The U.S. Court of Appeals for the Eleventh Circuit Aug. 11 affirmed the dismissal of Alien Tort Statute and Torture Victim Protection Act claims brought by Colombian union leaders against the parent companies and owners of two bottling companies in that country as well as Coca-Cola Co. and its Colombian subsidiary (Sinaltrainal v. Coca-Cola Co., 11th Cir., No. 06-15851, 8/11/09).

In four consolidated cases, the union Sinaltrainal and a number of labor leaders alleged that the two bottling companies--Bebidas y Alimentos de Urabã S.A. and Panamco Colombia S.A.--collaborated with paramilitary forces or local police to murder and torture union leaders employed at the bottling plants. The plaintiffs alleged that the parent companies and owners of the bottling plants and Coca-Cola, which does business with the Colombia companies, were liable based on theories of conspiracy, agency, aiding and abetting, and vicarious liability.

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Affirming the U.S. District Court for the Southern District of Florida's dismissal of the four cases, the appeals court found that the plaintiffs failed “to sufficiently plead factual allegations to connect the paramilitary forces, who perpetrated the wrongful acts, with the Colombian government” and failed “to sufficiently plead factual allegations to connect the Panamco Defendants to actionable torture.”

Judge Susan H. Black wrote the opinion, which Judges Gerald B. Tjoflat and Emmett R. Cox joined.

Plaintiffs' Lawyer Wants Chance to Amend Complaint.

Terrence P. Collingsworth, who represented the plaintiffs, said he is “very disappointed” in the decision because it applies two recent U.S. Supreme Court decisions on pleading standards “that did not exist when we filed the case, when we amended the complaint, and when we filed our briefs on appeal in 2006.” The Eleventh Circuit at the very least “should have given us the opportunity to amend the complaint to accommodate the new, and much different, pleading standards created by the Supreme Court that drastically modified the notice pleading requirements of” Rule 8(a) of the Federal Rules of Civil Procedure, Collingsworth said. “As a first measure, we are looking at options to obtain the opportunity to amend,” he said.

Collingsworth also said “it is absolutely clear that nothing about this ruling exonerates Coca-Cola and its bottlers for responsibility for murdering and torturing trade union leaders in Colombia.” The appeals court did “not address the ultimate question of whether the Coca-Cola bottlers, like so many employers in Colombia, collaborated with terrorist paramilitaries to murder or torture the Sinaltrainal leaders.”

“We are extremely pleased” that the Eleventh Circuit upheld the district court's decisions in this case, Coca-Cola spokeswoman Kerry Kerr said. Over the years, the allegations have been investigated by Colombian officials, the International Labor Organization, and an outside law firm, and they found no support for the allegations of conspiracy with the paramilitaries, Kerr said.

Robert M. Brochin of Morgan, Lewis & Bockius represented the Panamco defendants involved in three of the cases. He applauded the ruling, saying “we got everything we were seeking.” The Supreme Court's recent decisions make clear that to survive dismissal, plaintiffs “must present facts to support a plausible claim for recovery,” Brochin said. He asserted that the plaintiffs made “very serious allegations of human rights abuses that my clients had no participation in whatsoever.”

Unions and civil rights groups in 2003 formed a coalition calling for a boycott of Coca-Cola products to protest the alleged intimidation of union leaders at Colombia bottling plants. A June 2003 report by the International Confederation of Free Trade Unions found there were 184 murders of union leaders in Colombia the previous year). The State Department's annual Human Rights Report issued in 2003 found that 1,875 union leaders have been murdered in Colombia since 1991 and that the violence “is perpetuated by a climate of impunity.”

Cases Involve Four Bottling Plants in Colombia.

The Colombian union Sinaltrainal and union leaders allege that the defendants hired, contracted with, directed, or conspired with paramilitaries or the local police to silence union leaders. Coca-Cola through its Colombian subsidiary have bottling agreements with the Bebidas and Panamco plants.

The original case was filed in 2001 on behalf of the estate of union leader Isidro Segundo Gil, who worked at the Bebidas bottling plant owned by Richard Kirby and was murdered inside the plant, allegedly by paramilitaries. Another plaintiff in the Gil case witnessed the murder and allegedly was detained and tortured by paramilitaries.

The other cases, referred to by the appeals court as the Galvis, Leal, and Garcia cases, involve union leaders at three bottling plants operated by Panamco Colombia, which is owned by PanAmerican Beverages Co. and Panamco LLC. These plaintiffs alleged that they received death threats, were shot at, and/or were kidnapped and tortured by paramilitaries because of their union activity, or were arrested by local police and jailed for six months because of their union activity.

