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Case 0:08-md-01916-KAM Document 2398 Entered on FLSD Docket 04/14/2019 Page 1 of 15

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)
__________________________________________/

Plaintiffs' Reply in Support of Motion for Partial


Summary Judgment for Negligence Per Se [DE 2229]

Paul Wolf, DC Bar #480285


Attorney for Plaintiffs
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com

April 14, 2019


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TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES ..................................................................................... ii

SUMMARY OF ARGUMENT ................................................................................ 1

ARGUMENT ............................................................................................................ 3

I. The Court should engage in a choice of laws analysis to address


Defendant's argument that Colombian tort law applies. ............................... 3

A. The Court has discretion to revise its own rulings. .......................... 5

II. The District of Columbia uses some form of governmental interest


analysis for choice of laws. .......................................................................... 6

A. The choice of laws cases relied on by the Defendant point to


the application of US law. ................................................................. 6

B. Violations of federal statutes and regulations are commonly


given negligence per se effect in state tort proceedings. .................. 7

III. Like the Patriot Act, the text of the International Emergency
Economic Powers Act gives it extraterritorial application. .......................... 8

IV. The Defendant won't be prejudiced because it would have taken


the same discovery whether U.S. or Colombian law applies.. ...................... 10

CONCLUSION ......................................................................................................... 10

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TABLE OFAUTHORITIES

CASES

African Methodist Episcopal Church, Inc. v. Ward,


185 F.3d 1201 (11th Cir. 1999) ................................................................................. 5

Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151 (D.C. Cir. 1985) ................ 8

Biscoe v. Arlington County, 738 F.2d 1352 (D.C. Cir. 1984) .................................. 1

Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) .............................. 6

Burnam v. Amoco Container Co., 738 F.2d 1230 (11th Cir. 1984) .......................... 5

Cardona v. Chiquita Brands Int'l, Inc., 760 F.3d 1185 (11th Cir. 2014) ................... 5

Castro v. United States, 540 U.S. 375 (2003) ........................................................... 6

Clearfield Tr. Co. v. United States, 318 U.S. 363 (1943) .......................................... 8

D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942) ........................................... 8

Di Vito v. Fidelity and Deposit Co. of Md., 361 F.2d 936 (7th Cir. 1996) ............... 5

Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) ....................................... 7

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) .......................................................... 4

Estrada v. Potomac Elec. Power Co., 488 A.2d 1359 (D.C.1985) ........................... 4

Flint Elec. Membership Corp. v. Whitworth, 68 F.3d 1309 (11th Cir. 1995) .......... 6

Good Luck Nursing Home Inc. v. Harris, 636 F.2d 572 (D.C. Cir. 1980) ............... 5

Grey's Executor v. Mobile Trade Co., 55 Ala. 387 (1876) ....................................... 2, 8

Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31 (D.C. 1989) ............................ 6-7

In re Air Crash Disaster, 559 F. Supp. 333 (D.D.C.1983) ........................................ 7

In re United States, 60 F.3d 729 (11th Cir. 1995) ..................................................... 6

INVST Financial Group, Inc., v. Chem-Nuclear Systems, Inc.,


815 F.2d 391 (6th Cir. 1987) ..................................................................................... 10

ii
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Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) ........................................... 4

Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir. 1980) ............................... 8

Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005) .................................................... 7-8

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ............................................. 5

Roe v. Bridgestone Corp., No. 1:06-cv-0627 (S.D. Ind. July 11, 2008) ................... 7

Spakes v. Broward County Sheriff's Office,


No. 06-CV-61471 (S.D. Fla. Dec. 12, 2007) ............................................................ 6

Turner v. Secretary of the Air Force, 944 F.2d 804 (11th Cir. 1991) ....................... 5

Washkoviak v. Student Loan Mkg. Ass'n, 900 A.2d 168 (D.C. 2006) ..................... 4

STATUTES AND REGULATIONS

28 U.S.C. § 1332 ....................................................................................................... 1

International Emergency Economic Powers Act, Public Law 95–223,


50 U.S.C. §1701 et. seq. (Oct. 28, 1977) .................................................................. 2, 8-9

U.S.A. Patriot Act, Public Law 107-56, 115 Stat. 272 (2001) .................................. 2

