Case No.

12-14898-B

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________________________

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.
ALIEN TORT STATUTE LITIGATION

__________________________________________

On Appeal from the United States District Court
for the Southern District of Florida
No. 08-md-01916
(Nos. 07-60821, 08-80421, 08-80465, 08-80480, 08-80508,
10-60573, 10-80652, 11-80404, 11-80405)
(The Honorable Kenneth A. Marra)
_________________________________________

APPELLANTS CHIQUITA BRANDS INTERNATIONAL, INC.
AND CHIQUITA FRESH NORTH AMERICA LLCS
OPPOSITION TO THE DOE APPELLEES
MOTION FOR STAY OF MANDATE
_________________________________________

J onathan M. Sperling
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1000
Fax: (212) 841-1010

J ohn E. Hall
J ames M. Garland
Mark W. Mosier
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: (202) 662-6000
Fax: (202) 662-6291

Counsel for Chiquita Brands Intl., Inc. and Chiquita Fresh North America LLC
Case: 12-14898 Date Filed: 10/08/2014 Page: 1 of 10


CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
Rule 26.1-1, counsel for Appellants, Chiquita Brands International, Inc. and
Chiquita Fresh North America LLC, certifies that no publicly held corporation
owns 10% or more of either partys stock. Chiquita Fresh North America LLC is a
wholly-owned indirect subsidiary of Chiquita Brands International, Inc. Chiquita
Brands International, Inc. has no parent corporation.
Counsel also certifies and adopts the lists of the trial judge(s), all attorneys,
persons, associations of persons, firms, partnerships, or corporations (noted with its
stock symbol if publicly listed) that have an interest in the outcome of the
particular case on appeal, including subsidiaries, conglomerates, affiliates, and
parent corporations, and other identifiable legal entities related to a party included
in Appellees Motion for Stay of Mandate with the following alterations:
1. Persons or entities to be added to the above mentioned Certificate of
Interested Persons include the following:
Agrcola Bananera Santa Rita, Sociedad Anonima
Allen, J ennifer
Compaa Bananera La Ensenada, Sociedad Anonima
Desarrollos Agroindustriales del Istmo, Sociedad Anonima
Djoukeng, Cyril
Case: 12-14898 Date Filed: 10/08/2014 Page: 2 of 10

ii

Istmo Holding LLC One
Istmo Holding LLC Two
La Ensenada Holding LLC One
La Ensenada Holding LLC Two
Santa Rita Holding LLC One
Santa Rita Holding LLC Two
Three Sisters Holding LLC
Zionts, David
2. Persons or entities to be removed from the above mentioned Certificate
of Interested Persons include the following:
Agrcola Santa Marta Limitada
C.C.A. Fruit Service Company Limited
Centro Global de Procesamiento Chiquita, S.R.L.
Chiquita Food Innovation B.V.
Chiquita Fruit Bar (Belgium) BVBA
Chiquita Fruit Bar (Germany) GmbH
Chiquita International Services Group N.V.
Chiquita Shared Services
Chiquita Slovakia, S.r.o.
Danone Chiquita Fruits SAS
Case: 12-14898 Date Filed: 10/08/2014 Page: 3 of 10

iii

FMR LLC
Processed Fruit Ingredients, BVBA
Case: 12-14898 Date Filed: 10/08/2014 Page: 4 of 10


OPPOSITION TO DOE APPELLEES
MOTION FOR STAY OF MANDATE
The Doe Appellees moved, pursuant to Rule 41(d)(2), for a stay of mandate
pending review of their intended petition for writ of certiorari by the Supreme
Court. Appellants Chiquita Brands International, Inc. and Chiquita Fresh North
America LLC (collectively Chiquita) oppose Appellees motion. Appellees have
failed to show that a stay is warranted.
1. Ordinarily, where a party has won on appeal after losing in the district
court, it is appropriate to put the appellate court decision into effect pending the
Supreme Courts ruling. Wald v. Regan, 708 F.2d 794, 803 (1st Cir. 1983),
judgment revd on other grounds, 468 U.S. 222, 104 S. Ct. 3026 (1984). Stay of
the mandate is available only where the losing party establishes that the certiorari
petition would present a substantial question and that there is good cause for a
stay. Fed. R. App. P. 41(d)(2)(A). Because a stay of mandate is a form of
temporary injunction, United States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993)
(internal quotation marks and citation omitted), courts have interpreted Rule
41(d)(2)(A) to require that movants demonstrate both a reasonable probability of
succeeding on the merits and irreparable injury absent a stay. Senne v. Vill. of
Palatine, Ill., 695 F.3d 617, 619 (7th Cir. 2012) (internal quotation marks and
Case: 12-14898 Date Filed: 10/08/2014 Page: 5 of 10

