Chiquita Motion For Summary Judgment Negligence Per Se Facts Not in Dispute

Case 0:08-md-01916-KAM Document 2229-2 Entered on FLSD Docket 01/02/2019 Page 1 of
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM
IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/
This Order relates to:
ATS ACTIONS
__________________________________________/
08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

__________________________________________/
Plaintiffs' Statement of Material Facts Not Genuinely in Dispute
This is Plaintiffs' Statement of Material Facts Not Genuinely in Dispute, in support of their
Motion for Partial Summary Judgment on Negligence Per Se. Citations are to Defendant's Factual
Proffer (Exhibit 1), the Government's Sentencing Memorandum (Exhibit 2) and the Report of
Defendant's Special Litigation Committee, or "SLC Report" (Exhibit 3).
Admissions in the Factual Proffer are organized under the following headings: Chiquita's
Relationship with the AUC (¶¶ 1-11), Chiquita’s Payments to the AUC (¶¶ 12-28), Designation of
the AUC as a Foreign Terrorist Organization (¶¶ 29-34), Chiquita Continued to Pay the AUC after
the AUC was Designated as an FTO (¶¶ 35-49), Chiquita continued to pay the AUC against the
advice of outside counsel and the Department of Justice (¶¶ 50-77), and Chiquita's Payments to
other Colombian Terrorist Groups (¶¶ 78-80)
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Facts found by Chiquita's Special Litigation Committee are organized under the following
headings: Chiquita's Internal Investigation for Shareholder Derivative Settlement (¶¶ 81-84),
Chiquita's Payments to the FARC (¶¶ 85-105), Chiquita's Internal Accounting of Payments to the
FARC (¶¶ 106-148), Payments to the AUC (¶¶ 149-175), and Weapons and Drug Shipments (¶¶
176-186).
Finally, facts showing the Defendant's knowledge of wrongdoing, from the Factual Proffer
and the Government's Sentencing Memorandum (Exhibit 2) are separately listed at (¶¶ 187-204).
Admissions in the Factual Proffer
Chiquita's Relationship with the AUC
1. C.I. Bananos de Exportacion, (hereinafter “Banadex”), was Defendant ChiquitaBrands
International, Inc.'s (hereinafter "Chiquita") wholly-owned Colombian subidiary from the 1980s
through June 2004. (Proffer at ¶2)
2. Banadex produced bananas in the Urabá region of Colombia during this time. (Proffer at
¶2)
3. By 2003, Banadex was Defendant Chiquita's most profitable banana producing operation.
(Proffer at ¶2)
4. The Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, or
AUC), was a violent, right-wing organization in the Republic of Colombia. (Proffer at ¶3)
5. The AUC was formed to organize loosely-affiliated illegal paramilitary groups that had
emerged in Colombia to retaliate against left-wing guerillas fighting the Colombian government.
(Proffer at ¶3)
6. The AUC's activities included assassinating suspected guerrilla supporters. (Proffer at ¶3)
7. The AUC also engaged in the murder of civilians. (Proffer at ¶3)
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8. Pursuant to Title 8, United States Code; Section 1189, the Secretary of State of the United
States designated the AUC as an Foreign Terrorist Organization ("FTO"), initially on September
10, 2001, and again on September 10, 2003. As a result of the FTO designation, since September
10, 2001, it has been a crime for any United States person, among other things, knowingly to
provide material support and resources, including money and monetary instruments, to the AUC.
(Proffer at ¶4-5)
9. The International Emergency Economic Powers Act, 50 U.S.C.- § 1701, et. seq., conferred
upon the President of the United States the authority to deal with threats to the national security,
foreign policy and economy of the United States. On September 23, 2001, pursuant to this
authority, President George W. Bush issued Executive Order 13224. This Executive Order
prohibited, among other things, any United States person from engaging in transactions with any
foreign organization or individual, determined by the Secretary of State of the United States, in
consultation with the Secretary of the Treasury of the United States and the Attorney General of
the United States, to have committed, or posed a sigtificant risk of committing, acts of terrorism
that threaten the security of United States nationals or the national security, foreign policy or
economy of the United States (referred to hereinafter as a “Specially-Designated’ Global Terrorist”
or SDGT”). This prohibition included the making of any contribution of funds to or for the benefit
of an SDGT, without having first obtained a license or other authorization from the United States
government. (Proffer at ¶6)
10. The Secretary of the Treasury promulgated the Global Terrorism Sanctions Regulations,
31 C.F.R. § 594.201, et seq, implementing the sanctions imposed by Executive Order 13224. The
United States Department of the Treasury's Office of Foreign Assets Control (“OFAC”), located
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in the District at Columbia, was the entity empowered to authorize transactions with an SDGT.
Such authorization, if granted, would have been in the form of a license. (Proffer at ¶7)
11. Pursuant to Executive Order 13224, the Secretary of State of the United States, in
consultation with the Secretary of the Treasury of the United States and the Attorney General of
the United States, designated the AUC a Specially-Designated Global Terrorist on October 31,
2001. As a result of the SDGT designation, since October 31, 2001, it has been a crime for any
United States person, among other things, willfully to engage in transactions with the AUC,
without having first obtained a license or other authorization from OFAC. (Proffer at ¶8)
Chiquita’s Payments to the AUC
12. For over six years - from in or about 1997 through on or about February 4, 2004 - Defendant
Chiquita, through Banadex, paid money to the AUC in the two regions of Colombia where it had
banana-producing operations: Urabá and Santa Marta. Defendant Chiquita paid the AUC, directly
or indirectly, nearly every month. (Proffer at ¶19)
13. From in or about 1997 through on or about February 4, 2004, Defendant Chiquita made
over 100 payments to the AUC, totaling over $1.7 million US dollars. (Proffer at ¶19)
14. In or about 1997 the then-leader of the AUC, Carlos Castano, met with Banadex's then-
General Manager. At the meeting Castano informed the General Manager that the AUC was about
to drive the FARC out of Urabá. (Proffer at ¶21)
15. Castano instructed the General Manager that Defendant Chiquita's subsidiary to make
payments to an intermediary known as a “convivir.” (Proffer at ¶21)
16. Convivires were private security companies licensed by the Colombian government to
assist the local police and military in providing security. The AUC, however, used certain
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convivires as fronts to collect money from businesses for use to support its illegal activities.
(Proffer at ¶21)
17. Defendant Chiquita's payments to the AUC were reviewed and approved by Senior
executives of the corporation, to include high-ranking officers, directors, and employees. (Proffer
at ¶22)
18. No later than in or about September 2000, Defendant Chiquita's senior executives knew
that the corporation was paying the AUC, and that the AUC was a violent, paramilitary
organization led by Carlos Castano. (Proffer at ¶22)
19. An in-house attorney for defendant Chiquita conducted an internal investigation into the
payments and provided a high ranking officer of Chiquita (Co-Defendant Robert Olson) with a
memorandum detailing that investigation. The results of that internal investigation were discussed
at a meeting of the then- Audit Contmittee of the then- Board of Directors in Defendant Chiquita's
Cincinnati headquarters in or about September 2000. Defendant Robert Olson, among others,
attended this meeting. (Proffer at ¶22)
20. For several years Defendant Chiquita paid the AUC by check through various convivires
in both the Uraba and Santa Marta regions of Colombia. The checks were nearly always made out
to the convivires and were draw from the Colombian bank accounts of Defendant Chiquita's
subsidiary Banadex. (Proffer at ¶23)
21. Defendant Chiquita recorded these payments in its corporate books and records as “security
payments” or payments for “security” or “security services.” (Proffer at ¶23)
22. No convivir ever provided Defendant Chiquita or Banadex with any actual security services
or actual security equipment in exchange for the payments. (Proffer at ¶23)
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23. No convivir ever provided Defendant Chiquita or Banadex with security guards, security
guard dogs; security patrols, security alarms, security fencing, or security training. (Proffer at ¶23)
24. In or about March 2002, Defendant Robert Olson and others established new procedures
regarding Defendant Chiquita's direct cash payments to the AUC. (Proffer at ¶25)
25. According to these new procedures, a high ranking officer of Banadex (Álvaro Acevedo)
received a check that was made out to him personally and drawn from one of the Colombian bank
accounts of Defendant Chiquita's subsidiary. Álvaro Acevedo then endorsed the check. Either
Álvaro Acevedo or another Banadex employee, (Víctor Buitrago) cashed the check, and Víctor
Buitrago hand delivered the cash directly to AUC personnel in Santa Marta. (Proffer at ¶25)
26. Banadex treated the direct cash payments to the AUC as payments to Álvaro Acevedo,
recorded the withholding of the corresponding Colombian tax liability, reported the payments to
Álvaro Acevedo as such to the Colombian tax authorities, and paid Álvaro Acevedo's
corresponding Colombian tax liability. (Proffer at ¶25)
27. Álvaro Acevedo also maintained a private ledger of the payments, which did not reflect the
ultimate and intended recipient of the payments. The private ledger only reflected the transfer of
funds from Álvaro Acevedo to Víctor Buitrago and not the direct cash payments to the AUC.
(Proffer at ¶25)
28. On or about April 23, 2002, at a meeting of the Audit Committee of the Board of Directors
in Defendant Chiquita's Cincinnati headquarters, Defendant Robert Olson described the
procedures referenced supra at ¶¶ 27-30. Attending this meeting were two high ranking officers
of Defendant Chiquita (Defendant Cyrus Friedheim and Defendant Steven Kreps), a member of
Defendant Chiquita's Board of Directors (Roderick Hills, now deceased) and others. (Proffer at
¶26)
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Designation of the AUC as a Foreign Terrorist Organization
29. The United States govemment designated the AUC as an FTO on September 10, 2001.
The designation was well-publicized in the American public media. (Proffer at ¶27)
30. The AUC’S designation was first reported in the national press (for example, in the Wall
Street Journal and the New York Times) on September 11, 2001. (Proffer at ¶27)
31. It was later reported in the local press in Cincinnati where Defendant Chiquita's
headquarters were located. For example, in the Cincinnati Post on October 6, 2001, and in the
Cincinnati Enquirer on October 17, 2001. (Proffer at ¶27)
32. The AUC’s designation was even more widely reported in the public media in Colombia,
where Defendant Chiquita had its substantial banana-producing operations. (Proffer at ¶27)
33. Defendant Chiquita had information about the AUC’S designation as an FTO specifically,
and global security threats generally, through an Internet-based, password-protected subscription
service that Defendant Chiquita paid money to receive. (Proffer at ¶28)
34. On or about September 30, 2002, an employee of Defendant Chiquita (Al Bakoczy), from
a computer within Defendant Chiquita's Cincinnati headquarters, accessed this service’s
“Colombia - Update page," which contained the following reporting on the AUC:
“US terrorist designation
International condemnation of AUC human rights abuses culminated in 2001 with the US
State Department’s decision to include the paramilitaries in its annual list of foreign
terrorist organizations. This designation permits the US authorities to implement a range
of measures against the AUC, including denying AUC members US entry visas; freezing
AUC accounts in the US; and barring US companies from contact with the personnel
accused of AUC connections.”
(Proffer at ¶28)
Defendant Chiquita Continued to Pay

