Case 0:08-md-01916-KAM Document 3005 Entered on FLSD Docket 10/29/2021 Page 1 of 7

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 ACTION
______________________________________________/

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 (O.H. Action) (Does 1-2146)

______________________________________________/

Response to Motion for 90 day discovery stay, DE 2999

The Plaintiffs represented by undersigned counsel oppose the motion for an additional 90

day discovery stay because of the pandemic. We opposed Mr. Scarola's previous motion to stay

discovery, DE 2944, but the Court granted the Motion. DE 2951 Mr. Scarola represents that

counsel for the defendant agreed to the requested extension "due only to the COVID situation."

DE 2999 at 1. We oppose this stay because the basis for it is fictitious. See Exhibit 1, Conferral.

However, we continue to question the value of the bellwether process. The summary judgment

standards are on appeal, and we will move to remand these cases for trial in the District of

Columbia.

The pandemic won't make discovery of the next bellwether cases more difficult.

However, there are other difficulties at the present time. The Urabá region is currently in the

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midst of a paro armado, which includes threats to kill any police officers who disobey it, as a

result of the capture of Dairo Antonio Usuga, alias Otoniel, in Necocli about four days ago. Mr.

Usuga was the feared leader of the Gulf Clan, a drug cartel composed of former AUC members.1

Undersigned counsel is in possession of a recorded message, circulated by Whatsapp, warning

people to stay in their homes at night, and announcing a social cleansing program. During my

two month trip to Urabá this summer, I observed AGC (Autodefensas Gaitanistas de Colombia)

graffiti on the buildings all along the route to Urabá, indicating paramilitary control.

Nevertheless, it is unlikely that this will be maintained for more than a few days or weeks, and is

unrelated to the pandemic.

A. The pandemic shouldn't present any travel issues for the next group of
bellwether plaintiffs.

Undersigned counsel spent from July 15, 2021 to September 23, 2021 in Medellin,

Dabeiba, Apartado, Chigorodo, Turbo, Necocli, and Choco, Colombia, and had no difficulty

traveling because of the pandemic. To travel to Colombia, I had to fill out an online form called

"check mig" which required me to answer questions about whether I had been sick, but no

coronavirus test was required. To re-enter the US, I had to have proof of a negative coronavirus

test within three days of traveling. My test results were delivered in about 3 hours, by the

Laboratorio Clínico VID, which is one of many clinics offering coronavirus tests for travelers.

Within Colombia, the only difficulties I had were with trying to organize meetings with large

groups of people. For example, in the Casa de Justicia in Chigorodó, we met with about 40

people, but only 5 were allowed in the room at a time, and the others had to wait outside the

building. In the Centro Etnoeducativo in Dabeiba, there were no restrictions other than ensuring

that everyone wore a mask and sanitized their hands when entering the room. In other locations,

1
See https://www.cnn.com/2021/10/24/americas/colombia-drug-lord-otoniel-intl-hnk/index.html

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these kinds of meetings were not possible to arrange. In Medellin, I had two small meetings in a

food court of a shopping center. In Apartadó, I met with about 100 clients, either individually or

in small groups, in a hotel.

In Colombia, the number of coronavirus cases has decreased. See Exhibit 2, attached

hereto, which are charts from www.worldometers.com, which has been a reliable source used by

journalists over the course of the pandemic, that shows how the pandemic has mostly subsided in

Colombia, as well as Florida. The screenshots were taken on October 28, 2021 and can be easily

verified by visiting the worldometers website, or another source of coronavirus statistics.

B. Our next group of bellwether plaintiffs have already received or applied for
passports, or been disqualified, and are waiting for Notices of Deposition
before applying for visas.

We were able to obtain passports for our bellwether cases, despite the pandemic. Four of

the eight have passports, and a fifth is waiting for her passport to be delivered. The other three

bellwether plaintiffs did not apply for passports because of other reasons. One could not be

located, one is too sick to travel, and a third is withdrawing her case with prejudice.

None of these bellwether plaintiffs have applied for visas to the United States because

they are waiting for Chiquita to send them Notices of Deposition, which they need to prove why

they need to travel to the US. Whether the pandemic has affected the US embassy is unknown.

The only way to find out is to reopen discovery.

