Escolar Documentos
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ATS ACTIONS
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January 3, 2019
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TABLE OF CONTENTS
ARGUMENT ............................................................................................................ 3
I. The Court should decide this motion based on the laws of the
District of Columbia. .................................................................................... 3
CONCLUSION ....................................................................................................... 20
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TABLE OF AUTHORITIES
Cases
Acme Circus v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983) ................................... 4
Armiger v. Real S.A. Transportes Aereos, 377 F.2d 943 (D.C. Cir. 1967) ............. 6
Boronkay v. Robinson & Carptenter, 160 N.E. 400 (N.Y. 1928) ............................. 13
Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374 (D.C. 1995) ................ 15
Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151 (11th Cir. 2009) ........................... 4
Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. Ct. Spec, App. 2011) ...................... 15
Horton v. Harwick Chem. Corp., 653 N.E.2d 1196 (Ohio 1995) ............................. 15
ii
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Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) ................................... 11
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) .................................... 3
Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980) (en banc) ........................ 15-16
Long v. Sears Roebuck & Co., 877 F. Supp. 8 (D.D.C. 1995) ................................. 8
St. Paul Fire & Marine Insurance Co. v. James G. Davis Construction Corp.,
350 A.2d 751 (D.C. 1976) ........................................................................................ 17
YWCA v. Allstate Ins. Co., 275 F.3d 1145 (D.C. Cir. 2002) .................................. 3
Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C.1987) ........................ 14
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Statutes
U.S.A. Patriot Act, P.L. 107-56, 115 Stat. 272 (2001) ............................................. passim
Other
Elliott, Byron K. & Elliott, William F. A Treatise on the Law of Railroads (1897).. 13
Holmes, Jr., Oliver Wendell,The Common Law at 120-129 (4th Ed. 1938) ............. 13
Restatement (Third) of Torts, American Law Institute (2010) .............................. 13, 15, 17
Restatement (Third) of Foreign Relations Law of the United States (1987) ........... 10
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FACTUAL SUMMARY
Plaintiffs have argued from the beginning that their clearest and most easily-proven claim
is for "negligence." If you give millions of dollars to a terrorist organization, you're creating a risk
to the public, and taking a risk yourself. The Court included negligence per se among the common
law claims in its 95-page Opinion and Order, dated June 3, 2011, DE 412. "Last, Plaintiffs allege
... negligence, negligent hiring, negligent per se, and loss of consortium." Id. at 2.
Although the Court dismissed Colombian law claims in its June 3, 2011 Order, DE 412,
Plaintiffs’ filed a Motion for Reconsideration, which was granted in part with respect to the
Colombian law claims. See Order dated March 27, 2012. DE 516. The Court had first declined
to exercise supplemental jurisdiction under 28 U.S.C. § 1367 (a).1 The Court amended the Order
once it was argued that some plaintiffs (including the moving Plaintiffs) had also pled diversity
jursidiction under 28 U.S.C. § 1332. DE 516 at 4.2 The Court then granted leave to amend those
complaints that were inadequately pled. Id. The Court also certified to the Eleventh Circuit the
question of whether the civil tort laws of Florida, New Jersey, Ohio, and the District of Columbia
apply to the extraterritorial conduct of foreign tortfeasors on foreign victims. See id. at 4 n 4. The
The Court summarized the facts and bases for liability of this eleven-year-old case in its
June 3, 2011 Order. DE 412. Since then, the 11th Circuit dismissed the A.T.S. claims, and the
1
"Even if the Court were competent to interpret and rule upon a foreign nation’s common law, the
novel and complex issues inherent in such in endeavor balance against exercising supplemental
jurisdiction." See June 3, 2011 Order, DE 412 at 90.
2
"Upon further review, the Court agrees with Plaintiffs that it did not have the discretion to dismiss
the Colombia-law claims that were properly plead under the Court’s diversity jurisdiction, as
opposed to its supplemental jurisdiction." Id. at 5.
3
Plaintiffs discuss the Kiobel and Morrison cases in § I (D) of this brief.
1
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parties have concluded discovery for common witnesses, expert witnesses, and several dozen
bellwether cases.
This Motion presents a purely legal issue that has been argued all along, but was never ripe
for decision until now. The Court should consider this Motion together with other Motions for
Summary Judgment, and/or consider it an Opposition and Cross Motion to Defendants' Motions
SUMMARY OF ARGUMENT
The Court should apply the laws of the District of Columbia to this motion, because of the
strong governmental interest in combating the financing of terrorism. Chiquita pled guilty to a
profile prosecution reflecting the strong national policy of the United States to combat terrorism.
