Case 0:08-md-01916-KAM Document 2482 Entered on FLSD Docket 06/16/2019 Page 1 of 3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

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 (O.H. Action) (Does 1-2146)

__________________________________________/

Response to Individual Defendants'

Expedited Motion to file Motion in Limine [DE 2476]

The Plaintiffs represented by undersigned counsel consent to the Motion, as long as the

undisclosed issue the Individual Defendants want to argue is one that distinguishes individual

versus corporate liability, and that we are afforded the opportunity to respond.

The Court already decided a Motion in Limine to exclude evidence of Chiquita's guilty

plea and Factual Proffer, which didn't mention the sentencing memorandum. See Omnibus Order

on Motions in Limine, DE 1780 at 5-6; Defendant Chiquita’s First Motion in Limine – to Exclude

Mention or Evidence of Chiquita’s Guilty Plea and Factual Proffer in District of Columbia

Criminal Case, DE 1606.

Chiquita had argued, citing FRE 401, 402 and 403, that the ATA (Julin, Pescatore, and

Sparrow) cases were about murders and kidnappings by the FARC, while the guilty plea and
Case 0:08-md-01916-KAM Document 2482 Entered on FLSD Docket 06/16/2019 Page 2 of 3

Factual Proffer were based on their payments to the AUC. 1 The Court rejected the argument, in

this and other rulings which held that payments to other illegal groups are relevant and not unfairly

prejudicial. However, the Court ruled differently with respect to the guilty plea and Factual

Proffer:

The Defendant’s motion to exclude evidence of Chiquita’s guilty plea and March 19, 2007
Factual Proffer entered in the D.C. criminal action [DE 1606] [DE 1649] [DE 1700] is
GRANTED with respect to the fact of the guilty plea and DENIED with respect to the
Factual Proffer. To the extent any reference to the guilty plea is contained in the Factual
Proffer, it shall be redacted before proffered for admission into evidence.

Order, DE 1780 at 5. I haven't researched the issue, but presume the Court had a sound basis to

distinguish between the facts admitted in the Factual Proffer, and the guilty plea itself, which

would admittedly make it hard for a jury to find in the Defendants' favor. However, the Court

never ruled on the Sentencing Memorandum, and it is indeed an important document that the Court

should rule on.

The Individual Defendants haven't disclosed the issue they want to brief, and should do so

in a Reply. The Plaintiffs won't be able to respond, but at least the Court will know what its about.

Our position on all of the Court's prior rulings on motions in limine is the same: the court shouldn't

change its prior rulings unless substantially different facts are shown. Consistency in evidentiary

rulings is also consistent with the principle of stare decisis, that similar cases should be decided

the same way. In this case, there is an additional argument that the North American (ATA)

plaintiffs' cases were heard before the Colombian (ATS) ones. Should the North American

1
We would dispute this to some extent, since the Factual Proffer does refer to Chiquita's payments
to the FARC, without providing any details. Although the FARC payments were harder to prove,
since they were not run through front companies, the payments to the FARC were just as serious
a crime. The risk of prejudice and confusion of the jury are minimal, since all of this conduct was
related and part of the background that the jury should know.
Case 0:08-md-01916-KAM Document 2482 Entered on FLSD Docket 06/16/2019 Page 3 of 3

plaintiffs also receive more favorable evidentiary rulings on the same issues? This would be hard

to justify, absent a showing by the Defendants of differences in facts that warrant a different result.

On the other hand, if there is case law supporting the position that a person has a right to

not have a plea agreement used against them in a civil case, which wasn't waived,2 it's not an issue

that has been raised before, and the Individual Defendants should be heard on it.

Conclusion

For the foregoing reasons, the Court should GRANT the Individual Defendant's Expedited

Motion to file a Motion in Limine, provided the Individual Defendants identify the issue in a Reply.

I would like the opportunity to respond, with the same page limits afforded to the movants.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, D.C. Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

June 16, 2019

Certificate of Service

I hereby certify that on this 16th day of June, 2019, I filed the foregoing document with the
cleark of the Court using the Court's Electronic Filing (ECF) system, which will send electronic
notices to all persons entitled to receive them.

/s/ Paul Wolf

______________
Paul Wolf

2
The Individual Defendants strongly suggest that they have a defense that was not available to the
corporation, presumably because they are natural persons with Constitutional rights. If so, then
they should be heard. Otherwise, the issue may have been waived by the corporation.