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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION

______________________________________/

This Document Relates To: ATS ACTION

Does 1-2146 v. Friedheim et al. (17-cv-80475)

______________________________________/

Plaintiffs' Memorandum in Opposition

to Individual Defendant Joel Raymer's Motion to Dismiss

FACTUAL SUMMARY

The Plaintiffs in Does 1-976 and Does 1-677 have sued Defendant Raymer

pseudonymously as "Individual Defendant I" since their complaints were filed in 2010 and

2011, respectively. However, unlike Cyrus Friedheim, Robert Olson, or Robert Kistinger,

Mr. Raymer never came forward to identify himself until he was named in the lawsuit Does

1-2146 v. Cyrus Friedheim et al, filed in the Southern District of Ohio in March of this

year. See 17-cv-00145-TSB. This lawsuit includes prior plaintiffs who are victims of the

AUC (but not FARC), and about 400 new cases, but only against six Individual Defendants

under the Torture Victim Protection Act. After the Court's November 29, 2016 ruling on

statutes of limitations, see D.E. 1194, for roughly half of these plaintiffs, claims against

individual defendants were all that were left.

The Ohio Complaint was nearly verbatim to the other two in its general factual

allegations, with about 500 pages of boilerplate paragraphs providing minimal details for

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each case to state a plausible claim. However, federal claims under the Alien Tort Statute,

and state law claims of US states that had already been dismissed were not re-alleged.

Claims under Colombian law were not alleged, because the court would apply the general

statute of limitations of the forum to them and they would be too late. Therefore, only

claims under the Torture Victim Protection Act, which has a ten year statute of limitations,

were alleged. On August 7, 2017, the Defendant filed a Motion to Dismiss under Rule

12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim.

D.E. 1523.

More than a year ago, on June 6, 2016, the Court entered an Order granting in part

and denying in part motions to dismiss made by nine individual defendants in the MDL

case. See D.E. 1110 at 8-15. The citations in this brief are nearly all taken from that Order.

SUMMARY OF ARGUMENT

Defendant Raymer's Motion to Dismiss should be denied. The allegations of his

personal participation in this case are sufficiently pled, and mostly copied from the Factual

Proffer in the related criminal case. See Proffer at 64, D.E. 1523-1. Mr. Raymer's claims

that he was a whistleblower, and that he was merely transmitting the instructions of others,

contradicts the facts alleged in the Complaint, and are not relevant in considering a Rule

12(b)(6) motion.

Mr. Raymer's statute of limitations argument should also be rejected because it is

precluded by collateral estoppel. The Court has already held that principles of equitable

tolling apply to this case, due to the danger of Plaintiffs' coming forward, until at least

March, 2007. D.E. 1110 at 21-22. The Torture Victim Protection Act has a ten-year

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statute of limitations. Plaintiffs sued six of the Individuals in the criminal case in March

of 2017, which was within the limitations period, extended by the Court's equitable tolling.1

ARGUMENT

Standard of Review

When evaluating a Rule 12(b)(6) motion to dismiss, a district court must accept the

factual allegations of the complaint as true and construe them in the light most favorable

to the plaintiff. Ray v. Spirt Airlines, Inc., 767 F.3d 1220, 1223 (11th Cir. 2014). To

withstand the motion, the complaint must contain factual matter, assumed to be true,

sufficient to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 50 U.S. 544, 556 (2007)).

To state a plausible claim for relief, a complaint must contain sufficient non-

conclusory factual allegations to allow the Court to draw the reasonable inference that

[Defendants are] liable for the misconduct alleged. Id. at 678. Plausibility does not

impose a probability requirement, but it does require more than a sheer possibility that

a Defendant has acted unlawfully. Id. Plaintiffs need not include detailed factual

allegations, but the pleadings must include more than an unadorned, the-defendant-

unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678. On the other hand, a well-

pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those

1
Two of the ten individuals, Roderick Hills and Al Bakoczy, are deceased. Two others,
lvaro Acevedo and Vctor Buitrago appear to be Colombian employees of Banadex, who
may not have sufficient contacts with the United States to be sued here. In selecting which
individuals may be personally liable, counsel simply chose the ones identified by the
Department of Justice as having had a significant role in the case. There is nothing in the
Proffer, or other public documents in the criminal case, suggesting that Mr. Raymer acted
as a whistleblower. Before the motion to dismiss was filed, counsel conferred with Mr.
Raymer's attorney and asked him to provide any exculpatory material he wanted me to look
at, but none was provided.
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facts is improbable and that a recovery is very remote and unlikely. Twombly, 550 U.S.

at 556, (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, (1974)).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the

courts subject matter jurisdiction. McElmurray v. Consol. Govt of AugustaRichmond

Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule 12(b)(1) facial attack, the court

evaluates whether the plaintiff has sufficiently alleged a basis of subject matter

jurisdiction in the complaint and employs standards similar to those governing Rule

12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.

