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Petition to Eleventh Circuit Court of Appeals en Banc
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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)
_________________________________________
PETITION FOR REHEARING EN BANC
_________________________________________
Paul Wolf
PO Box 46213
Denver, CO 80201
(202) 431-6986
Counsel for Does 1-144, Does
1-976, Does 1-677, and Does
1-254 (Plaintiff-Appellees)
August 4, 2014
Case: 12-14898 Date Filed: 08/04/2014 Page: 1 of 34
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ..................................... ii
TABLE OF AUTHORITIES ................................................................. xvi
STATEMENT REGARDING DISCLAIMER OF BRIEFS
BY OTHER PARTIES ......................................................................... xviii
STATEMENT OF THE ISSUE UNDER REVIEW .............................. 1
STATEMENT OF FACTS .................................................................... 2
SUMMARY OF ARGUMENT ............................................................ 3
ARGUMENT ........................................................................................ 4
1. The Chiquita case presents a question of exceptional
importance: whether the Court has jurisdiction to hear
tort cases by non-citizens where the injury occurs outside
the territory of the United States. ................................................ 4
A. The Court failed to consider the particular contacts
of this case with the United States, through which
it "touches and concerns" the U.S. as required by
the majority in Kiobel v. Shell. ...................................... 4
B. The Court erroneously followed the concurring
opinion of Justice Alito in Kiobel, that was not
adopted by the majority of the Supreme Court. .............. 7
C. The Court created a split with the Fourth Circuit
in Al Shimari v. CACI, and most likely the
Second as well. .............................................................. 8
D. District Courts around the country are all in
line with Judge Martin's dissent. .................................... 10
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:
Agrícola Longaví Limitada
Agrícola Santa Marta Limitada
Agroindustria Santa Rosa de Lima, S.A.
Alamo Land Company
Alsama, Ltd.
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iii
American Produce Company
Americana de Exportación S.A.
Anacar LDC
Arvelo, José 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 Int’l., Inc.
Boies Schiller & Flexner, LLP, Fort Lauderdale
Boies Schiller & Flexner, LLP, Miami
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iv
Boies Schiller & Flexner, LLP, New York
Boies Schiller & Flexner, LLP, Orlando
Brundicorpi S.A.
Cadavid Londoño, Paula
Carrillo, Arturo J.
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 Sàrl
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v
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 España, S.A.
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
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vi
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 Comercializaçao De Fruta,
Unipessoal Lda
Chiquita Relief Fund - We Care
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vii
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.
Compañía Agrícola de Nipe, S.A.
Compañía Agrícola de Rio Tinto
Compañía Agrícola del Guayas
Case: 12-14898 Date Filed: 08/04/2014 Page: 8 of 34
viii
Compañía Agrícola e Industrial Ecuaplantation, S.A.
Compañía Agrícola Sancti-Spiritus, S.A.
Compañía Bananera Atlántica Limitada
Compañía Bananera Guatemateca Independinte, S.A.
Compañía Bananera La Estrella, S.A.
Compañía Bananera Los Laureles, S.A.
Compañía Bananera Monte Blanco, S.A.
Compañía Caronas, S.A.
Compañía Cubana de Navegación Costanera
Compañía Frutera América S.A.
Compañía La Cruz, S.A.
Compañía Mundimar, S.A.
Compañía Productos Agrícolas de Chiapas, S.A. de C.V.
Compañía Tropical de Seguros, S.A.
Conrad & Scherer LLP
Case: 12-14898 Date Filed: 08/04/2014 Page: 9 of 34
ix
Costa Frut S.A.C.
Covington & Burling LLP
Danone Chiquita Fruits SAS
Davies, Patrick
De La Calle Restrepo, José Miguel
De La Calle Londoño y Posada Abogados
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
Case: 12-14898 Date Filed: 08/04/2014 Page: 10 of 34
x
FMR LLC
Fresh Express Incorporated
Fresh Holding C.V.
Fresh International Corp.
Frutas Elegantes, S. de R.L. de C.V.
Fundación Para El Desarrollo de Comunidades Sostenibles en el
Valle de Sula
G & V Farms, LLC
G W F Management Services Ltd.
Garland, James
Girardi, Thomas V.
Gould, Kimberly
Gravante, Jr., Nicholas A.
