In re Chiquita Brands International, Inc.
190 F. Supp. 3d 1100
S.D. Fla.2016Background
- Plaintiffs (Colombian nationals) allege Chiquita and senior Chiquita executives paid and otherwise supported the right‑wing paramilitary AUC (1995–2004), which carried out kidnappings, torture and extrajudicial killings in Colombia’s banana regions; plaintiffs seek damages under the ATS, TVPA, state tort law and Colombian law.
- Several related cases were centralized in an MDL; after interlocutory rulings and appeals, Chiquita (corporate) ATS and TVPA claims were previously dismissed on Kiobel and Mohamad grounds; plaintiffs then amended to add individual Chiquita executives as defendants.
- The operative allegations tie specific executives to authorizing, approving, concealing or disguising payments to the AUC, including board meeting participation and a factual proffer in a criminal case admitting payments.
- Defendants moved to dismiss on multiple grounds: ATS extraterritoriality (Kiobel), TVPA exhaustion and statute of limitations, lack of personal jurisdiction for D.C. and N.J. plaintiffs, failure to plead secondary liability (aiding/abetting, conspiracy, agency/command), and extraterritoriality/time bars for state/Colombian law claims.
- The Court dismissed ATS claims (lack of subject‑matter jurisdiction under Kiobel) and dismissed state‑law claims on extraterritoriality grounds, but denied dismissal of most TVPA and Colombian law claims; it dismissed TVPA claims as to two individual defendants (Warshaw and Lindner) for failure to plead facts plausibly showing secondary liability and found personal‑jurisdiction defects in the D.C. and N.J. actions warranting suggested remand to the MDL panel for transfer consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ATS extraterritoriality | ATS claims against individuals survive because executives acted from the U.S. and conduct has U.S. contacts | ATS claims are barred by Kiobel because relevant conduct occurred in Colombia and plaintiffs did not overcome presumption against extraterritoriality | Dismissed for lack of subject‑matter jurisdiction under Kiobel/Cardona |
| TVPA exhaustion of local remedies | Exhaustion excused as futile/dangerous given risk of retaliation and practical unavailability in Colombia | TVPA requires exhaustion; defendants proffer extrinsic evidence showing adequate Colombian remedies | Denied at motion to dismiss stage; exhaustion is an affirmative defense and factual disputes preclude dismissal now |
| TVPA statute of limitations (10‑yr) | Equitable tolling applies due to extraordinary circumstances (civil unrest, threats) and late identification of individual defendants | Claims based on killings >10 years before naming individuals are time‑barred | Denied; allegations plausibly support equitable tolling through at least 2007 so dismissal is premature |
| Secondary liability (aiding & abetting / conspiracy) under TVPA | Plaintiffs allege specific acts, board involvement, concealment and knowledge — enough to plead knowing substantial assistance or conspiracy | Insufficiently pleaded mens rea/actus reus for each individual; some defendants merely alleged conclusorily | Denied for most individual defendants (sufficient mens rea and substantial assistance/conspiracy pleaded); granted as to Warshaw and Lindner (claims dismissed for those two) |
| Personal jurisdiction (D.C. & N.J. actions) | Plaintiffs request jurisdiction or alternative transfer so cases can proceed | No long‑arm basis alleged for exercise of jurisdiction over nonresident individual defendants; transfer by this MDL court is barred by §1407/Lexecon | Court finds insufficient facts for long‑arm jurisdiction; suggests MDL Panel remand to transferor courts to consider transfer to districts with jurisdiction rather than dismissing |
| State‑law and Colombian law claims extraterritoriality / pleading foreign law | State/foreign law claims timely and adequately pleaded; Colombian law elements satisfied at pleading stage | State tort claims are extraterritorial; Colombian claims fail to plead foreign‑law elements or are time‑barred for some plaintiffs | State law claims dismissed for extraterritoriality; Colombian law claims survive pleading challenge; limitations challenge denied given plausible equitable tolling and relation‑back/fraudulent concealment allegations |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (presumption against extraterritorial application of the ATS)
- Mohamad v. Palestinian Authority, 566 U.S. 449 (2012) (TVPA reaches only natural persons)
- Cardona v. Chiquita Brands Int’l, 760 F.3d 1185 (11th Cir. 2014) (Eleventh Circuit applying Kiobel to dismiss ATS claims against Chiquita)
- Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015) (TVPA permits secondary liability; aiding and abetting standard is knowing substantial assistance)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Lexecon Inc. v. Milberg Weiss, 523 U.S. 26 (1998) (§1407 precludes transferee district court from transferring cases under §1404; limits MDL transferee authority)