USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 1 of 82

Case No. 20-14238-RR

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________

Does 1 Through 254, et al. v.

Chiquita Brands International, et al.

___________________________________________

On Appeal from the United States District Court

For the Southern District of Florida
No. 08-md-01916
(No. 11-80405-CIV-MARRA)
(The Honorable Kenneth A. Marra)

____________________________________________

REPLY BRIEF

OF APPELLANTS "DOES 1-254"

____________________________________________

Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
[email protected]
Attorney for Plaintiff-
Appellants Does 1-254
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CERTIFICATE OF INTERESTED PERSONS

Counsel certifies that the following is a complete list of the trial judge(s), all

attorneys, persons, associations of persons, firms, partnerships, or corporations

(noted with its stock symbol if publicly listed) that have an interest in the outcome

of the particular case on appeal, including subsidiaries, conglomerates, affiliates,

and parent corporations, and other identifiable legal entities related to a party,

known to Appellants, are as follows:

1. Plaintiff-Appellants "Does 1-254," whose real names are:

Agudelo Castano, Margrieth Cecilia

Aguirre Braun, Irma Nury

Alzate de Escobar, Maria Leonilda

Anay Mosquera, Rosa

Anaya Dias, Lesvia Petrona

Angarita Gomez, Maria Estela

Arbelaez Marin, Alba Nidia

Arenas Gil, Ancizar Alexander

Arias Arias, Adriana Patricia

Arias de Moscoso, Luz Mariela

Arismendes, Blanca Libia

Arrieta Zumaque, Carmen

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Asprilla de Barrios, Maria Isabel

Asprilla Rivas, Ana Joaquina

Avendano Suarez, Maria Orfelina

Avila Payares, William Antonio

Balenzuela Escobar, Rosa Margarita

Barrientos Gomez, Maria Rocio

Bedoya Mosquera, Marlenis

Bedoya de Torres, Margarita

Bedoya Gomez, Alirio de Jesus

Bedoya Correa, Uverly

Benitez Varilla, Maria Judith

Benitez Sepulveda, Consuelo

Berrio de Usuga, Berta Oliva

Berrio, Marcelina

Blanquicet Gonzalez, Sara del Carmen

Bohorquez Borja, Omar de Jesus

Borja Arias, Aracely

Bram Cartagena, Mariela de Jesus

Burgos Genes, Gabriel

Burgos Villalobo, Esbil

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Cabadia de Aguilar, Sixta Tulia

Caceres Zumaque, Magdalena

Caicedo Mena, Gregoria

Camano Mora, Marve Luz

Campo Rodriguez, Maria Ines

Cano David, Ana Maria

Cano Sepulveda, Migdonia

Cantero Cordoba, Elizabeth

Cardona Goez, Rosalbina

Cardona Echavarria, Oliva

Castellanos Cogollo, Ramona del Carmen

Castellanos Yanos, Elizabeth

Castro Gomez, Alina Yaneth

Causil Almario, Arnoli

Chaverra de Cano, Teresita de Jesus

Chica Chica, Libia

Cordoba Chala, Alexandra

Correa Borja, Elida

Correa de Parra, Alba Rosa

Correa de Alvarez, Oliva

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Cortes Berrio, Eliza

Cossio Perea, Jesus Edwin

Cuesta Rivera, Elias Desiderio

Cuesta Salas, Jose Mercedes

David de Guzman, Maria de los Angeles

David Tuberquia, Alicia

David Vargas, Rosa Angela

Diaz, Luz Mery

Diaz Charrasquiel, Edith

Diaz, Eudilia

Doria de Palacio, Gloria

Duenas Alvarez, Sindy Patricia

Duran Causil, Berta Alicia

Durango Durango, Luzmila

Durango Torres, Deyamira

Durango, Maria de las Mercedes

Durango Villa, Abel Antonio

Echeverri Vahos, Rosa Maria

Escobar de Elorza, Nohemy

Escobar Borja, Rosa Elvira

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Florez Mestra, Everlides

Florez Ruiz, Luz Estella

Fuentes Lucas, Flor Maria

Galvan de Rodriguez, Edita del Carmen

Galvis, Guillermina Marina

Garcia Gonzales, Ana Delcy

Garcia, Gloria Ines

Gaviria, Maria Doris

Giraldo de Campo, Gloria Ines

Giraldo Sierra, Gildardo de Jesus

Giraldo de Giron, Ernestina

Goez, Julia de Jesus

Gonzalez Leon, Luz Neyer

Gonzalez Urango, Wilson

Graciano Graciano, Margarita

Guerra Garcia, Ana Isabel

Guerrero, Bertha Elisa

Guisao, Doraley

Guzman Vallesta, Diana Esperanza

Guzman de Guevara, Estebana del Pilar

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Guzman Higuita, Maria Evangelina

Henao de Gomez, Blanca Delia

Hernandez Hortua, Miladis del Socorro

Hernandez Arrieta, Berta

Hernandez Mena, Rosalia

Hernandez, Lira Margoth

Hernandez Reyes, Julia Dominga

Hernandez Jimenez, Henry Manuel

Herrera Sierra, Juana del Carmen

Higuita, Fidelina

Higuita Manco, Jesus Antonio

Higuita Duarte, Maria Rosangela

Higuita Osorio, Libia

Higuita Velez, Margarita Maria

Hinestroza Mosquera, Luz Nancy

Holguin Pineda, Alfonso Elias

Hoyos Martinez, Maria del Rosario

Hurtado Mosquera, Maria Lastenia

Jimenez de Rodriguez, Isabel Emilia

Jimenez de Goez, Mariela

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Jimenez Monterrosa, Macira del Rosario

Julio de Jimenez, Catalina

Julio Melendez, Carmen Alicia

Julio Moya, Maria Elodia

Lagares Lopez, Elida Rosa

Landetta Zapata Alba Iris

Lara Zuniga, Amparo

Lemoz Ruiz, Gilney

Lemus Castro, Idelicia

Licona Madera, Aminta Maria

Loaiza Aguirre, Lider Maria

Londono Torres, Ana Julia

Lopera Gonzalez, Adriana Maria

Lopez, Salustiana

Lopez de Agudelo, Maria Fidelina

Lopez Munoz, Olga Patricia

Luna Olivares, Luis Alfonso

Machado Quintana, Maria de la Concepcion

Machado Romero, Belarmina

Manco Manco, Bertoldina

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Marin Osorio, Lilia Amparo

Marin Restrepo Celsa Julia

Marmol Perez, Merlene Maria

Martinez Perez, Lina Maria

Mavisoy Cualindioy, Teresa

Mejia Gomez, Doris Maria

Mena Denis, Maria Nohemi

Mercado, Yadira Leon

Mestra Zurique, Eugenia

Miranda Ibanez, Libia Susana

Morales Macea, Marlene Isabel

Morales, Martha Isabel

Moreno Chaverra, Marlen

Moreno Palacio, Maria Beyanira

Mosquera Mosquera, Clara Elena

Mosquera Mosquera, Melba

Mosquera Ubaldo, Ciria

Mosquera Arroyo, Luz Marina

Mosquera, Yamileth

Mosquera Palomeque, Ernestina

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Mosquera Santos, Tomasa

Mosquera Palacios, Aura

Obrigon Mendoza, Franklin

Orozco de Montoya, Olivia

Osorio Rodriguez, Maria Sonia

Osorio Hernandez, Luz Nely

Osorio de Porras, Luty del Carmen

Osorio de Santiago, Maria Rosalina

Osorio Cardona, Beatriz Cecilia

Ospina Angarita, Maria Magdalena

Ospina Castellar, Edita

Oviedo David, Petrona

Palacio Moreno, Luz Belen

Palacios Perea, Maria Albanis

Palencia Paut, Margarita

Palencia Morales, Jose

Pastrana Duenas, Maria Leonor

Paternina Paez, Domingo de los Santos

Pena Usuga, Maria Edilma

Penagos Caro, Maria Josefa

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Penata Galarcio, Magaly Ines

Pereira Miranda, Manuela del Carmen

Perez Zapata, Patricia

Perez Hoyos, Blanca Cecilia

Persides Martinez, Maria

Piedrahita, Rosa Boliva

Pineda, Irma de Jesus

Polo Tuiran, Ana Delfina

Puerta Manco, Eunilse

Quintero Atehortua, Gloria Patricia

Ramires, Ana Felisa

Ramirez, Luz del Carmen

Ramirez Asprilla, Maritza

Ramirez Molina, Liliana del Socorro

Restrepo de Arias, Maria Oliva

Reyes Agudelo, Gloria Elena

Reyes Campo, Pedro

Rivas Asprilla, Onia Zenaida

Rivas Lozano, Sergia Marcia

Rodas Orozco, Mariela

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Rodriguez Posso, Luz Marina

Rodriguez Ramos, Eleodora

Romana Escobar, Ana Carmela

Romana Martinez, Saturnina

Romero Hernandez, Edonia Isabel

Rovira Quejada, Tarcila

Ruiz Mendoza, Cenith

Ruiz Vidal, Ana Lucia

Ruiz Salgado, Ana Rosa

Sanchez Menzel, Elsa Esther

Sanchez, Jorge Ivan

Sanchez Florez, Doralba

Sanchez Manco, Franca Eliana

Sanchez de Sanchez, Aura Carlina

Santana, Petronila

Sepulveda Borja, Jorgelina

Sepulveda de Holguin, Leovigilda

Serna Moreno, Debora

Serna de Rueda, Maria Eleva

Sierra de la Barrera, Rosmary

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Suarez Tavera, Gabriela

Suarez Solano, Baudilia del Carmen

Suarez Montiel, Adela Sofia

Tamayo de Guisao, Maria Ester

Torres Berrio, Wilson

Torres Cuesta, Mary Luz

Trejo Herrera, Maria Ester

Tuberquia Zapata, Jesus Emilio

Upegui de Perez, Luz Estella

Uribe Mesa, Piedad Cristina

Urrego Torres, Maria Lenuy

Urrego Guisao, Maria Epifania

Urrego Rodriguez, Emilsa

Vacca Usuga, Yeira Vanessa

Valderrama, Maria Teresa

Valderrama Marin, Pedro Emilio

Valencia Lopez, Ana Elvia

Valoyes Ramirez, Mercedes

Vanegas Montoya, Carlos Andres

Varelas Morelo, Maria Oliva

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Vasquez Marin, Mariela

Vasquez Julio, Nasary

Vega Murillo, Pedro

Vera Tuberquia, Martha C.

