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Does v. Chiquita Brands International et al.

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Summary:

Family members of Colombians killed by left-wing guerrillas and the AUC paramilitary group brought ATS, TVPA, state law, and Colombian law claims against Chiquita, a company that provided substantial support to both left-wing guerrilla groups and the AUC.

Factual Background:

Beginning as early as 1987, Chiquita (through its Colombian subsidiary Banadex) provided significant funds to left-wing guerrilla groups, including the Revolutionary Armed Forces of Colombia ("FARC") and the National Liberation Army ("ELN").   Chiquita made those payments for nearly a decade. 

Around the time Chiquita’s payments to the guerrillas ended, its payments to the United Self-Defense Forces of Colombia ("AUC")—the illegal terrorist group battling the guerrillas—began.  Chiquita switched sides in the Colombian armed conflict once the AUC could mount a successful attack on the guerrillas and drive them out of the banana-growing regions.  Chiquita (through Banadex) made more than one hundred payments to the AUC totaling over $1.7 million.  Many Chiquita officers and directors knew and approved of the payments, and some of them even designed the payment schemes and personally met with the AUC to plan the payments.  Chiquita’s AUC payments led to a criminal conviction in U.S. criminal court and a $25 million fine.  As part of its guilty plea, Chiquita admitted to making payments to both guerrillas and the AUC.

Although Chiquita, its officers, and its board of directors knew of these terrorist groups’ violent campaign against civilians in the banana-growing region, Chiquita’s payments continued unabated.  Indeed, the payments spanned from the 1980s well into the 2000s.  Shockingly, as the documents from the criminal case make very clear, the prevailing opinion of Chiquita’s executives was not to stop the payments because the Colombia operation was the company’s most profitable. Instead, at least one board member expressly said at a board meeting, “just let them sue us.”  Thousands of plaintiffs have now done just that and sued Chiquita and current and former officers and directors because Chiquita provided substantial assistance to the terrorist groups that killed their family members.

Legal Proceedings:

Plaintiffs’ action was first filed against Defendant, Chiquita Brands International, Inc. in federal court in Washington, D.C. in June 2007, but was later transferred to the Southern District of Florida as part of a multi-district litigation.  The active complaint brings claims under the ATS, TVPA, state law, and Colombian law on Chiquita’s financial and material support of the AUC – activity which allegedly strengthened the finances of the AUC and increased its ability to carry out its violent campaign of terror against large civilian populations in the banana-growing regions of Colombia. On June 3, 2011, the District Court issued a decision largely denying Chiquita’s motion to dismiss and paving the way for the case to move forward on the Colombian law claims In re Chiquita Brands Int’l (Chiquita I).

The Court then granted Chiquita leave to pursue an interlocutory appeal of the rulings at the Eleventh Circuit on the legal sufficiency of the ATS and TVPA claims and stayed the proceedings pending the outcome of that appeal. In the interim, the United States Supreme Court issued its decision in Mohamad v. Palestinian Authority holding that the TVPA only allows claims against natural persons, and not corporations.

Further, on April 17, 2013, the Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum Co. holding that the presumption against extraterritoriality applies to claims under the ATS, and precluded an ATS action by a plaintiff suing foreign corporations for acts allegedly committed in Nigeria “in violation of the law of nations” and in collaboration with the government of Nigeria.

Ultimately, the Eleventh Circuit reversed the Southern Florida District Court’s June 3, 2011 order in Chiquita I and remanded with instructions to dismiss Plaintiffs’ ATS claims under Kiobel, and to dismiss Plaintiffs’ TVPA claims under Mohamad in 2014. With the dismissal of these claims, only the Colombian tort law claims – currently the subject of a motion to dismiss on forum non conveniens grounds – remain pending against Chiquita.

After the Supreme Court issued its opinion in Mohamad, but before the Eleventh Circuit issued its ruling in Cardona, the Plaintiffs in IRA’s case (Does 1-144) as well as three other ATS actions (Montes; Valencia and Carrizosa) were granted leave to amend their Complaints to add, as individual defendants, various current or former directors, officers and employees of Chiquita allegedly involved in forming, implementing and concealing Chiquita’s decision to provide support to the AUC in Colombia. These groups filed amended complaints which now serve as the operative complaints in these actions. With the exception of these pleading amendments, the stay of proceedings otherwise remained in place during the pendency of the Eleventh Circuit’s review of Chiquita I.

On June 9, 2016, a Conditional Remand Order was issued by the Southern Florida District Court – remanding Plaintiffs’ case (Does 1-144) as well as Montes, Valencia and Carrizosa back to the courts where the cases were originally filed after it was determined in June 2016 that the court in the Southern District of Florida lacked personal jurisdiction for the individual defendants. A hearing on the Conditional Remand Order took place before the Judicial Panel on Multidistrict Litigation at the end of September 2016 after which Plaintiffs’ case was transferred back to the US District Court for DC and NJ.