Case 0:08-md-01916-KAM Document 2922 Entered on FLSD Docket 06/06/2021 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
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)
13-80146-CIV-MARRA (D.C. Action) (Does 1-98)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)
__________________________________________________/

Response to Order [DE 2912] on Plaintiff De-Duplication

On April 28, 2021, the Court ordered that "Plaintiffs in the above-captioned cases shall

submit under seal a roster of the true names of all Plaintiffs identified in these actions along with

their corresponding Doe designations and decedents, clearly indicated by line item, in addition to

a cross-reference indicating, where applicable, where the claimants in one complaint have also

appeared as Plaintiffs in any other complaint." DE 2892 On May 11, 2021, the Roster was

submitted as Sealed Exhibit 4 to the Response DE 2906, along with the reasoning and materials

used to identify the duplicates. See DE 2904-2907 [sealed].

On May 17, 2021, the Court issued a second Order directing all lead counsel to file

statements with the Court, within 15 days indicating their position on client representation in the

cases of claimed overlap. DE 2912. The Court further Ordered that within 20 days, the parties

shall simultaneously exchange copies of the underlying attorney-client contracts. The deadline

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to do this is today. Counsel is serving this information on SDSBS, Earthrights, and Mr. Reiter

today, as described in the Certificate of Service.

On June 1, 2021, Searcy Denney Scarola Barnhardt & Shipley PA filed a Notice of

Compliance with Court Order re: "Duplicate Claims," disputing the representation in about 40

cases. DE 2918. On the same date, counsel for the "New Jersey" plaintiffs filed their response,

identifying about 22 duplicate cases. DE 2920. Both groups took the position that claims

brought by different legal heirs are not duplicates.

Undersigned counsel conferred with the lead counsel for each group before making this

filing. Mr. Reiter stated that he needed until Monday to file his response. See Exhibit 5 at 2. We

consent to the request for more time. Attorney Wichmann responded that Tom Girardi is not

involved in the Carrizosa cases. His response, and previous attempts to contact him, are also in

Exhibit 5. Attorney Scarola of SDSBS maintained his position that different legal heirs could

sue separately, and his understanding (which matches mine) that there was an informal

agreement among counsel to honor the first attorney-client contract signed, unless there was

some other evidence that the person wanted to change attorneys. Id.

1. The first contract establishes an attorney-client relationship.

The first contract signed by a plaintiff establishes an attorney-client relationship and

prohibits other attorneys from contacting them, pursuant to Rule 4-4.2 of the Florida Rules of

Professional Conduct, and parallel rules in other states. Rule 4-4.2 (a) states that:

(a) In representing a client, a lawyer must not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the
foregoing, a lawyer may, without such prior consent, communicate with another’s client
to meet the requirements of any court rule, statute or contract requiring notice or service
of process directly on a person, in which event the communication is strictly restricted to

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that required by the court rule, statute or contract, and a copy must be provided to the
person’s lawyer.

The comments to Rule 4-4.2 state that "This rule contributes to the proper functioning of the

legal system by protecting a person who has chosen to be represented by a lawyer in a matter

against possible overreaching by other lawyers who are participating in the matter, interference

by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of

information relating to the representation. This rule applies to communications with any person

who is represented by counsel concerning the matter to which the communication relates. The

rule applies even though the represented person initiates or consents to the communication. A

lawyer must immediately terminate communication with a person if, after commencing

communication, the lawyer learns that the person is one with whom communication is not

permitted by this rule."

Although undersigned counsel recalls an agreement at least tentatively reached, for

counsel to honor the first contract signed by any attorney, there doesn't seem to be any evidence

of it. Attorney Scarola's summary of a meeting on September 22-23, 2011 states that unresolved

conflicts in representation would be "subject to binding arbitration by the members of the Audit

Committee." See Sealed Exhibit 2 attached hereto at ¶ 2.1 The point is largely moot, since

1
I only attended this meeting by telephone, and believe it occurred at the residence of Attorney
Scarola. My disclaimer of joint representation in new cases is noted in ¶ 3. Finally, the subject
of common benefit expenses is addressed in ¶ 7. On information and belief, the non-Wolf
plaintiffs' counsel have an agreement to share in the cost of paying paramilitary witnesses. A
review of correspondence from this period shows a RICO conspiracy to trap counsel in ethical
dilemmas through joint representation in new cases. The bribery of paramilitary witnesses was
justified with sham legal arguments written by Piper Hendricks of Conrad & Scherer. For
example, a few months earlier, on June 7, 2011, Attorney Collingsworth circulated a statement
he had obtained from Jose Gregorio Mangones Lugo (alias "Carlos Tijeras") and the urgent need
to take the deposition of Raul Hasbun. See Sealed Exhibit 6 attached hereto. "I've had several
discussions with Raul Hasbun but he has yet to put pen to paper for me. ... There is a cost issue
as well. Some of these guys will be free soon and some might get killed, so we should discuss
how fast we should depose them (In my Drummond case I'm in the midst of working out how to

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SDSBS is taking this position now. See Exhibit 5, conferral emails. Nevertheless, New Jersey

Plaintiffs' counsel take the opposite position. DE 2920.

