The Good Place is a network comedy about a group of recently deceased mortals who believe they are in heaven, but discover they are the subjects of an experiment run by the immortal Michael (Ted Danson) in hell. Eventually, the mortals, having won Michael’s favor, inspire Michael’s efforts to convince the Judge (Maya Rudolph) that the point system to get into heaven is broken because “life has gotten so complicated” that no mortal can possibly earn enough points for entry into the Good Place. His evidence: a consumer’s complicity in the human and environmental devastation wrought along the supply chain of a single tomato. The banana shares this legacy.
Few have a claim to banana-linked infamy as strong as Chiquita’s. A story of damning familiarity, Chiquita’s history is inseparable from the social, political, and environmental chaos which follows the banana. For decades, its profits have been tied to the suffering of those without the means and opportunity to protect themselves – until now.
In June 2024, a federal jury in West Palm Beach, Florida returned the verdict in In re Chiquita and, for the first time, a jury held a U.S. corporation liable for its actions abroad. The jury awarded the plaintiffs who fought for seventeen years on behalf of their deceased family members and communities $38.3 million, and thousands of similarly situated plaintiffs now await their day in court. Chiquita has announced its plans to appeal the verdict, but, for the time being, this case is a beacon of hope for those fighting for a more just and accountable future.
Beginning with the history of the case, this post covers the facts and implications of the recent unanimous verdict reached by a federal jury in In re Chiquita. The first part of the post details Chiquita’s history in Colombia, the human rights abuses associated with its relationship with the United Self-Defense Forces of Colombia (AUC), and the litigation that followed. The second part of the post considers the immediate future of this case as well as its systemic implications with a particular focus on this verdict’s implications for the use of state tort law in human rights litigation.
Chiquita’s Roots in Colombia
In 1899, the United Fruit Company – the predecessor to Chiquita Brands International – arrived in Colombia. In the decades to follow, United Fruit became the largest U.S. multinational corporation operating in Latin America and the Caribbean. Those who lived under its shadow called it “El Pulpo” – the octopus. Where it operated, United Fruit leveraged substantial influence over local governments, extended control over railroads, electricity, communication, and ports and, at times, used violence to achieve its ends.
In 1982, the company left the country as an armed conflict between left-wing guerillas, right-wing paramilitaries, and criminal organizations continued to rage in Colombia. In 1989, something shifted in the C-Suites of Chiquita, and the banana company returned to Colombia. Chiquita then began purchasing the good-will and protection of the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN). Several years passed, and Chiquita cut ties with these armed left-wing groups upon their designation as Foreign Terrorist Organizations (FTOs) by the United States.
The Rise of the AUC
In the mid-1990s, the United Self-Defense Forces of Colombia (AUC) emerged as the champion of Colombian land owners and right-wing sympathizers desiring a force capable of standing toe-to-toe with leftist guerillas bent on revolution. In 1997, the leader of the AUC, Carlos Costaño Gil, informed Chiquita that his forces would soon drive the FARC out of Urabá – where Chiquita was heavily invested – and could take up the mantle once held by the FARC and ELN, provided that Chiquita agreed to pay. Chiquita would later argue that their agreement was a necessary “deal with the devil,” but El Pulpo likely understood the tremendous utility of militants willing to displace locals from cheap, arable lands, quell dissent, and expand its influence. History shows that these were, in fact, two devils making a deal.
In the eight years that followed, Chiquita paid the AUC more than $1.7 million and opened its private port to AUC shipments of arms, ammunition, and narcotics. Most, if not all, of the funds flowed from Banadex, Chiquita’s wholly-owned Colombian subsidiary, through intermediaries. According to court documents, Banadex’s intermediaries were private security companies licensed by or affiliated with the Colombian government known as convivirs - some of which assimilated into the AUC.