Great White Fleet Liner Services Ltd.
Great White Fleet Ltd.
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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.
Law Firm of Jonathan C. Reiter
Case: 12-14898 Date Filed: 08/04/2014 Page: 12 of 34
xii
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
Prías Cadavid Abogados
Prías, Juan Carlos
Procesados IQF, S.A. de C.V.
Processed Fruit Ingredients, BVBA
Promotion et Developpement de la Culture Bananiere
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xiii
Puerto Armuelles Fruit Co., Ltd.
Rapp, Cristopher
Reiter, Jonathan C.
Ronald Guralnick, P.A.
Scarola, Jack
Searcy Denney Scarola Barnhart & Shipley, P.A.
Seguridad Colosal, S.A.
Servicios Chiquita Chile Limitada
Servicios de Logística Chiquita, S.A.
Servicios Logísticos Chiquita, S.R.L
Servicios Proem Limitada
Skinner, William
Sperling, Jonathan
Spiers N.V.
Sprague, Ashley M.
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xiv
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.
Verdelli Farms, Inc.
Western Commercial International Ltd.
Wichmann, William J.
Wiesner & Asociados Ltda. Abogados
Wiesner, Eduardo A.
Wilkins, Robert
Wolf, Paul
Wolosky, Lee S.
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xv
Zack, Stephen N
Zhejiang Chiquita-Haitong Food Company Limited
Zuleta, Alberto
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xvi
TABLE OF AUTHORITIES
Cases
* Al Shimari v. CACI Premier Tech. Inc.,
2014 WL 2922840 (4th Cir. June 30, 2014) ............................... 1, 3-4, 8-9
* Balintulo v. Daimler AG, 727 F.3d 174 (2nd. Cir. 2013) ................. 9,11
Blackmer v. United States, 284 U.S. 421 (1932) .................................... 6
Chowdhury v. Worldtel, 2014 WL 503037
(2d Cir. Feb. 10, 2014) ........................................................................... 11
Daobin v. Cisco Sys., Inc.,
2014 WL 769095 (D.Md. Feb. 24, 2014) ............................................... 11
Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) ................................... 6
Gang v. Zhizhen, N2013 WL 5313411 (D. Conn. Sept. 20, 2013) ......... 11
United States v. Hasan, 747 F.Supp.2d 599 (E.D.Va.2010),
aff'd sub nom. United States v. Dire, 680 F.3d 446 (4th Cir. 2012). ...... xviii
In re South African Apartheid Litigation,
2013 WL 6813877 (S.D.N.Y. Dec. 2013) ............................................... 9
In re South African Apartheid Litigation,
2014 WL 1569423 (S.D.N.Y. 17 April 17, 2014) .................................. 9
* Kiobel v. Royal Dutch Petroleum Co.,
133 S.Ct. 1659 (2013) ..................................................................... passim
Krishanti v. Rajaratnam,
2014 WL 1669873 (D.N.J. Apr. 28, 2014) ............................................ 10
* Mamani v. Sánchez-Berzáin,
07-22459-CIV-COHN (S.D.F.L. May 20, 2014) ................................ 11-12
Mwani v. Bin Laden, 2013 WL 2325166 (D.D.C. May 29, 2013). ...... 10
Case: 12-14898 Date Filed: 08/04/2014 Page: 17 of 34
xvii
Mohammadi v. Islamic Republic of Iran
947 F. Supp. 2d 48 (D.D.C. 2013) ....................................................... 11
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010) ................... 6
Rose v. Himely, 8 U.S. (4 Cranch) 241 (1808) ................................... 6
Sexual Minorities Uganda v. Lively, 2013 WL 4130756
(D. Mass. Aug. 14, 2013) ...................................................................... 10
Sikhs For Justice Inc. V. Indian National Congress Party,
2014 WL 1683798 (SDNY 2014) ........................................................ 11
* Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ...................... xviii, 6
The Apollon, 22 U.S. (9 Wheat.) 362 (1824) ..................................... 6
Tymoshenko v. Firtash, 2013 WL 4564646
(S.D.N.Y. Aug. 28, 2013) .................................................................. 11
United States v. Bowman, 260 U.S. 94 (1922) .................................. 6
Constitution and Statutes
28 U.S.C. § 1350 (ATS) .............................................................. passim
F.R.A.P. 35(b)(1) .......................................................................... 1
Other
Restatement (Third) of The Foreign Relations Law of the United
States (1987) ........................................................................................ 6
Black’s Law Dictionary (9th ed. 2009) .............................................. 8
* Cases marked with an asterisk are those principally relied on.
