Shockingly, as the Factual Proffer makes very clear (¶ 60), the prevailing opinion of Chiquita’s executives was not to stop the payments because the Colombia operation was the company’s most profitable. 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 its current and former officers and directors because Chiquita provided substantial assistance to the terrorist groups that killed their family members.

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.  This process combined IRAdvocates’ case with six other similar cases against Chiquita and greatly complicated the process. IRAdvocates’ original complaint brought claims under the Alien Tort Statute (ATS),  the Torture Victims Protection Act (TVPA), and Colombian wrongful death law based on Chiquita’s financial and material support of the AUC – activity which 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 April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that created a new requirement for an ATS case to go forward on an extraterritorial claim: the claims must “touch and concern” the territory of the United States. While the Plaintiffs here argued that Chiquita made all the decisions to fund the AUC in the U.S., devised mechanisms in the U.S. to make and hide the payments, and U.S. managers oversaw the system, a very conservative panel of the  Eleventh Circuit Court of Appeals ultimately held that Plaintiffs could not meet the new Kiobel test and remanded the case with instructions to dismiss Plaintiffs’ ATS claims. While the ATS appeal was pending, the U.S. Supreme Court issued another decision very damaging to human rights claims and held in Mohamad v. Palestinian Authority that the TVPA only allows claims against natural persons, and not corporations.

These decisions limited Plaintiffs’ claims. Plaintiffs’ current operative Third Amended Complaint now has viable TVPA claims against individual defendants, various current or former directors, officers and employees of Chiquita that were involved in forming, implementing, and concealing Chiquita’s decision to provide support to the AUC in Colombia. In addition, Plaintiffs have viable claims against Chiquita based on Colombian wrongful death law.

The Court ordered the parties to use a “bellwether” system of going forward with small groups of eight Plaintiffs to trial to allow the parties to better assess the value and viability of the thousands of other pending cases. After extensive and expensive discovery, Plaintiffs were prepared for trial on these first eight claims. Chiquita made a motion for summary judgement arguing primarily that the first eight bellwether Plaintiffs could not establish that the AUC killed their decedents. In a truly shocking and disappointing ruling, the District Court agreed and dismissed the eight Plaintiffs’ claims. Plaintiffs appealed the dismissal and established solid grounds for allowing the eight cases to go to trial. The Court of Appeals for the Eleventh Circuit held oral argument on October 5, 2021.

 While the appeal is pending, the Court ordered that a second group of eight test Plaintiffs complete discovery and prepare for trial. Once discovery was completed, Chiquita made a second motion for summary judgement, raising largely the same issues as were disputed in the first round. Plaintiffs filed an opposition, and the briefing was fully completed in February 2021. The parties are waiting for a ruling from the Court as to whether these cases will proceed to a jury trial. On October 5, 2021 the Court of Appeals for the Eleventh Circuit held a lively oral argument. We should learn in a few months if, as expected, the Court will overturn the grant of summary judgment and remand the case for trial.