Chiquita’s support helped the AUC grow from a right wing insurgency on the periphery of a protracted civil conflict to a monstrous army tens of thousands strong. The AUC’s reign in the Colombian departments of Urabá and Magdalena was defined by the torture and murder of thousands of civilians, among them banana workers, union leaders, strike participants, activists, left-wing sympathizers, and human rights defenders. Regardless of rationale or political affiliation, standing between the AUC or El Pulpo and their goals often carried catastrophic consequences for vulnerable individuals. In 2001, the United States officially designated the AUC an FTO. Chiquita’s money continued to flow until 2004; then, the company stopped paying the AUC and sold Banadex, marking its second departure from Colombia.
Incomplete Accountability: The Department of Justice Fines Chiquita for Financing an FTO
Finally, in 2007, the U.S. Department of Justice slammed Chiquita for dealing with an FTO. Chiquita pleaded guilty to one count of engaging in transactions with a specially-designated global terrorist. The DOJ celebrated the victory, not only for reducing the flow of money to the AUC, but also for demonstrating that “funding a terrorist organization can never be treated as a cost of doing business.”
Unfortunately, not a single cent of the $25 million USD fine, still only a blemish on Chiquita’s bottom line, went to those harmed by the FTO Chiquita financed. The family of John Doe Nine, who worked on a banana plantation to support his family and served his community as a union leader until the AUC tortured, decapitated, and dismembered him, did not see a dime. Nor did the family of Jane Doe Four, an advocate for displaced people who was murdered by the AUC in front of her four young children. In fact, the decision, based on financial crimes, was entirely divorced from the atrocities stemming from Chiquita’s relationship with the AUC. The felony conviction was far from justice realized for those impacted by the AUC, but it was also a sign of potential on the horizon.
The Long March to Justice: Victims’ Civil Litigation Against Chiquita
In 2007, a civil suit commenced in New Jersey, under several legal theories – including under the Alien Tort Statute (ATS), the Torture Victims Protection Act (TVPA), and state tort claims – on behalf of Colombian families whose loved ones had been killed by the AUC. This initial suit was later consolidated with others filed in different U.S. states on behalf of other plaintiffs whose family members had also been murdered by the AUC. The “multidistrict litigation” was eventually transferred to a federal court in Florida. The mass tort case was brought by several thousand plaintiffs who amended their complaints numerous times while surviving countless motions to dismiss. Then, in 2014, the plaintiffs’ claims under the ATS and TVPA against the company were dismissed in light of contemporaneous Supreme Court rulings. While a setback, the plaintiffs’ common law tort claims survived, and the case progressed.
In 2016, Judge Kenneth Marra declined Chiquita’s motion to dismiss on the grounds of forum non conveniens, which would have dismissed the case based on finding that Colombia was the proper forum to hear the case. Plaintiffs and their counsel continued to wrestle with procedural challenges, including overcoming Chiquita’s motion to dismiss the claims of plaintiffs who could not travel to the United States because their visa applications had been denied. Finally, in 2022, the Eleventh Circuit Court of Appeals reversed a lower court’s decision to dismiss the claims, and the stage was set for a select group of plaintiffs to have their day in court.
On June 10, 2024, after seventeen years, a federal jury in West Palm Beach, Florida returned a unanimous verdict for the plaintiffs in In re. Chiquita Brands International Inc. This verdict is a truly herculean triumph – for the first time, a U.S. jury held a domestic corporation accountable for human rights abuses associated with its supply chain and conduct abroad. No victory can answer for the loss of John Doe Nine, Jane Doe Four, or the thousands like them. Nor can it erase the years of pain and torment fueled by Chiquita. But, in the words of one of the plaintiffs, “It’s a triumph [...]for all of us who have suffered so much during these years. There’s a debate about justice and reparation; we’ve been fighting since 2007. We’re not in this process because we want to be; it was Chiquita, with its actions, that dragged us into it. We have a responsibility to our families, and we must fight for them.” As International Rights Advocates Attorney Terry Collingsworth said, “these brave women and the other Plaintiffs in this case have demonstrated that corporate criminals like Chiquita can be held accountable through courage and perseverance. Hopefully, this verdict will inspire others to fight for corporate accountability.”
