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Case No. 19-13926-C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________

IN RE: CHIQUITA BRANDS INTERNATONAL, INC.,

ALIEN TORT STATUTE LITIGATION
___________________________________________

On Appeal from the United States District Court

For the Southern District of Florida
No. 08-md-01916
(Nos. 08-80465, 11-80404)
(The Honorable Kenneth A. Marra)

____________________________________________

APPELLANTS DOE 378 AND DOE 840'S

REPLY TO ORDER ON WHETHER SEALED
MATERIALS WERE FILED IN COURT

____________________________________________

Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
paulwolf@yahoo.com
Fax: n/a
Attorney for Plaintiff-
Appellants-Cross-Appellees
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CERTIFICATE OF INTERESTED PERSONS

Counsel certifies that the following is a complete list of the trial judge(s), all

attorneys, persons, associations of persons, firms, partnerships, or corporations

(noted with its stock symbol if publicly listed) that have an interest in the outcome

of the particular case on appeal, including subsidiaries, conglomerates, affiliates,

and parent corporations, and other identifiable legal entities related to a party,

known to Appellants, are as follows:

1. Doe 378, whose identity remains confidential under a Protective Order of

the District Court, and Ludy Rivas Borja, who is the daughter of deceased plaintiff

Doe 840, whose identity also remains confidential under the Order. In addition,

the plaintiffs bring their cases as personal representatives of the estates of the

deceased. They represent other legal heirs with interests, whose identities are

known to the Appellees, but remain confidential under the Protective Order.

2. The other plaintiffs in the complaints filed by undersigned counsel in the

Southern District of Florida, in Case Nos. 08-80465, 10-80652, 11-80404, 11-

80405 and 17-cv-80475. Undersigned counsel represents the legal heirs of

approximately 2,319 wrongful death cases. In addition, there are six other plaintiff

groups with a total of about 7500 "claims" in the MDL, all of whom have an

interest in this appeal.

3. Additional interested parties are:

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Agrícola Longaví Limitada

Agrícola Santa Marta Limitada

Agroindustria Santa Rosa de Lima, S.A.

Aguirre, Fernando

Alamo Land Company

Alsama, Ltd.

American Produce Company

Americana de Exportación S.A.

Anacar LDC

Arnold & Porter

Arvelo, José E.

Associated Santa Maria Minerals

B C Systems, Inc.

Baird, Bruce

Bandy, Kevin

Barbush Development Corp.

Bienes Del Rio, S.A.

Blank Rome LLP

BlackRock, Inc. (NYSE: BLK)

Blue Fish Holdings Establishment

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Bocas Fruit Co. L.L.C.

In Re: Chiquita Brands Int’l., Inc.

Boies Schiller & Flexner, LLP, Fort Lauderdale

Boies Schiller & Flexner, LLP, Miami

Boies Schiller & Flexner, LLP, New York

Boies Schiller & Flexner, LLP, Orlando

Bronson, Ardith

Brundicorpi S.A.

Cadavid Londoño, Paula

Carrillo, Arturo J.

C.C.A. Fruit Service Company Limited

CB Containers, Inc.

Centro Global de Procesamiento Chiquita, S.R.L.

Charagres, Inc., S.A.

Childs, Robert

Chiquita (Canada) Inc.

Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.

Chiquita Banana Company B.V.

Chiquita Brands International Foundation

Chiquita Brands International Sàrl

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Chiquita Brands International, Inc. (NYSE: CQB)

Chiquita Brands L.L.C.

Chiquita Central Europe, s.r.o.

Chiquita Compagnie des Bananes

Chiquita Deutschland GmbH

Chiquita Food Innovation B.V.

Chiquita for Charities

Chiquita Fresh B.V.B.A.

Chiquita Fresh España, S.A.

Chiquita Fresh North America L.L.C.

Chiquita Fruit Bar (Belgium) BVBA

Chiquita Fruit Bar (Germany) GmbH

Chiquita Fruit Bar GmbH

Chiquita Frupac B.V.

Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton

Chiquita Hong Kong Limited

Chiquita International Services Group N.V.

Chiquita Italia, S.p.A.

Chiquita Logistic Services El Salvador Ltda.

Chiquita Logistic Services Guatemala, Limitada

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Chiquita Logistic Services Honduras, S.de RL

Chiquita Melon Packers, Inc.

Chiquita Mexico, S. de R.L. de C.V.

Chiquita Nature and Community Foundation

Chiquita Nordic Oy

Chiquita Norway As

Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia

Chiquita Portugal Venda E Comercializaçao De Fruta,

Unipessoal Lda

Chiquita Relief Fund - We Care

Chiquita Shared Services

Chiquita Singapore Pte. Ltd.

Chiquita Slovakia, S.r.o.

Chiquita Sweden AB

Chiquita Tropical Fruit Company B.V.

Chiquita UK Limited

ChiquitaStore.com L.L.C.

Chiriqui Land Company

CILPAC Establishment

Cioffi, Michael

Coast Citrus Distributors Holding Company

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Cohen, Millstein, Sellers & Toll, PLLC

Collingsworth, Terrence P.

Compañía Agrícola de Nipe, S.A.

Compañía Agrícola de Rio Tinto

Compañía Agrícola del Guayas

Compañía Agrícola e Industrial Ecuaplantation, S.A.

Compañía Agrícola Sancti-Spiritus, S.A.

Compañía Bananera Atlántica Limitada

Compañía Bananera Guatemateca Independinte, S.A.

Compañía Bananera La Estrella, S.A.

Compañía Bananera Los Laureles, S.A.

Compañía Bananera Monte Blanco, S.A.

Compañía Caronas, S.A.

Compañía Cubana de Navegación Costanera

Compañía Frutera América S.A.

Compañía La Cruz, S.A.

Compañía Mundimar, S.A.

Compañía Productos Agrícolas de Chiapas, S.A. de C.V.

Compañía Tropical de Seguros, S.A.

Conrad & Scherer LLP

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Costa Frut S.A.C.

Covington & Burling LLP

Danone Chiquita Fruits SAS

Dante, Frank

Davies, Patrick

De La Calle Restrepo, José Miguel

De La Calle Londoño y Posada Abogados

DeLeon, John

Dimensional Fund Advisors LP

DLA Piper

Duraiswamy, Shankar

Dyer, Karen C.

Earthrights, International, Inc.

Exportadora Chiquita - Chile Ltda.

Exportadora de Frutas Frescas Ltda.

Financiera Agro-Exportaciones Limitada

Financiera Bananera Limitada

FMR LLC

Fresh Express Incorporated

Fresh Holding C.V.

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Fresh International Corp.

Friedheim, Cyrus

Frutas Elegantes, S. de R.L. de C.V.

Fundación Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula

G & V Farms, LLC

G W F Management Services Ltd.

Garland, James

Girardi, Thomas V.

Gould, Kimberly

Gravante, Jr., Nicholas A.

Great White Fleet Liner Services Ltd.

Great White Fleet Ltd.

Green, James K.

Guralnick, Ronald S.

Hall, John

Heaton Holdings Ltd.

Heli Abel Torrado y Asociados

Hemisphere XII Investors Limited

Hills, Roderick, the Estate of

Hospital La Lima, S.A. de C.V.

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Ilara Holdings, Inc.

Inversiones Huemul Limitada

James K. Green, P.A.

Jimenez Train, Magda M.

Jones, Foster, Johnston & Stubbs, P.A.

Jones, Stanton

Keiser, Charles

King, William B.

Kistinger, Robert

Lack, Walter J.

Law Firm of Jonathan C. Reiter

Law Offices of Chavez-DeLeon

Leon, The Honorable Richard J.

Markman, Ligia

Marra, The Honorable Kenneth A.

Martin, David

Martinez Resly, Jaclyn

McCawley, Sigrid S.

