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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA

IN RE: CHIQUITA BRANDS


INTERNATIONAL, INC. ALIEN TORT
STATUTE AND SHAREHOLDERS
DERIVATIVE LITIGATION
__________________________________________/

This Document 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)
17-80475-CIV-MARRA (Ohio Action) (Does 1-2146)

__________________________________________/

Plaintiffs Memorandum in Opposition to Defendants'


Motions for Summary Judgment [DE 2283, 2289]

Paul Wolf, DC Bar #480285


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

March 15, 2018


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TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .................................................................................... iii

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

STANDARD OF REVIEW ...................................................................................... 2

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

ARGUMENT ............................................................................................................ 4

1. U.S. law should apply to this motion. ........................................................... 4

A. U.S. law applied in the underlying criminal case because


a substantial part of the conduct took place in the U.S. .................... 4

B. The "touch and concern" test in Kiobel doesn't a


apply to state tort law claims. ........................................................... 5

C. Ohio has the most significant relationship with the


Defendants' criminal conduct. .......................................................... 7

D. Damages are not substantive law, and are governed


by the law of the forum. .................................................................... 8

2. The Court may use the law of the forum to fill any gaps in
Colombian law. ............................................................................................. 9

3. Under Colombian law, the Defendants would be jointly and


severally liable with the AUC. ...................................................................... 10

A. The Colombian Penal Code provides for compensation


to crime victims. ............................................................................... 12

B. The Court already rejected Defendants' theory that


Plaintiffs must show specific intent. ................................................ 13

4. Defendants waived the duress defense in the Factual Proffer, and


collateral estoppel should apply to the Court's ruling in Julin. .................... 14

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5. Chiquita's support of the AUC was substantial. ............................................ 15

6. The Individual Defendants whose motions to dismiss were denied


should also be denied summary judgment. ................................................... 17

7. Article 97 of the Colombian Penal Code provides for punitive damages. ... 18

8. The test cases were all more likely than not committed by the AUC. .......... 18

A. The expert opinion of FBI case agent (ret.) Manuel Ortega. ............ 18

B. Doe 368. ............................................................................................ 21

C. Doe 840. ............................................................................................ 22

D. Doe 265. ............................................................................................ 23

CONCLUSION ......................................................................................................... 25

ii
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TABLE OF AUTHORITIES

CASES

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) ....................................................... 7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................. 1

Bierczynski v. Rogers, 239 A.2d 218 (Del. 1968) .................................................... 1

Cavic v. Grand Bahama Dev. Co., Ltd., 701 F.2d 879 (11th Cir. 1983) .................. 4

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................... 1

Chambers v. St. Mary's School, 82 Ohio St.3d 563, 1998-Ohio-184 ....................... 7

Crosby v. Radenko, 2011-Ohio-4662 (2nd Dist. 2011) ............................................ 8

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ...................... 15

Doe v. Drummond Co., No. 09-1041 (N.D.Ala. Apr. 30, 2010) .............................. 14

EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991) ..................................... 5

Halberstam v. Welch, 705 F2d 472 (D.C. Cir. 1983) ............................................... 9

International Shoe Co. v. Washington, 326 U.S. 310 (1945) .................................... 6

Julin et al v. Chiquita Brands, 08-20641-CIV-MARRA .......................................... 14

Kilberg v. Ne. Airlines, Inc., 172 N.E.2d 526 (N.Y. 1961) ...................................... 8

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) ................................... 5-6

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495 .........,.......... 7

Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75 (1984) ................,........ 7

Milliken v. Meyer, 311 U.S. 457 (1940) .................................................................. 6

Morrison v. National Australia Bank, 561 U.S. 247 (2010) ..................................... 5-6

Mutual Services Inc. Co. v. Frit Industries, Inc.,


358 F33d 1312 (11th Cir. 2004) ............................................................................... 4, 9

Norex Petroleum v. Access Indus. Inc.,

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Case No. 650591/2011 (N.Y. Sup. Ct.) .................................................................... 6

Pennoyer v. Neff, 95 U.S. 714 (1877) ...................................................................... 6

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ............................................ 7

Pond v. Leslein, 72 Ohio St.3d 50, 1995-Ohio-193 .................................................. 8

Romero v. Drummond Co., 552 F.3d 1303 (11 Cir. 2008) ...................................... 14

St. Paul Fire & Marine Insurance Co. v. James G. Davis


Construction Corp., 350 A.2d 751 (D.C. 1976) ........................................................ 2

Straesser-Arnold Co. v. Franklin Sugar Ref. Co.,


8 F.2d 601 (7th Cir. 1925) ........................................................................................ 9

United States v. David, 940 F.2d 722 (1st Cir. 1991) .............................................. 14

United States v. Michel, 588 F.2d 986 (5th Cir. 1979) ............................................ 14

Wachsman ex rel. Wachsman v. Islamic Republic of Iran,


537 F.Supp.2d 85 (2008) .......................................................................................... 7

CONSTITUTION AND FEDERAL STATUTES

Securities and Exchange Act, P.L. 73–291, 48 Stat. 881 (1934) .............................. 5

Alien Tort Statute, 28 U.S.C. § 1350 ........................................................................ 6, 12

Torture Victim Protection Act, 28 U.S.C. § 1350 note ............................................. 9

U.S.A. Patriot Act, P.L. 107-56, 115 Stat. 272 (2001) ............................................. 8

D.C. Code § 16-2701 ................................................................................................ 7

Ohio Rev. Code § 2125.01 ....................................................................................... 8

COLOMBIAN LAWS

Civil Code Article 2344 ............................................................................................ 10

Penal Code Article 97 ............................................................................................... 12, 17

Case SC13594-2015, Supreme Court of Colombia, (Oct. 6, 2015) .......................... 10

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OTHER

Restatement (Second) of Conflict of Laws (1971) .................................................. 9

Restatement (Third) of Foreign Relations Law (1987) ........................................... 3, 4

Restatement (Second) of Torts (2000)....................................................................... 11

Lawrence Collins et. al., 1 Dicey & Morris


on the Conflict of Laws 170 (13th ed. 2000) ............................................................ 9

R. Leflar, American Conflicts Law (3d ed. 1977) .................................................... 8

E. Scoles & P. Hay, Conflict Of Laws (1982) .......................................................... 8

Katherine Florey, State Law, U.S. Power, Foreign Disputes: Understanding


the Extraterritorial Effects of State Law in the Wake of Morrison v. National
Australia Bank, B.U. L. Rev. 535, 539 (2012) ......................................................... 6

v
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FACTUAL SUMMARY

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

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

parties have concluded discovery for common witnesses, expert witnesses, and several dozen

bellwether cases. The Plaintiffs have filed their own Cross Motion for Partial Summary Judgment

on Negligence Per Se. DE 2229-1. In addition, there are pending motions for Partial

Summary Judgment on the Duress Defense, DE 2288, and a pending Motion for Class

Certification. DE 2290. The facts of three test cases are discussed in § 8 infra.