Vidales Palacio, Rosangelica

Viera Mendoza, Jonny

Zambrano Palencia, Senia

Zapata Borja, Romelia de Jesus

2. In addition, the plaintiffs bring their cases as personal representatives of the

estates of the deceased, whose names are

Agudelo Carvajal, Luis Arturo

Aguirre Vidales, Yolanda

Altamirando Cabadia, Jhon Fernando

Alvarez Quintero, Juan Gregorio

Alvarez Correa, Robier de Jesus

Alvarez Herrera, Doris del Carmen

Apricio Noblez, Alberto

Arbelaez Marin, Juan Carlos

Arenas, Tomas

Arguello Gonzalez, Adan

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Arias Restrepo, Francisco Javier

Arias Valle, Jesus Antonio

Arrieta Hernandez, Dinio Jose

Arrieta Yepes, Joaquin

Arroyo Bernal, Arnaldo Jose

Aula Velasquez, Mariano Manuel

Avendano Lopez, John Alberto

Barrios Asprilla, Alfonso

Bedoya Caycedo, Jerson

Bedoya Navarro, Joaquin Humberto

Bedoya Serna, Guillermo Sabad

Beltran Matote, Jaime

Blanco Lopez, Justiniano

Bohorquez, Raul

Bolivar Betancourt, Luis Alberto

Borja Arias, Jhon Fredy

Burgos Gene,s Edinson Antonio

Cabrera Correa, Anibal

Calle Penagos, Hector Alonso

Callejal Hoyos, Gabriel de Jesus

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Cano Herrera, Edwin Dario

Cano Chaverra, Joaquin Mario

Cantero Melendez, Edulfo

Cardenas Miranda, Israel

Cardona Echavarria, Edgar

Cardona Echavarria, Hector Jose

Cardona Ramirez, Jesus Maria

Cardona Alvarez, Geovanny

Caro Ramiro, Antonio

Castro Vargas, Demetrio

Centero Melendez, Edulfo

Chala Cuesta, Ana Sofia

Charrasquiel, Gregorio Alejandro

Cifuentes Durango, Horacio Antonio

Contreras Urrego, Nelson

Cortes Berrio, Jesus

Cossio Murillo, Francisco Herminio

Cossio, Alvaro

Cuadrado Gaspar, Abigail Antonio

Cuesta Cortez, Nelson

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Cuesta Garcia, Edgar

Cuesta Cuesta, Euclides

Cuesta Rios, Nestor

Cuesta Bejarano, Fidelio Antonio

Cuesta Arroyo, Rafael

Cuesto Murillo, Primitivo

David Campo, Mario de Jesus

David Velazquez, Rosa Elvira

De la Cruz Campo, Oscar Manuel

Denis, Pedro Mena

Diaz Hernandez, Giovanis

Diaz Domingo de los Santos, Paternina

Diaz Mosquera, Anselmo

Diaz Teheran, Jose

Dimas Chiquillo, Jose Irene

Durango, Jorge Ivan

Durango Cano, Gustavo Antonio

Durango Escobar, Fabio de Jesus

Echavarria Graciano, Pedro Julio

Echavarria, Aurora

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Echevarria Vahos, Luis Fernando

Elorza Romero, Luis Enrique

Escobar Alzate, Jesus Emilio

Galarcio Viloria, Candida Rosa

Galindo Cuadrado, Eudencio

Galindo Galeano, Gerardo Gabriel

Garces Flores, Wilton Antonio

Garcia Julio, Jose Luis

Garcia Angulo, Jose Angel

Gil de Arenas, Elizabeth

Giraldo Sierra, Omar de Jesus

Giraldo, Luis Alfredo

Giraldo Fernandez, Jesus Emilio

Goez Sepulveda, Ivan Antonio

Goez Jimenez, Hernan Dario

Goez Sepulveda, Juan Antonio

Gomez Alvarez, Jaime

Gomez Valencia, Beatriz

Gomez Henao, Rodrigo de Jesus

Gomez Velez, Leonardo

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Gomez Jimenez, Victor Javier

Gomez, Francisco Javier

Gonzalez Cuesta, Diego

Gonzalez Urango, Luisa Cristina

Gonzalez Sosa, Maria Georgina

Gonzalez Moralez, Livardo

Gonzalez Moralez, Merli

Graciano, Francisco Antonio

Guisao Lopez, Jose Wilson

Guisao Correa, Cruz Antonio

Guisao Tamayo, Jorge Elias

Guisao Tamayo, Wilmar de Jesus

Gutierrez Fernandez, Guillermo Leon

Gutierrez Vargas, Argelia Maria

Gutierrez Hernandez, Carlos Antonio

Guzman David, Yoni Jair

Guzman Betancur, Ricardo Antonio

Hernandez Bejarano, Orlando

Hernandez Mestra, Luis German

Higuita Giraldo, Leon Dario

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Higuita, Miguel Antonio

Hinestroza Hurtado, Angel Daniel

Hinestroza Mosquera, Robinson Humberto

Hinestroza Hurtado, Cesar Orlando

Holguin Sepulveda Leonardo

Holguin Sepulveda, Alfonso Elias

Holguin Sepulveda, Ramiro Arley

Hoyos Gaviria, Gonzalo

Hoyos Martinez, Polfino de Jesus

Hurtado Cordoba, Fausto

Ibanez Anaya, Toni Enrique

Lemos Rambay, Araldo

Lemus Cordoba, Manuel Eugenio

Licona Suarez, Fernando

Llanez Lopez, Evelio

Loaiza Arboleda, Joaquin Eduardo

Loaiza Aguirre, Luis Eduardo

Londono Valencia, Oscar de Jesus

Londono, Henry

Lopera Gaviria, Oscar de Jesus

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Lopez Muno,z Luis Felipe

Lopez Henao, Gilberto Antonio

Luna Barba, Luz Estella

Luna Rivas, Prudencio

Madariaga Madariag,a Hugo Feny

Maturona Guevara, Adolfo

Mejia Gomez, Jose Argiro

Mena, Miguel Angel

Mendoza Galvan, Idelfonso

Meza Martinez, Ismael

Mirando Arrieta, Hilario

Mona Marin, Jorge Humberto

Montenegro Ramos, Hernan Humberto

Montes Duran, Brian Manuel

Montoya Echavarria, Carlos Enrique

Montoya Garcia, Carlos

Moreno Duran, Aura Nely

Moscoso, Jesus Emilio

Mosquera Robledo, Oscar

Mosquera Velasquez, Fulbio Antonio

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Munera Pulgarin, Ignacio

Munoz Munera, Jose Ivan

Munoz Beltran, Javier Antonio

Murillo Lopez, Hector

Murillo Moreno, Manuel Emeterio

Narvaez Julio, Oscar Antonio

Nelly Zapata, Maria del Socorro

Obregon Moreno, Francisco Javier

Ochoa Gomez, Victoria Elena

Orejuela, Juan

Orjuela Arismendi, Pedro Alonso

Orlas Pena, Wiliton

Orozco Marin, Jesus Maria

Ospina Marimon, Marcelino

Palacio Pastrana, Reemberto

Palacio Pino, Felipe

Palacio Palacio, Romulo

Palacios Mosquera, Afronio

Palencia Diaz, Eliecer

Pareja Ruiz, Jhon Fredis

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Parra Correa, Albertina

Parra Garcia, Samuel

Parra Osorio, Cristobal

Paruja Trejos, Rubiela

Pautt, Marcelo Oviedo

Paz, Romana Parmelio

Perez Nisperuza, German

Perez Upagui, Victor Dairon

Piedrahita, Gilberto de Jesus

Pietro Lagares, Miguel Antonio

Pineda, Hernan Dario

Porhillo Santo, Sergio Eliecer

Porras Pedroza, Ramon

Quejada Duran, Clemente

Ramirez Loaisa, Ruben Dario

Rendon Loaza, Luis

Rendon, Abel Antonio

Rendon Rojas, Ismael

Reyes Agudelo, Luis Fernando

Reyes Fuentes, Freddy Jesus

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Rios Rios, Miguel Angel

Rivas, Arturo Murillo

Rivas Lara, Jose Alejandro

Rodriguez Cardalez, Gilberto

Rodriguez Jimenez, Eliud

Rodriguez Ramos, Jaime

Romana Escobar, Carlos Eliecer

Rueda Serna, Oscar Dario

Rueda Serna, Carlos Alberto

Ruiz Rueda, Jose Luis

Ruiz Valencia, Victor Manuel

Ruiz Palacios, Marino

Salas Rovira, Ausberto

Salinas Sanchez, Gerardo

Sanchez Polo, Savas

Sanchez, Dagoberto

Sanchez Manco, Francisco Javier

Sanchez Sanchez, Reynaldo Antonio

Sanchez Giraldo, Ramon Antonio

Santiago Almeciga, Paulino

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Sepulveda Manco, Ovilson

Sepulveda Manco, Nelson

Sierra, Rafael Alvaro

Solano Guevara, Luis Antonio

Soto Amaranto, Margarita

Suarez Marmol, Luis Manuel

Suarez Solano, Abel Andres

Tapia Marmolejo, Jaime

Tapias, Fabian Ignacio

Tapias Lopez, Jose Felix

Tordecilla Gonzalez, Carlos Augusto

Torres Bedoya, Edison

Torres Bedoya, Ivan Dario

Torres Guisao, Claver de Jesus

Torres Melendez, Eusino

Toscano de la Barrera, Tomas Antonio

Tuberquia Zapata, Reinaldo Antonio

Tuberquia Higuita, Maria Eugenia

Uribe Arboleda, Marco Antonio

Urrego Torres, Aldebaran

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Urrego Rodriguez, Bernardo

Usuga Berrio, Maria Eunice

Usuga Cano, Heinsen Hawer

Usuga Cano, Franco Anyey

Usuga, Jesus Maria

Vaca Echavarria, Jorge Enrique

Vaca Caraballo, Afranio

Valderrama Oquendo, Luis Fernando

Valencia Rodriguez, Miguel Angel

Valencia Lopez, Jhon Jairo

Vanegas Villa, Humberto

Vargas David, Luis Alexander

Vargas Bram, Libardo Antonio

Vasquez Benitez Cielo Maria

Vega Torres, Luis Alfonso

Velasquez Gomez, Eliodoro Antonio

Velasquez Restrepo, Wilson de Jesus

Velasquez, Prisiliano Jose

Viera Mendoza, Alvaro

Villa Hernandez, Yubany de Jesus

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Zapata Borja, Jorge Eliecer

Zuluaga Machado, Sigifredo

Zuluaga Garcia, Sigifredo

3. Additional interested parties are:

Agrícola Longaví Limitada

Agrícola Santa Marta Limitada

Agroindustria Santa Rosa de Lima, S.A.

Aguirre, Fernando

Alamo Land Company

Alsama, Ltd.

American Produce Company

Americana de Exportación S.A.

Anacar LDC

Arnold & Porter

Arnold Sansone, The Honorable Amanda

Arvelo, José E.

Associated Santa Maria Minerals

Avila, Rodriguez, Hernandez, Mena & Ferri, LLP

B C Systems, Inc.

Baird, Bruce

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Banco Santander International

Bandy, Kevin

Barbush Development Corp.

