Chiquita Human Rights Case Gets Split Decision in U.S. District Court

Jan Wolfe

In a decision that left both sides claiming victory, a federal judge on Friday rejected Chiquita Brands International's efforts to throw out a lawsuit brought by Colombian citizens seeking compensation from the corporation for its alleged involvement in human rights abuses. But the judge also established a high burden of proof that plaintiffs must meet.

U.S. District Court Judge Kenneth Marra of the Southern District of Florida ruled in his 95-page decision that families of civilians murdered by a right-wing paramilitary group that received funding from Chiquita can argue that the corporation be held liable for the militant group's war crimes. The ruling is a significant development in the civil case, which plaintiffs attorneys say could be far more costly for the banana producer than the $25 million fine it paid as part of its guilty plea in a 2007 criminal case.

In the criminal case, Chiquita pled guilty to one count of providing material support to terrorism for making $1.7 million in payments between 1997 and 2004 to Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia), a paramilitary group that the U.S. government designated a terrorist organization in 2001. As part of the deal, the U.S. Attorney's Office said it would not prosecute Chiquita's corporate executives and in-house lawyers, who faced penalties of up to life in prison if convicted. Chiquita has long maintained that the company gave in to extortion, paying the militants off in order to protect their employees.

Lawyers for the plaintiffs celebrated Marra's ruling and rejected Chiquita's defense that it was only protecting its employees. That defense "was rejected in the federal criminal process and is in the process of being rejected in civil proceedings," said Lee Wolosky, partner at Boies, Schiller & Flexner, which represents more than 1,400 plaintiffs. "Terrorist atrocities [were] made possible by its regular, repeated and intentional financial support."

For their part, Chiquita's attorneys are calling the ruling an early victory. The lawsuits are going forward because the judge was bound to follow a plaintiff-friendly standard of review, said Chiquita's attorney John Hall, of Covington & Burling. "The plaintiffs lost on the core legal issue that matters to them--the standard of intent necessary to hold Chiquita secondarily liable."

To prevail at trial, Marra wrote, the plaintiffs must prove that Chiquita aided the militant group with the specific purpose of facilitating the commission of crimes.

"They are going to have to show what I think is absurd: that Chiquita wanted thousands of Colombian peasants to be murdered. That's not going to happen," said Hall. "Chiquita was a victim of the violence in Colombia, not a perpetrator."

Lawyers representing plaintiffs, on the other hand, downplayed their losses. Marco Simons, working in concert with Boies, Schiller, is legal director for Earth Rights International. The nonprofit organization represents the families of nine murdered banana growers and political activists. Simmons argues that it was "not surprising" that some of the legal claims raised by the plaintiff were dismissed: "All of the conduct that was complained of survived on the motion to dismiss. So the scope of the case remains the same," he said. "All of the victims remain in the case, and if that continues, it could well present an existential threat to the corporation."

In a 2007 feature story, "Hard Choices," Corporate Counsel detailed the tense discussions between Chiquita's general counsel, Robert Olson, who hesitantly okayed the payments, and outside counsel Laurence Urgenson, then a partner at Kirkland & Ellis, who warned that the payments were illegal.


(2011-6-7/law.com)