STANDARD OF REVIEW

Summary judgment is appropriate when the evidence presents no genuine dispute as to any

material fact and compels judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). A fact is material if it may affect the outcome of the suit under the governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

SUMMARY OF ARGUMENT

The Defendants' "but-for" causation argument, and related "dominant cause" theory, aren't

found in any Colombian legal code and contradict Article 2344 of the Colombian Civil Code,

which provides for joint and several liability. Plaintiffs cite to a case where a drunk driver ran into

a bus, killing the bus driver and injuring one of the passengers. The injured passenger sued the

bus company, which argued that it couldn't be sued because the drunk driver was mostly

responsible for the accident. The Colombian Supreme Court affirmed the trial court's ruling that

the bus company and drunk driver were jointly and severally liable for the injury, and that the

plaintiff could sue whichever tortfeasor was more convenient. The court found that the Colombian

policy of reparacion integral (integral reparation, or making a party whole) would be advanced

1
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by making it easier for the plaintiff to recover. Likewise, Chiquita is jointly and severally liable

with the AUC, even if the AUC was more responsible. 1

The Defendants also argue that their payments of $1.7 million dollars to the AUC weren't

substantial, and that the Court shouldn't consider evidence of the AUC's arms and drug trafficking

occurring on their property. This is because Chiquita wasn't prosecuted for arms or drug

trafficking, and because the AUC allegedly made so much money from drug trafficking that $1.7

million dollars wasn't substantial. Motion at 5-6. The Court should order a Daubert hearing to

test the reliability of these assertions, which are highly speculative, 2 and flawed because they

ignore the fact that Chiquita didn't just pay the AUC; they paid specific units of the AUC to protect

a small geographic area containing the Defendant's farms.3 The arms and drug trafficking occured

on their property, not everywhere the AUC existed.

1
The same result would be obtained under U.S. law. 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 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.; Restatement (Second) of
Torts § 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.
2
For example, the Defendant claims that Witness Salvatore Mancuso, who appeared in a 60
Minutes story along with Attorney Collingsworth, trafficked more than 6 billion dollars worth of
cocaine himself. Motion, DE 2283 at 5-6. If these figures were accurate, the AUC wouldn't have
had to extort money from anyone.
3
There appears to be no evidence in the record of the number of AUC blocks, or of how much of
the AUC's overall effort was spent protecting the areas containing Chiquita's farms. Based on the
number of homicides attributed to the AUC, it would only be a few percent. In geographic terms,
Urabá is only a small part of the Department of Antioquia, which is one of 32 Departments in
Colombia.
2
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Aside from the Defendants' but-for and substantial assistance arguments, there is no other

conflict of laws, and the Court may apply the forum law. Applying DC's governmental interests

test,4 it should find that the policy interest in enforcing the Patriot Act outweighs any Colombian

policy against unjust enrichment, which wouldn't be advanced by applying it to a U.S. defendant

in a U.S. court. It wouldn't be an overreacfh to apply U.S. law to to the facts of this case. Although

§§ 402 and 403 of the Restatement (Third) of Foreign Relations Law, (hereinafter "Third

Restatement"), apply equally to civil and criminal law, states are more restrained in applying their

criminal than civil laws extraterritorially. The Defendants' conduct took place almost entirely

within the United States, as set forth in the Factual Proffer. It is the Defendant's conduct that's at

issue, not the conduct of the AUC. The Kiobel and Morrison cases a involved the interpretation

of ambiguous federal statutes, and are inapplicable.

Finally, each of the three test cases was more likely than not committed by the Bloque

Bananero of the AUC. This is explained in the Expert Report of Manuel Ortega, filed as Sealed

Exhibit 4. In one case, the victim disobeyed an AUC curfew and was shot while walking at night.

In the second case, the plaintiff identified one of the men who abducted her son from his home, in

front of about eight other witnesses. The third case involved a member of the Union Patriotica, a

left-wing political party, who worked with banana unions, and whose murder was confirmed by

the local AUC commander through an intermediary. The last part of this brief analyzes the facts

and evidence in these cases, including the locations and scope of the AUC's control.

4
The Does 1-2146 Complaint was filed in Ohio, where most of the overt acts described in the
Factual Proffer took place. Ohio law is briefly outlined in § 1(C) infra.
3
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ARGUMENT

1. U.S. law should apply to this motion.

As Plaintiffs argued in their Negligence Per Se Motion, DE 2229-1, the United States has

an enforcement interest in the U.S.A. Patriot Act to prevent and punish the financing of terrorism.

Id. at 3-10. Colombia has no interest in punishing its own citizens with barriers to liability, and

it's policies wouldn't be advanced by applying them to U.S. defendants in U.S. courts. Id.

The burden is on the proponent of foreign law to prove that it applies. Proponents of

foreign law must be able to “credibly argue that a different result would follow if that jurisdiction's

laws were followed.” Mutual Services Inc. Co. v. Frit Industries, Inc., 358 F33d 1312, 1322 (11th

Cir. 2004) “Where either no information, or else insufficient information, has been obtained about

the foreign law, the forum will usually decide the case in accordance with its own local law except

when to do so would not meet the needs of the case or would not be in the interests of justice.” Id.

(citing Cavic v. Grand Bahama Dev. Co., Ltd., 701 F.2d 879, 882 (11th Cir. 1983).

A. U.S. law applied in the underlying criminal case because a substantial part of
the conduct took place in the U.S.

Under § 402 (1)(a) of the Third Restatement,5 the United States has jurisdiction for

"conduct that, wholly or in substantial part, takes place within its territory." The Defendants'

conduct took place almost entirely within the United States, as set forth in the Factual Proffer. See

Plaintiffs Statement of Facts, Exhibit 1, and Factual Proffer, Exhibit 3 attached hereto.6

§ 403 of the Third Restatement sets forth the limits on jurisdiction outlined in § 402. The

test is one of reasonableness. § 403 lists factors to consider, including the links of the activity to

5
Although the Fourth Restatement was recently published, a copy couldn't be easily located.
6
In addition, § 402(3) provides jurisdiction over "conduct outside its territory by persons not its
nationals that is directed against the security of the state." The Defendants' crime was financing
international terorrism. The AUC was put on the Foreign Terrorist Organization list because it is
considered a threat to the national security of the United States.
4
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the regulating state, the connections between the regulating state and the defendants, the character

and importance of the regulation to the regulating state, any reasonable expectations of the parties,

the relation of the regulation to the international system, and the likelihood and extent of any

conflict with the regulations of any other state. Id. Chiquita's headquarters was in Ohio, as well

as Board Meetings, Audit Commitee meetings, and the falsification of accounting records.