Motor Vehicle Safety Act, Public Law 89–563 (1966) ............................................ 8

31 C.F.R. § 594.204 .................................................................................................. 9

F.R.C.P. 4(k)(2) ......................................................................................................... 8

F.R.C.P. 59(e) ............................................................................................................ 5

F.R.C.P. 60(b)(6) ....................................................................................................... 2, 5

OTHER

Executive Order 13224 .............................................................................................. 9

Article 2344 of the Colombian Civil Code ............................................................... 2

Manual for Complex Litigation at 412, § 22.634, Federal


Judicial Center (4th Ed. 2004) .................................................................................. 3-4

Restatement (Second) of Conflict of Laws (1971) ................................................... 4

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SUMMARY OF ARGUMENT

The Defendant wants the Court to apply Colombian law, but doesn't want the Court to

undertake a choice of laws analysis. That's because only the U.S. has an interest in, and ability to

regulate the Defendant's conduct. The Defendant urges the Court to apply Colombian law to "acts

allegedly committed by Colombian paramilitaries against Colombian civilians that occurred inside

Colombia as part of Colombia's civil war..." DE 2342 at 1. However, the conduct relevant to this

Motion is Chiquita's conduct, which violated federal laws against financing terrorism. 1 See Factual

Proffer. Plaintiffs' negligence claims are unlike their secondary liability claims. With negligence,

the acts of the paramilitaries are the consequences of the Defendant's negligence, not the torts.

With negligence per se, the only question is whether they were proximately caused or forseeable.

The Defendant argues that the violation of a federal statute is a federal interest, rather than

a state interest, that no U.S. State has an interest in enforcing it, and that the U.S. is not a

jurisdiction for conflicts of laws purposes. If that were true, there would be no way to argue a

federal interest, and foreign law would govern all international conflicts problems involving

federal laws.2 The correct analysis is a combination of state and federal law, with the Court

applying state law generally, except for the federal statute, which determines the standard of care.

In our Motion, we showed that the very first negligence per se case involved the application of a

1
"The state where the defendant's conduct occurs has the dominant interest in regulating it and in
determining whether it is tortious in character. Similarly, [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) Although the Bisco court was
referring to U.S. States, the same is true when comparing the interests of the United States and a
foreign country.
2
28 USC § 1332 requires diversity of citizenship, which is met when one (but not all) of the parties
to a case are citizens of a foreign state. There are no citizens of the United States, for this purpose.
However, this does not mean there are no federal interests for conflicts of laws purposes.
1
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federal statute in a state negligence claim. Grey's Executor v. Mobile Trade Co., 55 Ala. 387, 403

(1876).

The Court may revise any of its earlier rulings for "any other reason that justifies relief."

F.R.C.P. 60(b)(6). Ensuring that the right body of law is used at trial is a reason that justifies

relief. Since the 11th Circuit declined to address the issue of the extraterritorial reach of state law

on interlocutory appeal, the Court isn't limited by the "law of the case" doctrine, which is the only

limitation on the Court's power to review its own orders before a final judgment.

The only issues presenting true conflicts of law are whether Colombia uses the "but-for"

test negatively, and only holds the "dominant" tortfeasor liable in cases involving joint tortfeasors.

DE 2283 at 11, 21, 27. The Defendant makes no attempt to address Article 2344 of the Colombian

Civil Code, which governs joint and several liability. 3 It's impossible to reconcile the Defendant's

theories with this. In particular, there is no conflict with regard to negligence per se.4 The

Defendant can't dispute that in Colombia, crime victims are awarded damages as part of the

criminal proceeding without having to re-litigate liability. That's why there's no real conflict with

the application of negligence per se.

