Van Dusen seemed to be done as she walked away from podium but comes back with different papers.
Talking about Mackinaw conference in June 2002 where Ferguson and McCann discussed numbers. They wanted to get him at least 10% of dig up or $3.5 million. Van Dusen says hard numbers were discussed and you were trying to go forward in a meaningful way. McCann agrees.
Van Dusen says not unreasonable for a businessman to want to make a profit. McCann agrees.
9:55AM McCann says that Ferguson's target was 3% of 50 million which was completely fine as long as he actually did the work.
Van Dusen says you were trying back and forth to get the terms of Ferguson's contract. McCann says not just me but yes.
Van Dusen says there were ongoing negotiations with Insitu Form. McCann agrees.
Looks like an email from an Insitu Form employee, John Marich, to McCann advising her "I was hoping to make our labor lease agreement with Ferguson a pure pass thorugh but our insurance company has interjected." McCann says you need to read the email through and that in this case it is talking specifically about insurance. McCann says that Ferguson's own insurance rates would have to be used on Ferguson employees and not Insitu Form insurance.
McCann says that the phrase pass through is being misinterpreted in this situation and that it is not a pass through as described by Van Dusen.
Van Dusen says what was being contemplated was to put some of their employees on Ferguson's payroll. McCann says once they are Ferguson employees they are no longer Insitu employees and it is a multi-year contract.
Van Dusen says but then they go back to their mother company.
Now looking at an email from Dennis Oszust of Inland to McCann from November 14th 2002. He is forwarding an email from Marich of Insitu Form. The email talks about hiring issues with Ferguson. Insitu Form wanted to transfer a crew to Ferguson's payroll. McCann says he was helping Ferguson build capacity in lining crews.
Van Dusen says Ferguson was pushing back on Insitu Form on this issue. McCann says she is unaware if this is true.
10:06AM Van Dusen says negotiations continue with Ferguson until spring of 2003. McCann agrees with that. Van Dusen says that these negotiations did not hold up Inland's work on the contract. McCann says it did not hold up work but did put inland at a disadvantage and risk. The witness says that Ferguson could not start work until the contracts were in place. Van Dusen says but FEI was working already. "A small amount," says McCann. Van Dusen says Inland and Ferguson were not close. "That's fair to say," agrees McCann. McCann says that Ferguson insisted to things outside the normal scope so it was hard to acquiesce. Van Dusen says you were used to more compliant minority contractors. McCann disagrees and says they weren't used to that kind of push back from any contractors. There were basic conditions that ultimately ended up on them that they couldn't get Ferguson to agree on. Van Dusen saying that in February 2003, Dennis Oszust wrote a letter. McCann recognizes the document. As of January 31st, 2003, FEI had invoiced for 1.9% of total of more than $7 million, about $92,000. Oszust indicates he will meet with FEI to push forward on outstanding issues that were preventing FEI from sub-contracting to its committed goal.
Van Dusen going back to Ferguson resisting because he didn't want to be a pass through. "Absolutely not," says McCann. They felt that he was intentionally trying to cripple the company and they started a paper trail to keep track of the relationship. "The reason he wasn't at the table was because he didn't want to be," says McCann. The witness's voice is becoming increasingly strained and she grows more heated in describing the risk her company was exposed to with Ferguson being unwilling to sign a contract.
"Again, I think the reality speaks for itself," says McCann. But that's in your mind says Van Dusen. McCann agrees.
Van Dusen says you're a note taker and you take notes when you are uncomfortable with people. McCann agrees. "Usually when there are circumstances that make you uncomfortable, you are going to remember detail."
Van Dusen says maybe you were worried Ferguson was going to sue you.
Government objects and the judge sustains.
McCann says she has explained why she took notes and asked others to document meetings with Ferguson. "I thought it was prudent at the time," says McCann.
Van Dusen bringing up McCann's notes from December 2nd, 2002. The government had these but opted not to bring them up during cross examination. McCann says this from a phone call with Oszust and these are her notes. "Ferguson is difficult to work with" says the note. McCann says Ferguson was actually pretty polite in person. Van Dusen says he was fighting for employees to get work. "No, says McCann. “He was fighting for himself."
McCann says that negotiations were incredibly difficult and in most instances unreasonable. McCann says they were not asking unreasonable things of him. Van Dusen states that is your opinion.
10:26AM Note says March is supposed to meet Ferguson the following day to get negotiations going. McCann says that Ferguson stood him up. Van Dusen says that the meeting did take place on December 20th.
Another email from March of Insitu Form to McCann on December 20th 2002. Basically says that he met with Ferguson and another FEI employee. It says that Bobby seemed eager to get working with them but that he had some issues with legal terms on labor lease agreement. Email: "He seemed more open to a material management agreement but was concerned that it not be a pass through."
"It's self-serving theatre," says McCann about Ferguson expressing concern about not being pass through. McCann says he wanted money for doing no work.
Van Dusen says that Ferguson was nothing other than he appeared to be, a proud man. McCann says she can't agree with that. "He often said things that he never really intended," says McCann. McCann says no one had ever asked them for 1% of $35 million sinkhole, no one had delayed work before. "This was a very unusual situation." Van Dusen says this is a good spot to take a break. Judge says we'll take a 20 minute break.