Chiquita Reply to Response Stay Mandate

8/11/2019 Chiquita Reply to Response Stay Mandate

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Case No. 12-14898-BB

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________________________

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER

DERIVATIVE LITIGATION

CASE NO. 08-01916-MD-MARRA

This Brief Relates to District Court Case Numbers:

No. 08-80465, No. 10-80652, No. 11-80404, No. 11-80405

__________________________________________

On Appeal from the United States District Court

for the Southern District of Florida

(The Honorable Kenneth A. Marra)

_________________________________________

APPELLEE'S REPLY TO RESPONSE

TO MOTION FOR STAY OF MANDATE

_________________________________________

Paul Wolf

P.O. Box 46213

Denver, CO 80201

(202) 431-6986

[email protected]

Counsel for Does 1-144,

Does 1-976, Does 1-677,

and Does 1-254

October 12 2014

Case: 12-14898 Date Filed: 10/14/2014 Page: 1 of 29


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TABLE OF CONTENTS

Certificate of Interested Persons ...................................... ii.

Table of Authorities .......................................................... xiii.

Summary of Argument ..................................................... 1.

Argument ........................................................................... 2.

I. The Doe Plaintiffs have shown that a substantial

question and good cause exist to stay the mandate. ........ 3.

A. The Doe Plaintiffs have shown a reasonable

probability that four justices would grant

certiorari. ......................................................... 3.

B. The Doe Plaintiffs have shown a significant

possibility of reversal of this Courtsdecision. 5.

C. Irreparable harm will ensue if the

mandate is not stayed, since there will befurther proceedings in the District Court. .... 7.

II. The Court should exercise its discretion to hear

the Plaintiff's interlocutory cross-appeal now, rather

than waiting for a final judgment. .................................. 9.

Conclusion ......................................................................... 12.



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ii

CERTIFICATE OF INTERESTED PERSONS

Counsel certifies that, to the best of his knowledge, the

following is a complete list of the trial judge(s), all attorneys,

persons, associations of persons, firms, partnerships, or

corporations (noted with its stock symbol if publicly listed) that

have an interest in the outcome of the particular case on appeal,

including subsidiaries, conglomerates, affiliates, and parent

corporations, and other identifiable legal entities related to a

party, known to Appellees, are as follows:

1. The individual plaintiffs are listed in the Complaints as filed

in the Southern District of Florida in Case Nos. 08-80465, 10-

80652, 11-80404, and 11-80405.

2. Additional interested parties are:

Agrcola Longav Limitada

Agrcola Santa Marta Limitada

Agroindustria Santa Rosa de Lima, S.A.

Alamo Land Company

Alsama, Ltd.

American Produce Company



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Americana de Exportacin S.A.

Anacar LDC

Arvelo, Jos E.

Associated Santa Maria Minerals

B C Systems, Inc.

Baird, Bruce

Barbush Development Corp.

Bienes Del Rio, S.A.

BlackRock, Inc. (NYSE: BLK)

Blue Fish Holdings Establishment

Bocas Fruit Co. L.L.C.

In Re: Chiquita Brands Intl., Inc.

Boies Schiller & Flexner, LLP, Fort Lauderdale

Boies Schiller & Flexner, LLP, Miami

Boies Schiller & Flexner, LLP, New York

Boies Schiller & Flexner, LLP, Orlando

Brundicorpi S.A.

Cadavid Londoo, Paula

Carrillo, Arturo J.



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iv

C.C.A. Fruit Service Company Limited

CB Containers, Inc.

Centro Global de Procesamiento Chiquita, S.R.L.

Charagres, Inc., S.A.

Childs, Robert

Chiquita (Canada) Inc.

Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.

Chiquita Banana Company B.V.

Chiquita Brands International Foundation

Chiquita Brands International Srl

Chiquita Brands International, Inc. (NYSE: CQB)

Chiquita Brands L.L.C.

Chiquita Central Europe, s.r.o.