Case: 12-14898 Date Filed: 08/04/2014 Page: 18 of 34
xviii
STATEMENT REGARDING DISCLAIMER
OF BRIEFS BY OTHER PARTIES
1. The Doe Plaintiffs represented herein disclaim any arguments in
support of universal jurisdiction1 made by other parties to the litigation,
whose conflicts of interest in other pending ATS cases apparently require
them to advocate this theory in various forms.
2. Undersigned counsel petitions the Court, for the second time, to hear
him at oral argument. Counsel was excluded from oral argument on April
24, 2014 when the Court granted Paul Hoffman's opposed motion to present
the arguments the day after he filed it and before undersigned counsel could
1 Universal jurisdiction is a concept in international law that would create a
“narrow and unique exception” to the general requirement that nations have
a jurisdictional nexus before punishing extraterritorial conduct committed by
non-nationals. United States v. Hasan, 747 F.Supp.2d 599, 608
(E.D.Va.2010), aff'd sub nom. United States v. Dire, 680 F.3d 446 (4th Cir.
2012). It would allow any “jurisdiction to define and prescribe punishment
for certain offenses recognized by the community of nations as a universal
concern.” Restatement (Third) of Foreign Relations Law § 404 (1987).
Although support for universal jurisdiction can be found in various treaties
and in ad hoc prosecutions such as that of Chilean General Augusto
Pinochet, no country's courts recognize universal jurisdiction in practice.
Universal jurisdiction requires “not only substantive agreement as to certain
universally condemned behavior but also procedural agreement that
universal jurisdiction exists to prosecute a subset of that behavior.” Sosa v.
Alvarez–Machain, 542 U.S. 692, 762 (2004) (Breyer, J., concurring in part
and concurring in the judgment). After Kiobel, there is certainly no
procedural agreement that the Federal Courts may exercise universal
jurisdiction.
Case: 12-14898 Date Filed: 08/04/2014 Page: 19 of 34
xix
respond. Undersigned Counsel represents a majority of the claims filed
against Chiquita to date and filed his own Appellate Brief.
Case: 12-14898 Date Filed: 08/04/2014 Page: 20 of 34
STATEMENT OF THE ISSUE FOR REHEARING
PURSUANT TO F.R.A.P. 35(b)(1)
1. The issue is whether, after Kiobel v. Royal Dutch Petroleum Co., ___ U.S.
___, 133 S.Ct. 1659 (2013), the Court has jurisdiction over tort cases where the
place of injury occurred outside of the territory of the United States. The question
is of exceptional importance since the Panel decision creates a split with the Fourth
Circuit in Al Shimari v. CACI Premier Tech. Inc., 2014 WL 2922840 (4th Cir.
June 30, 2014), which interpreted Kiobel to require a fact-based analysis of
whether the contacts of the case as a whole "touch and concern" the forum. Since
no other circuit has ruled post-Kiobel, the Panel decision conflicts with every other
Court of Appeals to have interpreted the "touch and concern" language to date.
Case: 12-14898 Date Filed: 08/04/2014 Page: 21 of 34
2
STATEMENT OF FACTS
The basic facts of this case are set forth in the Doe Plaintiffs' Opening Brief
of August 5, 2013. For at least seven years, Chiquita made monthly "security"
payments to a right-wing Colombian terrorist organization, the AUC, in violation
of U.S. law. The payments were approved by the Defendant's Board of Directors,
in full knowledge that the AUC was killing thousands of people in the vicinity of
their Colombian banana farms, with the intent that the AUC defeat the left-wing
FARC guerrillas, who are also designated as a terrorist organization, and had been
causing problems for Chiquita's business. The individuals killed were civilians
believed to support the FARC guerrillas. Their murders by paramilitary "death
squads" are best characterized as extrajudicial executions, since they were in the
general course of hostilities of the AUC's military campaign.