Mosier, Mark

Mozabanana, Lda.
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Olson, Robert

O'Melveny & Meyers

Ordman, John

Parker Waichman LLP

Philips, Layn

Prías Cadavid Abogados

Prías, Juan Carlos

Priedheim, Alissa

Procesados IQF, S.A. de C.V.

Processed Fruit Ingredients, BVBA

Promotion et Developpement de la Culture Bananiere

Puerto Armuelles Fruit Co., Ltd.

Rapp, Cristopher

Reiter, Jonathan C.

Ronald Guralnick, P.A.

Scarola, Jack

Searcy Denney Scarola Barnhart & Shipley, P.A.

Seguridad Colosal, S.A.

Servicios Chiquita Chile Limitada

Servicios de Logística Chiquita, S.A.

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Servicios Logísticos Chiquita, S.R.L

Servicios Proem Limitada

Silbert, Earl

Skinner, William

Sperling, Jonathan

Spiers N.V.

Sprague, Ashley M.

St. James Investments, Inc.

Stewart, Thomas

Stubbs, Sidney

Tela Railroad Company Ltd.

The Vanguard Group

TransFRESH Corporation

Tsacalis, William

UNIPO G.V., S.A.

V.F. Transportation, L.L.C.

Verdelli Farms, Inc.

Western Commercial International Ltd.

Wichmann, William J.

Wiesner & Asociados Ltda. Abogados

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Wiesner, Eduardo A.

Wilkins, Robert

Willkie Farr & Gallagher

Wolf, Paul

Wolosky, Lee S.

Zack, Stephen N

Zhejiang Chiquita-Haitong Food Company Limited

Zuleta, Alberto

Certification

I hereby certify that to the best of my knowledge, the above is a complete

list of persons having an interest in this case.

/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Appellants
Doe 378 and Ludy Rivas Borja

November 12, 2019

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REPLY

The non-Wolf Appellants can't have it both ways. Either the materials were

filed under seal below, and therefore constitute part of the record on appeal, or they

weren't. If the documents were merely "lodged," as the non-Wolf Appellants now

argue, then they are not part of the record on appeal and should not be considered.

The docket reflects that on the same day the Non-Wolf Appellants filed their

Opposition to Chiquita's Motion for Summary Judgment, they filed or tried to file

six documents under seal. See Exhibit 1 to the Wolf Appellants' Response at DE

2522, 2524, 2530, 2531, 2534, 2535. Each entry is marked as "SYSTEM ENTRY

- Docket Entry 2522 restricted/sealed until further notice." Id. Two additional

documents were filed this way two weeks later, id. at DE 2544, 2545, and the

practice of filing under seal without leave continues up to the last line of the docket

that was reproduced. Undersigned counsel has no way to determine what these

documents are, although the Opposition brief does refer to sealed exhibits.

Whether they were filed or lodged, according to Local Rule 5.4(a) of the District

Court for the Southern District of Florida, "[u]nless otherwise provided by law,

Court rule, or Court order, proceedings in the United States District Court are

public and Court filings are matters of public record."1

1
When we filed these pages as an exhibit, we didn't describe them as "sealed," but
as a "leak." They were wrongfully designated as highly confidential after the
District Court ordered that information such as the date and time of this deposition
1
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The materials relate to a witness bribery conspiracy that involves other

companies that are not parties to this case. The Plaintiff-Appellants themselves

have the right to know what's going on, including Does 1-976, and others whom

the Court should protect. The rule is that the client can be held responsible for the

attorney's misdeeds, which is unfair if the filings in the case aren't public.

