Case 0:08-md-01916-KAM Document 1108 Entered on FLSD Docket 05/27/2016 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,
ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
______________________________________________/
This Document Relates To:
ATS ACTION
08-80465-CIV-MARRA
______________________________________________/
DEFENDANT CHIQUITAS RESPONSE TO CONRAD & SCHERER, LLPS
RENEWED MOTION TO WITHDRAW
Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America, LLC
(collectively, Chiquita) respectfully submit this response to Conrad & Scherer, LLPs
(C&Ss) Renewed Motion to Withdraw as counsel for Plaintiffs DOES (1-144), PEREZES (195), PEREZES (96-795), and Carmen Tulia Crdoba Cuesta, et al. (D.E. 1011). The motion
should be denied. The Court denied C&Ss prior application for leave to withdraw as counsel
for these Plaintiffs, on the grounds that C&S had not satisfied the conditions precedent for
withdrawal (D.E. 989). Those conditions remain unsatisfied.
First, C&S still has not given notice to all Plaintiffs of its intent to withdraw, as required
by Local Rule 11.1(d)(3). By C&Ss own account, 511 of the over two thousand Plaintiffs
that it purports to represent have not been notified (D.E. 1087, at 2-3).1 C&S does not even
attempt to explain why notice to only some Plaintiffs is sufficient to justify leave to withdraw
1

C&S asserts that: (1) it could not contact 360 Plaintiffs; (2) it does not have contact
information for 144 Plaintiffs because attorney Paul Wolf, who claims that he, and not C&S or
Collingsworth, represents them (see D.E. 1015), will not give them these Plaintiffs contact
information; and (3) that C&S has not attempted to reach 7 Plaintiffs (D.E.1087, at 2-3).

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with respect to all Plaintiffs. Under the plain language of Rule 11.1(d)(3), it is not. Moreover,
the appropriate action for the Court to take with respect to claims asserted in the name of
plaintiffs that no one can find is not to allow a substitution of counsel, but to dismiss the claims.
It is farcical for any lawyer to prosecute claims in the name of a client whom the lawyer has no
ability to contact or even locate. Cf. Fla. Bar R. 4-1.4 (requiring lawyers to keep the client
reasonably informed about the status of the matter and explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the
representation).
Second, the notice C&S claims to have provided to those clients whom it did contact was
not served on Chiquitas counsel. Local Rule 11.1(d)(3), however, plainly requires service of the
notice of withdrawal on opposing counsel as well as the clients.
This noncompliance is particularly significant because the record is devoid of any
evidence that any Plaintiffs have been apprised that Mr. Collingsworth, in whose hands C&S
seeks to place these cases (see D.E. 1011, at 3), recently was found to have committed
substantial misconduct in connection with witness payment discoveryincluding the finding of
the U.S. District Court for the Northern District of Alabama that there is (at least) probable
cause to believe that [he], while prosecuting lawsuits on behalf of his firm, engaged in witness
bribery and suborning perjury, and that the witness bribery continues to this day. Mem. Op.
& Order, Drummond, Inc. v. Collingsworth, 11-cv-3695-RDP (N.D. Ala. Dec. 7, 2015),
(attached as Hellerman Decl., Ex. A, at 17 & 26.) Notice that fails to apprise Plaintiffs of such
material information about the consequences of C&Ss withdrawal is plainly deficient.
Third, permitting C&S to withdraw would obstruct discovery regarding witness payments
in this case. C&S has resisted, and actively continues to resist, Chiquitas efforts to obtain

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discovery on this subject. In Drummond, Judge Proctor found that Collingsworths conduct was
attributable to C&S.2 Id., at 1, 20 & n.15. Currently pending before this Court is Chiquitas
Second Motion to Compel Compliance by C&S and Collingsworth with the Courts Orders on
Witness-Payment Discovery (D.E. 1080).3 Documents that Collingsworth and C&S have slowly
produced over the past year since the Court first ordered them to provide such discovery (see
D.E. 837, at 4-6; D.E. 1080, at 6-9) have revealed additional deficiencies in their compliance
with those Orders. Production of the additional documents sought in Chiquitas pending motion
very well may reveal further deficiencies. Allowing C&S to withdraw, such that it would no
longer be before the Court on this matter, would obstruct efforts by Chiquita to obtain
compliance with the orders issued by the Court on witness-payment discovery. Consideration of
C&Ss proposal that the Court retain jurisdiction over it for discovery purposes is premature
because C&S has not yet fulfilled its notice obligations.
The facts that all of the Plaintiffs are Colombians in Colombia (D.E. 575, at 10-992), that
the identities of many of them are unknown, and that their U.S. counsel cannot contact so many
of them, do not excuse C&S from its obligation to notify all of its clients of its desire to
withdraw and to apprise them of adverse highly material information about its successor. Nor do
these facts permit C&S to obstruct Chiquitas attempts to compel it to comply with the Courts
discovery orders. These facts merely underscore the difficulty and inefficiency of an American
court hearing the claims of the thousands of Colombian residents, when the only connection
between their claims and the United States is their American lawyers.