The underlying criminal case was based on provisions of the U.S.A. Patriot Act, the purpose of
which was to deter and punish terrorism "around the world," particularly through Anti- Money
Laundering and other banking laws, which are extraterritorial in focus. The victims of these
"specially-designated global terrorists" are among the types of persons the Patriot Act was intended
to protect, and suffered the types of harm the Act was intended to prevent.
Application of the negligence per se rule wouldn't be in conflict with the laws or policies
of Colombia. On the contrary, from a Colombian perspective, no other result would make sense.
If this case were tried in Colombia, the victims would have been parties to the criminal case, and
awarded damages in the same proceeding. That is how civil law systems work. How could
Chiquita prevail under the "preponderance of the evidence" standard, after admittting liability has
been established beyond a reasonable doubt? See Exhibit 1 attached hereto, Factual Proffer at 1.
("Had this case gone to trial, the government would have proven beyond a reasonable doubt that:
2
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...") The facts already established beyond a reasonable doubt, and found sufficient as a basis for
this is also the rule. Damages are awarded based on the severity of the offense, and the victim's
Although negligence per se operates as a legal rule to establish liability, it doesn't resolve
whether the injuries were proximately caused or forseeable. The Plaintiffs have also alleged aiding
and abetting and civil conspiracy, with mens rea elements of knowledge and intent, respectively.
The instant motion doesn't eliminate the need for a trial. 4 Finally, negligence per se arises by
operation of law from the Defendants' guilty plea, and isn't subject to defenses.
ARGUMENT
I. The Court should decide this motion based on the laws of the District of Columbia.
Federal courts sitting in diversity must apply the choice-of-law principles of the state in
which they sit. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); YWCA v. Allstate
Ins. Co., 275 F.3d 1145, 1150 (D.C. Cir. 2002). A court to which cases have been transferred,
through multidistrict proceedings or otherwise, is obliged to apply the choice-of-law rules of the
transferor court. Van Dusen v. Barrack, 376 U.S. 612 (1964). Since the above-captioned cases5
were all transferred from the U.S. District Court for the District of Columbia ("D.C."), D.C.'s
4
In the Factual Proffer, Chiquita also admitted knowledge that the AUC was designated as a
Foreign Terrorist Organization due to international condemnation of its human rights abuses. See
Exhibit 1 at ¶¶ 27-28, 55-63. This is one of the elements of Plaintiffs' claims for aiding and
abetting. The court may also resolve this issue as a matter of law, although the instant motion
doesn't address it, and the law is less clear.
5
Undersigned counsel's other case, Does 1-2146 v. CBI, No 17-cv-80475-KAM, was filed in Ohio,
which uses a different choice of laws test. This complaint is only against Individual Defendants,
who didn't plead guilty to any criminal charges, and isn't included in this Motion.
3
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As a threshold matter, there “can be no injury in applying [the forum state’s law] if it is not
in conflict with that of any other jurisdiction” connected with the litigation. Phillips Petroleum
Co. v. Shutts, 472 U.S. 797, 816 (1985); Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151,1174
(11th Cir. 2009) (applying Dutch law); Acme Circus v. Kuperstock, 711 F.2d 1538 (11th Cir.
1983) (applying California's governmental interests test). Therefore, this Court should apply the
law of the District of Columbia by default, and only consider whether Colombian law should apply
To determine whether there is a true conflict, the Court must “evaluate the governmental
policies underlying the applicable laws” of the interested states. If those interests conflict, the
Court must determine “which jurisdiction’s policy would be most advanced by having its law
applied to the facts in the case.” Stutsman v. Kaiser Foundation Health Plan of Mid-Atlantic States
et al, 546 A.2d 367, 373 (D.C. 1988) ("Given the clear conflict between the laws of the two
jurisdictions, we must decide which jurisdiction has the greater interest in the application of its
substantive law."); In re Air Crash Disaster at Washington, D.C., 559 F. Supp. 333, 341-342
(D.D.C. 1983) (“The District of Columbia method of ‘governmental interest analysis’ directs the
court first to identify the state policies underlying each law in conflict and second to decide which
state’s policy would be advanced by having its law apply.”); Semler v. Psychiatric Inst. of
“When the policy of one state would be advanced by application of its law, and that of
another state would not be advanced by application of its law, a false conflict appears and the law
of the interested state prevails.” Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C. Cir.
