11th Circuit OKs unmasking of plaintiffs who accuse Chiquita of funding Colombian terrorists

By: - July 17, 2020 2:35 pm

Chiquita bananas are offered for sale. A lawsuit claims the company was complicit in human rights abuses in Colombia. Credit: Wikileaks Commons

Colombians who accuse Chiquita Brands International Inc. of paying paramilitaries who killed their loved ones are not entitled to withhold their identities while litigating a massive class action in South Florida, a federal appeals court has ruled.

A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit said the plaintiffs hadn’t demonstrated that revealing their names, addresses, and other personal information would put themselves or their loved ones at risk of reprisal.

“Lacking specific evidence, the pseudonymous appellants cite general evidence showing that those who oppose paramilitary groups or paramilitary affiliated entities face risks of paramilitary violence,” the court said in an unsigned opinion released Thursday.

“But this evidence does not compel the conclusion that the … plaintiffs face those risks. Indeed, their evidence focuses on human rights defenders who protest paramilitary activity in Colombia, seek land restitution in Colombia, or oppose paramilitary-affiliated entities in Colombia. The evidence does not compel the finding that litigants pursuing tort claims against a paramilitary-affiliated entity in the United States face similar risks of harm.”

The court said it had to weigh plaintiffs’ fears against the principle that the courts should operate openly.

“We’re not happy with the ruling. We think it puts our clients in danger,” Marco Simons, general counsel of EarthRights International, which represents a number of the plaintiffs, said in a telephone interview.

“It really does not engage with the reality facing people in Colombia who are challenging paramilitary violence. More than a decade after the main paramilitary group demobilized, there is still ongoing violence by paramilitary successor groups and related interests in the same region of Colombia,” he said.

That’s especially true as tribunals consider returning land seized by paramilitaries, banana growers, and cattle ranchers to their original owners, Simons said.

The plaintiffs are considering asking for a rehearing or appealing to the U.S. Supreme Court, he said. “It could very well be a matter of life and death for our clients.”

The litigation involves allegations that Chiquita paid $1.7 million to the right-wing AUC, known in English as the United Self-Defense Groups of Colombia, during the 1990s and early 2000s — as protection money, the company initially claimed. The litigants claim the paramilitaries used the money to target banana workers, trade unionists, and social reformers.

Chiquita agreed in 2007 to pay $25 million to settle a federal count of giving money to a designated terrorist organization.

A wave of individual lawsuits involving thousands of claims have been consolidated under U.S. District Judge Kenneth Marra in West Palm Beach. In addition, Chiquita settled claims arising from the deaths of five U.S. missionaries at the hands of the left-wing Revolutionary Armed Forces of Colombia, or FARC.

Marra has been hearing so-called “bellwether cases” — using individual lawsuits to establish evidence and legal principles that might guide potential settlement talks involving the full universe of the litigation.

In September 2019, Marra threw out claims by the survivors of 10 murdered Colombians, ruling that they hadn’t established strong enough links between the company and the killings. See this report by The Palm Beach Post.

That decision is under appeal to the 11th Circuit, Simons said. Thursday’s opinion involved a separate decision by Marra to lift the shield on the plaintiff’s identities.

Meanwhile, thousands of claims remain pending.

“This is certainly not over,” Simons said. “The only way this ends in the very near future is if there’s some sort of global settlement.”

Note: This story has been updated to include comments from Marco Simons of EarthRights International.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.