Guam - Superior Court Judge Michael Bordallo, who is the assigned ex-parte judge, has scheduled a hearing for Wednesday to hear DFS's request for a Temporary Restraining Order to be issued to prevent Lotte from moving in to the Guam International Airport Authority.
DFS alleges improprieties with the awarding of the highly lucrative airport concessionaire contract to Lotte. Lotte adamantly refutes the allegations.
On Monday, DFS filed the motion for the TRO alleging that allowing Lotte to proceed with moving into GIAA would cause irreparable harm to their company. Lotte today, filed an opposition to their motion with the court.
The following are reasons DFS provided to the court Monday why the TRO should be granted and Lotte's response in the court filings today:
If DFS is forced to move out of, it would not be able to process product exchanges at its airport location, upsetting the reasonable expectations of customers and damaging DFS' reputation built over decades of quality service with a commitment to customer satisfaction. If DFS is forced to vacate its Airport location at this time, no monetary remedy would be sufficient to restore the lost trust that DFS' customers have placed in the DFS brand, the major disruption in the lives of approximately 60 Guam residents, and the significant and potentially permanent damage to DFS' worldwide reputation. Although that damage is not easily quantifiable, given the scales of DFS' operations both in Guam and internationally, the damage would easily be in the range of tens of millions of dollars.
This is ridiculous. DFS' argument that it will not be able to process product exchanges and returns at its airport location as evidence of the irreparable harm is a gross misstatement of this high standard. DFS can easily notify shoppers that this service is no longer available at the airport. DFS' claim that the forced relocation will lead to major disruption in the lives of approximately 60 Guam residents currently employed at DFS' Airport Concession also does not constitute irreparable harm. More importantly this statement is absolutely contrary to the June 17th, 2013 letter from DFS counsel Maurice Suh to Lotte Counsel Cesar Cabot in which Mr. Suh represented that "none of DFS' airport employees are expected to be displaced, so there is no need for DFS to work with Lotte to transition any current DFS employees. The only reputation harm suffered by DFS came at its own hand.
DFS will also be irreparably harmed if it is required to immediately vacate the Airport Concession because its relationships with its suppliers and vendors in connection with the Airport Concession will be severely damaged by the uncertainty generated by Lotte's unlawful installation at the Airport.
Lotte says this is "merit-less". Lotte has been and will continue working with the same vendors to try to produce a smooth transition. Further, Lotte has already existing relationships with these same vendors. DFS should have known that it was not guaranteed to win this concession.
In today's court filing, Lotte says DFS has zero right to remain in the airport, maintaining that it is a holdover tenant. Lotte also defends that DFS has already begun vacating the concession premises at the Airport as per its transition agreement with GIAA, including the removal of fixtures and tiles. The hearing is set for 2 o'clock Wednesday afternoon.
Additionally in response to Lotte's objection to the competency of Superior Court Judge Vern Perez to preside over the case, the Judge has ten days to answer the challenge. Lotte filed the objection Monday citing Judge Perez is first cousins with Joann Camacho who is a high level executive at DFS who "directly participated in bringing allegations of wrongdoing against Lotte to GIAA in connection with DFS' protest of the specialty retail concession request for proposal." The objection also noted the close personal ties between the Judge and Joann's husband, former Governor Felix Camacho. Perez was appointed to his current position as Judge by the former Governor.