Chiquita Compagnie des Bananes

Chiquita Deutschland GmbH

Chiquita Food Innovation B.V.

Chiquita for Charities

Chiquita Fresh B.V.B.A.

Chiquita Fresh Espaa, S.A.



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v

Chiquita Fresh North America L.L.C.

Chiquita Fruit Bar (Belgium) BVBA

Chiquita Fruit Bar (Germany) GmbH

Chiquita Fruit Bar GmbH

Chiquita Frupac B.V.

Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton

Chiquita Hong Kong Limited

Chiquita International Services Group N.V.

Chiquita Italia, S.p.A.

Chiquita Logistic Services El Salvador Ltda.

Chiquita Logistic Services Guatemala, Limitada

Chiquita Logistic Services Honduras, S.de RL

Chiquita Melon Packers, Inc.

Chiquita Mexico, S. de R.L. de C.V.

Chiquita Nature and Community Foundation

Chiquita Nordic Oy

Chiquita Norway As

Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia

Chiquita Portugal Venda E Comercializaao De Fruta,



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Unipessoal Lda

Chiquita Relief Fund - We Care

Chiquita Shared Services

Chiquita Singapore Pte. Ltd.

Chiquita Slovakia, S.r.o.

Chiquita Sweden AB

Chiquita Tropical Fruit Company B.V.

Chiquita UK Limited

ChiquitaStore.com L.L.C.

Chiriqui Land Company

CILPAC Establishment

Coast Citrus Distributors Holding Company

Cohen, Millstein, Sellers & Toll, PLLC

Collingsworth, Terrence P.

Compaa Agrcola de Nipe, S.A.

Compaa Agrcola de Rio Tinto

Compaa Agrcola del Guayas

Compaa Agrcola e Industrial Ecuaplantation, S.A.

Compaa Agrcola Sancti-Spiritus, S.A.



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vii

Compaa Bananera Atlntica Limitada

Compaa Bananera Guatemateca Independinte, S.A.

Compaa Bananera La Estrella, S.A.

Compaa Bananera Los Laureles, S.A.

Compaa Bananera Monte Blanco, S.A.

Compaa Caronas, S.A.

Compaa Cubana de Navegacin Costanera

Compaa Frutera Amrica S.A.

Compaa La Cruz, S.A.

Compaa Mundimar, S.A.

Compaa Productos Agrcolas de Chiapas, S.A. de C.V.

Compaa Tropical de Seguros, S.A.

Conrad & Scherer LLP

Costa Frut S.A.C.

Covington & Burling LLP

Danone Chiquita Fruits SAS

Davies, Patrick

De La Calle Restrepo, Jos Miguel

De La Calle Londoo y Posada Abogados



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DeLeon, John

Dimensional Fund Advisors LP

Duraiswamy, Shankar

Dyer, Karen C.

Earthrights, International, Inc.

Exportadora Chiquita - Chile Ltda.

Exportadora de Frutas Frescas Ltda.

Financiera Agro-Exportaciones Limitada

Financiera Bananera Limitada

FMR LLC

Fresh Express Incorporated

Fresh Holding C.V.

Fresh International Corp.

Frutas Elegantes, S. de R.L. de C.V.

Fundacin Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula

G & V Farms, LLC

G W F Management Services Ltd.

Garland, James



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Girardi, Thomas V.

Gould, Kimberly

Gravante, Jr., Nicholas A.

Great White Fleet Liner Services Ltd.

Great White Fleet Ltd.

Green, James K.

Guralnick, Ronald S.

Hall, John

Heaton Holdings Ltd.

Heli Abel Torrado y Asociados

Hemisphere XII Investors Limited

Hospital La Lima, S.A. de C.V.

Ilara Holdings, Inc.

Inversiones Huemul Limitada

James K. Green, P.A.

Jimenez Train, Magda M.

Jones, Foster, Johnston & Stubbs, P.A.

King, William B.

