District Court in Eleventh Circuit Deepens the Circuit Conflict By Upholding Alien Tort Statute Claims Against Corporate Defendant

District Court in Eleventh Circuit Deepens the Circuit Conflict By Upholding Alien Tort Statute Claims Against Corporate Defendant


By Louis M. Solomon

In re Chiquita Brands Int'l, Inc. Alient Tort Statute and Shareholder Derivative Litigation, Case No. 08-01916 (S.D.Fla June 2011), [an enhanced version of this opinion is available to lexis.com subscribers] is multidistrict litigation of seven cases consolidated in the Southern District of Florida.   The opinion just rendered is the MDL court's decision on motions to dismiss claims under the Alien Tort Claims Statute (ATS), 28 U.S.C. sec. 1350, and the Torture Victim Protection Act (TCPA), 28 U.S.C. sec. 1350 note.  Plaintiffs in the cases are, as the court found, citizens and residents of Colombia and consist of the family members of trade unionists, "banana-plantation workers, political organizers, social activists, and others tortured and killed by the Autodefensas Unidas de Colombia (AUC), a paramilitary organization operating in Colombia". The decedents were allegedly killed by the AUC during the 1990s through 2004 in the Colombian banana-growing regions, primarily in the Uraba and Magdalena areas. Plaintiffs sued Chiquita Brands International, Inc. and Chiquita Fresh North America LLC (collectively Chiquita).

On the motions to dismiss, the District Court:

Granted the motions and dismissed plaintiffs' ATS claims for terrorism and material support to terrorist organizations;

Granted the motions and dismissed plaintiffs' ATS claims for cruel, inhuman, or degrading treatment; violation of the rights to life, liberty, and security of person and peaceful assembly and association; and consistent pattern of gross violations of human rights; and

Granted the motions and dismissed plaintiffs' state-law and Columbian-law and other related claims; but

Denied the motions to dismiss both the plaintiffs' ATS claims for torture, extrajudicial killing, war crimes, and crimes against humanity as well as the plaintiffs' TVPA claims for torture and extrajudicial killing.

 Of interest from an international practice perspective are the following rulings made by the District Court:

First, in upholding the torture claims under the ATS and TVPA, the District Court relied on allegations that the government acted in "active participation" and "close cooperation with" the AUC's activities, thus satisfying the "under color of law" requirement. 

Second, the District Court followed the Second Circuit's decision in Presbeterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), not only ruling that, under Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004), the appropriate standard for secondary liability under the ATS should be derived from international law but that, more specifically,  that "a defendant may be liable for aiding and abetting an international-law violation of another when 'the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime'".

Third, on the threshold question whether a cause of action can be stated under the ATS or TVPA against a corporation, the District Court ruled that it could, stating:  "Recent Eleventh Circuit precedents, however, hold that '"an individual" to whom liability may attach under the TVPA also includes a corporate defendant'". Citing Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009).  The District Court neither cited nor discussed the Second Circuit's decision in Kiobel, et al. v. Royal Dutch Petroleum Co., et al., [enhanced  / unenhanced version available from lexisONE Free Case Law] 06-4800-cv, 06-4876-cv (2d Cir. 17 Sept. 2010), which held that the ATS does not subject a corporation (as opposed to natural persons) to liability (discussed in our posting here).


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