the AUC after the AUC was Designated as an FTO
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35. From on or about September 10, 2001, through on or about February 4, 2004, Defendant
Chiquita made 50 payments to the AUC totaling over $825,000. (Proffer at ¶29)
36. Defendant Chiquita never applied for nor obtained any license from the Department of the
Treasury’s Office of Foreign Assets Control with respect to any of its payments to the AUC.
(Proffer at ¶29)
37. On or about September 12, 2001, Víctor Buitrago paid the AUC in Uraba and Santa Marta
by check in an amount equivalentto $31,847.1 (Proffer at ¶30)
38. On or about November 14, 2001, Álvaro Acevedo and Víctor Buitrago paid the AUC in
Uraba and Santa Marta by check in an amount equivalent to $56,292. (Proffer at ¶31)
39. On or about December 12, 2001, Álvaro Acevedo and Víctor Buitrago paid the AUC in
Uraba and Santa Marta by check in an amount equivalent to $26,644. (Proffer at ¶32)
40. On or about February 4, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
and Santa Marta by check in an amount equivalent to $30,079. (Proffer at ¶33)
41. On or about March 7, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
and Santa Marta by check in an amount equivalent to $25,977. (Proffer at ¶34)
42. On or about April 16, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
by check in an amount equivalent to $35,675. (Proffer at ¶36)
43. On or about May 15, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
44. On or about June 14, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
1
With respect to all admissions contained herein relating to payments by check, the "on or about"
dates refer to the dates on which such checks cleared the bank, not the dates on which the checks
were issued or delivered.
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45. On or about July 2, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba by
check in an amount equivalent to $11,585. (Proffer at ¶42)
46. On or about August 15, 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
47. On or about October 15 2002, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
Uraba by check in an amount equivalent to $47,424. (Proffer at ¶51)
49. On or about January 27 , 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in
Chiquita continued to pay the AUC against the advice

