In re Chiquita Brands Int'l, Inc. (284 F. Supp. 3d 1284, 2018)

KENNETH A. MARRA, United States District Judge

This is a civil action to recover damages for the murder of six United States citizens in the Republic of Colombia. The Plaintiffs are a missionary organization, New Tribes Mission ("NTM"), and the relatives and representatives of six Americans who were kidnapped and killed in the 1990s by a Colombian terrorist organization known as the Fuerzas Armadas Revolucionarias de Colombia-"the Armed Revolutionary Forces of Colombia"-or the "FARC."

Plaintiffs bring claims under the civil liability provisions of the Anti-Terrorism Act (the "ATA"), 18 U.S.C. § 2333(a), against Defendant Chiquita Brands International, Inc. ("Chiquita"). Plaintiffs allege that Chiquita violated the ATA by providing material support to the FARC by funneling money to it over a nine-year period of time through one of its wholly-owned Colombian subsidiaries.

The case is currently before the Court on (1) Chiquita's Motion for Summary Judgment [DE 1329], supporting Statement of Material Facts [DE 1330, 1335] and corresponding briefing of the parties [DE 1367, 1405, 1422] and (2) Plaintiffs' Motion for Partial Summary Judgment on Chiquita's Fourth & Fifth Affirmative Defenses [DE 1323], Supporting Statement of Material Facts [DE 1322, 1407] and corresponding briefing of the parties [DE 1365, 1366, 1414].

Chiquita advances three basic arguments in support of summary judgment:

(1) Plaintiffs' operative Amended Complaints allege secondary liability, which is not supported under the ATA;

(2) Plaintiffs lack sufficient evidence to prove the essential elements of their ATA claims, i.e. Plaintiffs' evidence would not permit a reasonable jury to find that (a) Chiquita possessed the degree of scienter necessary to be held liable for an "act of international terrorism" as that term is defined under the ATA; (b) Chiquita possessed the degree of scienter necessary to be held liable under the minimum recklessness mens rea standard imposed by the ATA, or the specific mens rea requirements of the predicate criminal violation (§ 2339A) alleged; (c) Chiquita's conduct was the cause of the Plaintiffs' injuries;

(3) Plaintiffs' claims are barred by the ATA's ten-year statute of limitations because the deaths of Plaintiffs' decedents occurred more than ten years prior to filing of suit, and Plaintiffs lack sufficient evidence to create a jury question on the issue of equitable tolling.

Plaintiffs, in turn, argue they are entitled to partial summary judgment on Defendant's Fourth Affirmative Defense of "necessity" or "duress," because the undisputed facts attending Chiquita's nine-year history of payments to the FARC are not reasonably susceptible to the inference that Chiquita made the payments under "imminent" threat of death or serious bodily harm, or for the lack of reasonable legal alternatives, and therefore present no jury question on two critical elements of this defense. Alternatively, they argue Chiquita does not show duress to be an available legal defense to this civil ATA claim as a matter of law.

Having carefully reviewed the parties' briefs and evidentiary submissions, and having heard argument of counsel, the Court grants the motions in part and denies the motions in part for the reasons which follow.

I. BACKGROUND

A. PROCEDURAL BACKGROUND

On March 11, 2008, the Julin Plaintiffs sued Chiquita under the ATA and state law alleging that five members of the New Tribes Mission organization were kidnapped and killed in Colombia by the FARC in the early-to-mid 1990s. The Pescatore Plaintiffs filed similar claims on March 13, 2009 and March 9, 2011, alleging that the FARC kidnapped and killed Frank Pescatore, an American geologist affiliated with "GeoMet," an Alabama-based energy company, in December 1996 (kidnapping) and February 1997 (killing). At this juncture, only ATA claims remain pending against Chiquita in both cases.

In earlier proceedings addressing the sufficiency of the pleadings, much of the dispute centered on the proper causation and scienter standards applicable to Plaintiffs' ATA claims. The scienter debate hinged on the viability of primary and secondary theories of liability alternatively alleged by Plaintiffs. The Court initially found both theories viable [DE 278], but on reconsideration, agreed that secondary liability is not supported under the ATA and amended its original ruling to dismiss the standalone aiding and abetting and conspiracy claims [DE 692]. The major cases relied upon in the Court's ruling included Boim v. Holy Land Foundation for Relief and Development (Boim III), 549 F.3d 685 (7th Cir. 2008) (en banc ), cert. denied sub nom. Boim v. Salah , 558 U.S. 981, 130 S.Ct. 458, 175 L.Ed.2d 324 (2009) and Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013).

The causation debate hinged on whether the ATA requirement for a plaintiff to show injury suffered "by reason of" an act of international terrorism requires a showing of "but-for" causation in addition to proximate causation. The Court rejected the imposition of a but-for causation requirement. The Court further found the allegations of Plaintiffs' then operative complaints sufficient to support the inference that Chiquita's material support would fund some of the FARC's terrorist activities, including kidnappings and murders of Americans, and held that the complaints adequately alleged proximate causation [DE 278]. The Court denied Chiquita's motion for reconsideration on this point [DE 692].

After these preliminary rulings, Plaintiffs filed amended complaints in order to tailor their factual allegations and legal claims to the prior rulings of the Court. In Pescatore, Plaintiffs filed their Second Amended Consolidated Complaint on March 9, 2017 [DE 1287]. It is a single count complaint which asserts "primary and secondary liability" under the ATA based on Chiquita's alleged predicate violation of one of the material support statutes, 18 U.S.C. § 2339A, as an actionable "act of international terrorism." In Julin, Plaintiffs filed their Third Amended Complaint on February 17, 2017 [DE 1273]. It is a two count pleading which alleges primary ATA liability based on (1) Chiquita's alleged predicate violation of 18 U.S.C. § 2332(b) [conspiring with FARC to kill U.S. nationals abroad] as an actionable "act of international terrorism" ("Count 2") and (2) Chiquita's alleged predicate violation of one of the material support statutes, 18 U.S.C. § 2339A, as an actionable "act of international terrorism" ("Count 3").