Deterring the financing of terrorism is important not only to Ohio, D.C., and the United States, but

also to the international community, including Colombia.

The extraterritorial exercise of criminal jurisdiction is more restricted than civil

jurisdiction. According to the Reporters Notes to the Third Restatement, it is "generally accepted

by enforcement agencies of the United States government that criminal jurisdiction over activity

with substantial foreign elements should be exercised more sparingly than civil jurisdiction over

the same activity, and only upon strong justification." Id. § 403 at 253. The fact that Chiquita was

criminally prosecuted in the U.S., and that Colombia raised no objection, prove that the Court has

jurisdiction under international law.

B. The "touch and concern" test in Kiobel doesn't apply to state tort law claims.

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

Morrison v. National Australia Bank, 561 U.S. 247 (2010) (Morrison); Kiobel v. Royal Dutch

Petroleum Co., 569 U.S. 108 (2013) (Kiobel). Both cases were about ambiguous federal statutes

and held there is a presumption that federal statutes don't apply extraterritorially.

The Morrison case was about whether the fraud provisions of §10(b) of the Securities and

Exchange Act of 1934 applied to fraud planned in the U.S. but occurring on a foreign stock

exchange. The court held that Section 10(b) doesn't provide a cause of action to foreign plaintiffs

suing foreign and American defendants for misconduct in connection with securities traded on

5
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foreign exchanges. 7 Justice Scalia based his analysis on the text of the statute, holding that “unless

there is the affirmative intention of the Congress clearly expressed” to give a statute extraterritorial

effect, “we must presume it is primarily concerned with domestic conditions.” Morrison, 561 U.S.

at *5, (quoting EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). "When

a statute gives no clear indication of an extraterritorial application, it has none." Id.

In Kiobel, Nigerian plaintiffs sued a Dutch corporation under the Alient Tort Statute, 28

U.S.C. § 1350, alleging violations of international law. Citing Morrison and Aramco, Justice

Roberts held that the presumption against extraterritoriality applies to claims under the ATS, and

nothing in the statute rebuts that presumption. Id. at *3-14. The presumption is not rebutted by

the text, history, or purposes of the ATS, and nothing in the text evinces a clear indication of

extraterritorial reach. Id. This line of cases has no application to common law torts.

7
Justice Breyer noted in his concurring opinon in Morrison that "state law ... may apply to the
fraudulent activity alleged here to have occurred in the United States." Morrison, 130 S.Ct. at
2888 (Breyer, J., concurring) For example, in Norex Petroleum v. Access Indus. Inc., Case No.
650591/2011 (N.Y. Sup. Ct.), plaintiffs had alleged securities fraud in violation of Section 10(b)
in federal court. After the federal case was dismissed pursuant to Morrison, the plaintiffs re-filed
in state court, alleging common law fraud. See Katherine Florey, State Law, U.S. Power, Foreign
Disputes: Understanding the Extraterritorial Effects of State Law in the Wake of Morrison v.
National Australia Bank, B.U. L. Rev. 535, 539 (2012) (noting that "Morrison has the perverse
effect of substituting state law for federal law in securities cases involving substantial foreign
contacts.")
The constitutional limits on a state court's power to hear a case with foreign contacts is normally
met when the case has minimum contacts with the forum state for purposes of personal jurisdiction.
This is because the tests for minimum contacts and for constitutionally-sufficient choice of laws
are very similar. Personal jurisdiction requires "certain minimum contacts" with the forum state
"such that the maintenance of the suit does not offend 'traditional notions of fair play and
substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940). This has not always been the law. Historically, a
state could exercise jurisdiction only within its territorial boundaries. Pennoyer v. Neff, 95 U.S.
714 (1877). Following International Shoe, states began enacting long-arm statutes to assert
personal jurisdiction over nonresidents, including aliens. If a state court has in personum
jurisdiction over a defendant, then it has jurisdiction to hear the case.
6
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C. Ohio has the most significant relationship with the Defendants' criminal
conduct.

Nearly all of the Defendantsnduct occured in Ohio. In choice of laws analyses, "a

significant aggregation of contacts, creating state interests, with the parties and the occurrence or

transaction" must exist in order to apply a state's law. Allstate Ins. Co. v. Hague, 449 U.S. 302,

317 (1981); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985). Plaintiffs argued D.C.

law in their Negligence Per Se Motion, DE 2229-1, because the criminal prosecution was in D.C.

District Court, and D.C. is the forum for most of these complaints. 8 However, the arguments about

terrorism and the federal Patriot Act apply to Ohio as well. In other words, applying the choice of

laws analysis of the District of Columbia, the Court may find that Ohio law applies.

In Ohio, to prove negligence, a plaintiff must prove: (1) the defendant owed her a duty of

care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result of the

defendant's breach, the plaintiff suffered injury. Menifee v. Ohio Welding Products, Inc., 15 Ohio

St.3d 75, 77 (1984). Negligence per se allows a plaintiff to prove the first two prongs of the

negligence test, duty and breach of duty, simply by showing that the defendant committed or

omitted a specific act prohibited or required by statute. Lang v. Holly Hill Motel, Inc., 122 Ohio

St.3d 120, 2009-Ohio-2495, ¶15. Thus, in situations where a statutory violation constitutes

negligence per se, the plaintiff will be considered to have "conclusively established that the

defendant breached the duty that he or she owed to the plaintiff." Chambers v. St. Mary's School,

8
The wrongful death statute in the District of Columbia, D.C. Code § 16-2701, applies to wrongful
deaths by "injur[ies] done or happening within the limits of the District..." Id. For deaths occuring
outside the District, D.C. Courts will use another state's wrongful death statute. For example, in
Wachsman ex rel. Wachsman v. Islamic Republic of Iran, 537 F.Supp.2d 85 (2008), a U.S. citizen
was abducted and killed by members of a terrorist group in Israel. Although the Plaintiff resided
in Israel, the US interest guaranteeing redress to U.S. citizens was paramount. The court applied
D.C. law to the intentional infliction of emotional distress and survival claims. However, since
geographical limitations in DC wrongful death statute would have prevented recovery, the court
applied the Israeli wrongful death statute.
7
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82 Ohio St.3d 563, 565, 1998-Ohio-184. Plaintiff must still, however, prove proximate cause and

damages. Pond v. Leslein, 72 Ohio St.3d 50, 53, 1995-Ohio-193. The intervention of a responsible

human agency between a wrongful act and an injury does not absolve a defendant from liability if

that defendant's prior negligence and the negligence of the intervening agency co-operated in

proximately causing the injury. Crosby v. Radenko, 2011-Ohio-4662 (2nd Dist. 2011) at 8. If the

original negligence continues to the time of the injury and contributes substantially thereto in

conjunction with the intervening act, each may be a proximate, concurring cause for which full

liability may be imposed. Id. The wrongful death statute of Ohio contains no geographical

limitations. It says:

