Allie Lee** and Allie Brudney***
On July 8, 2021, Corporate Accountability Lab filed an amicus brief asking the US Supreme Court to grant certiorari in the case, Doe v. Chiquita Brands International. The case was brought by the family members of trade unionists, banana workers, political organizers, social activists, and others targeted and killed by the United Self-Defense Group of Colombia (Autodefensas Unidas de Colombia, AUC), a right-wing paramilitary organization in Colombia funded in part by Chiquita, the US-based multinational banana company. The plaintiffs are suing Chiquita, alleging that Chiquita aided and abetted the AUC by financing them.
The question at issue before the Supreme Court is technical and narrow: whether a party that challenges a protective order that both parties stipulated to should bear the burden of showing good cause for the modification. What this actually means is that the petitioners (a sub-group of plaintiffs) are asking the Court to review the 11th Circuit’s decision to lift the protective order that allows them to proceed without their names, addresses, phone numbers, or employment information being revealed to the public. Thus far, although Chiquita has access to these petitioners’ identifying information, the protective order has prevented the information from becoming public. If the petitioners’ identities are to become public, many of them will be at high risk of physical harm, and may even be killed.
The amicus brief — signed by eleven international human rights organizations and one Colombian law firm — argue that the protective order should not be lifted, as revealing the petitioners’ identities would put their lives at risk.
This blog post begins by providing background on the Doe v. Chiquita case. Next, it explains the procedural history behind the protective order and why the Supreme Court should review the Appellate Court’s decision, outlining the danger that human rights defenders in Colombia face. Finally, we discuss why it is important that communities impacted by corporate abuse are able to safely obtain remedies and hold offending corporations accountable.
The Case: Chiquita v. Doe
In 2007, following a Department of Justice (DOJ) investigation, Chiquita admitted to making regular monthly payments totaling more than $1.7 million USD to security forces controlled by the AUC between 1997-2004 to provide “security” for its banana plantations. The AUC is a right-wing paramilitary organization that the US government designated as a terrorist organization. The AUC was responsible for a brutally violent campaign against workers and civilians in one of the banana growing regions in Colombia that resulted in the murder of thousands of the plaintiffs’ family members. In 2007, Chiquita entered into a guilty plea and paid $25 million to the DOJ. Despite Chiquita’s multi-million dollar payment of a fine for financing a terrorist group, communities impacted by its conduct have not received any form of redress.
That same year, family members of trade unionists, banana workers, political organizers, social activists, and others who were targeted and killed by the AUC filed suit against Chiquita. The plaintiffs seek redress for Chiquita’s alleged financial and material support of the AUC, which strengthened the organization and enabled it to violently exert control in Colombia’s banana growing regions.
Chiquita’s Modification to the Stipulated Protective Order
In 2017, just before discovery began, the Florida court granted a protective order covering public release of petitioners’ identifying information. A court may grant a protective order where the disclosure of such information could cause harm. In this case, both petitioners and Chiquita agreed that a protective order covering petitioners’ information was appropriate given their risk of harm in Colombia.
However, after petitioners had relied on the stipulated protective order to participate in discovery for two years, Chiquita withdrew its consent. The Florida court granted Chiquita’s motion to modify the stipulated protective order and the 11th Circuit affirmed, ruled that a party (in this case, Chiquita) who stipulates to a protective order can later modify that order without having to show a change in circumstances or good cause.
The case is currently on certiorari (or cert), meaning that the petitioners are asking the Supreme Court to review an issue in the case in the coming term. Specifically, the cert petition asks the Supreme Court to review the Eleventh Court’s standard for modifying a stipulated protective order (which would resolve a circuit split) and clarify that the burden of proof should be on Chiquita to show that the protective order is no longer needed.
The Identities of the Petitioners Must Be Protected
As human rights defenders are at risk of extreme violence in Colombia, the protective order at issue in Doe v. Chiquitacould be a matter of life or death. Human rights defenders are a broadly defined group of people who act individually or with others to promote or protect human rights. Since the group includes litigants in human rights cases and individuals seeking redress for harms committed against their family members by paramilitary groups, the petitioners fall within this category. The very act of seeking accountability from Chiquita puts them at heightened risk of violence, especially because they are rural defenders who challenge business-related conduct.
The risk of danger for human rights defenders who challenge business-related conduct and activity in rural communities is particularly high. Between 2015-2019, there were 181 attacks against and 72 assassinations of Colombian human rights defenders who had raised concerns related to business. Additionally, 70% of human rights defenders killed in Colombia from 2016-2020 resided in rural communities.
Petitioners are at risk of violence by paramilitary groups that often target human rights defenders based on defenders’ real or imputed political opinions. They are also at risk of physical harm by State actors, including police and military forces that have used excessive force against demonstrators participating in the ongoing national strike. That the Colombian government targets human rights defenders with physical attacks, surveillance, and criminalization is well documented. Moreover, political leaders, public officials, members of armed groups, and persons of influence have labeled and stigmatized human rights defenders as “guerrilleros,” “terrorists,” “anti-development,” and “informants,”thereby further contributing to the hostility against human rights defenders.
The Colombian government is also failing to protect human rights defenders from such targeting, another factor that elevates the risk of physical harm to petitioners if their identifying information is revealed. The National Protection Unit and the Ombudsman’s Office lack the competency and political will to adequately safeguard human rights defenders. The Attorney General’s Office has not only failed to investigate and prosecute the killings of human rights defenders, but it has also, in recent years, ramped up false or vague charges against defenders themselves. Colombian human rights defenders who fear retaliation for promoting human rights are therefore left with few options for safety. Considering the imminent danger that human rights defenders in Colombia face, allowing the petitioners to proceed with litigation while their identities are protected is essential to keeping them safe and alive.
Chiquita is by no means the first US corporation to violate human rights in Colombia. There is evidence that the coal company Drummond, the mining company Cerrejon, and others are complicit in human rights abuses committed over the past few decades. In fact, Drummond was also accused of allegedly financing paramilitary groups in Colombia. (And the Colombian prosecutor’s office indicted two Drummond executives for financing paramilitary groups and gross human rights violations late last year).
Corporations like Chiquita must be held accountable for the human rights and environmental abuses they commit in foreign countries. Victims of human rights violations need to be able to obtain damages for the pain they have suffered at the hands of corporations. However, they can only do so if they are able to challenge these corporations safely. Seeking judicial remedy for human rights abuses promotes human rights by addressing impunity and deterring future abuse. Measures like protecting plaintiffs’ identities are therefore a critical step in ensuring that US corporations do not continue enjoying immunity for the crimes they commit on foreign soil and against foreign individuals.
*This blog was originally published here on the Corporate Accountability Lab Blog on July 8, 2021.
**Second year law student at Northwestern Law School and a Legal Intern at Corporate Accountability Lab.
***Staff Attorney at Corporate Accountability Lab.
Photo credit: AP Photo/Amy Sancetta, file.
CAL filed the brief in support of petitioners on behalf of amici curiae: Business and Human Rights Resource Centre, el Colectivo de Abogados José Alvear Restrepo (CAJAR), la Comisión Colombiana de Juristas, la Comisión Intereclesial de Justicia y Paz, Due Process of Law Foundation, Front Line Defenders, Instituto de Estudios para el Desarrollo y la Paz (INDEPAZ), Latin American Working Group Education Fund, Robert F. Kennedy Human Rights, Simetría Legal, Temblores, and the Washington Office on Latin America.