Chiquita Julin Plaintiffs MSJ On Affirmative Defense of Duress

Case 0:08-md-01916-KAM Document 1323 Entered on FLSD Docket 03/31/2017 Page 1 of 37
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 08-01916-MD-MARRA/JOHNSON
IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
______________________________________________/
This Document Relates To:
ATA Actions
______________________________________________/
Case No. 1:08-CV-20641-KAM
TANIA JULIN, et al.,

Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL, INC.

Defendant.
______________________________________________/
OLIVIA PESCATORE, et al.,

Plaintiffs,
v.
CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Defendants.
______________________________________________/
ESTATE OF JANE PESCATORE SPARROW,

Plaintiff,
v.
CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Defendants.
______________________________________________/
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON

DEFENDANTS FOURTH AND FIFTH AFFIRMATIVE DEFENSES
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 2
I. LEGAL STANDARD........................................................................................... 11
II. DEFENDANT WAS NOT ACTING UNDER DURESS .................................... 11
A. Legal Requirements of the Duress and Necessity Defense ...................... 12
B. There Was No Immediate Threat .............................................................. 13
C. Defendant Had Reasonable Opportunities to Escape or
Notify Authorities ..................................................................................... 16
D. Defendant Intentionally Placed Itself In Harms Way .......................... 19
III. DEFENDANT IS NOT SEPARATE FROM THE MISCONDUCT
IT PERPETRATED .............................................................................................. 20
A. Defendants Corporate Headquarters At All Times Directed
Its Payment Program. ................................................................................ 20
B. Defendant Has Formally Admitted Chiquita and not some
subsidiary Paid FARC............................................................................ 22
C. Defendant Is Directly Liable For Its Own Conduct .................................. 26
CONCLUSION ............................................................................................................................. 28
CERTIFICATE OF SERVICE .31
i
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Buccellati Holding Italia SPA v. Laura Buccellati,

5 F. Supp.3d. 1368 (S.D. Fla. 2014) ........................................................................................11
Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................................................11
Dixon v. U.S.,
548 U.S. 1 (2006) .....................................................................................................................12
Global Quest, LLC v. Horizon Yachts, Inc.,

__F.3d__, 2017 WL 727142 (11th Cir. February 24, 2017) ....................................................11
In re Chiquita Brands Intl, Inc. Alien Tort Statute and Shareholder Deriv. Litig.,
190 F. Supp. 3d 1100 (S.D. Fla. 2016) ....................................................................................19
In re Raiford,
695 F.2d 521 (11th Cir. 1983) ...........................................................................................23, 24
Kratom Lab, Inc. v. Mancini,

No. 11-80987-CIV-MARRA, 2013 WL 3927838 (S.D. Fla. July 29, 2013) ..........................25
U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc.,

608 F.3d 871 (D.C. Cir. 2010) .................................................................................................24
Miller v. Holtzman,
563 F. Supp.2d 54 (D.D.C. 2008) ............................................................................................24
U.S. v. Agard,
605 F.2d 665 (2d Cir. 1979).....................................................................................................20
U.S. v. Alston,
526 F.3d 91 (3rd Cir. 2008) ...............................................................................................12, 15
U.S. v. Bailey,
444 U.S. 394 (1980) ...........................................................................................................12, 18
U.S. v. Bell,
214 F.3d 1299 (11th Cir. 2000) ...............................................................................................15
ii
U.S. v. Blanco,
754 F.2d 940 (11th Cir. 1985) ...........................................................................................13, 20
U.S. v. Deleveaux,
205 F.3d 1292 (11th Cir. 2000) ...............................................................................................12
U.S. v. Foster,
153 Fed. Appx. 674 (11th Cir. 2005) .......................................................................................13
U.S. v. Gaviria,
116 F.3d 1498 (D.C. Cir. 1997) ...............................................................................................16
U.S. v. Gonzalez,
407 F.3d 118 (11th Cir. 2005) .................................................................................................18
U.S. v. Lomax,
87 F.3d 959 (8th Cir. 1996) .....................................................................................................19
U.S. v. Montgomery,
772 F.2d 733 (11th Cir. 1985) .................................................................................................18
U.S. v. Singleton,
902 F.2d 471 (6th Cir.), cert. denied, 498 U.S. 872 (1990) .....................................................19
U.S. v. Sixty Acres in Etowah Cty.,

930 F.2d 857 (11th Cir. 1991) .....................................................................................13, 14, 17
U.S. v. Wattleton,
296 F.3d 1184 (11th Cir. 2002) .........................................................................................13, 17
United States v. Bestfoods,

524 U.S. 51 (1998) .............................................................................................................26, 28
United States v. Jennell,

749 F.2d 1302 (9th Cir. 1984), cert. denied, 474 U.S. 837 (1985) ....................................13, 16
United States v. Karr,

742 F.2d 493 (9th Cir. 1984) ...................................................................................................13
United States v. Lee,

694 F.2d 649 (11th Cir. 1983) .................................................................................................17
United States v. Marder,

__F. Supp. 3d. __, 2016 WL 5404303 (S.D. Fla. Sept. 23, 2016)(Moore, D.J.) .....................11
United States v. Podell,

572 F.2d 31 (2d Cir. 1978).......................................................................................................24
iii
United States v. Villegas,

899 F.2d 1324 (2nd Cir. 1990), cert. denied, 498 U.S. 991 (1990) .........................................13
STATE CASES
Chiquita Brands Intl, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA,
988 N.E.2d 897 (Ohio Ct. of App. 2013) ..........................................................................25, 26
FEDERAL STATUTES
Anti-Terrorism Act, 18 U.S.C. 2331 et seq. ...................................................................2, 4, 5, 6
H. Henn. & J. Alexander, Laws of Corporations ...........................................................................27
RULES
Federal Rule of Criminal Procedure 11(f) ...............................................................................23, 24
OTHER AUTHORITIES
D. Lunde and T. Wilson, Brainwashing as a Defense to Criminal Liability: Patty

Hearst Revisited .......................................................................................................................17
Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations,

