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In Re Chiquita Brands: Opposition To Motion For Reconsideration Based On Twitter V Taamneh
In Re Chiquita Brands: Opposition To Motion For Reconsideration Based On Twitter V Taamneh
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ATS ACTIONS:
07-60821-CIV-MARRA (Carrizosa)
08-80421-CIV-MARRA (N.J. Action) (Does 1-11)
08-80465-CIV-MARRA (Does 1-144/Perez 1-795)
08-80508-CIV-MARRA (Valencia)
08-80408-CIV-MARRA (N.Y. Action) (Manjarres)
10-60573-CIV-MARRA (Montes)
10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (Does 1-2146)
17-81285-CIV-MARRA (D.C. Action) (Does v Hills)
18-80248-CIV-MARRA (Ohio Action) (John Doe 1)
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The Defendants argue that the recent Supreme Court decision in Twitter, Inc. v. Taamneh,
598 U.S. ___, 143 S. Ct. 1206 (2023) has altered the standard for aiding and abetting under two
cases cited by the Court, Boim v. Holy Land Foundation for Relief and Development, 549 F.3d
685 (7th Cir. 2008) and Atchley v. AstraZeneca UK Ltd., 22 F. 4th 204 (D.C. Cir. 2022). [DE
3246 at 4, citing DE 3238 at 73-80] The Boim court had held that "it is enough, under a statue
requiring proof of intentional or reckless misconduct, to show that the contributor understood the
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mission of the organization because this amounts to knowingly contributing to the organization’s
terrorist activities; and liability is justified where the combined resources pooled by knowing
contributors 'as a whole' would have 'substantially enhanced the risk of terrorist acts' and the
probability that the plaintiff’s decedent would be a victim." Order, DE 3238 at 78, citing Boim at
698. According to the Defendants, "the [Supreme] Court rejected the reasoning in cases like Boim
and Atchley, which held that a more generalized understanding of an organization’s mission is
The Plaintiffs disagree. The reasoning in these cases wasn't rejected. Neither case was
even cited in Twitter, which relied on the well-settled test for aiding and abetting liability in
Halberstam v. Welch, 705 F. 2d 472 (D.C. Cir. 1983). The standard in Halberstam is knowing,
substantial assistance. The 31-page Twitter case referred to Halberstam v. Welch approximately
74 times, more than twice per page. To say that Halberstam is still good law would be an
understatement. In contrast, the Defendants don't refer to Halberstam at all, which is the settled
standard for aiding and abetting for federal claims, and what the Twitter case was about.
This Court found the parties' arguments about whether "but-for" causation exists in
of secondary liability. DE 3238 at 77. "Under federal and state common law doctrine under
United States jurisprudence, causation is defined differently in the secondary liability context;
here, the causal connection requires a showing of 'knowing substantial assistance' to the primary
malefactor. If this standard is met, it is no defense to point to the ability of the primary tortfeasor
to exert its will without that aid. Id. at 77, citing Doe v. Drummond, 782 F.3d 576, 608 (11th Cir.
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2015) (affirming knowing substantial assistance as proper standard for measuring aiding and
abetting liability under federal common law and TVPA). The Court also cited El Camino
Resources Ltd. v. Huntington National Bank, 722 F. Supp. 2d 875 (W.D. Mich. 2010), which held
that the “substantial assistance” requirement for aiding and abetting fraud and conversion requires
a showing that the secondary party “proximately caused” the violation, such that its encouragement
Thus, the entire basis for Chiquita's Motion to Dismiss - that "but-for" causation must be
shown to satisfy the Colombian concept of "fault" in joint tortfeasor cases - was found inapplicable
because the Plaintiffs had alleged aiding and abetting. This might have ended the analysis and
resulted in the denial of the Motion on this basis, since it is the Movant's burden to prove foreign
law. However, the Court treated the the Defendants' Motion as one challenging the aiding and
abetting standard instead. "As neither side has illuminated the substantive contours of Colombian
law on this precise issue, the Court will assume, for purposes of this motion, that Colombian law
is in accord with Florida law on the point, and hence requires a showing that a defendant has
It is noteworthy that the Defendants, in their Motion for Reconsideration, still make no
attempt to distinguish Colombian law on this point. They could have submitted another declaration
by Judge Ballesteros explaining Colombian law on aiding and abetting, and argued how this differs
from Florida law, but didn't do so. They also failed to raise the argument that the Court should not
have applied Florida law. The Defendants simply return to the argument, which has been rejected
many times, that aiding and abetting liability requires the aider and abettor to have detailed
knowledge of the details of the crimes to be committed. It doesn't. It merely requires forseeability.