B. FACTUAL BACKGROUND

1. Chiquita's History in Colombia

Chiquita is a multinational corporation incorporated in New Jersey and headquartered in Cincinnati, Ohio. For more than 100 years, Chiquita and its corporate predecessors produced, purchased and marketed bananas and other fresh produce from Colombia and other countries around the world. In Colombia, Chiquita subsidiaries, including C.I. Bananos de Exportacion, S.A. ("Banadex"), produced and purchased bananas in the banana-growing regions of Uraba, in the Colombian state of Antioquia (near the town of Turbo), and in the state of Magdalena (near Santa Marta), investing millions of dollars' worth of basic infrastructure in these areas.

At times, Chiquita subsidiaries owned and operated their own banana farms ("owned-fruit" farms) and at times they purchased fruit from local growers ("purchased-fruit" farms) in Colombia, Guatemala, Costa Rica, and Panama. Prior to 1980, Chiquita and its subsidiaries began selling off their owned-fruit farms in Colombia to local growers, who, in turn sold the fruit to Chiquita or its subsidiaries. As a result, by the mid-to-late 1980s, Chiquita owned no farms or wharf facilities in Colombia and had less than 100 Colombian employees.

From 1987 to 1989, Dennis Doyle was the Vice President and Chief Operating Officer of Chiquita's banana group, which operated Chiquita's banana-related business around the world. At the end of 1987, or early 1988, Dole and other Chiquita executives (Carl Linder, Keith Linder, Robert Kistinger and others) decided to transition Chiquita from purchased-fruit to owned-fruit operations in all Latin American banana-growing countries. This decision was made in anticipation of increased market demand in the European Union following the elimination or reduction of protective tariff systems. Chiquita became concerned that local growers in Colombia might try to take advantage of favorable market conditions in Europe by selling bananas directly to European buyers, or by selling them to Chiquita competitors. Hence, Chiquita made the transition toward owned-fruit farms in order to better control the fruit supply, remain competitive and be in a position to "satisfy expected future global market demands for bananas" from the European market.

In 1988, Chiquita purchased its first three farms in the Uraba region of Colombia from an individual who had previously sold bananas to the company. Having conducted business in Uraba in the past, Chiquita was aware at the time of this purchase that the FARC was very active in this area, and that it was capable of and routinely engaged in acts of extreme violence. In light of this antagonism, as it expanded its owned-fruit operations in Colombia, Chiquita often disguised its ownership of the farms by assigning title to a proxy, or nominee, to avoid drawing the attention of FARC to its presence in Colombia.

Chiquita continued to purchase farms from local growers in Colombia so that by the mid-1990s, Chiquita or its subsidiaries employed over 3,000 employees in Colombia and owned between 4,000 and 5,000 hectares of farm land on roughly 35 farms. Between 1988 and 1997, owned-fruit farms belonging to Chiquita's subsidiaries in Colombia produced approximately 1,800 to 2,500 boxes of bananas per hectare.

2. Emergence of the FARC

The Fuerzas Armadas Revolucionarias de Colombia ("FARC") emerged as a violent left-wing guerilla group in Colombia in the 1960s. Along with several other insurgencies, in the mid-to-late 1980s, the FARC expanded its operations into the rural banana-growing regions of Colombia, where it terrorized the countryside with ransom kidnappings, killings and escalating violence.

From the late 1980s through at least early 1997, the FARC exerted control over the regions of Uraba and Magdalena, where Banadex operated owned-fruit banana farms. During this time, the FARC generated enormous amounts of money from its participation in the Colombian drug trade, and, to a lesser extent, from extortion and ransom kidnappings. The parties dispute the relative amounts generated from the FARC's drug trade as opposed to its kidnapping operations; however it is generally agreed that the FARC conservatively generated more than $100 million annually at the height of its power, making more money than it could spend or launder, and resorting to burying excess cash in the Colombian jungles.

Protection money demands from the FARC and other guerilla groups were so common that payments to them were colloquially known as the "vacuna," the Spanish word for "vaccine." The term was based on the supposition that the payments would help immunize the payor from retaliatory attacks.

In the time period relevant to this case, the FARC had a "top-down" command structure, led by a Central High Command, which was comprised of a Secreteriat (composed of FARC Front commanders) and the Estado Mayor (an administrative, logistics and planning body). FARC Fronts, the equivalent of a battalion or military outfits, were grouped into blocs that corresponded with specific geographic regions in Colombia. The fronts were semi-autonomous, due to the size and topography of Colombia, and generally expected to finance their own activities.

The Secretariat, through the Estado Mayor, decided how money and resources were spent and how much each Front received. The Central High Command also had the authority to order money transfers across Fronts (in addition to ordering transfers of munitions, food and other resources), and resource transfers between Fronts were commonly made. Financially successful Fronts supported less successful Fronts, especially those that operated in areas with fewer opportunities to obtain funds.

The Central High Command implemented financial procedures in 1984-85, expanded upon in April 1993, which generally allowed each Front to control its own funding activities. This was done with the understanding that any excess funds would be forwarded to the Central Command within six to twelve months after conclusion of the operation for which the funds were originally designated. The Fifth Front, the one most active in the banana-growing regions, was credited with collecting approximately two million dollars annually for the FARC's General Secretariat.

3. Chiquita-FARC Interface

As it expanded its "owned-fruit" operations in the Uraba and Magdalena regions of Colombia during the 1980s, Chiquita was aware of the presence of violent guerilla groups in these regions. Chiquita routinely tracked organizational and trend information regarding guerrilla groups "with influence" in the Uraba area, including the activities of the prosperous Fifth Front. It was specifically aware of the FARC presence, the FARC's ideological opposition to the presence of U.S. multi-national corporations in Colombia, and the FARC's notoriety for ransom kidnappings, extortion and killing, and its targeting of U.S. interests in Colombia.

In the 1990s, Chiquita's corporate head of security, Al Bakoczy, circulated security updates incorporating threat reports from the United States State Department and Control Risks, a privately-retained security company, which warned of the escalating terrorist threat posed by guerrillas entrenched in the banana-growing zones of Colombia, including the FARC. Two of the memoranda mentioned two American missionaries who had been kidnapped by the FARC. One memorandum specifically identified Stephen Welsh and Timothy Van Dyke-two of the ATM missionaries involved in this proceeding-as victims. Bakoczy's internal security memoranda also included information regarding the general incidence of attacks, kidnappings, murders and other terrorist activities against U.S. interests committed by the FARC and other guerillas in Colombia.