2. Different legal heirs can't sue Chiquia separately for the same murder because of
res judicata, privity, and related arguments.

The New Jersey Plaintiffs' counsel argue that in about half of their duplicate cases, there

is no conflict in representation because they represent different plaintiffs in the same murder. DE

2920 at 2-6. (repeating the phrase "while the decedents appear to be the same, our client Doe [ ]

is not the same individual listed as Mr. Wolf's client.") SDSBS takes the same position.

Counsel tried to confer on this point. "I don't agree with the argument that different

attorneys can bring separate cases by representing different legal heirs in the same murder. This

was the strategy used in Drummond. When the first case was dismissed, different legal heirs of

the same victims sued again, alleging different facts and making different legal arguments. See

Melo v Drummond, 11th Cir. Case 16-10921. They are the same case or controversy, and res

judicata should prohibit litigating them again. Also, for each of my cases, I tried to identify the

person who would be the legal representative or executor of the estate, had [there] been probate

proceedings. This is generally either the spouse or parent of the deceased person. My clients all

alleged in their complaints that they are 'the' legal representatives for the deceased persons."

Exhibit 5 at 2.

In 2007, a federal jury in Birmingham, Alabama found Drummond Ltd. and its President

Augusto Jiménez not liable for the deaths of Valmore Locarno, Victor Orcasita, and Gustavo

Soler, union leaders who worked at Drummond’s coal mine in Colombia, South America. In re

Juan Aguas Romero v. Drummond Co., Inc., et al., No. 03-cv-575. In March 2009, eight

children of the union leaders filed a second suit, alleging once again that Drummond and certain

get the proper permission to enter a Colombian prison and take depositions)." Sealed Exhibit 3
at ¶ 3.

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of its executives collaborated with paramilitaries in the same murders. The district court found

that five of the children had already sued Drummond in the first case. The other three lacked

standing. The 11th Circuit reversed and remanded “for further factual development as to the

scope, if any, of the Children’s involvement in the Drummond I litigation.” Baloco v.

Drummond Co., Inc., 640 F.3d 1338, 1351 (11th Cir. 2011). In District Court, the Defendants

moved for summary judgment, arguing that the children were properly represented by their

mothers as guardians and were therefore bound by party preclusion. The mothers had previously

submitted declarations stating that they had hired their counsel of record to bring this case not

only on behalf of themselves, but also on behalf of their entire family. In the second case, the

same attorney argued that the first declarations were the result of "sloppy drafting" and submitted

new declarations by the mothers stating that “I never intended to comment on my children’s legal

status in the litigation. I also never intended to involve my children ...”2 The 11th Circuit upheld

the district court's ruling, finding that the children were in privity. "That adverse judgment

precludes the assertion of those claims by the New Children; as a result, the New Children are

barred from pursuing any cause of action which seeks damages stemming from the deaths of

their fathers." Baloco v. Drummond, 767 F.3d 1229, 1251 (11th Cir. 2014)

The instant situation is on all fours with Drummond, and not only because the same

attorneys are involved. Unlike other counsel, undersigned counsel only filed one claim per case,

and tried to identify the legal representative, who was normally the spouse or parent of the

deceased individual.

2
This procedural history is taken from Drummond's Principal Brief in Baloco v. Drummond,
Case No. 12-15268, filed on Jan. 22, 2013.

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3. Attorney Wichmann states that neither Tom Girardi nor Girardi and Keese have
ever had any involvement in or contracts with any Carrizosa clients.

In response to my Report Regarding Roster of Paul Wolf's Duplicate Cases, DE 2903,

and request that other counsel forward messages to Attorney Wichmann, he responded that "I do

not see any Carrizosa clients on your list and can say, unequivocally, that Tom Girardi and/or

Girardi and Keese have never had any involvement in or contracts with any Carrizosa clients."

See Exhibit 5, Conferral Emails at 4.

Mr. Wichmann doesn't explain why he didn't personally attend a meeting at the

Washington, DC office of Cohen Milstein Sellers & Toll on June 22, 2011, as described in our

Report. DE 2903 at 4. A representative of Girardi & Keese, named either Kirt or Kirk, attended

instead. Id. This was three years after his initial bid to be lead counsel. Attached hereto as

Exhibit 4 is a composite of two emails. The first, dated March 19, 2008, is from Stephen Terrell

of Engstrom, Lipscomb & Lack, who is an intermediary frequently used by Mr. Girardi in his

cases. This is followed by a June 6, 2011 email from myself to Attorney Mike Hugo of Parker

Waichman LLP.3 I wrote that "In the call, Bill Wichman [sic] was missing, as were his sponsors

Girardi & Lack. Some questions were asked about this and Terry Collingsworth denied that

Girardi was involved in the case anymore, although I doubt that's true. ... Someone in the

conference today said that if Girardi wasn't sponsoring Wichman [sic], it wasn't appropriate for

him to be invited anyway - but I doubt this is true." Exhibit 7 at 2. These emails are dated three

3
Mr. Hugo left Parker Waichman shortly after the bribery scandal in Drummond came to light.
As did Abe Alonso, who was formerly a named partner in the firm. Mr. Alonso was accused of
bringing $10,000 in cash to Colombia as part of a structured payment to a witness.

