the appellate
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`level." Report and Recommendation (ECF 287). The Court therefore reaffirms its prior finding
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`that the judgment was valid and lawful as well as clear and unambiguous. This defense to
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`contempt does not excuse INPROTSA's noncompliance.
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`3. Was INPROTSA able to comply with the Court's order?
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`To excuse its noncompliance, INPROTSA reasserts its position that it was factually
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`unable to comply because doing so would violate Costa Rican law. This Court adopted the
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`Magistrate Judge's Report and Recommendation (ECF 287) on this point, and again finds that
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`INPROTSA's purported inability to comply with the injunctions does not excuse its
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`noncompliance. This finding is even more compelling now that the Supreme Court of Costa Rica
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`has confirmed the arbitral award. When first arguing this point, INPROTSA relied on the
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`testimony of its president, Jorge Luis Gurria Hernandez, who explained that INPROTSA needed
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`to make the sales notwithstanding the injunction and justified doing so because the confirmation
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`proceedings were then stayed in courts in Costa Rica and pending on appeal here. The appeal
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`here affirmed the confirmation order and final judgment, and now that there is a confirmation
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`order in Costa Rica, the justification provided by INPROTSA then is now proven unfounded.
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`This Court was correct to find the justification did not preclude the issuance of an order to show
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`cause and does not now excuse INPROTSA's noncompliance.
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`In any event, the Court again finds that even if INPROTSA could not comply with the
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`destruction injunction, it chose not to comply with the sales injunction. Neither the pending
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`appeal nor the stay in Costa Rica at the time obligated INPROTSA to sell the pineapples to
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`Fruver in violation of the injunction. Rather, as the Magistrate Judge aptly pointed out in her
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`Report and Recommendation, INPROTSA chose not to destroy the pineapples, and chose to sell
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`them to a third party. The Court finds INPROTSA's decision to sell the pineapples to Fruver
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`does not equate with an inability to comply. Therefore, the Court does not excuse INPROTSA's
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`noncompliance based on this argument.
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`B. Sanctions
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`This Court stopped short of adopting the July 16, 2020 Report's recommendations as to
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`the appropriate remedy to address INPROTSA's contempt. The civil contempt power may be
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`used to "coerce the defendant into compliance with the court's order, and to compensate the
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`complainant for losses sustained." United States v. United Mine Workers, 330 U.S. 258, 303-04
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`(194 7). In her Report, the Magistrate Judge appropriately found that there is no argument that
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`lNPROTSA needs to be coerced into compliance since both parties admit the vegetative material
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`has since been destroyed. The remaining issue is the measure of compensation to Del Monte,
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`which the parties dispute. Del Monte seeks an award equal to INPROTSA's disgorgement of
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`gross revenues of its sales of the pineapples during the relevant period, which is $16,373,684.
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`INPROTSA argues the appropriate damages award equals the losses Del Monte suffered, and
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`since it has not shown proof of loss, it is not entitled to any disgorgement.
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`The July 16, 2020 Report and Recommendation recommends the Court not award
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`disgorgement of revenues or lost profits. The complainant, Del Monte, bears the burden of
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`producing evidence sufficient to show damages based on the contempt. See In re: Chase &
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`Sanborn Corp., 872 F.2d 397, 401 (11th Cir. 1989).
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`The Magistrate Judge found that disgorgement ofrevenues was not a proper remedy, and
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`that "Del Monte has failed to show by clear and convincing evidence that its measure of damages
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`is equal to INPROTSA's gross revenues." Report and Recommendation (ECF 287 at 13). In its
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`objections, Del Monte relies on Liu v. SEC, 140 S. Ct. 1936 (2020) to argue that disgorgement of
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`gross sales proceeds is the proper remedy: Liu, however, recognizes that while "courts
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`recognize[] that the wrongdoer should not profit by his own wrong, they also recognized the
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`countervailing equitable principle that a wrongdoer should not be punished by paying more than
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`a fair compensation to the person wronged." Id. at 1943. The Supreme Court emphasized that a
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`remedy "tethered to a wrongdoer's net unlawful profits, whatever the name, has been a mainstay
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`of equity court." Examining the contours of equity jurisprudence, the Supreme Court recognized
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`that federal courts have the power to order disgorgement of profits, as Del Monte suggests, but it
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`also compared disgorgement to restitution that simply "'restor[ es] the status quo,' thus situating
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`the remedy squarely within the heartland of equity." Id. (quoting Tull v. United States, 481 U.S.
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`412 (1987)).
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`Relying on FTC. v. Leshin, 618 F.3d 1221, 1239 (11th Cir. 2010) and Guyana Tel. &
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`Tel. Co., Ltd. v. Melbourne Int'l Comms., Ltd., 329 F.3d 1241, 1249 (11th Cir. 2003), Del Monte
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`argues disgorgement of revenues is the proper measure of damages for contempt. The Magistrate
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`Judge, however, correctly identified that in Leshin the contemnors had taken compensation from
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`consumers and were ordered to disgorge those monies back to the consumers as compensation
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`for their losses. Here, the Magistrate Judge reasoned that Del Monte did not pay INPROTSA any
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`sum of money, which INPROTSA would need to now disgorge. The issue raised in Del Monte's
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`objection is that the Magistrate Judge misread the sales injunction to require sales to Del Monte,
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`and instead the injunction prohibits sales to anyone. Based on this misreading, Del Monte asserts
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`that the Magistrate Judge incorrectly concluded that damages should be akin to those for breach
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`of contract as opposed to the appropriate remedy, which it claims is disgorgement. Regardless of
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`. how one reads the sales injunction, Del Monte did not pay monies to INPROTSA, which should
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`now be returned. That was the factual scenario presented in Leshin, which is not present here.