Chiquita does not deny it was aware of the escalating menace of guerilla groups in Colombia's banana-growing zones as it expanded its owned-fruit operations in those areas. In hindsight, however, it contends that it "underestimated the challenges that guerilla groups would present as their level of activity and violence increased over the years."

In March 1989, Sergio De la Cuesta, the manager of a Banadex farm in Uraba, was approached by a FARC guerilla who demanded $10,000.00. There is no evidence that this demand was accompanied by an ultimatum or specific threat of any kind directed toward Chiquita employees or other persons. De la Cuesta relayed the demand to Charles Keiser, then General Manager of Chiquita's Colombian banana operations. Based on his general awareness of the FARC's reputation as a violent guerilla organization, Keiser testified that he interpreted this demand to mean that noncompliance would result in violence against Chiquita employees, professing to believe "there was a serious risk that the FARC would have killed some of our employees if we did not comply with their demand to pay them money."

Keiser consulted with his immediate supervisor, John Ordman, then Vice-President of Chiquita's Purchased-Fruit Division in Latin America. Ordman, in turn, alerted Robert Kistinger, then Executive Vice-President of Operations in the Tropical Fruit Division located in Chiquita's U.S. headquarters. A meeting at Chiquita corporate headquarters in Cincinnati, Ohio followed, attended by several high-ranking Chiquita executives, including Charles Morgan (General Counsel), Robert Kistinger, and Dennis Doyle (Vice-President and Chief Executive Officer of Chiquita's Banana Group). Keiser testified that he was also in attendance at this meeting, which lasted less than an hour, and ended with a corporate decision to authorize the payment of the money by Banadex to meet the FARC demand. The decision was made with the understanding and expectation that it would not be a one-time payment, and that additional demands for payment were likely to follow.

In the late 1980s, Control Risks issued a memorandum outlining various alternatives available to Chiquita for responding to demands from Colombian guerillas, listing the disadvantages associated with each approach along with a general comment. The options included deployment of security forces, with the aim of entrapping the perpetrators; ignoring or refusing to meet the demands; negotiating the demands to a reduced settlement, or simply withdrawing from Colombia ("selling all or some of the farms") [DE 1405-46 p. 8]. As to the withdrawal option, Control Risks commented, "[t]his option would need a detailed business analysis," and "[t]his may just move the problem over to other farms owned by Grupo Restrepo Arrango."

Control Risks ultimately recommended that Chiquita negotiate for reduced settlements with the FARC. According to Mr. Keiser, Control Risks supported this advice with the warning:

[Y]ou have to pay ... [T]hese people are serious. The military is not able to control them. You can't just turn them in, give their names to someone. Because they will take retribution for that, and you can expect violence ... to your people or assets if you-if you say no...[B]ut even though you need to pay, you should make an effort to negotiate, reduce the payments and drag them out as long as possible....

[DE 1365-1, p. 144]. Control Risks also warned that "[a]ny payment, however small, will set a precedent for the future. However discreetly it is done, it will become known through the extortionists themselves. Further demands are likely to follow and these demands are likely to follow each year."

Chiquita elected to negotiate with the FARC, as recommended by Control Risks, allowing it to continue the expansion of its owned-fruit operations in Colombia. According to John Ordman, the author of the handwritten "no" in the margin of the Control Risk advice memo next to the "sell farms" option, Chiquita rejected the withdrawal option because "[t]here was a business reason to be in Colombia." [Deposition of John Ordman 156: 5-11]. Ordman and Kistinger then decided on the delivery procedure for the first payment: Charles Keiser traveled to Guatemala to meet Ordman; Ordman handed Keiser $10,000 in cash, withdrawn from Chiquita's Honduras General Manager's Fund; Keiser traveled to Colombia and exchanged the cash for Colombian pesos, and Keiser then made arrangements for delivery of the money to the FARC, hidden in a spare tire on the back of a jeep, through a farm manager or other Banadex employee.

The FARC continued to make more money demands on Banadex, as Control Risks predicted, and Banadex continued to meet the demands. Keiser kept Ordman informed of all payments, drawn from Chiquita's Colombian General Manager's Fund, and Ordman kept Kistinger apprised of the payments. In all, Banadex made a series of at least 57 payments to the FARC between 1989-1999. The payments averaged $32,000 per year for a cumulative total of $220,959.16 [DE 1405-19, 93, 62, 94-95]. In comparison, at its peak, Chiquita's payments to all guerilla groups in Colombia, from the mid-to-late 1990s, totaled about $100,000 to $200,000 per year.

Chiquita hired professional negotiators, as independent contractors, to negotiate with and deliver cash to the guerillas at off-farm locations. It sometimes used lawyer intermediaries, including Rene Osorio, to negotiate with FARC guerillas, resulting in smaller payments and less interruption to Banadex farming operations. Eventually, Chiquita negotiated a "one-time deal" with the FARC for protection of its entire group of owned-fruit farms in Colombia, obtaining what Mr. Keiser likened to a "volume discount."

Banadex paid the FARC's 5th and 19th Fronts, and at least four of its FARC payments were made after October 8, 1997, the date the United States State Department designated the FARC as a Foreign Terrorist Organization.

4. Motivation

Chiquita contends its decision to pay the FARC was motivated solely by a need to protect the safety of its employees on the ground in Colombia. Chiquita asserts it perceived its employees would be at risk of retaliatory attack if Banadex refused to pay, regardless of whether Chiquita stayed or withdrew from Colombia. It claims it authorized Banadex to pay only "to the extent necessary to prevent violent retaliation against employees," and did so in the face of an immediate and credible guerilla threat to its personnel and infrastructure in Colombia, knowing that ignored guerilla demands were historically met with swift retaliatory violence.

For example, it references a 1994 bombing of a Banadex wharf in Uraba perpetrated by another guerilla group, the "ELN," which followed Banadex's refusal to comply with its money demand on a mistaken belief that particular group did not pose a credible threat in the region. It also references a 1997 incident where FARC affiliates burned down the packing station of a Banadex farm in Magdalena, and shot two Banadex employees, after Banadex ignored a FARC money demand on a mistaken belief the group was not strong enough there to pose a credible threat.