The same arguments apply to other documents filed or lodged in the District

Court under seal without leave. Undersigned counsel can't determine the contents

of the non-Wolf Appellants' Appendix, which at a minimum includes the transcript

of Mr. Hasbun and his testimony about a $3-5 million dollar offer, which induced

him to testify after he'd previously refused. Mr. Simons denies that any AUC

member was actually paid, but according to 18 USC § 201(c)(2), the mere offering

of money to a witness is illegal. "Whoever … directly or indirectly, gives, offers,

or promises anything of value to any person, for or because of the testimony under

oath or affirmation given or to be given by such person as a witness upon a trial,

hearing, or other proceeding, before any court, any committee of either House or

both Houses of Congress, or any agency, commission, or officer authorized by the

laws of the United States to hear evidence or take testimony, or for or because of

such person's absence therefrom … shall be fined under this title or imprisoned for

was to remain confidential, but only up to the time the deposition occurred. See
Exhibit 1, DE 865 at ¶¶ 3(b), (c) & (d). The non-Wolf Appellants claim it was
designated as highly confidential in "an abundance of caution." In fact, it was in
furtherance of the conspiracy, or closely related to it.
2
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not more than two years, or both." Id. (emphasis added) If the testimony is false,

the maximum penalty is 15 years. 18 USC § 201(b)(3). The non-Wolf Appellants

can't deny that this amount was offered. For example, on Sept 1-3, 2015, Attorney

Collingsworth invoked his Fifth Amendment right to remain silent when the

Northern District of Alabama held a hearing on witness bribery in Case No. 11-cv-

3695 (NDAL). He would be well-advised to do so again.

This isn't an ad hominum attack on Attorney Simons or Collingsworth, but a

legal argument to be taken seriously: that the non-Wolf Appellants' Brief doesn't

disclose any of the bribery or the controversy over it.2 Why not? It shows why the

Appendix should be unsealed, and an ongoing fraud on the Court.

Mr. Simons also objects that he is not listed in our Certificate of Interested

Persons, which lists his organization, Earthrights International, Inc., instead.

According to the most recent tax filing that could be located online,3 Earthrights

International, Inc. is a non-profit corporation run by Executive Director Ka Hsaw

Wan, who earns a $140,000 per year salary. Id. Earthrights isn't organized as a

law firm and doesn't have partners. Id. Nowhere in this, or on the Earthrights

website does Mr. Wan or any board member describe themself as a lawyer. At one

2
The District Court awarded Chiquita attorneys fees for compelling the production
of some witness bribery documents, but the documents were never produced to
undersigned counsel. Undersigned counsel has learned most of what he knows
through reading public court filings in Drummond and other cases, and has never
received confidential discovery materials about this.
3
See https://earthrights.org/wp-content/uploads/ERI-2018-Form-990.pdf
3
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time, Earthrights appears to have had a licensed attorney on its Board of Directors,

Katie Redford, but she is no longer associated with them. 4 The CIP also lists

Cohen Milstein Sellers & Toll PLLC, which may have a co-counsel-relationship

with Mr. Simons or with Earthrights International, Inc. Undersigned counsel

doesn't know anything about this arrangement, or whether their clients believe their

lawyer is Mr. Simons, Earthrights, Cohen Milstein, an intermediary,5 or some

combination.

Until recently, Earthrights had only filed two actual cases in court,

unsuccessfully moving the District Court to certify this mass tort case as a class

action for settlement purposes. In April of this year, Earthrights filed another

complaint, of about 100 other cases, long after the statute of limitations had run.

The claims were deliberately not filed, in furtherance of the RICO conspiracy,

which had as part of its agreement that any new cases filed after a particular date

would be treated as "community property" and jointly represented by all of the

non-Wolf Appellants' counsel. As co-counsel on the "community property" cases,

4
See https://earthrights.org/a-letter-from-katie-redford-cofounder-of-earthrights-
international/
5
That's not a baseless accusation. Earthrights used Colombian intermediaries to
sign duplicate agreements with many of undersigned counsel's clients, and filed the
duplicate claims in April of this year, long after statutes of limitations had passed.
We contacted six of the individuals whom we were able to identify, who all
renounced the second agreement with Earthrights and wrote letters saying they
hadn't intended to change attorneys. The duplicate claims are of no benefit to the
plaintiffs since they were filed so late, and appear to be an attempt to seize control
of their claims, or to exaggerate the importance of Earthrights in the MDL.
4
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these attorneys have limited ability to act independently, difficult ethical dilemmas,

and a separate confidentiality agreement for their work product which they have

used to shield communications about witness bribery. Some of these materials

have been filed in the public record, such as the "Paul Wolf Problem" email, but

only the non-Wolf Appellants really know the scope of the problem. In short, Mr.