Bienes Del Rio, S.A.

Blank Rome LLP

BlackRock, Inc. (NYSE: BLK)

Blue Fish Holdings Establishment

Bocas Fruit Co. L.L.C.

In Re: Chiquita Brands Int’l., Inc.

Boies Schiller & Flexner, LLP, Fort Lauderdale

Boies Schiller & Flexner, LLP, Miami

Boies Schiller & Flexner, LLP, New York

Boies Schiller & Flexner, LLP, Orlando

Bronson, Ardith

Brundicorpi S.A.

Cadavid Londoño, Paula

Capital Bank

Carrillo, Arturo J.

C.C.A. Fruit Service Company Limited

CB Containers, Inc.

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Centro Global de Procesamiento Chiquita, S.R.L.

Charagres, Inc., S.A.

Childs, Robert

Chiquita (Canada) Inc.

Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.

Chiquita Banana Company B.V.

Chiquita Brands International Foundation

Chiquita Brands International Sàrl

Chiquita Brands International, Inc. (NYSE: CQB)

Chiquita Brands L.L.C.

Chiquita Central Europe, s.r.o.

Chiquita Compagnie des Bananes

Chiquita Deutschland GmbH

Chiquita Food Innovation B.V.

Chiquita for Charities

Chiquita Fresh B.V.B.A.

Chiquita Fresh España, S.A.

Chiquita Fresh North America L.L.C.

Chiquita Fruit Bar (Belgium) BVBA

Chiquita Fruit Bar (Germany) GmbH

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Chiquita Fruit Bar GmbH

Chiquita Frupac B.V.

Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton

Chiquita Hong Kong Limited

Chiquita International Services Group N.V.

Chiquita Italia, S.p.A.

Chiquita Logistic Services El Salvador Ltda.

Chiquita Logistic Services Guatemala, Limitada

Chiquita Logistic Services Honduras, S.de RL

Chiquita Melon Packers, Inc.

Chiquita Mexico, S. de R.L. de C.V.

Chiquita Nature and Community Foundation

Chiquita Nordic Oy

Chiquita Norway As

Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia

Chiquita Portugal Venda E Comercializaçao De Fruta,

Unipessoal Lda

Chiquita Relief Fund - We Care

Chiquita Shared Services

Chiquita Singapore Pte. Ltd.

Chiquita Slovakia, S.r.o.

Page C-29 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 31 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Chiquita Sweden AB

Chiquita Tropical Fruit Company B.V.

Chiquita UK Limited

ChiquitaStore.com L.L.C.

Chiriqui Land Company

CILPAC Establishment

Cioffi, Michael

Coast Citrus Distributors Holding Company

Cohen, Millstein, Sellers & Toll, PLLC

Collingsworth, Terrence P.

Collyer, The Honorable Rosemary M.

Compañía Agrícola de Nipe, S.A.

Compañía Agrícola de Rio Tinto

Compañía Agrícola del Guayas

Compañía Agrícola e Industrial Ecuaplantation, S.A.

Compañía Agrícola Sancti-Spiritus, S.A.

Compañía Bananera Atlántica Limitada

Compañía Bananera Guatemateca Independinte, S.A.

Compañía Bananera La Estrella, S.A.

Compañía Bananera Los Laureles, S.A.

Page C-30 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 32 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Compañía Bananera Monte Blanco, S.A.

Compañía Caronas, S.A.

Compañía Cubana de Navegación Costanera

Compañía Frutera América S.A.

Compañía La Cruz, S.A.

Compañía Mundimar, S.A.

Compañía Productos Agrícolas de Chiapas, S.A. de C.V.

Compañía Tropical de Seguros, S.A.

Conrad & Scherer LLP

Costa Frut S.A.C.

Covington & Burling LLP

Danone Chiquita Fruits SAS

Dante, Frank

Davies, Patrick

De La Calle Restrepo, José Miguel

De La Calle Londoño y Posada Abogados

DeLeon, John

Dimensional Fund Advisors LP

DLA Piper

Duraiswamy, Shankar

Page C-31 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 33 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Dyer, Karen C.

Earthrights, International, Inc.

Edwards Honeywell, The Honorable Charlene

Exportadora Chiquita - Chile Ltda.

Exportadora de Frutas Frescas Ltda.

Financiera Agro-Exportaciones Limitada

Financiera Bananera Limitada

FMR LLC

Fresh Express Incorporated

Fresh Holding C.V.

Fresh International Corp.

Friedheim, Cyrus

Frutas Elegantes, S. de R.L. de C.V.

Fuerzas Armadas Revolucionarias de Colombia (FARC)

Fundación Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula

G & V Farms, LLC

G W F Management Services Ltd.

Garland, James

Girardi, Thomas V.

Glass, David M.

Page C-32 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 34 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Gonsalves, Marc

Gould, Kimberly

Gravante, Jr., Nicholas A.

GrayRobinson, PA

Great White Fleet Liner Services Ltd.

Great White Fleet Ltd.

Green, James K.

Gunster, Yoakley & Stewart, PA

Guralnick, Ronald S.

Hall, John

Heaton Holdings Ltd.

Heli Abel Torrado y Asociados

Hemisphere XII Investors Limited

Hills, Roderick, the Estate of

Hospital La Lima, S.A. de C.V.

Howes, Thomas

HSBC

Ilara Holdings, Inc.

Inversiones Huemul Limitada

James K. Green, P.A.

Page C-33 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 35 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Janis, Judith G.

Janis, Christopher T.

Janis, Greer C.

Janis, Michael I.

Janis, Jonathan N.

Jimenez Train, Magda M.

Jones, Foster, Johnston & Stubbs, P.A.

Jones, Stanton

Keiser, Charles

Kelly, The Honorable Timothy J.

King, William B.

Kistinger, Robert

Korvick, Tony

Lack, Walter J.

Lakatos, Alex C.

Law Firm of Jonathan C. Reiter

Law Offices of Chavez-DeLeon

Leon, The Honorable Richard J.

Losego, Clinton R.

Markman, Ligia

Page C-34 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 36 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Marra, The Honorable Kenneth A.

Martin, David

Martinez Resly, Jaclyn

Mayer Brown, LLP

McCawley, Sigrid S.

Mora, Martha Rosa

Mosier, Mark

Mozabanana, Lda.

Nixon, Jary Conrad

Ocean Bank

Olson, Robert

O'Melveny & Meyers

Ordman, John

Palmera Pineda, Juvenal Ovidio Ricardo

Parker Waichman LLP

Pescatore, Jr., the Estate of Frank Thomas

Pescatore, Jada

Pescatore, Jarrod

Pescatore, John

Pescatore, Jordan

Page C-35 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 37 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Pescatore, Josh

Pescatore, Olivia

Pescatore, Richard

Pescatore Harpster, Carol

Philips, Layn

Porter, Newton Patrick

Prías Cadavid Abogados

Prías, Juan Carlos

Priedheim, Alissa

Procesados IQF, S.A. de C.V.

Processed Fruit Ingredients, BVBA

Promotion et Developpement de la Culture Bananiere

Puerto Armuelles Fruit Co., Ltd.

Rapp, Cristopher

Reiter, Jonathan C.

Ronald Guralnick, P.A.

St. James Investments, Inc.

Scarola, Jack

Searcy Denney Scarola Barnhart & Shipley, P.A.

Seguridad Colosal, S.A.

Page C-36 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 38 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

Servicios Chiquita Chile Limitada

Servicios de Logística Chiquita, S.A.

Servicios Logísticos Chiquita, S.R.L

Servicios Proem Limitada

Silbert, Earl

Simons, Marco

Skinner, William

Sperling, Jonathan

Spiers N.V.

Sprague, Ashley M.

Stansell, Keith

Stockton Hendrix, David

Stewart, Thomas

Stubbs, Sidney

Tela Railroad Company Ltd.

The Vanguard Group

TransFRESH Corporation

Tsacalis, William

UNIPO G.V., S.A.

United States of America

Page C-37 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 39 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

V.F. Transportation, L.L.C.

Verdelli Farms, Inc.

Wachovia Bank

Western Commercial International Ltd.

Wichmann, William J.

Wiesner & Asociados Ltda. Abogados

Wiesner, Eduardo A.

Wilkins, Robert

Willkie Farr & Gallagher

Wolf, Paul

Wolosky, Lee S.

Zack, Stephen N

Zhejiang Chiquita-Haitong Food Company Limited

Zuleta, Alberto

Certification

I hereby certify that to the best of my knowledge, the above is a complete

list of persons having an interest in this case.

/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Appellants Does 1-254

Page C-38 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 40 of 82
Does 1-254 v. Chiquita Brands International, Inc. Case No. 20-14238-RR

November 25, 2020

Page C-39 of C-39

 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 41 of 82

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ....................................... C-1

TABLE OF CONTENTS ......................................................................... I-1

TABLE OF AUTHORITIES ................................................................... I-4

ARGUMENT .......................................................................................... 1

I. Does 1-254's standing is based on their claims against

Chiquita Brands. .......................................................................... 1

A. The Factual Proffer that was the basis of Chiquita's

guilty plea admits payments to both the AUC and the
FARC. ................................................................................ 1

B. Does 1-254 don't need to show any additional standing

to enforce a remedy. ........................................................... 1

C. By permitting Stansell and Pescatore's cases to proceed

before those of Does 1-254, the district court deprived
Does 1-254 of their due process and equal protection
rights under the 5th Amendment of the U.S. Constitution. 2

D. The equitable distribution of the FARC's assets is

comparable to the payment of creditors in bankruptcy
proceedings, which may occur in MDL proceedings. ....... 6

II. The ex parte, default judgments in the MDL transferee courts

are void and unenforceable. .......................................................... 7

A. The JPML never remanded Pescatore's case, even though

the transferor court stayed the case pending remand from
the transferee court. ............................................................ 7

B. None of the courts involved in this case had personal

jurisdiction over the FARC. ............................................... 10

C. Under EEOC v. Pemco Aeroplex, Inc. claim preclusion

I-1
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 42 of 82

applies because the Appellees' cases against Chiquita

and the FARC involve the same operative facts,
and the FARC's interests were adequately represented
by Chiquita. ........................................................................ 12

D. Under Citibank v. Data Lease Fin. Corp., the motion

for constructive trust is a legitimate use of offensive
non-mutual issue preclusion, because Chiquita and
the FARC were in privity with respect to the particular
murders Chiquita was trying to disprove. ......................... 15

III. Does 1-254 don't need to show a right to the FARC's assets
because they only seek a remedy. ................................................ 16

B. Chapter 76 of the Florida Revised Statutes provides for

prejudgment attachment of property when either the
party or the property is out of state, which the Court may
order via either a preliminary or permanent injunction
pursuant to Federal Rule of Civil Procedure 64. ............... 16

