Last month, a jury in the Southern District of Florida rocked international human rights law when it held global banana giant Chiquita Brands International (“Chiquita”) liable for $38 million in damages for the deaths of eight Colombian citizens. The historic verdict, rendered after nearly two decades of litigation, has been declared to be the first time a major U.S. corporation has been held liable in an American court for injuries to foreign nationals inflicted abroad. The case’s culmination also represents an important legal development: the novel employment of a longstanding (but rarely utilized) theory of tort liability that could, if followed, considerably expand the scope of liability for U.S. corporations operating abroad.
Chiquita’s Plea with the U.S. Department of Justice & Subsequent Civil Litigation
Chiquita’s wholly owned Colombian subsidiary, C.I. Bananos de Exportacion, S.A. (“Banadex”), was for a time its most profitable venture. But Chiquita’s efforts to expand and maintain banana operations in Colombia came at a human cost.
To operate, according to the announcement of Chiquita’s guilty plea, Banadex paid off guerilla and paramilitary groups engaged in Colombia’s enduring civil unrest. From at least 1997 until 2004, Banadex made regular payments to a right-wing paramilitary group — the Autodefensas Unidas de Colombia (“AUC”) — to do business in certain regions where Chiquita had either acquired, or hoped to acquire, banana plantations. In 2001, the AUC was designated as both a “Foreign Terrorist Organization” (FTO) and a “Specially Designated Global Terrorist” (SDGT). Under U.S. law, it is illegal to make payments to FTOs and SDGTs. Chiquita’s payments to the AUC ultimately exceeded 1.7 million U.S. dollars.
In 2003, outside counsel formally advised Chiquita to stop paying the AUC. But Chiquita did not stop making payments until 2004, at which time it shuttered its Colombia operations — three years after the U.S. government’s terrorist designations of the AUC. Chiquita’s own self-reporting to the U.S. Department of Justice led to an investigation, and it then pled guilty to one count of “Engaging in Transactions with a Specially Designated Global Terrorist,” a violation of sanctions imposed under Executive Order 13224 (prohibiting U.S. citizens and entities from financing designated terrorist groups) and the International Emergency Economic Powers Act, 50 U.S.C. § 1706(b). Chiquita was sentenced to a $25 million criminal fine and five years of corporate probation.
(More recently, in 2022, the French cement maker Lafarge S.A. pled guilty under the criminal provisions of the U.S. Anti-Terrorism Act, a different statute, to conspiring to provide material support to foreign terrorist organizations for payments it made to ISIS to maintain cement operations in Syria. Our firm, Jenner & Block, along with other firms, is pursuing litigation on behalf of ISIS’s victims against Lafarge S.A. and related entities under the civil provisions of the Anti-Terrorism Act, 18 U.S.C. § 2333.)
Colombian citizens harmed by the AUC, totaling approximately 4,500 individual plaintiffs, filed civil claims against the banana producer in several U.S. district courts. These claims were consolidated into a multidistrict litigation (MDL) in the Southern District of Florida from which a group of twelve test cases, or “bellwether” trials, were randomly selected to proceed to consolidated jury trials.
Unsuccessful Federal Statutory and State Law Claims for Human Rights Abuses Abroad
Non-U.S. citizens pursuing claims on the basis of human rights violations outside of the United States often turn to the Alien Tort Statute (“ATS”). The ATS, a 1789 statute, gives district courts original jurisdiction of a civil claim by a non-citizen “for a tort only, committed in violation of the law of nations” — that is, the ability to hear claims for certain international law violations.
At one time a forgotten relic, the ATS was revived in the 1980s by human rights victims who began turning to it for civil remedies for alleged wrongs committed abroad. In the early 2000s, when many of the Chiquita plaintiffs were filing their suits, the ATS appeared to be the most viable means for redress. The Chiquita plaintiffs accordingly made claims under the ATS as well as the Torture Victim Protection Act (“TVPA”), the laws of the states where each suit was filed, and Colombian law.
As the Chiquita litigation dragged on, the Supreme Court increasingly narrowed the reach of the ATS. In Kiobel v. Royal Dutch Petroleum Co., the Court held that there is a strong “presumption against extraterritorial application” of the ATS, suggesting that the ATS does not apply to U.S. corporate misconduct abroad unless said misconduct “touches and concerns” U.S. territory — a steep standard. The ATS has since been narrowed further. In Nestle USA, Inc. v. Doe, the Court held that the relevant inquiry is whether the conduct generating the cause of action occurred on U.S. territory. Mere corporate presence on U.S. territory is insufficient.