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years apart.4 If Mr. Girardi doesn't represent anyone, why has he been included in the

supposedly-privileged communications among plaintiffs' counsel?

In In re: Zantac (Ranitidine) Prods. Liab. Litig., 2020 WL 1669444, an MDL Court

required applicants for plaintiffs’ leadership to disclose to the Court whether their firms had

contingent financing. Id. at *6. If so, the Court required the applicant to disclose whether the

funder had direct or indirect control over substantive decisions and whether the financing created

conflicts of interest, undermined counsel’s obligation of vigorous advocacy, affected counsel’s

judgment or affected party control of settlement. Id. Further, the applicant was required to

explain the nature and amount of financing and submit a copy of the financing documentation to

a Special Master for review. Id. The court cautioned that MDLs warrant transparency. Id. This

Court should also order all plaintiffs counsel to disclose their agreements with other counsel in

this case, which are not privileged, and treat the plaintiffs as commodities that can be traded by

investor attorneys who don't do any real legal work on the cases.

4. The Court should schedule an evidentiary hearing to determine the representation

in the 60 disputed cases, requiring other counsel to submit the same information
under seal as Attorney Wolf was ordered to do.

Wolf's intake forms contained a question asking whether the persons were already

represented by counsel. Aside from a few mistakes in 2007, undersigned counsel didn't file any

duplicate claims, or claims in cases where another family member had brought a case. In

contrast, the attorneys filing duplicate claims didn't properly screen their cases, or deliberately

filed claims for different legal heirs.

4
In a hearing held on April 27, 2020 regarding the representation of Does 1-144, a dispute arose
as to whether I should return about $8,000 in expenses to Mr. Collingsworth. I would not agree
to this, but stated I would return the money to whomever Collingsworth got it from. Mr.
Collingsworth wouldn't agree to this in the hearing, but stated that he would return the money
himself. Email correspondence shows that the second payment I received came from Tom
Girardi. This was what Mr. Collingsworth doesn't want me to be able to prove.

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The Court should schedule an evidentiary hearing after the parties have exchanged

contracts. Due to the difficulty of travel to the US - and Colombia hasn't yet begun to recover

from the pandemic - the Plaintiffs shouldn't have to appear personally in court. This will start a

race among counsel to be the one to invite the plaintiff to the hearing. Of the more than 200

duplicates identified, only a dozen are likely to be genuinely in dispute. This is approximately

0.5% of the more than 2,400 cases I have filed, and is a low priority considering that the Court

will not remand any of their cases for trial.

Finally, the Court shouldn't allow Searcy Denney Scarola Barnhardt & Shipley, PA

("SDSBS") to speak for the clients of Boies Schiller & Flexner, LLP ("BSF") without the

plaintiffs' own consent. See SDSBS' Notice of Compliance, DE 2918. On September 13, 2018,

the Court denied BSF's motion to withdraw and transfer the representation to SDSBS. DE 2101.

"The notice is factually incorrect, insofar as the firm of Bois Schiller has not, to date, effectively

been replaced by the law firm of Searcy Denny et al. as counsel for Montes Plaintiffs in this

litigation. Thus, the notice is misleading in the reporting of an event which, in fact, has not

materialized." Order, id. at 2.

Conclusion

Unless there is some other evidence, a plaintiff signing agreements with more than one

attorney probably didn't intend to change attorneys. The more likely explanation is that the

second attorney didn't screen the case for prior representation, or in the case of BSF, misled the

plaintiffs and deliberately filed a duplicate case. The filing of duplicate claims by different legal

heirs is a variation of this, because they are in privity with the persons who filed first and

claimed to be the legal representatives of the deceased. The Court should also order all plaintiffs'

counsel to disclose their relationships with Tom Girardi, and any intermediaries to him.

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Respectfully submitted,

/s/ Paul Wolf

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

June 6, 2021

Certificate of Service

I hereby certify that on June 6, 2021, I filed the foregoing document with the Clerk of the
Court using the Court's Electronic Case Filing (ECF) system, which should send notices to all
persons entitled to receive them. In addition, I sent 311 pages of documentation of proof of
representation to lead counsel for the six other plaintiff groups. I further certify that
contemporaneously with this filing, I am sending copies of Sealed Exhibits 1-4 to counsel for the
plaintiffs via email. Finally, I certify that I am sending an additional copy of Sealed Exhibit 1 to
counsel for the Defendant Chiquita Brands, since this Exhibit doesn't contain privileged
information.

/s/ Paul Wolf

____________
Paul Wolf

Certificate of Conferral

I hereby certify that on June 5, 2021, yesterday morning, I conferred with the other
plaintiffs' counsel as directed by the Court. Their positions are summarized in this filing.
Exhibit 5 attached hereto includes all of the responses I received.

/s/ Paul Wolf

____________
Paul Wolf