District Court Denies Motion to Dismiss Certain Alien Tort Statute Claims Against Chiquita Brands International

On June 3, the U.S. District Court for the Southern District of Florida declined to dismiss certain claims brought by Colombian plaintiffs against Chiquita Brands International ("Chiquita") alleging that the company knew, or should have known, that its material support for the United Self-Defense Forces of Colombia (“AUC”), a paramilitary organization, would lead to the death or torture of their family members. In Re: Chiquita Brands International, Inc., Alien Tort Statute and Shareholders Derivative Litigation, 08-1916 (S.D. Fla. June 3, 2011).

In March 2007, Chiquita admitted that it had provided payments to the AUC, stating that it had done so in order to ensure the protection of Chiquita employees and banana plantations in Colombia.  At the time of its admission, the company agreed to pay a $25 million fine for providing funds to an organization on the United States’ list of terrorist organizations and to cooperate in an investigation by the U.S. Department of Justice. 

After Chiquita’s admission, cases were filed against Chiquita in several jurisdictions. Plaintiffs’ claims were brought pursuant to the Alien Tort Statute ("ATS") and the Torture Victim Protection Act.  Plaintiffs also brought state law tort claims under the laws of Florida, New Jersey, Ohio, and the District of Colombia, as well as several claims under Colombian law.

Generally, to survive a motion to dismiss, plaintiffs are required to plead facts that, if accepted as true, state a claim to relief that is plausible on its face.  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).  In its June 3 order, the District Court upheld plaintiffs’ ATS claims for torture, extrajudicial killing, war crimes, and crimes against humanity. The Court dismissing several other ATS claims, including claims for terrorism, material support for terrorism, and for cruel, inhuman, and degrading treatment, finding that these claims were not actionable under the ATS. The Court upheld plaintiffs’ TVPA claims for torture and extrajudicial killing.  Finally, the Court dismissed plaintiffs’ state law claims, as well as claims brought under Colombian law. 

In upholding several of plaintiffs’ ATS claims, the District Court recognized certain theories of indirect liabilty under the ATS, including aiding and abetting and conspiracy.  In upholding these indirect theories of liability, the Court stated that

[I]n order for Plaintiffs to allege that Chiquita is secondarily liable for the AUC’s violations of international law, they must allege that Chiquita assisted or conspired with the AUC with the purpose or intent to facilitate the commission of the specific offenses alleged. Thus, to plead aiding and abetting liability, Plaintiffs must allege that (1) the AUC committed an international-law violation, (2) Chiquita acted with the purpose or intent to assist in that violation, and (3) Chiquita’s assistance substantially contributed to the AUC’s commission of the violation….To plead conspiracy liability, Plaintiffs must allege that (1) Chiquita and the AUC agreed to commit a recognized international-law violation, (2) Chiquita joined the agreement with the purpose or intent to facilitate the commission of the violation, and (3) the AUC committed the violation.

In upholding these indirect theories of liability, the Court cited to several appellate court decisions, including Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005), and Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005).  Notably, the Court rejected plaintiffs’ agency theory of indirect liability, observing that "Plaintiffs point to no authority recognizing agency liability under international law."

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