1984), cert. denied, 469 U.S. 1159 (1985). A true conflict arises when both states have an interest
in applying their own laws, in which case the law of the forum “will be applied unless the foreign
4
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state has a greater interest in the controversy.” Id. “The fact that two states have different rules
where all the factors are oriented to one state does not necessarily mean that there is a ‘conflict’ in
which one state demands and the other rejects the application of its rule to a situation where the
pertinent factors arise in two or more states.” Gaither v. Myers, 404 F.2d 216, 224 (D.C. Cir. 1968).
D.C. courts will consider applying another state's law when (1) its interest in the litigation is
substantial, and (2) “application of District of Columbia law would frustrate the clearly articulated
public policy of that state.” Kaiser-Georgetown Cmty. v. Stutsman, 491 A.2d 502, 509
(D.C.1985).
The leading D.C. choice of laws case for wrongful death is Tramontana v. S.A. Empresa
De Viacao Aerea Rio Grandense, 350 F.2d 468 (D.C. Cir. 1965), cert. denied, 383 U.S. 943 (1966).
In Tramontana, a Maryland resident was riding in a U.S. Navy airplane over Rio de Janiero, Brazil,
when it collided with a Brazilian airliner flying from Campos, Brazil, to Rio de Janiero. The
surviving spouse sued under Brazilian law, but argued that the Brazilian limit on damages,
equivalent to U.S. $170. dollars, should not apply, and that the District of Columbia's law
permitting uncapped damages should be used. The D.C. Circuit held that the Brazilian damages
cap applied, because Brazil's policy would be advanced by the application of its laws, while the
Not only is Brazil the scene of the fatal collision, but Varig is a Brazilian corporation which,
as a national airline, is an object of concern in terms of national policy. To Brazil, the
success of this enterprise is a matter not only of pride and commercial well-being, but
perhaps even of national security. The limitation on recovery against airlines operating in
Brazil was enacted in the early days of commercial aviation, no doubt with a view toward
protecting what was then, and still is, an infant industry of extraordinary public and national
importance.
Id. at 471. The court found this Brazilian interest in regulating the airline industry outweighed the
interest of Maryland, where the decedent had been domiciled, or the District of Columbia, which
5
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was the forum. Maryland's interest was "not insignificant," though, since the State of Maryland
would have had to support the decedent if she couldn't support herself. Id. at 473.6 The crash also
involved residents of other U.S. states, who argued that their states' courts would have used their
own damage limits. The D.C. Circuit held that Brazil's interest outweighed the interests of any of
the domicile states. Armiger v. Real S.A. Transportes Aereos, 377 F.2d 943 (D.C. Cir. 1967).
The Tramontana case is on point for another reason. The plaintiff had sued under Brazilian
law, yet the court still engaged in a choice of laws analysis, and might have applied Maryland law,
if Maryland's interests were greater. The Court isn't limited to the law providing jurisdiction for
the Plaintiff's claims, and in some cases applies the laws of more than one jurisdiction.7
In Hurtado v. Superior Court, 11 Cal.3d 574 (1974), a Mexican national was wrongfully
killed in California by a California resident. Under Mexican damages law, the maximum amount
of damages was 24,334. pesos, or USD $1,947. The Supreme Court of California held that
California's higher measure of damages expressed a deterrence policy, and that the policy would
be advanced by applying California's damages limits, rather than those of Mexico. A false conflict
existed because Mexico's lower limit was not intended to "punish" the plaintiff, but was merely
intended to protect the defendant against an excessive recovery. Id. Since the defendant didn't
reside in Mexico, the policy wasn't advanced by applying it to him. Id. Although this is an out-
of-circuit case, the reasoning is on point. Even if Colombia has a policy to protect defendants from
excessive awards, the policy isn't advanced by applying it to a U.S. company in a U.S. court.
California also uses the governmental interest test for choice of laws.
6
This has been called a state's "welfare" interest in protecting its residents. See Gary L. Milhollin,
The New Law of Choice of Law in the District of Columbia, C.U. Law Rev., Vol. 24:448 at 466
(Spring 1975).
7
In the instant case, family law and probate issues should be resolved according to Colombian
law, because Colombia has a greater interest in regulating these types of relationships.
6
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Consistent with the modern approach, D.C. courts look first at the defendant's conduct,
rather than the situs of the injury. "The state where the defendant's conduct occurs has the
[it] will, usually at least, have the dominant interest in determining whether the interest affected is
entitled to legal protection." Biscoe v. Arlington County, 738 F.2d 1352 (D.C. Cir. 1984), quoting
Restatement (Second) of Conflict of Laws § 146 cmt. d (1971). The conduct at issue is what was
admitted in the Factual Proffer. See Exhibit 1. The question is, which state has a greater interest
in regulating it?
