High Court Asked to Review Dismissal Of Alien Tort Statute Claims Against Chiquita

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By Yin Wilczek

Jan. 7 — The families of victims who allegedly were tortured and killed by a paramilitary group in Colombia financed by Chiquita Brands International Inc. have asked the U.S. Supreme Court to review an Eleventh Circuit decision dismissing their Alien Tort Statute claims against the company.

In August 2014, a divided U.S. Court of Appeals for the Eleventh Circuit concluded that it had no jurisdiction to hear the claims—brought by some 4,000 plaintiffs—because the alleged abuses occurred outside the U.S.

In a certiorari petition filed Dec. 30, the petitioners argued that the Eleventh Circuit incorrectly adopted an “extreme interpretation” of the minority view in the U.S. Supreme Court's Kiobel v. Royal Dutch Petroleum Inc. decision, 133 S. Ct. 1659, 2013 BL 103044 (2013).

Not All Extraterritorial Claims Eliminated

Contrary to the Eleventh Circuit's decision, Kiobel did not eliminate all extraterritorial ATS claims, the petition states. It presented this question to the Supreme Court: “Whether law of nations violations alleged in an ATS cause of action must occur entirely within U.S. territory, as the Eleventh Circuit held in this case, or whether the ATS permits an action where a substantial nexus to the United States is present, such as U.S. nationality of the defendant and substantial relevant conduct in the United States that furthers human rights violations, as the Ninth, Fourth and Second Circuits have held.”

The petitioners' counsel Paul Hoffman, of Schonbrun, DeSimone, Seplow, Harris & Hoffman LLP, Venice, Calif., said in a Jan. 7 release that the Chiquita case clearly meets Kiobel's test. Hoffman was lead counsel in Kiobel. “We have a U.S. corporation making decisions from the United States to finance terrorism in violation of U.S. law, and our nation has a strong interest in addressing this egregious conduct,” he said.

A Chiquita representative did not immediately respond to a request for comment. The company's response to the cert petition is due Feb. 4.

In 2007, Chiquita pleaded guilty to funding a designated terrorist organization in Colombia known as the “Autodefensas Unidas de Colombia.” Pursuant to a plea agreement with the Justice Department, the company agreed to pay a $25 million fine, and implement and maintain an effective compliance and ethics program.

ATS' Reach

The Supreme Court limited the reach of the ATS in Kiobel, concluding that federal courts didn't have jurisdiction to hear cases against foreign corporations for actions occurring wholly outside the U.S. Chief Justice John Roberts wrote in the majority opinion that ATS claims must be assessed to determine whether they “touch and concern” the U.S. sufficiently to overcome the presumption against extraterritoriality.

The Eleventh Circuit's application of Kiobel has led to a circuit split. Other courts, including the U.S. Court of Appeals for the Fourth and Ninth circuits, have allowed ATS claims with substantial U.S. connections to proceed even though the alleged acts took place outside the U.S. For example, the Fourth Circuit in Al-Shimari v. CACI Premier Tech. Inc., 758 F.3d 516, 2014 BL 181994 (2014), concluded that four former Abu Ghraib inmates who alleged they were tortured at the hands of U.S. government contractors in Iraq had viable ATS claims.

To contact the reporter on this story: Yin Wilczek in Washington at mailto:%20ywilczek@bna.com

To contact the editor responsible for this story: Ryan Tuck at rtuck@bna.com

The cert petition is available at http://d2zyt4oqqla0dw.cloudfront.net/sites/default/files/documents/chiquita_supreme_court_petition.pdf.

The release is available at http://www.earthrights.org/media/families-victims-petition-us-supreme-court-hold-chiquita-accountable.