Case 0:08-md-01916-KAM Document 2464 Entered on FLSD Docket 05/25/2019 Page 1 of 4

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)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)
__________________________________________/

Plaintiffs' Reply to Defendant's Opposition to Plaintiffs Objections

to Proposed Mediator and to Expedited Motion to Excuse Plaintiffs
from Physically Attending Mediation [DE 2460]

Chiquita wants the bellwether Plaintiffs to travel to the United States to mediate or settle

their cases one by one. Settling them defeats the purpose of selecting them for trial.1 The two

years spent in discovery will have been wasted, unless they are replaced with the next plaintiffs

waiting in line, so there are still 12 cases going to trial in October.

The bellwether trials are supposed to be informational.2 "If a representative group of

claimants are tried to verdict, the results of such trials can be beneficial for litigants who desire to

1
In addition, if the bellwether cases are settled on a confidential basis, they'll provide no
information and will skew any other results.
2
See Eldon E. Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 TUL. L. REV. 2323
(2008). The author contrasts the binding approach of early Multi District Litigation cases with the
modern "informational" approach. "Ideally, the trial-selection process should accurately reflect
the individual categories of cases that comprise the MDL in toto, illustrate the likelihood of success
Case 0:08-md-01916-KAM Document 2464 Entered on FLSD Docket 05/25/2019 Page 2 of 4

settle such claims by providing information on the value of the cases as reflected by the jury

verdicts." In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997); In re Hanford Nuclear

Reservation Litig., 497 F.3d 1005, 1014 (9th Cir. 2007) (“The trial was designed to produce a

verdict that would highlight the strengths and weaknesses of the parties’ respective cases and thus

focused on six plaintiffs ... who were representative of the larger group.”).

The mediation process envisioned by the Defendant won't produce any useful information.

Instead of acting as benchmarks to determine the likelihood of success and damages at trial, this

process would weigh the Plaintiffs' subjective expectations of the values of their cases against the

dire conditions of poverty in which they live. Of my six bellwether cases, two were illiterate and

couldn't even authenticate documents in their depositions, and a third had been educated through

the fifth grade. Chiquita seeks to exploit this to drive as hard a bargain as possible, and diffuse

these cases one by one as they are allowed to go to trial.

The bellwether plaintiffs are unaware of the evidence a jury would hear, of the legal

standards, or even what state's law applies. 3 Their decisions would be based on their economic

situations and tolerance for risk. The plaintiffs demonstrated in their depositions a lack of

knowledge of the details of Chiquita's payments to the AUC, and of the legal basis for this lawsuit.

Counsel for the Defendant seized on this as if they were important admissions.

and measure of damages within each respective category, and illuminate the forensic and practical
challenges of presenting certain types of cases to a jury. Any trial-selection process that strays
from this path will likely resolve only a few independent cases and have a limited global impact."
Id. at 2343.
3
While the question of which state's negligence laws apply may be mostly academic, the question
of which state's damages laws apply is not. We argued that damages are remedies, and although
"heads of damages", ie the categories of recoverable damages, are substantive, the measure of
damage is a matter of forum law. We also argued that if Colombian damages law applies, then the
damages cap in the criminal code should apply, since this case follows a criminal proceeding.
Case 0:08-md-01916-KAM Document 2464 Entered on FLSD Docket 05/25/2019 Page 3 of 4

Chiquita also insists on using a meditator whose prior role in this case was unknown to me

and not disclosed until I spoke to his assistant on the phone. The fact that a mass mailing to 42,000

shareholders resulted in no complaints doesn't change the nature of the settlement in the

shareholder derivative case, in which the wrong side paid $4 million dollars in legal fees. Now

the mediator is supposed to try to settle the individual bellwether cases, avoiding as many trials as

possible. However, unlike in many situations, settling the bellwether cases does not ultimately

advance this litigation. It defeats the purpose of having bellwether trials, which is informational.

We proposed to Chiquita that after remand back to the District of Columbia, we begin

working on the next group of 100 cases, and bring them to trial as expeditiously as possible.

Chiquita could make them all come to the US, go through the drama of empaneling a jury and so

on, and then try to settle them on the eve of trial. This is what happened in the Julin case. However,

after remand, we will propose to the D.C. judge mechanisms to simplify this and prevent his

calendar from being taken up by thousands of potential trials. 4 We're hoping that this Court's

forthcoming rulings on the Summary Judgment and Partial Summary Judgment Motions will help

the judge in DC to identify legal issues and categories of cases.

In the Global Scheduling Order ("GSO"), the Court ordered that "the Parties shall agree

upon a mediator and advise the Clerk’s office of their choice, failing which the Clerk will designate

a mediator from the list of certified mediators on a blind random basis ..." DE 2122 at 6. However,

the part of the GSO concerned with mediation pertains to "Bellwether Trial #1" and my clients

were excluded from participating in it. This is an additonal reason why we shouldn't have to

4
Although this Court has ruled that each bellwether plaintiff must come to the United States for
both depositions, those rulings didn't contemplate actually bringing thousands of cases to trial.
The Judge in DC will have discretion to manage his own pre-trial proceedings. We are hoping
that the D.C. court, faced with thousands of trials instead of a dozen bellwether trials, will permit
testimony by video.
Case 0:08-md-01916-KAM Document 2464 Entered on FLSD Docket 05/25/2019 Page 4 of 4

participate in this mediation. However, if the agreed alternate mediator Mr. David Geronemous is

available, and the Defendant wants to discuss a global settlement, then we should attend.

Conclusion

The mediation process envisioned by the Defendant would dispose of the few cases

prepared for trial, provide no useful information, and delay the ultimate resolution of the case. The

Plaintiffs shouldn't have to personally attend the mediation, particularly when the potential

measure of damages is completely unknown and the Plaintiffs have no way to estimate the value

of their cases.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
PO Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

May 25, 2019

Certificate of Service

I hereby certify that on this 25th day of May, 2019, I filed the foregoing document with the
cleark of the Court using the Court's Elexctronic Filing (ECF) system, which will send electronic
notices to all persons entitled to receive them.

/s/ Paul Wolf

______________
Pauil Wolf