Chiquita seeks dismissal in Colombian case

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By CURT ANDERSON, Associated Press

MIAMI (AP) — Faced with potentially billions of dollars in legal liability, Chiquita Brands International is asking a federal appeals court to block lawsuits filed against it in the U.S. by thousands of Colombians whose relatives were killed in that country's bloody, decades-long civil war.

The produce giant, which long had huge banana plantations in Colombia, has admitted paying a right-wing Colombian paramilitary group $1.7 million over a seven-year period. The Charlotte, N.C.-based company insists it was blackmailed into paying or risking violence against its own operations and employees, although in 2007 Chiquita pleaded guilty to U.S. criminal charges that it had supported terrorists. It paid a $25 million fine.

The Colombian lawsuits, consolidated for pretrial action before a federal judge in West Palm Beach, want Chiquita held liable for thousands of deaths at the hands of the AUC, the Spanish acronym for the right-wing United Self-Defense Forces of Colombia. The Colombian relatives have won several key pretrial rulings, but now Chiquita is taking its fight for dismissal to a new level.

In essence, Chiquita wants the 11th U.S. Circuit Court of Appeals to dismiss the lawsuits because, the company claims, each murder cannot be tied specifically to the company. It's not enough, Chiquita's lawyers say in court papers, to assume the company's payments to the AUC meant Chiquita knew about and supported those individual killings.

Chiquita also says the Colombian cases should be tossed because of a U.S. Supreme Court ruling last April in a case called Kiobel vs. Royal Dutch Petroleum, which imposed new limits on the ability of foreigners to use American courts to seek accountability and monetary damages for human rights abuses.

Any decision by the 11th Circuit is likely months away, adding to years Colombian family members have already been waiting for the lawsuits to be resolved. The cases were consolidated in Florida in 2008.

Three women who lost relatives to the AUC and are among the plaintiffs in lawsuits against Chiquita agreed to speak by phone recently with The Associated Press from the town of Apartado, Colombia. They spoke on condition that their names not be used because they fear retribution from former paramilitary members, many of whom still live in the area and have powerful political connections.

Human rights groups say many former paramilitary members have reorganized into what are called "emerging criminal bands" involved in extortion and racketeering.

One of the women, a 48-year-old who makes a small income sitting for a neighbor's baby, said paramilitary troops descended on her home in 2000 while her husband and a friend were working in their garden. The troops requested identification papers and demanded to know whether there were weapons for the leftist guerrillas hidden in the home. She said they ransacked the home and found none, and she fled with the couple's infant child.

"When he let me go, I ran with my girl and jumped over the (garden) wall. I don't even know how I did that. I'd never done it before," the woman said between sobs.

When she returned to her home with neighbors, she found her husband shot dead on their kitchen floor. Now, she said, the Chiquita lawsuit gives her some hope for justice and a better life for herself and her two children.

"I am fighting for my children, so that they can have some help after all this time," the woman said.

Another woman, a 45-year-old single mother of three, makes a living selling lunches from house to house. She said right-wing paramilitary soldiers initially forced her family off their land in 1997, accusing them of being sympathetic to the leftists. Not long after, she said, her 17-year-old brother was brutally beaten and fatally shot.

"It is still horrible for us. My mother died the next year of sadness," she said. "The bitterness is never erased."

Despite these horrific stories and hundreds more, Chiquita's lawyers say the Colombians "do not allege a single fact that links Chiquita to any of the acts of violence at issue, much less that suggest Chiquita wanted the violence to happen."

"High levels of generality are all that plaintiffs have offered," Chiquita says in the filing.

Lawyers for the Colombians say that argument conflicts with U.S. criminal law, which generally makes the high-level decision maker in a conspiracy more liable than someone who was simply following those orders. That should apply in this civil case as well, they say. Chiquita, they argue, knew the AUC was killing civilians even if it didn't know the specifics.

"It does not make a lot of sense because then the people who gave the orders, but did not know the victims' names, are not responsible, and only the actual trigger-pullers have done something wrong," said Paul Wolf, who represents several thousand Colombian plaintiffs.

Still, Chiquita points to a recent 11th Circuit ruling that a former Bolivian defense minister couldn't be held liable for extrajudicial killings even though he was in a helicopter directing military personnel where to fire weapons. The court ruled there wasn't a sufficient connection between the minister's orders and the deaths that resulted.

The payments to the AUC were not the first made by Chiquita against the backdrop of Colombia's long civil conflict. Previously, the leftist Revolutionary Armed Forces of Colombia — known by its Spanish FARC acronym — demanded hundreds of thousands of dollars in payments from Chiquita and other companies or their employees and operations would be attacked.

The AUC was formed in 1997 to unite several right-wing militias to battle FARC and its supporters. The resulting campaign, supported by top Colombian political leaders, eventually resulted in 50,000 mostly civilian deaths and several infamous massacres, Colombian prosecutors say.

Chiquita, the largest U.S. banana seller, first had banana operations in Colombia in 1899. The company sold its Colombian subsidiary Banadex in 2004.

Chiquita's second argument involves the Supreme Court's recent decision involving the Alien Tort Statute, a law dating to 1789 used by lawyers representing victims of torture, extrajudicial killings and war crimes to seek damages in U.S. courts. That law allows claims for violations of the "laws of nations," U.S. treaties and the Torture Victims Protection Act.

Chiquita contends that charges in the Colombian lawsuits have no connection to the U.S. under the new Supreme Court decision.

"Instead, they involve allegations that Colombian guerrilla and paramilitary groups tortured and killed Colombians in Colombia," the company's court filing says, meaning a U.S. federal judge has no jurisdiction.

The Colombians' lawyers, however, argue that Chiquita differs from the Dutch oil company in the Kiobel case because it is based in the U.S., decisions about making the AUC payments were made in this country and Chiquita does a robust U.S. business. Wolf said the 11th Circuit could issue a ruling that would bolster human rights cases that suffered a blow in the Supreme Court.

"It is an opportunity to establish and important precedent and preserve this area of human rights law," Wolf said.

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Associated Press writer Laura Wides-Munoz contributed to this story.

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