When death is caused by a wrongful act, neglect, or default in another state or foreign
country, for which a right to maintain an action and recover damages is given by a statute
of such other state or foreign country, such right of action may be enforced in this state.
Every such action shall be commenced within the time prescribed for the commencement
of such actions by the statute of such other state or foreign country. 9

Ohio Rev. Code § 2125.01. Here, the interests of the Ohio, District of Columbia, and the United

States as a whole, in enforcing the Patriot Act outweigh any Colombian interest.

D. Damages are not substantive law, and are governed by the law of the forum.

Any question of damages is one of remedies, not substantive law. A legal remedy is the

means with which a court enforces a right. Lex fori, or the law of the forum, is used exclusively

to resolve procedural issues, including issues of remedy. See R. Leflar, American Conflicts Law

§ 126 (3d ed. 1977);10 Kilberg v. Ne. Airlines, Inc., 172 N.E.2d 526, 529 (N.Y. 1961) ("As to

conflict of laws rules it is of course settled that the law of the forum is usually in control as to

9
This would appear to incorporate the Colombian statutes of limitations. The Court has previously
ruled that NY and DC statutes of limitations apply because stautes of limitations are procedural.
Chiquita is not seeking to dismiss any cases on statutes of limitations grounds.
10
Courts also apply the law of the forum to matters of public law, such as in the underlying criminal
case. See E. Scoles & P. Hay, Conflict Of Laws § 3.17 (1982).
8
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procedures including remedies."); Straesser-Arnold Co. v. Franklin Sugar Ref. Co., 8 F.2d 601

(C.C.A. 7th, 1925) (statute affected the remedy and was governed by the law of the forum.).

The Restatement (Second) of Conflict of Laws (1971) divides damages into types, and

amounts. "Heads of damages, the items that a court or jury may include in computing the amount

awarded to the plaintiff, are universally regarded as substantive." Restatement (Second) of

Conflict of Laws (1971) § 171 cmt. a. The quantification of damages under these heads, however,

is regarded as “procedural” and forum standards apply. Id. cmt. f (stating that “[t]he forum will

follow its own local practices in determining whether the damages awarded by a jury are

excessive”).11

2. The Court may use the law of the forum to fill any gaps in Colombian law.

The Defendant argues that Colombian law would consider this to be a non-contractual

dispute between parties, for which there are no standards or individual torts that have elements to

be proven. See Motion at § III (2). The Defendant would have the jury instructions omit mention

of duty, breach, cause, proximate cause, and damages, and only ask the jury to determine whether

the victims would probably have died anyway without Chiquita's support. Id. Instead, the Court

should apply forum law except where a party can “credibly argue that a different result would

follow if that jurisdiction's laws were followed.” Mutual Services, 358 F.3d at 1322. The only

real issue identified by the Defendants is their theory of but-for causation. For other issues, the

Court should apply U.S. law. 12

11
See Lawrence Collins et. al., 1 Dicey & Morris on the Conflict of Laws 170 (13th ed. 2000)
(stating that “[a] distinction must be drawn between remoteness and heads of damages, which are
questions of substance governed by the lex causae, and the measure or quantification of damages,
which is a question of procedure governed by the lex fori”).
12
For Plaintiffs' TVPA claims, the Court may need to apply federal common law to fill the gaps,
as it would if the Plaintiffs' claims were based on the law of a U.S. state, instead of Colombia. For
example, all parties appear to agree that the federal standard for aiding and abetting is from
Halberstam v. Welch, 705 F2d 472 (D.C. Cir. 1983).
9
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3. Under Colombian law, the Defendants would be jointly and severally liable with the
AUC.

The Defendant argues that "but-for" causation is required by Colombian law. That is,

Plaintiffs must show that without Chiquita's money, the murders in this case wouldn't have been

committed. However, Article 2344 of the Colombian Civil Code provides for joint and several

liability when there are joint tortfeasors. It says:

Article 2344. Joint and several liability. If a crime or wrong has been committed by two
or more people, each one of them will be jointly responsible for all damages resulting from
the same crime or wrong, other than the exceptions of articles 2350 and 2355.

See Exhibit 2 attached hereto, certified translations of Colombian legal code sections. The

Colombian joint and several liability rule is illustrated by a simple traffic accident case. In Case

SC13594-2015, attached hereto as Exhibit 13 and translated in pertinent part in Exhibit 2, a

drunken driver disobeyed the traffic signs and ran into a minibus, killing the minibus driver and

injuring one of the passengers. Id. at 4-5. The drunk driver was investigated for homicide. Id.

The passenger sued the bus company, but not the drunk driver, who was mostly responsible for

the accident. Id. The defendant bus company opposed the claims and attributed the responsibility

solely to the drunk driver. Id. The trial court declared both the drunk driver and the bus company

jointly and severally liable, and ordered judgment for loss of profits and moral damages, in the

equivalent of 590 and 250 monthly legal minimum wages. Id. The decision was affirmed on

appeal by the Supreme Court of Colombia as follows:

4.2.1. It is incontrovertible, as provided for in Article 2344 of the Civil Code, in terms of
extracontractual civil liability, that as a general principle, when there are a plurality of
obligated subjects, passive solidarity is predicated, regardless of whether the same harmful
result is attributed to one or more behaviors separable from each other.

The last hypothesis concerns the so-called co-authorship, in which case, according to the
Court, the "(...) indemnification duty must be classified as concurrent and, therefore, vis-
à-vis the victim, that in truth there are are several persons responsible who are strangers to

10
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her and for which she has a real option that allows her to sue them all or the one that,
according to her interests, she deems more convenient (...) "

***

In addition, the possibility that the victim may sue all or each one of those jointly and
severally liable, is intended to ensure the integral reparation of the damage caused.