Applying the reasoning in Tramontana, the Court should find that the interest of the District
of Columbia, and of the United States, in preventing the financing of terrorism outweighs any
others. Colombia has no interest or ability to regulate U.S. companies doing business in Colombia
through subsidiaries. Colombia has no interest in punishing its own citizens with barriers to
liability and lower damages awards. Nor will Colombia's own anti-terrorism policies be promoted
by the application of Colombian laws. Finally, any Colombian policy protecting defendants from
excessive damage awards doesn't apply to U.S. defendants in U.S. courts. These arguments only
present false conflicts, and are insufficient bases to apply foreign law.
purpose of which was to deter and punish terrorism "around the world," particularly through Anti-
Money Laundering and related banking laws, which are extraterritorial in focus. The interest of
the Distict of Columbia, 8 and of the United States, is in preventing American persons and
8
The Pentagon is across the Potomac River from the District of Columbia, where terrorist attacks
against the federal government are a local concern. The terrorist attacks on the World Trade Center
and Pentagon on September 11, 2001 were the reason the Patriot Act was passed.
7
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companies from financing foreign terrorist organizations, to deter and punish international
terrorism.
The Colombian government also has an interest in preventing terrorism, but no control
"interest," meaning legal right, in regulating foreign corporations. However, this is really beside
the point, because that is not the governmental interest involved. Chiquita argues that its conduct
was innocent, or the product of extortion, and more recently, that Colombian courts don't award
punitive damages. See Expert Report of Dr. Santos Ballesteros, DE 2203-1. In other words,
Chiquita says its conduct falls short of what would be considered actionable in Colombia, or would
be excusable, or would merit less damages. However, any interest of the government of Colombia
in limiting liability these ways isn't reflected in a clear, national policy, as is Colombia's own policy
of deterring and punishing terrorism. For these issues, at least, there is no true conflict of laws,
but a difference in the degree of enforcement or the measure of the remedy. The argument that
Colombia may have a greater interest in preventing terrorism in its own territory only leads to the
same result: applying the harshest sanction. In both countries, hiring a terrorist group to provide
Application of the negligence per se rule doesn't conflict with Colombian law. Negligence
per se is inherent in Colombia's civil law system. If Chiquita had been prosecuted in Colombia
instead of the U.S., the Plaintiffs would have been awarded damages in the same proceeding.
There wouldn't have to prove liability in a second civil case. The Court may take judicial notice
that Colombia has a civil law system. In addition, counsel has translated provisions of the
Colombian Penal Code, which provide for damages to crime victims in the criminal proceeding.
8
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See Declaration of Paul David Wolf, Esq., attached hereto at ¶¶ 7-8.9 This motion could be easily
resolved if Chiquita would admit that, re-litigation of liability when damages are awarded to
victims in a criminal case. The quoted provisions also show that the damages are proportional to
the "nature of the conduct." Id. at Article 97. In his report, the Defendant's expert argues that
punitive damages aren't available in civil cases in Colombia, but cites to Article 2341 of the
Colombian civil code, which doesn't apply to crime victims. Whether the Colombian damages cap
those interests conflict." Long v. Sears Roebuck & Co., 877 F. Supp. 8, 10 (D.D.C. 1995).
Nevertheless, the Court would find that the policy against financing terrorism would be "most
advanced" by the application of D.C. law, compared to any Colombian policies that might limit
liability. Colombia has no policy to punish its own citizens by limiting their ability to sue in
foreign courts. If Colombia has a policy to protect defendants from excessive awards, it doesn't
apply to U.S. defendants in U.S. courts, and isn't even clearly articulated as a policy. Chiquita's
arguments about but-for and concurrent causation come from a complex area of law that could
hardly be called a policy. Second, Chiquita wasn't allowed to argue the duress defense in the Julin
case because the incidents cited as threats were too remote, and the threats too abstract. What
policy would be advanced by re-examining this issue under Colombian law? Third, on the issue
of damages, if the Court had to weigh the governmental interest in deterring terrorism against the
9
Counsel knows that the Court previously ordered that "official translations" be used, and plans to
hire a translator certified by the Colombian Ministry of Exterior Relations to translate a more
comprehensive list of applicable provisions of Colombian law for the Reply. We expect Chiquita
to respond to this motion with arguments based on Colombian law, since negligence per se and
the substantial factor test are settled law in D.C.
9
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danger of unjust enrichment, it should find that D.C. has the stronger interest. D.C. has a
deterrence interest in enforcing the Patriot Act, which is to protect its residents from international
C. The Court's dismissal of state law claims shouldn't apply to negligence per se.
The Tramontana case itself makes clear that claims brought under the law of a foreign
country may be decided according to the laws of another state with a greater interest. Although
the court applied the law of Brazil, it wasn't because the plaintiffs had pled Brazilian law, but
because the application of Brazilian law would advance Brazil's interest in regulating its airline
industry.
