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US Judge allows Colombians to pursue torture claims against Chiquita

02/21/13-- Miami--  District Judge Kenneth A. Marra, Southern District of Florida.
02/21/13– Miami– District Judge Kenneth A. Marra, Southern District of Florida.

By Monika Gonzalez Mesa, From Daily Business Review

A federal judge allowed torture claims to stand in a lawsuit brought by thousands of Colombian laborers who claim Chiquita Brands International Inc. paid $1.7 million over nine years to a violent right-wing paramilitary group blamed for death squads that targeted civilians in banana-growing regions.
U.S. District Judge Kenneth A. Marra in West Palm Beach, who presides over cases filed since 2007 in the District of Colombia, Florida and New York, on Wednesday denied several long-pending Chiquita motions to dismiss claims filed under the Torture Victim Protection Act of 1991. Marra also dismissed claims under the Alien Tort Statute, citing a 2013 U.S. Supreme Court ruling in an unrelated case.
“The outcome has been long in coming but expected, and we are proud to have one more of many procedural hurdles behind us,” said Jack Scarola, a partner at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, which represents the laborers’ families. “It is a significant victory on behalf of the plaintiffs and a significant defeat for Chiquita and for the individual Chiquita directors who are named as defendants.”
The lawsuits allege Chiquita’s payments to the United Self-Defense Forces of Colombia, known as AUC, increased its ability to carry out its violent campaign targeting civilians suspected of sympathizing with violent leftist guerrillas, often those in the FARC. The AUC was blamed for the kidnapping, torture and killings of relatives of the plaintiffs.
The plaintiffs argue Chiquita kept paying the AUC even after the U.S. government designated the group a foreign terrorist organization in 2001 and told Chiquita the payments were illegal.
Chiquita, which settled a federal criminal complaint in 2007, argues it was being extorted in a country ravaged by violence and was trying to safeguard employees.
In the criminal case, Chiquita pleaded guilty to engaging in transactions with a designated global terrorist group and was fined $25 million. Fernando Aguirre, the company’s chief executive officer at the time of the settlement, and Chiquita’s then-general counsel Eric Holder, signed a factual proffer indicating Chiquita made 50 payments totaling over $825,000 after the AUC was designated a foreign terrorist organization.
In the civil case, individual defendants including current and former Chiquita executives and a former general counsel, were directed to file answers within 20 days.
The Torture Victim Protection Act claims against former chief executive officer Steven Warshaw and former president and chief operating officer Keith Lindner were dismissed for failing to state a claim. Marra reserved a decision on whether to dismiss the estate of a deceased former executive.
The order said Robert Olson, a former Chiquita vice president and general counsel, allegedly learned about the AUC payments by 1997, approved procedures to disguise them for an audit meeting and was told by outside counsel and Department of Justice officials in early 2003 that the payments were illegal and should immediately stop. The payments reportedly stopped in February 2004.
The judge found that the anti-torture law’s 10-year statute of limitation did not bar claims arising out of killings that occurred more than 10 years before the complaints. The plaintiffs argued the volatile political and social conditions in Colombia effectively precluded them from suing the individual defendants until 2007, when Colombia instituted a peace program encouraging paramilitaries to surrender weapons in exchange for limited immunity and AUC units began to demobilize. Before that, they engaged in widespread human rights abuse
Scarola said in dismissing the Alien Tort Statute claims that the U.S. Court of Appeals for the Eleventh Circuit took a conservative, defense-friendly view of the Supreme Court decision, but it doesn’t keep the Colombian nationals’ claims from going forward.
“It restricts one of the approaches that we had been taking in the case, but it is not by any means fatal to our claims,” Scarola said. “We have great confidence in the quality of our remaining claims to ultimately enable us to see that our clients are fully compensated.”
In addition to Scarola firm, the court docket lists William J. Wichmann of Fort Lauderdale as a lead plaintiffs attorney. Other plaintiffs attorneys include John P. Pierce of Bethesda, Maryland, Roger M. Adelman of Washington and Boies, Schiller & Flexner attorneys.
Defense firms include Covington & Burling; Jones, Foster, Johnston & Stubbs; DLA Piper; Berger Singerman; and Marcus Neiman & Rashbaum.
Charles Wayne of DLA Piper in Washington said he had no comment on the case. The company’s media relations firm did not respond to a request for comment by deadline.

IMAGE: District Judge Kenneth A. Marra J. Albert Diaz

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