1. Chapter 76 of the Florida Revised Statutes

provides for prejudgment attachment of assets. ....... 17

2. Federal Preemption doesn't apply to the TRIA. ....... 18

3. The text of the TRIA shows that Congress

intended to create a system to compensate for
insured losses resulting from acts of terrorism,
not displace any state laws. ...................................... 20

4. Florida juries may consider the fault of non-parties

in negligence cases. .................................................. 23

5. The District Court allowed the Pescatore case

to proceed to trial with the FARC as a Fabre
defendant. ................................................................. 24

6. The Crime Victim Rights Act could apply because

Chiquita's guilty plea was based on payments to
both the FARC and AUC. ......................................... 25

I-2
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 43 of 82

IV. Does 1-254 were denied the same discovery granted to

Pescatore and Stansell, had no input into any schedule
imposed by the district court, and didn't consent to being
excluded from the bellwether process. ......................................... 28

A. Denial of discovery granted to Pescatore. ......................... 28

B. Exclusion from conferral on the district court's schedule. 29

C. Exclusion from the bellwether trial pool. .......................... 30

V. Chiquita took no position on the Motion for a Constructive

Trust and has no stake in it, and waived the other arguments
in its brief. .................................................................................. 31

CONCLUSION .................................................................................... 32

I-3
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 44 of 82

TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ..................................................................... 3, 6

Aerojet-Gen. Corp. v. Askew,

511 F.2d 710 (5th Cir. 1975) ........................................................ 14

Alabama v. U.S. Army Corps of Engineers,

424 F.3d 1117 (11th Cir. 2005) .................................................... 2

Abreu v. Amaro,
534 So.2d 771 (Fla. Dist. Ct. App. 1988) .................................. 18

Allied Signal, Inc. v. Fox,

623 So.2d 1180 (Fla. 1993) ......................................................... 23

Am. Tobacco Co. v. Patterson,

456 U.S. 63 (1982) ...................................................................... 19

Bolling v. Sharpe,
347 U.S. 497 (1954) .................................................................... 4

Buckley v. Valeo,
424 U.S. 1 (1976) ........................................................................ 3

Butler v. Mentor Corp.,

No. 93-P-11433-S (N.D. Ala. filed May 14, 1993) .................... 6

Citibank, N.A. v. Data Lease Fin. Corp.,

904 F.2d 1498 (11th Cir. 1990) ................................................... 15-16

City of Cleburne v. Cleburne Living Ctr.,

472 U.S. 432 (1985) .................................................................... 5

Club Madonna, Inc. v. City of Miami Beach,

924 F.3d 1370 (11th Cir. 2019) .................................................... 2

I-4
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 45 of 82

Consol. Dev. Corp. v. Sherritt, Inc.,

216 F.3d 1286 (11th Cir. 2000) .................................................... 11

Delta Air Lines, Inc. v. McCoy Rests., Inc.,

708 F.2d 582 (11th Cir. 1983) ...................................................... 13

Does 1-976 v. Chiquita Brands,

Case No. 19-13926 (pending) ...................................................... 15

English v. Gen. Electric Co.,

496 U.S. 72 (1990) ....................................................................... 19-22

EEOC v. Pemco Aeroplex, Inc.,

383 F.3d 1280 (11th Cir. 2004) .................................................... 12

Fabre v. Marin,
623 So. 2d 1182 (Fla. 1993) ......................................................... 25

Fla. State Conference of NAACP v. Browning,

522 F.3d 1153 (11th Cir. 2008) .................................................... 19

Gersh v Cofman,
769 So.2d 407 (Fla. Dist. Ct. App. 2000) .................................. 18

Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570 (11th Cir. 1989) ................................................... 5

Harry v. Marchant,
291 F.3d 767 (11th Cir. 2002) (en banc) ..................................... 20

Hines v. Davidowitz,
312 U.S. 52 (1941) ...................................................................... 22

In re A.H. Robins Co.,

Bankr. No. 85-01307-R (E.D. Va. filed Aug. 21, 1985) ............. 6

In re UNR Indus., Inc.,

42 B.R. 94 (Bankr. N.D. Ill. 1984) .............................................. 6

Jaffree v. Wallace,

I-5
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 46 of 82

837 F.2d 1461 (11th Cir. 1988) ................................................... 14

Justice v. United States,

6 F.3d 1474 (11th Cir. 1993) ....................................................... 28

Kentner v. City of Sanibel,

750 F.3d 1274 (11th Cir. 2014) ................................................... 4

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998) ...................................................................... 28

Loving v. Virginia,
388 U.S. 1 (1967) ......................................................................... 5

Mathews v. Eldridge,
424 U.S. 319 (1976) ..................................................................... 5

McKinney v. Pate,
20 F.3d 1550 (11th Cir. 1994) (en banc) ...................................... 4

Mwani v. Osama bin Laden,

417 F.3d 1 (D.C. Cir. 2005) ......................................................... 10-11

Nash v. Wells Fargo Guard Services, Inc.,

678 So. 2d 1262 (Fla. 1996) ........................................................ 24

Ortiz v. Regalado,
113 So. 3d 57 (Fla. 2d DCA 2013) ............................................. 24

Pescatore v Pineda,
345 F. Supp.3d 68 (2018) ............................................................ 10

POM Wonderful LLC v. Coca-Cola Co.,

134 S. Ct. 2228 (2014) ................................................................ 18

Reno v. Flores,
507 U.S. 292 (1993) .................................................................... 5

Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,

119 F.3d 935 (11th Cir.1997) ...................................................... 4

I-6
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 47 of 82

Rosen v. Cascade, Int'l, Inc.,

21 F.3d 1520 (11th Cir. 1994) ...................................................... 16-17

Stansell v. Revolutionary Armed Forces of Colombia,

704 F.3d 910 (11th Cir. 2013) ...................................................... 19

United States v. Palmera Pineda,

07-cr-494 (D.C.D.C.) .................................................................. 10

United States v. Veal,

153 F.3d 1233 (11th Cir.1998) .................................................... 20

United States v. Whiting Pools, Inc.,

462 U.S. 198 (1983) ................................................................... 7

Wiersum v U.S. Bank, N.A.,

785 F.3d 483 (11th Cir. 2015) ..................................................... 18

Williams v. Pryor,
229 F.3d 1331 (11th Cir. 2000) ................................................... 5

STATUTES

Terrorism Risk Insurance Act of 2002,

Pub. L. 107–297, 116 Stat. 2322 ................................................. 15-20

11 U.S.C. § 541 ..................................................................................... 6

15 U.S.C. §§ 1011-1015 ........................................................................ 21-22

18 U.S.C. § 3771 ................................................................................... 25-27

28 U.S.C. § 1334(e) .............................................................................. 6

§ 76.01 et seq., Fla. Stat. ....................................................................... 17-18

§768.81(3) Fla. Stat. (1986) .................................................................. 23

I-7
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 48 of 82

RULES OF PROCEDURE

Fed.R.Civ.P. 4(k)(2) ............................................................................. 10

Fed.R.Civ.P. 12(b)(6) ........................................................................... 2

Fed.R.Civ.P. 15(c)(1)(B) ...................................................................... 12

Fed.R.Civ.P. 23(b)(1)(B) ...................................................................... 6

Fed.R.Civ.P. 64(a) ................................................................................. 17

Fed.R.Civ.P. 65 ..................................................................................... 17

Federal Rule of Appellate Procedure 30(a)(2) ..................................... 32

11th Cir. R. 30-1 ................................................................................... 32

OTHER

U.S. Const. amend. V ........................................................................... 3-5

U.S. Const. amend. XIV ....................................................................... 3-5

Article 2344 of the Civil Code of Colombia ........................................ 23

The Magna Carta of Edward 1 (1297), 25 Edw. 1 ............................... 3

Wright & Miller, Federal Practice & Procedure (1998) ..................... 14

Francis W. Bird, The Evolution of Due Process of Law

in the Decisions of the United States Supreme Court,
13 COLUM.L. REV. 37 (1913) ............................................................ 3

S. Elizabeth Gibson, Case Studies of Mass Tort Limited Fund Class

Action Settlements & Bankruptcy Reorganizations, Federal Judicial
Center (2000). .................................................................................... 6

I-8
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 49 of 82

ARGUMENT

I. Does 1-254's standing is based on their claims against Chiquita Brands.

Does 1-254 have standing because their spouses, children or siblings were

murdered by the FARC while Chiquita was paying the FARC. They don't need any

other standing for the remedy they requested. Nor do they need to allege injuries

by Pestatore or Stansell, even though such injuries have occurred, and are ongoing,

as Pestatore and Stansell continue to dissipate the assets of the FARC, with which

they are being unjustly enriched beyond any damages that could be awarded under

this Circuit's case law. Stansell was awarded over $300,000,000. U.S. dollars for

the murder of Tomas Janis and associated kidnappings. Stansell is sharing this

award with Pescatore according to a secret agreement that is not described in any

public filing. Meanwhile. the district court put a de facto stay on the non- U.S.

cases, and allowed all of the assets of the FARC, who committed all of these

murders, to be assigned to the first two U.S. plaintiffs.

B. Does 1-254 don't need to show any additional standing to enforce

a remedy.

As argued in Does 1-254's Response to the Jurisdictional Question, the

reason this Court has appellate jurisdiction is that the Order on appeal is one

denying injunctive relief. One test for that is whether it relates to an already

existing cause of action. Alabama v. U.S. Army Corps of Engineers, 424 F.3d

1117, 1127 (11th Cir. 2005) The already existing cause of action must be able to

1
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 50 of 82

withstand scrutiny under Fed.R.Civ.P. 12(b)(6) (failure to state a claim). Id. The

Appellants must also show there is no adequate legal remedy, and that irreparable

injury will result if the injunction does not issue. Id. Showing that injury will

result isn't the same as showing that Stansell and Pescatore caused the injury.1 The

Appellees even argue that "a constructive trust is not an independent cause of

action." Appellees' Brief at 31.

C. By permitting Stansell and Pescatore's cases to proceed before

those of Does 1-254, the district court deprived Does 1-254 of
their due process and equal protection rights under the 5th
Amendment of the U.S. Constitution.

Does 1-254 were also injured by the violation of their due process right

itself.2 A violation of procedural due process becomes complete when the state

refuses to provide adequate due process. Club Madonna, Inc. v. City of Miami

Beach, 924 F.3d 1370, 1378 (11th Cir. 2019) Although it isn't argued under a

separate heading, Pescatore and Stansell emphasize throughout their brief that U.S.

nationals and non-nationals have different legal rights. Although they frame this as

a "right to the FARC's assets" see Appellees' Brief § III, the rights violated were

the due process and equal protection rights to have their cases heard, and be treated

fairly with respect to other plaintiffs in the MDL.

1
Nevertheless, they clearly have. They have already taken and dissipated more
than twenty million dollars that should have been used to fairly compensate all of
the Plaintiffs in the MDL.
2
Due process and equal protection were argued in many different contexts below.
see DE 2667, 2676.