Lack, Walter J.



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Law Firm of Jonathan C. Reiter

Law Offices of Chavez-DeLeon

Leon, The Honorable Richard J.

Markman, Ligia

Marra, The Honorable Kenneth A.

Martin, David

Martinez Resly, Jaclyn

McCawley, Sigrid S.

Mosier, Mark

Mozabanana, Lda.

Parker Waichman LLP

Pras Cadavid Abogados

Pras, Juan Carlos

Procesados IQF, S.A. de C.V.

Processed Fruit Ingredients, BVBA

Promotion et Developpement de la Culture Bananiere

Puerto Armuelles Fruit Co., Ltd.

Rapp, Cristopher

Reiter, Jonathan C.



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Ronald Guralnick, P.A.

Scarola, Jack

Searcy Denney Scarola Barnhart & Shipley, P.A.

Seguridad Colosal, S.A.

Servicios Chiquita Chile Limitada

Servicios de Logstica Chiquita, S.A.

Servicios Logsticos Chiquita, S.R.L

Servicios Proem Limitada

Skinner, William

Sperling, Jonathan

Spiers N.V.

Sprague, Ashley M.

St. James Investments, Inc.

Stubbs, Sidney

Tela Railroad Company Ltd.

The Vanguard Group

TransFRESH Corporation

UNIPO G.V., S.A.

V.F. Transportation, L.L.C.



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Verdelli Farms, Inc.

Western Commercial International Ltd.

Wichmann, William J.

Wiesner & Asociados Ltda. Abogados

Wiesner, Eduardo A.

Wilkins, Robert

Wolf, Paul

Wolosky, Lee S.

Zack, Stephen N

Zhejiang Chiquita-Haitong Food Company Limited

Zuleta, Alberto

/s/ Paul Wolf

____________________

Paul Wolf DC Bar # 480285

Attorney for Doe Plaintiffs



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xiii

Table of Authorities

Cases

Al Shimari v. CACI Premier Tech. Inc.,2014 WL 2922840 (4th Cir. June 30, 2014) ..................... 1, 3-5.

Barefoot v. Estelle, 463 U.S. 880 (1983)........................... 2, 6.

California v. American Stores Co.,

492 U.S. 1301 (1989) ........................................................ 2.

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. __, 133 S. Ct. 1659 (2013) ................................. 1, 3-5, 7.

McFarlin v. Conseco Servs., LLC,

381 F.3d 1251 (11th Cir. 2004) ....................................... 11.

Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010) ......................................................... 8.

Senne v. Vill. of Palatine, Ill.,

695 F.3d 617 (7th Cir. 2012) ........................................... 2.

Statutes

28 U.S.C. 1291 .............................................................. 11.

28 U.S.C. 1292(b) ......................................................... 9.

28 U.S.C. 1331 ............................................................. 10.

28 U.S.C. 1332 ............................................................. 10.

28 U.S.C. 1350 ............................................................. 6, 10.

28 U.S.C. 1350 note ..................................................... 6, 10.



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xiv

Other

William S. Dodge, The Historical Origins of the

Alien Tort Statute: A Response to the Originalists.

19 Hastings Int'l & Comp. L. Rev. 221 (1996). ............. 12.



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1

Summary of Argument

The Court should stay the mandate because the Doe

Plaintiffs have shown that a substantial question and good cause

exist. The Court's opinion conflicts with the decisions of the US

Supreme Court in Kiobel v. Shell, and with the 4th Circuit in Al

Shimari v. CACI. Irreparable harm will ensue because the

District Court will proceed using legal theories that may be

overturned.

The Court should exercise its discretion to hear the

Plaintiff's interlocutory cross-appeal because (1) it involves an

abstract question of law that does not rely on the record, (2) the

District Court itself expressed uncertaintly about the correct

answer, and (3) because resolution of the issue will also simplify

and streamline the litigation. Otherwise, the Doe Plaintiffs will

have to appeal the same issue, as of right, after the District Court

has entered a final judgment. This not only complicates the case,

but deprives the Supreme Court of the opportunity to consider the

extraterritorial application of the ATS and state tort law in the

same case.



