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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
_______________________________________________/

Case No. 9:08-cv-80465-KAM

DOES (1-144), PEREZES (1-95), PEREZES (96-795),


and Carmen Tulia Cordoba Cuesta et al.,

Plaintiffs,
v.

CHIQUITA BRANDS INTERNATIONAL, INC. ET AL.,

Defendants.
_______________________________________________/

MOTION FOR RULE 11 SANCTIONS AGAINST PAUL WOLF

Plaintiffs, through their counsel, hereby move for sanctions pursuant to Federal Rule of

Civil Procedure 11(c) against Paul Wolf. This motion is based on Wolf’s conduct in preparing

and filing, on April 6, 2014, his Response to Plaintiffs’ Motion to Allow Participation in April

28, 2014 ATA Scheduling Conference (“Response”). ECF No. 662, Case No. 0:08-md-01916-

KAM. Several inflammatory statements in the Response have no evidentiary support and are, to

the contrary, false. Those statements, all presented by Wolf in violation of Rule 11(b)(3), are as

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follows:

● Plaintiffs’ counsel, Terry Collingsworth, “paid witnesses [who] are all


members of the AUC.” Response at 8.

● Colombian attorney Ivan Otero “follows the [AUC] leadership’s orders” and is
“a representative of the AUC organization.” Id. at 10 n.7.

● The other Chiquita Plaintiffs’ lawyers engaged in “dealings” that are


“documented in emails” in relation to a scheme to pay $150,000 to a possible
witness, Raul Hasbun. Id. at 11.

● Collingsworth “sued Drummond a second time,” the case was dismissed, and
the “dismissal was affirmed on appeal.” Id. at 5.

Wolf’s sensational accusations, asserted as fact but lacking in any evidentiary support,

are false and violate Federal Rule of Civil Procedure 11(b)(3). Accordingly, the Court should

sanction Wolf.

ARGUMENT

Rule 11 provides for sanctions if “the factual contentions” in a filing do not have

“evidentiary support.” Fed. R. Civ. P. 11(b)(3); see also Worldwide Primates, Inc. v. McGreal,

87 F.3d 1252, 1254 (11th Cir. 1996) (“Rule 11 sanctions are proper ‘[]when a party files a

pleading that has no reasonable factual basis’”); Riccard v. Prudential Ins. Co., 307 F.3d 1277,

1294 (11th Cir. 2002) (“Rule 11 requires district courts to impose ‘appropriate sanctions’ . . .

where an attorney or party submits a pleading to the court that . . . is not well-grounded in fact,

i.e., has no reasonable factual basis”). Wolf has violated Rule 11(b)(3) in lodging false

accusations against Collingsworth and others, where “even the most minimal investigation would

have alerted” Wolf to their falsity. Worldwide Primates, 87 F.3d at 1255. Wolf’s conduct

warrants sanctions.

Worldwide Primates illustrates the duty Wolf was under to investigate facts before

asserting them in a filing. There, the sanctioned attorney “failed to make a reasonable inquiry

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into the facts on which Worldwide’s claim was predicated.” Id. at 1254. An inquiry would have

led the attorney to “discover[] that Worldwide’s tortious interference claim was frivolous.” Id.

The Eleventh Circuit affirmed the sanctions against the attorney, finding he “never conducted

any independent inquiry into whether Worldwide had been damaged,” but instead “took as fact

what his long-time client . . . had simply asserted.” Id. Here, Wolf makes grave accusations

against Collingsworth and others in his Response, even though the falsity of those accusations

would have been quickly revealed by “even the most minimal investigation.” Id. at 1255.

A. Wolf falsely asserts what payments were made to whom and when, and that the
“paid witnesses are all members of the AUC.”

Wolf’s assertions about payments to witnesses are a jumble of objectively false facts. The

record in the Drummond case, which Wolf selectively references, conclusively shows that

Wolf’s statements are false and that he failed to conduct even a minimal investigation before

making them. See generally, Defs.’ Supplemental Br. in Opp’n to Mot. to Compel 1 at 19-22,

Drummond Co., Inc. v. Collingsworth, et al., Case No. 2:11-cv-3695-RDP-TMP (N.D. Ala. Nov.