2013).

I. The Plaintiffs have stated claims against Defendant Raymer

A. Defendant Raymer's personal involvement in the case.

The Factual Proffer in the criminal case shows that on about May 5, 2003,

Defendant Raymer instructed co-defendants John Ordman and lvaro Acevedo to

"continue making the payments" to the AUC, against the advice of outside counsel. See

Proffer at 64, D.E. 1523-1.2 He also attended a meeting on April 8, 2003, in which co-

defendant Robert Olson gave this instruction. Id. Mr. Raymer doesn't dispute that he was

designated as Individual I in the criminal case. 3

The Defendant responds that he was not a decision-maker, Motion to Dismiss, D.E.

1523 at 1, and was "simply relaying again the exact same previous instruction of his

2
Joel Raymer is Individual I in the criminal case. John Ordman is Individual J. lvaro
Acevedo is Individual F. The identities of these Individuals were produced in discovery to
undersigned counsel pursuant to the Court's Order of November 14, 2016. D.E. 1185.
3
The fact that Mr. Raymer was designated as "Individual I" was disclosed by Chiquita
Brands on November 25, 2016, pursuant to the Court's Order on discovery of November
14, 2016. D.E. 1185.
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superiors" to Mr. Ordman. 4 Id. at 10. However, it is of no consequence whether Mr.

Raymer was a decision-maker, or was just obediently repeating the instructions he was

given by someone else, if the standard is conspiracy or aiding and abetting. If Raymer was

in a position to give instructions to Ordman, and instructed Ordman to make the payments,

then Raymer had a significant role in the conspiracy and provided subsantial assistance.

At this stage, the Plaintiffs need only state a plausible claim. 5

The Defendant also argues he was the one who "discovered and immediately

reported" that the AUC had been designated a Foreign Terrorist Organization, see D.E.

1523 at 2.6 However, he omits mentioning that he told Mr. Ordman to continue making

the payments after learning of it. Mr. Raymer's discovery and reporting of the information

was described in the Proffer as follows:

On or about February 20, 2003, Defendant Raymer stated to Defendant Olson

that Defendant Raymer had discovered that the AUC had been designated as a
Foreign Terrorist Organization. Complaint at 2171, citing Proffer at 55.

Shortly thereafter, Defendants Raymer and Olson discussed the matter with
outside counsel, who advised them to stop making the payments. Id., Proffer at
55-56.

On or about April 8, 2003, Defendant Raymer met with Defendants Olson,

Kistinger and Ordman at Chiquita's headquarters in Cincinnatti, where
Defendants Olson and Kistinger instructed Alvaro Acevedo and Victor
Buitrago to "continue making payments" to the AUC. Id., Proffer at 61.

4
Defendants Raymer and Olson (whose instruction he says he was merely transmitting)
are both attorneys, so Raymer may be vicariously liable as well.
5
Defendant Raymer must do more than dispute the truthfulness of the allegations to prevail
on a Rule 12(b)(6) motion.
6
Whether and when the AUC and FARC were officially designated as terrorist
organizations by the U.S. State Department isn't determinative of anything. It is the
conduct of these groups, and the Defendant's knowledge of it, that is at issue. The murders
could be described as terrorism, since one motive was to intimidate the population, but are
better described as extrajudicial executions.
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A month later, on or about May 5, 2003, Defendant Raymer instructed Alvaro

Acevedo and Defendant Ordman to "continue making payments" to the AUC.
Id., Proffer at 64.

On or about September 8, 2003, outside counsel advised Defendants Raymer

and Olson 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." Id., Proffer at 74.

This wasn't whistleblowing, because after learning of the AUC's terrorist

designation, and being warned repeatedly by outside counsel, Mr. Raymer advised his

client to continue making the payments. Id., Proffer at 64.

The fact that Chiquita's guilty plea was partly based on Mr. Raymer's conduct, and

that he was one of the ten individuals upon whose conduct Chiquita's prosecution was

based, by itself states a prima facie case of conspiracy and aiding and abetting. The report

of Chiquita's Special Litigation Committee, D.E. 202-4, identified numerous other

individuals involved in the conspiracy, such as Charles Keiser, but Chiquita's guilty plea

was not based on their conduct.

The Complaint also alleges that Mr. Raymer was Assistant General Counsel for

Chiquita Brands International for more than 20 years, from February 1992 - May 2012.