39 Yale L.J. 193, 207-208 (1929) ............................................................................................27
iv
INTRODUCTION
Plaintiffs move for summary judgment on Defendants Fourth Affirmative Defense,
which asserts that Plaintiffs claims are barred because any alleged acts or omissions of
Defendant were taken out of necessity or under duress, and Fifth Affirmative Defense, which
asserts that Plaintiffs claims are barred because Defendant is a separate corporation from its
former Colombian subsidiary, liable only for its own actions and omissions.1 Based upon the
undisputed material facts established by the evidence cited here and in Plaintiffs Statement of
Material Facts, and the fact that both defenses fail as a matter of law, Defendant should be
precluded from introducing them at trial, and judgment should be entered on them in Plaintiffs
favor.
Necessity and duress (which are treated as one in modern law and thus share common
elements) require: (1) an imminent threat of death or serious bodily harm, (2) an inability to
avoid or withdraw from the situation or contact authorities, and (3) circumstances in which the
alleged victim of duress did not negligently or recklessly place himself. As the incontrovertible
evidence demonstrates, Defendant cannot carry its burden because its duress claim fails on all
three of these counts. As a matter of law, therefore, the defenses of duress and necessity are
unavailable to Defendant.
Defendants corporate separateness defense fares no better, in no small part because it
misconstrues the nature of Plaintiffs claims. Plaintiffs are not seeking to pierce the corporate
veil of an ostensibly independent subsidiary to hold the parent liable for its subsidiarys acts.
Plaintiffs assert their claims directly against Defendant for Defendants acts conduct which it
has admitted in other court proceedings, and which the documents and testimony in this action
1
In the Pescatore action, duress is affirmative defense 23 and corporate separateness is affirmative defense
26. For ease of reading, when Defendants Fourth or Fifth affirmative defenses are referred to, those references
include those asserted against the Pescatore Plaintiffs as well.
1
fully reinforce. Furthermore, persons working for or on behalf of Defendants Colombian
subsidiary acted in accordance with Defendants policy, monitoring and auditing, and with the
authorization and direct supervision of Defendants own employees, managers and officers. In
every respect, Defendants own conduct is at issue in this litigation, and the facts lead directly to
the inescapable conclusion that there is no legal basis for it to hide behind the mere
instrumentality of its Colombian subsidiary. Defendant cannot carry its burden on this defense,
which fails as a matter of law and cannot be permitted to be presented to the jury.
FACTUAL BACKGROUND
Plaintiffs are estates and family members of five American missionaries who were
kidnapped, held hostage, and eventually murdered by the Colombian terrorist group FARC, and
New Tribes Mission, on whose behalf they acted as missionaries, and the estate and family of an
American engineer who was kidnapped and murdered by FARC. Plaintiffs allege that
continually before, during and after the kidnapping and murder of the victims, Defendant
Chiquita Brands International, Inc., materially supported FARC in violation of the Anti-
Terrorism Act, 18 U.S.C. 2331 et seq..
Chiquita has an extensive and controversial relationship with Latin America dating back
more than a century when it was known as United Fruit. PSMF 12. In one way or another it has
been involved in banana production, packaging, transport and marketing in Colombia for more
than a century. For much of that time it produced bananas in Colombia, while also purchasing
the fruit from other farmers to meet the needs of its growing markets. PSMF 4. In the various
countries in which it operated, when economic or other conditions changed, it moved into or out
of production, typically securing for itself supply contracts to maintain continuity of source
2
Plaintiffs use PSMF to refer to Plaintiffs Statement of Material Facts and the exhibits cited therein.
2
products. PSMF 5. At some time prior to 1975, Chiquita withdrew from banana production in
Colombia, relying completely on local farmers for supplies. PSMF 5.
By the mid-to-late-1980s, it appeared as if the newly formed European Union was going
to banish national banana quotas that had stood as barriers to Chiquitas expansion into new
markets, and that the newly emerging nations of Eastern Europe would likewise open new
sources of food products such as bananas. PSMF 22.
By 1988, seeing opportunity to increase profits significantly and wanting a more secure
and reliable source of bananas, Chiquita decided to once again enter banana production in
Colombia. PSMF 20, 21, 23. This was no small undertaking; at the time, Defendant had only
approximately 100 employees in Colombia, a few small facilities, and no banana farms or
farmland. PSMF 6. Beginning in 1988, Defendant thus began to acquire banana plantations
from local owners. PSMF 25-27.
Going into this new phase in its business model, Defendant knew the situation in Uraba
was dangerous. PSMF 29-31, 37. Various leftist guerrilla groups, including FARC, were
active in the region. PSMF 70. Defendant knew this it knew FARC was responsible for
kidnappings, acts of murder and serious bodily injury, and its practice of demanding payments
from businesses under threat of violence. PSMF 29-31, 34. Notwithstanding this knowledge,
Defendant decided to move ahead with farm acquisitions, but assign title to the farms in the
name of a nominee or proxy, disguising Defendants ownership in the hope that it could avoid
attracting FARCs attention. PSMF 38-39.
Shortly after Defendant acquired its first three farms from one of its suppliers, FARC
demanded payment from the farms manager, Sergio De la Cuesta. PSMF 41-42. De la
Cuesta reported this demand to Charles Keiser, who ran Chiquitas Colombian banana operations
3
from 1989 through February 2000. PSMF 42, 10. Keiser received his salary from Defendant,
considered himself Defendants employee, and took direction from Chiquitas senior managers.
PSMF 17. Keiser, in turn, reported the demand up the chain to John Ordman, Vice President of
Chiquitas Purchased Fruit Division up to 1989 and then Defendants Senior Vice President and
Regional Manager, then located first in Panama City and then in Costa Rica. PSMF 42, 9.
Ordman contacted Robert Kistinger, Chiquitas Executive Vice President of Operations for the
Tropical Fruit Division from 1989 through 1994, and then Senior Executive Vice President of
Defendants Banana Group from 1994 through 1997, working out of Chiquita corporate
headquarters in Cincinnati, Ohio. PSMF 42, 8. At Ordmans direction, Keiser flew to
Cincinnati, where he met with Kistinger, Dennis Doyle, Vice President and Chief Operating
Officer of Defendants Banana Group, and Charles Morgan, Chiquitas General Counsel. PSMF
43, 7, 11. According to Keiser, Doyle said lets pay them. PSMF 44. Although the precise
details of the discussion are unknown, the outcome is clear: Chiquita adopted a corporate policy
of paying FARCs demands, delegated authority to handle specific, individual payments to
managers in Colombia, and sent Keiser back to Colombia to arrange the first payment. PSMF
45, 46, 49, 69. Kistinger telephoned Ordman to say that Chiquita had decided to pay the
$10,000 demand by FARC. PSMF 49. And after receiving this confirmation and discussing
with Kistinger how to make the first payment, Ordman worked out the logistics with Keiser.
PSMF 49. There is no evidence that any FARC terrorists occupied the farm on which the
payment demand had been made, or that there was any FARC presence nearby.
The first payment to FARC was $10,000. PSMF 50. Ordman withdrew the funds from
an account of Chiquitas Honduras subsidiary. Id. He then traveled to Guatemala, where he met
and transferred the funds to Keiser. Id. Keiser then stuffed the currency into a jeeps spare tire,
4
transported the funds into Colombia, converted the dollars into Colombian Pesos, and handed the
money to one of the farm personnel to meet with a FARC representative to complete the
transaction. Id. This was the first of at least fifty-seven payments to FARC from 1989 to 1999.3
PSMF 62.
Around the time of the first farm purchase and first payment demand from FARC,
Defendant consulted with Control Risks, a security services company Defendant used in various
places around the world to provide intelligence and security-related advice. PSMF 32-33.
Control Risks provided Defendant with a memo containing its analysis of the situation and its
advice. PSMF 33. Among other things, the Control Risks memo advised Defendant that
should it proceed with its plan of expanding banana production in Uraba, it should expect regular
payment demands from FARC and other terrorist groups because it was a common practice in
the region to demand money in exchange for good labor relations and protection of property.
PSMF 33. The memo warned that [a]ny payment, however small, will set a precedent for the
future, and [f]urther demands are likely to follow and these demands are likely to follow each
year. Id. PSMF 55. Control Risks then presented several alternative courses of action. One
involved the Colombian military, an option rejected by Chiquita. PSMF 47. A second was to
withdraw from Colombia, an option that Chiquita likewise rejected. PSMF 47, 48. A third
was to deal with the terrorists, but to always try to negotiate to reduce the amounts of the
payments. PSMF 47. This was the course Defendant chose acquire farms and expand banana
production and pay as the cost of doing business. PSMF 48, 51, 85. Faced with a choice of
continuing to purchase bananas from other suppliers or move into production in a terrorist-
3
Although Defendant has taken the public position that its FARC payments ended in 1997, it made at least
