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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' Memorandum in Support of Motion

for Partial Summary Judgment for Negligence Per Se

Paul Wolf, D.C. Bar #480285

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

January 3, 2019
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TABLE OF CONTENTS

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

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

FACTUAL SUMMARY .......................................................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 2

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

I. The Court should decide this motion based on the laws of the
District of Columbia. .................................................................................... 3

A. The governmental interests and policies. ......................................... 7

B. The interest in deterring terrorism will be more advanced

by the application of D.C. law. ......................................................... 9

C. The Court's dismissal of state law claims shouldn't apply to

negligence per se. ............................................................................. 10

II. Chiquita's negligence may be established by operation of law. ............... 12

A. The negligence per se doctrine is settled law. .................................. 12

B. Negligence per se in the District of Columbia .................................. 14

C. The statute provides the standard of care. ........................................ 14

D. The money paid to local AUC units to protect local farms

was a substantial factor in causing Plaintiffs' injuries. ..................... 15

E. Plaintiffs will show proximate cause at trial. ................................... 17

F. The Defendants can't rebut the presumption of negligence

by showing they did everything a reasonable person would
have done to comply with the law. .................................................. 18

CONCLUSION ....................................................................................................... 20

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TABLE OF AUTHORITIES

Cases

Acme Circus v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983) ................................... 4

Armiger v. Real S.A. Transportes Aereos, 377 F.2d 943 (D.C. Cir. 1967) ............. 6

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

cert. denied, 469 U.S. 1159 (1985) ........................................................................... 4, 7

Bierczynski v. Rogers, 239 A.2d 218 (Del. 1968) ................................................... 16

Boronkay v. Robinson & Carptenter, 160 N.E. 400 (N.Y. 1928) ............................. 13

Ceco Corp. v. Coleman, 441 A.2d 940 (D.C. 1982) ................................................. 14

Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374 (D.C. 1995) ................ 15

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151 (11th Cir. 2009) ........................... 4

District of Columbia v. Freeman, 477 A.2d 713 (D.C.1984). .................................. 17

District of Columbia v. Frick, 291 A.2d 83 (D.C.1972) ........................................... 15

Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. Ct. Spec, App. 2011) ...................... 15

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ................................................ 13

Gaither v. Myers, 404 F.2d 216 (D.C. Cir. 1968) .................................................... 5

Grey's Executor v. Mobile Trade Co., 55 Ala. 387 (1876) ...................................... 13

Halberstam v. Welch, 705 F2d 472 (D.C. Cir. 1983). ............................................. 18

Herskovits v. Group Health Cooperative of Puget Sound,

99 Wash.2d 609 (1983) ............................................................................................ 16

Horton v. Harwick Chem. Corp., 653 N.E.2d 1196 (Ohio 1995) ............................. 15

Hurtado v. Superior Court, 11 Cal.3d 574 (1974) ................................................... 5

In re Air Crash Disaster at Washington,

D.C., 559 F. Supp. 333 (D.D.C. 1983) ..................................................................... 4

Kaiser-Georgetown Cmty. v. Stutsman, 491 A.2d 502 (D.C.1985) ......................... 5

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Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) ................................... 11

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) .................................... 3

Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980) (en banc) ........................ 15-16

Lewis v. Washington Metro. Area Transit Auth.,

463 A.2d 666 (D.C.1983) ......................................................................................... 14

Long v. Sears Roebuck & Co., 877 F. Supp. 8 (D.D.C. 1995) ................................. 8

Lorenzo v. Wirth, 170 Mass. 596 (1897) .................................................................. 13

Morrison v. National Australia Bank, 561 U.S. 247 (2010) ...................................... 11

Murphy v. Sarasota Ostrich Farm/Ranch, Inc.,

875 So.2d 767 (Fla. Dist. Ct. App. 2004) ................................................................. 15

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ............................................ 4

Richardson v. Gregory, 281 F.2d 626 (1960) ........................................................... 14

Robinson v. District of Columbia, 580 A.2d 1255 (D.C.1990) ................................ 14, 20

St. Paul Fire & Marine Insurance Co. v. James G. Davis Construction Corp.,
350 A.2d 751 (D.C. 1976) ........................................................................................ 17

Semler v. Psychiatric Inst. of Washington, D.C.,

575 F.2d 922 (D.C. Cir. 1978) .................................................................................. 4

Stutsman v. Kaiser Foundation Health Plan of Mid-Atlantic States et al,

546 A.2d 367 (D.C. 1988) ........................................................................................ 4

Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense,

350 F.2d 468 (D.C. Cir. 1965), cert. denied, 383 U.S. 943 (1966). ......................... 5-7, 9

Van Dusen v. Barrack, 376 U.S. 612 (1964) ............................................................ 3

Weakley v. Burnham Corp., 871 A.2d 1167 (D.C. 2005) ........................................ 15

YWCA v. Allstate Ins. Co., 275 F.3d 1145 (D.C. Cir. 2002) .................................. 3

Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268 (D.C.1987) ........................ 14

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Statutes

U.S.A. Patriot Act, P.L. 107-56, 115 Stat. 272 (2001) ............................................. passim

19 U.S.C. § 2339B ................................................................................................... 12

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

28 U.S.C. § 1367 ....................................................................................................... 1

50 U.S.C. § 1705 ...................................................................................................... 12

31 CFR § 594.204 ..................................................................................................... 12

Other

Black's Law Dictionary (9th ed. 2009) ..................................................................... 15

