Case 0:08-md-01916-KAM Document 3438 Entered on FLSD Docket 07/06/2023 Page 1 of 9

UNITED STATES DISTRICT COURT

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

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION

_____________________________________________/

This Document Relates to:

ATS ACTIONS:

07-60821-CIV-MARRA (Carrizosa)
08-80421-CIV-MARRA (N.J. Action) (Does 1-11)
08-80465-CIV-MARRA (Does 1-144/Perez 1-795)
08-80508-CIV-MARRA (Valencia)
08-80408-CIV-MARRA (N.Y. Action) (Manjarres)
10-60573-CIV-MARRA (Montes)
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 (Does 1-2146)
17-81285-CIV-MARRA (D.C. Action) (Does v Hills)
18-80248-CIV-MARRA (Ohio Action) (John Doe 1)
_____________________________________________/

Wolf Plaintiffs’ Response in Opposition to Defendants’ Motion for Reconsideration

of Partial Denial of Summary Judgment of Colombian Law Claims [DE 3246]

The Defendants argue that the recent Supreme Court decision in Twitter, Inc. v. Taamneh,

598 U.S. ___, 143 S. Ct. 1206 (2023) has altered the standard for aiding and abetting under two

cases cited by the Court, Boim v. Holy Land Foundation for Relief and Development, 549 F.3d

685 (7th Cir. 2008) and Atchley v. AstraZeneca UK Ltd., 22 F. 4th 204 (D.C. Cir. 2022). [DE

3246 at 4, citing DE 3238 at 73-80] The Boim court had held that "it is enough, under a statue

requiring proof of intentional or reckless misconduct, to show that the contributor understood the

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mission of the organization because this amounts to knowingly contributing to the organization’s

terrorist activities; and liability is justified where the combined resources pooled by knowing

contributors 'as a whole' would have 'substantially enhanced the risk of terrorist acts' and the

probability that the plaintiff’s decedent would be a victim." Order, DE 3238 at 78, citing Boim at

698. According to the Defendants, "the [Supreme] Court rejected the reasoning in cases like Boim

and Atchley, which held that a more generalized understanding of an organization’s mission is

sufficient to plead aiding and abetting liability." DE 3426 at 6.

The Plaintiffs disagree. The reasoning in these cases wasn't rejected. Neither case was

even cited in Twitter, which relied on the well-settled test for aiding and abetting liability in

Halberstam v. Welch, 705 F. 2d 472 (D.C. Cir. 1983). The standard in Halberstam is knowing,

substantial assistance. The 31-page Twitter case referred to Halberstam v. Welch approximately

74 times, more than twice per page. To say that Halberstam is still good law would be an

understatement. In contrast, the Defendants don't refer to Halberstam at all, which is the settled

standard for aiding and abetting for federal claims, and what the Twitter case was about.

A. The Court correctly analyzed Plaintiffs' secondary liability theory of aiding

and abetting, rather than whether "but-for" causation exists for joint
tortfeasors under Colombian law.

This Court found the parties' arguments about whether "but-for" causation exists in

Colombian law in multiple tortfeasor situations to be off-point, instead considering it a question

of secondary liability. DE 3238 at 77. "Under federal and state common law doctrine under

United States jurisprudence, causation is defined differently in the secondary liability context;

here, the causal connection requires a showing of 'knowing substantial assistance' to the primary

malefactor. If this standard is met, it is no defense to point to the ability of the primary tortfeasor

to exert its will without that aid. Id. at 77, citing Doe v. Drummond, 782 F.3d 576, 608 (11th Cir.

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2015) (affirming knowing substantial assistance as proper standard for measuring aiding and

abetting liability under federal common law and TVPA). The Court also cited El Camino

Resources Ltd. v. Huntington National Bank, 722 F. Supp. 2d 875 (W.D. Mich. 2010), which held

that the “substantial assistance” requirement for aiding and abetting fraud and conversion requires

a showing that the secondary party “proximately caused” the violation, such that its encouragement

or assistance was a “substantial factor” in causing the tort. Id.

Thus, the entire basis for Chiquita's Motion to Dismiss - that "but-for" causation must be

shown to satisfy the Colombian concept of "fault" in joint tortfeasor cases - was found inapplicable

because the Plaintiffs had alleged aiding and abetting. This might have ended the analysis and

resulted in the denial of the Motion on this basis, since it is the Movant's burden to prove foreign

law. However, the Court treated the the Defendants' Motion as one challenging the aiding and

abetting standard instead. "As neither side has illuminated the substantive contours of Colombian

law on this precise issue, the Court will assume, for purposes of this motion, that Colombian law

is in accord with Florida law on the point, and hence requires a showing that a defendant has

rendered 'substantial assistance' to another in the commission of an intentional tort as a prerequisite

to the imposition of aiding and abetting liability." DE 3238 at 78-79.

It is noteworthy that the Defendants, in their Motion for Reconsideration, still make no

attempt to distinguish Colombian law on this point. They could have submitted another declaration

by Judge Ballesteros explaining Colombian law on aiding and abetting, and argued how this differs

from Florida law, but didn't do so. They also failed to raise the argument that the Court should not

have applied Florida law. The Defendants simply return to the argument, which has been rejected

many times, that aiding and abetting liability requires the aider and abettor to have detailed

knowledge of the details of the crimes to be committed. It doesn't. It merely requires forseeability.

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The Defendants' construction of their arguments also causes confusion over whether the

federal common law should apply. The Boim and Atchley cases were ATA and JASTA cases,

which are Federal causes of action, as was Twitter, yet the Defendants want this Court to reconsider

(Colombian) state law claims. And not reconsider the Torture Victim Protection Act claims in the

instant case, which are Federal claims subject to the federal common law, and the Halberstam

standard for aiding and abetting. Counsel invites the Defendants to explain why Halberstam, the

case mentioned 74 times in Twitter as the aiding and abetting standard, doesn't appear anywhere

in their brief.

B. Chiquita's financial support of the the AUC was direct and substantial, unlike
the passive assistance that Twitter provided to all of its users.

The facts of the instant case are completely unlike those in Twitter. In Twitter, a gunman

entered the Reina nightclub in Istanbul, Turkey, and fired over 120 rounds into a crowd of people,

killing 39 and injuring 69 others. Id. at 2. The next day, ISIS (the so-called Islamic State of Iraq

and Syria, a terrorist group) released a statement claiming responsibility for the attack. Id. Like

many others around the world, ISIS and its supporters had accounts on Facebook, YouTube, and

Twitter, and uploaded videos and messages for others to see. Id. at 4. ISIS was alleged to have

uploaded videos that raised funds for weapons, and that showed brutal executions of soldiers and

civilians alike. Id. at 5. ISIS’ videos and messages were then matched with other users based on

their use history. Id. at 4. Advertisements were displayed along with the ISIS messages, based on

information about the viewer and the content being viewed. Id. The plaintiffs alleged that the

platforms had been crucial to ISIS’ growth, allowing it to reach new audiences, gain new members,

and spread its message of terror. Id. They alleged that the defendant social media companies had

known that ISIS has used their platforms for years, yet failed to detect and remove a substantial

number of ISIS-related accounts, posts, and videos. Id.

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The Court held that the social media companies didn't “aid and abet” an ISIS terrorist attack

when their algorithms recommended ISIS content, or when they failed to remove content that

recruited members and spread ISIS messages. Justice Thomas likened the social media platforms

Twitter, Google and Facebook to companies that provide cell phone, email or internet services.

“(W)e generally do not think that internet or cell service providers incur culpability merely for

providing their services to the public writ large. Nor do we think that such providers would

normally be described as aiding and abetting, for example, illegal drug deals brokered over cell

phones - even if provider’s conference-call or video-call features made the sale easier.” Id. at *28.

The Court disagreed with the plaintiffs' argument that the algorithms went beyond passive aid to

the terrorists and constituted substantial assistance. “Viewed properly, defendants’

‘recommendation’ algorithms are merely part of that infrastructure. All the content on their

platforms is filtered through these algorithms, which allegedly sort the content by information and

inputs provided by users and found in the content itself. As presented here, the algorithms appear

agnostic as to the nature of the content, matching any content (including ISIS’ content) with any

user who is more likely to view that content.” Id. at *28. The social media companies didn't treat

ISIS any differently from any of their other billion-plus users: “arm’s length, passive, and largely

indifferent. Cf. Halberstam, 705 F. 2d, at 488." Id. at 24. And their relationship with the Reina

attack is even further removed, given the lack of allegations connecting the Reina attack with ISIS’

use of these platforms.” Id.

Moreover, the "plaintiffs identify no duty that would require defendants or other

communication-providing services to terminate customers after discovering that the customers

were using the service for illicit ends." Id. at 25. "Plaintiffs do not claim that defendants

intentionally associated themselves with ISIS’ operations or affirmatively gave aid that would

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assist each of ISIS’ terrorist acts. Nor have they alleged that defendants and ISIS formed a near-

common enterprise1 of the kind that could establish such broad liability. These allegations are thus

a far cry from the type of pervasive, systemic, and culpable assistance to a series of terrorist

activities that could be described as aiding and abetting each terrorist act." Id. at 26.

The Court left open the possibility that social media companies could be liable for such

activities, if the company selectively promoted the terrorist groups, or supported their activities in

an unusual way. "To be sure, we cannot rule out the possibility that some set of allegations

involving aid to a known terrorist group would justify holding a secondary defendant liable for all

of the group’s actions or perhaps some definable subset of terrorist acts. There may be, for

example, situations where the provider of routine services does so in an unusual way or provides

such dangerous wares that selling those goods to a terrorist group could constitute aiding and

abetting a foreseeable terror attack." Twitter at 26, citing Direct Sales Co. v. United States, 319

U. S. 703, 707, 711–712, 714–715 (1943) (registered morphine distributor could be liable as a co-

conspirator of an illicit operation to which it mailed morphine far in excess of normal amounts).

"Or, if a platform consciously and selectively chose to promote content provided by a particular

terrorist group, perhaps it could be said to have culpably assisted the terrorist group." Id., citing

Passaic Daily News v. Blair, 63 N. J. 474, 487–488, 308 A. 2d 649, 656 (1973) (publishing

employment advertisements that discriminate on the basis of sex could aid and abet the

discrimination). "In those cases, the defendants would arguably have offered aid that is more

direct, active, and substantial than what we review here; in such cases, plaintiffs might be able to

establish liability with a lesser showing of scienter." Id.

1
The Plaintiffs in the instant case did allege that Chiquita was in a joint venture with the AUC,
and in a conspiracy with the AUC, but these arguments have not been at issue, since the aiding and
abetting standard in Halberstam was met.
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In the instant case, Chiquita paid protection money to terrorist organizations for the safety

of its employees, and received protection in return. Chiquita didn't provide a service to the general

public that was misused by the AUC. Chiquita wasn't "agnostic" about the purpose of the

payments, which were a quid pro quo for receiving the perceived benefit of a reduced guerrilla

presence. The Defendants were aware of the AUC’s assassination campaign, and made a business

decision to “Just let them sue us” in reference to people like the Plaintiffs, who are the next of kin

of people killed by the AUC in the vicinity of their farms. The proximity of Chiquita's farms to

the murders, and the fact that their payments were made to the local AUC units, rather than the

national organization, at the time of the murders, show proximate cause. Finally, Chiquita’s

defense is based on a meeting among Charles Keiser, Carlos Castaño, Raul Hasbún, and Iving

Bernal, at which they claim Mr. Castaño made an unspoken threat, and as a result of which the

Defendants agreed to pay three cents per box of bananas shipped. There was no such agreement

between Twitter’s management and the customers who misused their service.

C. The Defendants' Motion is untimely and doesn't fit within the parameters of
either Rules 59 or 60.

The Defendants don't cite any rule of procedure, which is required to file a motion. The

time to file a motion under Federal Rule of Civil Procedure 59 is 28 days. Id. The time to file a

motion under Federal Rule of Civil Procedure 60(b) is one year from the date of the order, which

is this case was was December 15, 2022. See DE 3238. Since the Motion was made too late for

either rule, there is no procedural basis for it, and it should be denied.

Moreover, none of the categories of Rule 60(b) are a good fit. The rule allows

reconsideration for mistake, inadvertence, surprise, or excusable neglect; newly discovered

evidence; fraud or misconduct by an opposing party; the judgment is void, satisfied, released, or

discharged, or based on an earlier judgment that has been reversed or vacated; or "any other reason

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that justifies relief." Id. The last category isn't broad enough to include Twitter, which doesn't

purport to reverse any earlier decision, or to narrow or reinterpret the well-settled standard in

Halberstam v. Welch, 705 F. 2d 472 (D.C. Cir. 1983), which was used by this Court as the aiding

and abetting standard. The Defendants cite Delaware Valley Floral Group, Inc. v. Shaw Rose

Nets, LLC, 597 F.3d 1374, 1383 (11th Cir. 2010) as authority for reconsideration based on an

intervening change in the controlling law. The argument fails because the Twitter case didn't even

cite Boim or Atchley, much less overrule them.

Conclusion

The Twitter case doesn’t change the legal standard for aiding and abetting under

Halberstam v. Welch. The Defendants don't challenge the Court's application of Florida law, or

the relationship between the "substantiality" requirement and proximate cause. The Court

correctly concluded that the injuries and plaintiffs must be forseeable, but not known to the level

of detail that the Defendants argue. As Twitter makes clear, even a social media platform could

be liable for all of a terrorist groups' activities. "To be sure, we cannot rule out the possibility that

some set of allegations involving aid to a known terrorist group would justify holding a secondary

defendant liable for all of the group’s actions or perhaps some definable subset of terrorist acts.

There may be, for example, situations where the provider of routine services does so in an unusual

way or provides such dangerous wares that selling those goods to a terrorist group could constitute

aiding and abetting a foreseeable terror attack." Twitter at 26. But that is not the situation at hand.

The millions of dollars paid in protection money, and the protection received, goes well beyond

an unusual or dangerous service provided to the public at large. For the foregoing reasons, the

Court should DENY the Defendants' Motion for Reconsideration.

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Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, CO Bar #42107
Attorney for Plaintiffs
P.O. Box 60584
Colorado Springs, CO 80960
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a

July 6, 2023

Certificate of Service
I hereby certify that on this 6th day of July, 2023, 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