In 2014, the Eleventh Circuit dismissed the Colombian plaintiffs’ ATS claims against Chiquita and its executives, citing Kiobel. The Eleventh Circuit likewise dismissed plaintiffs’ TVPA claims, citing Mohamad v. Palestinian Authority, a 2012 Supreme Court case that found that the TVPA permits liability only against natural persons, not corporations.
The district court similarly dispensed with state law claims based on each of the jurisdictions where cases were filed (New Jersey, Florida, Ohio, and the District of Columbia), holding that the state laws did not extend to cover conduct outside the state and therefore could not apply to Chiquita’s conduct in Colombia.
The Transitory Nature of Torts Committed Abroad Gives Rise to U.S. Corporate Liability
After the bulk of plaintiffs’ claims were dismissed, Colombian law tort claims were all that remained. These claims relied on tort liability under the Colombian civil code, analogized to U.S. tort law. Plaintiffs sought relief for a range of torts over the course of litigation, including “acts constituting” wrongful death, assault and battery, “survival” claims for pain and suffering, intentional infliction of emotional distress, and other torts. The claims that ultimately prevailed were generalized Colombian torts that permit liability when the defendant failed to exercise due care in a given circumstance and thereby created a hazardous situation, either by affirmative (e.g., criminal) acts or by omissions, as measured by a “reasonable businessperson standard”—negligence, in a word.
But U.S. courts are not normally in the business of deciding tort claims based on foreign law, nor claims arising predominantly from conduct that took place abroad. Chiquita is therefore remarkable as a case in which foreign plaintiffs urged a U.S. court to hear claims under foreign domestic tort law, opening the door to the doctrine of “transitory torts.”
The transitory tort doctrine is not new; it has a long history internationally and in the United States, by some accounts underpinning early conceptions of the ATS. Transitory tort doctrine is a form of what is known more generally as “transitory liability.” Transitory liability is the concept that tort liability creates a legal obligation that “follows the individual wherever he goes,” meaning the tortfeasor can be sued effectively wherever he is found. The Framers considered transitory torts to fall within each state’s “general jurisdiction” which gives states the power to seek “the resolution of disputes brought within [their] borders.”
Importantly, transitory tort liability describes a means to state a claim only. It does not create an independent cause of action, and it does not prescribe a particular substantive legal standard. For this, the Chiquita plaintiffs relied on foreign law. In other words, a transitory tort could lead a U.S. court to apply the law of the location where the injury occurred. That approach carried the day in Chiquita, presenting the rare circumstance where a U.S. court heard a claim brought by a foreign plaintiff against a U.S. corporation centered around foreign conduct and law.
Often, cases centered around foreign conduct are dismissed on the basis of another doctrine, such as “forum non conveniens,” or an inconvenient forum. Indeed, Chiquita moved to dismiss the Colombian law claims, arguing that a U.S. court — distant from the location where the tortious acts were committed and forced to interpret complex and unresolved questions of Colombian law — was not a suitable venue to hear the case.
The Chiquita court, perhaps surprisingly, denied Chiquita’s motion. While the court found that Colombian courts offered a legal remedy, security risks to plaintiffs and their counsel warranted keeping the cases in the United States. This was despite the fact that Chiquita agreed to appear in suits in Colombia. In fact, at the time, Colombian courts were handling 1,700 ongoing individual mediation demands against Chiquita stemming from its funding of paramilitaries.
In declining to dismiss the case, the court focused on parties’ safety. “Colombia remains an extraordinarily dangerous place to conduct litigation involving human rights abuses: Between 2009 and 2015, at least 335 human rights defenders were murdered, with 95% of the murders committed between 2009 and 2013 left unpunished,” the court observed. Therefore, the court concluded, “the litigation of Plaintiffs’ claims in Colombia would pose an extraordinary and avoidable risk of harm to Plaintiffs, and . . . Plaintiffs’ fears about retaliation from current or former members of paramilitary groups . . . are reasonably justified.” The court thus permitted the Colombian law claims to continue on the basis that trial in Colombia was not truly feasible due to safety concerns. The court also observed that “[t]he United States has a strong interest in monitoring and deterring unethical and illegal conduct of American corporations in supporting foreign terrorist organizations.”
