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A U.S. Supreme Court opinion is reverberating in two South Florida cases blaming Coca-Cola and Chiquita for brutal killings by Colombian paramilitary groups. The high court’s Iqbal v. Ashcroft opinion in May has already worked in Coca-Cola’s favor. The 5-4 decision was read by the 11th U.S. Circuit Court of Appeals to mean judges must perform a sniff test on civil litigation, checking for specific allegations and not broad accusations. The Atlanta-based appeals court in August upheld U.S. District Judge Jose E. Martinez’s ruling dismissing the 2001 lawsuits against Coca-Cola by citing the Iqbal decision. The 34-page opinion states a judge may accept well-pleaded facts as true, but the court is not obliged to accept the plaintiff’s legal conclusion and can dismiss if it finds it implausible. But the Coca-Cola case is far from over. The allegations stem from four lawsuits claiming Coca-Cola bottlers Panamco and Bebidas collaborated with paramilitary forces in what the 11th Circuit called “the systematic intimidation, kidnapping, detention, torture and murder of Colombian trade unionists.” Terry Collingsworth, the attorney representing the union leaders and their estates, said the appellate court should grant a rehearing because the Iqbal decision came out after the initial pleadings were filed. Barring that, he plans to refile the cases in Miami with a much more detailed complaint. Collingsworth said the three-judge appellate panel — Judges Gerald Bard Tjoflat, Susan H. Black and Emmett Ripley Cox — took an extreme view of the Iqbal ruling. “They took it as far as it could have taken it,” he said. “There are a number of ways you can interpret the ruling. They did it in the strictest way possible to how it could apply to new complaints.” There is a pending motion asking the full court to review the case. The Iqbal decision undoes 50 years of established precedent in which every allegation in a complaint must be taken as true and all inferences given to the plaintiff, said Collingsworth, managing partner for the Washington office of Conrad & Scherer. An attorney for Coca-Cola hailed the appellate court’s opinion, saying the case was exactly the kind of “frivolous” litigation that Iqbal aimed to eliminate. “Essentially, this is an extensive attempt to extort the Coca-Cola trademark,” said attorney Faith Gay, who co-chairs Quinn Emanuel Urquhart Oliver & Hedges‘ white-collar and corporate investigations practice group in New York. Coca-Cola did not learn about the accusations until the lawsuit was filed, she said. “Coca-Cola was four levels removed from what was happening. We knew nothing about these events until we were sued,” she said. Atlanta-based Coca-Cola conducted an extensive internal investigation after learning of the allegations and found no evidence of criminal or civil wrongdoing. Robert M. Brochin, a Morgan, Lewis & Bockius partner in Miami who represented the Colombian bottlers, said the district and appeals courts had problems with a lack of specifics about the paramilitary killings, but a driving issue was the tenuous connection to Coca-Cola under the Alien Tort Claims Act and the Torture Victim Protection Act. “What they had a problem with is holding a corporate entity liable under these statutes for very heinous allegations when they were not the perpetrators,” he said. In a lesser way, the Iqbal ruling also is affecting the Chiquita case in West Palm Beach, Fla. U.S. District Court Judge Kenneth Marra directed both sides to brief him on the impact of the high court’s decision on the case. Collingsworth, who is also a plaintiffs attorney in the Chiquita case, said a big difference is that Cincinnati-based Chiquita has admitted to paying paramilitary groups $1.7 million. The groups were blamed for kidnapping, torturing and killing thousands of people, including American missionaries. Chiquita agreed to pay a $25 million criminal fine in 2007, making it the first major U.S. corporation ever convicted of financial dealings with terrorists. Collingsworth said he believes that meets the Supreme Court’s plausibility test. “Is it plausible Chiquita paid a terrorist group to murder people? Hell, yes. They said they did it,” he asserted, alluding to the company’s 2007 plea agreement. Chiquita had been charged with engaging in transactions with a terrorist group. The company was not charged with murder. A call to a Chiquita spokesman was not returned by deadline. The two sides have been negotiating for months after an independent review sided with Chiquita. The company insists it was trying to protect its operations and workers from guerrilla attacks. One law used to target Chiquita and Coca-Cola was the Alien Tort Claims Act, which was passed in the era of President Thomas Jefferson to deal with pirates. Cases starting in the 1990s implicated corporations in foreign countries for violent crimes. Miami attorney Joseph DeMaria, a partner at Tew Cardenas, likens what has happened in the Coca-Cola and Chiquita cases to paying mob protection money, with paramilitary groups playing the role of gangsters. On its face, he said the Iqbal ruling in a case alleging officially sanctioned abuse of Muslim men jailed in New York after the 2001 terrorist attacks applies a “common-sense standard to reviewing the complaint.” “The old standard used to be that a judge had to allow a complaint to go forward under any set of circumstances,” DeMaria said. “Now there’s a plausibility test.” The Chiquita and Coca-Cola cases pit two American interests against each other, DeMaria said. “What do you want to do? Pull all American business out of Colombia?” asked DeMaria, a former federal organized crime prosecutor. “It raises very serious issues,” he said. “It ends up being a conflict between the business interests of the U.S. government and the interests of the U.S. government that want to fight terrorism.” Fort Lauderdale solo practitioner William J. Wichmann, who represents one of the victims’ families in the Chiquita case, said — like it or not — the Iqbal decision was reasoned. “I thought the opinion was pretty straightforward and pretty clear,” he said. “I’m not happy with it, but that’s what we have to deal with.”

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