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Chiquita case conflicts with both Kiobel v. Royal Dutch Petroleum

Co., 569 U.S. __, 133 S. Ct. 1659 (2013), and Al Shimari v. CACI

Premier Tech. Inc., 2014 WL 2922840 (4th Cir. June 30, 2014).

A. The Doe Plaintiffs have shown a reasonable

probability that four justices would grant certiorari.

Although Kiobel was a unanimous opinion, the justices

sharply disagreed over the applicable legal standards. Justices

Breyer, Ginsberg, Sotomayor and Kagan joined in a concurring

opinion that would find jurisdiction under the ATS whenever (1)

the alleged tort occurs on American soil, (2) the defendant is an

American national, or (3) the defendants conduct substantially

and adversely affects an important American national interest,

including an interest in preventing the United States from

becoming a safe for torturers or other common enemies of

mankind. Kiobel, slip op., Breyer, J. concurring.

In the instant case, all three criteria are met. Chiquita is a

US corporation; the agreement to kill the decedents was made and

overseen in the US; and Chiquita was prosecuted in the United

that the Chiquita conspiracy was organized and overseen in the

US, and that all of the payments originated in the U.S.



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States for the same conduct. Chiquita doesn't dispute that it is a

U.S. corporation, so it is easy to show that the test of these four

justices can be met.

Al Shimari v. CACI is about a private company that

allegedly tortured prisoners in Abu Ghraib, Iraq. The Fourth

Circuit found that the case "touched and concerned" the territory

of the United States because (1) CACI is a US corporation, (2) the

employees who allegedly tortured the prisoners were US citizens,

and (3) the injuries occurred on a US military base pursuant to a

contract with the US Government. Al Shimari v. CACI, 2014 WL

2922840 at *30-31.

Much of the post-Kiobel debate has centered around what

kind or amount of domestic conduct would be necessary for a case

to touch and concern the United States. In Al Shimari, the

Plaintiffs alleged that "in the 'command vacuum at Abu Ghraib,'

CACI interrogators operated with little to no supervision and

were perceived as superiors by United States military personnel.

Military personnel allegedly carried out orders issued by the CACI

civilian interrogators to 'soften up' and 'set conditions' for the



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abuse of particular detainees, contrary to the terms of CACIs

contract with the United States government." Id. at *8. This is a

negligence standard, with more than one level of secondary

liability. CACI is liable for the conduct of its Iraqi employees in

Iraq, who were perceived by the military personnel to be their

superiors, and it is the military personnel who inflicted the

injuries. In Chiquita the Board of Directors of a U.S. Corporation

agreed to pay a terrorist organization on a monthly basis for

security, falsified its accounting records to hide the fact, and then

pled guilty when prosecuted. Chiquita's domestic conduct was

more than negligent, and is not mrely based on the fact that a

contract was signed on U.S. soil.2

The Kiobel and Al Shimari

cases are two good reasons to believe the Supreme Court would

grant certiorari.

2As Judge Martin argued in her dissent, Kiobel requires a fact-

based analysis of the contacts of the case with the territory of the

U.S., not unlike an analysis of personal jurisdiction or choice of

laws.



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B. The Doe Plaintiffs have shown a shown a significant

possibility of reversal of this Courts decision.

The Doe Plaintiffs need only show a significant possibility of

reversal: not, as Appellants would argue, that more likely than

not, the Supreme Court would reverse. The Appellant relies on

Senne v. Vill. of Palatine, Ill., 695 F.3d 617, 619 (7th Cir. 2012),

which distorts the test set forth in Barefoot v. Estelle, 463 U.S.

