Case 0:08-md-01916-KAM Document 2726 Entered on FLSD Docket 10/28/2020 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)

__________________________________________/

Reply to Responses [DE 2716, 2717, 2721] to Motion for Reconsideration

of Second Amended Global Scheduling Order [DE 2681]

1. The summary judgment standard is on appeal.

The first issue is whether deciding summary judgment motions for additional bellwether

cases involves issues that are on appeal. According to Chiquita, "[c]ontrary to the Wolf

Plaintiffs’ suggestion (Motion at 3), the issue on appeal is not the summary judgment standard

but whether application of the standard to the specific facts of each case creates a triable issue of

fact." DE 2721 at 5.

The Appellees cannot determine the basis for the Appellants' appeal. See Exhibit 1,

attached hereto, Appellants Doe 378 and Doe 840s' Opening Brief. Chiquita and Earthrights

tried to prevent us from filing a brief in the Court of Appeals, by filing two motions to

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consolidate the briefing. Nevertheless, Chiquita recognizes that the Court of Appeals allowed

undersigned counsel to file a brief. DE 2721 at 4.

According to Chiquita, only the Court's rulings on hearsay and the admissibility of

evidence are on appeal. Id. at 5. This is a denial of due process because the Appellants have the

right to appeal the legal standards used. It’s a question of law whether the Court drew all

reasonable inferences in Plaintiffs favor, or correctly employed the standards for expert

witnesses under Daubert and Kumho Tire. Exhibit 1, attached hereto, at 14-20, 21-38.

2. It's an abuse of discretion to bring cases to trial for plaintiffs who've waived
their Lexecon rights, leaving those who don't waive them in the pre-trial
phase.

No party has tried to argue that the Court has jurisdiction to assign cases to itself to trial.

If the Court allows plaintiffs waiving their Lexecon rights to go to trial, while denying remand to

plaintiffs who don't waive them, it will be another arbitrary decision to favor one group of

plaintiffs over another, as occurred with plaintiffs filing claims against Chiquita for murders

committed by the FARC.1

We are not aware of any other MDL courts that construed "pretrial proceedings" in such a

manner, that plaintiffs may only progress from pretrial proceedings by consenting to trial in the

transferee court. This is a due process violation, especially because the evidence and legal

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American plaintiffs were supposed to go to trial in February of 2018, but settled their cases at
the 11th hour. Colombian plaintiffs were denied motions to participate in Hague Evidence
Convention Requests that the Court granted for the American plaintiffs, and subsequently denied
motions for Hague Requests for basic Colombian government records that would prove the
murders, and then when they produced such documents anyway, they were found not to be in
admissible form or authenticated. See DE 928 958 975. The Court also allowed the transferee
courts to seize assets traceable to the FARC and assign them all to two plaintiffs in the MDL,
Stansell and Pescatore, bypassing the JPML. These plaintiffs took more than $20 million dollars
without providing notice to other interested parties. See Order, DE 2715.
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theories used by undersigned counsel are different, and the Court would not consider it. See

Exhibit 1, Appellants' Brief at 38-47.

3. The Plaintiffs were defrauded by the last bellwether process, in which

Earthrights and Chiquita both pretended to have complied with the GSO.
This is only one of many frauds that have been perpetrated on them.

The Plaintiffs have been defrauded in this Court multiple times already. First, counsel in

the shareholder derivative phase of the case were awarded $4 million dollars in legal fees, paid

by Chiquita, without making any showing that they substantially prevailed. See Exhibit 2,

attached hereto, Shareholder Derivative Settlement, DE 346. Instead of prevailing, the Court

cited the potential litigation costs or nuisance value of the case as a basis to award $4 million

dollars. Id. The purpose of such litigation is for the shareholders to hold the management liable

for damage done to the company. The Special Litigation Committee report absolved all of the

officers and directors of any wrongdoing. DE 202-4. Including Individuals A-J whose conduct

was relied on in the Factual Proffer as the basis for Chiquita's guilty plea. Chiquita paid $4

million dollars for this self-serving report, which was a fraud on the plaintiffs.

The plaintiffs were also defrauded when favored-attorney Jack Scarola and Boies Schiller

& Flexner LLP raided my client base, signing duplicate agreements with about 150 of my clients

who had already filed claims. Neither this Court nor the Court of Appeals provided any relief,

since the individuals haven't lost their cases yet or suffered damage. Mr. Scarola has put forth

one of them as a bellwether case, even though we produced to Boies Schiller her sworn

testimony to a Colombian notario detailing how she was deceived.