three payments to FARC in 1998 and 1999, all after FARC was designated a Foreign Terrorist Organization by the
United States Department of State.
5
infested region where violence was common and extortion demands to be expected, Defendant
chose the latter because [t]here was a business reason to be in Colombia. PSMF 48.
Thus Defendant, fully aware of the presence of violent guerrilla groups, including FARC,
made a strategic, voluntary decision predicated on business considerations and unrelated to
anyones personal safety to purchase farms in the Uraba region, knowing the terrorist groups
engaged in extortion. PSMF 31. Defendant knew at the time management authorized
additional farm purchases that Defendant might have to make payments to FARC as a cost of
doing business. PSMF 29-38. Defendant thus knowingly, with eyes wide open, transitioned
into farm ownership in a very dangerous area with guerrilla activity that escalated over time.
PSMF 37. From the 1989 meeting authorizing the payments onward, Defendant knew that first
payment would not be a one-time payment. PSMF 46. Chiquita fully expected that as long
as it owned farms in Colombia, FARC and other terrorists would continue to demand payments.
PSMF 30, 33, 38.
Al Bakoczy, Defendants head of corporate security, regularly circulated reports
concerning FARC activity, some prepared internally and some prepared by its security
consultant, Control Risks. PSMF 35. One of these memoranda indicated that two American
missionaries had been kidnapped by FARC. Id.
In all, between 1988 and approximately 1995 or 1996, Defendant acquired roughly thirty-
five plantations in Colombia, covering a sprawling four- to five-thousand hectares, producing at
least seven million boxes of bananas per year.4 PSMF 28. At some point, instead of
negotiating and making separate payments for each of its farms, Defendant arrived at one deal
with FARC for the entire group of farms. PSMF 56. This negotiating system reduced the
4
Ordman testified on behalf of Chiquita that Defendant acquired between 4,000 and 5,000 hectares
producing 1,800 to 2,500 boxes per hectare.
6
gross amounts paid, what Keiser likened to a volume discount. PSMF 56, 57. FARC
agreed, benefiting Defendant in at least three respects: offering an opportunity through
negotiation to reduce the cost of its FARC payments, buying global peace throughout the banana
producing region for Defendants farms, and regularizing payments to FARC as a predictable
cost of doing business. PSMF 40, 56, 59.
Through this negotiating system, the FARC payments thus became routine
payments,5 a fairly minor cost of doing business in Colombia. PSMF 59, 86. Periodically, a
Chiquita representative met with a FARC representative at a location off Defendants property,
negotiation ensued, an agreement was reached, and Defendant would pay the agreed amount of
money. PSMF 58. But to conceal these payments, Defendant established a surreptitious
process for requisitioning and drawing funds from a company account and paying those funds
over to an intermediary who would transport the money in cash to FARC. PSMF 58, 74, 81.
Defendant established a system to account for these payments, maintaining a separate ledger kept
in a safe accessible by very few of Defendants employees, and understood by fewer because
Defendant employed a system of codes in the ledger and in memoranda concerning the
payments, to further mask the recipients true nature and identity. PSMF 74, 75, 81, 82, 83.
In 1989, Defendant began to consolidate its Colombia farm holdings in a new Colombian
subsidiary, Banadex. PSMF 2. This subsidiary was considered a cost center, responsible for
banana production but having no corporate budget and not expected to earn profits. PSMF 3. It
did, however, have a budget for the FARC payments, which were forecast each year by Keiser.
PSMF 88. FARC payments were then drawn as needed from the Banadex General Managers
account. PSMF 54, 58. In total, guerrilla payments ranged from $100,000 to $200,000 per
5
In testimony before the SEC, which was investigating an incident in which a Banadex employee bribed a
Colombian customs official, Ordman was asked why Keiser approved the bribe. Ordmans response was that Keiser
told him that he thought it was just another routine payment to guerrillas. PSMF 86.
7
year 10-20 times the original payment that FARC had accepted fully authorized, reviewed
and approved by Chiquitas management. PSMF 60, 61. In addition to Ordman, Kistinger
was periodically apprised of the payments. PSMF 69, 70, 87. Indeed, Kistinger and Ordman
discussed the guerrilla payments during business reviews or budget reviews to determine
whether the payments were staying within the guidelines. PSMF 87.
Beginning in 1990, Defendants Vice President of Internal Audit, Wilfred Bud White,
established an accounting policy to cover these sensitive payments, including transporting the
documentation by hand to Cincinnati periodically for review by the legal and audit departments.
PSMF 75. This procedure was intended to apply to the FARC payments, as conveyed by
Chiquita executives at a meeting in San Jose, Costa Rica. PSMF 74. Robert Thomas, Chiquita
Senior Counsel in Cincinnati, received regular reports of the FARC payments, Mr. Thomas
reviewed information related to guerilla payments with Mr. White and made his boss, General
Counsel Morgan, aware of this information as well. PSMF 76-77. Thomass primary contact
in Colombia was Reinaldo Escobar, head of Chiquitas legal department in Colombia. PSMF
76. For at least the first few payments, Keiser informed Ordman of a demand, Ordman
contacted Kistinger, and Kistinger ratified the fact that these guerrilla payments were
Defendants corporate policy and that Ordman and Keiser were authorized to proceed. PSMF
54. Once it became routine, Ordman continued to receive reports of payments and
periodically traveled to Colombia to discuss the magnitude of the payments with Keiser and Juan
Alvarado, a Chiquita employee who worked in corporate security and was responsible for
administering the FARC payment program, from requisitioning funds, to maintaining the
payment records, to reporting the payments to his superiors. PSMF 14, 70, 71, 80, 83, 87.
8
Direct responsibility for handling the FARC payments fell upon Defendants corporate
security personnel in Colombia, including John Stabler and Juan Alvarado, who reported to
Bakoczy, Defendants director of global security. PSMF 16, 71, 80. Stabler and Alvarado
were both Defendants employees. Stabler was CBIs Manager of Corporate Security in the
region, and he was kept apprised of the FARC payments. PSMF 72, Ex. aa. Alvarado would
prepare nondescript payment memoranda to requisition the funds, arrange for the checks to be
issued to an intermediary, enter the transactions into the secret ledger, and on a regular basis send
Bakoczy memos or faxes reporting, in code, terrorist payments that had been made. PSMF 58,
71, 79-82, 83. But Defendant carefully continued to conceal this payment system not just from
the public, but also from most of its own employees. A small number of people within Chiquita
would have understood the codes. PSMF 82. Indeed, the safe that secured the FARC payment
ledger was kept in Alvarados office, and only he could open it and grant someone access.
PSMF 83. In these ways, Defendant ensured that FARC payments would be kept on a need-to-
know basis.
All the key people directly involved in making the FARC payments were Defendants
managers and employees. As Keiser, Ordman and Kistinger have acknowledged, FARC
payments were just a cost of doing business, and a cost that Keiser testified was taken into
account in the cost per box of bananas. PSMF 85, 89. The payments had become so routine
that they were included in budget forecasting for years. PSMF 88. Indeed, Defendants
30(b)(6) witness testified that making those payments enabled Defendant to expand its farm
ownership. PSMF 40.
At no time between 1989 and 1997 did Defendant ever contact any authorities about
FARCs demands and its payments to the terrorists. PSMF 64-65. Defendant did not contact
9
anyone in Colombias National Prosecutors office, nor any police department, nor anyone in
any official capacity. Further, although Defendant was a large American multinational
corporation of ancient lineage with vast experience conducting transnational business, it never
contacted the American Ambassador to Colombia, the FBIs legal attach in the American
embassy, the U.S. State Department, or any other department or agency that might have provided
advice or assistance in dealing with this problem. To the contrary, as noted above, Defendant
went to great lengths to hide the problem.
Nor did Defendant even consider withdrawing from banana production in Colombia.
PSMF 90. It never considered ceasing farm acquisitions and it never considered selling farms.
Id.; PSMF 47-48. The business was strategically important, and Chiquita was intent on
staying the course. PSMF 21-25, 94. Even though Chiquita had withdrawn from Colombia at
least once before, and even though it would do so once again in 2004, SOMF 96-101, in the
1990s it was not going to allow periodic payment demands from terrorists to disrupt its business.
PSMF 5. As Ordman put it, the payments were insignificant to the companys bottom line.
PSMF 95.
But the funds were hardly insignificant to FARC which thereby was also guaranteed a
steady and predictable stream of income, and they became significant to Defendant when, in
2007, it pled guilty to one count of unlawfully providing funds to a Specially Designated Global
Terrorist, AUC. PSMF 102. In a sworn Factual Proffer accompanying the guilty plea, Chiquita
also admitted to paying FARC. PSMF 62, 68; Ex. 5. As the United States Department of
Justice observed in its sentencing memorandum, Regardless of the Companys motivations,
Defendant Chiquitas money helped buy weapons and ammunition use to kill innocent victims of
terrorism. Simply put, defendant Chiquita funded terrorism. PSMF 103.
10
At its sentencing hearing, Defendants counsel responded: The company quote funded
terrorism. I would agree with that. PSMF 104.
ARGUMENT
I. LEGAL STANDARD
Summary judgment is appropriate when the evidence, viewed in the light most favorable
to the nonmoving party, presents no genuine issue of material fact and compels judgment as a
matter of law. Global Quest, LLC v. Horizon Yachts, Inc., __F.3d__, 2017 WL 727142, *2
(11th Cir. February 24, 2017); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A party must support its assertion that there is no genuine issue of material fact by citing
the record. Buccellati Holding Italia SPA v. Laura Buccellati, 5 F. Supp.3d. 1368, 1372 (S.D.
Fla. 2014). A defendant must rely on or submit record evidence in support of a purported
affirmative defense in order to create a genuine issue of material fact preventing the entry of
summary judgment. United States v. Marder, __F. Supp. 3d. __, 2016 WL 5404303, *14 (S.D.
Fla. Sept. 23, 2016)(Moore, D.J.) An issue of fact is genuine if the record, taken as a
whole, could reasonably lead the trier of fact to find for the non-moving party. Buccellati
Holding, 5 F. Supp. 3d at 1372.
II. DEFENDANT WAS NOT ACTING UNDER DURESS
Defendants claim of duress in these circumstances is unprecedented. Plaintiffs could
find not a single case in which a corporation invoked a duress defense except in the limited
transactional or tax contents of the separate doctrine of economic duress (which does not apply
here). This makes sense from a policy perspective. Business corporations exist for the sole
purpose of engaging in business dealings to earn profits for their stockholders. Large
multinational corporations are sophisticated enterprises, with professional managers, lawyers,
11
lobbyists, and operations spanning multiple continents. With vast resources, they readily move
about the globe, opening and closing operations to gain competitive advantage and serve the
profit imperative. Chiquita was no exception, and everything it did in Colombia, it did with open
eyes and clarity of purpose. It must not be heard to complain that it was the victim, so utterly
deprived of free will by outside forces that there literally was no other choice, because that is
simply untrue. The undisputed facts constitute neither duress nor necessity, but the deliberate
execution of a business plan. Plaintiffs are entitled to judgment on this defense.
A. Legal Requirements of the Duress and Necessity Defense
Traditionally, the defense of duress was available where extreme coercion by a third-
party left the defendant with no reasonable alternative but to commit a crime, and was thus said
to excuse the defendants unlawful conduct. Necessity arose when physical forces threatened
harm of such magnitude that the unlawful act was the lesser of two evils, and thus was said to
justify it.6 U.S. v. Bailey, 444 U.S. 394, 410 (1980). In recent decades, courts have tended to
blur the lines of distinction between excuse and justification, emphasizing instead their common
elements. Id.; see also, e.g., U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) (treating duress
as a form of justification sharing same elements); U.S. v. Alston, 526 F.3d 91, 94 n.3 (3rd Cir.
2008) (The defenses of duress, necessity and justification have generally all been analyzed in
terms of justification.) (collecting cases). Neither defense negates any element of the plaintiffs
claim, including scienter. Dixon v. U.S., 548 U.S. 1, 6-7 (2006).
Duress may excuse a defendants wrongful conduct only if he performed the unlawful
act because (1) he was under an immediate threat of death or serious bodily injury, (2) he had a
well-grounded fear that the threat would be carried out, and (3) he had no reasonable opportunity
6
The Supreme Court offered the example of a person faced with the choice of destroying a dike or
experiencing destructive flooding on his property.
12
to escape. U.S. v. Blanco, 754 F.2d 940, 943 (11th Cir. 1985).7 A duress claim will be rejected
if the defendant failed to take an opportunity to contact authorities for assistance. U.S. v.
Wattleton, 296 F.3d 1184, 1196 n.20 (11th Cir. 2002) (to warrant duress instruction to jury
defendant must provide evidentiary foundation that, inter alia, he had no reasonable
opportunity to escape or inform [the] police.) (citation and internal quotation marks omitted).
Further, [a] claim of duress and coercion will not afford a valid excuse when a defendant has
recklessly or negligently placed himself in a situation in which it was probable that he would be
subject to duress. Blanco, 754 F.2d at 943.
B. There Was No Immediate Threat
The evidence completely undercuts Defendants claim that it was under a threat of
imminent harm. The requirement of immediacy of the threat is a rigorous one; . . . and it is
clear that fear of future bodily harm to ones self or to others will not suffice. In order that the
danger may be viewed as imminent and impending, it is ordinarily necessary to show that the
coercing party was present. Moreover, the apprehension of immediate danger must continue
during the whole time the crime is committed. U.S. v. Sixty Acres in Etowah Cty., 930 F.2d
857, 861 (11th Cir. 1991) (internal quotation marks and citation omitted);8 see also, U.S. v.
Foster, 153 Fed. Appx. 674, 676-77 (11th Cir. 2005) (where defendant committed continuous
crime, and failed to show that the apprehension of immediate danger was present at all times
from the moment she took the first unlawful step until she was arrested, without taking
7
Duress can also exist when the threat of immediate, serious harm is directed at a third person and the
defendant acted unlawfully in order to protect the other party. Id.
8
The Sixty Acres Court cited decisions from the Second and Ninth Circuits in support: United States v.
Villegas, 899 F.2d 1324, 1344 (2nd Cir. 1990), cert. denied, 498 U.S. 991 (1990) (evidence of a mere generalized
fear does not satisfy requirement of a well-founded fear of impending death or serious bodily harm.); United
States v. Jennell, 749 F.2d 1302, 1306 (9th Cir. 1984), cert. denied, 474 U.S. 837 (1985) (no duress where there
were times of inactivity); United States v. Karr, 742 F.2d 493, 497 (9th Cir. 1984) (no duress where defendant
passed up many opportunities to escape.).
13
advantage of any opportunity to notify authorities, she was precluded from presenting duress
defense at trial).
Sixty Acres is instructive. As the result of a drug raid and the subjects guilty plea, the
United States brought an asset forfeiture proceeding against real property used for growing
marijuana that was owned by the subjects wife. Originally ordering the forfeiture, the district
court reversed its decision based upon a finding of duress. On appeal, the United States argued
that the wife consented to the use of the property for drug offenses, while the wife contended that
she suffered from battered woman syndrome and thus any consent on her part was given under
duress. The Eleventh Circuit expressed sympathy for the wife, but nevertheless ruled the duress
defense unavailable. The court recounted evidence that the wife had become aware that the
subject had murdered his previous wife; that he choked her when he disapproved of her
behavior; that he threatened to kill his wife, even boasting of it to witnesses; that he owned
numerous guns and drank substantial amounts of alcohol on a daily basis; and that numerous
people were fearful of the subject, who was variously described as madman and the devil.
However, the wifes clearly and understandably generalized fear for her life was insufficient to
allow a duress defense because the wife had ample opportunity to flee or to contact law
enforcement agents, and [n]o other defense would excuse that consent. 930 F.2d at 861.
Allowing marijuana to be grown on the land for an extended period of time eliminated the
availability of the defense.
In this case, Defendant made periodic payments to FARC every few months for years: at
least 57 payments over a roughly ten-year period. Indeed, it commenced with a deliberative
process that unfolded over time, spanning two continents, involving several high-level
executives, all the while FARC patiently awaited its first payment not holding hostages on a
14
Chiquita farm, but hidden in its own encampment. When Keiser was prepared to make the first
payment, FARC did not come to him; he sent the payment to them. And so it went, demands
made, negotiations ensued, payments made, year after year after year, covering more and more
farms as Chiquita expanded its operations. When it was time for negotiations or payments, such
events did not occur at gunpoint on a Chiquita farm; they occurred in locations away from
Chiquitas business, scheduled in advance as with any other business transaction.
Even if one assumes some kind of threat occurred at some point, it was not continually
imminent as the law requires. See Alston, 526 F.3d at 96 ([C]ourts have only allowed the
defense where the immediacy and specificity of the threat is compelling . . . Other cases have
rejected the defense where the threat is diminished.) (citations omitted). The defense requires
nothing less than an immediate emergency. U.S. v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000).
A ten-year course of dealing belies the very notion of immediate emergency. In fact, there is
no evidence of a continuing presence of armed FARC terrorists on or near any of Defendants
properties, nor is there any evidence of a correlation between the occasional outburst of FARC
violence away from Defendants farms and any failures by Defendant to pay requested amounts
at requested times. In fact, whatever violence FARC perpetrated that Defendant can point to that
was directed toward its workers was unrelated to the fact that the workers were affiliated with
Chiquita. PSMF 66. Defendants FARC payments were not even protecting its employees
except when they were present on its farms. Therefore, the payments correlated directly with
Defendants farm ownership.
The FARC payments were made periodically, none at gunpoint and each payment
preceded and followed by periods of peace. Defendants only reason for not withdrawing from
banana production in Colombia was that it would hurt its business to do so. Paying FARC, on
15
the other hand, enabled it to expand that business. As Kistinger put it, Were not going to stop
doing business in Colombia because, you know, were going to have to spend an extra $25,000.
Thats not realistic. PSMF 94. Ordman, likewise, said the amounts paid to FARC were
considered insignificant in terms of the overall budget, and Keiser observed they never
approached a level where it would not have made sense economically to do business in
Colombia. There is no case holding that an intentional, planned course of dealing over such a
lengthy time span constitutes duress or necessity, because it does not. Cf. U.S. v. Jennell, 749
F.2d 1302, 1306 (2d Cir. 1984) (duress defense unavailable to defendant who participated in
marijuana importation and distribution conspiracy where the conspiracy lasted for more than a
year when defendant was under no immediate threat and, even if he was, had available means of
escape); U.S. v. Gaviria, 116 F.3d 1498, 1530-32 (D.C. Cir. 1997) (holding duress defense
unavailable to defendant who participated in drug distribution conspiracy for 13 months while in
prison while never reporting to law enforcement threats allegedly made against his family
members).
The Department of Justice stated during the sentencing hearing in connection with
Defendants guilty plea that, [f]or this company to say it had no choice but to be, quote, a
victim of extortion for years while it reaped the profits of those Colombian operations . . . does
not stand any legitimate scrutiny. Ex. dd, Transcript of Sentencing (Sept. 17, 2007) 30:2-8.
Defendant cannot proffer evidence to support a finding of immediate threat. For this reason
alone, the Court should enter judgment in Plaintiffs favor and preclude Defendant from
introducing this affirmative defense at trial.
C. Defendant Had Reasonable Opportunities to Escape or Notify Authorities
16
No reasonable jury could find duress under the undisputed facts of this case.
[C]ircumstances justify a duress defense only when the coercive party threatens immediate
harm which the coerced party cannot reasonably escape. Sixty Acres, 930 F.2d at 861 (no
duress where defendant had opportunity to flee or contact police but did neither) (emphasis in
original). In Sixty Acres, the Eleventh Circuit summed up the reasonable opportunity to escape
requirement:
[I]f the accused had a reasonable opportunity to avoid committing the illegal act without
subjecting himself to the threatened harm, or subsequently ignored a reasonable
opportunity to escape the source of the compulsion, the defense of duress is no longer
available.
Id. (quoting D. Lunde and T. Wilson, Brainwashing as a Defense to Criminal Liability: Patty
Hearst Revisited, 13 Crim. L. Bul. 341, 354-355 (1977)) (emphasis in source, alteration in Sixty
Acres); see also id. at 860 (We have refused to approve the duress defense in cases in which a
defendant [has] numerous reasonable opportunities to inform the police of his predicament.)
(quoting United States v. Lee, 694 F.2d 649, 654 (11th Cir. 1983)); Wattleton, 296 F.3d at 1196
n.20 (defendant must provide evidentiary foundation that, inter alia, he had no reasonable
opportunity to escape or inform [the] police.) (citation and internal quotation marks omitted).
These strictures apply with equal force to necessity as well: Under any definition of
these defenses one principal remains constant: if there was a reasonable, legal alternative to
violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened
harm, the defenses will fail. . . . Clearly, . . . the [defendant] is not entitled to claim a defense of
duress or necessity unless and until he demonstrates that, given the imminence of the threat,
violation of [the law] was his only reasonable alternative. Bailey, 444 U.S. at 410 (emphasis
added); see also U.S. v. Montgomery, 772 F.2d 733, 736-37 (11th Cir. 1985) (same).
17
As its security contractor recognized, Defendant had an eminently reasonable alternative:
exit from banana production in Colombia. See Plaintiffs Dep. Ex. 57; Ordman 30(b)(6) Dep. Tr.
96:19-97:21, 99:13-19, 131:7-11, 133:2-5, 135:12-136:2, 151:4-157:4. Or it could have asked
for assistance or advice from the Colombian or United States governments.9 It did neither. See
Keiser Dep. Tr. 215:7-10; Martinez Dep. Tr. 44:24-45:1; Kistinger Dep. Tr. 79:25-80:10;
Ordman 30(b)(6) Dep. Tr. 200:1-7. Yet, during all this time, and in the face of escalating FARC
violence, Defendant never considered exiting from its Colombia banana production operations.
Ordman 30(b)(6) Dep. Tr. 231:13-16. Nor did it ever report the situation to either the Colombian
or American governments. Keiser Dep. Tr. 215:7-10; Martinez Dep. Tr. 44:19-45:1; Kistinger
Dep. Tr. 79:25-80:10; Ordman 30(b)(6) Dep. Tr. 200:1-7. Instead, it continued buying up farms,
increasing banana productivity and, in what had become business as usual, making routine and
insignificant payments to FARC.10
Not only did Defendant have the ability to withdraw from Colombia, as its history
demonstrates, but it eventually did so. SOMF 96-101. In 1997 (around the time FARC was
designated a Foreign Terrorist Organization by the U.S. Department of State), it transitioned
from paying FARC to paying the AUC, a violent Colombian paramilitary organization. Ex. C,
Chiquita Factual Proffer, 19. At some point after AUC was also designated a FTO, an in-house
lawyer working in Defendants Cincinnati headquarters took notice and raised the red flag.
Defendant eventually self-reported to the Department of Justice that it was making payments to
9
See, e.g., U.S. v. Gonzalez, 407 F.3d 118, 122 (11th Cir. 2005) (defendant not entitled to jury instruction on
duress because her subjective belief that authorities would not help her did not excuse her failure to satisfy
requirement that a defendant invoking duress have no reasonable opportunity to escape or seek assistance from
authorities).
10
In 1990, Defendant purchased eight to ten farms. From 1991 to 1992, Defendant purchased approximately
five additional farms, and made at least four payments to FARC. And in 1993-1994, Defendant purchased
approximately twenty to twenty-three farms, and made at least sixteen payments to FARC. As it acquired nearly
five-thousand hectares of plantations, the payments were just another cost of doing business. PSMF 27.
18
AUC, and after a year of internal debate and discussions with DOJ, during which time Defendant
stubbornly continued to make payments, Defendant withdrew from Colombian banana
production, selling its operations in exchange for a banana supply contract, ensuring a continuing
supply of Colombian bananas. Ex. C, Chiquita Factual Proffer 2, 62, 64-73, 75-80, 83, 85-87;
Ex. K, SLC Report at 222. Notably, prior to Chiquitas withdrawal (and while it was continuing
to make the payments), Chiquitas outside counsel offered this advice: You voluntarily put
yourself in this position. Duress defense can wear out through repetition. Buz [business]
decision to stay in harms way. Chiquita should leave Colombia. In re Chiquita Brands Intl,
Inc. Alien Tort Statute and Shareholder Deriv. Litig., 190 F. Supp. 3d 1100, 1111 n.13 (S.D. Fla.
2016) (quoting Chiquita Factual Proffer 56). Against the advice of its counsel, it was not until
seventeen payments and one year later that the company finally departed Colombia. See Ex. C,
Chiquita Factual Proffer 64-80.
[A] defendant cannot claim justification as a defense for an illegal action he chose to
pursue in the face of other potentially effective, but legal options. U.S. v. Lomax, 87 F.3d 959,
962 (8th Cir. 1996); see also, e.g., U.S. v. Singleton, 902 F.2d 471, 473 (6th Cir.), cert. denied,
498 U.S. 872 (1990) ([T]he keystone of the analysis is that the defendant must have no
alternative either before or during the event to avoid violating the law.). By any measure,
Defendants conduct utterly fails the no reasonable alternatives test. For this reason, too, the
Court should enter judgment in Plaintiffs favor and preclude Defendant from raising this
defense at trial.
D. Defendant Intentionally Placed Itself In Harms Way
Moreover, Defendant did more than negligently or recklessly place itself into a situation
in which it was not merely probable, but certain that it would be faced with persistent financial
19
demands from FARC, Blanco, 754 F.2d at 943 it intentionally chose to do so. It steadily
acquired more and more farms, expanding into FARC territory knowing the danger it was facing.
This was a considered and purposeful business decision by a multinational corporation with
more than a century of experience in Latin America, and in Colombia in particular. Defendant is
not entitled to assert the defense of duress in circumstances where it intentionally placed itself,
where such threats were expected. See, e.g., U.S. v. Agard, 605 F.2d 665, 667-68 (2d Cir. 1979)
(defendant not entitled to a jury instruction on duress defense where he initiated altercation with
three men and then unlawfully used firearm to eject them from premises).
As a matter of law, Defendants self-inflicted circumstances neither excuse nor justify its
conduct. Blanco, 754 F.2d at 943 (A claim of duress and coercion will not afford a valid excuse
when a defendant has recklessly or negligently placed himself in a situation in which it was
probable that he would be subject to duress.). There is no fact issue for a jury to resolve. As a
matter of law, Defendant is not entitled to make any duress or necessity argument at trial.
Judgment should be entered for Plaintiffs and the defense stricken.
III. DEFENDANT IS NOT SEPARATE FROM THE MISCONDUCT IT

PERPETRATED
Defendants Fifth Affirmative Defense is a red herring. Plaintiffs do not seek to hold
Defendant vicariously liable for the independent acts of an independent subsidiary, but for its
own acts, and the policies, decisions and actions of its senior managers and employees, many of
whom worked in Defendants corporate headquarters in Cincinnati, where the corporate policy
of paying FARC was first adopted.
A. Defendants Corporate Headquarters At All Times Directed Its Payment

Program.
20
Defendants senior executives developed the policy, and delegated the task of handling
specific payments to managers in Colombia. Defendants employees in Colombia, including
corporate security personnel Stabler and Alvarado, were directly involved in facilitating the
payments, keeping records of them, and reporting them up through multiple lines of Chiquita
management. As Chiquita corporate security personnel, they reported directly to Bakoczy,
Chiquitas director of global security in corporate headquarters, and they regularly kept him
informed of the payments. Bakoczy, in turn, reported the payments to Morgan, Chiquitas
General Counsel. Those Chiquita corporate security personnel obtained authorization from
Keiser, the General Manager of Defendants Colombia operations, who received his
compensation from Defendant, reported to and took direction from Defendants managers,
considered himself a Chiquita employee, and was executing corporate policy first promulgated at
a meeting at corporate headquarters in Cincinnati. Ordman, Defendants Vice President for its
Latin American banana business, was based in Panama City (and then Costa Rica) but was
Keisers supervisor and he had oversight responsibility for the FARC payments in Colombia.
White, Defendants Vice President of internal audit, promulgated guidelines for maintaining
accurate (albeit secret) books and records so the payments could be audited by the internal audit
and legal departments periodically, and he personally visited Colombia at least once to audit the
FARC payment program and discuss it with Keiser, Alvarado and others. Defendants senior
counsel, Thomas, reviewed the payments periodically, interfaced with Escobar, the head of
Chiquitas legal department in Colombia, and he, too, reported them to Morgan. Kistinger,
Defendants Executive Vice President of Operations for the Tropical Products Division, and then
Senior Executive Vice President of the Banana Group, participated in establishing the payments
as corporate policy, was regularly kept updated, and he met periodically with Ordman to review
21
the guerrilla payment budget and ensure that the people on the ground in Colombia were
operating within the established budget guidelines. Those FARC payment funds were
included in the subsidiarys annual budget.
There is no evidence whatsoever that the FARC payment program was anything other
than Defendants own program, set up to protect its growing investment in Colombian banana
plantations and the people found on those grounds. Defendant is being accused for its own
actions. Its attempt to hide behind corporate formalities is a charade that must be rejected so that
Defendant may be held to account for its unlawful conduct.
B. Defendant Has Formally Admitted Chiquita and not some subsidiary