Complaint at 2170. This covers most of the time Chiquita Brands was paying Colombian

terrorist groups, including the FARC, AUC, ELN, EPL and others. Chiquita's legal

department was generally involved in the conspiracy, 7 rejecting the advice of outside

counsel, that Chiquita "must stop payments." Proffer at 56. "Bottom line: CANNOT

MAKE THE PAYMENT." Id. This advice was transmitted from outside counsel to

7
Chiquita waived its attorney-client and work product privileges in the criminal case,
suggesting they would have been pierced by the crime-fraud exception anyway.
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Defendant Raymer (Individual I) personally. Id. "[T]he company should not continue to

make the Santa Marta payments, given the AUC's designation as a foreign terrorist

organization[.]" Id. Yet the company continued to make the payments, in both Santa Marta

and Urab. As in-house attorneys, Mr. Raymer and Mr. Olson were the links between

outside counsel and Chiquita Brands. They received advice that the payments were illegal,

then advised Chiquita's employees to continue making them.

The Defendant also argues that the fact that no other plaintff groups are suing him

is evidence of his innocence. D.E. 1523 at 1. However, Mr. Raymer's identity as

"Individual I" in the criminal case was not generally known until recently. Only

undersigned counsel received this information in discovery. No other counsel even

requested it.

B. Defendant Raymer is responsible for the murder of Plaintiffs' family

members, through principles of aiding and abetting and conspiracy.

The TVPA authorizes a cause of action against [a]n individual for acts of

extrajudicial killing and torture committed under authority of color of law of any foreign

nation. 28 U. S. C. 1350 Note. The Act itself contemplates claims based on secondary

theories of liability. Doe v. Drummond Co., 782 F.3d 576, 603 (11th Cir. 2015), citing

Mohamad v. Palestinian Authority, 566 U.S. at ___, 132 S. Ct. at 1709; Aldana v. Del

Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005).

The Act defines extrajudicial killing as a deliberated killing not authorized by a

previous judgment pronounced by a regularly constituted court affording all the judicial

guarantees which are recognized as indispensable by civilized peoples. Id. The Act

defines torture as any act, directed against any individual in the offenders custody or

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physical control, by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on that individual for various purposes. Id.

In this case, Plaintiffs allege that each of the killings at issue was an extrajudicial

killing in violation of the law of nations under the TVPA, and that Mr. Raymer is legally

responsible for those killings because he conspired with, aided and abetted or was engaged

in joint actions with AUC paramilitaries who carried out the murders.

1. Standards for Aiding and Abetting Liability

Theories of secondary liability under domestic law are available to support TVPA

claims, with federal common law supplying the relevant standards. Doe v. Drummond,

782 F.3d at 607- 608. Aiding and abetting liability requires a showing of knowing

substantial assistance to the person or persons who committed the wrongful act. Id., citing

Halbertsam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). Therefore, to plead aiding and

abetting liability, Plaintiffs must allege sufficient facts to show that Mr. Raymer had the

requisite knowledge mens rea and substantial assistance actus reus.

a. Mens rea

To plead knowledge mens rea adequately, the Complaint must contain non-

conclusory factual allegations from which it may reasonably be inferred that Mr. Raymer

acted with knowledge that their participation in Chiquitas support of the AUC would

facilitate the commission of human rights abuses by the AUC in the banana-growing

regions of Colombia where Plaintiffs relatives resided. Mr. Raymer doesn't appear to deny

this, and was even advised of it by outside counsel, yet avers that he was not a decision-

maker and was just transmitting Mr. Olson's instructions. D.E. 1523 at 10. This satisfies

the knowledge requirement.

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The allegations of the Complaint, read in the light most favorable to Plaintiffs,

support a reasonable inference that the support to the AUC was given in order to reduce

the companys operating costs in the production of bananas, knowing that violent deaths

of thousands of civilians in the banana-growing regions of Colombia would be at least a

collateral by-product of its support, if not an intended result. Order, D.E. 1110 at 27. The

allegations support the further inference that the Defendant condoned the AUCs use of

violent terrorism in these regions because profits took priority over basic human welfare in

the relevant decision-making processes. Id. As with the other Individual Defendants, it

may reasonably be inferred that Mr. Raymer acted with the purpose of promoting the

AUCs extrajudicial killings in those areas, as well as the knowledge that Chiquitas

support would result in such killings. Id.

The Defendant knew the AUC was a violent paramilitary organization from the

early days of Chiquitas relationship with it (by 1997 at the latest). Despite that knowledge,

he continued to participate in Chiquitas support of the AUC even after learning it had been

formally designated a foreign terrorist organization in 2001, and being warned by the

Department of Justice and outside counsel that Chiquitas AUC payments were illegal.

b. Actus reus

Mr. Raymer instructed Mr. Ordman to "continue making the payments" on at least

one occasion on May 5, 2003. It appears from the Proffer, that "but for" this instruction,

Mr. Ordman would not have had the authority to make the payments himself. Mr. Raymer

was also in a meeting with Mr. Olson on April 8, 2003, in which Mr. Olson gave the

instruction to make the payments. These incidents were particularly egregious because

they occurred right after outside counsel advised Mr. Raymer personally that the payments

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were illegal and must be stopped. Proffer at 55-56. Then on or about September 8,

2003, outside counsel advised Defendant Raymer personally 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. Yet the

payments continued.