Elliott, Byron K. & Elliott, William F. A Treatise on the Law of Railroads (1897).. 13

Holmes, Jr., Oliver Wendell,The Common Law at 120-129 (4th Ed. 1938) ............. 13

King, Causation, Valuation and Chance in Personal Injury Torts Involving

Pre-existing Conditions and Future Consequences, 90 Yale L.J. 1353 (1981) ....... 16

Lowndes, Charles L. B., Civil Liability Created by Criminal Legislation,

16 Minn. L. Rev. 361 (1931) .................................................................................... 13

Restatement (Third) of Torts, American Law Institute (2010) .............................. 13, 15, 17

Restatement (Second) of Conflict of Laws, American Law Institute (1971) .......... 7

Restatement (Third) of Foreign Relations Law of the United States (1987) ........... 10

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FACTUAL SUMMARY
Plaintiffs have argued from the beginning that their clearest and most easily-proven claim

is for "negligence." If you give millions of dollars to a terrorist organization, you're creating a risk

to the public, and taking a risk yourself. The Court included negligence per se among the common

law claims in its 95-page Opinion and Order, dated June 3, 2011, DE 412. "Last, Plaintiffs allege

... negligence, negligent hiring, negligent per se, and loss of consortium." Id. at 2.

Although the Court dismissed Colombian law claims in its June 3, 2011 Order, DE 412,

Plaintiffs’ filed a Motion for Reconsideration, which was granted in part with respect to the

Colombian law claims. See Order dated March 27, 2012. DE 516. The Court had first declined

to exercise supplemental jurisdiction under 28 U.S.C. § 1367 (a).1 The Court amended the Order

once it was argued that some plaintiffs (including the moving Plaintiffs) had also pled diversity

jursidiction under 28 U.S.C. § 1332. DE 516 at 4.2 The Court then granted leave to amend those

complaints that were inadequately pled. Id. The Court also certified to the Eleventh Circuit the

question of whether the civil tort laws of Florida, New Jersey, Ohio, and the District of Columbia

apply to the extraterritorial conduct of foreign tortfeasors on foreign victims. See id. at 4 n 4. The

Court of Appeals never reviewed this issue.3

The Court summarized the facts and bases for liability of this eleven-year-old case in its

June 3, 2011 Order. DE 412. Since then, the 11th Circuit dismissed the A.T.S. claims, and the

1
"Even if the Court were competent to interpret and rule upon a foreign nation’s common law, the
novel and complex issues inherent in such in endeavor balance against exercising supplemental
jurisdiction." See June 3, 2011 Order, DE 412 at 90.
2
"Upon further review, the Court agrees with Plaintiffs that it did not have the discretion to dismiss
the Colombia-law claims that were properly plead under the Court’s diversity jurisdiction, as
opposed to its supplemental jurisdiction." Id. at 5.
3
Plaintiffs discuss the Kiobel and Morrison cases in § I (D) of this brief.
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parties have concluded discovery for common witnesses, expert witnesses, and several dozen

bellwether cases.

This Motion presents a purely legal issue that has been argued all along, but was never ripe

for decision until now. The Court should consider this Motion together with other Motions for

Summary Judgment, and/or consider it an Opposition and Cross Motion to Defendants' Motions

for Summary Judgment.

SUMMARY OF ARGUMENT

The Court should apply the laws of the District of Columbia to this motion, because of the

strong governmental interest in combating the financing of terrorism. Chiquita pled guilty to a

felony charge of Engaging in Transactions with a Specially-Designated Global Terrorist, in a high-

profile prosecution reflecting the strong national policy of the United States to combat terrorism.

The underlying criminal case was based on provisions of the U.S.A. Patriot Act, the purpose of

which was to deter and punish terrorism "around the world," particularly through Anti- Money

Laundering and other banking laws, which are extraterritorial in focus. The victims of these

"specially-designated global terrorists" are among the types of persons the Patriot Act was intended

to protect, and suffered the types of harm the Act was intended to prevent.

Application of the negligence per se rule wouldn't be in conflict with the laws or policies

of Colombia. On the contrary, from a Colombian perspective, no other result would make sense.

If this case were tried in Colombia, the victims would have been parties to the criminal case, and

awarded damages in the same proceeding. That is how civil law systems work. How could

Chiquita prevail under the "preponderance of the evidence" standard, after admittting liability has

been established beyond a reasonable doubt? See Exhibit 1 attached hereto, Factual Proffer at 1.

("Had this case gone to trial, the government would have proven beyond a reasonable doubt that:

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...") The facts already established beyond a reasonable doubt, and found sufficient as a basis for

criminal liability, establish Chiquita's liability in negligence by operation of law. In Colombia,

this is also the rule. Damages are awarded based on the severity of the offense, and the victim's

relation to the crime, in the criminal proceeding.

Although negligence per se operates as a legal rule to establish liability, it doesn't resolve

whether the injuries were proximately caused or forseeable. The Plaintiffs have also alleged aiding

and abetting and civil conspiracy, with mens rea elements of knowledge and intent, respectively.

The instant motion doesn't eliminate the need for a trial. 4 Finally, negligence per se arises by

operation of law from the Defendants' guilty plea, and isn't subject to defenses.