The district court held in 2003 that it did not have subject matter jurisdiction over the claims against Coca-Cola because the bottling agreements only gave Coca-Cola the right to enforce product standards and did not give it control over daily operations at the plants ( 256 F. Supp. 2d 1345 (S.D. Fla. 2003)). The district court then held in 2006 that the factual allegations in all four complaints were insufficient to give the court subject matter jurisdiction under the ATS and TVPA ( 474 F. Supp. 2d 1273 (S.D. Fla. 2006) ).

ATS Covers 'Very Limited Category of Claims.'

The ATS originally was enacted in 1789, Black said. The provision now states (28 U.S.C. § 1350) that federal district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The Supreme Court said in Sosa v. Alvarez-Machain, 542 U.S. 692, 72 USLW 4660 (2004), that the ATS originally only covered common law claims for violation of safe conducts, offenses against ambassadors, and piracy. The justices found that the ATS also gives federal courts subject matter jurisdiction to hear “a very limited category” of claims and that recognition of new types of claims “should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.”

“The modern line of ATS cases initially involved state actors violating the law of nations, but subsequent cases have expanded the scope of the ATS to impose liability on private individuals and corporations,” Black said. She found that actions “perpetrated in the course of genocide or war crimes have been found actionable absent state action.” But she found that “ATS claims generally require allegations of state action because the law of nations are the rules of conduct that govern the affairs of a nation, acting in its national capacity, in relations with another nation.”

The TVPA, which was enacted in 1992, provides a cause of action for U.S. citizens as well as aliens for torture or extrajudicial killing “under actual or apparent authority, or color of law, of any foreign nation” (28 U.S.C. § 1350). Black found that the Eleventh Circuit held in Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008), that “there must be proof of a symbiotic relationship between a private actor and the government that involves the torture or killing alleged in the complaint to satisfy the requirement of state action.”

On a motion to dismiss for lack of subject matter jurisdiction, “the court is not required to accept a plaintiff's legal conclusions,” conclusory allegations are not entitled to be assumed true, and a complaint must state a plausible claim for relief, Black said, citing the Supreme Court's recent decisions in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 75 USLW 4337 (2007).

Allegations Insufficient to Show State Action.

The plaintiffs alleged in the Gil, Galvis, and Leal cases that paramilitaries that committed the offenses operate under color of state law because they are tolerated or assisted by the Colombian government and have a symbiotic relationship with the Colombian military, Black said. “Allegations the Colombian government tolerated and permitted the paramilitary forces to exist are insufficient to plead the paramilitary forces were state actors,” Black wrote. She found “[t]here is no suggestion the Colombian government was involved in, much less aware of, the murder and torture alleged in the complaints.”

The plaintiffs also argued that the alleged murder and torture took place during the longstanding civil war in Colombia--involving the Colombian military and right-wing paramilitaries on one side and armed leftist groups on the other side--and therefore constitute war crimes, which do not require state action, Black said. However, she found that the alleged crimes merely occurred against the backdrop of the civil war. “[T]here is no suggestion the plaintiffs' murder and torture was perpetrated because of the ongoing civil war or in the course of civil war clashes,” Black said.

The Garcia case in contrast alleged a conspiracy with local police, Black said. The plaintiffs alleged that soon after a 120-hour unfair labor practices strike by Sinaltrainal, the bottling plant's chief of security told the police he had found a bomb in the facility and accused five members of the local union's executive board of planting the bomb. Three union board members were arrested and held in jail for six months until a prosecutor found the charges were completely baseless.

The plaintiffs' “attenuated chain of conspiracy fails to nudge their claims across the line from conceivable to plausible,” Black said. She found that the plaintiffs did not make factual allegations to support their contention that the police acted in cooperation and complicity with the security chief. The complaint “fails to allege when or with whom [the security chief] entered into a conspiracy to arrest, detain, and harm the plaintiffs” and fails to describe the “scope of the conspiracy and its participants,” Black said.

The district court also dismissed the TVPA claims for lack of subject matter jurisdiction, Black said. But she found that the district court did have subject matter jurisdiction because TVPA claims raise a federal question. Instead, the proper question was whether the plaintiffs' TVPA claims stated a claim upon which relief can be granted, Black said. She found that the plaintiffs in the Gil, Galvis, and Leal cases failed to do so because they failed to allege sufficient facts to show state action and that the plaintiffs in the Garcia case failed “to sufficiently allege the Panamco Defendants, or their agents, conspired with the local police in carrying out the alleged torture.”

United Steelworkers Associate General Counsel Daniel M. Kovalik and Terrence P. Collingsworth of Conrad & Scherer in Washington, D.C., represented the plaintiffs. Robert M. Brochin of Morgan, Lewis & Bockius in Miami represented the Panamco defendants. William P. McCaughan of K&L Gates in Miami represented Kirby. Faith E. Gay and Sanford I. Weisburst of Quinn Emanuel in New York and J. Noah Hagey in the firm's San Francisco office represented Coca-Cola.

By Susan J. McGolrick

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Text of the decision may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=smgk-7utmrk.

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