2. Standards for Conspiracy Liability

To prove a Defendant indirectly liable by means of conspiracy, Plaintiffs must

allege and prove (1) two or more persons agreed to commit a wrongful act (2) the defendant

joined the conspiracy knowing of at least one of the goals of the conspiracy and with the

intent to help accomplish it, and (3) one or more of the violations was committed by

someone who was a member of the conspiracy and acted in furtherance of the conspiracy.

Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005).

Plaintiffs allege an agreement entered into in Colombia between defendant Keiser

and AUC leaders,8 resulting in Chiquitas agreement to fund the AUC in exchange for the

AUCs services in driving left-wing guerillas and sympathizers out of the banana-growing

regions of Colombia. As to the second element, Plaintiffs allege that the Defendant acting

with knowledge of the AUCs status as violent terrorist group -- later joined the conspiracy

by approving and continuing to implement the AUC payment scheme, knowing of at least

8
As the ATA cases for the FARC victims have shown, the meeting between Charles
Kaiser, Carlos Castao, and Ral Hasbn was not Chiquita's first meeting with terrorist
groups. In addition, about a third of the Plaintiffs represented herein were killed by the
AUC before this meeting. Ever Veloza Garcia and other paramilitaries have testified about
prior payments, which were made in cash rather than via the convivir front companies
organized by Hasbn.
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one of the unlawful goals of the conspiracy (the violent suppression of leftist sympathizers

and innocent civilians), and acting with the intent to help accomplish that goal.

The Complaint alleges that the AUC killed thousands of civilians in banana-

growing regions of Colombia where Plaintiffs family members resided as part of its

campaign to drive leftist sympathizers out of the region, and that AUC squads were in fact

involved in the killings of Plaintiffs family members. Because this allegation describes

acts taken in furtherance of the conspiracy, the Complaint alleges facts from which the

third and final elements of conspiracy liability may be established. That is, Plaintiffs allege

sufficient facts which, if proven, could establish secondary liability based on conspiracy.

D.E. 1110 at 29-30.

II. Plaintiff's Claims are Not Time-Barred.9

The Court has already ruled that Plaintiffs' claims were equitably tolled until about

March 19, 2007, which is the date stamped on the Proffer and approximately when the case

was unsealed. See D.E. 1110 at 21-22. "These allegations adequately suggest the existence

of extraordinary circumstances which would justify an equitable tolling of the statute until

at least 2007, when Colombia began to emerge from its extended civil conflict and the

extraordinary circumstances finally abated to a degree where plaintiffs could pursue a

cause of action in the United States without fear." Id. The Defendants don't contest that

the TVPA has a ten-year statute of limitations, or that the Ohio Complaint was filed within

ten years of the unsealing of the criminal case on about March 19, 2007.

9
Although the Defendant cites no rules in his motion, statutes of limitations are
jurisdictional and are evaluated under Rule 12(b)(1).
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Instead, the Defendant submits newspaper articles from 2004 that were already

considered by the Court. This issue has been actually litigated and determined, and Mr.

Raymer is represented by the same lawyers who represented other Individual Defendants,

so is barred by collateral estoppel.10 Moreover, the Defendant misunderstands the Court's

ruling on equitable tolling, which wasn't based on the discovery rule or any kind of notice,

but on the danger of coming forward and participating in this case, which has abated

somewhat over time. Id. Therefore, Plaintiffs' claims are not time barred.

Conclusion

For the foregoing reasons, the Court should DENY Defendant Raymer's Motion to

Dismiss.

Respectfully submitted,

/s/ Paul Wolf

________________________
Paul Wolf, CO Bar #42107
Counsel for Plaintiffs
P.O. Box 46213
Denver, CO 80201
Tel. (202) 431-6986
Email: paulwolf@yahoo.com
Fax: n/a

August 10, 2017

CERTIFICATE OF SERVICE

I hereby certify, that on this 10th day of August, 2017, I filed the foregoing
document with the Clerk of the Court using the Court's Electronic Case Filing system,
which will send notices to all parties entitled to receive them.

/s/ Paul Wolf

____________________
Paul Wolf

10
The law of the case doctrine may also apply, since this case has already been to the 11th
Circuit on interlocutory appeal.
12