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Chiquita continued: Illegal Foreign Payments? Suit Dismissed Against Dole Food Co. For Supporting Colombian Paramilitaries

September 25, 2010

 When a California judge this week threw out a case against Dole Food Co. for supporting Colombian terror groups, the decision received little attention, but it is important news.  Readers of this site know that there is a hot debate burning over whether American courts applying American law can provide redress to survivors of victims of kidnapping and murder by the FARC guerillas and the paramilitaries of the AUC.  

The Dole decision in California only indirectly bears on that debate.  Because it was filed in state court, the case sounded in typical wrongful death theories. Plaintiff’s counsel Terry Collingsworth, however, has told the AP he will re-file the case in federal court. There we can expect the allegation of theories I have studied in other posts in this series under the Alien Tort Actions Statute (overseas wrongful death), the Anti-Terrorism Act (i.e., material support of terrorism), and other federal statutes, potentially including the Foreign Corrupt Practices Act.  (I will review the detailed allegations and the legal theories asserted against Dole Food in a later post.)

This week, a much-heralded bombing killed the military leader of the FARC (and many others). (This excellent article for the AP by Cali-based journalist Frank Bajak contains a lot of useful description and background. The Wall Street Journal’s article is here. )  Colombians erupted in joyous relief and talk of possible peace could be heard everywhere. In the raid, government forces captured a treasure trove of information to help sustain anti-FARC actions: 15 laptop computers, 94 USB drives, and 14 external hard drives.

Much has changed in Colombia in the last several years. Tens of thousands of the AUC paramilitaries demobilized under the Law of Justice and Peace (although subsequent cases of human rights abuses and criminal activity by former paramilitaries have been documented.) While the guerilla armies of the FARC and the ELN have not demobilized, government forces have been decimating them. Once these forces controlled half of the Colombian territory; today, as President Santos told a banquet I attended this week that they do not control “one centimeter.” Once numbering nearly 40,000, today estimates are difficult but come in around 6-8,000.

During the bad times, companies like Chiquita, Coca-Cola, Dole, and Drummond Coal that had significant land and personnel operations are accused of having paid the illegal forces a vacuna (“vaccine”) for security protection, which the companies describe as extortion. Recent security successes, however, incomplete or imperfect, have undoubtedly brought major economic improvements to the country, now seen as Latin America’s most business friendly. Gone are the days when foreign investors faced a country half governed by lawless forces.

The score is now at least three-to-one in throwing out cases against foreign corporations doing business in Colombia during the years when the paramilitaries and guerillas extorted payments, and perhaps other forms of support. As reviewed in my other posts on the Chiquita case, Cases against Coca-Cola and Drummond Coal have been dismissed, like the case against Dole, before the trial stage. However, the Florida federal court found legally sufficient the as-yet-unproven allegations against Chiquita of active, self-interested complicity with the paramilitaries. These are claims that Chiquita hotly disputes, saying the US government would have charged Chiquita with that kind of conduct if there had been any merit to these allegations, in the case where Chiquita pled guilty and paid a relatively low fine.

The facts in each case vary, and the law is in sharp dispute, so we will have to stay tuned to see what develops if the case against Dole Food Co. moves forward to federal court.

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