An appeal is pending regarding the Drummond courts attributability decision. Drummond,

Inc. v. Collingsworth, 11-cv-3695-RDP (N.D. Ala. Dec. 7, 2015) at D.E. 453.
3

Chiquitas Reply on that motion is due June 3 (See D.E. 1068).

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ARGUMENT
The withdrawal of counsel is subject to this Courts discretion. See, e.g., Robinson v.
Boeing Co., 79 F.3d 1053, 1055 (11th Cir. 1996) ([T]his Circuit has long held that district
judges enjoy broad discretion to determine who shall practice before them and to monitor the
conduct of those who do (internal quotation marks omitted)). Under the atypical circumstances
presented here, the Court should deny the motion for withdrawal.
I.

C&Ss Failure to Notify Their Clients Precludes Withdrawal.

C&S cannot withdraw without first serving notice on each of its clients. See L.R.

11.1(d)(3) (No attorney shall withdraw the attorneys appearance in any action or proceeding
except by leave of Court after notice served on the attorneys client and opposing counsel.); see
also Fla. Bar R. 4-1.16(c) (A lawyer must comply with applicable law requiring notice or
permission of a tribunal when terminating representation.). This prior notice requirement
ensures a basic level of protection for clients who may object to the change in representation.
See Fla. Bar R. 4-5.8, cmt. (contemplating disagreement by the client to arrangements between
departing lawyers and law firms).
This Court has already ruled that, pursuant to Rule 11.1(d)(3), C&S cannot withdraw
until notice has . . . been provided to all of [its] clients, (D.E. 989 (emphasis added)); see also
Gonzales v. Texaco, Inc., No. C 06-02820 WHA, 2007 WL 4208344, at *4 (N.D. Cal. Nov. 27,
2007) (Until [counsel] provides notice to all of his clients with translation . . . . any motion by
him to withdraw is premature.), revd on other grounds, 344 F. Appx 304 (9th Cir. 2009).
C&S admits that at least 511 Plaintiffs have yet to receive any notice. Therefore, C&S has failed
to satisfy this condition precedent to receiving leave to withdraw.
C&S seeks to justify its failure by claiming that it made diligent efforts to notify these
Plaintiffs, and that providing notice was a complicated and time-consuming process. (D.E.
4

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1087 at 3). But Rule 11.1(d)(3) does not permit withdrawal without notice on the basis of a good
effort, or the cost or difficulty of complyingit requires actual notice, because the client, not the
lawyer, determines who will represent him or her. Neither C&Ss Renewed Motion nor its Final
Report addresses this issue, much less offers any reason why the Court should nevertheless
permit it to withdraw for those reasons. To the contrary, C&Ss admission that neither it nor Mr.
Collingsworth can even find these plaintiffs makes clear that there is no clientjust a name, or
in many cases a pseudonym, that counsel are using to prosecute claims from which they hope to
collect a fee. Plaintiffs that counsel are unable to locate cannot make any decisions about the
prosecution or settlement of their claims, will not be able to provide any evidence, and cannot
receive any recovery. The claims asserted in the names of those Plaintiffs should be dismissed.
II. C&Ss Failure to Serve the Notice on Chiquitas Counsel, or Apprise Plaintiffs of Mr.
Collingsworths Substantial Misconduct, Precludes C&Ss Withdrawal.
Local Rule 11.1(d)(3) could not be more clear that the notice must be served not only on
the clients but also on opposing counsel. This requirement ensures that opposing counsel can
assess the accuracy of the notice and identify any deficiencies to the Court.
C&S simply disregarded this requirement, however, and did not serve a copy of the
notice on Chiquitas counsel. C&S purports to justify its noncompliance by claiming that the
notice is privileged, and attempts to impose on the Court the task of policing it (D.E. 1011 at 2).
But the Rule contains no such exceptionnor is it at all obvious why the notice would be
privileged. See, e.g., Simmons v. House of Brewz LLC, No. 2:14-CV-390-FTM-29CM, 2015 WL
3991021, at *1 (M.D. Fla. June 30, 2015) (noting that a M.D. Fla. Local Rule, similar to Rule
11(d)(3), required notice of withdrawal to be served on the client and opposing counsel).
C&Ss failure to comply with this prong of the rule is particularly significant, because it
means there is no evidence that C&S provided Plaintiffs with notice of Mr. Collingsworths
5