7, 2013), ECF No. 68 (attached hereto as Ex. A 2); Decl. of Terrence P. Collingsworth in Supp. of

Defs.’ Supplemental Br. in Opp’n to Mot. to Compel ¶¶ 56-69, Drummond Co., Inc. v.

Collingsworth, et al., Case No. 2:11-cv-3695-RDP-TMP (N.D. Ala. Nov. 7, 2013), ECF No. 69

(attached hereto as Ex. B). Both documents are on file in the Drummond case and both

specifically rebut Wolf’s false statements made on behalf of Drummond in that case.

With respect to the false statements Wolf makes with regard to “payments” in his

Response, first, Wolf falsely states that the documents and exhibits in the briefing for the

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Supporting attachments to the documents cited from Drummond v. Collingsworth, Case No.
2:11-cv-3695-RDP-TMP (N.D. Ala. filed Oct. 21, 2013), have been omitted to avoid burdening
the Court. These attachments can be found in the Drummond record.
2
Unless otherwise specified, all exhibits referenced herein are attached to the Declaration of
Terrence P. Collingsworth in the instant case, annexed hereto.
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Drummond case, on which Wolf purports to rely in listing persons who were “paid” by

Collingsworth, reveal that Drummond’s expert, R. Bernard Harwood, listed “various amounts”

paid to “Samario,” “El Tigre,” and “Jaime Blanco.” Response at 6. That is absolutely false. Mr.

Harwood does not and cannot list any amounts paid to these individuals because there were no

payments made to them by Mr. Collingsworth for any purpose. Any amount of investigation by

Wolf – including a basic reading of Mr. Harwood’s submission – would have revealed the

statement about payments to “Samario,” “El Tigre,” and “Jaime Blanco” to be false.

Wolf clearly seeks to create the false impression that the legitimate security assistance

provided to family members of three witnesses, Charris, Duarte, and Gelvez, 3 who were

relocated when they received death threats, was somehow illegal. See Response at 6-7. The

briefing and documents in the Drummond case show clearly, and it is beyond dispute, that

Collingsworth disclosed in discovery that security assistance for family members of Charris,

Duarte, and Gelvez was provided to relocate these family members after they received concrete

threats of death. Ex. A at 17-19, 21; Ex. B ¶¶ 35-40, 42, 44.

After setting the stage by questioning the nature of the payments, Wolf then charges

falsely that the witnesses “only gave declarations to Collingsworth blaming Drummond after he

began paying them.” Response at 6. Wolf has no support for this fact, and it is false. He certainly

failed to investigate whether it was true before making the false allegation before this Court.

Wolf’s supposed source is Mr. Harwood, but that expert’s report provides no support for Wolf’s

statement. Indeed, the public record in Drummond is clear that in all cases, after the witnesses

had provided written statements to the Colombian authorities or Mr. Collingsworth or both

3
Wolf refers to another person named “Halcon,” who, in fact, received security assistance from
Collingsworth, but he is not a witness in the Drummond case or any other case. Ex. A at 19; Ex.
B ¶¶ 35, 41.
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implicating Drummond, and the witnesses were about to give deposition testimony, their family

members received concrete death threats. Ex. A at 17-19, 21; Ex. B ¶ 35-40, 42, 44. Clearly

Wolf failed to conduct the most minimal investigation before making his false statement

regarding the timing of the security assistance provided to endangered family members of the

three witnesses.

While Wolf violated Rule 11 for his statement as to the timing of the witness

declarations, Plaintiffs also note that there is no question that under these circumstances, it was

ethically and legally proper for Collingsworth to provide security assistance to the endangered

family members. Demonstrating Wolf’s intent to mislead, Wolf fails to mention that

Collingsworth retained an expert, Professor Steven H. Hobbs, who researched the issues and

identified two other experts, and all of them agreed that security assistance may be provided to

witnesses or their family members if they receive concrete threats designed to prevent the

testimony. See Expert Decl. of Professor Steven H. Hobbs ¶¶ 38, 44, 46-47, Drummond Co., Inc.

v. Collingsworth, et al., Case No. 2:11-cv-3695-RDP-TMP (N.D. Ala. Nov. 7, 2013), ECF No.

