Believe it or not, Chiquita’s lead lawyer in the company’s battle with Colombians over human-rights abuses considers a Friday ruling permitting the Colombians to proceed with most of their devastating claims “a win for Chiquita and a major loss for the plaintiffs.”   

Huh? 

Judge Kenneth Marra of U.S. district court in West Palm Beach, Fla., ruled that between 3,000 and 4,000 Colombians can move forward with claims that Chiquita abetted state-sponsored human-rights atrocities. Noting the plaintiffs’ “detailed and voluminous factual allegations,” the judge concluded that the Colombians had made an adequate showing that “Chiquita provided assistance to the [paramilitary group Autodefensas Unidas de Colombia, or AUC] for the purpose of furthering AUC’s torture and extrajudicial killing in the banana-growing region.” He denied Chiquita’s motion to dismiss Alien Tort Statute and Torture Victim Prevention Act claims that the company aided and abetted torture, murder, war crimes, and crimes against humanity. Not exactly a case you want a jury to hear—especially considering that in 2007, Chiquita pled guilty to making systematic payments over six years to the AUC, a U.S.-designated terrorist organization.  

The Chiquita plaintiffs lawyers certainly regard the ruling in the multidistrict litigation a win. Lee Wolosky of Boies, Schiller & Flexner, which represents about 1,400 plaintiffs in the MDL, told OTC that Judge Marra’s decision “will hold Chiquita accountable.” (Boies Schiller is one of several plaintiffs firms in the ATS case against Chiquita. Others include Conrad & Scherer; Cohen Milstein Sellers & Toll; Searcy Denney Scarola Barnhart & Shipley; and the public interest group EarthRights International.) Wolosky and Boies Schiller associate Douglass Mitchell said plaintiffs will easily be able to show that Chiquita knew its payments to the AUC were facilitating the group’s atrocities by pointing to the company’s own admissions in the Justice Department’s case. “The issue is whether they knew the people they were paying were terrorists who were out there killing people,” Wolosky said. 

But Chiquita counsel John Hall of Covington & Burling told OTC that the plaintiffs won’t be able to show any such evidence. Judge Marra’s ruling adopts the international law standard Covington advocated to determine Chiquita’s liability for aiding and abetting AUC’s crimes, rather than the common-law standard the plaintiffs argued for. 

That means, according to Marra’s ruling, that the plaintiffs must show “more than the mere fact that Chiquita had knowledge that the AUC would commit such offenses,” the judge wrote. “Plaintiffs must allege that Chiquita paid the AUC with the specific purpose that the AUC commit the international law offenses alleged in the complaints. This requires that the complaints allege that Chiquita intended for the AUC to torture and kill civilians in Colombia’s banana-growing regions.” 

The Justice Department, Hall said, conducted a lengthy investigation of Chiquita’s involvement with the AUC and came to no such conclusion. Chiquita’s 2007 guilty plea, he noted, was only for making payments to the UAC, not for supporting the UAC’s actions. 

Hall declined to disclose Chiquita’s strategy. Judge Marra’s ruling is not automatically appealable to the U.S. Court of Appeals for the Eleventh Circuit, but Chiquita may ask Judge Marra to certify an appeal. 

(Reporting by Alison Frankel)