Chiquita never sought assistance from the United States or Colombian governments in its dealings with the FARC. Chiquita contends this would have been a futile, and possibly, dangerous, exercise, as the guerillas were notorious for carrying out violent retaliatory attacks, and the Colombian government lacked the resources, in any event, to protect its employees and infrastructure effectively from the threat of guerilla warfare. On one occasion, in or around 1999, however, a Chiquita subsidiary did contact a local police department for assistance in dealing with a guerilla demand, and agreed to participate in an entrapment effort. The plan was botched, however, and two policemen nearly kidnapped when they tried to ambush the guerillas at the payment drop.

Plaintiffs dispute that the Colombian government lacked a meaningful ability to repel guerilla threats and extortion demands, and dispute Chiquita's claim that its decision to pay the FARC was motivated purely by a desire to protect its employees from guerilla violence. Plaintiffs contend the FARC guerilla payments were also meant to protect Chiquita infrastructure and obtain assistance with labor issues [DE 1405-16, 1405-53, DE 1405-46], and that Chiquita's decision to negotiate with the FARC was, at best, the product of a ruthless cost/benefit analysis which accepted a guaranteed human toll (as long as it occurred off-premises) as an unfortunate but necessary cost of doing business in the fertile banana-growing zones of Uraba and Magdalena. In this regard, Plaintiffs again cite the testimony of John Ordman that "[t]here was a business reason to be in Colombia." Charles Keiser and Robert Kistinger similarly testified that paying the FARC was viewed as a "cost of doing business" in Colombia. They viewed the amounts paid to the FARC as "insignificant in terms of the overall budget" for Chiquita's Colombian operations, and never so high that economically it no longer made sense to do business in Colombia. As Kistinger explained, "We're not going to stop doing business in Colombia because, you know, we're going to have to spend an extra $25,000 [on guerilla payments]. That's not realistic. Right?"

Chiquita never considered leaving Colombia as an alternative to paying the FARC during the nine years of its financial relationship with this guerilla group. It acknowledged the company could have withdrawn from Colombia during that time, but from a strategic standpoint, felt doing so would have been a "massive blow" to the company.

5. Payment Methodology

Control Risks recommended the exercise of "absolute discretion" in making the FARC payments in order to avoid retaliatory strikes by rival guerilla groups. Chiquita contends this advice prompted its decision to implement a secret coding system for disguising Banadex payments to the FARC and other guerrilla groups. Thus, between 1990 and 1997, Chiquita's accounting procedures included use of a secretly coded "1016" form to initiate disbursements from Banadex to any guerilla group. The form was signed by Charles Keiser, or, in his absence, by Juan Manuel Alvardo, Banadex Director of Security between March 1992 and October 1999.

The 1016 forms were filled with specially designated characters, including color codes and other code words known only to relevant personnel. This was done so that the recipient of a payment would not be readily discernable to local Banadex employees handling the forms, or anyone beyond a small circle of authorized personnel, which included members of Chiquita's internal legal and accounting departments in Cincinnati, Chiquita's external auditors (Ernst & Young), and a small group of Chiquita executive management members and regional Banadex managers.

Banadex payments to guerilla groups were always made in cash. Mr. Keiser estimated the annual cost of payments to terrorists and included that number in budget forecasting for the following year. The FARC payments were specifically included in the company's operating budget, and were taken into account in calculating the production cost per box of bananas sold.

In 1997, Keiser met with the head of a right-wing Colombian paramilitary organization, the Autodefensas Unidas de Colombia ("AUC"), who advised that the AUC intended to "squeeze the FARC out of the (banana-growing) regions." Chiquita was advised that it would need to pay the AUC or "nobody [would] protect" it. Chiquita agreed to pay, and for a time, simultaneously paid both the FARC and the AUC. Shortly after Chiquita started making payments to the AUC, the FARC began attacking Chiquita's infrastructure in Colombia. Banadex payments to the FARC eventually slowed and ceased altogether in 1999. Chiquita's funding of the AUC, consisting of a series of over 100 payments, continued up through February 4, 2004.

6. Kidnappings and Killings of New Tribes Missionaries

The families of David Mankins, Rich Tenenoff and Mark Rich arrived in South America between 1986 and 1992 to do missionary work on behalf of New Tribes Mission (NTM), an international Christian mission organization, in the remote village of Pucuro, Panama-approximately 15 miles from the Colombian border. Pucuro is approximately 65 miles from the banana-growing region of Uraba, and about 300 miles from the banana-growing region of Magdalena.

The families of Stephen Welch and Timothy Van Dyke, arrived between 1984 and 1989, and settled in the NTM school (the "Finca") and compound near Villavicencio, in central Colombia. Villavicenio is approximately 330 miles from the banana-growing region of Uraba, and about 455 miles from the Magdalena region.

Mankins, Tenenoff and Rich were kidnapped from their homes in Panama by armed FARC members on January 31, 1993. A year later, on January 13, 1994, FARC guerrillas raided the Finca compound and kidnapped Messrs. Welsh and Van Dyke. At the time of both kidnappings, the captors identified themselves to the victims' wives as members of the FARC. The FARC later demanded a ransom of $5 million for Messrs. Rich, Tenenoff and Mankins, and $3 million for Messrs. Welsh and Van Dyke. New Tribes Mission assembled a Crisis Management Committee, comprised of members of the NTM, private consultants and FBI negotiators. NTM Committee members engaged in negotiations directly with the kidnappers via radio, and also reached out to the International Red Cross and members of Congress for assistance.

NTM offered to pay $10,000 to the Pucuro kidnappers for the release of all five men, and in the course of negotiations in 1996, paid more than $2,000 to the FARC through an intermediary. All five men ultimately died in captivity. Messrs. Welsh and Van Dyke were killed in June 1995 in a confrontation between the FARC and Colombian military, an event then promptly reported to their families. There is evidence that the FARC's 53rd Front was responsible for the kidnapping and murders of Messrs. Welsh and Van Dyke.

Messrs. Rich, Tenenoff and Mankins were killed in 1996, but their bodies were never recovered. Up through January 1998, NTM received conflicting reports on whether these three Panamanian missionaries were dead or alive. Ultimately, NTM concluded, based on its inability to restore communications with the kidnappers and various investigatory reports, that these men had been killed in 1996, and presented this information to the families in 2000. The Panamanian missionaries were declared dead in 2001, and death certificates issued in 2004. In a report issued in 2007, at NTM's request, the Colombian National Prosecutor concluded these three men had been murdered in mid-1996, and implicated the 57th Front in the kidnappings and killings. However, FBI and State Department reports suggest involvement of FARC's 34th Front in the initial abduction, with a later transfer of the hostages to the custody of FARC 5th Front, and then to the 57th Front [DE 1404-28 through 1404-34].

