Terrence Collingsworth of Conrad & Scherer has been tussling with The Coca-Cola Company and its lawyers at Quinn Emanuel Urquhart & Sullivan for more than a decade. To Collingsworth, the soft drink giant is responsible for a string of violent acts against foreign union leaders and their families, but rulings by U.S. courts keep taking the fizz out of his anti-Coke campaign.
On Friday the U.S. Court of Appeals for the Second Circuit handed Collingsworth and his international clients their latest defeat, ruling against eight Guatemalan union leaders and their families who accuse Coca-Cola of perpetrating a campaign of rape, murder, and attempted murder though the company’s Guatemalan bottler, Industria de Café S.A. A unanimous three-judge panel issued a summary order upholding a 2010 decision to dismiss the case on forum non conveniens grounds.
Conrad & Scherer originally filed the suit in Manhattan state court in February 2010. As we’ve reported, Collingsworth had seen previous, similar allegations against Coca-Cola that he brought under the Alien Tort Statute founder in the federal courts, so this time he built his case on common law wrongful death, assault, negligence, and unjust enrichment claims.
Quinn Emanuel successfully removed the case to federal court, and in November 2010 U.S. District Judge Richard Sullivan in Manhattan ruled that the plaintiffs should have filed the case in Guatemala. Sullivan conditionally dismissed the suit on forum non conveniens grounds, but he ruled that the plaintiffs could still apply for reinstatement if the Guatemalan courts declined to exercise jurisdiction. The court in Guatemala dismissed the complaint in January 2011 for lack of jurisdiction, but Sullivan nevertheless refused to reinstate the U.S. case in August 2011.
In an unsigned, six-page order, the Second Circuit concluded Friday that the plaintiffs had filed a defective complaint in Guatemala that omitted material facts and legal arguments that could have persuaded the Guatemalan court to exercise jurisdiction. The panel also found that the nationals could have appealed to a Guatemalan appellate court but chose not to, as they seemed fixated on a return to New York. “The plaintiffs’ failure to meet the condition for reinstatement of their claims, set forth in the district court’s dismissal order, is entirely of their own making,” the panel wrote.
The decision is at least the third by a federal appellate court rejecting international human rights-related claims that Collingsworth has brought against Coca-Cola. In 2006, a federal judge in Manhattan dismissed claims on behalf of Turkish nationals alleging violations of the Alien Tort Statute and Torture Victim Protection Act. (The decision was affirmed on appeal in 2009). In 2009, the U.S. Court of Appeals for the Eleventh Circuit affirmed a Miami federal judge’s dismissal of ATS claims brought by Colombian nationals against Coca-Cola.
Quinn Emanuel partner Faith Gay, who represented Coca-Cola in all three cases, noted that more plaintiffs are filing common law complaints in state court related to alleged human rights violations because of the growing obstacles to litigating alien tort claims. On Monday, as The National Law Journal’s Marcia Coyle reports, the U.S. Supreme Court heard a second round of arguments in Kiobel v. Royal Dutch Petroleum to determine whether corporations can be held liable under the Alien Tort Statute for overseas human rights violations.
Gay was also critical of the Guatemalan plaintiffs’ tactics, accusing them of trying to game the system. “It’s clear that they [filed deficient claims in Guatemala] just so they could come back” to New York, said Gay. “If you cause your own case to be thrown out, you can’t come back and claim injustice.”
Collingsworth wasn’t immediately available to comment. Christian Levesque, a senior associate with Conrad & Scherer who argued the case on appeal, called the decision “a real travesty.” Levesque also took issue with the court’s findings, saying that her clients had pursued all their options in Guatemala and that the dismissal there was not appealable.
“Forum non conveniens is not supposed to be a doctrine of preclusion,” Levesque said. “Now my clients are without any forum to litigate their claims.”