Chiquita disguised the payments in a sophisticated conspiracy involving two
sets of bookkeeping overseen by the Board of Directors' Audit Committee in
Cincinnati. Chiquita was criminally prosecuted in the District of Columbia, and
pled guilty to engaging in illegal financial transactions with a terrorist group.
Plaintiff-Appellees are the legal heirs of the people killed on or near Chiquita's
farms during the time when Chiquita was paying the AUC for security.1
1 There are various factual differences among the thousands of cases filed. For
example, victims of the FARC also bring suit for a different period of time when
Chiquita was paying them. For the sake of simplicity, the FARC claims will not
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3
SUMMARY OF ARGUMENT
The Panel made a precedent-setting error of exceptional importance when it
held that federal courts have jurisdiction for torts alleged by non-citizens only
where the injury occurs within the territory of the United States. The Plaintiffs
allege a conspiracy to murder people in Colombia, by employees of a U.S.
corporation in Cincinnati, Ohio, which pled guilty to federal criminal charges for
the exact same conduct.
Instead of mechanically applying the rule of lex loci delecti advocated by
Justice Alito in his concurring opinion in Kiobel v. Royal Dutch Petroleum Co.,
___ U.S. ___, 133 S. Ct. 1659, 1670 (2013) (Alito, J., concurring), the panel
should have analyzed the contacts of this case as a whole to determine whether
they touch and concern the territory of the United States with sufficient force to
displace the presumption that federal statutes don't apply extraterritorially. This
was the majority position in Kiobel, was followed by the Fourth Circuit in Al
Shimari v. CACI Premier Tech. Inc., 2014 WL 2922840 (4th Cir. June 30, 2014),
and also vigorously argued by Judge Martin in her dissent in the instant case. If
the Court doesn't reconsider the matter en banc, this case has a good chance of
being reviewed by the U.S. Supreme Court, which would surely reverse.
be discussed herein, but the legal issue for rehearing is the same, whether the
jurisdiction of U.S. courts can reach their claims.
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4
ARGUMENT
1. The Chiquita case presents a question of exceptional importance:
whether the Court has jurisdiction to hear tort cases by non-citizens
where the injury occurs outside the territory of the United States.
A. The Court failed to consider the particular contacts of this case
with the United States, through which it "touches and concerns"
the territory of the U.S., as required by the majority in Kiobel v.
Shell.
The Panel should have analyzed the facts of the case to see whether it
touches and concerns the territory of the United States with sufficient force to
overcome the presumption against the extraterritorial application of U.S. law.
Kiobel, slip op. at 14. The main facts distinguishing the Chiquita case from Kiobel
are that: (1) Chiquita is a U.S. corporation; (2) the conspiracy to pay the AUC, and
to disguise the payments, was made by Chiquita's management in the U.S., and (3)
Chiquita was criminally prosecuted in the United States for the same conduct.
The Fourth Circuit astutely observed that the “touch and concern” language
requires a fact-based analysis to determine whether particular ATS claims displace
the presumption. Al Shimari v. CACI Premier Tech. Inc., 2014 WL 2922840 at
*24 (4th Cir. June 30, 2014). The Fourt Circuit interpreted the Supreme Court's
use of the word "claim" to include the citizenship of the parties and the various
contacts of the case with the United States, just as one would do when analyzing
personal jurisdiction or choice of laws. The place of injury is not the only contact
to consider.
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5
The blunt application of the rule of lex loci delecti would be rejected by
most Supreme Court Justices. For example, Justice Breyer, whose concurring
opinion was joined by 3 other justices,2 wrote that there would be jurisdiction
under the ATS whenever (1) the alleged tort occurs on American soil, (2) the
defendant is an American national, or (3) the defendant’s 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. (emphasis added)
In the instant case, all three criteria are met. Chiquita is a US corporation;
some elements of the tort occurred in the US (the agreement to kill the decedents in
this action); and Chiquita was prosecuted in the United States for the same
conduct. Justice Breyer's analysis is coextensive U.S. criminal law, which reaches
conduct occurring overseas if there are effects within the United States.3 And even
2 Justice Breyer was joined by Justice Ginsburg, Justice Sotomayor, and Justice
Kagan. Justice Kennedy’s concurring opinion suggests he would also support a
more expansive view of the ATS if presented with the appropriate facts. He notes
that the majority in Kiobel was careful to leave open a number of significant
questions regarding the reach and interpretation of the Alien Tort Statute, and is
positioned as the "swing vote" for future ATS cases. Based on the opinions of
these five justices, it is clearly an error to apply the rule sought by Justices Alito
and Thomas in a concurring opinion. 3 U.S. criminal law applies when part of the acts constituting the crime are
committed outside the U.S., provided that the crime has effects within the U.S.