In addition, there are several other reasons why the Court's Order dismissing U.S. state law
claims shouldn't apply. 10 A close reading of the Court's Order shows that it refers only to theories
of secondary liability for the AUC's acts. The Court held that:
Order, DE 412 at 87. This shouldn't apply to negligence per se, which is not about the AUC's acts
or torts. Chiquita is negligent per se for paying terrorist organizations in violation of the Patriot
10
The Court applied the international law principle of territoriality, and considered the "effects
doctrine," which is a theory of extraterritorial jurisdiction for "conduct outside its territory that has
or is intended to have substantial effect within its territory,” citing § 402 (1)(c) of Restatement
(Third) of Foreign Relations Law of the United States (1987) (“Restatement of Foreign Relations
Law”). However, the acts of the Defendant, not those of the AUC, are those underlying the
negligence per se claim. Murders committed by the AUC are the forseeable consequences.
Another basis for jurisdiction in international law is that the conduct occurred "in substantial part"
in the United States. Under § 402 (1)(a) of the Restatement of Foreign Relations Law, the United
States has jurisdiction for "conduct that, wholly or in substantial part, takes place within its
territory." Id. The same set of facts, or conduct, was subtantial enough to sustain a criminal
conviction. The "conduct," or contacts with the United States and Colombia, are identical to those
in the criminal case.
10
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Act. The deaths in Colombia are the harms, not the torts. They are the forseeable consequences
of Chiquita's payments, and precisely the types of harms the Patriot Act was intended to prevent.
Terrorist Organization" because it threatens the national security of the United States. The
problems addressed by the Patriot Act, terrorism and money laundering, are international in scope.
The threat posed by these groups is sufficient for the United States to have jurisdiction to prosecute,
or to put someone on the OFAC list, whether or not any terrorist attack actually occurs. None of
the Plaintiffs' cases were necessary for Chiquita's conviction, or even considered. If Chiquita's
conviction were based on the fact that thousands of people were killed, that would have been part
of the Factual Proffer. The operative facts are those establishing Chiquita's guilt.
The Kiobel and Morrison cases should have no bearing on the choice of laws analysis.
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013); Morrison v. National Australia Bank,
561 U.S. 247 (2010). Both cases were about ambiguous federal statutes. Both held that there is
a presumption that U.S laws don't apply extraterritorially. That presumption would be easily
overcome, though, if the text of the statute gives it extraterritorial application. The focus of the
U.S.A. Patriot Act is on international banks, money laundering, and foreign terrorist organizations.
It also contains provisions for electronic surveillance, over which there has been justified public
concern, but includes protections for communications between U.S. citizens, again reflecting the
Patriot Act's international, or even foreign focus. It is one of the most extraterritorial statutes ever
written.
11
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Terrorist, 31 CFR § 594.204.11 This provides a sufficient basis for the operation of negligence per
se. This law was passed as part of the U.S.A. Patriot Act, P.L. 107-56, 115 Stat. 272 (2001), soon
after the terrorist attacks on the World Trade Center and Pentagon on September 11, 2001. The
Long Title of the Patriot Act is "An Act to deter and punish terrorist acts in the United States and
around the world, to enhance law enforcement investigatory tools, and for other purposes."
(emphasis added) The plain text of the Long Title makes clear that its purpose is to deter and
punish terrorist acts "around the world," not just in the United States. The Patriot Act wasn't
intended to protect only Americans, and is full of banking and Anti Money Laundering laws
encompassing criminal conduct occurring anywhere in the world. 12 The "focus" of the statute is
organizations.
theoretical underpinnings. In one of the earliest cases, the Alabama Supreme Court found the
violation of a federal statute to be negligence per se, and an "axiomatic truth, that every person,
while violating an express statute, is a wrongdoer, and, as such, is ex necessitate, negligent in the
11
On September 10, 2001, the AUC was designated as a Foreign Terrorist Organization ("FTO")
by the United States Department of State, making Chiquita's payments to the AUC illegal under
the material support statute, 19 U.S.C. Sec 2339B. See Proffer, Exhibit 1 at 6. On October 31,
2001, the AUC was designated as a Specially-Designated Global Terrorist by the United States
Department of the Treasury's Office of Foreign Assets Control, making the payments illegal under
the International Emergency Economic Powers Act, 50 U.S.C. Sec 1705(b), and the underlying
Global Terrorism Sanctions Regulations, 31 CFR Sec 594.204. Exhibit 2, Sentencing
Memorandum at 6-7. These laws, and OFAC itself, are all focused on foreign individuals and
organizations.