of outside counsel and the Department of Justice
50. On or about February 20, 2003, an employee of Defendant Chiquita (Joel Raymer) stated
to Robert Olson that Joel Raymer had discovered that the AUC had been designated by the United
States government as a Foreign Terrorist Organization. (Proffer at ¶55)
51. Shortly thereafter, Robert Olson and Joel Raymer spoke with attorneys in the Distirict of
Columbia office of a national law firm (“outside counsel”) about Defendant Chiquita’s ongoing
payments to the AUC. (Proffer at ¶55)
52. Beginning on or about February 21, 2003, outside counsel advised Defendant Chiquita,
through Robert Olson and Joel Raymer, that the paments were illegal under United States law and
that Defendant Chiquita should immediately stop paying the AUC directly or indirectly. (Proffer
at ¶56)
53. Among other things, outside counsel, in words and in substance, advised Defendant
Chiquita:
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A. That defendant Chiquita “Must stop payments."
B. “Bottom Line: CANNOT: MAKE THE PAYIMENT”
C. “Advised NOT TO MAKE ALTERNATIVE PAYMENT through CONVIVIR”
D. “General Rule: Cannot do indirectly what you cannot do directly"
E. "Concluded with: CANNOT MAKE THE PAYMENT”
F. “You voluntarily put yourself in this position. Duress defense can wear out through
repetition. Buz [business] decision to stay in harm’s way. Chiquita should leave
Colombia.”
G. "[T]he company should not continue to make the Santa Marta payments, given the
AUC's designation as a foreign terrorist organization."
H. "[T]he company should not make the payment.”
(Proffer at ¶56)
54. On or about February 27, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in
55. On or about March 27, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
a check in an amount equivalent $19,437. (Proffer at ¶58)
56. On or about April 3, 2003, Roderick Hills and Robert Olson reported to the full Board of
Directors of Defendant Chiquita that Defendant Chiquita was making payments to a designated
Foreign Terrorist Organization. (Proffer at ¶59)
57. A member of Defendant Chiquita’s Board of Directors objected to the payments and
recommended that Defendant Chiquita consider taking immediate corrective action, to include
withdrawing from Colombia. (Proffer at ¶59)
58. The Board agreed to disclose promptly to the Department of Justice the fact that Defendant
Chiquita had been making payments to the AUC. (Proffer at ¶59)
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59. On or before April 4, 2003, according to outside counsel’s notes concerning a conversation
about Defendant Chiquita’s payments to the AUC, Robert Olson said: “His and Roderick Hills’s
opinion is just let them sue us, come after us. This is also Cyrus Friedheim’s opinion.” (Proffer
at ¶60)
60. On or about April 8 2003, Robert Olson and a high ranking officer of defendant Chiquita
(Robert Kistinger) met at Defendant Chiquita’s headquarters in Cincinnati with Álvaro Acevedo,
Víctor Buitrago, Al Bakoczy, and Joel Raymer. According to the contemporaneous account of
this meeting, Robert Olson and Robert Kistinger instructed Álvaro Acevedo and Víctor Buitrago
to "continue making payments” to the AUC. (Proffer at ¶61)
61. On or about April 24, 2003, Roderick Hills and Robert Olson, along with outside counsel,
met with officials of the United States Department of Justice and stated that Defendant Chiquita
had been making payments to the AUC for years. (Proffer at ¶62)
62. Department of Justice officials told Roderick Hills and Robert Olson that Defendant
Chiquita’s payments to the AUC were illegal and could not continue. (Proffer at ¶62)
63. On or about April 30, 2003, Roderick Hills and Robert Olson told members of the Audit
Committee of the Board of Directors and the outside auditors of Defendant Chiquita about the
meeting with Department of Justice officials on April 24, 2003. (Proffer at ¶63)
64. On or about May 5, 2003, according to the contemporaneous account of this conversation,
Joel Raymer instructed Álvaro Acevedo and a high ranking officer of Defendant Chiquita,
(hereinafter "Individual J") to "continue making payments” to the AUC. (Proffer at ¶64)
65. On or about May 2l , 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba a
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66. On or about July 24, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba a
67. On or about August 25, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
a check in an amount equivalent to $12,850. (Proffer at ¶72)
68. On or about September 8, 2003, outside counsel advised Defendant Chiquita in writing,
through Robert Olson and Joel Raymer, that: “[Department of Justice] officials have been
unwilling to give assurances or guarantees of non-prosecution; in fact, officials have repeatedly
stated that they view the circumstances presented as a technical violation and cannot endorse
current or future payments.” (Proffer at ¶74)
69. On or about October 5, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
70. On or about October 24, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
72. On or about December 4, 2003, Roderick Hills and Robert Olson provided the Board of
Directors additional details concerning Defendant Chiquita's payments to the AUC that had not
previously been disclosed to the Board. A member of Defendant Chiquita's Board of Directors
responded to this additional information by stating: “I reiterate my strong opinion - stronger now
- to sell our operations in Colombia.” (Proffer at ¶81)
73. On or before December 4, 2003, Defendant Chiquita created and maintained corporate books
and records that did not identify the ultimate and intended recipient of the payments to the AUC
in Uraba in calendar year 2003 as follows:
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Reporting Period Description of Recipient Description of payment
1st Quarter 2003 "Papagayo Association, "Payment for security

