By Louis M. Solomon
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
Granted the motions and
dismissed plaintiffs' ATS claims for terrorism and material support to
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
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
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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