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The Defendants' construction of their arguments also causes confusion over whether the
federal common law should apply. The Boim and Atchley cases were ATA and JASTA cases,
which are Federal causes of action, as was Twitter, yet the Defendants want this Court to reconsider
(Colombian) state law claims. And not reconsider the Torture Victim Protection Act claims in the
instant case, which are Federal claims subject to the federal common law, and the Halberstam
standard for aiding and abetting. Counsel invites the Defendants to explain why Halberstam, the
case mentioned 74 times in Twitter as the aiding and abetting standard, doesn't appear anywhere
in their brief.
B. Chiquita's financial support of the the AUC was direct and substantial, unlike
the passive assistance that Twitter provided to all of its users.
The facts of the instant case are completely unlike those in Twitter. In Twitter, a gunman
entered the Reina nightclub in Istanbul, Turkey, and fired over 120 rounds into a crowd of people,
killing 39 and injuring 69 others. Id. at 2. The next day, ISIS (the so-called Islamic State of Iraq
and Syria, a terrorist group) released a statement claiming responsibility for the attack. Id. Like
many others around the world, ISIS and its supporters had accounts on Facebook, YouTube, and
Twitter, and uploaded videos and messages for others to see. Id. at 4. ISIS was alleged to have
uploaded videos that raised funds for weapons, and that showed brutal executions of soldiers and
civilians alike. Id. at 5. ISIS’ videos and messages were then matched with other users based on
their use history. Id. at 4. Advertisements were displayed along with the ISIS messages, based on
information about the viewer and the content being viewed. Id. The plaintiffs alleged that the
platforms had been crucial to ISIS’ growth, allowing it to reach new audiences, gain new members,
and spread its message of terror. Id. They alleged that the defendant social media companies had
known that ISIS has used their platforms for years, yet failed to detect and remove a substantial
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The Court held that the social media companies didn't “aid and abet” an ISIS terrorist attack
when their algorithms recommended ISIS content, or when they failed to remove content that
recruited members and spread ISIS messages. Justice Thomas likened the social media platforms
Twitter, Google and Facebook to companies that provide cell phone, email or internet services.
“(W)e generally do not think that internet or cell service providers incur culpability merely for
providing their services to the public writ large. Nor do we think that such providers would
normally be described as aiding and abetting, for example, illegal drug deals brokered over cell
phones - even if provider’s conference-call or video-call features made the sale easier.” Id. at *28.
The Court disagreed with the plaintiffs' argument that the algorithms went beyond passive aid to
‘recommendation’ algorithms are merely part of that infrastructure. All the content on their
platforms is filtered through these algorithms, which allegedly sort the content by information and
inputs provided by users and found in the content itself. As presented here, the algorithms appear
agnostic as to the nature of the content, matching any content (including ISIS’ content) with any
user who is more likely to view that content.” Id. at *28. The social media companies didn't treat
ISIS any differently from any of their other billion-plus users: “arm’s length, passive, and largely
indifferent. Cf. Halberstam, 705 F. 2d, at 488." Id. at 24. And their relationship with the Reina
attack is even further removed, given the lack of allegations connecting the Reina attack with ISIS’
Moreover, the "plaintiffs identify no duty that would require defendants or other
were using the service for illicit ends." Id. at 25. "Plaintiffs do not claim that defendants
intentionally associated themselves with ISIS’ operations or affirmatively gave aid that would
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assist each of ISIS’ terrorist acts. Nor have they alleged that defendants and ISIS formed a near-
common enterprise1 of the kind that could establish such broad liability. These allegations are thus
a far cry from the type of pervasive, systemic, and culpable assistance to a series of terrorist
activities that could be described as aiding and abetting each terrorist act." Id. at 26.
The Court left open the possibility that social media companies could be liable for such
activities, if the company selectively promoted the terrorist groups, or supported their activities in
an unusual way. "To be sure, we cannot rule out the possibility that some set of allegations
involving aid to a known terrorist group would justify holding a secondary defendant liable for all
of the group’s actions or perhaps some definable subset of terrorist acts. There may be, for
example, situations where the provider of routine services does so in an unusual way or provides
such dangerous wares that selling those goods to a terrorist group could constitute aiding and
abetting a foreseeable terror attack." Twitter at 26, citing Direct Sales Co. v. United States, 319
U. S. 703, 707, 711–712, 714–715 (1943) (registered morphine distributor could be liable as a co-
conspirator of an illicit operation to which it mailed morphine far in excess of normal amounts).