What’s Next in the Victims’ Civil Case Against Chiquita?
In re Chiquita mainly featured claims under the ATS and tort claims under state common law. However, as the TVPA claims against individual executives – which do not and cannot apply to corporations – are still pending, only the common law tort claims have emerged successfully from the seventeen-year slugfest. Chiquita has already confirmed it will appeal the verdict; thus neither the full impact nor final outcome of this case is set in stone. (Additionally, as of June 25, 2024, Judge Marra has postponed the trial for the second set of bellwether plaintiffs pending Chiquita’s anticipated appeal.)
There are several possible routes moving forward in this case. Should Chiquita lose the appeal, it may seek to settle the remaining plaintiffs’ claims. If Chiquita wins on appeal, a different story may unfold, with litigation continuing to drag on – including, in all likelihood, another bellwether trial. For Chiquita, losing the first trial was a shot across their flagship’s bow that sunk the neighboring ship; and, for everyone else, it was an undeniable sign of hope after decades of struggle.
Paul Wolf, one of the attorneys representing approximately 1,500 of the more than 5,000 plaintiffs, has already accepted a $12.8 million USD settlement deal with Chiquita for his plaintiffs. Wolf will personally receive a third of the damages, approximately $4 million, with the rest to be distributed among the plaintiffs over the next eighteen months. Those with documentation proving the AUC killed their relatives will receive $3,404 and those with limited documentation will receive $1,327 – compared to the more than $2 million the jury awarded nearly every plaintiff in the initial trial. In the words of Marissa Vahlsing, a litigator in the case and Director of Transnational Legal Strategy at EarthRights International, “that $1,300 value is incomprehensible, especially when you look at the suffering … we have 5,000 chances to get this right [for the remaining plaintiffs], and we will keep fighting.”
What’s Next for Other Similar Cases Filed Against Companies in the U.S.?
Federal Statutes like the ATS are Often Difficult for Plaintiffs to Use
Unexpected, and sometimes inexplicable, outcomes are not at all uncommon in U.S law, which too often is at the mercy and goodwill of an increasingly volatile judiciary headed by a Supreme Court that appears to afford precedent little respect and principles less. The Court’s treatment of the ATS demonstrates what this volatility can mean for future human rights accountability efforts and why common law state torts may be an answer.
Following the 1980 Filartiga decision, the ATS was the dominant tool used by human rights litigators in the United States. In 2004, the winds changed as the Supreme Court began hacking away at the ATS with their decision in Sosa v. Alvarez-Machain. Then, in Kiobel v. Royal Dutch Petroleum (2013), the Supreme Court radically restricted the ATS’ scope by applying the presumption against extraterritoriality to the statute. This presumption applies to federal civil statutes and can only be overcome by an express congressional declaration of extraterritoriality, which the Supreme Court found lacking in the ATS. In 2018, contrary to the majority of circuits, the Supreme Court held in Jesner v. Arab Bank, PLC that there is no corporate liability for foreign corporations in U.S. courts under the ATS. Then, in Nestlé USA, Inc. v. Doe 1 (2021), the Supreme Court held that domestic corporations could be subject to ATS claims, but that allegations of general corporate activity were insufficient to establish liability. Today, the ATS is a shadow of its former self, offering plaintiffs only the narrowest of pathways into federal court, which only adds to the appeal of state torts as an alternative.
Tort Law and the Looming Post-Verdict Uncertainty: A Systemic View
While state tort claims have always been a tool for human rights litigators focused on abuses occurring overseas, they have largely played second-fiddle to claims brought under federal statutes, so their potential in human rights litigation is relatively unexplored. Some argue that using state torts in human rights litigation is normatively deficient. Proponents of this argument challenge the implicit, and often explicit, equivocation of human rights atrocities and garden variety torts – i.e treating torture as battery or a massacre as wrongful death. However, that should compel innovation, not dissuade advocates from securing the wins they can with the tools they possess.