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substantial misconduct, as found recently by two different courts determinations that would be
material to a clients consideration of whether it wants to continue the representation by the
departing lawyer. D.C. Bar Ethics. Op. 273.4
In Drummond, Judge Proctor recited a laundry list of written misrepresentations that
Mr. Collingsworth had made regarding witness payments. (See Hellerman Decl., Ex. A, at 14.)
Judge Proctor also found probable cause that Mr. Collingsworth engaged in and continues to
this day to engage in witness bribery and suborning perjury in connection with testimony by
Colombian paramilitary witnesses. (Id. at 26.) Nor, apparently, were any Plaintiffs notified that
a California court recently imposed sanctions on C&S in the amount of $48,000 for its misuses
of the discovery process, continued unmeritorious objections (i.e., work product) and evasive
responses to Doles discovery requests re[garding] communications with third-party paramilitary
witnesses and the refusal to identify a witness with personal knowledge of the facts who has
been paid significant sums. Ruling on Submitted Matter re Mot. for Sanctions, Contempt &
Waiver, at 3-5, Perez 1A, et al. v. Dole Food Co., Inc., et al., BC412620 (Cal. Super. Ct. Nov.
20, 2015) (attached as Hellerman Decl., Ex. D, at 2-4 (internal quotation marks omitted).) These
abuses were committed when Mr. Collingsworth was the lead lawyer for C&S on this matter,
(D.E. 1011 at 8). The Dole court also admonished C&S attorneys for their discovery abuses.
(See Hellerman Decl., Ex. E, at 88:20-22 (I have a lot of disappointment about your not
complying with my orders[.]).)
Since C&S refuses to serve the notice on Chiquita, and neither its renewed motion nor its
Final Report gives any information about the content of the notice, there is no reason to believe

C&Ss attorneys, Mr. William R. Scherer and Mr. Eric J. Hager, are admitted to the D.C. Bar.
(See Hellerman Decl., Exs. B & C.)

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that Plaintiffs are aware of these facts or would choose to continue to be represented by Mr.
Collingsworth if they were. Rule 11.1(d)(3) cannot be read to permit lawyers to withdraw on the
basis of a notice that fails to apprise them of such material information concerning the
consequences of the proposed withdrawal.
III.

C&Ss Withdrawal Will Disrupt Chiquitas Continuing Efforts to Enforce this

Courts Orders on Paramilitary-Witness Payments.
When an attorney seeks to withdraw, [i]t is incumbent on the court to assure that the

prosecution of the lawsuit before it is not disrupted by the withdrawal of counsel,5 including by
considering the expense to the parties objecting[] and the potential for manipulation or
impropriety.6 Courts have denied motions to withdraw based on the harm withdrawal would
cause to the opposing party and the discovery process. See Meznarich v. Morgan Waldron Ins.
Mgmt. LLC, 2012 WL 487963 (N.D. Ohio Feb. 14, 2012) (denying defendant counsels motion
to withdraw because withdrawal would burden the litigants in th[e] lawsuit by hamper[ing]
the[ir] ability . . . to participate in the discovery process).
These principles are of particular importance here. On April 14, 2016, Chiquita filed its
pending Second Motion to Compel Compliance by C&S and Collingsworth with the Courts
Orders on Witness-Payment Discovery (D.E. 1080). In May 2015, the Court issued its first

Broughten v. Voss, 634 F.2d 880, at 882-83 (5th Cir. Jan. 1981). Fifth Circuit decisions prior to
October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner v. Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981) (en banc).
6

Robinson v. Boeing Co., 79 F.3d at 1055; see also Burns v. Gen. Motors Corp., 2007 WL
4438622, at *2 (S.D. Ind. Nov. 30, 2007) (The court has a responsibility to mitigate the effects
on other parties and the court of any breakdown in what might otherwise be a private relationship
between plaintiff and his attorney.); 7A Corpus Juris Secundum 328 (In any case, the
withdrawal of an attorney from a case may be permitted only when the rights of others, or the
administration of justice, would not be affected by such withdrawal . . . .); id. at 338 ([T]he
court is obligated to consider [] the prejudice caused to the other party by grant of substitution of
counsel . . . .).