Paid FARC
On March 19, 2007, Defendant pled guilty to a one-count criminal information charging
it with the felony of Engaging in Transactions with a Specially-Designated Global Terrorist, for
making a regular stream of payments to the violent right-wing terrorist group, AUC.
Accompanying the formal guilty plea was a Factual Proffer, signed by Defendants CEO,
admitting to all the facts set forth therein. Both the Criminal Information and the Factual Proffer
contain the following statement:
Defendant CHIQUITA had previously paid money to other terrorist organizations

operating in Colombia, namely to the following violent, left-wing organizations:
Revolutionary Armed Forces of Colombia an English translation of the Spanish name
of the group Fuerzas Armadas Revolucionarias de Colombia (commonly known and
referred to hereinafter as the FARC).
Ex. C, Factual Proffer, 20. The Factual Proffer closes with the statement by Defendants Chief
Executive Officer that [o]n behalf of Chiquita Brands International, Inc. . . . I hereby stipulate
that the above statement of facts is true and accurate[,] . . . [and that] the United States would
have proved the same beyond a reasonable doubt. Ex. C, Factual Proffer at p. 17 (emphasis
added). The Factual Proffer was also signed by Defendants counsel, who stated: I have
22
carefully reviewed the above statement of facts with my client. To my knowledge, the decision
to stipulate to these facts is an informed and voluntary one. Id. The Factual Proffer does not
reference Banadex or any other Chiquita subsidiary.
On September 17, 2007, Defendant appeared through its counsel at its Rule 11 plea
hearing. During the governments allocution, the Department of Justice attorney appearing for
the government stated that [f]rom around 1989 through 1997, defendant Chiquita paid money to
two violent, left-wing terrorist organizations in Colombia, namely, the FARC and the ELN. Ex.
dd, Sentencing Tr. at 8:6-8. In opening Defendants allocution, its counsel stated that [t]he plea
and the factual proffer were carefully worked out. Id. at 21:1-2. Defendants counsel
confirmed the governments statement about Defendant paying, among others, FARC. Id. at
22:1-4. Although Defendants counsel took issue with several of the governments statements,
in the end he stated that we stand by our plea with these corrections as to the governments
statements . . . Id. at 28:20-21. Those corrections did not include anything concerning
Defendant making payments to FARC, nor did they point to Banadex or any other Chiquita
entity as the responsible party.
Defendant thus admitted in signed, formal plea documents and by allocution in a Fed. R.
Crim. P. 11 hearing in open court before a U.S. District Judge that Defendant made the FARC
payments at issue in this litigation. [M]ost courts give a judgment based on a guilty plea the
same collateral effect as any other criminal conviction, conclusive of all issues that would have
been resolved by a conviction following a contested trial. In re Raiford, 695 F.2d 521, 523
(11th Cir. 1983) (citations omitted). Although a guilty plea eliminates the need for a contested
trial, a federal court cannot enter judgment upon the plea unless it determines that a factual basis
exists for it. . . . A federal criminal defendant wishing to avoid both a jury trial and any collateral
23
estoppel effects may ask for court permission to plead nolo contendere. . . . A defendant who
fails to exercise this option cannot argue subsequently that the lack of a contested trial renders
his plea ineffective for collateral estoppel purposes. Id; see also Miller v. Holtzman, 563 F.
Supp.2d 54, 79 (D.D.C. 2008) (Lamberth, D.J.),11 affd in relevant part, vacated in part, and
remanded, U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871 (D.C. Cir. 2010),
(Federal Rule of Criminal Procedure 11(f) mandates that before entering judgment on a guilty
plea, a court must mak[e] such inquiry as shall satisfy it that there is a factual basis for the plea.
. . . Because the court may not enter judgment without this factual basis, there is good reason to
give preclusive effect to factual admissions made in Rule 11 proceedings.) (quoting Fed. R.
Crim. P. 11(f)).12 These considerations suggest that factual admissions in a Rule 11 proceeding
may broaden a guilty pleas preclusive effect beyond the mere abstract elements of the crime
charged. Indeed, various other courts have approved the extension of pleas collateral estoppel
effects to defendants accompanying factual admissions. Id. (citations omitted).
Defendants Fifth Affirmative Defense contradicts its admission in the Factual Proffer.
Unlike the criminal proceeding in which Defendant accepted full responsibility for the FARC
payments, in this proceeding Defendant places all the blame upon its former subsidiary. This is
unacceptable. Defendant was well-represented by highly regarded counsel, it was and still is a
sophisticated multinational corporation, the sentencing documents reveal that Defendants plea
was the result of lengthy, intensive negotiations, and Defendant clearly understood the factual
statements to which it was admitting. The government took the position that it would prove
every fact in the Factual Proffer if the case went to trial, and Defendant agreed that it could do
11
Judge Lamberth presided over Defendants sentencing hearing.
12
Moreover, a defendant may choose to plead only to particular portions of an indictment, thus limiting his
pleas potential preclusive effect. Id. (citing United States v. Podell, 572 F.2d 31, 36 (2d Cir. 1978))
24
so. The same points were made by the government and Defendants counsel at its plea
allocution. Having admitted in a criminal proceeding, where the government bore a substantially
greater burden of proof, that Defendant made the FARC payments, it should be collaterally
estopped from taking a contrary position in this litigation. Kratom Lab, Inc. v. Mancini, No. 11-
80987-CIV-MARRA, 2013 WL 3927838, at *4 (S.D. Fla. July 29, 2013).
Moreover, Defendants plea deal was not the only time in a contested litigation
proceeding it took the position that it was responsible for the FARC payments. On September
23, 2008, Defendant commenced a declaratory judgment action against three of its insurers,
seeking coverage for the costs of its defense in (among others) this action. Ex. Y, Ins. Compl.,
18 Throughout the litigation, Defendant maintained that its decision, made at corporate
headquarters in Cincinnati, to have Banadex make payments to FARC and other terrorists, was
the occurrence that triggered policy coverage. Id. 33. In fact, among the voluminous
documents made part of the record by Chiquita to support its position was Bies Exhibit 21
Chiquitas 2007 Factual Proffer. Ex. W, Ins. Litig. Mot. for Partial S.J. at 7 and n.8. Following
a bench trial, the Ohio court ruled in Chiquitas favor, holding that the location of the
occurrence was within the coverage territory. Chiquita Brands Intl, Inc. v. National Union
Fire Ins. Co. of Pittsburgh, PA, 988 N.E.2d 897, 902 (Ohio Ct. of App. 2013). Although the
Ohio Court of Appeals ruled that the occurrence was the place of injury in Colombia and
reversed the judgment, it accepted the trial courts factual findings: the decision to pay the
terrorist groups was made at Chiquitas corporate headquarters in Cincinnati, Ohio. The
employees in Colombia simply implemented that policy . . . . Id. These findings were amply
supported by affidavits put into evidence by Chiquita attesting that the guerrilla payments were
made pursuant to a corporate policy decision by Chiquita senior executives to delegate
25
authority to make specific, individual payments to Banadex management in Colombia. Ex. ll,
Affidavit of Robert Kistinger, at 6-7; Ex. mm, Affidavit of John Ordman, at 4. Having
persuaded the Ohio courts to accept this position as true, fairness dictates it be precluded from
taking an inconsistent position in this action.
C. Defendant Is Directly Liable For Its Own Conduct
Defendants Fifth Affirmative Defense implicitly asks the Court to presume that because
the FARC payments were made in Colombia, Plaintiffs bone of contention lies with Banadex
and not Defendant. Nothing could be further from the truth. The entirety of the evidence in this
action paints a solid line through tiers of managers and employees directly to Defendant. There
is no basis in law or in fact upon which to draw the conclusion that Defendant is alleviated of
liability simply because it operated in Colombia through a subsidiary. Defendant established the
corporate policy, Defendant set the budgets, Defendant established procedures for keeping the
books virtually every single person involved with the FARC payments at any level, in any
capacity, worked for Defendant.13
Regardless of corporate formalities, Defendant is directly liable for its own acts. As
Justice (then-Professor) Douglas noted . . . derivative liability cases are to be distinguished from
those in which the alleged wrong can seemingly be traced to the parent through the conduit of
its own personnel and management and the parent is directly a participant in the wrong
complained of. . . . In such instances, the parent is directly liable for its own actions. United
States v. Bestfoods, 524 U.S. 51, 64-65 (1998) (quoting Douglas & Shanks, Insulation from
Liability Through Subsidiary Corporations, 39 Yale L.J. 193, 207-208 (1929), and citing H.
Henn. & J. Alexander, Laws of Corporations, 347 (3d ed. 1983)). Here, the corporate policy
13
Tellingly, Defendant disregarded corporate formalities when it suited its purpose. For instance, Chiquita
drew the first FARC payment not from its Colombia subsidiarys accounts, but from that of its Honduras subsidiary.
26
decision to pay FARC was established by the parent through several of its senior managers,
who then delegated the task of handling specific, individual payments to managers in
Colombia. Ex. ll, Kistinger Aff. 7; Ex. mm, Ordman Aff. 4. The payments were administered
by the corporate parents security personnel, supervised by the parents head of global security.
The subsidiarys general manager, who authorized most of the payments, received his
compensation directly from the parent, he answered to and took direction from parent
management, he considered himself an employee of the parent, and he directly interacted with
respect to the FARC payments with the parents Vice President of Latin America operations
who, in turn, was responsible for ensuring the parents FARC payment policy was followed.
Further, the entire operation was monitored by the parents internal audit and legal departments,
while the parents Executive Vice President of Operations for the Tropical Products Division met
periodically with the parents Senior Vice President and Regional Manager to discuss whether
the payment program was staying within the established budget.
Few Banadex employees knowingly participated in this scheme. One could analyze this
set of facts through the lenses of veil piercing, alter ego or agency theory, but it would be a
pointless exercise, circling right back to this point: this case is a paradigmatic example of
corporate parent direct liability.14 If this case does not qualify as such, none can. To be sure,
Banadex was established for a legitimate business purpose; holding and operating assets in
remote geographic locations is a traditional use of the corporate form. But when it became
evident soon after the first farm acquisitions that Defendant was going to have a FARC-related
problem, Defendants senior managers made the crucial decision and Defendants managers and
employees took care of that piece of the business, while Banadex employees went about their
14
In the unlikely event Defendant is permitted to raise its Fifth Affirmative Defense at trial, Plaintiffs reserve their
right to argue both direct and vicarious liability theories to the jury.
27
business of producing bananas. Clearly, the FARC payments can be traced to the parent
through the conduit of its own personnel and management[.] Bestfoods, 524 U.S. at 64. The
undisputable evidence demonstrates that as a matter of law Defendant is not entitled to raise this
defense at trial. Judgment should be entered in Plaintiffs favor on Defendants Fifth
Affirmative Defense.
CONCLUSION
Defendants Fourth and Fifth Affirmative Defenses have no foundation in fact and no
basis in law. Plaintiffs respectfully submit that the Court should enter judgment in their favor
and preclude Defendant from presenting these defenses at trial.
Dated: March 31, 2017 Respectfully submitted,
/s/ Ramon A. Rasco