This is borne out in Chiquita, in which common law torts brought the first group of plaintiffs a victory amounting to $38.3 million USD. Following the jury verdict for a handful of plaintiffs and settlement for another group, Chiquita is already on the hook for damages amounting to more than $50 million USD, and there are thousands of plaintiffs poised to follow.
A Snapshot of Tort Law Principles
In a human rights case like Chiquita, plaintiffs can use tort law analogs for human rights atrocities, such as wrongful death or assault and battery, in addition to common law torts like negligence, unjust enrichment, and negligent supervision. Tort law can apply extraterritorially, encompasses intentional and negligent conduct, applies to individuals and corporations alike, and is flexible enough to apply one forum’s laws for liability and another’s for damages. This makes tort law a wonderfully versatile tool; but it does not mean state tort claims are a blank check. State statutes of limitations, personal jurisdiction analyses, pleading requirements, and practices regarding choice of law and forum non conveniens all present obstacles to human rights litigators. Fortunately, they are well equipped to take them on.
Potential Obstacles in Tort Litigation
Statutes of Limitations and Pleading Requirements
While a tort-based paradigm offers victims of human rights abuse by companies overseas potential opportunities for redress, it also presents challenges. For example, statutes of limitations for violations of state torts are often quite short; for instance, the Illinois statute of limitations for personal injury and wrongful death claims is only two years. In complex human rights cases, where investigations can take years to gather crucial evidence and witnesses, two years is hardly any time at all. As a result, it can be difficult to compile enough evidence in the short timeframe to meet the forum’s pleading requirements, even if that standard is notice pleading. Under a notice pleading regime, “a claim should not be dismissed… unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [their] claim which would entitle [them] to relief.” To do so, however, plaintiffs must conduct time and resource intensive investigations that can make the relatively short statutes of limitation for tort claims prohibitive.
Personal Jurisdiction
Personal jurisdiction, especially over corporate defendants, can be another significant hurdle for plaintiffs to overcome. Under Daimler AG v. Bauman (2014), the Supreme Court maintained that defendants may be subjected to both general or specific jurisdiction. For corporations, general jurisdiction generally means their place of incorporation and their principal place of business. In some rare circumstances, a corporation’s connections to a state may be “so continuous and systematic as to render it essentially at home in the forum state.” In the same case, Justice Ginsburg, writing for the majority, minimized the role of general jurisdiction and said that specific jurisdiction is the “centerpiece for modern jurisdiction theory.”
Generally, a specific jurisdiction analysis examines whether a defendant has the minimum contacts with a forum to support jurisdiction, has “purposefully availed” itself of the forum’s laws and privileges, and whether the defendants actions in the forum state caused or are related to the plaintiffs claims. Unfortunately, in many human rights cases, it can be challenging to convince a court that a multinational corporation has sufficient contacts with a forum to support jurisdiction.
If whether contacts are “purposeful” or “fortuitous” or a forum was “targeted” seems like a fuzzy standard, that’s because it is. Jurisdictional litigation is iterative and fact intensive, which can further complicate things, especially when the process is often mediated by a corporate-friendly judiciary. While the law of personal jurisdiction is well understood by practiced litigators, plenty of cases against multinational corporations fail to satisfy or are precluded from being brought by these standards.
Forum non conveniens
Forum non conveniens (FNC), the doctrine by which claims are dismissed in favor of refiling in a foreign jurisdiction better equipped to hear the case, is another potential hurdle. U.S. courts consider, among other things, the location of evidence and witnesses as well as the interests of the foreign jurisdiction in hearing the case. As human rights cases generally concern harms to individuals and communities abroad, courts often find that these factors outweigh the interests of the forum state, even in cases where victims of egregious abuses face significant hurdles in access to justice in their home countries – due to discrimination, corruption, fear, intimidation, costs of litigation, or other hurdles in the justice system. In that event, the court will likely dismiss the claims so that they might be brought in a foreign jurisdiction they believe is better suited to adjudicate the case, even when that forum has little chance of adjudicating the case fairly.