880, 895-96 (1983) by replacing the "significant possibility"

standard with a "reasonable probability that ... five justices will

vote to reverse ..." 695 F.3d at 619. Luckily, the Court need not

resolve this inconsistency between the 7th Circuit and the

Supreme Court. See FN 1, supra,

There is a significant possibility that Justice Kennedy would

consider the instant case to be a serious violation of international

law principles protecting persons, and act as the "swing vote,"

along with those who concurred with Justice Breyer, and reverse.

Justice Kennedy wrote:

The opinion for the Court is careful to leave open a number

of significant questions regarding the reach and

interpretation of the Alien Tort Statute. In my view that is a

proper disposition. Many serious concerns with respect to

human rights abuses committed abroad have beenaddressed



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by Congress in statutes such as the TortureVictim Protection

Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C.

1350, and that class of cases will be determined in the

future according to the detailed statutory scheme Congress

has enacted. Other cases may arise with allegations ofserious violations of international law principles protecting

persons, cases covered neither by the TVPA nor by the

reasoning and holding of todays case; and in those disputes

the proper implementation of the presumption against

extraterritorial application may require some further

elaboration and explanation.

Kiobel v. Royal Dutch Petroleum Company, 569 U. S. ____ (2013)

(Justice Kennedy, concurring). Therefore, there is a significant

possibility of reversal.

C. Irreparable harm will ensue if the mandate is not

stayed, since there will be further proceedings in the

District Court.

Irreparable harm may ensue if the mandate is not stayed

pending the Doe Plaintiffs' filing of a certiorari petition. It is not

in the best interest of the district court or the parties to begin

litigating this matter pursuant to this Courts mandate before

determining which claims have been dismissed. Considering we

have already been litigating this matter for more than seven

years, three months is a relatively short time to ask for.



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First, the Supreme Court should be given an opportunity to

consider the petition. The Supreme Court should be interested in

this subject, since it decided two ATS cases last year. Since then,

the first two appellate courts to decide ATS cases (the Eleventh

and Fourth) are already split. The Supreme Court seemed

primarily motivated to reconcile a line of foreign securities cases,

including Morrison v. National Australia Bank Ltd., 561 U.S. 247

(2010), with foreign human rights litigation. Chiquita offers a

very simple, paradigm fact pattern, where only the place of injury

lies outside of the United States.

Second, this Court should consider the Plaintiff's

(interlocutory) cross-appeal now, rather than waiting for a final

judgment from the District Court. Questions about the

extraterrirorial application of federal and state law are obviously

related, and it's in the interest of judicial economy to resolve them

now.

Given the controversy and the substantial question posed by

the petition, it would be unreasonable to begin litigation under a

theory of law that could be overturned. There is a significant



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possibility that the Supreme Court could vacate this Courts

opinion and remand the matter to the district court for a

subsequent trial. The unnecessary expense of resources by the

courts and the parties would result in irreparable harm.

Therefore, good cause exists to stay the mandate pending the

filing of a petition for a writ of certiorari

II. The Court should exercise its discretion to hear thePlaintiff's interlocutory cross-appeal now, rather than

waiting for a final judgment.

Interlocutory appeals are at the discretion of the Circuit

Court. An interlocutory order may be appealed if (1) the District

Court issues a written statement that the order involves a

controlling question of law as to which there is a substantial

ground for a difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination

of the ligitation; and (2) the Circuit Court permits the appeal to be

taken. 28 U.S.C. 1292(b).

Here, the District Court certified the question "whether the

civil tort laws of Florida, New Jersey, Ohio, and the District of

Columbia apply to the extraterritorial conduct of Colombian



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paramilitaries against Colombian civilians that occurred inside

Colombia as part of Colombias civil war." Memo Op. at 3-4. The

11th Circuit exercised its discretion to decline to decide this.3

In exercising its discretion, the circuit court will not

normally grant permission to appeal unless: (1) the controlling

question of law is an abstract legal issue that the circuit court can

decide quickly and cleanly without having to study the record; (2)

it is not absolutely clear that the district court resolved the

question correctly; and (3) resolution of the question would serve

3 The Appelant's understanding of the Court's opinion can't be

right, and attributes to the Court a poor understanding of civil

procedure. In the Appellant's view, the Court could not reach

diversity claims brought under 28 U.S. Code 1332, unless it first

found it had jurisdiction over federal question claims broughunder 28 U.S. Code 1331. These claims clearly have different

and independent jurisdictional bases.