7. Kidnapping and Killing of Frank Pescatore

Frank Pescatore, Jr., was an American geologist and part owner and vice-president of GeoMet, Inc. GeoMet was an Alabama-based oil and gas exploration company involved in energy development projects in the United States and overseas. Mr. Pescatore traveled to the northeastern state of La Guajira, Colombia in December 1996 to work on a coal-bed methane development project for GeoMet. On December 2, 1996, Mr. Pescatore was held up at gun point while en route to the project, but his entourage successfully repelled the attackers.

On December 10, 1996, Mr. Pescatore was kidnapped at the GeoMet project site in La Guajira, which is about 340 miles from the banana-growing region of Uraba, and 100 miles from the banana-growing region of Magdalena, Colombia. His kidnappers demanded $2.5 million from GeoMet, in addition to a tax levy on gas production. GeoMet retained a hostage crisis management firm, Corporate Risk International (CRI), for advice in handling the demand; there were, however, no negotiations for his release.

GeoMet also contacted the FBI and Colombian police, and Mr. Pescatore's family contacted the U.S. embassy, members of Congress and other government officials. Mr. Pescatore was ultimately shot and killed by his captors during an attempted escape, and his body was later found with a single bullet wound to the chest on February 23, 1997. In July 1998, the FARC's 59th Front (part of FARC Caribbean bloc) sent a letter on 59th Front letterhead, claiming responsibility for Pescatore's death and demanding money from GeoMet as the cost of maintaining a business presence in Colombia. GeoMet refused to pay and withdrew from all Colombian operations. It never informed the Pescatore family members about the letter or events that occurred after Pescatore's death, believing it would be too emotionally upsetting for them. In April 2004, the FBI advised the Pescatore family that the FARC Caribbean Bloc claimed responsibility for the kidnapping and killing, and that its commander, Simon Trinidad, had been involved. The FARC fronts which Chiquita funded between 1989 and 1990 were part of the Caribbean Bloc.

8. U.S. Government Intervention

In the late 1990s, the United States Securities and Exchange Commission (SEC) conducted an unrelated investigation into suspected bribery payments made by a Banadex employee to Colombian customs officials. As part of that investigation, a number of Chiquita employees testified before the SEC about Chiquita's history of payments to the FARC and other guerilla groups, and the manner in which those payments were recorded in Banadex's books and records.

While the FARC payments were not the subject of the SEC investigation, the topic came up when witnesses testified that local custom official payments went undetected for a time under supposition that the transfers were just "routine payments" to guerilla groups. Ordman was the only executive who mentioned the FARC payments in non-public testimony given to the SEC, without detail as to a time frame or amounts of the payments. At the conclusion of its investigation in 2001, the SEC published a Litigation Bulletin announcing that Chiquita would pay a fine for a Foreign Corrupt Practices Act (FCPA) violation based on Banadex's customs official bribery; however, this notice made no mention of Chiquita's payments to the FARC or other Colombian guerilla groups.

From 1995 to the early 2000s, Chiquita's public SEC filings contained general disclosure of "risks that are inherent in operating in Central and South America," without any specific reference to guerilla payments. In 2003, its SEC filings became more detailed, revealing "threats to employees, political instability and terrorist activities, including extortion and risks of action by U.S. and foreign governmental entities," and stating "[s]hould such circumstances occur ... the Company might need to curtail, cease or alter its activities."

In 2004, Chiquita issued a public statement generally indicating it made "protection payments" to illegal Colombian groups, without specifying which groups it had paid and without specific mention of the FARC. In a statement published on May 12, 2004 in the Cincinnati Post, Chiquita revealed that its Colombian subsidiary, Banadex, had made payments to guerillas in Colombia, again without stating the amount or recipients of the payments, or indicating how long the payments had continued.

On September 10, 2001, the United States government designated the Autodefensas Unidas de Colombia (AUC) as a foreign terrorist organization (FTO). In February 2003, a Chiquita employee relayed this information to a high ranking Chiquita officer. In April 2003, Chiquita's Board of Directors agreed to self-report Banadex's AUC payments to the U.S. Department of Justice.

During the pendency of the criminal investigation which followed, on or about February 21, 2003, Chiquita's outside counsel advised that the payments to the AUC, then a designated FTO, were illegal, and should stop immediately; notes from a March 10, 2003 meeting summarize counsel's further admonition, "You voluntarily put yourself in this position. Duress defense can wear out through repetition. Buz [business] decision to stay in harm's way. Chiquita should leave Colombia." [D.C. Factual Proffer][DE 1405-62, p. 12].

Chiquita's payments to the AUC continued up through February 4, 2004. By May 2004, Chiquita sold Banadex and no longer owned any farms in Colombia, although it continued to rely on local growers for its fruit supply.

In March 2007, Chiquita pled guilty in the District of Colombia to one count of engaging in transactions with a specially-designated global terrorist (the AUC) and paid a $25,000 million fine. United States v. Chiquita Brands International , 1:07-CR-00055 (D.D.C.). In conjunction with this plea, the government filed a factual proffer, signed by Chiquita's counsel. The factual proffer identified numerous Chiquita executive decision-makers involved in authorizing payments to the AUC and other terrorist groups in Colombia, including the FARC and ELN, over the span of more than a decade. According to Plaintiffs, this is the first time Chiquita's financial support of the FARC and other Colombian guerilla groups became public, and Plaintiffs' first notice of Chiquita's role in the funding of Colombian terrorist groups responsible for the killing of their family members.

The parties dispute whether Chiquita had an obligation to publish this information earlier. Chiquita contends it had no such obligation, and that the books of its Colombian subsidiaries, containing the secret coding for guerilla payments, were never a matter of public record. Plaintiffs contend, under operation of Generally Accepted Accounting Principles and Generally Accepted Auditing Standards, that Chiquita was required to disclose in its financial reports the existence of illegal payments, such as those made to the FARC, because these payments represented "qualitatively material risks," or at a minimum, would be information material to a reasonably prudent investor. Plaintiffs buttress this proposition with expert opinions of its accounting expert, Antonio Argiz, which, as discussed at the time of oral argument, the Court found admissible on the limited issue of whether Chiquita's failure to disclose the information earlier represented a deviation from acceptable accounting and auditing standards.

B. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the moving party shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and it is genuinely in dispute "if the [record] evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

The moving party carries its initial burden of proof by "identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). If this burden is met, "the non-moving party [must] go beyond the pleadings ... and designate specific facts in the record showing that there is a genuine issue for trial." Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 584-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts").

Where a summary judgment motion relates to issues on which the non-moving party will bear the burden of proof at trial, "the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim in order to discharge its initial burden. Fitzpatrick , 2 F.3d at 1115 (emphasis in original). Instead, the moving party simply may show-that is, point out to the district court-that there is an absence of evidence to support the non-moving party's case." Id. at 1116. In this scenario, the non-moving party can avoid summary judgment only by showing the existence of a genuine issue for trial on each element of its claim or defense, i.e. the burden is on the non-moving party to point to or adduce evidence which would be sufficient to withstand a directed verdict at trial. Fitzpatrick , 2 F.3d at 1116-17.

In analyzing a motion for summary judgment, the court must view all of the evidence and all reasonable inferences in the light most favorable to the non-moving party. Ocheesee Creamery LLC v. Putnam , 851 F.3d 1228 (11th Cir. 2017). The determinative inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Ziegler v. Martin County School. District, 831 F.3d 1309 (11th Cir. 2016). A court need not permit a case to go to a jury when the inferences that are drawn from the evidence, and upon which the non-movant relies, are "implausible."

Cuesta v. School Bd of Miami-Dade County , 285 F.3d 962, 970 (11th Cir. 2002). Nor are conclusory allegations based on subjective beliefs sufficient to create a genuine issue of material fact. Leigh v. Warner Bros., Inc. , 212 F.3d 1210, 1217 (11th Cir. 2000).

Ultimately, the standard for summary judgment is "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving] party is entitled to a verdict." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. In making this assessment, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255, 106 S.Ct. 2505. With these precepts in mind, the examination turns to the legal issues and corresponding factual proofs framed by the parties' competing summary judgment motions in this case.

C. STATUTORY FRAMEWORK

The Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333(a), authorizes "[a]ny national of the United States injured in his or her person ... by reason of an act of international terrorism, or his or her estate, survivors, or heirs" to sue "in any appropriate district court of the United States and ... recover threefold the damages he or she sustains." Liability under the ATA has three elements: (1) unlawful action, i.e. an "act of international terrorism;" (2) the requisite mental state, and (3) causation. Sokolow v. Palestine Liberation Org. , 60 F.Supp.3d 509, 514 (S.D.N.Y. 2014).

The statute defines "international terrorism," at § 2331(1), as activities that:

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended-

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

18 U.S.C. § 2331(1).

The civil liability provisions of the ATA thus incorporate by reference a broad range of state and federal crimes that may qualify as "act(s) of international terrorism," actionable under the ATA, if a plaintiff can show that the defendant committed a predicate crime which satisfies all criteria listed in § 2331(1) (A) through (C) -that is, if plaintiff can show that (1) the predicate crime involved violent acts or acts dangerous to human life ( § 2331(1)(A) ); (2) the predicate crime objectively appeared to be intended to intimidate or coerce a civilian population, or to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by destruction, assignation or kidnapping (i.e. if the predicate crime satisfies at least one of the three intent requirements enumerated at § 2331(1)(B) ), and (3) the predicate crime occurred outside the boundaries of the United States, or transcended national boundaries by the means in which accomplished ( § 2331(1)(C) ). Gilmore v. Palestinian Interim Self-Government Authority , 53 F.Supp.3d 191, 200 (D.D.C. 2014) (quoting Estate of Parsons v. Palestinian Authority , 651 F.3d 118, 122 (D.C. Cir. 2011).

1. Limitations

The ATA incorporates two express limitations. First, it contains a ten-year statute of limitations. 18 U.S.C. § 2335 (a). Second, it expressly exempts "acts of war" as actionable conduct. 18 U.S.C. § 2336 (a). The statute makes no mention of any other affirmative defenses, and it makes no distinction between voluntary and involuntary conduct in defining an "act of international terrorism" which is actionable under the statute.

Against this backdrop, Plaintiffs question, as a threshold matter, whether Chiquita carries its initial burden of demonstrating that duress is a valid legal defense to a civil ATA claim. As Congress did not specifically exempt conduct under duress (or otherwise exempt involuntary conduct) from the scope of the Act, Plaintiffs posit no such exemption should be implied. This construction draws from the well-established interpretative canon, "expressio unius est exclusio alterius ," i.e. expressing one item of [an] associated group or series excludes another left unmentioned," Chevron U.S.A., Inc. v. Echazabal , 536 U.S. 73, 80, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002), applicable when the contextual "circumstances support [ ] a sensible inference that the term left out must have been meant to be excluded." N.L.R.B. v. SW General, Inc. , --- U.S. ----, 137 S.Ct. 929, 197 L.Ed.2d 263 (2017). This question may be reframed, more narrowly, as an inquiry into the viability of duress as a legal defense to the specific ATA predicate crime charged in this case-a specific intent 2339A violation based on the knowing or intentional facilitation of terror-related murder (murder of American citizens abroad).

The question of whether Congress intended to allow a duress defense to a Section 2339A material support crime based on the knowing or intentional facilitation of terror-related murder, as charged here, raises an intricate policy-laden question of statutory interpretation, juxtaposed against longstanding common law precedent which universally excluded duress as a defense to intentional homicide, a rule extended in some jurisdictions to cases of attempted murder and the aiding and abetting of murder. The Court ultimately finds is unnecessary to reach this question here, however, because it concludes, on the evidentiary record presented, that Chiquita fails to carry its burden of showing the existence of a genuine issue of material fact on each element of the defense, and necessarily suffers summary judgment upon it.

2. Primary Liability

In Boim III , the Seventh Circuit held, agreeing with the reasoning in Central Bank of Denver N.A. v. First Interstate Bank of Denver , 511 U.S. 164, 183, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1944), that "statutory silence [in section 2333(a) ] on the subject of secondary liability means there is none." Boim III , 549 F.3d at 689. The Boim majority reasoned that reading secondary liability into Section 2333(a) would enlarge the federal courts' extraterritorial jurisdiction, without a clear manifestation of a corresponding legislative intent, and hence concluded that the ATA, by its terms, does not authorize secondary liability. Id. at 690. Accord Rothstein v. UBS AG , 708 F.3d 82, 97 (2d Cir. 2013) (comparing related criminal provisions of ATA, where Congress explicitly authorized secondary liability).

