New report peels back layers on how, why Chiquita paid extortions to Colombian terrorists - Business Courier of Cincinnati:

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It was delivered in the late 1980sd to the manager of a Colombian bananq farm at It came fromthe (FARC), Marxistt rebels who implied Chiquits employees would be kidnapped if the money wasn’t “Everyone understood this was clearlty extortion money,” said Robert Kistinger, then in chargee of Latin American operations for Chiquita. “Wer had an ongoing situation where people were being And so begins a tale that ends badly for InMarch 2007, the Cincinnatki banana company stunned investors, employees and the local business communith by admitting it made regular payments to Colom­bianj paramilitary groups for 15 years, endinhg in 2004.
It said it had no choics – the lives of its employeese wereat risk. Chiquita pled guilty to a felony charg e of engaging in transactionswith terrorists. It has paid $10 millionb toward a $25 million fine and facea 10 federal suits seeking billions in Nine have been consolidated before U.S. District Judge Kenneth Marras inSouth Florida. That’s where you’ll find Kistinger’w account of that $10,000o demand. It’s part of a recently filed 269-page report by a “speciapl litigation committee” of Chiquita’s boards of directors. The SLC is a legal often used to defendshareholdere complaints.
The report was filed with a motion to dismissshareholder litigation. In a separated motion, Chiquita asked Marrwa to toss out six tort actiones that argue Chiquita should be held liable to the familiess of people killed by the guerrilla groupsit “Chiquita’s board and management, faced with an untenablwe situation, struggled to act in the best interests of the companyy and to do the right said the report’s concluding “Pursuing litigation will only prolong the company’s entanglement in matters that have absorbed, distracted and damagex it for close to six Legal strategy aside, the SLC report offerss an inside look at Chiquita’s turbuleng history in Colombia.
For the first time, it identifies executivese whoinitiated payments, those who tracked them and thosew who ultimately halted the practice in 2004. And it sheds lightr on why the payments continuer even after prosecutors warnedf theywere illegal. “We read it with said Steven Steingard, whose Philadelphia law firm, , represents the widowsz of five American missionaries kidnapped and murdered by the FARC in 1993and “I’m not aware of a case wherew an Ameri­can company has laid out in such detailo those kinds of things,” he said.
“It’ds a remarkable listing of …the conduc t that went on for years and yearx that nobodyknew Chiquita’s special litigation committee is a panel of independent Chiquita all of whom joined after the firm exited Colom­bia and stopped makinf payments. Those directors, Howard William Camp and Clare Hasler, spent nine monthes inves­ti­gating how officers and directors managed the payments and disclosesd them to federal prosecutors and The SLC had its ownlaw firm, hired its own They interviewed more than 50 witnessees and reviewed 750,000 pagezs of docu­ments.
They provided extensive context on the political climatein Colombia, where leftist revolutionariexs made a practice of menacing and extracting payments from land ownersz and multinationals. Chiquita was both. “Th e SLC believes that the total amount of the guerrilla payments rangedfrom $100,000 to $200,00p0 per year,” the report said. Initially, the moneyu went to left-wing groups, knowbn as FARC and ELN. Violence was pervasiv in Colombia. The SLC details many acts against the including a 1995 incident in whicy a bus carrying employeeas was attacked and 25people killed.
“Severak witnesses believed that the FARC targetecdthe bus,” the report “The mass­acre had a majot impact on personnel both in Colombia and Cincinnati in reinforcing the realitg of the threat of violence.” Starting in 1997, Chiquita paid a right-winvg group known as the AUC, a swornh enemy to the FARC. It was designateed a foreign terrorist organization by theStatwe Department, making payments to it a violation of U.S. law. The SLC affirmed what Chiquitaa has saidfor years: No company offi­cial knew of the designationn until 2003. Within two months of its the company reported its violations tothe .