a 'Convivir.' (Convivirs service."
are government licensed
security providers.)"
2nd Quarter 2003 "Papagayo Association, "Payment for security

a 'Convivir.' (Convivirs services."
3rd Quarter 2003 "Papagayo Association, "Payment for security

a 'Convivir.' (Convivirs services."
(Proffer at ¶82)
75. On or about December 22, 2003, Roderick Hills sent an email to other Board members on
the subject of defendant Chiquita's ongoing payments to the AUC, stating, among other things:
"This is not a management investigation. This is an audit committee investigation. It is an audit
committee investigation because we appear to [be] committing a felony.” (Proffer at ¶84)
76. On or about January 13, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
77. On or about February 4, 2003, Álvaro Acevedo and Víctor Buitrago paid the AUC in Uraba
Chiquita's Payments to other Colombian Terrorist Groups
78. Defendant Chiquita had previously paid money to other terrorist organizations operating
in Colombia, namely to the following violent, leff-wing terrorist organizations: Revolutionary
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Armed Forces of Colombia - an English translation of the Spanish name of the group "Fuerzas
Armadas Revolucionarias de Colombia” (commonly known as and referred to hereinafter as “the
FARC”); and the National Liberation Army - an English translation of the Spanish name of the
group "Ejercito de Liberacion Nacional" (commonly known as and referred to hereinafter as "the
ELN"). (Proffer at ¶20)
79. Defendant Chiquita made these earlier payments from in or about 1989 through in or about
1997, when the FARC and the ELN controlled areas where Defendant Chiquita had its banana-
producing pperations. (Proffer at ¶20)
80. The FARC and the ELN were designated as FTOs in October 1997. (Proffer at ¶20)
Facts determined by Chiquita's Special Litigation Committee
Chiquita's Internal Investigation for Shareholder Derivative Settlement
81. Following the filing of several shareholder derivative complaints, on April 3, 2008, the Board of
Directors of Chiquita Brands, International adopted a resolution that established the Special Litigation
Committee. (Hereinafter "SLC Report") SLC Report at 3.
82. The Resolution delegated to the SLC the authority and power to investigate, review, and analyze
the facts, allegations, and circumstances that are the subject of the derivative litigation, as well as any
additional facts, allegations, and circumstances that may be at issue. SLC Report at 3.
83. The Chiquita Board delegated its authority to investigate and determine whether the prosecution of
derivative claims were in the best interests of the shareholders, to three Board Members: Howard W. Barker,
Jr., William H. Camp, and Clare M. Hasler. SLC Report at 4-6.
84. The Report of the Special Litigation Committe was filed by the Defendant in the MDL case, 0:08-
md-01916-KAM, on February 25, 2009 and was assigned Docket Entry Number 202-4.
Chiquita's Payments to the FARC
85. Between approximately 1989 and 1994, Chiquita purchased a number of farms in Colombia and
eventually owned over 9,500 acres of farmland in Turbo and Santa Marta. SLC at 27.
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86. As the Company expanded its farm ownership in Santa Marta and Turbo, the presence of left-wing
guerrilla groups became an increasingly-important factor in the management of Banadex. SLC at 27-28,
citing KPMG interview of Banadex Employee #9.
87. From 1984 to 1987, the FARC took advantage of a cease-fire with the Colombian government to
expand and consolidate its operations in resource-rich areas, such as Urabá, a commercial agriculture center.
SLC at 28.
88. During this time, the FARC routinely extorted local and multinational businesses operating in
Colombia,18 a practice known as the “vacuna,” which translates literally to “vaccine.” SLC at 28.
89. At some point between 1987 and 1989, Banadex received a demand for payment from the FARC
in the amount of $10,000, delivered by a FARC representative to [a Banadex farm manager]. [The Banadex
farm manager] told [Banadex Employee #1] about the demand. SLC Report at 30.
90. [Banadex Employee #1] then called [Chiquita Employee #2], and told him that the FARC had
demanded an “extortion payment” in Turbo. SLC Report at 31.
91. [Chiquita Employee #2] called Robert Kistinger, who, at the time, was head of Chiquita’s Latin
American operations based in Cincinnati. Robert Kistinger joined Chiquita in 1980 and, after holding a
series of positions with increasing responsibilities, became President and COO of the Fresh Group in 1997,
the position he held until he left the Company in March 2008. SLC Report at 31.
92. Several weeks after learning about the demand for payment from the FARC, [Banadex Employee
#1] was told to travel to Cincinnati to meet with members of senior management to discuss the demand.
SLC Report at 31.
93. In Cincinnati, [Banadex Employee #1] met with Kistinger, Dennis Doyle, then-Vice President and
Chief Operating Officer (“COO”) of the Banana Group, and Charles Morgan, the Company’s then-General
Counsel. SLC Report at 31.
94. Dennis Doyle joined Chiquita as an in-house lawyer in 1984 and was the Vice President and COO
of the Banana Group from 1987 to 1989, during which time he oversaw the Colombia operations, in addition
to operations in other regions. From 1989 to 2002, he was the President in charge of the Far East, Middle
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East, Australia, and Asia Region and also had responsibilities for the Company’s European Region. He
served as Senior Vice President for Regulatory Affairs from 2002 until 2003, when he left the Company.
Doyle currently serves as a consultant for the Company. SLC Report at 31.
95. When [Banadex Employee #1] communicated the amount of the demand, Doyle responded, “Let’s
pay it.” SLC Report at 31.
96. Executives at the Company had a “number of discussions” about how to respond to this demand
and the future demands that the Company anticipated. SLC Report at 31.
97. No alternatives to making payments to the FARC were discussed at these meetings. SLC Report
at 31.
98. After the meeting, [Chiquita Employee #2] instructed [Banadex Employee #1] to meet him at a
hotel in Guatemala in order to put the payment process in motion. SLC Report at 32.
99. [Chiquita Employee #2] had come from Honduras, where he had obtained $10,000 from the
General Manager’s Fund (generally, an account in a division’s general ledger from which the General
Manager is permitted to make discretionary payments), which he gave to [Banadex Employee #1], who
brought it back to Colombia. SLC Report at 32.
100. [Banadex Employee #1] then delivered the cash (which he arranged to be converted from dollars
to pesos) to [the Banadex farm manager], who in turn delivered the payment to the FARC. SLC Report at
32.
101. Following the initial payment, Banadex continued to make payments in response to extortion
demands on a more or less regular basis, mostly to the FARC but also to other guerrilla groups. SLC Report
at 32.
102. Senior management in Cincinnati was aware of the payments, the payments were recorded in the