Plaintiffs mistakenly cited to the Patriot Act as the basis for the Defendant's guilty plea. 5

Nevertheless, like the Patriot Act, the text of the International Emergency Economic Powers Act

3
Chiquita also makes a procedural objection to our collateral estoppel arguments regarding the
duress defense, see Motion to Strike, DE 2317, failing to address the argument on the merits. By
taking these positions and refusing to substantively respond, Chiquita runs the risk of waiver.
4
There was a typographical error in our Motion. The Motion should have said that this "Motion
could be easily resolved if Chiquita would admit that there is no relitigation of liability when
damages are awarded to victims in a criminal case." DE 2229-1. at 15. (missing text highlighted
in bold)
5
The AUC was designated as a Foreign Terrorist Organization on September 10, 2001, the day
before the World Trade Center and Pentagon were attacked. The Patriot Act was passed six weeks
later, on October 26, 2001. The Defendant's prosecution was hailed as a milestone in the war on
terrorism. We don't believe anyone else has ever been prosecuted for something like this.
2
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("IEEPA") gives it extraterritorial application, and the purpose of the law is essentially the same.

The Defendant can't seriously challenge the policy arguments for discouraging the financing of

international terrorism.

Finally, the Defendant suffered no prejudice by taking discovery based on a belief that

Colombian law applies. The Court denied the Defendants’ motion for completion of briefing on

all pertinent Colombian law issues in advance of summary judgment proceedings. DE 2094 at ¶

5. In their depositions, the plaintiffs could only testify about their own cases, and knew little about

the Defendant's relationship with the AUC. The Defendant was trying to prove they didn't even

know they were suing Chiquita. Any questions asked of Chiquita's employees or of paramilitaries

relating to knowledge or intent would have been asked anyway, as would questions about the

trafficking of arms and drugs, whatever law applies. Among other reasons, it's all relevant to the

"willful disregard" standard for punitive damages in negligence. And the only real conflict pointed

out by the Defendant is its theory of but-for causation, which wasn't a topic of discovery at all.

ARGUMENT

I. The Court should engage in a choice of laws analysis to address Defendant's argument
that Colombian tort law applies.

The Defendant argues that "No choice of law analysis is necessary," because the Court

already determined that Colombian law would apply, by dismissing claims brought under U.S.

state laws. Id. at 4. However, engaging in a choice of laws analysis is a necessary step whenever

foreign law might apply. As explained in the Complex Litigation Manual:

In all mass tort litigation, the judge must analyze applicable choice-of-law rules and
determine what state law will govern particular issues. In single incident mass tort cases,
the applicable choice-of-law rules may indicate that only one state’s law applies. In
dispersed, multistate toxic tort and defective products litigation, choice-of law issues may
be more problematic because there may be a wide range of applicable state laws, and the
state in which the action is pending may not have a significant relationship with many of

3
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the class members, with the defendants, or with the activities that are subject to the
litigation.6

Manual for Complex Litigation at 412, § 22.634 (4th Ed. 2004) (footnotes omitted). At the same

time, the Defendant argues, based on Colombian court cases, that "[w]here causation standards for

tort claims differ between jurisdictions, there is a true conflict of law." Id. at 9.7 By making this

argument, the Defendant is explicitly asking the Court to engage in a conflict of laws analysis.

Choice of laws questions aren't decided all at once at the beginning of the case, but on an

ad hoc basis as they arise. Moreover, "[t]he courts have long recognized that they are not bound

to decide all issues under the local law of a single state." Restatement (Second) of Conflict of

Laws § 145, Comment d. (1971); Estrada v. Potomac Elec. Power Co., 488 A.2d 1359, 1361 (D.C.

1985) ("choice of law involves examination not simply of various state interests generally, but of

their interest regarding the various distinct issues to be adjudicated").

In diversity of citizenship cases, federal courts, when deciding questions of conflict of laws,

must follow the rules of the States in which they sit. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496 (1941).8 And, as a threshold matter, there “can be no injury in applying [the forum state’s

6
The Defendant argues that the District of Columbia is not in any way connected to this case. DE
2342 at 10. However, the Defendant was prosecuted and plead guilty in D.C. District Court for
the same conduct. It's the basis for arguing that the Defendant was negligent per se. The Defendant
also claims that only decision-making occurred in the U.S., citing Washkoviak v. Student Loan
Mkg. Ass'n, 900 A.2d 168, 182 (D.C. 2006). DE 2342 at 14. However, in this case, the money
also came from the U.S., the Defendant falsified its accounting records in the U.S., and was
investigated by both the FBI and the SEC.
7
In addition to the but-for test, the Defendant argues that "civil law jurisdiction like Colombian
law [sic] do not recognize individual, specific torts like negligence per se, but only the general
concept of fault-based liability" and that "the District of Columbia recognizes the specific tort of
negligence per se, and Colombia does not. The Court need not go further to determine that District
of Columbia and Colombian law conflict." DE 2342 at 8.
8
"We are of opinion that the prohibition declared in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938),
against such independent determinations by the federal courts, extends to the field of conflict of
laws. The conflict of laws rules to be applied by the federal court in Delaware must conform to
those prevailing in Delaware's state courts. Otherwise, the accident of diversity of citizenship
4
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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). The Defendant's causation theory is easily

dispoven, and no other conflict has been identified. Therefore, the Court should apply forum law.