The state law tort claims were brought under the diversity

jurisdiction statute, 28 U.S. Code 1332. The Appellees in this

action are citizens and residents of Colombia, while the Appellant

is a US corporation, formerly headquartered in Ohio, and now in

North Carolina. The Appellant has no corporate presence in

Colombia. Since the claims are for wrongful death (and a few

personal injury cases involving very grave injuries), the amountcontroversy between each Plaintiff and the Defendant exceeds

$75,000. In contrast, the claims pursuant to the Alien Tort

Statute, 28 U.S. Code 1350, and Torture Victim Protection Act ,

28 U.S. Code 1350 note, are federal claims brought under 28

U.S. Code 1331. The Appellant's construction must be wrong as

a matter of law.



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to avoid a trial or otherwise substantially shorten the litigation.

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1256-1259 (11th

Cir. 2004)

Here, the Court should exercise its discretion and hear the

cross-appeal. The issue of whether state tort laws may apply

extraterritorially is abstract, and there isn't even a "record" to

review at this stage of the case. It is not absolutely clear that the

District Court resolved this correctly, as evidenced by the District

Court's own decision to raise the issue sua sponte in the

interlocutory appeal. The resolution of the issue should shorten

the litigation, for the same reasons given in I (C) supra; that is,

so that the parties and the District Court will know which claims

are proceeding.

The result of declining to hear the cross-appeal will be that,

once a final judgment has been obtained, the Doe Plaintiffs may

appeal the judgment as of right, pursuant to 28 US Code 1291.

Declining to decide this issue now will make a mess of this case,



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and deprive the Supreme Court of the opportunity to decide the

ATS and state tort law extraterritoriality issues together.4

Conclusion

For the foregoing reasons, the Court should stay the

mandate and exercise its discretion to decide the Plaintiffs' cross-

appeal.

Respectfully submitted,

/s/ Paul Wolf____________________________________

Paul Wolf DC Bar #480285

Attorney for Does 1-144, 1-976, 1-677, 1-254

PO Box 46213

Denver CO 80201

(202) 431-6986

[email protected]

October 12, 2014

4Among the mysterious features of the Alien Tort Statute are its

brevity, and the Founder's legislative intent in enacting it.

Professor William S. Dodge persuasively argues that the original

intent of the "Alien Tort Clause," as it was then known, was to

provide a federal, rather than state court forum for cases involving

alien claims. By definition they concern foreign states and foreignpolicy, and it was not seen as desirable for each state's courts to

act independently. See William S. Dodge, The Historical Origins

of the Alien Tort Statute: A Response to the Originalists. 19

Hastings Int'l & Comp. L. Rev. 221 (1996). This is the kind of

perspective that can become lost when issues are decided in

piecemeal fashion.



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Certificate of Digital Submission

I hereby certify that with respect to the foregoing

(1) all required privacy redactions have been made;

(2) if required to file additional hard copies, that the ECF

submission is an exact copy of those documents;

(3) the digital submissions have been scanned for viruses with

the most recent version of VirusTotal, a commercial virus

scanning program.

/s/ Paul Wolf

____________________



Certificate of Service

I hereby certify that on the 12th day of October, 2014, I filed

the foregoing document with the clerk of the court through the

Court's Electronic Case Filing (ECF) system, which will send

notification to the attorneys of record for all other parties in this

litigation. I further certify that all parties required to be served

have been served.



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/s/ Paul Wolf

____________________




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Chiquita Reply to Response Stay Mandate