Category: In the News - Page 44

The Eleventh Circuit has revived a bunch of bellwether cases in a massive multidistrict litigation alleging Chiquita Brands International funded a Colombian paramilitary group that killed thousands of people, ruling on Tuesday that a Florida district court wrongly precluded the cases from going to trial.

In a 104-page unanimous published opinion, the court reversed much of a summary judgment ruling from September 2019 in favor of Chiquita Brands International Inc. and a handful of its executives in 12 bellwether cases in the Southern District of Florida.

Writing for a three-judge panel, Eleventh Circuit Judge Adalberto Jordan said U.S. District Judge Kenneth A. Marra wrongly rejected some of the plaintiffs’ evidence that the Autodefensas Unidas de Colombia, or AUC, was responsible for the deaths of their loved ones. The AUC received more than $1.7 million from Chiquita between 1997 and 2004, when Colombia was in the midst of a civil war, case records show.

“We hold that most of the bellwether plaintiffs presented sufficient evidence to withstand summary judgment with respect to whether the AUC was responsible for the deaths of their decedents,” the court said.

It is a tremendous victory for the bellwether plaintiffs whose cases have been revived and the thousands of other plaintiffs in the MDL whose cases hinge on the success of the cases that could now proceed to trial, attorneys for the plaintiffs say.

. . .

The court reversed the summary judgment ruling in respect of eight bellwether cases, vacated it in two cases for further consideration of evidence on remand, and affirmed in one. It also dismissed the plaintiff appeal in one case and affirmed the lower court’s denial of motions by the defendants to dismiss certain claims, including those against Chiquita executives under the Torture Victim Protection Act.

Chiquita pled guilty in 2007 to a charge by the federal government over its funding of the AUC, case records show. That admission sparked a flurry of civil cases against the Florida-headquartered fruit producer and distributor by the relatives of people allegedly murdered by the AUC.

. . .

The plaintiffs are represented by Paul D. Wolf of the Law Offices of Paul David Wolf, Paul L. Hoffman and John C. Washington of Schonbrun Seplow Harris Hoffman & Zeldes LLP, Agnieszka M. Fryszman, Benjamin D. Brown, Theodore J. Leopold, Leslie M. Kroeger and Diana L. Martin of Cohen Milstein Sellers & Toll PLLC, Marco Simons, Richard Herz and Marissa Vahlsing of EarthRights International, Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky, John de Leon of the Law Offices of Chavez & De Leon PA, John Scarola of Searcy Denney Scarola Barnhart & Shipley PA, James K. Green of James K. Green PA, Terrence P. Collingsworth of International Rights Advocates, Jonathan C. Reiter of the Law Firm of Jonathan C. Reiter, Stephen J. Golembe of Stephen J. Golembe & Associates PA and William J. Wichmann of the Law Offices of William J. Wichmann PA.

Read the article on Law360.

Plaintiffs and defense firms alike are bracing for a new wave of environmental litigation centering on “forever chemicals,” after the EPA has signaled to set new regulatory standards classifying these substances as “Superfunds.”

The defense and plaintiffs bars rarely agree—but they both see the writing on the wall this time: PFAS and PFOA litigation—environmental claims involving “forever chemicals”—will be expanding at a rapid pace over the weeks and months to come.

“I see this as a snowball rolling downhill, and it’s just getting bigger and faster as it proceeds,” Cohen Milstein partner Theodore J. Leopold said. His firm has been involved in PFAS litigation for several months, including against chemical manufacturer DuPont for allegedly contaminating Cape Fear river in North Carolina. “We are just scratching the surface,” he added referring to the total amount of damages that has occurred to water systems by the use of these toxic chemicals.

Read the full article on The National Law Journal.

A Virginia magistrate judge has recommended denying Merck and Glenmark’s bids to end antitrust multidistrict litigation accusing the drugmakers of conspiring to delay generic competition for the branded cholesterol medication Zetia, finding there are numerous material factual disputes that should go to a jury.