Company’s books, and they were reviewed periodically by [Chiquita Employee #2] and the Company’s
internal auditors. SLC Report at 32.
103. All payments to guerrilla groups were delivered by an intermediary and were made in cash. The
total amount of guerrilla payments ranged from $100,000 to $200,000 per year. SLC Report at 32.
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104. Banadex continued to make payments to the FARC and other guerrilla groups through the early
and mid-1990s. SLC Report at 32.
105. Chiquita's payments to the FARC ended some time between 1997 and 1999. SLC Report at 30.
Chiquita's Internal Accounting of Payments to the FARC
106. Defendant's payments to the FARC were considered “sensitive” payments and given special and
confidential treatment. Even though the Company made efforts to limit the number of people who had
knowledge of the guerrilla payments, personnel in the Internal Audit and Accounting Departments tracked
the payments on the Company’s books and records. SLC Report at 35.
107. Ernst & Young (hereinafter "E&Y"), the Company’s outside auditor from at least 1985 to 2008,
was generally aware that the Company’s Colombian division was making “sensitive” payments. SLC
Report at 35.
108. E&Y and the Company’s Audit Committee jointly determined that the Company’s Internal Audit
Department should be responsible for auditing the Colombia division. E&Y reviewed all of Internal Audit’s
work to ensure that it followed appropriate auditing procedures. SLC Report at 35.
109. E&Y “acquiesced in the making or concealment of the improper or illegal payments and their
mischaracterization in Chiquita’s accounting books and records” and “repeatedly certified Chiquita’s false
and misleading financial statements . . . while misrepresenting that they had been properly audited.” SLC
Report at 36.
110. In the late 1990s, E&Y began performing targeted, on-site audits of these “sensitive balance
accounts” as part of its consolidated audit procedures. This was performed with the assistance of Chiquita’s
Internal Audit department. SLC Report at 35.
111. Guerrilla payments were initiated within the Company by completing a document called a “Form
1016,” which was required by Chiquita’s accounting procedures for virtually every disbursement. SLC
Report at 36.
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112. For guerrilla payments, the description on the 1016 was coded (for example, as a payment for
“military transport”) in order to conceal the nature of the payments from local staff in Colombia. SLC
Report at 36.
113. Once a properly authorized 1016 was submitted to the Accounting Department, the funds were
disbursed. SLC Report at 36.
114. All payments to guerrilla groups were delivered by an intermediary and were made in cash. SLC
Report at 36.
115. The Company’s Internal Audit Department developed a special accounting process for recording
“sensitive” payments, which were described as payments requiring an “appropriate level of confidentiality”
that “would not fall into other account classifications such as Contributions, Donations, Consulting
Services, Public Relations, etc.” SLC Report at 36.
116. As a general matter, the accounting process involved conducting a quarterly review of sensitive
payment transactions and providing the underlying payment documentation to the General Counsel in
Cincinnati. SLC Report at 36-37.
117. This process was described in memoranda authored by Bud White and distributed widely
throughout the Company, which were redistributed on an annual basis by the Internal Audit Department:
for example, in a Memorandum from Bud White to Distribution List (Apr. 19, 1990); a Memorandum from
Steven Tucker to Distribution List (Feb. 20, 1998); a Memorandum from Steven Kreps to Distribution List
(Nov. 12, 1999); and a Memorandum from Steven Kreps to Distribution List (Nov. 30, 1999). SLC Report
at 37.
118. Payments to the FARC were recorded on Banadex’s General Ledger as either: (i) general manager’s
expenses drawn from the General Manager’s fund or (ii) security payments drawn from an operations
account. SLC Report at 37.
119. The guerrilla payments were not explicitly recorded as “guerrilla payments” in Banadex’s
accounting records. SLC Report at 37.
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120. During routine audits of Banadex’s internal controls, the Company ensured that “sensitive”
payments were appropriately recorded. SLC Report at 37.
121. Banadex documented and recorded the guerrilla payments and the Internal Audit Department
monitored and reviewed “sensitive payments,” a category which included guerrilla payments. SLC Report
at 37-38.
122. Then-General Counsel Charles Morgan was involved in the initial decision to approve the guerrilla
payments. SLC Report at 38.
123. In or around 1992, the Chiquita Legal Department in Cincinnati knew of the payments being made
to guerrilla groups when then-in-house counsel Robert Thomas noticed what turned out to be a guerrilla
payment recorded on an FCPA report received from Banadex. SLC Report at 38.
124. As part of the Company’s routine audit schedule, [Chiquita Employee #3], was sent to Colombia
in 1995 with a team to conduct an audit of Banadex. SLC Report at 37.
125. [Chiquita Employee #3] performed the portion of the audit that dealt with “sensitive” and FCPA
payments, and determined that all such payments were properly recorded in Banadex’s books. SLC Report
at 37.
126. [Chiquita Employee #3] and his team identified certain other deficiencies concerning internal
control processes, and a task force was established to monitor the division’s internal controls and to reduce
general overhead in Colombia, particularly in the areas of finance and accounting. Following the 1995
audit, [Chiquita Employee #3] became Banadex’s [ ], a position he held until late 2001. SLC Report at 37-
38.
127. The main concern identified in the 1995 audit was how to properly report guerrilla payments to
Cincinnati. SLC Report at 38.
128. As result of the audit, Banadex began to send information about the payments directly to Cincinnati.
SLC Report at 38.
129. Under Chiquita’s FCPA reporting regime, all employees of a certain salary grade were required to
complete a quarterly form detailing any payments that might potentially be covered by the FCPA. The
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quarterly report forms submitted by individuals contained both (i) payments to government officials and
(ii) “sensitive” payments, or payments that the Company treated as confidential, regardless of whether they
were covered by the FCPA. SLC Report at 39.
130. Once filled out and returned, these forms were analyzed by Thomas and Bud White and compiled
in a comprehensive FCPA report summary, organized by country and division, which was then shared with
Robert Olson, the Company’s General Counsel. SLC Report at 39.
131. Olson, who joined Chiquita in August 1995 and served as General Counsel until August 2006, said
that he learned about the guerrilla payments shortly after joining the Company in 1995. SLC Report at 39.