Choice of law
Finally, choice-of-law (CoL) decisions can end in dismissal of tort claims concerning harms suffered abroad. CoL is the process by which a court determines which U.S. state’s or foreign country’s laws should be applied in a given case. A majority of states analyze the relationships between various jurisdictions and apply the law of the jurisdiction most related to the events and parties in question. The most important implication for human rights litigation arises “if, according to [a] forum’s choice-of-law rules, the applicable law does not provide a basis for the claim, then the claim may not proceed.” As we saw in Chiquita, the choice of law analysis favored the application of Colombian law, which does have applicable causes of action relevant to the plaintiffs’ claims. Similarly, in a case against ExxonMobil, the U.S District Court for the District of Columbia applied Indonesian law to the plaintiffs’ claims, which concerned horrific abuses soldiers, whom the company employed as guards, perpetrated against local villagers. Beyond whether a claim is available in a forum, CoL analyses carry various implications for pleading requirements, statutes of limitations, rules of evidence and accessibility to expert testimony, damages assessments and caps, and more.
Human Rights Claims under State Tort Law: The New Frontier?
Realizing the potential of state tort claims for human rights cases requires preserving the characteristics which make the current state tort system so rich with opportunity – i.e., extraterritorial reach and relatively low thresholds of liability. However, in addition to preserving and enhancing those characteristics, there are other ways to improve tort law’s utility to address egregious human rights abuses by companies that federal statutes often cannot address.
First, the legislature or the judiciary could issue an official declaration reifying that state torts apply extraterritorially and that international human rights are not a “uniquely federal interest.” Such a declaration would be nothing more than explicitly restating foundational principles of state tort law.
Second, more states could pass laws like California’s § 354.8 which, among other things, “allows a victim up to 10 years to bring a civil tort claim for assault, battery, or wrongful death when a victim can establish that the underlying conduct constituting the tort would also constitute an act of torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity.” This would invite more human rights claims by curing the issue of prohibitive statutes of limitations. States could also pass stronger corporate accountability laws, like the French Duty of Vigilance Law, which extends corporate liability by imparting a duty of care for corporations throughout their supply chains. Other legislation, inspired to undo the Court’s treatment of the ATS in cases Kiobel, could be passed with express extraterritorial intent. Similarly, courts and legislatures could re-examine whether some forms of general corporate activity could support tort liability.
Third, doctrines of personal jurisdiction, pleading requirements, choice-of-law, and FNC could also be adjusted to be more inclusive of human rights cases. For example, perhaps general jurisdiction over corporations could be granted when corporations have an executive residing and working in the forum state. Such a grant would reflect the reality that the actions and policies of multinational corporations can be driven by a decentralized body of executives residing and working in forums beyond that of a corporation’s place of incorporation and principal place of business. This would ensure corporations are held accountable for the actions taken by executives, and are not able to escape liability simply because of where the real decision-makers reside.
What’s Next
How far the groundbreaking verdict in Chiquita pushes U.S. law remains to be seen, but it is a hopeful sign of things to come. Our legal system is a mix of statutory and common law that has harnessed the creative potential of each of its participants since its initiation. Its nature is iterative and each case, some more than others, nudges it forward. This case, however, may be of the rare sort that does not simply nudge the law forward but initiates a new paradigm. Prospective plaintiffs and litigators will undoubtedly apply the lessons from In re Chiquita in future suits to, hopefully, secure similarly impactful wins. This case is a remarkable victory with systemic implications and, for the individuals and communities affected by Chiquita’s actions in Colombia, it is decades of courage, faith, and perseverance fulfilled. This is the sort of justice the legal system is capable of delivering and will continue to deliver because of the courage, effort, skill, and energy of those pushing the law forward.
Jack Haney is a rising 2L at Harvard Law School and a Legal Intern at Corporate Accountability Lab.