In a 74-page report filed Friday, U.S. Magistrate Judge Douglas E. Miller recommended that the district judge overseeing the case deny requests by Merck & Co. and Glenmark Pharmaceuticals Ltd. for summary judgment wins on all antitrust claims.

Judge Miller reasoned that there are multiple material factual disputes over Merck and Glenmark’s $9 million patent litigation settlement in 2010, including the deal’s value and whether the settlement contained an anticompetitive “no-AG provision” limiting the rollout of the authorized generic drug.

The judge said there are also factual disputes over whether Glenmark had the manufacturing ability to launch the generic version of Zetia at the time the deal was made, and there’s a dispute over whether Glenmark would have entered the market sooner if Merck’s drug patents had been invalidated.

“Plaintiffs have established triable issues regarding the existence of a no-AG agreement; the value of that agreement; and the connection between that agreement and Merck’s avoidance of at least some risk of generic competition,” the report says. “Under Rule 56 [of Federal Rules of Civil Procedure], this is sufficient to allow plaintiffs’ claims to proceed to trial.”

The magistrate’s recommendation is the latest chapter in a sprawling MDL filed by direct buyers, end-payors and retailers in 2018, accusing the companies of entering an anticompetitive deal in 2010 to delay generic forms of Zetia by artificially prolonging its patent protection.

. . .

The plaintiffs are represented by Glasser and Glasser PLC, Hagens Berman Sobol Shapiro LLP, Radice Law Firm PC, Hilliard Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Cohen Milstein Sellers & Toll PLLC, Miller Shah LLP, Nussbaum Law Group PC, Faruqi & Faruqi LLP, Berger Montague, Taus Cebulash & Landau LLP, Furniss Davis Rashkind and Saunders PC, Motley Rice LLC, Miller Law LLC, Wolcott Rivers Gates PC, Kenny Nachwalter PA and Hangley Aronchick Segal Pudlin & Schiller.

Read the article on Law360.

A federal appellate court resurrected a major lawsuit Tuesday against banana company Chiquita Brands International for allegedly supporting a Colombian terrorist group that kidnapped, tortured, and murdered plaintiffs’ family members during a civil war. A panel of the U.S. Court of Appeals for the 11th Circuit found that the trial court “got some right and some wrong” on its evidentiary calls, and that the plaintiffs had put forth enough evidence for the case to survive to the next phase of litigation.

The lawsuit has been going on since 2008, when a large group of plaintiffs brought claims against New Jersey-based Chiquita under Torture Victim Protection Act. Their civil lawsuits came just after Chiquita pleaded guilty and agreed to pay a $25 million fine for having made years of payments to the violent, right-wing terrorist organization known as Autodefensas Unidas de Colombia (AUC). The claims of 14 plaintiffs were chosen as “bellwether cases,” a common technique used in mass torts to assist groups of litigants in predicting case outcomes.

The district court dismissed the bellwether plaintiffs’ claims at the summary judgment phase on the basis that plaintiffs had not presented enough admissible evidence to prove that AUC was involved in the death of their family members. Much of the evidence the plaintiffs hoped to submit was ruled inadmissible hearsay, and the evidence that was admissible was deemed “circumstantial” and “too speculative” by the trial court.

In a 104-page ruling, a three-judge panel of the 11th Circuit sifted through dozens of the trial judge’s evidentiary rulings. The judges — Adalberto Jordan, a Barack Obama appointee, Kevin Newsom, a Donald Trump appointee, and Senior U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee — examined the factual underpinnings of each proffered piece of evidence. Ultimately, the panel affirmed the trial court’s rulings on some of the evidence, but reversed on others.

. . .