132. Thomas then presented the FCPA summary reports to the Audit Committee. SLC Report at 39.
133. Initially, Thomas made these reports on a quarterly basis, but, at some point before Olson joined
the Company in 1995, the Audit Committee requested that they be made on a semi-annual basis. SLC
Report at 39.
134. At the Audit Committee meetings, but not before, Thomas distributed summary reports to each
Audit Committee member and explained the summaries and any trends in the payments. SLC Report at 39.
135. According to Thomas, the guerrilla payments did not implicate the FCPA because they were not
being made to government officials. SLC Report at 39.
136. Olson and Hills shared Thomas’s assessment of this issue. SLC Report at 41.
137. However, neither Thomas nor Olson made any further inquiry into the potential legal consequences
of making the payments under U.S. law. SLC Report at 41.
138. While certain employees reported the payments to guerrilla groups on FCPA forms, guerrilla
payments were not reported on the quarterly FCPA summaries that were presented to the Audit Committee.
SLC Report at 39.
139. On February 4, 1993, David Hills, an in-house lawyer in Cincinnati with responsibility for
Colombia, drafted a memorandum that had been requested by [Chiquita Employee #1] summarizing but
not analyzing a recently enacted Colombian law (“Law 40”) that set forth penalties for paying, concealing,
or failing to disclose kidnapping ransom and extortion payments. SLC Report at 39.
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140. [Banadex Employee #1], [Banadex employee #3], [Chiquita Employee #2], and Kistinger knew
about the payments, in part because of their involvement in the original decision to approve the payments
or in making the payments thereafter. SLC Report at 42.
141. The Legal and Internal Audit Departments knew about the payments due to their roles in monitoring
the FCPA reports. SLC Report at 42.
142. William Tsacalis, then-Controller and Chief Accounting Officer, also knew about the payments.
William Tsacalis joined Chiquita in January 1980 and became Controller in 1984. At some point in the late
1980s, he added the titles of Vice President and Chief Accounting Officer. In early 2005, Tsacalis became
Vice President of Finance and Treasurer, and in November 2007, he became Vice President of Finance and
Enterprise Risk Management, a position he held until he left Chiquita at the end of 2007. SLC Report at
42.
143. [Chiquita Employee #3] was also aware of the guerrilla payments, which he learned about while
preparing to conduct the 1995 audit of Banadex. SLC Report at 42.
144. Neither Carl Lindner, then-Chairman and Chief Executive Officer, nor Keith Lindner, then-
President and COO, could recall whether the Company made payments to guerrilla groups in Colombia.
SLC Report at 43.
145. Steven Warshaw, then-Chief Administrative Officer and Chief Financial Officer, said that he did
not “specifically recall the terminology ‘guerrilla,’” but did say that he recalled that Chiquita had to make
“protection payments” in Colombia. SLC Report at 43.
146. Chiquita's Special Litigation Committee believed that Keith Lindner and Warshaw knew the
payments were being made, and that the evidence that Carl Lindner knew of them was suggestive but not
compelling. SLC Report at 43.
147. Payments to guerrilla groups were not included in the Company’s FCPA report summaries that
were presented to the Audit Committee, and Robert Thomas said that he did not make a separate
presentation on the “sensitive” payments listed on the FCPA reports and did not specifically recall ever
discussing guerrilla payments during an FCPA presentation. SLC Report at 43.
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148. The Audit Committee and individual directors knew about the guerrilla payments. SLC Report at
43.
Payments to the AUC
149. Banana growers at the time supported the formation of convivirs, because their purpose was to
provide security and surveillance services in the Urabá region. SLC Report at 46-47.
150. SLC reviewed documents and interviewed witnesses suggesting that the convivir payments may
well have started before 1997. SLC Report at 47.
151. The payments to the convivirs were approved by [Banadex Employee #1], who viewed the convivir
payments as within the authority he had been granted many years earlier. SLC Report at 47.
152. In late 1996 or early 1997 [Banadex Employee #4] met with Irving Bernal, a prominent banana
producer in Colombia, to discuss “a very important meeting” regarding security issues. SLC Report at 47.
153. [Banadex Employee #4] and [Banadex Employee #1] met Bernal at Chiquita’s office in Medellín,
and then followed him in a separate car to a large house in Medellín, where they met with Carlos Castaño,
the well-known leader and public face of the AUC. SLC Report at 47.
154. [Banadex Employee #4] and [Banadex Employee #1] both said that Castaño did not make any
direct threats at the meeting. SLC Report at 47.
155. According to [Banadex Employee #1], Castaño said, “We are not demanding payments in the way
the guerrillas demanded payments, but if you don’t pay, no one will protect you.” SLC Report at 47.
156. Shortly after the meeting with Castaño, at [Banadex Employee #1’s] direction, [Banadex Employee
#3] then attended a meeting with the paramilitaries at a gas station near the Company’s offices. SLC Report
at 48.
157. After the meeting, [Banadex Employee #3] discussed the meeting with [Chiquita Employee #1]
and [Banadex Employee #1], who authorized the payments. SLC Report at 48.
158. According to handwritten notes taken by Bud White at a May 7, 1997 meeting in Cincinnati, the
Company paid $21,763 to convivirs in 1996. SLC Report at 49.
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159. A June 23, 1997 memorandum from [Banadex Employee #3] to [Banadex Employee #1], requested
that a payment be made to the Punte de Piedra convivir, which was based in Turbo. SLC Report at 49.
160. By the end of 1997, Banadex was making regular payments to the Punte de Piedra convivir. SLC
Report at 49.
161. [Banadex Employee #4] recalled meeting with other banana growers about making financial
contributions to the convivir after the meeting with Castaño. SLC Report at 49.
162. By late 1998, Banadex was no longer paying the Punte de Piedra convivir, but was instead paying
the La Tagua del Darién convivir, which was also located in Turbo. SLC Report at 50.
163. According to this arrangment, Banadex paid three cents per box of bananas to La Tagua del Darién.
SLC Report at 50.
164. [Banadex Employee #1] and [Banadex Employee #2] told the SLC Report that the Company made
payments to a convivir prior to the Castaño meeting. SLC Report at 50.
165. [Banadex Employee #1] and [Banadex Employee #2] told the SLC that the Company made both
guerrilla and convivir payments in Urabá 1996 and 1997. SLC Report at 50.
166. [Banadex Employee #3] told the SLC that the payments to the guerrilla groups and convivirs
overlapped. SLC Report at 50.
167. [Banadex Employee #2] said that the Company may have made payments to the AUC as early as
1995. SLC Report at 50.