2

citation omitted).
1
Specifically, to show a reasonable probability of success, the
movant must establish a reasonable probability that four J ustices [of the Supreme
Court] will vote to grant certiorari and that five J ustices will vote to reverse the
judgment of this [C]ourt. Id.
2. Appellees have failed to establish eitherlet alone bothof the
necessary elements for a stay. First, they have not shown a reasonable probability
that certiorari will be granted and that this Courts judgment will be reversed. In
an attempt to meet this requirement, Appellees assert that the panels decision
creates a circuit split with the Fourth Circuit. See Appellees Mot., at 2-4. But that
is identical to the argument presented in their Petition for Rehearing En Banc,
Appellees Pet. for Rhg En Banc, at 8-10 (Aug. 4, 2014), and no member of this
Court considered the argument persuasive enough even to call for a vote on en
banc review.
No circuit split exists. The Fourth Circuits Al Shimari decision applied the
same touch and concern test articulated in Kiobel that this Court applied. See Al
Shimari v. CACI Premier Tech. Inc., 758 F.3d 516, 520 (4th Cir. 2014). It reached

1
Accord Gonzalez v. Arizona, No. 08-17094, slip op. at 5 (9th Cir. J une 7, 2012)
(order); Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007); John Doe I v. Miller,
418 F.3d 950, 952-53 (8th Cir. 2005). Courts have also held that, in a close case,
the movant should make a showing that, on balance, the interests of the parties and
the public favor a stay. Nara, 494 F.3d at 1133.
Case: 12-14898 Date Filed: 10/08/2014 Page: 6 of 10

3

a different result under the fact-based inquiry that this test requires only because
the facts of the case were different from this one. Id. Al Shimari concerned claims
that the U.S.-citizen defendant itself committed violations of international law
acts of torture committed in concert with the U.S. military at a U.S. military
facility, with the Court finding extensive relevant conduct in [the] United States.
Id. at 528-29 (internal quotation marks omitted). In contrast, Appellees claims
against Chiquita are for secondary liability for international law violations
committed by Colombian nationals against Colombian citizens entirely in the
territory of Colombia. Put simply, the relevant conduct in our case took place
outside the United States, Cardona v. Chiquita Brands Intl, Inc., 760 F.3d 1185,
1189 (11th Cir. 2014); in Al-Shimari, the facts and claims were quite different, and
the Fourth Circuit accordingly reached a different result. That is application of
settled law to factsnot a circuit split.
Even if the Supreme Court were to grant certiorari, Appellees have failed to
show that there is a reasonable probability that this Courts judgment will be
reversed. The panel concluded that Kiobel dictated the outcome of this case. See
Cardona, 760 F.3d at 1189. There is no reason to believe that the Supreme Court
would retract its holding that federal courts lack jurisdiction over ATS claims for
conduct occurring in the territory of a foreign sovereign. Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659, 1664, 1669 (2013).
Case: 12-14898 Date Filed: 10/08/2014 Page: 7 of 10

4

3. Second, Appellees do not even attempt to argue that they will suffer
irreparable harm if the mandate is not stayed. Appellees assert that, [i]f the
mandate is not stayed, the instant case will not be over, pointing to a separate
cross-appeal on the extraterritorial application of state tort law. Appellees
Mot., at 4-5. They also argue that [a] motion to dismiss for forum non conveniens
is pending in the District Court. Id. at 4 n.3. But Appellees fail to explain how
these assertions (both of which are inaccurate)
2
relate to the proposed stay of the
mandate, let alone how timely issuance of the mandate would result in any harm
much less irreparable harm to them. In the absence of even an attempt to make
the necessary showing, there is no basis for staying the mandate.


2
Appellees are wrong to suggest that their cross-appeal is still pending. This
Courts opinion specifically stated that it did not need to reach that question,
Cardona, 760 F.3d at 1188; the petition for rehearing and rehearing en banc
specifically asked the panel to revisit that aspect of its decision, Pet. for Rhg &
Rhg En Banc, at 12-14 (Aug. 14, 2014); and the Court denied rehearing without
finding a need to address the issue, Order (Sept. 4, 2014); Order (Oct. 2, 2014).
Additionally, there is no motion to dismiss the Doe Appellees claims for forum
non conveniens pending in the district court at this time. See D.E. 635 in In re:
Chiquita Brands Intl, Inc. Alien Tort Statute & Sholder Deriv. Litig., 08-md-1916
(Aug. 29, 2013) (denying without prejudice motion to dismiss for forum non
conveniens as moot).
Case: 12-14898 Date Filed: 10/08/2014 Page: 8 of 10

5

CONCLUSION
For the foregoing reasons, the Court should deny Appellees motion to stay
the mandate.


Respectfully submitted,



J onathan M. Sperling
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1000
Fax: (212) 841-1010

October 8, 2014
/s/ J ohn E. Hall
J ohn E. Hall
J ames M. Garland
Mark W. Mosier
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: (202) 662-6000
Fax: (202) 662-6291
Case: 12-14898 Date Filed: 10/08/2014 Page: 9 of 10


CERTIFICATE OF SERVICE
I, J ohn E. Hall, counsel for appellants and a member of the Bar of this Court,
certify that, on October 8, 2014, a copy of Appellants Chiquita Brands
International, Inc. and Chiquita Fresh North America LLCs Opposition to the Doe
Appellees Motion for Stay of Mandate was electronically filed with the Court
using CM/ECF.
I further certify that the foregoing document is being served this day on all
counsel of record registered to receive electronic Notices of Electronic Filing
generated by CM/ECF.
/s/ J ohn E. Hall
J ohn E. Hall
October 8, 2014



Case: 12-14898 Date Filed: 10/08/2014 Page: 10 of 10