Agnieszka Fryszman, plaintiffs’ counsel at Cohen Milstein, said that the ruling is “important for corporate accountability”:

“We are very pleased that the Eleventh Circuit carefully and thoroughly evaluated the district court’s approach to Plaintiffs evidence – in 104 pages – and unanimously reversed the lower court’s summary judgment decision. This is a very important case for corporate accountability. Chiquita has already admitted it paid over a million dollars to the AUC, a paramilitary group designated as a foreign terrorist organization by the United States. The Eleventh Circuit has now found that the Plaintiffs presented sufficient admissible evidence to show that the AUC killed their loved ones. After years of briefing these issues, we look forward to presenting our evidence to a jury and seeking justice for our clients.”

SANTA FE — A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC.

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.

WASHINGTON – Today, President Joe Biden announced his intent to nominate the following individuals to serve as key leaders in his administration:

S. Douglas Bunch, Nominee for Public Delegate of the United States to the 77^th Session of the General Assembly of the United Nations

S. Douglas Bunch is a partner at Cohen Milstein Sellers & Toll PLLC, a member of the Securities Litigation & Investor Protection practice, and co-chair of the firm’s Pro Bono Committee. Bunch represents public and private pension fund investors in securities and shareholder class actions. Bunch has been recognized by the industry and named to Lawdragon’s “500 Leading Plaintiff Financial Lawyers,” Benchmark Litigation’s “40 & Under Hot List,” and Law360’s “Rising Stars – Securities,” honoring lawyers under the age of 40 whose professional accomplishments transcend their age. Bunch also plays a prolific role in empowering students and cultivating educational opportunity – nationally and globally. He is the co-founder and chairman of Global Playground, Inc., a nonprofit that builds schools and other educational infrastructure in the developing world, and he serves or has served on the boards of multiple other education nonprofits. Bunch was appointed in 2016 and again in 2020 to the Board of Visitors of the College of William & Mary, by the Governor of Virginia. He currently serves on the Executive Committee and as Chair of the Committee on Institutional Advancement. Bunch is also a leader in the Washington, D.C. LGBTQ+ community. He has acted as amicus curie counsel to Equality Virginia, the Commonwealth’s leading advocacy organization for LGBTQ+ equality, in filing amicus briefs in support of transgender students in Virginia public schools. A member of Phi Beta Kappa, Bunch graduated with a B.A., summa cum laude, from the College of William & Mary, earned an Ed.M. from Harvard University’s Graduate School of Education, and received his J.D. from William & Mary Law School, where he was a recipient of the Benjamin Rush Medal in 2006. In 2011, he was awarded William & Mary Law School’s inaugural W. Taylor Reveley III award, recognizing alumni who have demonstrated a sustained commitment to public service. Bunch is a native of Augusta County, in Virginia’s Shenandoah Valley.

The decision overturns a lower court ruling and reinstates claims against Chiquita in a historic lawsuit over the company’s role in funding paramilitary groups in Colombia.

Atlanta, Ga.–Today, the Eleventh Circuit Court of Appeals ruled that several families suing Chiquita Brands International for its role in funding paramilitary death squads in Colombia can proceed toward a jury trial.

The Eleventh Circuit reversed a September 2019 summary judgment decision by a federal judge in Florida, who had ruled the victims lacked admissible evidence showing that their family members were murdered by the paramilitaries. In reversing the district court, the Eleventh Circuit found substantial evidence of paramilitary involvement in the killings.

EarthRights International initially filed the suit in 2007 and represents families of hundreds of victims murdered, tortured, and injured by the United Self-Defense Forces of Colombia (AUC), an outlawed paramilitary organization that Chiquita admitted to illegally funding.

EarthRights General Counsel Marco Simons issued the following statement:

“Today’s order was a milestone in this historic lawsuit. The families have been waiting years to have their day in court despite strenuous efforts by Chiquita to have the case dismissed. Now that the appellate court has reinstated the case, the families are looking forward to a jury trial.

“Chiquita has long admitted that it illegally funded the AUC. This ruling finally gives our clients the chance to show to the court, and the world, what everyone in Colombia knows: that the AUC used Chiquita’s support to engage in brutal atrocities against civilians in the banana-growing regions of Colombia. There is overwhelming evidence that the AUC murdered thousands of Colombians, including our clients’ family members there.