Id. at 11. Id. The Restatement (Second) of Torts (2000) also contradicts Dr. Santos' "predominant

cause" theory:

In order that a negligent actor may be liable for harm resulting to another from his conduct,
it is only necessary that it be a legal cause of the harm. It is not necessary that it be the
cause, using the word 'the' as meaning the sole and even the predominant cause.

(bold added, italics in original) The defendants' conception of a requirement of a "dominant cause"

sounds a lot like our concept of proximate cause, given that Colombian tort law is so vague. Any

incident could have a myriad of causes, and some limitation must be put on it.13

Although the "but for" test is a test of causation, it is not a test of non-causation. Imagine

that A, B, and C each push with equal force on the plaintiff's car, and by their combined effort,

push the car over the edge of a cliff. Applying the but-for test negatively, the result is that neither

of A, B nor C was a cause of the car's being pushed over the cliff. This problem often arises in

medical malpractice cases, where multiple conditions or mistakes could all be said to have

contributed to an injury.

Although the Defendants haven't challenged any plaintiffs' standing to sue, all are next of

kin and represent not only their own interests, but those of decedent and of the estate. The expert

13
Dr. Santos quotes from another opinion that "even though the calculation of the contribution of
each one of the participants to the generation of the damage, and through it, the moderation of the
amount to be compensated, follows the judge's arbitro juris, the analysis thereof must not be
arbitrary or subjective, because regarding the victim, it will have to examine, besides the fault, the
causality factor." Ballesteros Report at 11. This appears to contradict his argument that only the
dominant tortfeasor may be liable. The apportioning of damages also contradicts Article 2344 on
joint and several liability, where all of the tortfeasors are liable for all of the damages.
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reports of Manuel Antonio Exhavarria Quiroz and Omaira Palomeque Cuesta, attached hereto as

Sealed Exhibits 11 and 12,14 respectively, set forth the applicable Colombian law on legal heirs

and their rights, common law marriages, paternity, powers of attorney, a general background on

moral damages, and the limit of 1000 salaries imposed by Article 97 of the Penal Code. Both

experts calculated compensatory damges for each of counsel's six test cases. Although I translated

the reports myself, Exhibit 2 includes the laws and case extracts, translated by Bert Ortiz, who is

authorized by the Colombian Ministry of Exterior Relations to translate court documents.

In addition, Mr. Ortiz has translated sections of the Penal Code pertaining to the armed

conflict. Anyone who, in the context and conduct of an armed conflict, murders a protected person,

such as a civilian, may be prosecuted for homicide under Article 135 of the Penal Code. In addition

to the prison term, the guilty party may pay a fine up to 5,000 salaries, although this is not paid to

the victim. Likewise, Colombia has special laws for injury of protected persons (Article 136),

torture (Article 137, with a fine up to 1000 salaries), kidnapping (Article 138, with a fine up to

1000 salaries), and aggravated kidnapping (Article 139 , with a fine up to 50000 salaries). See

Exhibit 2.

A. The Colombian penal code provides for compensation to crime victims.

If this case had been brought in Colombia, the plaintiffs would have been compensated

according to Article 97 of the Penal Code of Colombia. See Exhibit 2 attached hereto, translations

of Colombian laws. Article 97 provides that

Article 97. Damage Compensation In relation to the harm resulting from the punishable
behavior, the judge shall set as compensation, an amount equivalent in national currency,
up to a thousand (1000) minimum statutory monthly minimum wages.

14
Redacted versions of the expert reports of these two individuals, as well as Manuel Ortega, are
being filed in the public record, with the same exhibit numbers. The plaintiffs' documents are only
filed under seal, as Exhibits 5-10.
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This valuation shall be carried based on factors such as the nature of the conduct and the
extent of the damage caused.

The material damages must be proven within the process.

See Exhibit 2 Translated laws at 1, Exhibit 11 Echavarria Declaration at 6. The Court may award

damages based on lost income, "moral damages," which is comparable to loss of consortium, and

"the nature of the conduct," up to a statutory minimum of 1000 monthly salaries 15 per claimant.

B. The Court already rejected Defendants' theory that Plaintiffs must show
specific intent.

Chiquita argues that "Plaintiffs’ negligence-based claims (see Compl. ¶¶ 243-66

(negligence, negligent hiring, negligent supervision)) all rest on the insufficient and conclusory

presumption that Chiquita “employed” the particular AUC members involved in each of the

alleged killings, and further fail insofar as they allege no relationship between any of the victims

and Chiquita from which a “duty” owed by Chiquita to the victims might arise. Id. at 23. Chiquita

misunderstands the elements of negligence. A drunk driver owes a duty to pedestrians, even

though he has no other relationship with them. A chemical plant has a duty to its neighbors to not

pollute the environment. Chuiquita's payments and other encouragement provided to the AUC

created a general risk to the public, and the question is whether the injuries were forseeable. The

same logic applies to aiding and abetting and conspiracy claims. The Court has already rejected

this argument, in the context of aiding and abetting liability. DE 412 at 57-58. The Court also

analyzed a similar issue, whether plaintiffs' must allege a symbotic relationship with each

individual act of torture and killing of Plaintiffs’ relatives.16 Id. at 38. Similarly, the Individual

15
At current rates, the Colombian minimum wage is 828,116 pesos per month. One dollar is worth
3,137 Colombian pesos, so 1,000 monthly salaries at minimum wage equates to $263,983. dollars.
16
"This Court finds that to plead state action at the motion-to-dismiss stage, Plaintiffs must allege
a symbiotic relationship between the Colombian government and the AUC with respect to the
AUC’s campaign of torture and killing of civilians in the banana-growing regions, not specific
government involvement with each individual act of torture and killing of Plaintiffs’ relatives.
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Defendants make the same argument, that they were not involved in the particular murders and

place great emphasis on the dates at which each allegedly learned various information and did

various things. See DE 2289 at 4. However “[w]hen one knowingly joins a conspiracy in progress

he is responsible for acts of the conspiracy occurring before or after his association with it.” United

States v. Michel, 588 F.2d 986 (5th Cir. 1979); United States v. David, 940 F.2d 722, 735 (1st Cir.

1991) (“When, as here, a miscreant opts to join an ongoing conspiracy, the law holds him

accountable for the earlier acts of his coconspirators in furtherance of the conspiracy.”).

4. Defendants waived the duress defense in the Factual Proffer; collateral estoppel
should apply to the Court's ruling in Julin.

Chiquita pled guilty and cannot assert a defense that was waived by the plea. The Court

need only determine which issues were actually determined and necessary for Chiquita's

conviction, and apply principles of collateral estoppel to them. Similarly, the Court should apply

collateral estoppel to its Order granting the Julin plaintiffs' Motion in Limine on the duress defense,

since the extortion threats are just as remote and abstract. This argument was briefed in Plaintiffs'

Response in Support of Motion for Partial Summary Judgment on the Duress Defense. DE 2315.