At the same time, the Boim III majority recognized that the ATA, by its "chain of incorporation by reference," effectively "impose[s] [primary] liability on a class of aiders and abettors," id. at 692, and, further noting that conspiracy liability is effectively incorporated into each of the several material support statutes (2339A, 2339B and 2339C), any one of which may serve as a predicate "act of international terrorism," concluded that the express statutory limitation on secondary liability is "practically irrelevant" in the end analysis. Id.

This Court, following Boim III and Rothstein , previously held that secondary liability is not supported under the ATA [DE 62]. Because § 2333(a) supports only primary liability, a successful ATA plaintiff must allege and prove that the defendant directly committed an "act of international terrorism" which caused the plaintiff's injuries.

3. General Mens Rea

Although the statute does not contain an express intent requirement, in light of the ATA treble damages provision, some courts hold that the statute minimally requires some kind of deliberate misconduct by the defendant, i.e. a showing that the defendant knew or was deliberately indifferent to the fact that it was providing material support to a foreign terrorist organization. Boim III , 549 F.3d 685, 692-693 (7th Cir. 2008) (en banc) (defendant must have knowledge of terrorist group's designation as an FTO, or knowledge that the organization engaged or engages in terrorist activity); Strauss v. Credit Lyonnais, S.A. , 925 F.Supp.2d 414, 428 (E.D.N.Y. 2013) ; Goldberg v. UBS AG, 660 F.Supp.2d 410, 428 (E.D.N.Y. 2009).

This means that while § 2333 requires at least reckless misconduct, as a general mens rea , see Boim III , an ATA plaintiff will additionally need to show varying levels of scienter depending on the underlying criminal violation which is alleged to constitute the predicate "act of international terrorism," see e.g. Gill I , at 362 ; Goldberg , 660 F.Supp.2d at 427-28, in addition to one of three intent elements prescribed at § 2331(1)(B).

Also, an ATA plaintiff needs to satisfy the "appears to be intended" objective intent requirement imposed under section 2333(1), defining "acts of international terrorism." In Boim III, the Court reasoned that a material support violation under 2339A, by definition, would foreseeably enhance the ability of a known terrorist group to inflict more terror, and would, for this reason alone, objectively "appear to be intended" to intimidate or coerce a civilian population or influence a government:

A knowing donor to Hamas-that is, a donor who knew the aims and activities of the organization-would know that Hamas was gunning for Israelis ... that Americans are frequent visitors to and sojourners in Israel, that many U.S. citizens live in Israel ... and that donations to Hamas, by augmenting Hamas's resources, would enable Hamas to kill or wound, or try to kill, or conspire to kill more people in Israel. And given such foreseeable consequences, such donations would "appear to be intended... to intimidate or coerce a civilian population" or to "affect the conduct of a government by ... assassination..."

Id. at 694.

4. Section 2339A -A Specific Intent Crime

Plaintiffs allege that Chiquita's decision to pay the FARC violated 18 U.S.C. § 2339A, one of the criminal material support statutes. Section 2339A criminalizes the provision of "material support or resources" "knowing or intending that they are to be used in preparation for, or in carrying out," a violation of one or more of the terrorism-related crimes enumerated in the statute, including, as relevant here, the murder of United States nationals abroad. 18 U.S.C. § 2339A (a) (enumerating 18 U.S.C. 2332 (a) (1) ). See e.g. Boim v. Holy Land Foundation for Relief and Development (Boim III), 549 F.3d 685, 692-93 (7th Cir. 2008) (en banc ); Gill v. Arab Bank, LLC (Gill I ), 893 F.Supp.2d 474, 503 (E.D.N.Y. 2012) ; Wultz v. Islamic Republic of Iran , 755 F.Supp.2d 1, 42 (D.D.C. 2010) ; Goldberg v. UBS AG , 660 F.Supp.2d 410, 428 (E.D.N.Y. 2009).

In Boim III , the plaintiffs were the parents of an American-Israeli teenager shot at a bus stop in Israel by a Hamas terrorist. The parents sued various Islamic charities that allegedly provided money to Hamas. One of the defendants directly gave money to Hamas, while another made donations to another defendant that channeled the money to Hamas. Like Plaintiffs in the case at bar, the Boim III plaintiffs alleged that the defendants violated the ATA by providing material support to terrorists in violation of § 2339A.

The Seventh Circuit concluded that giving money to a known terrorist group, such as Hamas, is "like giving a loaded gun to a child," and, as such, constitutes an "act dangerous to human life," within the meaning of § 2331(1)(A). Boim III , 549 F.3d at 690 (quoting 18 U.S.C. § 2331(a) ). It also found donations made to Hamas would violate 18 U.S.C. § 2339A, which makes it a federal crime to "provide [ ] material support or resources ... knowing or intended that they are to be used in preparation for, or in carrying out," a violation of specified criminal statutes, including 18 U.S.C. § 2332, which, in turn, makes it a federal crime to kill, attempt to kill, conspire to kill, or inflict serious bodily injury on a United States citizen abroad.

Through this chain of "statutory incorporations by reference," the Court found a § 2339A material support violation may support primary liability under the ATA. Boim III , 549 F.3d at 690. The first link in the chain is § 2333(a), which provides a civil cause of action for injuries suffered by reason of an "act of international terrorism." The second link is § 2331, which defines an "act of international terrorism" to include activities that involve "acts dangerous to human life" and which are also violations of the criminal laws of the United States, 2331(1)(A), provided they also "appear intended ...to intimidate or coerce a civilian population" or "to influence the conduct of a government by ... assassination." 2331(1)(B). The third link is the predicate criminal violation, in this case, a material support violation under Section 2339A, directly attributed to Chiquita; finally, the fourth link is one of the enumerated terror-related crimes, in this case, 18 U.S.C. § 2332(a), (b) (killing or conspiring to kill U.S. nationals abroad), the crime allegedly facilitated (prepared for or carried out) with funds supplied by Chiquita.