A. The Court has discretion to revise its own rulings.

Rule 60 (b) provides that a court may revise an earlier ruling for five enumerated reasons,

as well as "any other reason that justifies relief." F.R.C.P. 60 (b)(6). Ensuring that the right body

of law is used at trial is a reason that justifies relief. In Burnam v. Amoco Container Co., 738 F.2d

1230, 1232 (11th Cir. 1984) the 11th Circuit held that Rules 59(e) and 60(b) are only declaratory

examples of the Court's general power to act on its own initiative. These are rules of procedure

that don't limit the inherent power of the Court. Whether relief should be granted is within the

sound discretion of the trial court. Turner v. Secretary of the Air Force, 944 F.2d 804, 807 (11th

Cir. 1991) However, despite the broad power inherent in this "catch-all" provision of Rule

60(b)(6), the discretion isn't unfettered, and the Court must have a reason for exercising it. African

Methodist Episcopal Church, Inc. v. Ward, 185 F.3d 1201, 1202-1203 (11th Cir. 1999); cf. Good

Luck Nursing Home Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (Rule 60(b)(6) should be

only sparingly used and may not be employed simply to rescue a litigant from strategic choices

that later turn out to be improvident). Di Vito v. Fidelity and Deposit Co. of Md., 361 F.2d 936,

939 (7th Cir. 1996) ("Rule 60(b) is equitable in character and to be administered upon equitable

principles")

The law of the case doctrine doesn't limit this inherent power, because the court of appeals

declined to review this issue. Cardona v. Chiquita Brands Int'l, Inc., 760 F.3d 1185 (11th Cir.

2014). Similar to issue preclusion, the law of the case prevents relitigation of an issue decided at

would constantly disturb equal administration of justice in coordinate state and federal courts
sitting side by side." 313 U.S. at 496.
5
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an earlier stage of the same case. Flint Elec. Membership Corp. v. Whitworth, 68 F.3d 1309, 1312

(11th Cir. 1995). The law of the case doctrine is discretionary when a mandate of the court of

appeals isn't involved. Castro v. United States, 540 U.S. 375, 384 (2003) (law of case doctrine

simply expresses common judicial practice; it does not limit court's power to disregard earlier

holding in appropriate case); In re United States, 60 F.3d 729, 731 n 2 (11th Cir. 1995) (exception

to doctrine for clearly erroneous holdings).

Chiquita argues that the Court may reconsider its prior orders "only where there is a change

in controlling law, new evidence is made available, or manifest injustice or clear error is present,

DE 2342 at 1, citing Spakes v. Broward County Sheriff's Office, No. 06-61471-CIV-

MARRA/JOHNSON *2 (S.D. Fla. Dec. 12, 2007). The court began its analysis

in that case by saying that even summary judgment orders are interlocutory, and “‘the court at any

time before final decree (could) modify or rescind it.' Thus, vacating [an] earlier order [is] within

the district court’s power.” Id., quoting Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th

Cir. 1970) (internal citations omitted) Dismissing Plaintiffs' negligence claims on the basis that

the laws of U.S. States don't apply extraterritorially would be a clear error, particularly where the

Defendant seeks to exploit the vagueness of Colombian law.