See M. Cherif Bassiouni, International Extradition: United States Law and Practice
at 359-360 (2002). For example, a witness in the instant case, AUC commander
Ever Veloza Garcia, is in prison in the U.S. for his drug trafficking activities in
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6
in the Morrison case, the Supreme Court held that although the presumption is no
"timid sentinel," its proper application "often ... is not self-evidently dispositive"
and "requires further analysis." Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247,
266 (2010). As the Sosa Court recognized, a key factor in the analysis is
proximate cause, with jurisdiction turning on whether “the act or omission [in the
United States] was sufficiently close to the ultimate injury, and sufficiently
important in producing it, to make it reasonable to follow liability back to the
[domestic] behavior.” Sosa, 542 U.S. at 703.
Colombia. Jurisdiction was based on the foreseeability that the drugs might go the
United States. Colombian drug traffickers may not know where the drugs are
shipped, yet the U.S. can still exercise jurisdiction and extradite them.
It is also a fundamental principle of international law that every State has the
sovereign authority to regulate and punish the conduct of its own citizens,
regardless of whether that conduct occurs inside or outside of the State’s territory.
See Restatement (Third) of The Foreign Relations Law of the United States §
402(2) (1987); Rose v. Himely, 8 U.S. (4 Cranch) 241, 279 (1808) (observing that
beyond its own territory, the laws of a country “can only affect its own subjects or
citizens”); The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824) (“The laws of no
nation can justly extend beyond its own territories, except so far as regards its own
citizens.”); United States v. Bowman, 260 U.S. 94 (1922) (holding that an
extraterritorial effect should be presumed where there was no conflict with external
laws, and where the purpose of the law would plainly be served by applying
extraterritorially); Blackmer v. United States, 284 U.S. 421 (1932) (“By virtue of
the obligations of citizenship, the United States retained its authority over him, and
he was bound by its laws made applicable to him in a foreign country.”) Foley
Bros., Inc. v. Filardo, 336 U.S. 281 (1949) (“The question before us is not the
power of Congress to extend the Eight Hour Law to work performed in foreign
countries. Petitioners concede that such power exists. The question is rather
whether Congress intended to make the law applicable to such work.”).
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7
B. The Court erroneously followed the concurring opinion of Justice
Alito in Kiobel, that was not adopted by the majority of the
Supreme Court.
The Panel misapplied Kiobel by following the concurring opinion of Justice
Alito in Kiobel, which was joined only by Juistice Thomas, and is in sharp contrast
with the majority opinion. Justices Alito and Thomas would bar an ATS action
“unless the domestic conduct is sufficient to violate an international law norm” that
is sufficiently definite and accepted among civilized nations. Kiobel, 133 S. Ct. at
1670 (Alito, J., concurring). In other words, only the place of injury has any
relevance. They do not use term "place of injury," but that is precisely what they
mean. According to this view, domestic conduct sufficient to justify a guilty plea
to federal criminal charges is not even relevant.4
The Panel held that "[a]ll of the relevant conduct in our case took place
outside of the United States." Memo Op. at 6. The Panel refused to consider the
relevance of Chiquita's U.S. citizenship, that the hub of the conspiracy was in
Ohio, and that the U.S. Department of Justice successfully prosecuted Chiquita in
the District of Columbia for the same conduct. None of this was even relevant.
The analysis proposed by Justice Alito in Kiobel, and followed by the Panel
in the instant case, is far more limited than the majority opinion’s requirement that
4 This dispute is over whether secondary liability theories can be used in
connection with the ATS. According to the more restrictive view, the injury itself
must occur within the territory of the United States.
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8
“the claims touch and concern the territory of the United States . . . with sufficient
force to displace the presumption against extraterritorial application.” Kiobel at
1669. It also bears a striking resemblance to the doctrine of lex loci delecti in
conflict of laws. While some states still use this old rule for torts, they don't use it
to limit their own jurisdiction.