As noted, 18 U.S.C. § 2339A proscribes "provid[ing] material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out" [various enumerated federal crimes] ... or attempting or conspiring to do such an act." Section 2339B -not charged here-deals with material support for organizations that have been formally designated as foreign terrorist organizations by the United States Secretary of State. It provides that "[w]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so," shall be guilty of a crime. 18 U.S.C. § 2339B.

Both sections define "material support or resources" in the same way, but Section 2339A requires proof of a heightened mens rea. To be liable under 2339A, the defendant must have provided the support or resources acting with the knowledge or intent that the support would be used in preparation for, or in carrying out, specific terror-related crimes. United States v. Mehanna , 735 F.3d 32 (1st Cir. 2013), citing United States v. Steward , 590 F.3d 93, 113 (2d Cir. 2009). Thus, the mental state required under § 2339A"extends both to the support itself, and to the underlying purposes for which the support is given," Mehanna , at 43, and an ATA plaintiff proceeding on a 2339A predicate must show evidence of the defendant's specific knowledge of, or intent to further, the specified underlying crime. United States v. Awan, 459 F.Supp.2d 167 (E.D.N.Y. 2006), aff'd, 384 Fed. Appx. 9 (2d Cir. 2010), cert. den. , 562 U.S. 1170, 131 S.Ct. 969, 178 L.Ed.2d 806 (2011).

In other words, in contrast to § 2339B, which broadly criminalizes the provision of "material support" to formally designated foreign terrorist organizations, and requires knowledge about the organization's connection to terrorism, but not a specific intent to further its terrorist activities, see Holder v. Humanitarian Law Project , 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), Section 2339A"raises the scienter requirement" and criminalizes material support only where the defendant acts with actual knowledge or intent that the support will be used to prepare for, or carry out, certain terrorism-related crimes. Awan, 459 F.Supp.2d at 179.

So, where § 2339A serves as the predicate ATA crime, an ATA plaintiff must prove that the defendant acted with the specific knowledge or intent that its support would be used in preparation for, or in carrying out, one of the enumerated terrorism-related crimes. On the other hand, it is not necessary for an ATA plaintiff to show the defendant's "specific intent to aid or encourage the particular attacks that injured plaintiffs." Wultz v. Islamic Republic of Iran , 755 F.Supp.2d 1, 45 (D.D.C. 2010) (emphasis added); Strauss v. Credit Lyonnaais , 242 F.R.D. 199 (E.D.N.Y. 2007), citing Linde v. Arab Bank LLC ("Linde I) , 384 F.Supp.2d 571, 586 n. 9 (E.D.N.Y. 2005) (none of the material support statutes [ Sections 2339A, B or C] requires a specific intent to commit specific acts of terrorism).

5. Proximate Cause

The ATA authorizes suit for treble damages by any United States national injured "by reason of" an act of international terrorism. This phrase has been interpreted to require a showing that the defendant's conduct (the alleged ATA predicate crime) was the proximate cause of the plaintiff's injuries.

In re Terrorist Attacks on Sept. 11, 2001 , 714 F.3d 118, 123 (2d Cir. 2013) ; Wultz v. Islamic Republic of Iran , 755 F.Supp.2d 1, 42 (D.D.C. 2010) ; Burnett v. Al Baraka Inv. & Dev. Corp. , 274 F.Supp.2d 86, 105-106 (D.D.C. 2003) (same).

Proximate cause is a "judicial tool" used to limit a person's responsibility for the consequences of that person's own acts, Gill v. Arab Bank PLC, 893 F.Supp.2d 542, 555-56, a fairness restraint on the window of tort exposure. It is an amorphous and "notoriously confusing" concept, dogged by a remarkable lack of consensus on any one definition of what constitutes "proximate cause." CSX Transp., Inc. v. McBride , 564 U.S. 685, 131 S.Ct. 2630, 2642, 180 L.Ed.2d 637 (2011) (applying relaxed standard of proximate cause in action for personal injury under Federal Employers' Liability Act (FELA) ).

Both parties agree that the "by reason of" language of the ATA imposes a proximate cause requirement, but disagree as to what proximate cause in this particular context entails. As the Court of Appeals in the Eleventh Circuit has not yet had opportunity to construe the phrase "by reason of" in the context of adjudicating an ATA claim, this Court must resolve this legal issue before turning to the question of whether a reasonable jury could find that the evidence adduced by Plaintiffs in this case is sufficient to raise a genuine issue of material fact on satisfaction of that standard.

In traditional tort jurisprudence, the "proximate cause" element of a negligence action embraces, at a minimum, "causation-in-fact," meaning there can be no liability in tort unless it be shown that the defendant's act or omission was a cause-in-fact of the plaintiff's claimed injury. This showing, without more, does not establish "proximate cause," but is an essential ingredient in the causation equation. Stahl v. Metropolitan Dade County , 438 So.2d 14 (3d DCA 1983), citing W. Prosser, Handbook of the Law of Torts (4th ed. 1971). The "causation-in-fact" test, in most jurisdictions, starts with inquiry into whether there is "such a natural, direct and continuous sequence" between the negligent act and the plaintiff's injury, that it can be reasonably said, "but for" the act or omission, the injury would not have occurred.

This test is abandoned in favor of the "substantial factor" test, however, in cases involving concurrent causation, i.e. where two or more causes concur to bring about an injury, and it is impossible to prove that the injury would not have occurred "but for" the defendant's conduct. Here, the more flexible "substantial factor" test is employed, requiring a plaintiff to prove that the defendant's alleged act or omission was a material and substantial contributing cause to the injury. Mohr v. Grantham , 172 Wash. 2d 844, 262 P.3d 490, 495 (Wash. 2011) (en banc ); El-Zoobi v. United Airlines, Inc. , 50 N.E.3d 1150, 401 Ill.Dec. 668 (Ill. App. (1st) 2016) ; Stahl at 19, citing Loftin v. Wilson, 67 So.2d 185, 191 (Fla. 1953).

In this context, the term "substantial" is used to denote the fact that the defendant's conduct has such an effect in bringing about the harm as to lead reasonable men to regard it as a cause, i.e., that the defendant's conduct had more than a remote or trivial impact on the circumstances leading up to the cause of the jury. Eisenbise v. Crown Equipment Corp., 260 F.Supp.3d 1250 (S.D