12
See FINCEN, https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act
12
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eye of the law." Grey's Executor v. Mobile Trade Co., 55 Ala. 387, 403 (1876); 3 Byron K. Elliott
& William F. Elliott, A Treatise on the Law of Railroads § 1155 (1897) (saying that a person who
violates a statute is a "wrong-doer" and ordinarily negligent per se); Charles L. B. Lowndes, Civil
Liability Created by Criminal Legislation, 16 Minn. L. Rev. 361, 373 n. 20 (1931) (explaining
how the act or omission that violated the statute is a cause of the injury but not the proximate
cause) About fifty years later, the N.Y. Court of Appeals held that the negligence per se principle
was limited to the types of injuries the legislature had aimed to prevent. Boronkay v. Robinson &
Carptenter, 160 N.E. 400 (N.Y. 1928) (Cardozo) The rule was put into the First Restatement of
Torts, and currently appears in the Restatement (Third) of Torts: § 14 cmt. a (2010), which states
The violation of federal statutes and regulations is commonly given negligence per se effect
in state tort proceedings.13
Id. In the view of Justice Oliver Wendell Holmes, a negligence claim consists of two separate and
distinct issues. The first, which he called the factual issue, requires a determination of what the
defendant actually did. The second, which he called the ethical issue, involves a value judgment
about whether the defendant's conduct was wrong. In negligence per se cases, the second question
has already been answered by the legislature. See Oliver Wendell Holmes, Jr., The Common Law
at 120-129 (4th Ed. 1938); Lorenzo v. Wirth, 170 Mass. 596 (1897). By forbidding certain acts,
the legislature has made the standard of care absolute. Violations of the statute are inconsistent
13
This general rule should avoid any concerns about the application of Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), under which federal courts must apply the substantive law of the
states to state law claims, but must apply federal procedural law. In other words, there is no "Erie
problem" with regard to giving negligence per se effect to the Patriot Act in this diversity
jurisdiction case.
13
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to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the
plaintiff can establish his relationship to the statute, unexplained violation of that standard renders
the defendant negligent as a matter of law.” Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C.
1982) quoting Richardson v. Gregory, 281 F.2d 626, 629 (1960); Zhou v. Jennifer Mall Restaurant,
D.C. courts use a burden-shifting approach to address defenses. “Where a party violates a
statute, and the violation is a proximate cause of an injury which the statute was designed to
prevent, there is a rebuttable presumption of negligence on the part of the violator.” Robinson v.
District of Columbia, 580 A.2d 1255, 1256 (D.C.1990) (citing Lewis v. Washington Metro. Area
Transit Auth., 463 A.2d 666, 674 (D.C.1983)). However, “[i]f the violator demonstrates that she
did everything a reasonably prudent person would have done to comply with the law, then her
violation merely constitutes evidence of negligence rather than negligence per se.” Robinson, 580
A.2d at 1256.
their security department in Colombia, by both in-house and outside counsel, and even the
Department of Justice. The management knew they were commiting a crime, but believed the
rewards outweighed the risks. ("just let them sue us, come after us.") The Defendants made
business decisions, often against the advice of their lawyers, and cannot claim that they thought
In an ordinary negligence action, the jury is instructed on the elements of negligence, and
then has to decide a single question: whether a reasonable person would have acted this way under
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the circumstances. In other words, the jury determines the standard of care. In negligence per se
cases, courts adopt a statute as establishing the standard of care. A reasonsable person obeys the
law. Chiquita had two sets of bookkeeping records and other schemes to hide its monthly
payments to the AUC. No prudent or reasonable person pays millions of dollars to terrorist groups
and takes steps to conceal it from law enforcement agencies. This is per se unreasonable.
D. The money paid to local AUC units to protect local farms was a substantial
factor in causing Plaintiffs' injuries.
The District of Columbia has adopted the proximate cause standard set forth in the
Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C. 2005); Claytor v. Owens-Corning
Fiberglas Corp., 662 A.2d 1374, 1381-82 (D.C. 1995); District of Columbia v. Frick, 291 A.2d 83,
84 (D.C.1972).14 The leading case on the substantial factor test in D.C. in Lacy v. District of
Columbia, 424 A.2d 317, 321 (D.C. 1980) (en banc), which held that "[t]he substantial factor test
14
The Comments to Restatement explain that "[t]he word 'substantial' is used to denote the fact
that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to
regard it as a cause, using that word in the popular sense, in which there always lurks the idea of
responsibility, rather than in the so-called 'philosophic sense,' which includes every one of the
great number of events without which any happening would not have occurred." Id. at cmt. a.
