In re Chiquita Brands Int'l Inc. Alien Tort Statute & S'holders Derivative Litig.

• Decision Date: 30 May 2019
• Docket Number: Case No. 08-01916-MD-MARRA
• Parties: IN RE: CHIQUITA BRANDS INTERNATIONAL INC. ALIEN TORT STATUTE AND SHAREHOLDERS DERIVATIVE LITIGATION This Document Relates To: ATS ACTIONS 08-80421-CIV-MARRA (N.J. Action) (Does 1-11) 18-80248-CIV-MARRA (Ohio Action)
• Court: U.S. District Court — Southern District of Florida

IN RE: CHIQUITA BRANDS INTERNATIONAL INC. ALIEN TORT STATUTE

AND SHAREHOLDERS DERIVATIVE LITIGATION

This Document Relates To:

ATS ACTIONS 08-80421-CIV-MARRA (N.J. Action) (Does 1-11)

18-80248-CIV-MARRA (Ohio Action)

Case No. 08-01916-MD-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

May 30, 2019

ORDER AND OPINION DENYING NEW JERSEY PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [DE 2290]

I. INTRODUCTION

This case involves the claims of thousands of Colombian nationals who allege that they or their family members were victims of kidnapping, torture, extrajudicial killings or other human rights abuses during the Colombian civil war at the hands of a violent right-wing paramilitary group with financial ties to a United States-based corporation. More specifically, Plaintiffs contend that Chiquita Brands International, Inc. ("Chiquita') funneled approximately 1.7 million dollars to the Autodefensas Unidas de Colombia (United Self-Defense Groups of Colombia, or the "AUC"). The AUC is a Colombian terrorist organization believed to have massacred over 100,000 persons in Colombia between 1995 and 2006, including over 10,000 civilians living in the fertile Uraba and Magdalena regions where Chiquita operated. The funds provided by Chiquita allegedly enhanced the AUC's terror capabilities and facilitated its killing campaign in the regions where Plaintiffs and their families lived.

After Chiquita's financial relationship to the AUC and other Colombian terror groups gained significant media attention in March of 2007, when Chiquita pled guilty to making payments to a designated terrorist organization and agreed to pay a $25 million fine in criminal proceedings filed in the District of Colombia, thousands of persons whose family members were allegedly brutalized by the AUC filed suit in the United States seeking to hold Chiquita and various of its executive officers accountable for their alleged role in strengthening the AUC killing machinery.¹

On February 20, 2008, the Judicial Panel on Multidistrict Litigation centralized six cases in this district and assigned the case to the undersigned. The Panel has since continued to transfer cases from around the country. In addition, a number of cases were filed in this District, and the Court combined those cases with the multidistrict cases. At this time, there are approximately nineteen cases left in this MDL litigation, comprised of Colombian common law tort claims against all Defendants and statutory claims under the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note,² against various Individual Defendants. Cumulatively, roughly 7500 individuals appear as plaintiffs in these remaining cases. Of these, the New Jersey plaintiffs, Does 1-11, have filed their claims in a representative capacity, pleading a putative class action on behalf of thousands of other unnamed Colombian citizens victimized by the AUC in the Uraba andMagdalena regions between 1995 and 2004, the time period over which Chiquita allegedly paid the AUC and its predecessor.³

II. FACT AND PROCEDURAL BACKGROUND

The factual and early procedural history of this case is described in prior rulings of the Court and will not be repeated here [DE 1110] [DE 1194] [DE 1733].⁴ The more recent procedural chronology of the case, as relevant to the instant motion, is highlighted as follows.

In November 2016, after the conclusion of an initial dispositive motion round, the Court dissolved its previously-entered discovery stay [DE 1197]. It next solicited a proposed scheduling order from the parties governing pretrial procedures and trial dates for the Florida-filed cases, along with a proposed scheduling order governing pretrial procedures in all other cases subsumed within this MDL proceeding [DE 1246]. Following submission of proposed scheduling orders outlining pretrial and trial procedures for the parties' bellwether case selections, on April 11, 2017, the Court entered its original Global Scheduling Order which largely tracked and incorporated the parties' stipulated terms while resolving a few areas of disagreement [DE 1361].⁵ Also in early 2017, the New Jersey Plaintiffs sought leave to file a third amended complaint for the stated purpose ofadding, as named plaintiffs, a sizable group of additional claimants originally travelling as unnamed members of the putative class, in addition to other unspecified "minor clerical changes." On March 27, 2017, the Court denied that motion, citing the advanced stage of the proceeding and imminent scheduling of the matter for trial [DE 1315].

