Last year, my colleague, Melody Akhavan wrote about Chiquita Brands International’s big win in an Alien Tort Statute (ATS) case at the Eleventh Circuit. Today the Supreme Court declined to grant review of that decision.
At the time of the Eleventh Circuit’s decision, the reach of the ATS, which allows foreign plaintiffs to sue in United States courts for torts “committed in violation of the law of nations or a treaty of the United States,” had already been narrowed by the Supreme Court in the seminal Kiobel v. Royal Dutch Petroleum case. In the Kiobel decision, the Supreme Court held that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”
In Cardona v. Chiquita, Colombian plaintiffs allege that Chiquita abetted the injury and death of plaintiffs’ family members carried out by paramilitary forces in Colombia’s banana-growing regions. Plaintiffs claim that Chiquita supported these actions to maintain control of these regions and to suppress labor activism and indigenous competition. Even though the Chiquita defendants are United States corporations (whereas the Kiobel defendants were foreign defendants), the Eleventh Circuit relied on Kiobel to apply the presumption against extraterritorial application since the alleged torts occurred in Colombia. The Eleventh Circuit dismissed plaintiffs’ claims for want of jurisdiction under the ATS.
Not surprisingly, the plaintiffs sought review at the Supreme Court. In their December 30, 2014 petition for a writ of certiorari, the plaintiffs argue that the Eleventh Circuit majority improperly failed to “consider the substantial allegations of U.S. based aiding and abetting in [its] analysis.” The plaintiffs claim that “[s]ince Kiobel, four Circuits have attempted to apply [the Supreme] Court’s ‘touch and concern’ test” and “[a]ll four have interpreted Kiobel differently.” According to plaintiffs, the Eleventh Circuit’s interpretation was the only one under which Chiquita’s acts would not meet the Kiobel test. Thus, they claim that the Eleventh Circuit’s decision created a Circuit split because it “conflicts with all of the other Circuit decisions and with [the Supreme] Court’s decision in Kiobel itself.”
Chiquita has a significantly different account of what happened in Colombia. In Chiquita’s March 6th opposition to plaintiffs’ petition, Chiquita paints a picture of growing bananas in remote, volatile regions of Colombia ruled initially by left-wing guerrilla groups and then private right-wing paramilitary forces. When the paramilitary forces demanded that Chiquita’s Colombian subsidiary begin making payments to them, the subsidiary complied, fearing physical harm to its employees and property. It was not until four years after those payments began that the U.S. Government designated the paramilitary forces a terrorist organization. Because Chiquita’s payments continued after that designation, the payments became illegal and Chiquita ultimately pled guilty to a count of engaging in transactions with a specially-designated global terrorist. After this, the lawsuit filing bonanza began and the cases were transferred to the Southern District of Florida by the JPML for coordinated pretrial proceedings. The district court declined to dismiss plaintiffs’ claims that Chiquita should be held indirectly liable for the international law violations of the Colombian groups under the ATS. Chiquita pursued an interlocutory appeal at the Eleventh Circuit, and won.
In response to plaintiffs’ claims that Supreme Court review was warranted due to a Circuit split, Chiquita argued that there is no real split and that it would be premature to revisit Kiobel at this time. Chiquita pointed out that in most post-Kiobel ATS cases, courts are finding the domestic conduct alleged by plaintiffs is insufficient to overcome the presumption against extraterritorial application. Moreover, Chiquita argued that plaintiffs would have failed to overcome the presumption in any of the Circuits that are supposedly at odds with the Eleventh Circuit.
The Supreme Court’s denial of cert leaves the Eleventh Circuit’s decision dismissing the claims against Chiquita intact. While we will have to wait for another case to see if the Supreme Court will revisit Kiobel, for Chiquita, its victory — at least in this case — is complete.