ARGUMENT
I. The Court should decide this motion based on the laws of the District of Columbia.
Federal courts sitting in diversity must apply the choice-of-law principles of the state in

which they sit. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); YWCA v. Allstate

Ins. Co., 275 F.3d 1145, 1150 (D.C. Cir. 2002). A court to which cases have been transferred,

through multidistrict proceedings or otherwise, is obliged to apply the choice-of-law rules of the

transferor court. Van Dusen v. Barrack, 376 U.S. 612 (1964). Since the above-captioned cases5

were all transferred from the U.S. District Court for the District of Columbia ("D.C."), D.C.'s

choice of laws method should be used.

4
In the Factual Proffer, Chiquita also admitted knowledge that the AUC was designated as a
Foreign Terrorist Organization due to international condemnation of its human rights abuses. See
Exhibit 1 at ¶¶ 27-28, 55-63. This is one of the elements of Plaintiffs' claims for aiding and
abetting. The court may also resolve this issue as a matter of law, although the instant motion
doesn't address it, and the law is less clear.
5
Undersigned counsel's other case, Does 1-2146 v. CBI, No 17-cv-80475-KAM, was filed in Ohio,
which uses a different choice of laws test. This complaint is only against Individual Defendants,
who didn't plead guilty to any criminal charges, and isn't included in this Motion.
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As a threshold matter, there “can be no injury in applying [the forum state’s 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); Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151,1174

(11th Cir. 2009) (applying Dutch law); Acme Circus v. Kuperstock, 711 F.2d 1538 (11th Cir.

1983) (applying California's governmental interests test). Therefore, this Court should apply the

law of the District of Columbia by default, and only consider whether Colombian law should apply

when a true conflict arises.

To determine whether there is a true conflict, the Court must “evaluate the governmental

policies underlying the applicable laws” of the interested states. If those interests conflict, the

Court must determine “which jurisdiction’s policy would be most advanced by having its law

applied to the facts in the case.” Stutsman v. Kaiser Foundation Health Plan of Mid-Atlantic States

et al, 546 A.2d 367, 373 (D.C. 1988) ("Given the clear conflict between the laws of the two

jurisdictions, we must decide which jurisdiction has the greater interest in the application of its

substantive law."); In re Air Crash Disaster at Washington, D.C., 559 F. Supp. 333, 341-342

(D.D.C. 1983) (“The District of Columbia method of ‘governmental interest analysis’ directs the

court first to identify the state policies underlying each law in conflict and second to decide which

state’s policy would be advanced by having its law apply.”); Semler v. Psychiatric Inst. of

Washington, D.C., 575 F.2d 922, 924 (D.C. Cir. 1978).

“When the policy of one state would be advanced by application of its law, and that of

another state would not be advanced by application of its law, a false conflict appears and the law

of the interested state prevails.” Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C. Cir.

1984), cert. denied, 469 U.S. 1159 (1985). A true conflict arises when both states have an interest

in applying their own laws, in which case the law of the forum “will be applied unless the foreign

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state has a greater interest in the controversy.” Id. “The fact that two states have different rules

where all the factors are oriented to one state does not necessarily mean that there is a ‘conflict’ in

which one state demands and the other rejects the application of its rule to a situation where the

pertinent factors arise in two or more states.” Gaither v. Myers, 404 F.2d 216, 224 (D.C. Cir. 1968).

D.C. courts will consider applying another state's law when (1) its interest in the litigation is

substantial, and (2) “application of District of Columbia law would frustrate the clearly articulated

public policy of that state.” Kaiser-Georgetown Cmty. v. Stutsman, 491 A.2d 502, 509

(D.C.1985).

The leading D.C. choice of laws case for wrongful death is Tramontana v. S.A. Empresa

De Viacao Aerea Rio Grandense, 350 F.2d 468 (D.C. Cir. 1965), cert. denied, 383 U.S. 943 (1966).

In Tramontana, a Maryland resident was riding in a U.S. Navy airplane over Rio de Janiero, Brazil,

when it collided with a Brazilian airliner flying from Campos, Brazil, to Rio de Janiero. The

surviving spouse sued under Brazilian law, but argued that the Brazilian limit on damages,

equivalent to U.S. $170. dollars, should not apply, and that the District of Columbia's law

permitting uncapped damages should be used. The D.C. Circuit held that the Brazilian damages

cap applied, because Brazil's policy would be advanced by the application of its laws, while the

District of Columbia had no policy that would be advanced.

Not only is Brazil the scene of the fatal collision, but Varig is a Brazilian corporation which,
as a national airline, is an object of concern in terms of national policy. To Brazil, the
success of this enterprise is a matter not only of pride and commercial well-being, but
perhaps even of national security. The limitation on recovery against airlines operating in
Brazil was enacted in the early days of commercial aviation, no doubt with a view toward
protecting what was then, and still is, an infant industry of extraordinary public and national
importance.

Id. at 471. The court found this Brazilian interest in regulating the airline industry outweighed the

interest of Maryland, where the decedent had been domiciled, or the District of Columbia, which

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was the forum. Maryland's interest was "not insignificant," though, since the State of Maryland

would have had to support the decedent if she couldn't support herself. Id. at 473.6 The crash also

involved residents of other U.S. states, who argued that their states' courts would have used their

own damage limits. The D.C. Circuit held that Brazil's interest outweighed the interests of any of

the domicile states. Armiger v. Real S.A. Transportes Aereos, 377 F.2d 943 (D.C. Cir. 1967).