Robert C. Josefsberg (Fla. Bar No. 040856)
rjosefsberg@podhurst.com
Ramon A. Rasco (Fla. Bar No. 0617334)
rrasco@podhurst.com
PODHURST ORSECK, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
Telephone (305) 358-2800
Facsimile: (305) 358-2382
Counsel for all Plaintiffs
Steven M. Steingard
ssteingard@kohnswift.com
Stephen H. Schwartz
sschwartz@kohnswift.com
Neil L. Glazer
nglazer@kohnswift.com
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
(215) 238-1700
28
Gregory P. Hansel (Fla. Bar No. 607101)

ghansel@preti.com
Jeffrey T. Edwards
jedwards@preti.com
Jeffrey D. Talbert
jtalbert@preti.com
PRETI, FLAHERTY, BELIVEAU
& PACHIOS, LLP
One City Center
P.O. Box 9546
Portland, ME 04112-9546
(207) 791-3000
Gary M. Osen
gosen@osenlaw.com
Ari Ungar
aungar@osenlaw.com
Aaron Schlanger
aschlanger@osenlaw.com
Peter Raven-Hansen
pravenhansen@gmail.com
OSEN LLC
2 University Plaza, Suite 402
Hackensack, New Jersey 07601
(201) 265-6400
Beth J. Kushner
VON BRIESEN &ROPER, S.C.
411 East Wisconsin Avenue, Suite 700
Milwaukee, WI 53202
(414) 287-1373
Counsel for Plaintiffs Tania Julin, et al.
Steve W. Berman
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Ave, Suite 3300
Seattle, WA 98101
Telephone: 206-623-7292
Facsimile: 206-623-0549
steve@hbsslaw.com
29
Nathaniel A. Tarnor
555 Fifth Avenue, Suite 1700
New York, NY 10017
Telephone: 212-752-5455
Facsimile: 212-210-3980
nathant@hbsslaw.com
Kiersten Taylor
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
Telephone: 617-475-1956
Facsimile: 617-482-3003
kierstent@hbsslaw.com
Counsel for Plaintiffs Pescatore & Sparrow, et al.
30
CERTIFICATE OF SERVICE
I, Ramon A. Rasco, hereby certify that on March 31, 2017, I caused the attached
Plaintiffs Motion for Summary Judgment on Defendants Fourth and Fifth Affirmative Defenses
to be served by Electronic Mail in accordance with the Federal Rules of Civil Procedure upon the
following counsel for Defendant:
Aseem Padukone James M. Garland

Covington & Burling, LLP Covington & Burling, LLP
One Front Street One City Center
San Francisco, CA 94111-5356 850 Tenth Street, NW
Email: apadukone@cov.com Washington, DC 20001-4956
Email: jgarland@cov.com
Cyril Djoukeng
Covington & Burling, LLP James Copley Gavigan, Jr.
One City Center Jones, Foster, Johnston & Stubbs, P.A.
850 Tenth Street, NW 505 South Flagler Drive
Washington, DC 20001-4956 Suite 1100
Email: cdjoukeng@cov.com West Palm Beach, FL 33401
E-mail: jgavigan@jonesfoster.com
Emily R. Freeman
Covington & Burling, LLP John E. Hall
The New York Times Building Covington & Burling LLP
620 Eighth Avenue One City Center
New York, NY 10018-1405 850 Tenth Street, NW
Email: efreeman@cov.com Washington, DC 20001-4956
E-mail: jhall@cov.com
Eric Hellerman
Covington & Burling, LLP Jonathan M. Sperling
The New York Times Building Covington & Burling LLP
620 Eighth Avenue 650 Eighth Avenue
New York, NY 10018-1405 New York, NY 10018-1405
Email: ehellerman@cov.com E-mail: jsperling@cov.com
Jaclyn E. Martinez Resly Robert William Wilkins

Covington & Burling, LLP Jones, Foster, Johnston & Stubbs, P.A.
One City Center 505 South Flagler Drive
850 Tenth Street, NW Suite 1100
Washington, DC 20001-4956 West Palm Beach, FL 33401
Email: jmartinezresly@cov.com E-mail: rwilkins@jonesfoster.com
Ligia M. Markman Jose E. Arvelo

One City Center One City Center
850 Tenth Street, NW 850 Tenth Street, NW
Washington, DC 20001-4956 Washington, DC 20001-4956
E-mail: lmarkman@cov.com E-mail: jarvelo@cov.com
31
Mark W. Mosier Shankar Duraiswamy

One City Center One City Center
850 Tenth Street, NW 850 Tenth Street, NW
Washington, DC 20001-4956 Washington, DC 20001-4956
E-mail: mmosier@cov.com E-mail: sduraiswamy@cov.com
Maureen F. Browne Sidney Alton Stubbs, Jr.

Covington & Burling, LLP Jones, Foster, Johnston & Stubbs, P.A.
One City Center 505 South Flagler Drive
850 Tenth Street, NW Suite 1100
Washington, DC 20001-4956 West Palm Beach, FL 33401
E-mail: mbrowne@cov.com E-mail: sstubbs@jonesfoster.com
Megan L. Rodgers Stephanie Shropshire

333 Twin Dolphin Drive One City Center
Suite 700 850 Tenth Street, NW
Redwood Shores, CA 94065 Washington, DC 20001-4956
E-mail: mrodgers@cov.com E-mail: sshropshire@cov.com
/s/ Ramon A. Rasco

Ramon A. Rasco, Esq.
32

Chiquita Julin Plaintiffs MSJ On Affirmative Defense of Duress

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Case 0:08-md-01916-KAM Document 1323 Entered on FLSD Docket 03/31/2017 Page 1 of 37

UNITED STATES DISTRICT COURT

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

TANIA JULIN, et al.,

CHIQUITA BRANDS INTERNATIONAL, INC.

OLIVIA PESCATORE, et al.,

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

ESTATE OF JANE PESCATORE SPARROW,

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON

Buccellati Holding Italia SPA v. Laura Buccellati,

Celotex Corp. v. Catrett,

Global Quest, LLC v. Horizon Yachts, Inc.,

Kratom Lab, Inc. v. Mancini,

U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc.,

U.S. v. Sixty Acres in Etowah Cty.,

United States v. Bestfoods,

United States v. Jennell,

United States v. Karr,

United States v. Lee,

United States v. Marder,

United States v. Podell,

United States v. Villegas,

Anti-Terrorism Act, 18 U.S.C. 2331 et seq. ...................................................................2, 4, 5, 6

H. Henn. & J. Alexander, Laws of Corporations ...........................................................................27

Federal Rule of Criminal Procedure 11(f) ...............................................................................23, 24

D. Lunde and T. Wilson, Brainwashing as a Defense to Criminal Liability: Patty

Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations,

Plaintiffs move for summary judgment on Defendants Fourth Affirmative Defense,

Defendants corporate separateness defense fares no better, in no small part because it

fully reinforce. Furthermore, persons working for or on behalf of Defendants Colombian

Terrorism Act, 18 U.S.C. 2331 et seq..

Colombia, relying completely on local farmers for supplies. PSMF 5.

sources of food products such as bananas. PSMF 22.

from local owners. PSMF 25-27.

attracting FARCs attention. PSMF 38-39.

headquarters in Cincinnati, Ohio. PSMF 42, 8. At Ordmans direction, Keiser flew to

of paying FARCs demands, delegated authority to handle specific, individual payments to

made a strategic, voluntary decision predicated on business considerations and unrelated to

PSMF 30, 33, 38.

Al Bakoczy, Defendants head of corporate security, regularly circulated reports

missionaries had been kidnapped by FARC. Id.

five plantations in Colombia, covering a sprawling four- to five-thousand hectares, producing at

agreed, benefiting Defendant in at least three respects: offering an opportunity through

cost of doing business. PSMF 40, 56, 59.

ownership. PSMF 40.

went to great lengths to hide the problem.

Justice observed in its sentencing memorandum, Regardless of the Companys motivations,

terrorism. Simply put, defendant Chiquita funded terrorism. PSMF 103.

terrorism. I would agree with that. PSMF 104.

Holding, 5 F. Supp. 3d at 1372.

II. DEFENDANT WAS NOT ACTING UNDER DURESS

Defendants claim of duress in these circumstances is unprecedented. Plaintiffs could

multinational corporations are sophisticated enterprises, with professional managers, lawyers,

execution of a business plan. Plaintiffs are entitled to judgment on this defense.

A. Legal Requirements of the Duress and Necessity Defense

claim, including scienter. Dixon v. U.S., 548 U.S. 1, 6-7 (2006).

subject to duress. Blanco, 754 F.2d at 943.

B. There Was No Immediate Threat

availability of the defense.

Chiquitas business, scheduled in advance as with any other business transaction.

no evidence of a continuing presence of armed FARC terrorists on or near any of Defendants

Defendants farm ownership.