Black's Law Dictionary defines the "substantial-factor test" as "[t]he principle that causation
exists when the defendant's conduct is an important or significant contributor to the plaintiff's
injuries." Black's Law Dictionary (9th ed. 2009). The "but-for test" is defined as "[t]he cause
without which the event could not have occurred." Id. at 250. Some courts adhere more closely
to the definition of the substantial factor test as set forth in the Restatement and Black's Law
Dictionary, requiring plaintiffs to produce evidence that a defendant's conduct is a "significant"
and "important" cause of the alleged injury or illness. Murphy v. Sarasota Ostrich Farm/Ranch,
Inc., 875 So.2d 767 (Fla. Dist. Ct. App. 2004); Horton v. Harwick Chem. Corp., 653 N.E.2d 1196,
1202 (Ohio 1995); Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. Ct. Spec, App. 2011). The
District of Columbia does not.
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[is] the best means of resolving the causation in fact issue," and that "the substantial factor test is
properly applicable whenever there are concurring causes of a single injury...." Id. at 322.
Although Lacy was a medical malpractice case, the court rejected the argument that the substantial
factor test was limited to these kinds of cases. "There is no logical reason to draw such a
limitation...." Id. The court considered whether the following instruction would mislead a jury:
When the negligent acts or omissions of two or more persons, whether committed
independently or in the course of concerted conduct, contribute concurrently, and as
proximate causes, to the injury of another, each of such persons is liable. This is true
regardless of the relative degree of the contribution. It is no defense for one of such persons
that some other person, not joined as a defendant in the action, participated in causing the
injury, even if it should appear to you that the negligence of that other person was greater,
in either its wrongful nature or its effect.
Id. at 322. The court held that "Because of this double admonition against a quantitative or
comparative test of causation, there is no reasonable basis from which to infer that the jury was
misled or confused as to the proper application of the test." Id.. Although the court didn't use the
terms "joint tortfeasors" or "joint and several liability," it is the same principle of law. "[E]ach of
such persons is liable. This is true regardless of the relative degree of the contribution." Id. That
Where the injury is inflicted by one of several defendants jointly engaged in a course of
negligent conduct, each defendant is liable even though only one of them actually inflicted the
injury. Bierczynski v. Rogers, 239 A.2d 218, 21 (Del. 1968) ("The authorities reflect generally
15
In the alternative, Chiquita's payments to the AUC increased the liklihood that the plaintiffs
would be killed. In Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609,
664 P.2d 474 (1983) the issue was whether a defendant hospital may be liable for wrongful death
if, as a result of the hospital's negligence, the patient received a delay in treatment that reduced his
chance of surviving cancer from 39% to 25%. A majority of the Washington State Supreme Court
held that evidence sufficient to support a finding that the defendant negligently increased a risk of
injury or death suffices to create a jury question on the issue of causation in a wrongful death
action. See King, Causation, Valuation and Chance in Personal Injury Torts Involving Pre-
existing Conditions and Future Consequences, 90 Yale L.J. 1353 (1981)
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accepted rules of causation that all parties engaged in a motor vehicle race on the highway are
wrongdoers acting in concert, and that each participant is liable for harm to a third person arising
from the tortious conduct of the other, because he has induced and encouraged the tort.")
Even if the AUC's murders were construed as independent, intervening causes, the
Defendant would still be liable "[i]f the danger of an intervening negligent or criminal act should
have been reasonably anticipated and protected against." St. Paul Fire & Marine Insurance Co. v.
James G. Davis Construction Corp., 350 A.2d 751, 752 (D.C. 1976). "If, however, the intervening
act can fairly be said to be that which could not have reasonably been anticipated, plaintiff may
not look beyond the intervening act for his recovery." Id. The Restatement (Second) of Torts also
An act or an omission may be negligent if the actor realizes or should realize that it involves
an unreasonable risk of harm to another through the conduct of the other or a third person
which is intended to cause harm, even though such conduct is criminal.
Id. at § 449 cmt. a. The AUC's activities were not only forseeable, but known to the Defendant,
which received security newsletters and regular internal reports from security personnel in their
Banadex subsidiary in Colombia, particularly about the activities of the FARC and AUC.