"Or, if a platform consciously and selectively chose to promote content provided by a particular
terrorist group, perhaps it could be said to have culpably assisted the terrorist group." Id., citing
Passaic Daily News v. Blair, 63 N. J. 474, 487–488, 308 A. 2d 649, 656 (1973) (publishing
employment advertisements that discriminate on the basis of sex could aid and abet the
discrimination). "In those cases, the defendants would arguably have offered aid that is more
direct, active, and substantial than what we review here; in such cases, plaintiffs might be able to
1
The Plaintiffs in the instant case did allege that Chiquita was in a joint venture with the AUC,
and in a conspiracy with the AUC, but these arguments have not been at issue, since the aiding and
abetting standard in Halberstam was met.
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In the instant case, Chiquita paid protection money to terrorist organizations for the safety
of its employees, and received protection in return. Chiquita didn't provide a service to the general
public that was misused by the AUC. Chiquita wasn't "agnostic" about the purpose of the
payments, which were a quid pro quo for receiving the perceived benefit of a reduced guerrilla
presence. The Defendants were aware of the AUC’s assassination campaign, and made a business
decision to “Just let them sue us” in reference to people like the Plaintiffs, who are the next of kin
of people killed by the AUC in the vicinity of their farms. The proximity of Chiquita's farms to
the murders, and the fact that their payments were made to the local AUC units, rather than the
national organization, at the time of the murders, show proximate cause. Finally, Chiquita’s
defense is based on a meeting among Charles Keiser, Carlos Castaño, Raul Hasbún, and Iving
Bernal, at which they claim Mr. Castaño made an unspoken threat, and as a result of which the
Defendants agreed to pay three cents per box of bananas shipped. There was no such agreement
between Twitter’s management and the customers who misused their service.
C. The Defendants' Motion is untimely and doesn't fit within the parameters of
either Rules 59 or 60.
The Defendants don't cite any rule of procedure, which is required to file a motion. The
time to file a motion under Federal Rule of Civil Procedure 59 is 28 days. Id. The time to file a
motion under Federal Rule of Civil Procedure 60(b) is one year from the date of the order, which
is this case was was December 15, 2022. See DE 3238. Since the Motion was made too late for
either rule, there is no procedural basis for it, and it should be denied.
Moreover, none of the categories of Rule 60(b) are a good fit. The rule allows
evidence; fraud or misconduct by an opposing party; the judgment is void, satisfied, released, or
discharged, or based on an earlier judgment that has been reversed or vacated; or "any other reason
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that justifies relief." Id. The last category isn't broad enough to include Twitter, which doesn't
purport to reverse any earlier decision, or to narrow or reinterpret the well-settled standard in
Halberstam v. Welch, 705 F. 2d 472 (D.C. Cir. 1983), which was used by this Court as the aiding
and abetting standard. The Defendants cite Delaware Valley Floral Group, Inc. v. Shaw Rose
Nets, LLC, 597 F.3d 1374, 1383 (11th Cir. 2010) as authority for reconsideration based on an
intervening change in the controlling law. The argument fails because the Twitter case didn't even
Conclusion
The Twitter case doesn’t change the legal standard for aiding and abetting under
Halberstam v. Welch. The Defendants don't challenge the Court's application of Florida law, or
the relationship between the "substantiality" requirement and proximate cause. The Court
correctly concluded that the injuries and plaintiffs must be forseeable, but not known to the level
of detail that the Defendants argue. As Twitter makes clear, even a social media platform could
be liable for all of a terrorist groups' activities. "To be sure, we cannot rule out the possibility that
some set of allegations involving aid to a known terrorist group would justify holding a secondary
defendant liable for all of the group’s actions or perhaps some definable subset of terrorist acts.
There may be, for example, situations where the provider of routine services does so in an unusual
way or provides such dangerous wares that selling those goods to a terrorist group could constitute
aiding and abetting a foreseeable terror attack." Twitter at 26. But that is not the situation at hand.
The millions of dollars paid in protection money, and the protection received, goes well beyond
an unusual or dangerous service provided to the public at large. For the foregoing reasons, the
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Respectfully submitted,
July 6, 2023
Certificate of Service
I hereby certify that on this 6th day of July, 2023, I filed the foregoing document with the
Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.