“Much of this evidence has been developed over more than a decade through the Justice and Peace process in Colombia. The district court rejected evidence from that process, and we are relieved that the appellate court has appropriately considered the results of Colombia’s own justice system and overturned the erroneous decision of the lower court.

“Perhaps the most significant aspect of this ruling is that it accepts the admission of circumstantial evidence and expert testimony to show that murders that occurred at times and places where the AUC was in control and in a manner that fits with the AUC’s methods and motives, to show that the murders were committed by the AUC. That conclusion will apply to hundreds if not thousands of the victims in this case.”

Agnieszka Fryszman, plaintiffs’ counsel at Cohen Milstein added:

Background

For nearly a decade in the 1990s and early 2000s, Chiquita Brands International made regular payments to the AUC, totaling more than $1.7 million. In turn, the AUC engaged in a campaign of violence against communities in Colombia’s banana-growing regions, including trade unions, political opponents, and Indigenous advocates. In 2001, the U.S. government classified the AUC as a terrorist organization. Chiquita pled guilty to a federal crime for funding the AUC and paid a $25 million fine to the U.S. government but has not yet compensated the families of the AUC’s victims.

Thousands of victims, represented by several groups of lawyers, have filed suit against Chiquita in federal courts across the country; those suits were consolidated and are being heard in federal district court for the Southern District of Florida, in West Palm Beach. The cases for a dozen killings were selected as “bellwether” cases to proceed as examples. The district court ruled in September 2019 that these bellwether cases could not proceed to trial because the plaintiffs had not submitted sufficient evidence that their family members had been murdered by the AUC.

These bellwether cases include two of EarthRights’ clients, known by the pseudonyms John Doe 7 and Jane Doe 7. John Doe 7’s son was murdered by AUC paramilitaries, and the local paramilitary commander admitted this to John Doe 7 himself. Jane Doe 7’s husband, a labor activist, was also murdered by the AUC; his murder fits a pattern of the AUC targeting union leaders. The court of appeals found that both plaintiffs had submitted sufficient evidence on this issue to proceed to trial.

EarthRights’ co-counsel includes Paul L. Hoffman of Schonbrun Seplow Harris Hoffman & Zeldes LLP, who argued the appeal; Cohen Milstein Sellers & Toll PLLC; and attorneys Judith Brown Chomsky, Anthony DiCaprio, and Arturo Carrillo.

Contact:
Kate Fried, EarthRights International
(202) 257.0057
kate.fried@earthrights.org

The ruling made Couy Griffin, a county commissioner in New Mexico, the first official in more than 100 years to be removed under the Constitution’s bar on insurrectionists holding office.

A judge in New Mexico on Tuesday ordered a county commissioner convicted of participating in the Jan. 6 riot at the Capitol removed from office under the 14th Amendment, making him the first public official in more than a century to be barred from serving under a constitutional ban on insurrectionists holding office.

The ruling declared the Capitol assault an insurrection and unseated Couy Griffin, a commissioner in New Mexico’s Otero County and the founder of Cowboys for Trump, who was convicted earlier this year of trespassing when he breached barricades outside the Capitol during the attack. The judge’s order grabbed the attention of advocates across the country who have been pushing to use the 14th Amendment to disqualify former President Donald J. Trump and elected officials who worked with him in seeking to overturn the 2020 election from holding office in the future.

In his decision, Judge Francis J. Mathew of the New Mexico District Court said the insurrection on Jan. 6 included not only the mob violence that unfolded that day, but also the “surrounding planning, mobilization and incitement” that led to it.

“Mr. Griffin is constitutionally disqualified from serving,” the judge wrote.

Liberal groups have filed legal challenges in Arizona, New Mexico, North Carolina and Wisconsin seeking to block lawmakers accused of supporting the Jan. 6 rioters — including some prominent Republican members of Congress — from holding office under the Constitution. Until Tuesday, none had succeeded.