In November 2017, the New Jersey Plaintiffs propounded limited fund class discovery on the Defendant Chiquita, and, failing a satisfactory response, moved to compel the production of that material. The motion to compel was denied as untimely in an Omnibus Order entered March 2018 [DE 1856]. Five months later, on August 17, 2018, the New Jersey Plaintiffs first sought leave to file a class certification motion and moved to amend the global scheduling order to incorporate a corresponding briefing schedule [DE 2054] - an item neither side addressed in the originally-proposed scheduling orders. The Court granted this motion, over Defendants' objection to its timeliness, and imposed a briefing schedule which tracked that governing the dispositive motion briefing agenda then in place for selected bellwether cases on track for trial [DE 2246].

Accordingly, on February 15, 2019, the New Jersey Plaintiffs filed the instant motion seeking certification of a "predominance" class under Rule 23(b)(3), or alternatively, an "issue" class under Rule 23(c)(4), against the Defendant Chiquita and various Individual Defendants.⁶ In support of the motion, Plaintiffs have filed: (1) the affidavit of counsel Melissa Vahsling, purporting to establish the proposed class representatives' status as AUC-victims, based on Attorney Vahsling's asserted "personal knowledge" and review of "highly confidential documents" regarding the proposed class representatives. This affidavit, however, does not explain the basis for any personal knowledge of the facts recited, nor does it specifically identify thesecondary sources on which the statements are presumably based. It does refer to a review of "highly confidential documents," described by Bates-stamp number, which purportedly show that Jane Doe 7 and John Doe 7, the proposed class representatives, have "registered" as victims of the AUC with the Colombian authorities under its Justice and Peace Law program, and that the Colombian authorities "have opened an investigation" into the murders of their respective family members. In the case of John Doe 7, the affidavit recites that "an AUC paramilitary has taken responsibility for [his son's] murder during the Justice and Peace process."⁷ Both representatives are alleged to have received administrative payments from the Colombian government as a result of their claims and the apparently still "open investigation[s]" into the murders of their family members [DE 2290-2]; (2) the affidavit of counsel Sean Powers, purporting to authenticate and introduce the following evidentiary matters in support of the class certification motion: (a) theUnited States government's sentencing memorandum from the 2007 D.C. criminal case; (b) the Factual Proffer entered in the D.C. criminal case; and (c) excerpts from reports generated by Plaintiffs' retained experts, Professor Oliver Kaplan, Professor Terry Lynn Karl and Col. Carlos Alfonso Velasquez Romero [DE 2290-3].

Defendant Chiquita and the Individual Defendants ("Chiquita Defendants") have filed a Response in Opposition to the Motion [DE 2323], as have the ATS Plaintiff groups represented by Attorney Wolf [DE 2294]. The New Jersey Plaintiffs have filed their Reply [DE 2399]. Having carefully reviewed the motion, proffered evidentiary support, and underlying briefing of all parties, the Court finds the prerequisites to class certification have not been established in this case and denies the motion for class certification.

III. NEW JERSEY PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

A. THE PROPOSED CLASS

The New Jersey Plaintiffs seek certification of a "predominance" class under Rule 23(b)(3) consisting of the following individuals:

All persons who were the victims of (or who are the relatives and/or legal representatives of decedent victims) of extrajudicial killing; forced disappearance; torture; cruel, inhuman, or degrading treatment; kidnapping; rape; forced displacement; crimes against humanity; or crimes against civilians constituting war crimes committed by the AUC in the banana-growing regions of Uraba and Magdalena from 1995 through 2004.

[DE 2290, Motion p. 5]. The proposed class representatives are "Jane Doe 7," whose husband (John Doe 11) was a banana worker and union leader allegedly killed by the AUC in June 1999,and "John Doe 7," whose son (John Doe 8) was a banana worker allegedly killed by the AUC in 2000 after being accused of stealing from a banana farm in Uraba [DE 2290, Motion pp. 5-6].

The New Jersey Plaintiffs alternatively seek certification of an "issues" class under Rule 23(c)(4), proposing certification of the following asserted common issues:

a. Was the AUC a violent, right-wing organization in Colombia that engaged in the kidnapping and murder of civilians?

b. Did Chiquita make more than 100 payments totaling more than $1.7 million to the AUC, through Chiquita's subsidiary Banadex, from at least 1997 through 2004?

c. Were these payments reviewed and approved by senior Chiquita executives?

d. Did the AUC use convivirs as front organizations to collect money?

e. Did the AUC instruct that Banadex should make payments to convivirs?

f. In 2003 and 2004, did Chiquita continue to pay the AUC against the advice of its outside counsel, even after being advised that the payments were illegal under U.S. law?

[DE 2290, p. 23] [DE 2290-1].

B. PLAINTIFFS' FACTUAL PROFFER

1. Report of Professor Oliver Kaplan⁸

The university...