Chiquita’s Motion to Dismiss Met with Opposition Concerning Statutes of Limitations and the ATA

We have been following the Chiquita Brands, International, Inc. (“Chiquita”) case since August 2007.  Chiquita filed a motion to dismiss in February 2009. 

In September, plaintiffs filed a Response in Opposition to Chiquita’s motion to dismiss.  Plaintiffs argue that they adequately pled a cause of action pursuant to 18 U.S.C.  § 2333(a), which states that any American citizen injured by international terrorism may sue in any appropriate district in the U.S.  They contend that Congress enacted this provision to prevent the flow of money to terrorists, and that the complaint sufficiently alleges that plaintiffs are victims of international terrorism. 

Furthermore, plaintiffs maintain that their Anti-Terrorism Act’s (“ATA”) claims were timely filed and sufficiently described their state causes of action.  While Chiquita argued in its motion to dismiss that both of these claims were barred by various statutes of limitations, plaintiffs state that their ATA claims were timely filed because the four year statute of limitations commenced when the plaintiffs became aware of the injury.

Plaintiffs also argue that they filed their Colombian law claims well within the twenty year Colombian statute of limitations, and that they timely filed their state law claims in Ohio, New Jersey, and Alabama under those states’ state tolling and accrual rules.

Moreover, plaintiffs allege that they stated their cause of action sufficiently because plaintiffs are all citizens who have been harmed by international terrorism, allegedly at the hand of Chiquita.

Plaintiffs later filed a Notice of Supplemental Authority, which included a copy of Goldberg, et al. v. UBS, AG.  2009 WL 3077118 (E.D.N.Y. 2009).  Plaintiffs suggest that since this opinion, which centered on a similar fact pattern, denied the defendant’s motion to dismiss, Chiquita’s motion to dismiss should be similarly denied.

Simultaneous with the filing of their Response in Opposition, plaintiffs filed a Motion for Hearing regarding defendant’s motion to dismiss.  Plaintiffs argue for oral argument because of the complex choice-of-law issues related to applying D.C. rules of procedure to the substantive law of a foreign jurisdiction.  They also urge that the complicated issues concerning the ATA substantive provisions and statute of limitations warrant additional oral argument.

Chiquita filed a reply brief on October 5, claiming that the statute of limitations prescribed by the ATA and the various state and foreign jurisdictions bar plaintiffs’ claims.  They reason that the statute of limitations must be measured from commencement of the criminal action, and not when the plaintiffs discover the harm.  Chiquita, in an apparent attempt to cast the plaintiff’s statute of limitations arguments as equitable tolling, claims that there is no reason to equitably toll the ATA’s statute of limitations in this case.  Chiquita also argues that the court should bar the state law claims because plaintiffs failed to file their cause of action within the statute of limitations and plaintiffs failed to sufficiently plead their negligence and direct liability claims.

Additionally, Chiquita filed a Notice of Supplemental Authority, citing Presbyterian Church of Sudan v. Talisman Energy, Inc, a case dealing with the appropriate mental state required for aiding and abetting liability in ATA claims. 582 F.3d 244 (2d Cir. 2009).  The court in Presbyterian Church of Sudan held that the appropriate mental state required for aiding and abetting liability is purpose, rather than knowledge alone.  Defendants point to this case in order to show that while the company may have had knowledge of criminal acts, its purpose was not to aid or abet any violation of international law.

The plaintiffs responded on October 10, claiming Presbyterian Church of Sudan, directly conflicted with 11^th Circuit precedent concerning aiding and abetting and conspiracy set forth in Cabello v. Fernandez- Larios.  402 F.3d 1148 (11th Cir. 2005).             

On October 19, 2009, Chiquita filed a Motion for Leave to File a Reply to the plaintiffs’ arguments relating to Chiquita’s Notice of Supplemental Authority.  Chiquita addressed plaintiff’s citation of Presbyterian Church of Sudan.  The company asserted that Cabello dealt with unrelated ATA issues, allowing the present court to rely on persuasive authority like Presbyterian Church of Sudan when determining the appropriate mental state for ATA aiding and abetting liability.  Chiquita pressed that the rule set forth in Presbyterian Church of Sudan suggests a “purpose test” in order to prove aiding and abetting, which plaintiffs have failed to allege.

We will continue to follow the case as it develops and report on any subsequent filings. 

The primary materials for this post can be found on the DU Corporate Governance website.