. . .

Section 3 of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy for taking up arms against their country in the Civil War, declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Couy Griffin is sentenced in DC District Court on June 17, 2022 for his role in the US Capitol attack.

A New Mexico judge on Tuesday removed January 6 rioter and Cowboys for Trump founder Couy Griffin from his elected position as a county commissioner for his role in the US Capitol attack.

The ruling was the result of a lawsuit seeking Griffin’s removal, which alleged that he violated a clause in 14th Amendment of the Constitution by participating in an “insurrection” against the US government. He had been convicted of trespassing earlier this year.

The historic ruling represents the first time an elected official has been removed from office for their participation or support of the US Capitol riot. It also marks the first time a judge has formally ruled that the events of January 6, 2021, were an “insurrection.”

The disqualification comes after unsuccessful challenges by liberal-leaning groups against prominent Trump supporters in the US House of Representatives and Trump-backed candidates for state offices across the country.

Griffin, one of three commissioners in Otero County, is also barred from holding any state or federal elected position in the future, state Judge Francis Mathew ruled Tuesday.

“The irony of Mr. Griffin’s argument that this Court should refrain from applying the law and consider the will of the people in District Two of Otero County who retained him as a county commissioner against a recall effort as he attempts to defend his participation in an insurrection by a mob whose goal, by his own admission, was to set aside the results of a free, fair and lawful election by a majority of the people of the entire country (the will of the people) has not escaped this Court,” Mathew wrote.

Griffin, an ardent conspiracy theorist who refused to certify the state’s primary election results this summer in Otero County, told CNN he has been ordered to clean out his office and attacked the judge as being “tyrannical.”

Plenty of history — very bad history — was made on Jan. 6, 2021. For the first time since the War of 1812, the U.S. Capitol was breached. It’s the first time a U.S. president has sought to interrupt the peaceful transfer of power. The sheer number of members of Congress who voted both against certifying the election and, later, to convict Donald Trump at his impeachment trial had few if any historical parallels.

Now it’s made even more history: Someone found to have engaged in insurrection that day has been disqualified from office, for what appears to be the first time in 150 years.

A New Mexico judge on Tuesday removed Otero County commissioner Couy Griffin by invoking the 14th Amendment’s prohibition on those who engaged in insurrection from serving in office. Some have sought to wield that seldom-invoked provision against members of Congress, without success, and even floated using it against Trump.

Success in the latter scenario remains unlikely, especially in the absence of a criminal conviction. But legal experts say the ruling in New Mexico is significant nonetheless — especially if it holds up.

. . .

The text of Section 3 of the 14th Amendment states (key parts bolded):

No person shall be a Senator or Representative in Congress, or elector of President and vice president, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

The last time elected officials were disqualified from office using the 14th Amendment appears to be 1869, shortly after the Civil War and the ratification of the 14th Amendment. Congress used the 14th Amendment to disqualify Socialist Rep. Victor Berger in 1919, but not the insurrection provision specifically, and this was not a court decision. (Berger was later seated after his espionage conviction was overturned.)

Since Jan. 6, activists have sought to disqualify several members of Congress who supported questioning or overturning the 2020 election results, including Reps. Madison Cawthorn (R-N.C.), Jim Banks (R-Ind.) and Marjorie Taylor Greene (R-Ga.). Most of these cases fizzled quickly, and none have succeeded. In Greene’s case, she was forced to testify, but ultimately was not disqualified.

Griffin’s case differs from the others’ in one crucial way: He was actually part of the crowd that stormed the Capitol and was later convicted of his role. Indeed, in allowing Greene to remain in office, a judge had emphasized there was “no evidence to show that Rep. Greene participated in the Invasion itself” or “communicated with or issued directives to persons who engaged in the Invasion.” Griffin was much easier to tie directly to the insurrection, and he has now been found to have directly engaged in it.