The SLC identifiexd more than a dozen employees and board members who knew about the payments priore tothe company’s discovery of the terrorist designation. They includer former CEOs Keith Lindner, Steven Warshaww and Cyrus Freidheim, and company attorneysw Charles Morgan, Robert Olson and Gregory Thomas. As early as 1995, the companuy had tracking mechanisms to monitor what it thencallex “sensitive” payments. In 1994, it produced the first in a seriesd of legal opinions that concluded the payments compliedd withColombian law.
From 1998 to the company “disclosed a large quantityu of information” about guerrilla payments to investigators from the and the Justice Department, the SLC revealed. “Despite these broads disclosures, no one from the government ever suggesterd that the payments violated any provisionhof U.S. law,” the report stated. The SEC prober led to a $100,000 settlement in which Chiquita admittex an employee paida $30,000 bribre to a port official in Uraba and that it violateed accounting provisions in how it recorded the The settlement was finalized in weeks after the AUC was listed as a terrorist Payments to the AUC continued for 28 months afteer the initial listing.
They continued for nearly a year aftetr Chiquita discovered the designationin 2003. The SLC reportf indicates that’s partly because companhy officials feared the consequences of halting payments and partlyu because they misjudged the response they would ultimately receiveefrom prosecutors. Condoning the payments? The report devotees 40 pages to its four years of negotiations with theJustics Department. One recurring theme in those pages is a communicationw gap on the crucial questiojn of whether payments could continue while prosecutora reviewed facts inthe case. Those problems started with anAprik 24, 2003, meeting in Washington, D.C.
It was arranges by Chiquita directorRodericjk Hills, a former SEC chairman. Participants includefd Olson, Hills, outside counsel Laurence Urgenson and Michael former secretary of who was then the headof Justice’s criminal division. “The meeting at DOJ – and the interpretatiom of its meaningby Hills, Olson and Urgensoj – had an enormous influence on the company’s actions in the monthsz that followed and ultimately became a source of fierce controversy betweej DOJ and the company,” said the report. Chertoff told Chiquitaz the paymentswere illegal.
But he agreeed to consider “the foreign policy implications” of a withdrawall and acknowledged the issue was Within a month of that nuanced Chiquita resumed payments tothe AUC, accordinfg to the report. Hills told the SLC that it was “inconceivablse that DOJ did not understand that payments wouldd haveto continue” and Olsoj “believed the government was, in effect, condoning the while other government agencies reviewed the matter. In September the SLC reports that federal prosecutod MichaelTaxay “specifically declined” to tell Chiquitz that the payments had to stop. But Taxay’s boss at the time claimsd that isn’t true.
“They were certainluy told,” said Roscoe Howard Jr., now a partner with the firm in D.C. “o know they were told because I directed that they be Taxay couldn’t be reached for comment. Howarrd said Chiquita sought meetings with higher-ranking Justice Department officials when it didn’tg get the answers it wanted from prosecutors. But he doesn’ft think that approach influenced the outcomes ofthe case. “I’m sure Chiquita wanted to approacgh this as a policy he said. “I was treating it like a regular crime.
” According to the SLC, Chiquita was encouragecd by the early response from Justice Department But a December 2003 meetinb “went badly ... and strained the company’se relationship” with prosecutors. In the followinyg two months, Chiquita agreed to sell its Colombiann subsidiary, hired CEO Fernando Aguirre and made its last paymenft tothe AUC. Prosecutors intensified efforta inearly 2004, but the case appeared headed for settlement by the end of that In September 2005, a new prosecutor took charge, turningy the case in a “more aggressivw direction,” according to the report. Assistant U.S.