70 (attached hereto as Ex. C).

Finally, Wolf’s assertion that Collingsworth paid witnesses who “are all members of the

AUC,” Response at 8, is false on two levels and plainly lacking in evidentiary support. First, as

noted, all security assistance related to any witness in the Drummond case went to family

members of three witnesses, Charris, Gelvez and Duarte, to relocate them in response to death

threats. Further, while no witness security assistance went to the witnesses themselves, it bears

noting that all of the former AUC witnesses in the Drummond case are now demobilized and so

are no longer “members of the AUC,” as Wolf claims. Id. Because the actual facts, with which

Wolf has no familiarity, show that the family members of the witnesses, who never were

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members of the AUC, received the funds, and none of the witnesses at issue are active members

of the AUC, Wolf’s irresponsible accusation of criminal wrongdoing is demonstrably false and

clearly without any evidentiary support, in violation of Rule 11.

B. Ivan Otero is not a member of the AUC.

Adding to the list of false and shockingly irresponsible statements devoid of any

evidentiary support, Wolf claims Colombian lawyer Ivan Otero “follows the [AUC] leadership’s

orders” and is “a representative of the AUC organization.” Response at 10 n.7. Wolf cites no

evidence for smearing Otero as a terrorist, citing only to Wolf’s “experience in Colombia, and

with the AUC.” Id. Aside from his gut feeling, Wolf offers nothing to justify this statement – no

AUC testimony, no newspaper report, no account of criminal proceedings against Otero. This

outrageous accusation clearly has no evidentiary support, and Plaintiffs are seriously concerned

that Wolf’s reckless speculation could pose a serious risk to Mr. Otero. Indeed, Mr. Otero’s work

for the plaintiffs in the Drummond case has resulted in serious attempts to assassinate him that he

attributed to Drummond. See Decl. of Ivan Otero Mendoza ¶¶ 5, 11, 23, 27-30 (attached hereto

as Ex. D). Wolf claims to have experience in Colombia. That should have prevented him from

falsely labeling an already endangered person a member of the AUC. 4

C. There was no “scheme” to pay Raul Hasbun $150,000 for his testimony.

Wolf attempts to describe a supposed “scheme[]” by the Plaintiffs’ lawyers in this

litigation (other than Wolf) to pay Raul Hasbun $150,000, presumably for his testimony.

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Wolf’s assertion that it is unethical to provide Otero a contingency fee is in ignorance of the
facts of any arrangement with Mr. Otero. Further, Professor Hobbs, the expert for Mr.
Collingsworth in the Drummond litigation, specifically examined the actual facts and found there
to be no conflict or other impropriety in Collingsworth’s relationship with Mr. Otero. See Second
Decl. of Professor Steven H. Hobbs ¶¶ 8, 19-20, Drummond Co., Inc. v. Collingsworth, et al.,
No. 2:11-cv-3695-RDP-TMP (N.D. Ala. Feb. 12, 2014), ECF No. 98-1 (attached hereto as Ex.
E).

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Response at 11 & n.8. Wolf claims “dealings” are “documented in emails” in relation to this

scheme, calling it all “clearly cause for concern.” Id. at 11. However, Wolf neither produces nor

refers to any specific emails, because none exist. The only “cause for concern” here is Wolf’s

propensity for making scandalous statements devoid of any factual support.

D. Dismissal of Collingsworth’s second lawsuit against Drummond was not affirmed on


appeal.

In seeking, inexplicably, to denigrate Collingsworth’s theories of liability that might be

used in the Chiquita case, 5 Wolf asserts that such theories failed, twice, in the Drummond human

rights litigation. Wolf claims that when Collingsworth “sued Drummond a second time,” the case

was dismissed and the “dismissal was affirmed on appeal.” Response at 5. The most basic legal

research would have revealed this statement as false.

Collingsworth first represented plaintiffs in a suit against Drummond on behalf of clients

in the Romero litigation, where the judgment in Drummond’s favor was affirmed on appeal.

Romero v. Drummond Co., Inc., 552 F.3d 1303, 1324 (11th Cir. 2008). The second time

Collingsworth brought suit against Drummond on behalf of different clients was in the Baloco

litigation. This suit is the subject of Wolf’s demonstrably false statement. After the district court

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Wolf apparently does not understand theories of vicarious liability. Against his clients’
interests, he seems to argue that Chiquita and Dole are innocent of assertions by the other
Chiquita Plaintiffs that officers, agents or employees of the companies were directly involved in
making decisions about targets for the AUC. Response at 4-5, 9. One theory advanced is that
corporate officers were directly involved with the AUC in the murders of Plaintiffs’ decedents.
In addition, and where Wolf becomes confused, the various persons working on behalf of
Chiquita or Dole in Colombia worked at local entities that were alter egos or agents of the parent
companies and functioned as Chiquita or Dole in Colombia. The individuals in question held
themselves out as Chiquita or Dole in Colombia. Indeed, Carlos Tijeras, whom Wolf accuses of
lying about the role of local staff of Chiquita and Dole in targeting victims with the AUC, states
in his Declaration referenced by Wolf: Error! Main Document Only.“Whatever reason these
companies had to create their subsidiaries on paper, both Chiquita and Dole held themselves out
in their operations in my area of Colombia as Chiquita and Dole. It was logical. The AUC even
had an open public relationship with the heads of the plantations, whether it be Dole or
Chiquita.” Response Ex. 1, ¶ 10, ECF No. 662-2, Case No. 0:08-md-01916-KAM.
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originally dismissed the action, the Eleventh Circuit reversed and remanded. Baloco ex rel.

Tapia v. Drummond Co., Inc., 640 F.3d 1338, 1351 (11th Cir. 2011). Although the district court

again dismissed the action after remand, the appeal was still pending at the time Wolf filed the

Response and is still pending. Baloco v. Drummond Co., Inc., No. 7:09-CV-557-RDP, 2012 WL

4009432 (N.D. Ala. Sept. 12, 2012), appeal docketed, No. 12-15268 (11th Cir. Oct. 15, 2012).

No dismissal in Baloco had been affirmed on appeal as asserted by Wolf in the Response.

CONCLUSION

A sanction under Rule 11 should “deter repetition of the conduct or comparable conduct

by others similarly situated.” Fed. R. Civ. P. 11(c)(4). Given the serious nature of Wolf’s false

accusations, and to send a clear message to any other party to this litigation that may be tempted

to make similarly unfounded accusations, Plaintiffs request an order directing payment of “all of

the reasonable attorney’s fees and other expenses directly resulting from [Wolf’s] violation.” Id.

CERTIFICATE OF GOOD FAITH CONFERENCE:


CONFERRED BUT UNABLE TO RESOLVE ISSUES PRESENTED IN THE MOTION

Pursuant to Local Rule 7.1(a)(3)(A), I hereby certify that on _________, counsel for the

movant conferred with all parties or non-parties who may be affected by the relief sought in this

motion in a good faith effort to resolve the issues, but has been unable to resolve the issues.

By:

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Respectfully submitted this ___ day of May, 2014.

CONRAD & SCHERER, LLP

By: _____________________________
Eric J. Hager (D.C. Bar 975861)
ehager@conradscherer.com
Conrad & Scherer, LLP
Avenida República de El Salvador 500 e Irlanda
Edificio Siglo XXI, PH Oficina W
Quito, Ecuador
P: 954-622-0461
F: 866-803-1125

Terrence P. Collingsworth (D.C. Bar 471830)


tcollingsworth@conradscherer.com
Conrad & Scherer, LLP
1156 15th St. NW, Suite 502
Washington, D.C. 20005
P: 202-543-4001
F: 866-803-1125

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I, Eric J. Hager, hereby certify that on this __ day of May, 2014, a true and correct copy

of the foregoing MOTION FOR RULE 11 SANCTIONS AGAINST PAUL WOLF was served

via the Court’s CM/ECF system upon all parties of record.

/s/ Eric J. Hager


Eric J. Hager