In a two-front legal battle, the world’s second-largest banana company is facing legal action by more than 6,000 plaintiffs in Florida over its payments to Colombian militants while at the same time fighting the disclosure of related records held by the Securities and Exchange Commission.
Last week, Chiquita Brands international Inc. filed arguments in a federal appeals court in Washington saying researchers here were attempting to use the Freedom of Information Act as a backdoor to get at the SEC records that the Florida plaintiffs may not otherwise have a right to.
The case stems from the company’s admission in 2007 that it had knowingly paid nearly $2 million to the United Self-Defense Forces of Colombia, or AUC, a right-wing militia designated by the U.S. as a terrorist organization. The company said it made the payments in order to protect company employees and operations.
In federal court in Florida, thousands of Colombian citizens are seeking to hold the company to account, alleging killings and acts of torture by the militants the company paid.
In Washington, meanwhile, a federal judge ruled in November that the SEC should release the payment-related records to the National Security Archive, which had sought them under a Freedom of Information Act request.
In a brief filed to the appeals court June 16, Chiquita argued that the National Security Archive was doing an end-run around the discovery process in the Florida case. The case has been halted pending a separate appeal, also filed by Chiquita.
“Through these FOIA requests, the archive is thus attempting to assist the […] plaintiffs in obtaining documents that, as a result of the discovery stay, the district court has made unavailable to them,” the company argued.
Chiquita cited a public statement in which the archive acknowledged collaborating with a human rights law clinic at George Washington University to support legal action brought by Earth Rights International on behalf of “hundreds of Colombian victims of paramilitary violence.”
In 2011, separate releases of documents to the archive by the Justice Department had resulted in “grossly inaccurate and skewed” news articles in the United States and in Colombia, the brief said.
By 2011, the Justice Department was run by Attorney General Eric H. Holder Jr. In classic revolving door fashion, Holder had represented Chiquita while in private practice in 2007 when it paid a $25 million fine in the matter.
The SEC, which has decided to honor the FOIA requests, and the archive, have yet to respond to the brief.
However, Michael T. Kirkpatrick, an attorney at Public Citizen, which is representing the archive, said his side intended to argue that the Florida discovery process had no bearing on the SEC’s legal obligation to release the records.
“Whether the documents would ultimately be releasable in discovery should not impact the right of the public to see these records,” said Kirkpatrick.
He also said that Chiquita was asking the appeals court to nullify the administrative determination of a federal agency and, moreover, that any desire on the part of the archive to help the plaintiffs is beside the point.
“As a legal matter, the motivation of the requester is irrelevant,” Kirkpatrick said.
Douglas Gillison
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Why wouldn’t the plaintiffs get the SEC records in discovery? That’s the part of this I don’t understand.