The Tramontana case is on point for another reason. The plaintiff had sued under Brazilian

law, yet the court still engaged in a choice of laws analysis, and might have applied Maryland law,

if Maryland's interests were greater. The Court isn't limited to the law providing jurisdiction for

the Plaintiff's claims, and in some cases applies the laws of more than one jurisdiction.7

In Hurtado v. Superior Court, 11 Cal.3d 574 (1974), a Mexican national was wrongfully

killed in California by a California resident. Under Mexican damages law, the maximum amount

of damages was 24,334. pesos, or USD $1,947. The Supreme Court of California held that

California's higher measure of damages expressed a deterrence policy, and that the policy would

be advanced by applying California's damages limits, rather than those of Mexico. A false conflict

existed because Mexico's lower limit was not intended to "punish" the plaintiff, but was merely

intended to protect the defendant against an excessive recovery. Id. Since the defendant didn't

reside in Mexico, the policy wasn't advanced by applying it to him. Id. Although this is an out-

of-circuit case, the reasoning is on point. Even if Colombia has a policy to protect defendants from

excessive awards, the policy isn't advanced by applying it to a U.S. company in a U.S. court.

California also uses the governmental interest test for choice of laws.

6
This has been called a state's "welfare" interest in protecting its residents. See Gary L. Milhollin,
The New Law of Choice of Law in the District of Columbia, C.U. Law Rev., Vol. 24:448 at 466
(Spring 1975).
7
In the instant case, family law and probate issues should be resolved according to Colombian
law, because Colombia has a greater interest in regulating these types of relationships.
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Consistent with the modern approach, D.C. courts look first at the defendant's conduct,

rather than the situs of the injury. "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), quoting

Restatement (Second) of Conflict of Laws § 146 cmt. d (1971). The conduct at issue is what was

admitted in the Factual Proffer. See Exhibit 1. The question is, which state has a greater interest

in regulating it?

Applying the reasoning in Tramontana, the Court should find that the interest of the District

of Columbia, and of the United States, in preventing the financing of terrorism outweighs any

others. Colombia has no interest or ability to regulate U.S. companies doing business in Colombia

through subsidiaries. Colombia has no interest in punishing its own citizens with barriers to

liability and lower damages awards. Nor will Colombia's own anti-terrorism policies be promoted

by the application of Colombian laws. Finally, any Colombian policy protecting defendants from

excessive damage awards doesn't apply to U.S. defendants in U.S. courts. These arguments only

present false conflicts, and are insufficient bases to apply foreign law.

A. The governmental interests and policies.

The underlying criminal case was based on provisions of the U.S.A. Patriot Act, the

purpose of which was to deter and punish terrorism "around the world," particularly through Anti-

Money Laundering and related banking laws, which are extraterritorial in focus. The interest of

the Distict of Columbia, 8 and of the United States, is in preventing American persons and

8
The Pentagon is across the Potomac River from the District of Columbia, where terrorist attacks
against the federal government are a local concern. The terrorist attacks on the World Trade Center
and Pentagon on September 11, 2001 were the reason the Patriot Act was passed.
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companies from financing foreign terrorist organizations, to deter and punish international

terrorism.

The Colombian government also has an interest in preventing terrorism, but no control

over multinational corporations doing business through Colombian subsidiaries. It has no

"interest," meaning legal right, in regulating foreign corporations. However, this is really beside

the point, because that is not the governmental interest involved. Chiquita argues that its conduct

was innocent, or the product of extortion, and more recently, that Colombian courts don't award

punitive damages. See Expert Report of Dr. Santos Ballesteros, DE 2203-1. In other words,

Chiquita says its conduct falls short of what would be considered actionable in Colombia, or would

be excusable, or would merit less damages. However, any interest of the government of Colombia

in limiting liability these ways isn't reflected in a clear, national policy, as is Colombia's own policy

of deterring and punishing terrorism. For these issues, at least, there is no true conflict of laws,

but a difference in the degree of enforcement or the measure of the remedy. The argument that

Colombia may have a greater interest in preventing terrorism in its own territory only leads to the

same result: applying the harshest sanction. In both countries, hiring a terrorist group to provide

security is a serious crime.

Application of the negligence per se rule doesn't conflict with Colombian law. Negligence

per se is inherent in Colombia's civil law system. If Chiquita had been prosecuted in Colombia

instead of the U.S., the Plaintiffs would have been awarded damages in the same proceeding.

There wouldn't have to prove liability in a second civil case. The Court may take judicial notice

that Colombia has a civil law system. In addition, counsel has translated provisions of the

Colombian Penal Code, which provide for damages to crime victims in the criminal proceeding.

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See Declaration of Paul David Wolf, Esq., attached hereto at ¶¶ 7-8.9 This motion could be easily

resolved if Chiquita would admit that, re-litigation of liability when damages are awarded to

victims in a criminal case. The quoted provisions also show that the damages are proportional to

the "nature of the conduct." Id. at Article 97. In his report, the Defendant's expert argues that

punitive damages aren't available in civil cases in Colombia, but cites to Article 2341 of the

Colombian civil code, which doesn't apply to crime victims. Whether the Colombian damages cap

applies need not be decided for this motion.

B. The interest in deterring terrorism will be more advanced.

This should end the analysis under D.C.'s choice of law rules. Step two is only reached "if

those interests conflict." Long v. Sears Roebuck & Co., 877 F. Supp. 8, 10 (D.D.C. 1995).

Nevertheless, the Court would find that the policy against financing terrorism would be "most

advanced" by the application of D.C. law, compared to any Colombian policies that might limit

liability. Colombia has no policy to punish its own citizens by limiting their ability to sue in

foreign courts. If Colombia has a policy to protect defendants from excessive awards, it doesn't

apply to U.S. defendants in U.S. courts, and isn't even clearly articulated as a policy. Chiquita's

arguments about but-for and concurrent causation come from a complex area of law that could

hardly be called a policy. Second, Chiquita wasn't allowed to argue the duress defense in the Julin

case because the incidents cited as threats were too remote, and the threats too abstract. What

policy would be advanced by re-examining this issue under Colombian law? Third, on the issue

of damages, if the Court had to weigh the governmental interest in deterring terrorism against the

9
Counsel knows that the Court previously ordered that "official translations" be used, and plans to
hire a translator certified by the Colombian Ministry of Exterior Relations to translate a more
comprehensive list of applicable provisions of Colombian law for the Reply. We expect Chiquita
to respond to this motion with arguments based on Colombian law, since negligence per se and
the substantial factor test are settled law in D.C.
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danger of unjust enrichment, it should find that D.C. has the stronger interest. D.C. has a

deterrence interest in enforcing the Patriot Act, which is to protect its residents from international

terrorism by punishing money laundering and terrorism financing.

C. The Court's dismissal of state law claims shouldn't apply to negligence per se.
The Tramontana case itself makes clear that claims brought under the law of a foreign

country may be decided according to the laws of another state with a greater interest. Although

the court applied the law of Brazil, it wasn't because the plaintiffs had pled Brazilian law, but

because the application of Brazilian law would advance Brazil's interest in regulating its airline

industry.

In addition, there are several other reasons why the Court's Order dismissing U.S. state law

claims shouldn't apply. 10 A close reading of the Court's Order shows that it refers only to theories

of secondary liability for the AUC's acts. The Court held that:

Plaintiffs’ state-law claims are premised on acts by Colombian paramilitaries against

Colombian civilians that occurred inside Colombia as part of Colombia’s civil war. ...
Accordingly, the Court holds that the civil tort laws of Florida, Ohio, New Jersey and the
District of Columbia do not apply to the AUC’s alleged torts against Plaintiffs’ relatives.

Order, DE 412 at 87. This shouldn't apply to negligence per se, which is not about the AUC's acts

or torts. Chiquita is negligent per se for paying terrorist organizations in violation of the Patriot

10
The Court applied the international law principle of territoriality, and considered the "effects
doctrine," which is a theory of extraterritorial jurisdiction for "conduct outside its territory that has
or is intended to have substantial effect within its territory,” citing § 402 (1)(c) of Restatement
(Third) of Foreign Relations Law of the United States (1987) (“Restatement of Foreign Relations
Law”). However, the acts of the Defendant, not those of the AUC, are those underlying the
negligence per se claim. Murders committed by the AUC are the forseeable consequences.
Another basis for jurisdiction in international law is that the conduct occurred "in substantial part"
in the United States. Under § 402 (1)(a) of the Restatement of Foreign Relations Law, the United
States has jurisdiction for "conduct that, wholly or in substantial part, takes place within its
territory." Id. The same set of facts, or conduct, was subtantial enough to sustain a criminal
conviction. The "conduct," or contacts with the United States and Colombia, are identical to those
in the criminal case.
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Act. The deaths in Colombia are the harms, not the torts. They are the forseeable consequences

of Chiquita's payments, and precisely the types of harms the Patriot Act was intended to prevent.

The AUC was designated as a "Specially-Designated Global Terrorist" and as a "Foreign

Terrorist Organization" because it threatens the national security of the United States. The

problems addressed by the Patriot Act, terrorism and money laundering, are international in scope.

The threat posed by these groups is sufficient for the United States to have jurisdiction to prosecute,

or to put someone on the OFAC list, whether or not any terrorist attack actually occurs. None of

the Plaintiffs' cases were necessary for Chiquita's conviction, or even considered. If Chiquita's

conviction were based on the fact that thousands of people were killed, that would have been part

of the Factual Proffer. The operative facts are those establishing Chiquita's guilt.

The Kiobel and Morrison cases should have no bearing on the choice of laws analysis.

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013); Morrison v. National Australia Bank,

561 U.S. 247 (2010). Both cases were about ambiguous federal statutes. Both held that there is

a presumption that U.S laws don't apply extraterritorially. That presumption would be easily

overcome, though, if the text of the statute gives it extraterritorial application. The focus of the

U.S.A. Patriot Act is on international banks, money laundering, and foreign terrorist organizations.

It also contains provisions for electronic surveillance, over which there has been justified public

concern, but includes protections for communications between U.S. citizens, again reflecting the

Patriot Act's international, or even foreign focus. It is one of the most extraterritorial statutes ever

written.

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II. The Defendant's Negligence May be Established by Operation of Law.

Chiquita pled guilty to Engaging in Transactions with a Specially-Designated Global

Terrorist, 31 CFR § 594.204.11 This provides a sufficient basis for the operation of negligence per

se. This law was passed as part of the U.S.A. Patriot Act, P.L. 107-56, 115 Stat. 272 (2001), soon

after the terrorist attacks on the World Trade Center and Pentagon on September 11, 2001. The

Long Title of the Patriot Act is "An Act to deter and punish terrorist acts in the United States and

around the world, to enhance law enforcement investigatory tools, and for other purposes."

(emphasis added) The plain text of the Long Title makes clear that its purpose is to deter and

punish terrorist acts "around the world," not just in the United States. The Patriot Act wasn't

intended to protect only Americans, and is full of banking and Anti Money Laundering laws

encompassing criminal conduct occurring anywhere in the world. 12 The "focus" of the statute is

on international money laundering, international financial institutions, and foreign terrorist

organizations.

A. The negligence per se doctrine is settled law.

The negligence per se doctrine was well-established over a century ago, and has strong

theoretical underpinnings. In one of the earliest cases, the Alabama Supreme Court found the

violation of a federal statute to be negligence per se, and an "axiomatic truth, that every person,

while violating an express statute, is a wrongdoer, and, as such, is ex necessitate, negligent in the

11
On September 10, 2001, the AUC was designated as a Foreign Terrorist Organization ("FTO")
by the United States Department of State, making Chiquita's payments to the AUC illegal under
the material support statute, 19 U.S.C. Sec 2339B. See Proffer, Exhibit 1 at 6. On October 31,
2001, the AUC was designated as a Specially-Designated Global Terrorist by the United States
Department of the Treasury's Office of Foreign Assets Control, making the payments illegal under
the International Emergency Economic Powers Act, 50 U.S.C. Sec 1705(b), and the underlying
Global Terrorism Sanctions Regulations, 31 CFR Sec 594.204. Exhibit 2, Sentencing
Memorandum at 6-7. These laws, and OFAC itself, are all focused on foreign individuals and
organizations.
12
See FINCEN, https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act
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eye of the law." Grey's Executor v. Mobile Trade Co., 55 Ala. 387, 403 (1876); 3 Byron K. Elliott

& William F. Elliott, A Treatise on the Law of Railroads § 1155 (1897) (saying that a person who

violates a statute is a "wrong-doer" and ordinarily negligent per se); Charles L. B. Lowndes, Civil

Liability Created by Criminal Legislation, 16 Minn. L. Rev. 361, 373 n. 20 (1931) (explaining

how the act or omission that violated the statute is a cause of the injury but not the proximate

cause) About fifty years later, the N.Y. Court of Appeals held that the negligence per se principle

was limited to the types of injuries the legislature had aimed to prevent. Boronkay v. Robinson &

Carptenter, 160 N.E. 400 (N.Y. 1928) (Cardozo) The rule was put into the First Restatement of

Torts, and currently appears in the Restatement (Third) of Torts: § 14 cmt. a (2010), which states

Liability for Physical and Emotional Harm

The violation of federal statutes and regulations is commonly given negligence per se effect
in state tort proceedings.13

Id. In the view of Justice Oliver Wendell Holmes, a negligence claim consists of two separate and

distinct issues. The first, which he called the factual issue, requires a determination of what the

defendant actually did. The second, which he called the ethical issue, involves a value judgment

about whether the defendant's conduct was wrong. In negligence per se cases, the second question

has already been answered by the legislature. See Oliver Wendell Holmes, Jr., The Common Law

at 120-129 (4th Ed. 1938); Lorenzo v. Wirth, 170 Mass. 596 (1897). By forbidding certain acts,

the legislature has made the standard of care absolute. Violations of the statute are inconsistent

with the minimum degree of care established by law.

13
This general rule should avoid any concerns about the application of Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), under which federal courts must apply the substantive law of the
states to state law claims, but must apply federal procedural law. In other words, there is no "Erie
problem" with regard to giving negligence per se effect to the Patriot Act in this diversity
jurisdiction case.
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B. Negligence per se in the District of Columbia.

In the District of Columbia, “where a particular statutory or regulatory standard is enacted

to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the

plaintiff can establish his relationship to the statute, unexplained violation of that standard renders

the defendant negligent as a matter of law.” Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C.

1982) quoting Richardson v. Gregory, 281 F.2d 626, 629 (1960); Zhou v. Jennifer Mall Restaurant,

Inc., 534 A.2d 1268 (D.C.1987).

D.C. courts use a burden-shifting approach to address defenses. “Where a party violates a

statute, and the violation is a proximate cause of an injury which the statute was designed to

prevent, there is a rebuttable presumption of negligence on the part of the violator.” Robinson v.

District of Columbia, 580 A.2d 1255, 1256 (D.C.1990) (citing Lewis v. Washington Metro. Area

Transit Auth., 463 A.2d 666, 674 (D.C.1983)). However, “[i]f the violator demonstrates that she

did everything a reasonably prudent person would have done to comply with the law, then her

violation merely constitutes evidence of negligence rather than negligence per se.” Robinson, 580

A.2d at 1256.

C. The statute provdes the standard of care.

The responsible individuals are sophisticated managers of a large corporation, advised by

their security department in Colombia, by both in-house and outside counsel, and even the

Department of Justice. The management knew they were commiting a crime, but believed the

rewards outweighed the risks. ("just let them sue us, come after us.") The Defendants made

business decisions, often against the advice of their lawyers, and cannot claim that they thought

what they were doing was legal.

In an ordinary negligence action, the jury is instructed on the elements of negligence, and

then has to decide a single question: whether a reasonable person would have acted this way under

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the circumstances. In other words, the jury determines the standard of care. In negligence per se

cases, courts adopt a statute as establishing the standard of care. A reasonsable person obeys the

law. Chiquita had two sets of bookkeeping records and other schemes to hide its monthly

payments to the AUC. No prudent or reasonable person pays millions of dollars to terrorist groups

and takes steps to conceal it from law enforcement agencies. This is per se unreasonable.

D. The money paid to local AUC units to protect local farms was a substantial
factor in causing Plaintiffs' injuries.

The District of Columbia has adopted the proximate cause standard set forth in the

Restatement (Second) of Torts, § 431 (1965), which provides as follows:

The actor's negligent conduct is a legal cause of harm to another if:

(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which
his negligence has resulted in the harm.

Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C. 2005); Claytor v. Owens-Corning

Fiberglas Corp., 662 A.2d 1374, 1381-82 (D.C. 1995); District of Columbia v. Frick, 291 A.2d 83,

84 (D.C.1972).14 The leading case on the substantial factor test in D.C. in Lacy v. District of

Columbia, 424 A.2d 317, 321 (D.C. 1980) (en banc), which held that "[t]he substantial factor test

14
The Comments to Restatement explain that "[t]he word 'substantial' is used to denote the fact
that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to
regard it as a cause, using that word in the popular sense, in which there always lurks the idea of
responsibility, rather than in the so-called 'philosophic sense,' which includes every one of the
great number of events without which any happening would not have occurred." Id. at cmt. a.
Black's Law Dictionary defines the "substantial-factor test" as "[t]he principle that causation
exists when the defendant's conduct is an important or significant contributor to the plaintiff's
injuries." Black's Law Dictionary (9th ed. 2009). The "but-for test" is defined as "[t]he cause
without which the event could not have occurred." Id. at 250. Some courts adhere more closely
to the definition of the substantial factor test as set forth in the Restatement and Black's Law
Dictionary, requiring plaintiffs to produce evidence that a defendant's conduct is a "significant"
and "important" cause of the alleged injury or illness. Murphy v. Sarasota Ostrich Farm/Ranch,
Inc., 875 So.2d 767 (Fla. Dist. Ct. App. 2004); Horton v. Harwick Chem. Corp., 653 N.E.2d 1196,
1202 (Ohio 1995); Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. Ct. Spec, App. 2011). The
District of Columbia does not.
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[is] the best means of resolving the causation in fact issue," and that "the substantial factor test is

properly applicable whenever there are concurring causes of a single injury...." Id. at 322.

Although Lacy was a medical malpractice case, the court rejected the argument that the substantial

factor test was limited to these kinds of cases. "There is no logical reason to draw such a

limitation...." Id. The court considered whether the following instruction would mislead a jury:

When the negligent acts or omissions of two or more persons, whether committed
independently or in the course of concerted conduct, contribute concurrently, and as
proximate causes, to the injury of another, each of such persons is liable. This is true
regardless of the relative degree of the contribution. It is no defense for one of such persons
that some other person, not joined as a defendant in the action, participated in causing the
injury, even if it should appear to you that the negligence of that other person was greater,
in either its wrongful nature or its effect.

Id. at 322. The court held that "Because of this double admonition against a quantitative or

comparative test of causation, there is no reasonable basis from which to infer that the jury was

misled or confused as to the proper application of the test." Id.. Although the court didn't use the

terms "joint tortfeasors" or "joint and several liability," it is the same principle of law. "[E]ach of

such persons is liable. This is true regardless of the relative degree of the contribution." Id. That

is the rule for joint and several liability. 15

Where the injury is inflicted by one of several defendants jointly engaged in a course of

negligent conduct, each defendant is liable even though only one of them actually inflicted the

injury. Bierczynski v. Rogers, 239 A.2d 218, 21 (Del. 1968) ("The authorities reflect generally

15
In the alternative, Chiquita's payments to the AUC increased the liklihood that the plaintiffs
would be killed. In Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609,
664 P.2d 474 (1983) the issue was whether a defendant hospital may be liable for wrongful death
if, as a result of the hospital's negligence, the patient received a delay in treatment that reduced his
chance of surviving cancer from 39% to 25%. A majority of the Washington State Supreme Court
held that evidence sufficient to support a finding that the defendant negligently increased a risk of
injury or death suffices to create a jury question on the issue of causation in a wrongful death
action. See King, Causation, Valuation and Chance in Personal Injury Torts Involving Pre-
existing Conditions and Future Consequences, 90 Yale L.J. 1353 (1981)
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accepted rules of causation that all parties engaged in a motor vehicle race on the highway are

wrongdoers acting in concert, and that each participant is liable for harm to a third person arising

from the tortious conduct of the other, because he has induced and encouraged the tort.")

Even if the AUC's murders were construed as independent, intervening causes, the

Defendant would still be liable "[i]f the danger of an intervening negligent or criminal act should

have been reasonably anticipated and protected against." St. Paul Fire & Marine Insurance Co. v.

James G. Davis Construction Corp., 350 A.2d 751, 752 (D.C. 1976). "If, however, the intervening

act can fairly be said to be that which could not have reasonably been anticipated, plaintiff may

not look beyond the intervening act for his recovery." Id. The Restatement (Second) of Torts also

allows liability to attach to a defendant despite intervening criminal acts:

An act or an omission may be negligent if the actor realizes or should realize that it involves
an unreasonable risk of harm to another through the conduct of the other or a third person
which is intended to cause harm, even though such conduct is criminal.

Id. at § 449 cmt. a. The AUC's activities were not only forseeable, but known to the Defendant,

which received security newsletters and regular internal reports from security personnel in their

Banadex subsidiary in Colombia, particularly about the activities of the FARC and AUC.