The plaintiffs were defrauded when Mr. Simons, Scarola, and other plaintiffs' counsel

agreed to not file any new claims, but to treat all new cases as "community property" class action

plaintiffs subject to joint representation by the committee. This was done in bad faith because

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there is no such thing as a mass tort class action. According to an email dated November 28,

2011, Jack Scarola represents approximately 3,000 such defrauded individuals, whose claims

were never filed. The community property agreement is unethical for numerous reasons, and is

intended to restrict the abilities of the attorneys to act independently. It misuses attorney ethics

rules intended to ensure loyalty to the client, in furtherance of a criminal conspiracy. The terms

are not filed on the record because the Court has considered this kind of material to be

privileged, despite the strong showings of crime and fraud. On information and belief, the co-

conspirators share in paying the costs of paramilitary witnesses, for security expenses, family

relocations, and expert witness fees.2

The outrageous bribery of imprisoned paramilitaries is another fraud that has been

impossible to stop, and has destroyed the credibility of important fact witnesses, including Raul

Hasbun and others. This part of the conspiracy has been facilitated by filing dozens of

documents over the last ten years under seal. Mr. Simons is still making ex parte legal

arguments in sealed filings, when these practices have only facilitated fraud in the past. The

Piper Hendricks memo is no more than a collection of case law supporting Conrad & Scherer's

existing witness payment practices, and used to bribe about a dozen members of the AUC. The

lawyers are in a conspiracy with top level AUC commanders and its debatable which are in

charge. Some of the money used to bribe AUC members in the Drummond case appeared to

2
Mr Scarola filed a response complaining that I did not confer on the motion for reconsideration.
He already stated his opposition the original motion. Moreover, Mr. Scarola and Chiquita
negotiated every other schedule without including me, filing these agreements as "Joint
Schedules" and requiring me to respond every time. See DE 1827, Response to Joint Statement
DE 1828. From the beginning of the case, Mr. Scarola has made outrageous claims of having
undue influence with Court, referring to religious ceremonies and other ex parte meetings. He is
in no position to criticize others for not conferring.
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have actually come from the AUC, via the Van Bilderbeek's paper company, Llanos Oil.

Hendrick Van Bilderbeek was convicted of laundering money for the AUC.

The recent disclosure by Chiquita, that Earthrights and Chiquita had secretly agreed to

use Earthrights 8 "class action" plaintiffs instead of drawing them from a pool of 50, should be

seen in this light. See DE 2717-4, email exchange agreeing to this off the record, and without

notice to other litigants. Chiquita argues that "New Jersey counsel and Defense counsel,

therefore, selected all eight cases for full discovery. They were not required to do otherwise

under the circumstances that were of public record." DE 2721 at 3 However, they failed to

disclose this secret agreement on the record. The Court should have been surprised by this, since

it wasn't disclosed for the past three years.

4. Earthrights cannot show that they are authorized to practice law, and lied to
the Court of Appeals about the membership of their Board of Directors.

Earthrights still haven't disclosed the real name of their Director alias Ka Hsaw Wa,

explain why prior to 2018, Ka Hsaw Wa used a false name on IRS filings without disclosing it,

or provide any evidence of their supposed understanding with the Massachusetts Attorney

General that Earthrights may use this false name on public filings. See, e.g., Exhibit 6 to

Motion, IRS filing from 2017. DE 2713-6.

The fact that Earthrights is organized as a non-profit doesn’t determine whether it is

authorized by the DC Bar to practice law. It is obviously not. Earthrights hasn't identified a

single licensed attorney on their Board of Directors, and falsely represented to the Court of

Appeals that the individuals listed on their website as "directors" where real directors.

Earthrights' real directors are the persons listed on Earthright's most recent filing with the MA

Attorney General. DE 2704-1. "Currently, three of EarthRights’ eight board members are

licensed to practice law in the U.S., and two others have law degrees." Id. at 4. Earthrights

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misled the Court of Appeals by falsely claiming that the individuals portrayed on its website are

real Directors with legal control. As shown in the Motion, none of the individuals are real

directors. Earthrights claims that people who have no legal control over Earthrights have control

over their litigation. Earthrights is engaged in the unauthorized practice of law.