Simons has no interest in this litigation outside of Earthrights, which isn't even a

law firm and serves the same function as International Rights Advocates in the

Drummond case, which is to shield Cohen & Milstein from malpractice liability.

In this case at least, this non- law firm acts as Cohen & Milstein's alter ego.

Conclusion

The non-Wolf Appellants can't deny they offered $3-5 million dollars as an

inducement to witness Raul Hasbun, and this is only one of the tainted witnesses

on whose testimony their Opening Brief relies. The District Court didn’t abuse its

discretion by denying two motions to file this information under seal, and there's

no good cause to do so. Therefore, the Court should first determine what is and

what isn't part of the record on appeal. It should then order the non-Wolf

Appellants to refile their Appendix, redacting only the Plaintiffs names and contact

information, while a separate appeal over the confidentiality of that information is

pending.

5
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Respectfully submitted,

/s/ Paul Wolf

________________________
Paul Wolf, DC Bar #480285
Attorney for Does 1-976

July 3, 2020

Certificate of Service

I hereby certify, that on this 3rd of July, 2020, I filed the foregoing response
and exhibit with the Clerk of the Court using the Court's Electronic Case Filing
(ECF) system, which will send notices to all counsel receiving electronic notices in
this case.

/s/ Paul Wolf

_______________
Paul Wolf

Certificate of Compliance

Pursuant to FRAP 27 and 32(g)(1), I hereby certify that this response

complies with the type-limitation of 2,600 words, and contains 1,326 words,
excluding the caption and certifications.

/s/ Paul Wolf

_______________
Paul Wolf

6
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Exhibit 1
Case 0:08-md-01916-KAM Document 865 Entered on FLSD Docket 08/03/2015 Page 1 of 3
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U N IT ED STATE S D IST RICT CO U RT

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ORD ER ON CH IQUITA'S TIM E.SEN SITIVE M OTION TO M ODIIRY

REQUESTSFORJUDICIAL ASSISTANCE
Itishereby O RD ERED thatD efendantChiquita'sTim e-sensitiveNIotion to t
Nlodify

collectively,and counselshallnotgain additionalvotesifthey representclientsin multiple

preparationsforthcsccxarninations,c)rothcrissucsc)fjtlintcoordination in this51131-
Case 0:08-md-01916-KAM Document 865 Entered on FLSD Docket 08/03/2015 Page 2 of 3
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procecding,shallproceed undcran understanding ofm utualctlnfidcntiality exceptwhcrc

consentto disclosc to otherparticslaasbccn given ora courtlnasordered disclosure.

.
CX1IT1Iflotty(jyj,.

shallbc observed:

exchangcd am ong counselofrecord in tlnese actions,but,priorto the exam inations,

tlaet-olombian courtts)anditspcrsonnel,thc(-oltlmbian prisonts)and it'

spersonncl,

Any inforlzaation rcgarding travclarrangel-

nentst)rtltlncrltAgisticaldctails()fthe

consentofa1lcounseldesignated to ask questionsin the exam inations.Thisincludes,

withoutlim itation,any inform ation regarding flightnum bers,arrivaland departure

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z A.n)-counsel()rtltherparticipantsin thc depositionsw-ht)travcltt)(-olom bia ftlr the

than counscland otlaerparticipantsin the dcpositions thepurpose oftlaeirvisitto

2
Case 0:08-md-01916-KAM Document 865 Entered on FLSD Docket 08/03/2015 Page 3 of 3
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d.

theiremplol-eesand agentsshallnotm ake furtherpublic disclosuresofthe dates,

concluded and the participantslaa&releftC()1()m bia.

DON E andO RDERED on this Y dayof A JN o& :r-' ,2015.

.

l'
IonorablclVe eth A.NIarra
LTNI-I-F,L; STATL'S DISTRICT JUDGI':
'