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Order requiring C&S and Collingsworth to, inter alia, produce documents responsive to
Chiquitas discovery requests concerning paramilitary witness payments (D.E. 797). In August
2015, the Court issued two additional Orders directing Plaintiffs counsel to comply with the
Courts prior Order (D.E. 872; D.E. 885). Although many deficiencies in their compliance with
those Orders were resolved through meeting and conferring, Plaintiffs counsel continue to
refuse to produce documents concerning payments made to Colombian attorney Ivn Otero.
C&S apparently has numerous documents regarding these payments (see D.E. 1095, at 7-8 & n.9
(arguing that it would need more than 72 hours to search for, review, and produce documents
regarding payments to Otero, in the event the Court grants Chiquitas second motion to compel)).
Further, numerous documents related to Mr. Collingsworths witness-payment activities,
generally, are in the possession, custody, or control of C&S, because, for example, C&S is the
custodian of relevant emails sent and received by Mr. Collingsworth,7 or email authors or
recipients were other C&S employees.8
Finally, as the Drummond court found, C&S is responsible for Mr. Collingsworths
conduct as a partner of the firm under basic agency principles. (See Hellerman Decl., Ex. A, at
18-20.) In addition, regardless of agency principles, the Drummond court noted that it would be
incredulous to believe that no one at C&S other than Collingsworth knew of the payments made

See Hellerman Decl., Ex. F, at 615:12-18, 640: 21-24 (transcript from hearing in Drummond
litigation on crime-fraud and email gap issues stating that C&S and IRAdvocates email accounts
eventually merged and that, [o]n October 27, [2011,] Juan Rodriguez[, the head of C&Ss IT
department,] combined the IRAdvocates account and the Conrad & Scherer account into the
C&Ss account. He combined them all into one.); see also id. at 390:13-24 (describing C&Ss
relationship to IRAdvocates as synergistic in terms of Mr. Collingsworths involvement in
both organizations simultaneously, other young lawyers that would come to work for it because
it was a nonprofit, and the organizations financial objectives).
8

See, e.g., DE 839-22 to 839-24 (emails on behalf of Collingsworth sent by Susana Tellez, using
C&S email address).

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to witnesses and the court specifically found that other attorneys at the firm, including
William R. Scherer, received written notice of witness payments. (Hellerman Decl., Ex. A, at 20
n.15.) Allowing C&S to withdraw and become a third party relative to the litigation thus risks
obstructing discovery of witness-payment information called for by the Courts Orders, and
prejudicing Chiquitas ability to obtain complete discovery of those facts.
C&Ss willingness to subject itself to continuing limited jurisdiction (see D.E. 988, at 3,
D.E. 1011, at 3) cannot exempt it from the notice requirement. If C&S eventually satisfies the
notice requirement and is permitted to withdraw, Chiquita concurs that the Court should retain
jurisdiction over it at least for discovery purposes. At this point, however, the issue is premature.
CONCLUSION
For the foregoing reasons, the Court should deny C&Ss Renewed Motion to Withdraw.

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Dated: May 27, 2016

John E. Hall
Maureen F. Browne
Mark W. Mosier
Shankar Duraiswamy
Jos E. Arvelo
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street NW
Washington, D.C. 20001
Telephone: (202) 662-6000
Facsimile: (202) 662-6291

Jonathan M. Sperling
Eric Hellerman
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1000
Facsimile: (212) 841-1010

Respectfully submitted,
/s/ James C. Gavigan, Jr.__________
Sidney A. Stubbs (Fla. Bar No. 095596)
sstubbs@jonesfoster.com
Robert W. Wilkins (Fla. Bar No. 578721)
rwilkins@jonesfoster.com
James C. Gavigan, Jr. (Fla. Bar No. 0085909)
jgavigan@jonesfoster.com
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300

Counsel for Chiquita Brands International, Inc.

and Chiquita Fresh North America, LLC

10

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document with the
Clerk of the Court using CM/ECF on this 27th day of May, 2016. I also certify that the
foregoing document is being served this day on all counsel of record registered to receive
electronic Notices of Electronic Filing generated by CM/ECF, and in accordance with the
Courts First Case Management Order (CMO) and the June 10, 2008 Joint Counsel List filed
in accordance with the CMO.

By:

/s/ James C. Gavigan, Jr.

Fla. Bar No. 0085909