On June 5, 2020, CJA and partners at Harvard Law School’s International Human Rights Clinic filed an amicus brief in support of the plaintiffs’ appeal to the Eleventh Circuit in the case Doe v. Chiquita, seeking reversal of the district court’s grant of summary judgment. In addition to CJA, the amici curiae signing on to the brief included the nongovernmental organization, Partners in Justice International, and several leading international law scholars and practitioners. The amici intervened to identify errors in the district court’s analysis of the plaintiffs’ evidence and to challenge the district court’s conclusion that the plaintiffs did not have sufficient admissible evidence linking paramilitary groups to the murders of plaintiffs’ relatives to survive summary judgment.
Background
Formed in 1997, the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia) (“AUC”) was an organization of right-wing paramilitary groups aligned with the government of Colombia and the Colombian military against left-wing guerrillas. After its formation, the AUC quickly became the dominant armed group in the banana-growing regions of Colombia where the prominent banana company, Chiquita Brands International, Inc. (“Chiquita”), operated. While in control of these regions, the AUC carried out acts of extreme violence against the population, including many brutal and public murders. The AUC, through these acts, was targeting “subversives,” individuals allegedly working against the Colombian government and its affiliates. Chiquita, as a prominent business in the region, paid the AUC to protect its interests.
In 2007, Chiquita pled guilty to charges brought by the U.S. Department of Justice, admitting to financing the AUC in contravention of the U.S.’s designation of the AUC as a Foreign Terrorist Organization. Plaintiffs representing family members killed by the AUC filed numerous civil suits against Chiquita and many of its executives which were consolidated in 2008 into a multi-district litigation in the Southern District of Florida. The plaintiffs in these suits alleged that Chiquita had paid approximately 1.7 million dollars to the AUC from 1997 to 2004, supporting its activities despite being aware of the AUC’s violent nature. Once the suits were consolidated, the District Court for the Southern District of Florida chose a selection of bellwether cases to move forward into discovery and from these cases, scheduled several for bellwether trials.
CJA’s Amicus Brief
Before the commencement of trial for the initial cases, defendants filed motions for summary judgment which the district court granted on September 5, 2019. In ruling on the motions for summary judgment, the district court found that the majority of the plaintiffs’ evidence regarding the murder of their relatives by the AUC was inadmissible and insufficient to create genuine issues of material fact as required to withstand a motion for summary judgment. The court determined that no reasonable juror could conclude that the AUC was responsible for the murders alleged by the plaintiffs based on the evidence presented. CJA and the rest of the amici curiae filed a brief to challenge the district court’s evaluation of the evidence for the purposes of the summary judgment motions.
Our brief identified two main issues in the district court’s evidentiary analysis. First, in a break from established Supreme Court and Eleventh Circuit precedent, the district court erroneously assessed the probative value of each piece of evidence and concluded that each piece standing alone was inadmissible, rather than considering the probative value of the evidence as a whole. Our argument cited numerous examples of cases from the Eleventh Circuit and beyond in which the court had examined the totality of the evidence in the context of a summary judgment motion, instead of solely considering the individual impact of each piece of evidence. We also highlighted the practices of international criminal tribunals to demonstrate that this evidentiary approach is particularly essential in cases involving extensive patterns of violence and mass atrocities.
Second, we argued that the district court erred in failing to recognize that circumstantial evidence is sufficient to withstand summary judgment, even without additional direct evidence. Our brief again cited both Supreme Court and Eleventh Circuit precedent that spoke to the value and persuasiveness of circumstantial evidence. As we explained, circumstantial evidence, such as evidence of patterns of behavior or of modus operandi, is routinely used and accepted by U.S. courts and international tribunals, especially in cases relating to mass atrocities or abuses where obtaining direct evidence can be difficult.
In addition, we argued that the district court’s failure to apply the proper evidentiary standards led it to erroneously conclude that there was insufficient evidence linking the AUC to the murders of plaintiffs’ relatives. Indeed, the district court’s conclusion as regards the commission of crimes by the AUC is an outlier and stands in direct contrast to the findings of numerous other courts and agencies, including those of the U.S. Department of Justice, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, and the Colombian Supreme Court.
On June 15, 2020, the defendants filed an opposition to CJA’s request to file an amicus brief. CJA and the amici filed a reply to this opposition on June 22, 2020, asserting that the unique backgrounds and experience of the amici would assist the Court in its deliberations. Three days later, the Eleventh Circuit granted leave for us to file our amicus brief.
The Eleventh Circuit is currently considering all the briefs on appeal and a decision is pending.
Documents
June 17, 2021: Amicus on pseudonymity, in support of certiorari (US Supreme Court)
August 13, 2020: Chiquita amicus on pseudonymity
June 22, 2020: Amici reply to Chiquita response
June 15, 2020: Chiquita opposition to amicus motion
June 5, 2020: CJA Motion to file brief and amicus brief