C. The Court created a split with the Fourth Circuit in Al Shimari v.
CACI, and most likely the Second as well.
As the Fourth Circuit observed in Al Shimari v. CACI Premier Tech. Inc.,
2014 WL 2922840 (4th Cir. June 30, 2014), the Supreme Court in Kiobel broadly
stated that the “claims,” rather than the alleged tortious conduct, must touch and
concern United States territory with sufficient force. This suggests that courts
must consider all the facts that give rise to ATS claims, including the parties’
identities and their relationship to the causes of action. Al Shimari at *12. The
Court should give the term "claim" its correct legal meaning. See Black’s Law
Dictionary 281 (9th ed. 2009) (defining “claim” as the “aggregate of operative
facts giving rise to a right enforceable by a court”).
The Fourth Circuit found the presumption was displaced in part because
CACI’s managers in the United States gave tacit approval to acts of torture
commited in Iraq, attempted to cover up the misconduct, and encouraged it. Al
Shimari at *12. The Chiquita case is stronger, since Chiquita was criminally
prosecuted in the United States for the same type of conduct. The Plaintiffs in
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Chiquita also allege a higher mens rea standard, of intent, than was articulated in
the Al Shimari case.
The Second Circuit appears to have the same view. In Balintulo v. Daimler
AG, 727 F.3d 174 (2nd. Cir. 2013), the court recognized that in Kiobel "the
majority simply left open any questions regarding the permissible reach of causes
of action under the ATS when “'some domestic activity is involved in the case.'”
Id. at 188. On remand, the district court dismissed the claims against the foreign
corporations with only ‘mere presence’ in the United States, In re South African
Apartheid Litigation, 2013 WL 6813877 *2 (S.D.N.Y. 26 December 2013), but
retained jurisdiction over the US corporate defendants, and granted plaintiffs leave
to amend the complaint to allege relevant conduct in the United States. In re South
African Apartheid Litigation, ___ F.Supp.2d ___, 2014 WL 1569423 (S.D.N.Y. 17
April 2014). Therefore, the Second Circuit also reads Kiobel as suggesting that
some relevant conduct in the US could be sufficient to rebut the Kiobel
presumption, particularly where it involves a U.S. defendant.
The Ninth and D.C. Circuits have also remanded similar cases after Kiobel,
with instructions to allow plaintiffs leave to amend their complaints. This suggests
that those Circuits also read Kiobel to require a fact-based analysis of whether the
contacts touch and concern the U.S. with sufficient force to provide jurisdiction.
See Doe v. Exxon Mobil, 527 Fed.Appx. 7 (D.C. Cir. June 26, 2014) (not
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reported); Doe v. Nestle, 738 F.3d 1048 (9th Cir. Dec. 2013) (remanding with
instruction to grant leave to amend complaint to properly allege actus reus in light
of Kiobel). These Circuits could just as easily done what the 11th Circuit did, and
said that Kiobel imposes a bright line rule based on the place of injury.
The Court should reconsider en banc whether the Panel's reactionary
interpretation of Kiobel represents the view of the entire 11th Circuit. The only
active member of the 11th Circuit who was on the panel was Judge Martin, whose
vigorous dissent parallels the analysis of the Fourth and Second Circuits, and
should be followed in the 11th Circuit also.
D. District Courts around the country agree with Judge Martin's
dissent.
