Chiquita Liable for Financing Colombian Paramilitary Death Squads
June 19, 2024
In a win for international human rights advocacy, a Florida jury has found a U.S. corporation liable for human rights violations committed in a foreign country. This first of three “bellwether” trials involved nine cases. Hundreds remain to be tried in this multidistrict litigation.
The jury’s verdict is the latest development in a civil case that began in 2007 when Chiquita Brands (“Chiquita”) pled guilty to federal criminal charges of providing support for the Autodefensas Unidas de Colombia (AUC). The Department of Justice (DOJ) had deemed the AUC a “terrorist” organization based on its operation “paramilitary Death Squads” in the Urabá and Magdalena regions of Colombia. Chiquita was convicted pursuant to Executive Order 13224 which prohibited contributing funds to the benefit of a “specially-designated global terrorist” without first obtaining a license or authorization from the US government. Shortly after Chiquita pled guilty, victims of the AUC began bringing civil suits against Chiquita. Seventeen years of sprawling complex litigation ensued. The history of the litigation highlights the twists and turns that have shut down many human rights cases brought decades ago. But the jury verdict reminds us that although many avenues have been foreclosed, some remain open.
Litigation Round One
The plaintiffs initially sued Chiquita in New Jersey on behalf of more than seven hundred Colombian nationals allegedly killed or injured by the AUC between 1988 and 2007. Dozens of other suits across the country made similar allegations. Eventually the cases were consolidated into a multidistrict litigation before Judge Kenneth A. Marra in the Southern District of Florida.
The plaintiffs allege that Chiquita provided significant financial support to the AUC with the knowledge and intent that the money would support acts of terrorism, crimes against humanity, and war crimes. They relied upon the Torture Victims Protection Act (TVPA) and the Alien Tort Statute (ATS) as providing subject matter jurisdiction and causes of action for these torts and for secondary liability (accomplice and conspiracy). They also asserted violations of state common law and Colombian law, including for wrongful death, and negligence.
Back in 2008, Chiquita argued in a consolidated motion to dismiss that plaintiffs did not adequately allege violations of customary international law under the ATS, that the TVPA did not apply to corporate defendants, that plaintiffs did not adequately allege state-law causes of action, and that the court should decline supplemental jurisdiction over the Colombian law claims. In 2011, the district court dismissed the terrorism claims as insufficient under customary international law, but allowed the crimes against humanity, war crimes, and the TVPA claims to proceed, along with the tort claims based on Colombian law.
Despite this initial win, two subsequent Supreme Court decisions led the Eleventh Circuit to dismiss the plaintiffs’ ATS and TVPA claims on appeal. In Mohamed v. Palestinian Authority, the Supreme Court held that the TVPA only applies to natural persons – not to corporations like Chiquita. And in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that the ATS does not apply extraterritorially unless the tort “touches and concerns” the United States, a test not satisfied by the plaintiffs’ allegations against Chiquita. Only the claims based on Colombian law survived.
Litigation Round Two
The plaintiffs then brought new suits in federal court in Ohio and Florida alleging that Chiquita is liable under the Anti-Terrorism Act 18 U.S.C. §2333 (ATA) for the kidnapping and murder of an American national. The new litigation also claims that individual Chiquita employees and executives are liable under the TVPA for injuries to Colombian nationals. These suits were transferred to the Southern District of Florida to be managed in the MDL proceedings. Some of the ATA claims settled, others were dismissed.
Chiquita again moved to dismiss all of the litigation, this time on grounds of forum non conveniens, arguing that although the court has jurisdiction over the claims, Colombia would be a better forum for hearing them. In a 2016 opinion, the Florida district court rejected this argument. Step one of the forum non conveniens analysis requires the defendant to identify an adequate alternative forum. In this case, the court concluded that Colombia was not adequate because of the immense security risks that plaintiffs would face in bringing their claims there. The case accordingly moved forward, and “bellwether” cases were selected for discovery and trial.
Denial of Class Certification
In 2019, twelve years after the class action suit against Chiquita was initially filed, plaintiffs moved for class certification. Not surprisingly, the district court refused to certify the class because at that point the MDL proceedings involving thousands of individual claimants had been going on for more than a decade. Plaintiffs responded by filing new lawsuits, this time naming members of the failed putative class. These claims were dismissed as time-barred under Colombia’s statute of limitations.
The plaintiffs appealed, arguing that under American Pipe & Construction Co. v. Utah, the statute of limitations for the unnamed class members’ claims should have been tolled while the class was awaiting certification. To resolve this issue, the Eleventh Circuit had to determine whether federal or state law applied. First, however, it had to decide which state law to weigh against federal law: Colombia or New Jersey. Applying New Jersey’s choice of law test, which applied because the case was initially filed there, the court found Colombia’s law applicable because New Jersey lacks a “substantial interest” in the case and Colombia has a far more “significant relationship” with the parties and the misconduct. Weighing Colombia’s law (claims are not tolled while awaiting class certification) against federal law (claims are tolled) the Eleventh Circuit found that Colombia’s law should govern the issue because the question is outcome determinative and countervailing federal interests do not weigh in favor of applying federal law. As a result, the claims of unnamed class members were dismissed as time-barred under Colombian law. However, this did not affect the hundreds of claims which had already filed.
Summary Judgment and Appeal
In 2019, the district court granted summary judgment for the defendants on many claims, holding that the plaintiffs’ evidence was mostly “inadmissible hearsay” or speculative so that even if accepted as admissible it “would not support the inferences” that the AUC was responsible for the death of the plaintiffs’ relatives. The Eleventh Circuit reversed and remanded on most counts, holding that the plaintiffs’ evidence was sufficient to go to trial.
At this point, the first of three bellwether trials were set to proceed. The first trial (“Trial One-A”) involved two claims against Chiquita under Colombian law: general tort liability and hazardous activity. The second and third bellwether trials (“Trial One-B and “Trial Two”) will consider the TVPA claims against individual executives and Colombian law claims against both individual executives and Chiquita.
Verdict
Finally, after seventeen years of litigation, the jury returned a verdict against Chiquita for violations of Colombian law in Trial One-A. The jury found that the AUC killed the plaintiffs’ relatives, that Chiquita failed to act as a reasonable business person would have acted, that Chiquita knowingly provided substantial assistance to the AUC, and that Chiquita’s assistance constituted a hazardous activity. The jury awarded $38.3 million in damages to eight plaintiffs whose families were targeted and killed by the AUC.
Conclusion
This verdict marks the first time that a jury has held an American corporation liable for facilitating human rights violations in a foreign country. With the two more trials to come (including the TVPA claims against individual executives), perhaps the remaining claims will settle.