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`Del Monte also asserts that INPROTSA as a "conscious wrongdoer" is liable for either
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`the "fair market value of the goods and services (restitutionary remedy) or the proceeds of the
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`sale (disgorgement remedy), and [Del Monte] is entitled to the higher." Guyana, 329 F.3d at
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`1249. Guyana, however, was not a contempt proceeding, but rather a Florida Deceptive and
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`Unfair Trade Practices Act case, where the court was deciding on a legal remedy, not an
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`equitable one. In any event, both Leshin and Guyana precede the Supreme Court's recent
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`decision in Liu, which clarifies the limits of this Cami's equitable powers.
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`Del Monte's objections to the Report aµd Recommendation argue that the law of the case
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`establishes disgorgement as the proper measure of damages. It bases this argument on language
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`in a January 24, 2019 Report and Recommendation, which this Court adopted. (ECF 191 and
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`200). The January 24, 2019 Report stated that Del Monte was "damaged by loss of the benefit of
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`its bargain with INPROTSA." The adopted report also states that INPROTSA should "show
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`cause why the Court should not hold them in contempt for failing to comply with the Court's
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`Final Judgment by making sales ofMD-2 pineapples in violation of the permanent injunction of
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`the Award, and order sanctions, including monies !NP ROTSA improperly received as a result of
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`its sales made after the entry of the Court's final judgment. " Id. (ECF 191 ). Del Monte argues
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`that the July 16, 2020 Report and Recommendation contravenes the law of the case established
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`in this Court's order adopting the January 24, 2019 report, which in its view ordered
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`disgorgement. This Court disagrees.
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`The Order adopting the January 24, 2019 report was not a final order sanctioning
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`INPROTSA. On the contrary, it was a preliminary order instructing INPROTSA to show cause
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`why disgorgement of revenues is improper. That is what INPROTSA has done- shown cause that
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`Del Monte's requested remedy is improper: Even if the Court's order can be viewed as
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`Case 1:16-cv-24275-FAM Document 304 Entered on FLSD Docket 08/10/2021 Page 14 of 15
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`predetermining the appropriate sanction, which it does not, the order predated the Supreme
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`Court's issuance of Liu, which provides the framework for this Court to now decide the
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`appropriate remedy.
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`Using Liu's principles, the Court next examines whether the record evidence establishes
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`the harm to Del Monte and how to quantify the appropriate remedy. The record evidence does
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`not establish by clear and convincing evidence how Del Monte was damaged. It only establishes
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`that during the relevant period INPROTSA had revenues of over $16 million, and Del Monte has
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`not met its burden to show that INPROTSA profited. Indeed, INPROTSA contends it operated at
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`a loss during the time between entry of the judgment on the award and the destruction of the
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`pineapples. Because Del Monte does not show by clear and convincing evidence that it suffered
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`losses or that INPROTSA profited and would be keeping its ill-gotten gains, the Court declines
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`an award of disgorgement to Del Monte. Even if Del Monte lost the benefit of its bargain, the
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`evidence does not quantify that loss. Accordingly, the Court adopts the Report and
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`Recommendation and declines to sanction INPROTSA by awarding damages exceeding $16
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`million. To rule otherwise would contravene the Supreme Court's instruction in Liu, which states
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`that "a wrongdoer should not be punished by paying more than a fair compensation to the person
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`wronged."
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`E. Attorney's Fees
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`Having adopted the Report and Recommendation's finding that disgorgement is not an
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`appropriate remedy, the Court examines whether the recommendation on attorney's fees is
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`appropriate. Generally, when a movant seeks a contempt order to force compliance with a
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`lawfully entered order, the movant is entitled to recover reasonable attorney's fees and expenses
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`cause by the contemnor defendant's contempt. Belize Telecom. Ltd. v. Gov't of Belize, No. 05-
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`Case 1:16-cv-24275-FAM Document 304 Entered on FLSD Docket 08/10/2021 Page 15 of 15
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`20470, 2005 WL 7858276, *8 (S.D. Fla. Apr. 13, 2005) ("Plaintiffs are entitled to reasonable
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`attorneys' fees and expenses caused by Defendant's contempt."); US. v. Far East Suppliers,
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`Inc., 682 F. Supp. 1215, 1216-17 (S.D. Fla. 1988) (finding an award of fees and costs appropriate
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`where there is willful disregard of a court's order.
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`The evidentiary record shows that INPROTSA did not stop selling the MD-2 pineapples
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`until April 2018, after Del Monte had filed its Motion for Contempt, but before INPROTSA had
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`responded to that Motion. Therefore, the Motion was sufficient to, and successful in, ending the
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`contemptuous behavior. The Court, therefore, agrees with the Report and Recommendation that
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`an award of attorney's fees is appropriate in the amount incurred by Del Monte to secure
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`INPROTSA's compliance with the Court order. Far East Suppliers, 682 F. Supp. at 1216.
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`Del Monte seeks $550,225.50 for 1,276.4 hours billed from June 5, 2017 to July 16,
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`2020. The declaration of Mr. Pinter, the associate general counsel of the company that owns Del
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`Monte, shows that Del Monte paid those fees, establishing this as an expense incurred in having
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`to bring the contempt proceedings. The Magistrate Judge correctly concluded that the award of
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`fees ends when the contemptuous behavior ended in April 2018. Therefore, her reduction of the
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`fees award to $204,958 is appropriate.
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`DONE AND ORDERED in Chambers at Miami, Florida, this L of August 2021.
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`/\.
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`FEDE .R IC~
`UNITED ST ATES DISTRICT JUDGE
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`Copies furnished to:
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`United States Magistrate Judge Lauren F. Louis
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`Counsel of record
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