2
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 51 of 82

The Fifth Amendment's Due Process Clause requires the federal

government, including the federal courts, to practice equal protection. Equal

protection forces the Court to rule impartially, rather than drawing distinctions

between individuals solely based on differences that are irrelevant to a legitimate

governmental objective. Thus, the Equal Protection Clause is crucial to the

protection of a litigant's rights, and even more so in the context of Multi District

Litigation, where there are many different plaintiffs and lawyers competing for the

Court's attention.

Although most case law concerns the equal protection and due process

clauses of the 14th Amendment, which applies to states, the rights are identical

with respect to the federal government.3 Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 253 (1995) (equal protection obligations imposed by the Fifth and the

Fourteenth Amendments are indistinguishable; "the Fifth Amendment

encompasses a general guarantee of equal protection as broad as that contained in

the Fourteenth Amendment"); Buckley v. Valeo, 424 U.S. 1, 93 (1976) ("equal

protection analysis in the Fifth Amendment area is the same as that under the

Fourteenth Amendment"); Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (since the

3
The Due Process Clause of the Fourteenth Amendment repeats the language from
the Fifth Amendment making it binding on the states. U.S. CONST. amend XIV, §
1. The Fifth Amendment language, in turn, stems from a longstanding English
tradition originating in the “law of the land” language in the Magna Carta. See
Francis W. Bird, The Evolution of Due Process of Law in the Decisions of the
United States Supreme Court, 13 COLUM.L. REV. 37, 37 (1913).

3
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 52 of 82

Fourteenth Amendment applies only to state action, discrimination by federal

authorities may be brought as violations of the Due Process Clause of the Fifth

Amendment); Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d

935, 944 (11th Cir.1997) (since the language and policy considerations of the Due

Process Clauses of the Fifth and Fourteenth Amendments are virtually identical,

decisions interpreting the Fourteenth Amendment's Due Process Clause guide the

Court in determining what due process requires in the Fifth Amendment

jurisdictional context.)

Thus, the distinction between procedural and substantive due process is the

same with respect to 5th and 14th Amendment due process claims. A violation of

procedural due process occurs where the state fails to provide due process in the

deprivation of a protected liberty interest. McKinney v. Pate, 20 F.3d 1550, 1557

(11th Cir. 1994) (en banc). A substantive due process violation occurs where an

individual’s fundamental rights, those “implicit in the concept of ordered liberty,”

are infringed - regardless of the fairness of the procedure. Id. at 1556. In addition,

“the substantive component of the Due Process Clause ... protects ... from arbitrary

and irrational governmental action” in general. Kentner v. City of Sanibel, 750

F.3d 1274, 1278–80 (11th Cir. 2014). State action may not be arbitrary and

capricious, regardless of the procedures followed. Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1577 n.11 (11th Cir. 1989).

4
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 53 of 82

A determination of what process is constitutionally due in any given

situation requires balancing the individual's interest against the government's

interest, and considering whether the procedure under review is likely to produce

erroneous results. Mathews v. Eldridge, 424 U.S. 319 (1976). In this case, the

strict scrutiny standard applies, because the difference between Pescatore and

Stansell, and Does 1-254, is their national origin.4 Like race, courts consider

national origin to be a suspect classification meriting the highest possible standard

of review. Loving v. Virginia, 388 U.S. 1, 11 (1967) "Statutes5 that infringe

fundamental rights, or that make distinctions based upon suspect classifications

such as race or national origin, are subject to strict scrutiny, which requires that the

statute be narrowly tailored to achieve a compelling government interest."

Williams v. Pryor, 229 F.3d 1331, 1334 (11th Cir. 2000), citing Reno v. Flores, 507

U.S. 292, 301-02 (1993), Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995).

4
National origin is the applicable category. There is no citizenship requirement to
have standing in federal court. The Fifth Amendment due process and equal
protection clauses apply to all "persons," rather than only citizens.
5
Although this language refers to statutes, the actions of any branch of
government, including the courts, are reviewed using the same constitutional
standards. For claims under the Equal Protection Clause, the issue is whether the
government can identify a sufficiently important objective for its discriminatory
policies. In order to make this determination, there are three main questions the
court must ask: 1) What is the classification, 2) What is the appropriate level of
scrutiny, and 3) Does the government action meet that level of scrutiny. City of
Cleburne v. Cleburne Living Ctr., 472 U.S. 432 (1985).

5
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 54 of 82

"Most statutes reviewed under the very stringent strict scrutiny standard are found

to be unconstitutional." Id. at 1334.

D. The equitable distribution of the FARC's assets is comparable to

the payment of creditors in bankruptcy proceedings, which may
occur in MDL proceedings.

On June 27 2017, FARC ceased to be an armed group, disarming itself and

handing over its weapons to the United Nations.6 The FARC's seized assets are not

unlike the assets paid to creditors in a bankruptcy proceeding. In fact, many mass

tort cases have ended in the defendant's bankruptcy. See Case Studies of Mass Tort

Limited Fund Class Action Settlements & Bankruptcy Reorganizations, by S.

Elizabeth Gibson, Federal Judicial Center (2000). The article compares class

action settlements of mass torts pursuant to FRCP 23(b)(1)(B), with how mass torts

are resolved in bankruptcies. See In re UNR Indus., Inc., 42 B.R. 94, 95 (Bankr.

N.D. Ill. 1984); In re A.H. Robins Co., Bankr. No. 85-01307-R (E.D. Va. filed

Aug. 21, 1985) (establishing a trust for Dalkon Shield claimants); Butler v. Mentor

Corp., No. 93-P-11433-S (N.D. Ala. filed May 14, 1993) (limited fund settlement

of breast implant litigation). In bankruptcy cases, the district court "shall have

exclusive jurisdiction of all of the property, wherever located, of the debtor as of

the commencement of [the] case, and of property of the estate." 28 U.S.C. §

1334(e). "Property of the estate," see 11 U.S.C. § 541, is broad in scope, United

6
This was argued below at DE 2688 at 7.

6
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 55 of 82

States v. Whiting Pools, Inc., 462 U.S. 198 (1983), and in any given case,

comprises most if not all "property of the debtor." Id. at 209.

II. The ex parte, default judgments in the MDL transferee courts are void
and unenforceable.

In the lengthy Statement of Facts in their Principal Brief, Does 1-254

showed that the MDL transferee courts had no jurisdiction because the JPML never

remanded Stansell or Pescatore's cases, and could not have had personal

jurisdiction over the FARC due to the nature of the organization, and lack of

contact with any forum in the United States. Stansell doesn't respond to the

evidence at trial proving that the FARC shot at every plane flying overhead, and

had no way to know Americans were onboard, and Pescatore didn't allege any kind

of contact with the United States, such as an extortion demand. The Court may

easily review the complaints of Stansell and Pescatore to see what contacts were

alleged. Appx. at 383-388, 394-400. Any language in the default judgments

referring to threats against Americans is inaccurate and not based on the record.

A. The JPML never remanded Pescatore's case, even though the

transferor court stayed the case pending remand from the
transferee court.

The Appellees try to create factual issues over whether Stansell and

Pescatore's cases against the FARC were transferred by the JPML or not.

Appellees' Br. at 8, 11. They provide no additional evidence, and cite two

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 56 of 82

documents in Appellants' Appendix, at pages 493 and 496. Id. The Appellees

should have the docket and filings in the JPML, which aren't available online.

In Appellants' Principal Brief at 8-11, they showed that on May 14, 2012,

Pescatore moved to stay further proceedings in Pescatore v. FARC, so the case

could be consolidated with Pescatore v. Chiquita "in order to avoid submitting

duplicate evidence on the exact same damages issues." Appx. at 496. The D.C.

District Court stayed the case by Minute Order six days later. Appx. at 206. The

Status Report also states that "[o]nce these pretrial proceedings [in SDFL] finish,

Plaintiffs’ case will likely be returned to this Court pursuant to 28 U.S.C. § 1407,

which requires that the U.S. Judicial Panel on Multidistrict Litigation remand this

case 'at or before the conclusion of such pretrial proceedings.'” Id. The Appellees

rely on this filing to try to prove the opposite.

Stansell's claims against the FARC had already been resolved in a default

judgment by the time his claims against Chiquita were transferred. On April 5,

2010, Stansell filed suit against Chiquita. See docket, Appx. at 514. The JPML

transferred this case to the District Court for the Southern District of Florida on

August 11, 2010. Id. In parallel proceedings, on June 15, 2010, the Middle

District of Florida issued a default judgment in Stansell v. FARC. Appx. at 39. On

8
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 57 of 82

August 9, 2010 the JPML transferred the Stansell v. Chiquita case to the SDFL.7

Appx. at 493.

Finally, the list of cases in the MDL docket includes Pescatore's cases

against both Chiquita (DC/1:09-cv-00490) and against the FARC

(DC/1:08-cv-02245), and lists Stansell's case against Chiquita

(FLM/8:10-cv-00786), but not Stansell's case against the FARC (Case No.

09-cv-2308 in the MDFL). See Appx. at 509. This probably reflects the fact that

Stansell's case against the FARC had already been resolved in a default judgment.

The fact that both of Pescatore's cases are listed in the MDL, and that the

judge in the transferor court was advised that a remand order from the JPML was

necessary, shows that the transferor court had no jurisdiction without the remand

order. The parallel litigation, with no notices filed in the MDL court, shows that

none of the judges, or other litigants in the MDL, were ever informed about what

Stansell and Pescatore were doing. Had Does 1-254 known what representations

were being made to these judges, they would have explained that Chiquita's

financing of the FARC is not a fact in dispute. The only disputed facts are those

relating to the causation of each murder and kidnapping by the FARC, which are

identical questions with respect to Chiquita and the FARC.

7
Appellants' Principal Brief contains a typographical error in this section, referring
to the Stansell v. FARC case. The Stansell v. FARC case had already been resolved
in a default judgment by that time.

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B. None of the courts involved in this case had personal jurisdiction

over the FARC.

In their Principal Brief, Does 1-254 outlined the possible bases for personal

jurisdiction over the FARC, and showed this case is unique. No other terrorist

group has been successfully sued in the United States, let alone on an ex parte

basis. Id. at 19-30. The murders didn't occur in the United States, or have any

connection to the United States, other than the contacts between Chiquita and the

United States.

The Pescatore complaint makes cursory allegations of ransom demands, but

doesn't say whether they were made in the state of Florida, or how they were made.

See Does 1-254's Principal Brief at 22. They would have had to have been made in

Florida to count as contacts. Appx. at 386. Pescatore cites the ex parte, default

judgment in Pescatore v Pineda, 345 F. Supp.3d 68, 76 (2018), adding language "in

the United States" that doesn't appear in either the decision or the complaint.

Although this order does state that there were ransom negotiations with Pescatore's

family, this is not alleged in Pescatore's complaint, and does not appear in the

record, other than in the quoted language of an ex parte, default judgment.

The reasoning in Pescatore v Pineda also relies on Mwani v. Osama bin

Laden, 417 F.3d 1, 14 (D.C. Cir. 2005), which allows a plaintiff to aggregate

contacts with more than one state, to prove that a defendant had contacts with the

United States as a whole for the court to have general personal jurisdiction. See

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Appellee's Brief at 21. Mwani in turn relies on Federal Rule of Civil Procedure

4(k)(2), which, in cases where a defendant is not subject to jurisdiction in any

state's courts of general jurisdiction, authorizes a district court to “aggregate a

foreign defendant's nationwide contacts to allow for service of process provided

that two conditions are met:  (1) plaintiff's claims must ‘arise under federal law,’

and (2) the exercise of jurisdiction must ‘be consistent with the Constitution and

laws of the United States.’ ”  Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286,

1291 (11th Cir. 2000) (quoting Fed.R.Civ.P. 4(k)(2)).

Even if Mwani were the law in this Circuit, it has no application to

arguments about specific personal jurisdiction. Otherwise, a claim could arise in

one U.S. state, and the plaintiff could sue in another state. Pescatore doesn't say

where the alleged ransom demand was made, and the "purposeful targeting of

Americans by [FARC's] terrorism" cannot be based on Mwani and Rule 4(k)(2)

because these are arguments about general, not specific personal jurisdiction. See

Appellee's Brief at 21.

Stansell's complaint makes no attempt to allege contacts at all, and asserts

personal jurisdiction over the FARC on the basis that it is listed as a foreign

terrorist organization. Appx. at 420. Stansell argues on appeal that the FARC

purposefully availed themselves of the jurisdiction of U.S. courts by shooting

down an airplane with American passengers on it. However, the evidence at trial

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 60 of 82

in U.S. v. Palmera Pineda, 07-cr-494 (D.C.D.C.), showed that the FARC shot at

every airplane that flew over them, had no idea who was onboard the aircraft, and

were surprised when the plane went down. Intercepts of FARC communications

showed that the FARC were surprised by the incident, and their response to it.

Stansell has never contested the fact that the FARC couldn't have known there

were Americans on the plane, which was argued below and also in Doe 1-254's

Principal Brief at 25. Stansell argues that the FARC subsequently broadcast proof

of life videos and demanded an exchange of prisoners, Appellees' Brief at 20, but

doesn't show how these were contacts with any U.S. state. They would have to be

contacts with the District of Columbia, where Stansell filed his complaint. Like

Pescatore, Stansell cannot use contacts with one state to prove specific jurisdiction

in another state, because Mwani and Rule 4(k)(2) apply to general, not specific

personal jurisdiction.

C. Under EEOC v. Pemco Aeroplex, Inc. claim preclusion applies

because the Appellees' cases against Chiquita and the FARC
involve the same operative facts, and the FARC's interests were
adequately represented by Chiquita.

In § C(1)(a) of their Principal Brief, Does 1-254 showed that any claims

against the FARC would relate back to their claims against Chiquita. Rule

15(c)(1)(B) of the Federal Rules of Civil Procedure allows such amendments, as

long as "the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out - or attempted to be set out - in the original

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 61 of 82

pleading." Id. The relation back doctrine doesn't require leave of the court.

Nevertheless, the District Court denied leave to amend to add these claims.

The Appellees argue that Chiquita and the FARC were not in privity, citing

Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1502 (11th Cir. 1990).

Appellee's Brief at 22. They provide no facts or other authorities to show why this

is the case, or explain why they no longer rely on EEOC v. Pemco Aeroplex, Inc.,

383 F.3d 1280 (11th Cir. 2004), as they did in District Court. The Pemco court set

forth the standard that "privity is a flexible legal term that generally requires that a

non-party have 'his interests adequately represented by someone with the same

interests who is a party.'” Id. at 1286. Chiquita vigorously defended both cases and

got both the Stansell and Pescatore cases dismissed on the merits, adequately

representing the interests of the FARC.

In Pemco, the term of art employed was "virtual representation," which

applies "when the respective interests are closely aligned and the party to the prior

litigation adequately represented those interests." Id. at 1287, quoting Delta Air

Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 587 (11th Cir. 1983) ("Under res

judicata doctrines such as 'virtual representation,' a litigant may be precluded from

litigating an issue based on a prior lawsuit in which, although he was not a party,

his interests were represented by a party. This principle applies, however, only

when the respective interests are closely aligned and the party to the prior litigation

13
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 62 of 82

adequately represented those interests." (citation omitted)). Aerojet-Gen. Corp. v.

Askew, 511 F.2d 710, 717 (5th Cir. 1975) (doctrine of virtual representation

provides in essence that "a person may be bound by a judgment even though not a

party if one of the parties to the suit is so closely aligned with his interests as to be

his virtual representative.")

The Court has employed four factors in determining whether there is virtual

representation: whether there was "participation in the first litigation, apparent

consent to be bound, apparent tactical maneuvering, [and] close relationships

between the parties and nonparties." Pemco, 383 F.3d at 1287, citing Jaffree v.

Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988); 18 Wright & Miller, Federal

Practice & Procedure § 4457, at 494-99. All of these factors need not be found to

meet the virtual representation standard. Id.

The factors are easily met here. The fourth, the close relationship between

Chiquita and FARC, is based on the fact that Chiquita is being held secondarily

liable for the FARC's acts. The Appellees cannot argue that the FARC and Chiquita

had different legal interests just because of the difference in legal theories applied.

The different legal theories only relate to the difference between primary and

secondary liability of the tortfeasors. They both had an interest in proving that the

FARC didn't commit the crimes. That is what the "nucleus" of facts in dispute in

each case is always about. The FARC were adequately represented in the cases

14
 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 63 of 82

defended by Covington and Burling LLP and Blank Rome LLP, counsel for

Chiquita Brands, who got the Stansell and Pescatore cases dismissed with

prejudice. The FARC were not adequately represented in the ex parte default

judgments.

The Appellees rely on an erroneous ruling by Judge Bucklew, that Stansell's

cases against Chiquita and the FARC involved different disputed facts. Appellees'

Brief at 8. Chiquita's payments to the FARC, like those to the AUC, are not in

dispute. Chiquita admits it paid the FARC. Factual Proffer, Appx. at 553; see § III

(B)(6) infra. Chiquita's internal investigation confirmed payments of about $1.6

million dollars to the FARC. Appx. at 737-756; see § III (B)(6) infra. Like the

cases of Does 1-254 and all the other cases in the MDL, the only facts in dispute

are those pertaining to the circumstances of each particular murder, and whether

causation by the FARC can be proven. This is the issue currently on appeal in

Case 19-13926, Does 1-976 v. Chiquita Brands.

D. Under Citibank v. Data Lease Fin. Corp., the motion for

constructive trust is a legitimate use of offensive non-mutual issue
preclusion, because Chiquita and the FARC were in privity with
respect to the particular murders Chiquita was trying to disprove.

The Citibank case now argued by the Appellees distinguishes "offensive"

and "defensive" use of issue preclusion, as well as whether the relationships are

"mutual" or "non-mutual." The relationship between Chiquita and the FARC was

similar to the principal/agent and respondeat superior arguments analyzed in

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 64 of 82

Citibank, since the FARC were paid by Chiquita on a regular basis to provide

security. After analyzing several out of circuit cases and secondary authorities, the

court held that "we conclude that the third element of claim preclusion, i.e., privity,

is met herein." Citibank, 904 F.2d at 1502 (11th Cir. 1990). The Appellants have

been arguing claim preclusion, but the instant case may also be construed as an

application of offensive, non-mutual issue preclusion with regard to the

principal/agent and respondeat superior discussion in the case relied on by the

Appellees.

III. Does 1-254 don't need to show a right to the FARC's assets because they
only seek a remedy.

According to the Appellees, one of the issues on appeal is whether "the

applicable law only authorizes United States nationals to enforce judgments against

the assets at issue..." Appellees Br. at 1. There are many laws that might apply to

these assets, which are now in the possession of Stansell and Pescatore.

B. Chapter 76 of the Florida Revised Statutes provides for

prejudgment attachment of property when either the party or the
property is out of state, which the Court may order via either a
preliminary or permanent injunction pursuant to Federal Rule of
Civil Procedure 64.

In Rosen, the Court explained that "Rule 64 commands that the proper

pretrial remedy to ensure that a fund will be available with which to satisfy a

money judgment, a writ of attachment, is available according to the provisions of

the forum state's law. But "[w]here the state attachment statute does not authorize

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 65 of 82

prejudgment attachment in a given case, a district court is not authorized ... to

attempt to accomplish the same result by issuing a preliminary injunction." Rosen

v. Cascade, Int'l, Inc., 21 F.3d 1520, 1531 (11th Cir. 1994). In the instant case,

there is no conflict with the Florida attachment statute, which is found in Chapter

76 of the Florida Statutes.

Rule 64(a) provides that "[a]t the commencement of and throughout an

action, every remedy is available that, under the law of the state where the court is

located, provides for seizing a person or property to secure satisfaction of the

potential judgment. But a federal statute governs to the extent it applies."

Remedies available under this rule include attachment, garnishment, replevin,

sequestration; and other corresponding or equivalent remedies. Fed. R. Civ. P. 64

(b). Rule 65 provides for the issuance of a Temporary Restraining Order while a

motion for preliminary injunction is pending.

1. Chapter 76 of the Florida Revised Statutes provides for

prejudgment attachment of assets.

A plaintiff may obtain a prejudgment writ of attachment in Florida by filing

a motion with the court, along with an affidavit stating the grounds for the issuance

of the writ. § 76.08, Fla. Stat. Three of the grounds listed are that the purported

debtor resides out of state, or is moving, or has moved property out of the state. §

76.04 (2, 3 & 4), Fla. Stat.

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The Pescatore case is brought by ten legal heirs, five of whom live in

Alabama, and the other five in New Jersey. Appx. at 381, 392. Pescatore's

complaints against the FARC and Chiquita are nearly identical, are for the exact

same injuries, allege the exact same facts, and were filed within a few months of

each other. Id. The Stansell case is brought by eight legal heirs residing in Florida,

Connecticut, Alabama, New York, and Virginia. Appx. at 418-419. Since these

plaintiffs have already collected $20 million dollars, there is no doubt that the

property at issue has been moved outside of the state of Florida.8

The Appellees argue that under Gersh v Cofman, 769 So.2d 407, 409 (Fla.

Dist. Ct. App. 2000) and Abreu v. Amaro, 534 So.2d 771, 772 (Fla. Dist. Ct. App.

1988), Does 1-254 must prove all elements by clear and convincing evidence.

Appellees' Brief at 31. In both of these cases, the imposition of a constructive trust

was the cause of action itself, as the Appellees illustrate by listing the elements. Id.

At the same time the Appellees recognize that Does 1-254 only seek a constructive

trust as a remedy. Nevertheless, neither § 76.01 et seq., Fla. Stat. nor F.R.C.P. 64

use this standard. Under § 76.08, "a writ of attachment may issue when the

grounds relied on for the issuance of the writ clearly appear from specific facts

shown by a verified complaint or a separate affidavit of the plaintiff, and all

8
It bears repeating that these cases were dismissed with prejudice by the MDL
transferee court, yet Stansell and Pescatore obtained ex parte, default judgments of
over $300 million dollars in the transferor courts after the cases were dismissed.

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 67 of 82

applicable requirements of s. 76.09, s. 76.10, or s. 76.11 are met." Id. That the

grounds must "clearly appear" in the motion isn't the same as the clear and

convincing standard, and isn't a standard this Court should apply.

These rules and laws authorize the attachment of assets, independently of

who has them, whether or they are the proceeds of a terrorist organization or acts

of terrorism. Whether the TRIA "occupies the field" such that Federal law

preempts the state attachment statute, was never raised as an issue below.

2. Federal Preemption doesn't apply to the TRIA.

“In pre-emption cases, the question is whether state law is pre-empted by a

federal statute, or in some instances, a federal agency action.” POM Wonderful

LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014); Wiersum v U.S. Bank, N.A.,

785 F.3d 483 (11th Cir. 2015). The Supreme Court has identified three

circumstantial categories, where federal law preempts state law. First is express

preemption, where Congress defines “explicitly the extent to which its enactments

pre-empt state law.” English v. Gen. Electric Co., 496 U.S. 72, 78 (1990); Fla. State

Conference of NAACP v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008)

(“Express preemption occurs when Congress manifests its intent to displace a state

law using the text of a federal statute.”). The second is called field preemption.

“[I]n the absence of explicit statutory language, state law is preempted where it

regulates conduct in a field that Congress intended the Federal Government to

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 68 of 82

occupy exclusively.” English, 496 U.S. at 795. The third is conflict preemption,

which occurs when “state law is pre-empted to the extent that it actually conflicts

with federal law.” English, 496 U.S. at 79.

“Pre-emption fundamentally is a question of congressional intent,” requiring

statutory interpretation. English, 496 U.S. at 78-79. “As in all cases involving

statutory construction, our starting point must be the language employed by

Congress, and we assume that the legislative purpose is expressed by the ordinary

meaning of the words used.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)

(citations and internal quotation marks omitted). "Indeed, a statute's plain language

controls unless it is 'inescapably ambiguous.'” Stansell v. Revolutionary Armed

Forces of Colombia, 704 F.3d 910, 915 (11th Cir. 2013) quoting United States v.

Veal, 153 F.3d 1233, 1245 (11th Cir.1998). “Where the language of a statute is

unambiguous, as it is here, we need not, and ought not, consider legislative

history.” Harry v. Marchant, 291 F.3d 767, 772 (11th Cir. 2002) (en banc).

3. The text of the TRIA shows that Congress intended to

create a system to compensate for insured losses resulting
from acts of terrorism, not displace any state laws.

The Purpose of the TRIA was "to establish a temporary Federal program that

provides for a transparent system of shared public and private compensation for

insured losses resulting from acts of terrorism, in order to -- (1) protect consumers

by addressing market disruptions and ensure the continued widespread availability

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 69 of 82

and affordability of property and casualty insurance for terrorism risk; and (2)

allow for a transitional period for the private markets to stabilize, resume pricing of

such insurance, and build capacity to absorb any future losses, while preserving

State insurance regulation and consumer protections." Terrorism Risk Insurance

Act of 2002, § 101 (b). Given the clear language "while preserving State insurance

regulation and consumer protections," it cannot be true that the TRIA was intended

to displace any state laws. Rather, it was intended as a backstop to provide a

source of funds to compensate victims of terrorism to protect the insurance

industry. The TRIA was passed the year after the attacks on the World Trade

Center and Pentagon, over which there was extensive litigation.

No insurance company defended Chiquita Brands in Stansell, Pescatore,

Does 1-254, or any other case in the MDL. It is fair to infer that Chiquita didn't

have any insurance that would cover Chiquita's responsibility for murders

committed by the FARC while Chiquita was paying the FARC for security.

Perhaps this is because Chiquita pled guilty to a felony, and the insurance didn't

cover criminal acts. The plaintiffs can only speculate about this. Nevertheless, it's

not clear how the purpose of the TRIA is served by paying compensation from this

fund in situations that don't even involve insurance.

Congress didn't contemplate the instant situation, where a conflict in a

foreign country primarily impacted that country's citizens, but also several U.S.

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 70 of 82

citizens who were killed or kidnapped while in Colombia. This reading of the

TRIA would disregard the rights of the Colombian plaintiffs, because the money

seized from the FARC's instrumentalities presumptively originated in the FARC's

illegal activities in Colombia, and most of the people harmed by the FARC were

Colombians. If money held in accounts at Wells Fargo and American Express in

the U.S. can be traced to the FARC, it should be used to compensate all of the

plaintiffs, not just the ones in the jurisdiction where the accounts are held.

Nor can it be argued that field exemption applies. English, 496 U.S. at 795.

In 1945, Congress passed the McCarran-Ferguson Act, giving states the authority

to regulate insurers. 15 U.S.C. §§ 1011-1015. Congress intended "that the

continued regulation and taxation by the several States of the business of insurance

is in the public interest, and that silence on the part of the Congress shall not be

construed to impose any barrier to the regulation or taxation of such business by

the several states.” Id. at § 1011. The law also says that “no Act of Congress shall

be construed to invalidate, impair, or supersede any law enacted by any state for

the purpose of regulating the business of insurance,” providing limited exceptions

for the Sherman and Clayton Acts, which were already in force. Id. at § 1012(b).

In other words, the Court would have to find a Congressional intent for the TRIA

to exclude state remedies such as prejudgment attachment of assets.

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This leaves only the theory of conflict preemption. In Hines v. Davidowitz,

a Pennsylvania law requiring aliens to register with the state "[stood] as an obstacle

to the accomplishment and execution of the full purposes and objectives of

Congress." Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941). (footnote omitted)

Congress couldn't have intended that all of the assets seized from the FARC would

be used to compensate two U.S. victims of the FARC to the exclusion of others,

especially where no insurance company is involved. Likewise, the TRIA wasn't

intended to displace the normal remedies of attaching assets traceable to the FARC.

4. Florida juries may consider the fault of non-parties in

negligence cases.

In jurisdictions following the comparative negligence rule, such as Florida,9

the Court may apportion damages according to fault, among both parties and

non-parties. Two cases, decided at about the same time, govern the jury's

consideration of the fault of non-parties in negligence in Florida. In Allied Signal,

Inc. v. Fox, 623 So.2d 1180 (Fla. 1993), an airline technician lost fingers while

9
Florida tort law merely provides an example of a situation where the court would
need to determine the fault of a non-party. See Fla. Stat. §768.81(3) (1986) (“In
cases to which this section applies, the court shall enter judgment against each
party liable on the basis of such party’s percentage of fault and not on the basis of
the doctrine of joint and several liability; …") The District Court held that
Colombian law applies. Article 2344 of the Civil Code of Colombia provides for
joint and several liability, and the same principles should apply, since a finding that
the FARC committed the murder is necessary to show causation for Chiquita's
negligence. In other words, the Court already has jurisdiction to determine that the
FARC was at fault, even if the FARC isn't a defendant in the case.

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servicing an aircraft fan. He sued the manufacturer in federal court for negligently

failing to instruct and warn with respect to the fan. His employer wasn't named as

a defendant, because it was immune from suit under the Workers Compensation

Act. The Florida Supreme Court held that the airline’s immunity from tort liability

didn't bar the jury’s consideration of its fault in causing the plaintiff’s damages.

In the other case, Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), the plaintiff

was injured in an accident while riding as a passenger in an automobile driven by

her husband. The jury found that he was 50 percent at fault for the accident. While

the husband owed general duties of care to his wife, he was immune from suit

because of interspousal immunity. The trial court declined to reduce the

defendant’s liability by this amount. Id. at 1186. The Florida Supreme Court

quashed the order and remanded the case. Id. at 1187.

5. The District Court allowed the Pescatore case to proceed to

trial with the FARC as a Fabre defendant.

Chiquita has at various stages of this case argued that they are not

responsible for the murders, because either the FARC or AUC were responsible.

This is properly argued as an affirmative defense. “[I]n order to include a nonparty

on the verdict form pursuant to Fabre, the defendant must plead as an affirmative

defense the negligence of the nonparty and specifically identify the nonparty.”

Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262, 1264 (Fla. 1996);

Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993); Ortiz v. Regalado, 113 So. 3d 57, 63

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(Fla. 2d DCA 2013) (“A ‘Fabre defendant’ is a nonparty defendant whom a party

defendant asserts is wholly or partially responsible for the negligence alleged.”).

Although the District Court denied Chiquita's Motion to Dismiss Does

1-254's Complaint on March 29, 2012, see DE 513, the cases never progressed to

discovery. Nevertheless, Chiquita has asserted affirmative defenses that support

some of these arguments. See DE 527 25-290 ¶ 18 "Plaintiffs’ claims must be

dismissed because of the nonjoinder of indispensable parties alleged to have

caused Plaintiffs’ and decedents’ injuries;" ¶ 19 "Insofar as Defendant may be held

liable for any of the Plaintiffs’ claims, any such liability shall be reduced or

eliminated under the principles of indemnity, contribution, or comparative fault;" ¶

22 "To the extent that Plaintiffs and decedents are found to have suffered the harms

alleged in the Complaint, those harms were caused by persons or entities other than

Chiquita." Since the District Court allowed these defenses for Pescatore, see

Answer at DE 281, it has already treated the FARC as a Fabre defendant.

6. The Crime Victim Rights Act could apply because

Chiquita's guilty plea was based on payments to both the
FARC and AUC.

The Appellants showed that the Crime Victim Rights Act ("CVRA"), 18

U.S.C. § 3771, provides an alternative theory for recovery. See Appellants Brief at

44-49. Does 1-254 didn't bring separate claims under the CVRA, but this isn't

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required, because the District Court already has jurisdiction over the Stansell and

Pescatore cases, and the power to fashion equitable remedies.

The Factual Proffer provides more details about the payments to the AUC

than the FARC, but also says "Defendant CHIQUITA had previously paid money

to other terrorist organizations operating in Colombia, namely to the following

violent, left-wing organizations in Colombia: Revolutionary Armed Forces of

Colombia ... Defendant CHIQUITA made these earlier payments from in or about

1989 through in or about 1997..." Appx. at 553.

The Appellees refer to the Government's Sentencing Memorandum, which is

not in Appellants' Appendix, but the sentence was based on payments to both

groups. See Memo of Sept. 11, 2007 in Case 07-cr-055. Indeed, the reason

Stansell and Pescatore sued Chiquita was because payments to the FARC were

admitted in the underlying criminal case.

The section of Chiquita's Special Litigation Committee Report dealing with

the legality of payments is found in Appellants' Appendix at 737 to 756. The

report states that although the FARC wasn't designated as a terrorist group before

1997, government officials advised Chiquita that the payments might have violated

the Foreign Corrupt Practices Act. "At no time did government representatives say

anything to suggest that the payments violated U.S. law, other than as a potential

violation of the FCPA, and no enforcement action was ever taken with respect to

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the payments." Appx. at 743. The SLC report also refers to a factual issue as to

when the payments to the FARC actually stopped. "While certain documentary and

testimonial evidence suggests that the Company made the payments to the guerrilla

groups until approximately mid-1997 or, according to at least one witness, until

1999..." Appx. at 742. Finally, several documents produced by Chiquita's legal

department reflect their knowledge that payments to the FARC before 1997 were

illegal. See February 3, 1997 [Banadex lawyer] memo: "[A Banadex lawyer’s]

memo, titled “Crime of Extorsion and Kidnapping in Colombia” [sic], updated and

expanded on his June 10, 1994 memo. As with his earlier memo, this memo stated

that, “no punishment will be applied” when one makes ransom and extortion

payments “in a state of necessity.” Appx. at 741; September 9, 1997 B&M memo:

“Payments to Guerrilla Groups,” which the Legal Department received in order to

confirm [the Banadex lawyer’s] conclusions, concluded that payments to guerrilla

groups are not illegal if made to “defend the life and freedom of individuals.”

Appx. at 741-742. These are legal defenses reflecting knowledge that payments to

the FARC were illegal under Colombian law.

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IV. Does 1-254 were denied the same discovery granted to Pescatore, had no
input into any schedule imposed by the district court, and didn't consent
to being excluded from the bellwether process.

The Appellees argue that Does 1-254 "expressly joined" the scheduling

order.10 Does 1-254 moved multiple times for remand, in both the District Court

and this Court. See Order denying Renewed Motion to Remand, DE 2601,

pending Motion to Vacate and Remand of Dec. 2, 2019 in Appeal No 19-13926-C.

The District Court wouldn't allow Does 1-254's cases to proceed while Stansell and

Pescatore's cases were proceeding, or recognize plaintiffs' rights under Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

A. Denial of discovery granted to Pescatore.

On November 8, 2015 Appellants filed a motion entitled "Plaintiff Does

1-254 Motion to Participate in the Hague Convention Request to the Government

10
At the same time, they argue that the Court of Appeals should consider whether
the statutes of limitations on Does 1-254's claims have run. Appellees' Brief at 26.
Should the Court of Appeals wish to address this issue in the first instance, it
should also consider whether equitable tolling applies. Justice v. United States, 6
F.3d 1474, 1479 (11th Cir. 1993) In addition, the Appellees explain in a footnote
that other counsel in the MDL moved to certify this mass tort case as a class action,
id. at 26 n. 4, which was denied. DE 2471. Nevertheless, the District Court
allowed the same counsel to file new claims, establishing a March 17, 2017
deadline. "Based on these conclusions, the Court holds that Colombia’s 10-year
ordinary statute of limitations began to run, at the latest, on March 17, 2007, the
date Chiquita’s D.C. plea to crimes relating to its financial support of foreign
terrorist organizations became public (Complaint, ¶1026), and it expired ten years
later, on March 17, 2017." Appx. at 1082. Does 1-254 filed their complaint six
years earlier, on March 17, 2011. Appx at 379. This was argued in Appellants
Principal Brief at 41, but the Appellees didn't respond to it.

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of Colombia for Evidence of Financing of the Fuerzas Armadas Revolucionarias

de Colombia (FARC)." DE 928.11 Does 1-254 argued that they "need substantially

the same evidence as the ATA Plaintiffs" from the government of Colombia and

that it would be more efficient to conduct this discovery at the same time as

Pescatore. Id. at 3. Chiquita opposed the motion, arguing that the information

would be irrelevant to their claims. DE 944 at 3.

In their November 28, 2015 Reply, Does 1-254 showed how they had an

equal right to the discovery allowed to the Pescatore plaintiffs, DE 945 at 4-9, and

that it would be unconstitutional to exclude Does 1-254 from it, since it gives

Chiquita an advantage in the litigation. DE 945 at 9-10. The District Court denied

the motion on September 1 2007, DE 1546. However, this was not an appealable

order.

B. Exclusion from conferral on the district court's schedule.

The record reflects that undersigned counsel's clients have been sidelined in

favor of clients of other attorneys. See, e.g., Response to Plaintiffs’ and Chiquita’s

Joint Status Conference Statement, DE 1827 at 1. "Neither counsel for Chiquita

Brands nor for the other Plaintiffs conferred with me before filing this statement on

the day before the status conference. I tried to confer with all other parties on these

11
These filings aren't in Appellants' Appendix because counsel hadn't anticipated
the Appellees would raise this issue. Neither the Appellees nor Chiquita Brands
responded to requests to collaborate on a Joint Appendix.

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issues and my positions are known to all of them, yet are not mentioned anywhere

in the Joint Status Conference Statement." Despite representing more than half of

the plaintiffs in the MDL, the District Court has allowed the "non-Wolf" plaintiffs'

counsel to negotiate the case schedule with Chiquita, and imposed the same

schedule on the "Wolf" plaintiffs.

C. Exclusion from the bellwether trial pool.

The district court excluded Does 1-254, and other cases involving injuries

caused by the FARC, rather than the AUC.12 In the Factual Proffer in the

underlying criminal case, Chiquita admitted paying a similar amount to each

group, which was somewhere between one and two million dollars over time. See

Appx. at 550-566.

Undersigned counsel objected to the list of the first bellwether cases to be set

for trial, which were determined by Chiquita and plaintiffs' counsel Jack Scarola of

Searcy Denney Scarola Barnhardt & Shipley, PA. DE 2501 The District Court

allowed Jack Scarola of Searcy Denney Scarola Barnhart & Shipley PA to select

the cases, without regard to the rights of other plaintiffs who were forced into the

bellwether trial process. Id. None of undersigned counsel's cases were included.

12
There are about 38 other plaintiffs in the MDL alleging FARC, rather than AUC
injuries, which I included in the first complaint in the MDL, Does 1-144 v.
Chiquita Brands, 07-cv-1048. See Memorandum in Support of Cross Motion to
Disqualify, DE 2373-1 at 1 n 5.

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At least one FARC-related case was part of the bellwether pool, though. On

March 13, 2019, plaintiffs' attorneys at Conrad & Scherer, LLP filed a motion to

"sever" the claims of a FARC victim in the first complaint, meaning remove it from

the bellwether pool. DE 2322. Undersigned counsel replied by filing a motion to

disqualify Collingsworth from representing these individuals, in part arguing that

by excluding them from the bellwether trial pool, the FARC victims were

adequately represented. DE 2373. The Court held a hearing on April 27, 2020, at

which time Attorney Collingsworth stated that he no longer wanted to represent

Does 1-144. The representation was settled in an Order dated April 28, 2020 in

favor of undersigned counsel. DE 2573. Nevertheless, these plaintiffs were

excluded from the first round of bellwether trials.

V. Chiquita took no position on the Motion for a Constructive Trust and

has no stake in it, and waived the other arguments in its brief.

Chiquita didn't oppose the motion leading to the order on appeal, but stated

that "Defendant Chiquita Brands International, Inc. (“Chiquita”) takes no position

on much of Plaintiffs’ Motion for Constructive Trust over FARC Assets (DE 2667,

“Motion”). Indeed, Chiquita would have no stake whatsoever in the current

squabble instigated by the Wolf Plaintiffs, were it not for counsel’s suggestion that

the Court should somehow 'fashion an equitable remedy that equitable tolling

applies' to the Wolf Plaintiffs’ claims against Chiquita for alleged FARC-related

violence. (DE 2667-22 at 4-5, ¶ 9.)" DE 2673 at 1. When Does 1-254 moved for

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reconsideration, DE 2688, Chiquita restated that it took no position on the motion

for reconsideration. DE 2698. After twice taking no position on the motion,

Chiquita waived the arguments it makes on appeal, which were not raised below,

and which Pescatore and Stansell don't adopt.13

Chiquita has also filed its own Supplementary Appendix. According to 11th

Cir. R. 30-1, "[i]f the appellant’s appendix is deficient or if the appellee’s brief, to

support its position on an issue, relies on parts of the record not included in

appellant’s appendix, the appellee must file its own supplemental appendix within

seven days of filing its brief." Chiquita is not the Appellee. Chiquita was

consulted regarding the contents of a proposed Joint Appendix but refused to

cooperate or respond. Chiquita's Supplementary Appendix is full of Chiquita's

Motions, Oppositions, and Replies, which are all legal memoranda, even though

FRAP 30(a)(2) prohibits the inclusion of these materials in an Appendix. Id. The

Appellants' Appendix already contained the relevant docket entries, so Chiquita's

Appendix should not be considered.

Conclusion

For the foregoing reasons, the Court should REVERSE the District Court's

legal determinations, and REMAND the case so that a constructive trust may be

13
On March 10, 2021, Chiquita filed a motion to adopt sections of the Appellees'
Brief, to which undersigned counsel consented. However, neither Pescatore nor
Stansell adopted any part of Chiquita's Brief. Chiquita shouldn't be allowed to
change its position by incorporating arguments by reference.

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imposed, for the equitable distribution among all plaintiffs in the MDL alleging

injuries caused by the FARC.

Respectfully submitted,

/s/ Paul Wolf

________________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-254
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
[email protected]

March 31, 2021

Certificate of Compliance
with Type-Volume Limitation

I hereby certify that:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,498 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4, and

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it has
been prepared using Google Docs in Times New Roman, 14-point font.

/s/ Paul Wolf

_________________
Paul Wolf

Certificate of Service

I hereby certify that on this 31st of March, 2021, I served copies of this brief
by U.S. Priority Mail on the Court and counsel for all parties, as detailed below.

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 USCA11 Case: 20-14238 Date Filed: 03/31/2021 Page: 82 of 82

/s/ Paul Wolf

_________________
Paul Wolf

Original and six copies to:

Clerk of the Court

11th Circuit Court of Appeals
56 Forsyth St NW
Atlanta, GA 30303

One copy to:

Newton Patrick Porter

Porter & Korvick, PA
9655 S Dixie Hwy Suite #208
Miami, FL 33156
Counsel for Plaintiff-Appellees
Stansell and Pescatore

One copy to
Michael Cioffi, Esq.
Blank Rome, LLP
201 E 5th St #1700
Cincinnati, OH 45202
Counsel for Chiquita Brands, International, Inc.

34