E. Plaintiffs will show proximate cause at trial.

Even with negligence per se, the jury must still find that the injuries were forseeable or

proximately caused. District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C.1984). Chiquita's

payments were to local AUC units to protect their businesses in specific areas. The geographic

scope of liability overlaps with the areas that Chiquita paid to be protected. The best measurement

of this is the territorial control of the Bloque Bananero (Banana Grower Block) and the Bloque

Elmer Cardenas (Elmer Cardenas Block) of the AUC, which controlled Urabá. In addition, the

FARC only ever controlled rural areas, while most of the AUC's murders and abductions occurred

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in urban areas. The liability began with the first payments, and continued beyond 2004. See

Proffer, Exhibit 1 at ¶¶ 27-28, 55-63. This should also establish, as a matter of law, the knowledge

element of aiding and abetting. Halberstam v. Welch, 705 F2d 472 (D.C. Cir. 1983)

Proximate cause is also shown in particular cases, considering the motives and modus

operandi of the AUC. The AUC often used motorcycles. A gunshot wound to the head is the sign

of an execution. If the victim's ID card were stolen, it was to prove the person was killed. Someone

committing a murder for personal reasons wouldn't want to possess evidence like that.

F. The Defendant cannot rebut the presumption by showing they did everything
a reasonable person would have done to comply with the law.

Although the presumption is rebuttable, Chiquita cannot show they did everything a

reasonably prudent person would have done to comply with the law. Rather than reporting their

dealings with the AUC to the Department of the Treasury's Office of Foreign Assets Control

("OFAC"), or to the Securities and Exchange Commission pursuant to the Foreign Corrupt

Practices Act, they chose to falsify their accounting records.

For years, Defendant Chiquita paid the AUC by check through various convirires in Uraba,

Colombia. Proffer, Exhibit 1 at ¶ 23. The checks were nearly always drawn from the Colombian

bank accounts of Defendant Chiquita's subsidiary. Id. No convivir ever provided Defendant

Chiquita or Banadex with any actual security services or actual security equipment in exchange

for the payments, such as security guards, security guard dogs, security patrols, security alarms,

security fencing, or security training. Id. Defendant Chiquita recorded these payments in its

corporate books and records as "security payments" or payments for "security" or "security

services." Id. On or before December 4, 2003, Chiquita created and maintained corporate books

and records that did not identify the ultimate and intended recipient of the payments to the AUC,

recording them as payments for security services. Id. at ¶ 82.

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Defendant Chiquita had information about the AUC's designation as an Foreign Terrorist

Organization through an Internet-based, password-protected subscription service that Defendant

Chiquita paid money to receive. Id. at ¶ 28. Despite knowing of this designation, Defendant

Chiquita continued to pay them. Id. at ¶ 29. From about September 10, 2001 through about

February 4, 2004, Chiquita make 50 payments to the AUC totaling over $825,000. Id. Defendant

Chiquita never applied for nor obtained any license from the OFAC. Id.

Beginning about February 21, 2003, outside counsel advised defendant Chiquita, through

two Individual Defendants, that the payments were illegal and that Chiquita should immediately

stop paying the AUC directly or indirectly. Id. at ¶ 56. Counsel's advice included "Must stop

payments," "Bottom Line: CANNOT MAKE THE PAYMENT," "You voluntarily put yourself

in this position. Duress defense can wear out through repetition. Buz [business] decision to stay

in harms way," and "the company should not make the payment." Id.

When the issue was discussed by Defendants Board of Directors on about April 4, 2003

Individual C said "His and [Individual B's] opinion is just let them sue us, come after us. This is

also [Individual A's] opinion." Id. at ¶ 60. Four days later, other Individual Defendants were

instructed to "continue making payments" to the AUC. Id. at ¶ 61.

On about April 24, 2003, two Individual Defendants and outside counsel met with officials

of the U.S. Department of Justice, who advised them that the payments were illegal and could not

continue. Id. at ¶ 62. Nevertheless, on May 5, 2003, Individual Defendants were instructed to

"continue making payments" to the AUC. Id. at ¶ 64. On September 8, 2003, outside counsel

again warned the Defendant that DOJ officials had repeatedly stated the payments were illegal.

Id. at ¶ 74. On about December 22, 2003, Individual B sent an email to other Board members

stating that "we appear to [be] committing a felony." Id. at ¶ 84.

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According to the Government's Sentencing Memorandum, prior to a meeting with the

Department of Justice officials on April 24, 2003, Defendant Chiquita had never reported any AUC

demands to any department or components of the United States government or the Colombian

government. Exhibit 2, Sentencing Memo, at 6 n 5.

In sum, by (1) not disclosing its payments to law enforcement authorities or applying for

an OFAC license; (2) disguising payments to terrorist groups as payments for security services in

its business records; and (3) making business decisions against the advice of its own lawyers and

officials of the Department of Justice, the Defendant cannot show that it did everything possible

to comply with the law. Therefore, Chiquita cannot rebut the presumption of negligence per se.

Robinson v. District of Columbia, 580 A.2d 1255, 1256 (D.C.1990).

CONCLUSION
For the foregoing reasons, the Court should GRANT Plaintiffs' Motion for Partial
Summary Judgment for the claim of 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

January 2, 2019
Certificate of Service
I hereby certify that on this 2nd of January, 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 recieve them.

/s/ Paul Wolf

_____________
Paul Wolf

20