does v chiquita brands, petition for rehearing en banc

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

[email protected]

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


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.


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


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


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


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


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


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


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


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.


xi

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


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


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.


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.


xv

Zack, Stephen N

Zhejiang Chiquita-Haitong Food Company Limited

Zuleta, Alberto


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


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.


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.


xix

respond. Undersigned Counsel represents a majority of the claims filed

against Chiquita to date and filed his own Appellate Brief.


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.


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


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.


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.


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


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.”).


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.


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


9

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


10

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).


12

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.


13

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

[email protected]

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


14

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


does v chiquita brands, petition for rehearing en banc

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