On July 31, 2021 we sent an email to counsel for Chiquita requesting Notices of

Deposition, but the depositions have never been noticed. The four plaintiffs with passports are

ready to apply for visas at the US embassy in Bogota, and are only waiting for the Notices of

Deposition, which will be important for them to obtain visas.2

2
For any plaintiffs are denied visas the court should permit their depositions by video. Although
travel in Colombia has not been impacted by the pandemic, most of the Colombian government
offices are operating remotely, and we anticipate that the relief granted to the non-Wolf counsel,

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Of the eight bellwether plaintiffs jointly selected by the parties, Maria Ligia Hincapie,

Victor Alfonso Mosquera Salas, Marta Elena Nanclares Usuga, and Marleny Herrera Mercado

have already obtained passports. Ana Milbia Durango applied for her passport but has not

received it yet. Ana de Jesus Berrio Mena has not been located. In the same July 31, 2021

email, counsel for the Defendants were asked whether they wanted to select another plaintiff to

replace Ms. Berrio Mena, but never replied. Dominga Cordoba is too sick to travel. Finally, Luz

Miriam Cano Usuga is withdrawing her claims against Chiquita with prejudice and no longer

wishes to proceed with the case. Although some of these bellwether selections may be "knocked

out" of the process and not replaced, none of the reasons are related to the pandemic.

C. The Court should reconsider the benefits of the bellwether process, and grant
Plaintiffs' motions to remand.

Although the pandemic presents no real obstacle to discovery, and the paro armado

should only be a temporary problem, undersigned counsel doesn't believe the bellwether process

will lead to a global settlement. The plaintiffs represented herein don't accept the mediator

because the settlement he negotiated in the shareholder derivative part of the case awarded $4

million dollars in legal fees to a party that did not substantially prevail. The SLC Report

exonerated the officers and directors. As argued in the court of appeals on October 5, 2021, the

Court didn't consider our evidence, such as the detailed benefits determination by Accion Social,

or FBI Agent Manuel Ortega's testimony that it would be highly unlikely that other groups could

massacre people in areas under the AUC's control. Counsel for the non Wolf Appellants opposed

our motion to participate in oral arguments, and up until the last moment, Mr. Scarola was urging

us not to speak in the oral argument. Undersigned counsel wouldn't be able to adequately

to take depositions of their clients denied visas in Colombia, may be difficult if it requires a
Colombian courtroom and judge. Nevertheless, these are better alternatives than staying
discovery indefinitely.

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represent his clients in settlement negotiations that were combined with those of the non- Wolf

counsel.

The discovery in the second round may also be affected by the appeal, and what

questions the attorneys ask in depositions, if the 11th Circuit defines the standards for summary

judgment. Counsel for the Defendants haven't argued this, though. The Court denied a previous

motion to stay a hearing on Chiquita's Motion for Summary Judgment for other cases from the

first round, which was held on September 10, 2021 by Zoom video.3 In this hearing, the Court

stated that it would listen to the oral arguments before ruling, but did not expect to defer ruling

on the Motion for Summary Judgment for these plaintiffs until the 11th Circuit has ruled.

Hopefully, after listening to these arguments, and particularly the questions asked by the judges,

the Court will defer ruling. The panel appeared to take seriously the Appellants' arguments about

circumstantial evidence and inferences, and the Celotex trilogy of cases.

In the event that the Court of Appeals reverses the dismissal of cases Does 378 and 840,4

the Court should consider Plaintiffs' motions for remand, see Plaintiffs' Renewed Motion for

Suggestion of Remand, DE 2560; Order of November 5, 2019 at 6 ("Upon careful review of the

parties’ respective positions on the propriety of discretionary remand of the remaining D.C. Wolf

Plaintiffs at this juncture, prior to the conclusion of all pretrial proceedings, the Court concludes

that remand is not appropriate because common issues central to the core claims of all Plaintiffs

yet remain for determination." DE 2601.

Once the 11th Circuit has ruled on the standards for summary judgment, and whether the

proffered evidence is admissible under various exceptions to the hearsay rule, the common issues

3
Undersigned counsel participated in this hearing from a hotel room in Apartado, Colombia.
4
Whose names are Maria Emilse Villegas Echavarria and Genoveva Borja Hernández.

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will have been resolved. Case-specific discovery - such as the instant motion to stay discovery

in the next group of bellwether cases - doesn't relate to common issues in the case.

Conclusion

The pandemic is no longer an obstacle to discovery. Undersigned counsel's next group of

bellwether plaintiffs were able to obtain passports, and are waiting for Notices of Deposition

before they can apply for visas. However, the pending appeal may affect the summary judgment

standards, and the questions asked in the depositions. In our view, the bellwether process is an

obstacle to bringing thousands of meritorious cases to trial, and unfairly benefits the Defendants.

Therefore, the Court should remand the above-captioned cases to the U.S. District Courts

for the District of Columbia and the Southern District of Ohio, once the 11th Circuit has

determined the standards for summary judgment. The bellwether cases aren't without value,

though, since they are a sampling of the pool of plaintiffs. Since Chiquita doesn't argue that its

questions to the plaintiffs might be different depending on the outcome of the appeal, the Court

should allow the next round of discovery to go forward, while the 11th Circuit is deciding the

appeal.

Respectfully submitted,

/s/ Paul Wolf

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

October 29, 2021

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Certificate of Service

I hereby certify that on this 29th day of October, 2021, 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