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11th Circuit revives lawsuits accusing Chiquita of funding Colombian terrorists

The panel decided that the Florida judge who dismissed the families’ claims had “no basis” to doubt the credibility of investigations conducted by Colombian officials.

ATLANTA (CN) — The 11th Circuit partially overturned a Florida federal judge’s ruling in favor of Chiquita Brands International, which was sued by people whose family members were killed by a Colombian paramilitary group allegedly financially supported by the company.

For more than a decade, the victims’ relatives have waged a legal battle in the U.S. District Court for the Southern District of Florida to hold the banana giant accountable for funding a right-wing terrorist group they claim kidnapped, tortured and murdered their loved ones during a civil war.

Nancy Mora Lemus, one of the 14 plaintiffs, watched as two men took her husband from their home, tied him to a pole and cut his throat. She claims the men were members of the Autodefensas Unidas de Colombia (AUC), a paramilitary group that terrorized the Uraba and Magdalena regions of Colombia between 1997 and 2004.

The AUC was designated as a foreign terrorist organization by the U.S. Secretary of State. Chiquita pleaded guilty in 2007 to engaging in transactions with a specially designated global terrorist by making payments to the group in regions where the company had banana-producing operations. Chiquita was ordered to pay a $25 million fine.

Lemus and hundreds of others sued Chiquita and some of its executives under Colombian law and under the Torture Victim Protection Act in 2008, alleging that Chiquita’s financial support of the AUC led to the group’s murder of their family members.

The plaintiffs claimed the company funneled $1.7 million to the AUC even though it was aware that the group was a violent terrorist organization.

Ten bellwether cases were consolidated out of the original actions in Florida federal court, where U.S. District Judge Kenneth Marra ruled in favor of the company in 2019. Marra found that the families failed to link their loved ones’ deaths to the AUC.

The appeal before the 11th Circuit challenged several evidentiary rulings by the district court which led to a victory for Chiquita.

In a 104-page ruling breaking down the lower court’s findings, a three-judge panel of the Atlanta-based appeals court unanimously agreed that some of the evidence presented by the plaintiffs should be excluded but ultimately rejected Marra’s finding in favor of Chiquita.

The panel bristled at Marra’s determination that the circumstantial evidence proffered by the plaintiffs about the frequency and manner of the killings in certain geographic areas was not enough to establish a connection with the AUC.

“Tragically, the geographic areas where Plaintiffs’ decedents resided were brutalized by numerous warring factions over the course of a long and bloody civil war (with some areas undergoing transition from guerilla-based control to paramilitary-based control during the time frames in question), as noted in the data collected and presented by [plaintiffs’] experts,” Marra wrote.

Writing on behalf of the panel, U.S. Circuit Judge Adalberto Jordan opined that while the evidence from the plaintiffs may not be sufficient on its own to establish the AUC’s involvement in the killings, the statistical evidence offered by their expert is enough to get their claims in front of a jury.

The panel also found that the district court should not have excluded the expert testimony of Oliver Kaplan, an associate professor at the Josef Korbel School of International Studies at the University of Denver and associate director of the Korbel School’s Latin America Center.

Kaplan, an expert on Colombian politics and armed conflict in Colombia, testified that the AUC targeted political enemies, banana workers and unionists. He also corroborated the plaintiffs’ accounts of the murders.

The ruling lays out statistical data presented by Kaplan that between 1997 and 2007, paramilitaries were responsible for 90% of the murders in the decedents’ municipalities.

The panel ruled that Marra failed to consider “the full universe of information on which Mr. Kaplan relied” when it decided to exclude his opinion.

Among the other evidence which the 11th Circuit found was incorrectly excluded is the indictment of AUC leader Raúl Hasbún — which came with a chart listing multiple murders to which Hasbún allegedly confessed — and several letters by Colombian prosecutors and investigators stating that another AUC leader, José Lugo Mangones, confessed to the murders of three plaintiffs’ relatives.

“The district court cited no basis for its implied doubt that the Colombian officials had utilized legally authorized investigations to reach the factual findings discussed in the letters.  As far as we can tell from the record, there is no basis for such doubt,” Jordan, a Barack Obama appointee, wrote.

However, the panel sided with the district court in its decision to exclude two documents purporting to be convictions of AUC members in the Justice and Peace process as final judgments of conviction.

“The Justice and Peace process was one in which the Justice and Peace Unit of the Colombian Office of the Public Prosecutor investigated offenses allegedly committed by paramilitary participants, and in which AUC members could truthfully confess to crimes in order to receive sentences that were lower than they would otherwise be in the ordinary Colombian criminal system,” the ruling explains.

Four plaintiffs submitted a 2015 judgment of conviction against Mangones to support their claims. The document, called a sentencia, was inadmissible because it did not contain Mangones’ actual conviction, the panel ruled.

The opinion also makes determinations about whether certain testimony from the plaintiffs should have been admitted into evidence.

According to the ruling, the seven children of an individual identified as Jose Lopez 339 claim that AUC leader Rendón Herrera personally apologized to them for their father’s death. Herrera allegedly told them that he had their father killed based on mistaken information.

The opinion states that the children’s testimony should not have been excluded because they twice attempted to depose Herrera in Columbia but he failed to appear.

The decision is largely silent on the fate of the plaintiffs’ claims against Chiquita executives. However, the panel upheld Marra’s denial of a motion to dismiss the claims against the estate of Roderick Hills, Sr., a now-deceased director of Chiquita who also served as president of the board’s audit committee.

In a statement after the ruling was announced, an attorney who serves as lead counsel for the plaintiffs said the case was “very important” for “corporate accountability.”

“Chiquita has already admitted it paid over a million dollars to the AUC, a paramilitary group designated as a foreign terrorist organization by the United States. The Eleventh Circuit has now found that the Plaintiffs presented sufficient admissible evidence to show that the AUC killed their loved ones,” Agnieszka Fryszman of Cohen Milstein Sellers & Toll said. “After years of briefing these issues, we look forward to presenting our evidence to a jury and seeking justice for our clients.”

A representative for Chiquita did not respond to a request for comment.

Jordan was joined on the panel by U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, and Senior U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee.

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