168. [Banadex Employee #1] said that he believed that the Company continued to pay guerrillas in Santa
Marta until approximately 1999, when the “AUC-like” group achieved more power. SLC Report at 50-51.
169. According to a forensic analysis performed by KPMG, it could not confirm “whether Banadex
made any extortion payments to guerrilla groups after the first FTO designation in October 1997,” a fact
that it attributed to the coding of these payments on 1016s to “protect Company personnel from retribution,
given the real risk of Company infiltration by members of warring armed groups.” SLC Report at 51.
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170. While the SLC could not reach a definitive conclusion on when the guerrilla payments ended, the
weight of the evidence suggests that after a brief period of overlap, Banadex paid the convivir exclusively
and stopped paying the guerrillas. SLC Report at 51.
171. Chiquita's payments to convivir groups were discussed at a May 7, 1997 meeting in Cincinnati,
which Bud White, Robert Olson, Robert Kistinger, Robert Thomas and, most likely, William Tsacalis
attended. SLC Report at 51.
172. Bud White’s handwritten notes of the meeting reflect a detailed discussion about the guerrilla and
convivir payments. In particular, the notes reflect a discussion concerning (i) the amounts paid to guerrillas
and convivirs in 1996, (ii) the amounts that were budgeted for 1997, and (iii) the appropriate level of
management approval for the payments, including approval by [Chiquita Employee #2] and Kistinger,
among others. SLC Report at 52.
173. Bud White failed to cooperate with the SLC’s investigation despite its – and the Company’s –
repeated efforts to obtain his assistance. SLC Report at 52 n 76.
174. According to Olson, the group also discussed whether the Audit Committee or the Board should be
involved in the approval process when the payments exceeded a certain amount. SLC Report at 52.
175. Then- governor of Antioquia, and former Colombian President Alvaro Uribe, and the Secretary of
Antioquia, Pedro Moreno, met with Chiquita representatives and personally assisted Chiquita in
establishing the convivires. SLC Report at 53.
Weapons and Drug Shipments
176. In April of 2001, weapons were smuggled into Colombia through Chiquita’s shipping facilities in
Urabá. SLC Report at 72.
177. [Banadex Employee #4] told Roderick Hills that a customs broker “known to be a front for right-
wingers” had filed false shipping and import documentation with respect to a shipment of fertilizer, which,
in fact, was a shipment of weapons. SLC Report at 72.
178. The broker told Banadex port personnel when the ship would be arriving and that while Banadex
employees were not needed to unload the shipment, their “cooperation” was necessary. SLC Report at 72.
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179. [Banadex Employee #5] said that the weapon shipment belonged to Raul Hasbún. SLC Report at
72.
180. [Banadex Employee #5] said that Chiquita personnel did not actually unload the cargo; instead,
Raul Hasbun and his associates unloaded it. SLC Report at 72.
181. According to [Banadex Employee #5], after the cargo was unloaded, he provided the security
camera videotape that had apparently recorded the incident to Raul Hasbun, who destroyed it in [Banadex
Employee #5’s] presence. SLC Report at 72.
182. In the fall of 2001, a second arms smuggling incident occurred at the same Banadex port facility in
Urabá. In November, a ship called the Otterloo sailed from Nicaragua to the Banadex port. The Colombian
authorities subsequently determined that the Otterloo contained guns and ammunition that had been hidden
in boxes filled with plastic (or rubber) balls. It was later determined that this arms shipment was delivered
to the AUC. SLC Report at 73.
183. In June 2002, 3,000 kilograms of cocaine were smuggled to Europe aboard a Chiquita vessel. SLC
Report at 74.
184. Before the vessel left Colombia, one of Chiquita’s security employees informed [Banadex
Employee #10] and [Banadex Employee #5] that he had not inspected a container belonging to this shipper,
and had been given money to ensure his silence. SLC Report at 74.
185. [Banadex Employee #10] and [Banadex Employee #5] did not contact Colombian authorities to
seize the shipment in Colombia. SLC Report at 74.
186. [Banadex Employee #5] later arranged a meeting with the AUC, which he believed to be
responsible for the shipment.
Facts Showing the Defendant's Knowledge of Wrongdoing
187. For years, Defendant Chiquita paid the AUC by check through various convirires in Uraba,
Colombia. Proffer, Exhibit 1 at ¶ 23.
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188. The checks were nearly always drawn from the Colombian bank accounts of Defendant
Chiquita's subsidiary. Id.
189. 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.
190. Defendant Chiquita recorded these payments in its corporate books and records as "security
payments" or payments for "security" or "security services." Id.
191. 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,
recording them as payments for security services. Id. at ¶ 82.
192. Defendant Chiquita had information about the AUC's designation as an Foreign Terrorist
Organization through an Internet-based, password-protected subscription service that Defendant
Chiquita paid money to receive. Id. at ¶ 28.
193. Despite knowing of this designation, Chiquita continued to pay them. Id. at ¶ 29.
194. From about September 10, 2001 through about February 4, 2004, Chiquita make 50
payments to the AUC totaling over $825,000. Id.
195. Defendant Chiquita never applied for nor obtained any license from the Department of the
Treasury's Office of Foreign Assets Control. (OFAC) Id.
196. 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.
197. Outside Counsel's advice included "Must stop payments," "Bottom Line: CANNOT
MAKE THE PAYMENT," "You voluntarily put yourself in this position. Duress defense can
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wear out through repetition. Buz [business] decision to stay in harms way," and "the company
should not make the payment." Id.
198. 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.
199. Four days later, other Individual Defendants were instructed to "continue making
payments" to the AUC. Id. at ¶ 61.
200. 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.
201. Nevertheless, on May 5, 2003, Individual Defendants were instructed to "continue making
payments" to the AUC. Id. at ¶ 64.
202. On September 8, 2003, outside counsel again warned the Defendant that DOJ officials had
repeatedly stated the payments were illegal. Id. at ¶ 74.
203. On about December 22, 2003, Individual B sent an email to other Board members stating
that "we appear to [be] committing a felony." Id. at ¶ 84.
204. According to the Government's Sentencing Memorandum, prior to a meeting with the
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
government. Exhibit 2, Sentencing Memo, at 6 n 5.
Respectfully Submitted,
Paul Wolf
_______________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
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P.O. Box 21840

Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
January 2, 2019
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Chiquita Motion For Summary Judgment Negligence Per Se Facts Not in Dispute

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Chiquita Motion For Summary Judgment Negligence Per Se Facts Not in Dispute

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Case 0:08-md-01916-KAM Document 2229-2 Entered on FLSD Docket 01/02/2019 Page 1 of

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS

This Order relates to:

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

Plaintiffs' Statement of Material Facts Not Genuinely in Dispute

Defendant's Special Litigation Committee, or "SLC Report" (Exhibit 3).

other Colombian Terrorist Groups (¶¶ 78-80)

Admissions in the Factual Proffer

Chiquita's Relationship with the AUC

1. C.I. Bananos de Exportacion, (hereinafter “Banadex”), was Defendant ChiquitaBrands

through June 2004. (Proffer at ¶2)

4. The Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, or

7. The AUC also engaged in the murder of civilians. (Proffer at ¶3)

economy of the United States (referred to hereinafter as a “Specially-Designated’ Global Terrorist”

government. (Proffer at ¶6)

Chiquita’s Payments to the AUC

or indirectly, nearly every month. (Proffer at ¶19)

to drive the FARC out of Urabá. (Proffer at ¶21)

payments to an intermediary known as a “convivir.” (Proffer at ¶21)

organization led by Carlos Castano. (Proffer at ¶22)

attended this meeting. (Proffer at ¶22)

subsidiary Banadex. (Proffer at ¶23)

payments” or payments for “security” or “security services.” (Proffer at ¶23)

or actual security equipment in exchange for the payments. (Proffer at ¶23)

corresponding Colombian tax liability. (Proffer at ¶25)

in Defendant Chiquita's Cincinnati headquarters, Defendant Robert Olson described the

Designation of the AUC as a Foreign Terrorist Organization

Cincinnati Enquirer on October 17, 2001. (Proffer at ¶27)

and global security threats generally, through an Internet-based, password-protected subscription

service that Defendant Chiquita paid money to receive. (Proffer at ¶28)

a computer within Defendant Chiquita's Cincinnati headquarters, accessed this service’s

“US terrorist designation

Defendant Chiquita Continued to Pay

by check in an amount equivalentto $31,847.1 (Proffer at ¶30)

and Santa Marta by check in an amount equivalent to $30,079. (Proffer at ¶33)

and Santa Marta by check in an amount equivalent to $25,977. (Proffer at ¶34)

by check in an amount equivalent to $35,675. (Proffer at ¶36)

by check in an amount equivalent to $10,888. (Proffer at ¶37)

by check in an amount equivalent to $31,131. (Proffer at ¶41)

check in an amount equivalent to $11,585. (Proffer at ¶42)

by check in an amount equivalent to $27,841. (Proffer at ¶45)

by check in an amount equivalent to $40,419. (Proffer at ¶48)

Uraba by check in an amount equivalent to $47,424. (Proffer at ¶51)

Uraba by check in an amount equivalent to $22,336. (Proffer at ¶53)

Chiquita continued to pay the AUC against the advice

States government as a Foreign Terrorist Organization. (Proffer at ¶55)

payments to the AUC. (Proffer at ¶55)

A. That defendant Chiquita “Must stop payments."

B. “Bottom Line: CANNOT: MAKE THE PAYIMENT”

C. “Advised NOT TO MAKE ALTERNATIVE PAYMENT through CONVIVIR”

D. “General Rule: Cannot do indirectly what you cannot do directly"

E. "Concluded with: CANNOT MAKE THE PAYMENT”

H. "[T]he company should not make the payment.”

Uraba by check in an amount equivalent to $17,434. (Proffer at ¶57)

a check in an amount equivalent $19,437. (Proffer at ¶58)

Foreign Terrorist Organization. (Proffer at ¶59)

withdrawing from Colombia. (Proffer at ¶59)

Chiquita had been making payments to the AUC. (Proffer at ¶59)

to "continue making payments” to the AUC. (Proffer at ¶61)

check in an amount equivalent to $47,235. (Proffer at ¶66)

check in an amount equivalent to $35,136. (Proffer at ¶70)

a check in an amount equivalent to $12,850. (Proffer at ¶72)