II. The District of Columbia uses some form of governmental interest analysis for choice
of laws.

A. The choice of laws cases relied on by the Defendant point to the application of
U.S. law.

The Defendant argues that D.C. courts use a blending of the governmental interest analysis

with the "most significant relationship" test in the Third Restatement, as if the governmental

interests were just more factors to throw into an amorphous mix. The first case relied on by the

Defendant, Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 40-41 (D.C. 1989), applied

6
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different states' laws to negligence, breach of warranty and misrepresentation claims, and also

reasoned that "the state with the `most significant relationship' should also be the state whose

policy is advanced by application of [its] law." Id. at 42 n 18, quoting In re Air Crash Disaster,

559 F. Supp. 333, 342 (D.D.C.1983). The operative word is "should." The Hercules case shows

how the Court may apply different states' laws to negligence and secondary liability claims in the

instant case. Ohio (or any other U.S. State, or the United States) has an interest in regulating the

Defendant's conduct, while Colombia only has an interest in regulating the AUC. We don't have

enough space in this brief to address all the cases cited by the Defendant, but can provide

supplemental briefing if it helps to the Court.

B. Violations of federal statutes and regulations are commonly given negligence


per se effect in state tort proceedings.

Chiquita argues that "a generalized interest of the United States in enforcement of a federal

statute cannot be imputed upon the District of Columbia," id. at 7, and that "the United States is

not a jurisdiction for choice of law purposes," id. at 12, citing Doe v. Exxon Mobil Corp., 654 F.3d

11, 69 (D.C. Cir. 2011).9 If that were true, then in all international cases involving federal statutes,

only foreign governments would have an interest in having their laws apply. 10 Numerous conflicts

9
In Exxon, the district court applied the District of Columbia “governmental interests” analysis to
find that DC law would apply to claims that a U.S. company abetted alleged abuses by the
Indonesian army in Indonesia, concluding that the United States had an overriding interest in
applying its own laws to defendants based in the United States. Id. at *2. Judge Oberdorfer wrote:
“Ultimately, the United States, the leader of the free world, has an overarching, vital interest in the
safety, prosperity, and consequences of the behavior of its citizens, particularly its super-
corporations conducting business in one or more foreign countries.” Id. Additionally, the
Defendant's reliance on Roe v. Bridgestone Corp., No. 1:06-cv-0627-DFH-JMS at *7 (SD Ind.
July 11, 2008) is misplaced. Indiana uses the lex loci delecti method for torts.
10
The same logic applies to determine whether a court has personal jurisdiction. In Mwani v. bin
Laden, 417 F.3d 1 (D.C. Cir. 2005), the defendant didn't have sufficient minimum contacts with
any particular state, but did have sufficient contacts with the United States as a whole for a U.S.
District Court to have jurisdiction. "Whether the exercise of jurisdiction is consistent with the
Constitution turns on whether a defendant has sufficient contacts with the nation as a whole to
7
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cases involve the weighing of federal and states interests, see D’Oench, Duhme & Co. v. FDIC,

315 U.S. 447 (1942); Clearfield Tr. Co. v. United States, 318 U.S. 363 (1943). In these cases,

federal common law applies. Id.

The violation of federal statutes is commonly given negligence per se effect in state tort

proceedings around the country. See Motion, DE 22291-1 at 13, citing Restatement (Third) of

Torts: § 14 cmt. a (2010). We cited authorities showing this has been settled law for over 100

years. See Grey's Executor v. Mobile Trade Co., 55 Ala. 387, 403 (1876). For example, the

Federal Tort Claims Act requires the plaintiff to show that the claim would succeed in a state-law

tort action if a private person engaged in the same conduct. Art Metal-U.S.A., Inc. v. United

States, 753 F.2d 1151, 1167 (D.C. Cir. 1985). The analysis involves the application of both federal

and state law. As an illustration, in Lowe v. General Motors Corp., 624 F.2d 1373, 1375 (5th Cir.

1980), plaintiffs in a wrongful death action under Alabama law argued that General Motors‘

violation of the Motor Vehicle Safety Act ("MVSA"), a federal law, caused the accident. The case

was filed in state court and removed to federal court by the Defendant. The Fifth Circuit applied

Alabama law and the standards that state‘s courts set for application of negligence per se to the

federal statute. Id. at 1380. Reversing the district court's decision, the Fifth Circuit held that

"violation of the MVSA is ... negligence per se in Alabama." Id.

III. Like the Patriot Act, the text of the International Emergency Economic Powers Act
gives it extraterritorial application.