Since the Kiobel decision, District Courts have uniformly analyzed the
contacts of their cases to determine whether they touch and concern the territory of
the United States with sufficient force to support the exercise of jurisdiction. See
Krishanti v. Rajaratnam, 2014 WL 1669873 at *10 (D.N.J. Apr. 28, 2014) (finding
jurisdiction for ATS claims brought against U.S. citizens and a U.S. organization
who organized and funded terrorist bombings in Sri Lanka); Sexual Minorities
Uganda v. Lively, 2013 WL 4130756 (D. Mass. Aug. 14, 2013) (finding
jurisdiction to hear ATS claim brought against U.S. citizen who assisted, managed,
and advised a foreign nation’s violations of international law); Mwani v. Bin
Laden, 2013 WL 2325166 (D.D.C. May 29, 2013). (jurisdiction for claim brought
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by foreign nationals injured in a foreign terrorist attack against U.S. embassy in a
foreign state); Daobin v. Cisco Sys., Inc., ––– F.Supp.2d ––––, 2014 WL 769095,
at *9 (D.Md. Feb. 24, 2014) (observing that Kiobel may be distinguishable because
(1) “Cisco is an American company”; and (2) plaintiffs alleged that Cisco's
conduct“took place predominantly, if not entirely, within the United States”). We
have yet to identify any post-Kiobel case with similar contacts with the United
States which was dismissed. To date, the cases not finding jurisdiction have lacked
these kinds of contacts.5 In Mamani v. Sánchez-Berzáin, 07-22459-CIV-COHN
(S.D.F.L. May 20, 2014), the Southern District of Florida surveyed these cases,
and found that the dismissed cases all had one thing in common - they all lacked
any kind of connection to the United States. Id. at *17-22. The Florida District
5 See Balintulo v. Daimler AG, 727 F.3d 174 (2nd. Cir. 2013) (finding no
jurisdiction where the only contact with the U.S. was that the defendant was "doing
business in that state" and therefore subject to general personal jurisdiction);
Chowdhury v. Worldtel, 2014 WL 503037 (2d Cir. Feb. 10, 2014) (no jurisdiction
for claims brought by Bangladeshi plaintiff against Bangladeshi business and
citizen for torture occurring in Bangladesh); Sikhs For Justice Inc. V. Indian
National Congress Party, 2014 WL 1683798 (SDNY 2014) (no jurisdiction for
claims brought by Indian citizens against an Indian political party for conduct
taking place in India); Tymoshenko v. Firtash, 2013 WL 4564646 (S.D.N.Y. Aug.
28, 2013) (no jurisdiction for claims brought by former Ukrainian prime minister
against a Swiss corporation that allegedly bribed Ukrainian officials); Mohammadi
v. Islamic Republic of Iran 947 F. Supp. 2d 48, 65 (D.D.C. 2013) (no jurisdiction
for claims of extrajudicial killing and torture in Iran brought by relatives of an
Iranian citizen against the Islamic Republic of Iran and the Revolutionary Guard);
Gang v. Zhizhen, N2013 WL 5313411 (D. Conn. Sept. 20, 2013) (no jurisdiction
for claims brought by Chinese citizens and residents against a Chinese media
executive who promoted the torture of Falun Gong practioners in China).
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Court's analysis in Mamani was very thorough and is a fine example for the 11th
Circuit to use.
Conclusion
The Panel's split decision reflects a similar ideological divide in the U.S.
Supreme Court in Kiobel. The more restrictive view of the Court's jurisdiction is
animated by two unstated concerns. The first is that the majority of the Alien Tort
Statute cases brought to date have had little to do with the United States, and
represent the American version of the concept of universal jurisdiction. There is a
concern that the US take on the role of world court of human rights. The second
unstated concern is that this type of litigation will unfairly prejudice American
corporations trying to do business overseas.
Both concerns are overstated. First, the instant case involves substantial
conduct by employees of a U.S. corporation acting in the United States, for which
Chiquita pled guilty to federal criminal charges in D.C. District Court. The facts of
the case are extraordinary, and pose no threat of overwhelming the courts with
foreign human rights litigation. Second, hearing this kind of case doesn't unfairly
prejudice American companies doing business abroad. Most of the ATS cases to
date have been against foreign defendants, and there is nothing unfair about
punishing a company for financing a terrorist group.
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The Court should reconsider en banc whether the Panel applied the test of
the majority in Kiobel, or whether it erroneously followed the concurring opinion
of Justice Alito, which conflicts with the majority opinion, creates a circuit split,
and appears based on concerns that this type of litigation prejudices American
businesses and threatens to overwhelm the courts with foreign cases. Kiobel
should have addressed these concerns. On the other hand, imposing a rule like lex
loci delecti on the jurisdiction of federal courts goes against our national policy to
discourage American citizens and corporations from financing terrorist groups.
For these reasons, the Court should reconsider the Panel opinion en banc.
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
August 4, 2014
CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of August, 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
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parties in this litigation. I further certify that all parties required to be served have
been served.
/s/ Paul Wolf
____________________
Paul Wolf DC Bar # 480285
Attorney for Doe Plaintiffs
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