The only new fact that may not have been considered before is Chiquita's meeting with

infamous AUC commander Carlos Castano. Defendant Keiser and Banadex attorney Reinaldo

Escobar voluntarily went to Carlos Castano's house unarmed to discuss Chiquita's supporting the

AUC instead of the FARC. See Castano Meeting Memo, Sealed Exhibit 14. The meeting between

Keiser and Castano could also be construed as an agreement to form a conspiracy, since Chiquita

Such allegations suffice to show a “relationship [that] involve[s] the subject of the complaint.”
Romero, 552 F.3d at 1317; see also Drummond II, No. 09-1041, DE 43, Slip op. at 12-13 (finding
that the plaintiffs sufficiently alleged a symbiotic relationship with respect to the killings alleged
in the complaint based on allegations that the defendant paid the AUC with the intent to assist the
AUC’s war crimes and with the knowledge that the AUC would direct its war efforts in the areas
in which the plaintiffs’ decedents lived.)." Opinion and Order, DE 412 at 38.

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changed its payment method from paying in cash, to laundering money through front companies.

Id. However, for the same reasons as in Julin, this one meeting is no justification for years or

decades of payments.

The plaintiffs have identified a witness to the bus massacre incident who refutes Chiquita's

version of this event entirely. Chiquita's employees were attacked by the FARC just after the farm

manager stopped paying the FARC and began paying the AUC. From then on, the AUC protected

the farm, and even used it as a base to store uniforms and other military supplies. CQB ¶212. His

declaration is given as Sealed Exhibit 20. This evidence will show that rather than being extorted

by the AUC, Chiquita was protected by them.

5. Chiquita's support of the AUC was substantial.

The Court may deny the motion without trying to determine the AUC's income or weighing

evidence of drug and arms trafficking, because $1.7 million dollars in payments is substantial. The

Defendant's arguments minimizing their role in the shipment of thousands of machine guns into

Colombia, and tons of cocaine out of Colombia, miss the point. The fact that these things were

going on right under the Defendants' noses proves how easily the AUC could access the

Defendant's property.

The Defendants expert's methodology is flawed and his opinions should be tested in a

hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and then

rejected. The Defendant argues that "Although publicly representing itself as a hierarchical

structure of a military nature, the AUC was, in reality, a loose confederation of semi-autonomous

groups which maintained financial and operational autonomy because the AUC lacked a central

command structure capable of centralized resource control and dispersion." Chiquita Statement

of Facts, DE 2282 at ¶100. However, the expert's calculations are based on the AUC's operations

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all across the country, and there were dozens of AUC blocks. The Urabá area of Colombia is only

about 30 x 50 miles in size, a tiny part of the territory of Colombia. There were dozens of AUC

blocks. About half the Defendant's payments were to the Bloque Bananero that protected their

farms in Uraba, and the other half went to an AUC unit that protected their farms in Santa Marta.

In addtion, Chiquita makes speculative calculations of the AUC's income from drug trafficking on

a national level. These are based on reports by Jane's Intelligence Weekly and the International

Crisis Group. See Sanchez Report at 195 et seq. The expert is just copying text from published

articles and applied no analytical methodology of his own. Plaintiffs' expert, Manuel Ortega

worked on counternarcotics operations of the FBI in Colombia for decades, and can testify about

all this from personal knowledge.

Chiquita made numerous payments to the AUC and guerrilla groups before 1997. Exhibit

15 contains a series of annual memos from 1991-1999 entitled "Accounting for Sensitive

Payments." Exhibit 16 is a translation of a memorandum describing the security situation and

various illegal armed groups. These exhibits were designated as #54 and #53 in the Rule 30(b)(6)

deposition of Ms. Howland and also used in the Julin case. Michael Evans of the Natonal Security

Archive, a non-governmental organization, analyzed the payments based on documents obtained

through the Freedom of Information Act. Two of his Briefing Books, #589 and #592, are filed as

Exhibits 17 and 18.

Finally, although state action is no relevant to the TVPA claims, whatever Colombia's

national policies may have been, in Uraba, the 17th Brigade of the Colombian army collaborated

with the AUC in its campaign. General Rito del Rio Alejo, commander of the 17th Brigade, spent

years in a military prison for collaborating with the AUC. A Court of Appeals decision discussing

the facts of his case, in Spanish, is given as Exhibit 19.

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6. The Individual Defendants whose motions to dismiss were denied should also be
denied summary judgment.

The Court denied a motion to dismiss made by several individual defendants, based on

uncontested facts from the Factual Proffer. DE 1110. The Court first found that Plaintiffs had

alleged sufficient facts to prove the Individual Defendants' mens reas:

As to defendants Freidheim, Hills, Olson, Kistinger, Aguirre, Keiser and Tsacalis,


Plaintiffs allege specific facts providing a reasonable basis for inferring their knowledge of
the fact of Chiquita’s payments to the AUC, as well as their knowledge of the status of the
AUC as a violent terrorist organization engaged in rampant human rights abuses in the
banana-growing regions controlled by Chiquita’s Colombian subsidiary. As to these
Defendants, the complaints provide sufficient detail respecting their direct involvement in
forming the illicit agreement with AUC (Keiser), presence at Board meetings when the
AUC payment subject was discussed in conjunction with AUC’s status as an FTO
(Freidheim, Hills, Olson); attendance at the Washington D.C. meeting where the DOJ and
outside counsel specifically advised that AUC payments were illegal and must stop
(Freidheim, Hills, Olson); support or participation in decisions to continue the payments
despite this knowledge (Freidheim, Hills, Olson – the three alleged to concur in the “just
let them sue us” policy; Kistinger, who allegedly instructed employees in Cincinnati
headquarters to continue payments five days after the Washington meeting; Aguirre, who
allegedly approved continuation of the payments after taking over as CEO in 2002) and
involvement in activity designed to disguise or conceal the AUC payments (Olson,
Tsacalis, Keiser).

These factual allegations support a reasonable inference that these Chiquita executives
knew that their continued support of paramilitaries in Colombia would increase the
likelihood of more human rights offenses and extrajudicial killings committed by the AUC
in the banana-growing regions where plaintiffs’ relatives resided, and support the inference
that the Individual Defendants acted with purpose and knowledge that those offenses would
occur.