Even with negligence per se, the jury must still find that the injuries were forseeable or
proximately caused. District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C.1984). Chiquita's
payments were to local AUC units to protect their businesses in specific areas. The geographic
scope of liability overlaps with the areas that Chiquita paid to be protected. The best measurement
of this is the territorial control of the Bloque Bananero (Banana Grower Block) and the Bloque
Elmer Cardenas (Elmer Cardenas Block) of the AUC, which controlled Urabá. In addition, the
FARC only ever controlled rural areas, while most of the AUC's murders and abductions occurred
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in urban areas. The liability began with the first payments, and continued beyond 2004. See
Proffer, Exhibit 1 at ¶¶ 27-28, 55-63. This should also establish, as a matter of law, the knowledge
element of aiding and abetting. Halberstam v. Welch, 705 F2d 472 (D.C. Cir. 1983)
Proximate cause is also shown in particular cases, considering the motives and modus
operandi of the AUC. The AUC often used motorcycles. A gunshot wound to the head is the sign
of an execution. If the victim's ID card were stolen, it was to prove the person was killed. Someone
committing a murder for personal reasons wouldn't want to possess evidence like that.
F. The Defendant cannot rebut the presumption by showing they did everything
a reasonable person would have done to comply with the law.
Although the presumption is rebuttable, Chiquita cannot show they did everything a
reasonably prudent person would have done to comply with the law. Rather than reporting their
dealings with the AUC to the Department of the Treasury's Office of Foreign Assets Control
("OFAC"), or to the Securities and Exchange Commission pursuant to the Foreign Corrupt
For years, Defendant Chiquita paid the AUC by check through various convirires in Uraba,
Colombia. Proffer, Exhibit 1 at ¶ 23. The checks were nearly always drawn from the Colombian
bank accounts of Defendant Chiquita's subsidiary. Id. No convivir ever provided Defendant
Chiquita or Banadex with any actual security services or actual security equipment in exchange
for the payments, such as security guards, security guard dogs, security patrols, security alarms,
security fencing, or security training. Id. Defendant Chiquita recorded these payments in its
corporate books and records as "security payments" or payments for "security" or "security
services." Id. On or before December 4, 2003, Chiquita created and maintained corporate books
and records that did not identify the ultimate and intended recipient of the payments to the AUC,
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Defendant Chiquita had information about the AUC's designation as an Foreign Terrorist
Chiquita paid money to receive. Id. at ¶ 28. Despite knowing of this designation, Defendant
Chiquita continued to pay them. Id. at ¶ 29. From about September 10, 2001 through about
February 4, 2004, Chiquita make 50 payments to the AUC totaling over $825,000. Id. Defendant
Chiquita never applied for nor obtained any license from the OFAC. Id.
Beginning about February 21, 2003, outside counsel advised defendant Chiquita, through
two Individual Defendants, that the payments were illegal and that Chiquita should immediately
stop paying the AUC directly or indirectly. Id. at ¶ 56. Counsel's advice included "Must stop
payments," "Bottom Line: CANNOT MAKE THE PAYMENT," "You voluntarily put yourself
in this position. Duress defense can wear out through repetition. Buz [business] decision to stay
in harms way," and "the company should not make the payment." Id.
When the issue was discussed by Defendants Board of Directors on about April 4, 2003
Individual C said "His and [Individual B's] opinion is just let them sue us, come after us. This is
also [Individual A's] opinion." Id. at ¶ 60. Four days later, other Individual Defendants were
On about April 24, 2003, two Individual Defendants and outside counsel met with officials
of the U.S. Department of Justice, who advised them that the payments were illegal and could not
continue. Id. at ¶ 62. Nevertheless, on May 5, 2003, Individual Defendants were instructed to
"continue making payments" to the AUC. Id. at ¶ 64. On September 8, 2003, outside counsel
again warned the Defendant that DOJ officials had repeatedly stated the payments were illegal.
Id. at ¶ 74. On about December 22, 2003, Individual B sent an email to other Board members
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Department of Justice officials on April 24, 2003, Defendant Chiquita had never reported any AUC
demands to any department or components of the United States government or the Colombian
In sum, by (1) not disclosing its payments to law enforcement authorities or applying for
an OFAC license; (2) disguising payments to terrorist groups as payments for security services in
its business records; and (3) making business decisions against the advice of its own lawyers and
officials of the Department of Justice, the Defendant cannot show that it did everything possible
to comply with the law. Therefore, Chiquita cannot rebut the presumption of negligence per se.
CONCLUSION
For the foregoing reasons, the Court should GRANT Plaintiffs' Motion for Partial
Summary Judgment for the claim of Negligence Per Se.
Respectfully submitted,
January 2, 2019
Certificate of Service
I hereby certify that on this 2nd of January, 2019, I filed the foregoing document with the
Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to recieve them.
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