The International Emergency Economic Powers Act (IEEPA), Title II of Pub.L. 95–223,

91 Stat. 1626, enacted October 28, 1977, authorizes the president to declare an "unusual and

extraordinary threat ... to the national security, foreign policy, or economy of the United States"

satisfy due process." Id. at 11. Following the 5th and 7th Circuits, the D.C. Circuit found a basis
for personal jurisdiction in Federal Rule of Civil Procedure 4(k)(2).
8
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that arises "in whole or substantial part outside the United States." 50 U.S.C. §1701(a) It also

authorizes the president to block transactions and freeze assets to deal with the threat, id. at

§1702(a)(1)(B), and in the event of an actual attack, confiscate property connected with a country,

group, or person that aided in the attack. Id. at §1702(a)(1)(C). §1705(b) provides for fines of up

to $250,000 (apparently per transaction) and imprisonment up to 20 years for violations of this

law. On September 10, 2001, one day after the attacks on the World Trade Center and Pentagon,

the United States listed the AUC as a Foreign Terrorist Organization. Sentencing Memo at 3.

I have decided to designate the United Self-Defense Forces of Colombia, commonly known
as the AUC, as a Foreign Terrorist Organization under U.S. law. ... The AUC now joins 30
other groups, which include two other Colombian groups, the FARC and the ELN, on the
list of Foreign Terrorist Organizations designated under U.S. law. Beyond the legal
ramifications of this decision, I hope this will leave no doubt that the United States
considers terrorism to be unacceptable, regardless of the political or ideological purpose.
Tomorrow, the United States will join the other states in this hemisphere in pledging our
full support for democracy in this hemisphere. We also stand with the Government of
Colombia against the threats to its democracy from these terrorist groups.11

In addition, on October 31, 2001, the United States designated the AUC as a Specially-

Designated Global Terrorist. Id. Authority for this designation arose under Executive Order

13224, and resulted in the listing of the AUC by the Office of Foreign Assets Control ("OFAC").

31 C.F.R. § 594.204, the regulation under which the Defendant was charged, also derives its

authority from Executive Order 13224, and is the mechanism to enforce the OFAC sanctions.

Among others, the regulation applies to Foreign persons determined ... to have committed, or to

pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals

or the national security, foreign policy, or economy of the United States." 31 C.F.R. § 594.201

(a)(2). These laws and regulations are all intended to apply extraterritorially, to Foreign persons.

11
See Designation of the AUC As a Foreign Terrorist Organization, Secretary of State Colin L.
Powell, online at https://2001-2009.state.gov/secretary/former/powell/remarks/2001/4852.htm;
Sentencing Memo at 3.
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IV. The Defendant won't be prejudiced because it would have taken the same discovery
whether U.S. or Colombian law applies.

Chiquita argues that it has relied on the Court's prior decisions, beginning in 2011, in

framing discovery and drafting dispositive motions. DE 2342 at 1. The argument rings hollow

because Chiquita would have asked the plaintiffs the same questions regardless of the theory of

the case, or what law applies. See INVST Financial Group, Inc., v. Chem-Nuclear Systems, Inc.,

815 F.2d 391, 398 (6th Cir. 1987) ("plaintiff has not shown that discovery would be more difficult

or that evidence would be lost") The Plaintiffs knew only about their own cases, and virtually

nothing about Chiquita's dealings with the AUC. In fact, one of Chiquita's strategies was to try to

prove that the plaintiffs didn't even know they were suing Chiquita. The plaintiffs would have still

tried to adduce evidence of Chiquita's knowledge and intent, through depositions of paramilitaries

and Chiquita's employees, and of knowledge of drug and arms trafficking, to prove the willful

disregard standard for punitive damages. Finally, the Court already the Defendants’ motion for

completion of briefing on all pertinent Colombian law issues in advance of summary judgment

proceedings. DE 2094 at ¶ 5.

Conclusion

For the foregoing reasons, and those set forth in Plaintiffs' Motion, the Court should

GRANT Plaintiffs' Motion for Partial Summary Judgment on Negligence Per Se.

Respectfully submitted,

/s/ Paul Wolf


____________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
April 14, 2019

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Certificate of Service

I hereby certify that on this 14th day of April, 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 receive them.

/s/ Paul Wolf


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Paul Wolf

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