DE 1110 at 26-27. Nearly everything relied on by the Court is from the Factual Proffer and was

admitted by Defendant Chiquita Brands. The Court also found that their specific acts, also based

on the Factual Proffer, satisfied the actus reus requirement:

These alleged acts of decision-making by these Individual Defendants, acting from within
the United States, caused substantial amounts of money and material support to be supplied
to the AUC from 1995 to 2004, putting the AUC in a position to continue and intensify its
terror campaign in the banana-growing regions long after it was formally designated a
foreign terrorist organization by the United States. This activity readily meets the

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definition of “substantial assistance” for purposes of satisfying the actus reus element of
aiding and abetting liability.

Id. at 27-28. The Factual Proffer alone provides a sufficient basis to defeat each of these Individual

Defendants' Motions for Summary Judgment.17

7. Article 97 of the Colombian Penal Code provides for punitive damages.

The Defendants' argument that punitive damages aren't available under Colombian law is

premature, and contradicts Article 97 of Colombian Penal Code.

Artiícle 97. Compensation for damages. In relation to the damage derived from criminal
conduct the judge may award as damages, a sum equivalent, in national money, up to one
thousand (1000) monthly salaries at the minimum wage.

This calculation will be made taking into account factors such as the nature of the conduct
and the magnitude of the damage caused.

See Translations, Exhibit 2. (emphasis added) Since Plaintiffs' are crime victims, under

Colombian law, the damages would be proportional to the "nature of the conduct," but would be

limited to 1000 monthly salaries at the Colombian minimum wage.

8. The three test cases were all more likely than not committed by the AUC.

A. The expert opinion of FBI case agent (ret.) Manuel Ortega

Manuel Ortega worked as a Special Agent for the FBI from 1986 to 2012. Mr. Ortega's

work focused on drug trafficking and drug trafficking organizations in Colombia. He is familiar

with the history and operations of the AUC, and has conducted interviews of Herbert Veloza

Garcia, Rodrigo Tovar Pupo, and others. He was the lead investigator in the prosecution of this

case, and spent about six years investigating Chiquita’s payments to the AUC. See Sealed Exhibit,

17
In our Opposition to the Individual Defendants' Motions to Dismiss, I outlined the evidence
against each of the Individuals A-J based solely on the Factual Proffer. DE 820. Cyrus Friedheim
is Individual A, Robert Olson is Individual C, Robert Kistinger is Individual D, and John Ordman
is Individual J. Since these facts were all admitted by Chiquita, the Plaintiffs shouldn't have to
show anything else for summary judgment.
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Expert Report of Manual Ortega at 3-5. Mr. Ortega can testify from personal knowledge about the

AUC's motives and modus operandi, and relied on published reports to determine the geographic

and temporal scope of the AUC's campaign.

Mr. Ortega first noted that the six homicides he analyzed occured in the context of a

paramilitary campaign of murder and torture aimed at civilian supporters of left-wing political

organizations, which were seen as supportive of the FARC guerrillas. Id. at 6. The murders

occurred in one of the most violent regions of the conflict, Urabá, which is also where the

Defendant's Colombian subsidiary Banadex was located. Id. He saw no evidence that any of the

six victims were collaborating with the guerrillas or were armed. Id. In several cases, the victim

wasn't the only person in the family who was murdered by the paramilitaries. Id. This is consistent

with the paramilitaries' belief that entire families supported the guerrillas. Id.

At the time, the Colombian authorities were unable or unwilling to investigate the

thousands of murders occuring in Urabá. Id. This was because thel public was often too frightened

to cooperate with the police, the reputation for corruption of the Colombian justice system, and

the fact that army and police officers often collaborated with the paramilitaries or were members.

Id. He concluded that all of the cases he reviewed, including these three, were probably committed

by the AUC. Id.

The locations of the murders were important in determining responsibility. They all

occurred in urban areas in Apartado and Turbo, in Uraba. Id. at 15. These towns were controlled

by the AUC between 1995 and 1997, the range of dates of the cases reviewed. Id. They were

controlled by the Bloque Bananero of the AUC, with Turbo under the control of Ever Veloza

Garcia (HH), and in Apartado under the control of Raul Hasbun. Id. The only armed groups that

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operated in urban areas at that time where members of the AUC. Id. It would be highly unlikely

for groups of common criminals to operate in an area controlled by the AUC. Id.

The AUC used distinctive modus operandi, that distingiush their crimes from those of the

FARC or of common criminals. The AUC would generally patrol urban areas on motorcycles,

with one person driving the motorcycle and the secound rider seated facing backwards, armed with

an assault rifle. Id. at 16. When tasked with an operation, they would generally kidnap the target

and kill them in another location. Id. Depending the message their commanders wanted to send,

they would either cause the body to disappear or leave it to be found. Id. It was common practice

to take the victim's ID card as proof of the mission's completion. Id. The most common signature

of an execution is a gunshot wound to the victim's head. Id. To date, the bodies of many victims

of this conflict have yet to be found. Id.

Mr. Ortega also relied on massacre statistics published by the National Center for Historical

Memory, an agency of the Colombian government. Id. at 17. Of the 1982 massacres documented

in all of Colombia between 1980 and 2012, 1166 were committed by the paramilitaries, 343 by the

guerrillas, 158 by the Colombian military, and 295 which remained unsolved. Id. Between 1981

and 2012, 16,346 incidents of selective assassination produced 23,161 victims, of which 8,903

(38%) were committed by paramilitaries, 3,899 (16.8%) by the guerrillas, 6,406 (27.7% ) by

unknown groups, 2,339 (10.1%) by the Colombian military, 1,511 (6.5%) by unknown individuals,

and the remainder committed by other groups or by more than one group. Id. These figures show

that, on a national level, the paramiltiaries killed more than twice as many people as the guerrillas.

Id. However, when territorial control is considered, the vast majority of these crimes were

committed by the group in control. Id.

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B. Doe 368

The victim was killed in 1997 as he returned from watching a soccer game on a projection

screen in a local park in Chigorodo, Colombia. Ortega Report at 10. The victim worked on

several banana plantations as an independent contractor, including Banafinca and El Retiro, which

was owned by Banadex and one of the farms appearing in records delivered to the Colombian

fiscalía by paramilitary Raul Hasbun. Id.

The AUC had imposed a curfew that prohibited anyone from leaving their house at night.

Id. The victim's family implored him not to go and to respect the curfew, but the victim ignored

the advice and went to watch the game anyway. Id. When the victim was on his way home, as he

passed a gas station, two men arrived, called him by his name, and then shot him in the back when

he ignored them. Id. The victim was almost deaf and the plaintiff thinks that he may not have

heard them. Id. The paramilitaries took the victim's identification card. Id. The murder was

witnessed by several people including a woman who observed the murder from the balcony of her

home, and told the details to the plaintiff. Id. Several other people were killed during the same

period of time for defying the curfew. Id. The plaintiff was recognized as a war crimes victim by

Accion Social, and received benefits. Id.