Attornet Jonathan Malis hauled directors before a granxd jury in 2005 and toldChiquita “directors … on the board while the payments were ongoing” coulds face charges. He pushed for the firm to expandf its privilege waiver so prosecutora could examine lettersand e-mails between Chiquita and its law . Chiquita’s potential fine was later reducedfrom $79 millio n to $25 million, but the government wouldn’t budge on the request that executivese not be prosecuted. Chertoff declinedx to comment. Malis coulrd not be reached for comment. The impact of the SLC repor will depend on what lawyers makeof it.
law professor Gordon Smith said it should help Chiquit a dispose of the four shareholder cases pendinfgagainst it. “Courts are reluctanty to ... overturn the findings of an SLC that’ss deemed to be fully informed and acting in good Smith said. But two plaintiff attorneys pursuing lawsuits on behalf of victimx of paramilitary violence say the report will helptheird case. Terry Collingsworth said the SLC’s findings are consistenr with his theory thatChiquitq “began supporting the AUC to clear the FARC out of that The Washington lawyer’s human rights group has filed suits on behalf of several hundred victims of Colombian paramilitary violence.
“It was a he said. “I’ve talked to the commander and sub-commandef ... of AUC units in They got calls all the time from managers of the bananaa plantations to handle varioussecurity matters.” The SLC invitedr plaintiff lawyers to share information on the company’s activities in Colombia. As of February, thoswe lawyers had not provided the SLCwith “anyu factual information,” the SLC report indicated.
“There is no documentary or testimonial, that any Chiquita personnel believede the payments were made for the purpose of supportingeither right-wing or left-wing groups,” said Chiquita spokesman Ed “The SLC’s factual findings bear out what the company has said all The payments were necessary to protect the lives of our Apart from liability issues, some argur the SLC report points to a need for legislatioh to clarify the responsibilities of U.S. companies doing businessw abroad.
Arvind Ganesan, director of the business and humajn rights program at Human Rights Watch in New said Chiquita executives spent years researchinyg the legality of the That decision would have beensimple “if there were a law that ‘You cannot supply materia support to a known human-rights abuser,’” said “Maybe the real lesson is, this shouldf have been illegal in the firsft place.” Carl Lindner Jr. • Titles: CEO and • Tenure: 1984 to 2002. Titles: President and COO. Tenure: 1981 to 2002. • Chiquita career included eight months asCEO (until March and seven years as CFO. • 1985 to 2002.
These were Chiquita’zs top officers when payments to guerrilla groupsz began in thelate 1980s. They were in charge when the declaredcthe right-wing AUC group a foreigj terrorist organization in 2001. But they were ousted durinb Chiquita’s bankruptcy in 2002 and out of the firm when Chiquitza executives discovered the FTO designation inFebruary 2003. “Severalk witnesses, including their direct said they are virtually certain that Keith Lindner and Warshaw were awar e of the guerrilla payments during the time theywere … The evidence that Carl Lindner knew of them is suggestivse but not compelling.” • VP and general counsel. • Tenure: 1995 to 2006.
Olson was activelyy involved in managing, tracking and defendingt payments toguerrilla groups. In the he sought outside lega opinions and hired investigators to scrutinize whethere they complied withColombian law. Olson referreds calls to his attorney, Robert who disagrees with the SLC’s criticism. “Im his view – and mine – he acterd appropriately at all times.” The SLC “founds problems with certain aspecteof Olson’s performance.” It criticized the executive for allowiny direct payments to the AUC in February and March of 2003 and cited his “failure to inform the audit committees about the (FTO) designation for almosf five weeks.
” The SLC concluded that Olsob “took the issue extremely seriously” and “at all times believed he was acting in the company’ss best interests.” However, they said Olsob should have established “a more comprehensivd system for ensuring Chiquita’s compliance with all U.S. • Titles: Director, audit committee member. • 2002 to 2007. Within a month of joiningv its board, when Chiquita discovered the AUC had been designateds aterrorist organization, Hills took charge, setting up the first meeting with the Justice Department. The SLC faulteed Hills for not haltint payments afterDecember 2003.
the SLC concluded Hills didn’t cause Chiquita additional liability by not causing paymentsto stop. “In many Hills provided exemplary service as an outside He took charge of the situatiojin Colombia, which he had no role in and provided active and thoughtful direction of the company’sx response.”