In the June bellwether trial, the jury found Chiquita guilty, determining that the AUC had murdered the plaintiffs’ relatives, that Chiquita had provided substantial material support to the AUC at the time of the murders, and that Chiquita had engaged in hazardous activities that exposed the plaintiffs’ relatives to risk — a failure of Chiquita’s duty of care as measured by a reasonable businessperson standard under Colombian law. The jury was unpersuaded by Chiquita’s duress defense, awarding each plaintiff over $2 million.
The June 2024 verdict concluded the first bellwether jury trial. Approximately half the remaining claims have been settled, though at much lower amounts than the jury verdict awarded individual plaintiffs. A second bellwether trial is postponed indefinitely as Chiquita appeals the verdict.
Implications for Corporations and Victims of Human Rights Violations
As observers have noted, the Chiquita verdict could widen the range of potential liability for corporations with operations outside of the United States. Chiquita is not the first case to suggest that transitory tort doctrine offers a path to liability for foreign nationals seeking redress in U.S. courts for conduct abroad. Its verdict offers little clarity about many of the thorny issues that have summarily defanged U.S. human rights litigation: questions of jurisdiction and forum, uniformity, and the proper place of U.S. courts in the international legal context. And the defendant has appealed the verdict to the Eleventh Circuit. Still, Chiquita offers three important lessons about the future of human rights litigation in U.S. courts.
First, the transitory tort doctrine avoids several obstacles that had previously immobilized human rights claims under the ATS. Extraterritoriality, long seen as the primary roadblock to successful ATS litigation, may not often be a barrier for transitory torts. Tort litigation that applies foreign domestic law neatly avoids the question of extraterritorial application of U.S. law.
Further, tort law offers wide-ranging bases for liability. Whereas the ATS covers a very “modest” number of torts cognizable under the nebulous “law of nations,” “courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred.” The range of torts cognizable under the law of most foreign jurisdictions will be broader than those which violate the “law of nations.”
Second, a prospective defendant’s U.S. presence could expose them to litigation in the United States under the transitory tort doctrine, potentially subjecting corporations with U.S. headquarters or operations to tort liability for their foreign conduct without the barrier of the presumption against extraterritorial application of U.S. law. As the Chiquita litigation demonstrates, corporations based in the United States (or with a strong U.S. presence) cannot be fully confident that accountability for their foreign conduct will stay abroad.
With its global headquarters in Ohio at the outset of litigation and its banana division in Florida, Chiquita carried its foreign torts to the United States. U.S. corporations or foreign corporations with significant business contacts in the United States — including transferring U.S. dollars through the international banking system — should be especially mindful that any illegal contact with, or material support of, FTOs — even under duress or threat — could lead to criminal and civil liability under U.S. and foreign domestic law. There is one caveat, however: “[e]ven though defendants [can] be sued where they [are] found, U.S. judges retain . . . the discretion to decline to exercise transitory tort jurisdiction.”
Third, international human rights victims residing in dangerous countries or those with dysfunctional judicial systems may find an alternative forum in U.S. courts. If Chiquita is any indication, this could be especially applicable for conduct that takes place in countries experiencing significant instability, documented security risks, weak rule of law, or grave human rights abuses with little hope of local remedies. In any of these cases, U.S. courts may choose to assert their jurisdiction as justice requires instead of forcing the parties to litigate in an “inconvenient” or outright dangerous foreign forum. With that said, the factors behind the inconvenient forum doctrine — including the court’s expertise, the location of evidence, and the common international standard that individuals must exhaust local remedies before seeking international redress — will often weigh against U.S. courts hearing cases based entirely on foreign law.
The transitory tort doctrine sparks new hopes and challenges around international rights violations for parties seeking remedies to human rights violations abroad as well as corporations seeking clarity about their evolving liability risks in today’s transnational business environment. U.S. companies should be mindful of potential U.S. liability for their conduct across the globe, and should monitor and direct their own and their subsidiaries’ actions commensurately. Victims of human rights abuses at the hands of companies with a U.S. presence may be considering whether transitory torts offer a path to a courthouse in the United States.