Documentary evidence of the murder is filed under seal as Sealed Exhibit 5 to this

Opposition. English translations are filed under seal as Sealed Exhibit 6. This includes the victim's

death certificate (WOLF000105), a letter from Medicina Legal, the national forensic agency

(WOLF000106), a letter from the prosecutor's office (WOLF000107), a sworn declaration

regarding family relations (WOLF000111), another letter from the prosecutor's office

(WOLF000114), a letter from Acción Sociál, the USAID-sponsored relief agency for war crimes

victims (WOLF000117-119), a letter from the Unidad para la Atencion y Reparacion Integral a las

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Victimas (WOLF000120), another letter from Accion Social (WOLF000121) and a signed and

stamped request from the victim for benefits from Accion Social (WOLF000122). These

documents were translated into English by Bert Ortiz, who is licensed by the Colombian Ministry

of Exterior Relations to translate legal documents, in Exhibit 6.

Excerpts from the deposition of Doe 368 were previously filed under seal as Sealed Exhbit

3 to Opposition to Defendants' Motion to Preclude Continued Use of Pseudonyms. DE 2276.

Although the Plaintiff did describe the incident in her deposition, in this excerpt she only describes

the danger of participating in this lawsuit, and her interaction with Accion Social and the Justice

and Peace. Id.

C. Doe 840

The victim was taken from his home and murdered in 2001. Ortega Report at 13. At

around 3:30 AM, five armed men arrived at victim’s home, kidnapped him, and shot him four

blocks away. Id. The family of about eight people were home and saw the abduction. Id. They

did not see the murder, but heard the shots and then found the body. Id. The victim was a

professional soldier in the Colombian army. Id. This murder occurred in Apartado at a time when

the AUC killed thousands of people. Id.

The plaintiff recognized one of the men who abducted the victim, and named him in her

deposition. See Transcript Excerpts, filed under seal as DE 2274 at 45. She stated that he is a

known AUC commander and is in prison for another murder. Id. Another five members of the

plaintiffs' family were also killed, and two were raped. She believes that all these crimes were

committed by the AUC. Id. The plaintiff was recognized as a victim by Accion Social. Id.

Documentary evidence of the murder is filed under seal as Sealed Exhibit 7 to this

Opposition. English translations are filed under seal as Sealed Exhibit 8. This includes the victim's

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death certificate (WOLF000310), a letter from Accion Social (WOLF000314), another letter from

Accion Social (WOLF000315), a letter from the prosecutor's office (WOLF000317), as letter from

the Commission of Justice and Peace (WOLF000318-319), and the victim's birth certificate

(WOLF000325). In addtion, the birth certificate of the plaintiff's daughter, of the plaintiff, and of

her spouse, although they are not Bates-numbered. These documents have also been translated

into English by Bert Ortiz, licensed by the Colombian Ministry of Exterior Relations to translate

legal documents, in Exhibit 8.

Excerpts from the deposition of Doe 840 were previously filed under seal as Sealed Exhbit

1 to Opposition to Defendants' Motion to Preclude Continued Use of Pseudonyms. DE 2274 She

saw the victim's abduction and named one of the perpetrators. Id. at 45. She also testified that

numerous other family members had been murdered and raped by the AUC. Id. at 16.

On August 24, 2018, Plaintiff Doe 840 died of natural causes. She had been deposed in

Fort Lauderdale, FL on September 28, 2017. On September 24, 2018, counsel filed a Motion for

Substitution, which the court denied and re-ordered Plaintiff to file with certified translations of

the Colombian laws that were cited. DE 2124. Counsel is simultaneously filing a Renewed Motion

for Subsitition for this case.

D. Doe 265

The victim worked in a political office and traveled to banana farms to represent the

interests of the workers. Id. at 7. His work was to educate the workers of their rights as workers.

Id. The victim was also also in a leadership role the Unión Patriótica (UP), a political party

associated with the FARC. Id.

The victim was kidnapped from an urban area and later killed by his abductors. Id. The

victim had been warned that two men had arrived on motorcycles and were looking for him, and

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told the plaintiffs that they must be the paramilitaries. Id. After the murder, the plaintiff believed

she was being followed, and contacted the local AUC commander through an intermediary, to tell

them that she was not involved in her husband's political activities. Id. After contacting the

commander, the intermediary told the victim's wife that the AUC did not consider her a target and

she was no longer followed. Id.

The plaintiff was recognized as a war crime victim by Accion Social, a USAID-sponsored

program for war crimes victims. Id. She had also has several other encounters with the AUC,

including paying them to not kill her brother. Id. This murder occurred in Apartado at a time

when the AUC killed thousands of suspected guerrilla sympathizers. Id.

Documentary evidence of the murder is filed under seal as Sealed Exhibit 9 to this

Opposition. This includes the victim's death certificate (WOLF000681), a letter from Medicina

Legal (WOLF000682), a certificate from the prosecutor's office (WOLF000683), a letter from the

Commission of Justice and Peace (WOLF000686-687), and a resolution passed by the victim's

labor union. (WOLF000688). These documents have also been translated into English by Bert

Ortiz, who is licensed by the Colombian Ministry of Exterior Relations to translate legal

documents, in Exhibit 10.

Excerpts from the deposition of Doe 265 were previously filed under seal as Sealed Exhbit

2 to Opposition to Defendants' Motion to Preclude Continued Use of Pseudonyms. DE 2275. The

Plaintiff describes various motives for the murder, and how she contacted a local AUC commander

through an intermediary to ensure that she herself wasn't one of their targets. Id.

This murder occurred in 1996. The plaintiff doesn't have a claim against the corporation,

but only claims against individual defendants. The Court granted counsel's motion to decide three

test cases from the Does 1-976 complaint in Summary Judgment, and counsel thought this was

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was in that group. It is included here because the Defendant has moved to dismiss it in it's Motion

for Summary Judgment. DE 2283 at 15. This may also make a good test case, and the defendants

have sought to dismiss it in their motions.

CONCLUSION

For the foregoing reasons, the Court should DENY summary judgment to the Defendants.

Respectfully submitted,

/s/ Paul Wolf


_______________________
Paul Wolf, D.C. Bar #480285
Attorney for Plaintiffs
PO Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com

March 15, 2019

Certificate of Service

I hereby certify that on this 15th day of March, 2019, I filed the foregoing document with
the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf


_____________
Paul Wolf

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