The fact that the Court is unable to determine the real name of Ka Hsaw Wa, and that

numerous instances of fraud have been shown, should give the Court pause before bending the

rules to accommodate them. The Court sanctioned undersigned counsel when he tried to

participate in one of the paramilitary depositions, enforcing the extortion demands of the

conspiracy. See Doe Plaintiffs’ Memorandum in Opposition to Motion to Enforce Court Order

with Respect to Attorney Paul Wolf, and for Sanctions, and in Support of Doe Plaintiffs' Cross-

Motion for Order to Supplement Production of "Crime-Fraud" Documents. DE 970. Instead of

protecting the person who blew the whistle, the court has punished me for it. DE 1188. "Marco

Simons, as representative of the plaintiffs’ counsel group in Case No. 08-80421-CIV-MARRA,

privately emailed Mr. Wolf in reply that all other plaintiffs’ counsel had agreed upon two

designated attorneys to conduct the direct examination plaintiffs’ liaison counsel, and requested

that Mr. Wolf simply submit any specific questions he wished to pose to the witness through the

designated liaison counsel. Mr. Wolf promptly forwarded Mr. Simons’ email to defense

counsel." ORDER, DE 1188 at 2. The sanction was paid to a lawyer who had filed 8 cases by a

lawyer who represents the numerical majority of the plaintiffs in the MDL, after the court

repeatedly refused to consider requests to enforce the terms of the GSO, which require the

plaintiffs' counsel to disclose their total number of cases and then vote according to the number

of cases. See DE865. Undersigned counsel is the only one who has disclosed the total number

of cases filed, and also was the only one who could produce bellwether plaintiffs for depositions

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in the US on only 60 days notice. Others took over a year to find their clients. Yet the Court

treats Earthrights as if they were lead counsel.

Chiquita agrees that Earthrights has delayed this case for years and years. This is because

of their conflicts of interest in other cases. Years were spent arguing over the Alien Tort Statute

because the various lawyers signing Earthrights' filings and briefs have other ATS cases and

wanted a win in the 11th Circuit in this case to prop them up. "Defendants agree that New Jersey

counsel have made strategic decisions that have greatly but unnecessarily exacerbated the

complexity of the issues as well as the time, and resources that the parties and courts have had to

expend on their clients’ claims. Thus, as the Wolf Plaintiffs suggest, New Jersey counsel should

have included all the claimants whom they represented in their original complaint, not

intentionally withheld the hundreds of represented claimants from their original class action

complaint and not waited almost ten years to file their claims against the individual defendants

and more than ten years (beyond the statute of limitations) to file them against Chiquita.: DE

2721 at 2. Given the conflicts of interest and deception - to say nothing of the crimes committed

by the RICO conspiracy3 - Earthrights doesn't deserve favored treatment.

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If Earthrights has a bank account it is hard to see how they are not committing bank fraud with
these documents. Any bank account opened in the name of Earthrights would require the bank
to perform certain anti-money laundering tasks known as Know Your Customer. (KYC) For
corporations, banks are legally required to know the real identities of the persons with beneficial
interests in the accounts. For corporations, this includes corporation formation documents, board
resolutions that affect ownership, and the like. Counsel has no evidence of Earthrights' bank
accounts, but the bank would have a legal obligation to know Ka Hsaw Wa's real name. Besides
the unauthorized practice of law, the Movants have made prima facie showings of making false
statements on IRS and MA AG filings, witness bribery, witness tampering, extorsion, and
endless misrepresentations to this Court and the Court of Appeals, including misrepresentations
about the identities of the real directors of Earthrights. The filing of so many documents under
seal only facilitates the fraud.
The Court should refer the matter to bar counsel or for criminal prosecution, as is occurring in
the Donziger case. Earthrights is involved in Mr. Donziger's fraud on the court as well as the
fraud in Drummond, and has helped litigate both cases, filing motions to quash subpeonas for
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Earthrights' quotations from my Facebook page aren't defamatory, and reflect the same

legal arguments made in court. Facebook has been an effective way to communicate with

hundreds of clients, in many cases via their children, who are more familiar with social media.

Counsel has a duty to keep his clients informed, under Rule 1.4 of the Florida Code of

Professional Responsibility. These public communications are not privileged attorney client

communications, and are typical of information available on the websites of law firms handling

large numbers of mass tort or class action cases. If a client uses this public form to inquire about

their individual case, I ask them to contact me privately.

Earthrights' quotation was a rare example of a forward-looking statement: that I already

knew I was going to blame Chiquita and Earthrights equally. To the extent that this was work

product, I chose to waive it. I saw no benefit to try to ambush Chiquita and a benefit in

informing my clients of who was to blame. My communications to my clients on Facebook have

nothing to do with the Motion, which is based on allegations of serious criminal conduct, which

are being enforced by the Court.

Conclusion

For the foregoing reasons, the Court should GRANT the Motion and stay the case while

the Court of Appeals decides the appeal.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986

Donziger, and amicus curiae briefs for Collingsworth in the Drummond litigation. The first thing
the bar counsel should try to determine is Ka Hsaw Wa's real name.
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paulwolf@yahoo.com

October 28, 2020

Certificate of Service

I hereby certify that on this 28th day of October, 2020, I filed the foregoing document
with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will
send electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf