Case 0:08-md-01916-KAM Document 2471 Entered on FLSD Docket 05/31/2019 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 08-01916-MD-MARRA
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`IN RE: CHIQUITA BRANDS
`INTERNATIONAL INC. ALIEN TORT
`STATUTE AND SHAREHOLDERS
`DERIVATIVE LITIGATION
`___________________________________/
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`This Document Relates To:
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`ATS ACTIONS
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`08-80421-CIV-MARRA (N.J. Action) (Does 1-11)
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`18-80248-CIV-MARRA (Ohio Action)
`____________________________________/
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`ORDER AND OPINION
`DENYING NEW JERSEY PLAINTIFFS’ MOTION
`FOR CLASS CERTIFICATION [DE 2290]
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`I.
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`INTRODUCTION
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` This case involves the claims of thousands of Colombian nationals who allege that they or
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`their family members were victims of kidnapping, torture, extrajudicial killings or other human
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`rights abuses during the Colombian civil war at the hands of a violent right-wing paramilitary
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`group with financial ties to a United States-based corporation. More specifically, Plaintiffs
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`contend that Chiquita Brands International, Inc. (“Chiquita’) funneled approximately 1.7 million
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`dollars to the Autodefensas Unidas de Colombia (United Self-Defense Groups of Colombia, or the
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`“AUC”). The AUC is a Colombian terrorist organization believed to have massacred over 100,000
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`persons in Colombia between 1995 and 2006, including over 10,000 civilians living in the fertile
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`Uraba and Magdalena regions where Chiquita operated. The funds provided by Chiquita allegedly
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`enhanced the AUC’s terror capabilities and facilitated its killing campaign in the regions where
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`Plaintiffs and their families lived.
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` After Chiquita’s financial relationship to the AUC and other Colombian terror groups
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`gained significant media attention in March of 2007, when Chiquita pled guilty to making
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`payments to a designated terrorist organization and agreed to pay a $25 million fine in criminal
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`proceedings filed in the District of Colombia, thousands of persons whose family members were
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`allegedly brutalized by the AUC filed suit in the United States seeking to hold Chiquita and various
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`of its executive officers accountable for their alleged role in strengthening the AUC killing
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`machinery.1
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` On February 20, 2008, the Judicial Panel on Multidistrict Litigation centralized six cases in
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`this district and assigned the case to the undersigned. The Panel has since continued to transfer
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`cases from around the country. In addition, a number of cases were filed in this District, and the
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`Court combined those cases with the multidistrict cases. At this time, there are approximately
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`nineteen cases left in this MDL litigation, comprised of Colombian common law tort claims against
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`all Defendants and statutory claims under the Torture Victim Protection Act (“TVPA”), 28 U.S.C.
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`§ 1350 note,2 against various Individual Defendants. Cumulatively, roughly 7500 individuals
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`appear as plaintiffs in these remaining cases. Of these, the New Jersey plaintiffs, Does 1-11, have
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`filed their claims in a representative capacity, pleading a putative class action on behalf of
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`thousands of other unnamed Colombian citizens victimized by the AUC in the Uraba and
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`1 Several American families who lost family members to the FARC, a left-wing guerilla group similarly alleged to
`have received payments from Chiquita, also filed lawsuits in the United States under the Anti-Terrorism Act (“ATA”),
`18 U.S.C. § 2333(a). The ATA cases, originally a subset of cases subsumed within this MDL proceeding, were
`dismissed based on settlement in early 2018. Case Nos. 08-20641 (Julin); 09-80683 (Pescatore) and 11-80402
`(Sparrow).
`2 The TVPA authorizes a civil cause of action against “[a]n individual” for acts of torture and extrajudicial killing
`committed under authority or color of law of any foreign nation. 28 U.S.C. § 1350 note. For purposes of the TVPA,
`an individual acts under color of law “when he acts together with state officials or with significant state aid.”
`Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007) (per curiam).
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`2
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`Magdalena regions between 1995 and 2004, the time period over which Chiquita allegedly paid
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`the AUC and its predecessor.3
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`II.
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`FACT AND PROCEDURAL BACKGROUND
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` The factual and early procedural history of this case is described in prior rulings of the Court
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`and will not be repeated here [DE 1110] [DE 1194] [DE 1733].4 The more recent procedural
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`chronology of the case, as relevant to the instant motion, is highlighted as follows.
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` In November 2016, after the conclusion of an initial dispositive motion round, the Court
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`dissolved its previously-entered discovery stay [DE 1197]. It next solicited a proposed scheduling
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`order from the parties governing pretrial procedures and trial dates for the Florida-filed cases, along
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`with a proposed scheduling order governing pretrial procedures in all other cases subsumed within
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`this MDL proceeding [DE 1246]. Following submission of proposed scheduling orders outlining
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`pretrial and trial procedures for the parties’ bellwether case selections, on April 11, 2017, the Court
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`entered its original Global Scheduling Order which largely tracked and incorporated the parties’
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`stipulated terms while resolving a few areas of disagreement [DE 1361].5 Also in early 2017, the
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`New Jersey Plaintiffs sought leave to file a third amended complaint for the stated purpose of
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`3 On July 7, 2007, Plaintiffs filed their original complaint in New Jersey, Case No. 07-3406 (JAG) naming Chiquita
`as well as various fictitious “Moe” corporations and “Moe” individuals as defendants. The New Jersey Plaintiffs’
`now operative Second Amended Complaint filed in November 16, 2012 [DE 589] names six specific current or former
`employees of Chiquita allegedly involved in the AUC decision-making processes.
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`4 In re Chiquita Brands International, Inc. Alien Tort Statute and Shareholder Derivative Litigation, 190 F. Supp. 3d
`1100 (S.D. Fla. June 1, 2016) (dismissing in part and sustaining in part various state law, federal law and foreign law
`claims against Chiquita and various Individual Defendants); In re: Chiquita Brands International Inc. Alien Tort
`Statute and Shareholder Derivative Litigation, Case 08-MD-1916-MARRA (S.D. Fla. Nov. 29, 2016) (denying motion
`to dismiss based on forum non conveniens); In re: Chiquita Brands International Inc. Alien Tort Statute and
`Shareholder Derivative Litigation, 284 F. Supp. 3d 1284 (S.D. Fla. Jan. 3, 2018) (denying motion for summary
`judgment on Anti-Terrorism Act claims arising out of Chiquita’s alleged support of the Fuerzaas Armadas
`Revolucionarias de Colombia (“FARC”)).
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` 5
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` On September 20, 2018, the Court entered an Amended Global Scheduling Order [DE 2122], pursuant to the parties’
`joint requests [DE 1877, 2116], altering various of these deadlines which, again, did not include a provision governing
`class certification motions.
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`3
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`adding, as named plaintiffs, a sizable group of additional claimants originally travelling as
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`unnamed members of the putative class, in addition to other unspecified “minor clerical changes.”
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`On March 27, 2017, the Court denied that motion, citing the advanced stage of the proceeding and
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`imminent scheduling of the matter for trial [DE 1315].
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` In November 2017, the New Jersey Plaintiffs propounded limited fund class discovery on
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`the Defendant Chiquita, and, failing a satisfactory response, moved to compel the production of
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`that material. The motion to compel was denied as untimely in an Omnibus Order entered March
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`2018 [DE 1856]. Five months later, on August 17, 2018, the New Jersey Plaintiffs first sought
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`leave to file a class certification motion and moved to amend the global scheduling order to
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`incorporate a corresponding briefing schedule [DE 2054] – an item neither side addressed in the
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`originally-proposed scheduling orders. The Court granted this motion, over Defendants’ objection
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`to its timeliness, and imposed a briefing schedule which tracked that governing the dispositive
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`motion briefing agenda then in place for selected bellwether cases on track for trial [DE 2246].
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` Accordingly, on February 15, 2019, the New Jersey Plaintiffs filed the instant motion
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`seeking certification of a “predominance” class under Rule 23(b)(3), or alternatively, an “issue”
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`class under Rule 23(c)(4), against the Defendant Chiquita and various Individual Defendants.6 In
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`support of the motion, Plaintiffs have filed: (1) the affidavit of counsel Melissa Vahsling,
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`purporting to establish the proposed class representatives’ status as AUC-victims, based on
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`Attorney Vahsling’s asserted “personal knowledge” and review of “highly confidential
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`documents” regarding the proposed class representatives. This affidavit, however, does not explain
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`the basis for any personal knowledge of the facts recited, nor does it specifically identify the
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`6 Plaintiffs also purport to reserve the right to seek certification of a limited fund class under Rule 23(b)(1)(B) at
`“some later date” if they are ultimately successful in obtaining information regarding Chiquita’s assets and the
`sufficiency of funds available to pay a judgment in this case [DE 2290, at pp.18-19, f.n. 11].
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`4
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`secondary sources on which the statements are presumably based. It does refer to a review of
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`“highly confidential documents,” described by Bates-stamp number, which purportedly show that
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`Jane Doe 7 and John Doe 7, the proposed class representatives, have “registered” as victims of the
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`AUC with the Colombian authorities under its Justice and Peace Law program, and that the
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`Colombian authorities “have opened an investigation” into the murders of their respective family
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`members. In the case of John Doe 7, the affidavit recites that “an AUC paramilitary has taken
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`responsibility for [his son’s] murder during the Justice and Peace process.”7 Both representatives
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`are alleged to have received administrative payments from the Colombian government as a result
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`of their claims and the apparently still “open investigation[s]” into the murders of their family
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`members [DE 2290-2]; (2) the affidavit of counsel Sean Powers, purporting to authenticate and
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`introduce the following evidentiary matters in support of the class certification motion: (a) the
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`7 The affidavit does not identify the paramilitary who allegedly took responsibility, nor reference the secondary source
`or sources from which the assertion is drawn. It is therefore not possible to decipher from this cryptic reference
`whether a person with personal involvement accepted responsibility for this particular murder, or if this is a reference
`to command responsibility accepted by an AUC leader during the Justice and Peace processes. As described at the
`deposition of AUC leader Salvatore Mancuso, at the commander level, this process involved a general acceptance of
`responsibility for acts of subordinate combatants and was not necessarily based on direct participation or even
`knowledge of the specific underlying crimes. As Mancuso testified, “There are events in which I did not directly
`participate and of which I do not have knowledge. I have to assume responsibility when I’m in the chain of command.
`If some one of those were combatants under my command, we’re responsible for that… [S]pecify for me the time and
`the place and that way I would be able to certify whether or not someone from the Autodefensas under my command
`gave a deposition, declared whether or not he was there at that time …[d]eclare whether or not he was responsible.”
`[Deposition of Salvatore Mancuso, June 15, 2018] [DE 2399-2, pp. 109-110]
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` Plaintiffs’ motion, citing the unsworn allegations of their underlying complaint, amplifies the circumstances attending
`the murder of John Doe 7’s son, contending that “John Doe 7 confronted the AUC about the killing of his son, and
`was told by the AUC that “the AUC were guarding the farm and were responsible for preventing thefts.” [DE 2290,
`p. 6, citing Complaint DE 589 ¶ 204]. Setting aside the hearsay issues with this statement, for purposes of the present
`relaxed evidentiary setting, this statement is not reasonably interpreted as an acknowledgment of AUC responsibility
`for this specific death and is of limited probative value on the issues presented by the current motion.
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`Similarly, with regard to Jane Doe 7, the motion cites to allegations of the underlying complaint for the proposition
`that “the AUC arrived at the home [the victim] shared with Jane Doe 7, dragged him from the house, and killed him
`with a knife.” [Motion DE 2290, p. 5, citing Complaint DE 589 ¶215]. It does not explain how this crime was attributed
`to the AUC or cite any secondary source material implicating its involvement.
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`5
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`United States government’s sentencing memorandum from the 2007 D.C. criminal case; (b) the
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`Factual Proffer entered in the D.C. criminal case; and (c) excerpts from reports generated by
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`Plaintiffs’ retained experts, Professor Oliver Kaplan, Professor Terry Lynn Karl and Col. Carlos
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`Alfonso Velasquez Romero [DE 2290-3].
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` Defendant Chiquita and the Individual Defendants (“Chiquita Defendants”) have filed a
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`Response in Opposition to the Motion [DE 2323], as have the ATS Plaintiff groups represented by
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`Attorney Wolf [DE 2294]. The New Jersey Plaintiffs have filed their Reply [DE 2399]. Having
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`carefully reviewed the motion, proffered evidentiary support, and underlying briefing of all parties,
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`the Court finds the prerequisites to class certification have not been established in this case and
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`denies the motion for class certification.
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`III.
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`NEW JERSEY PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
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`A. THE PROPOSED CLASS
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` The New Jersey Plaintiffs seek certification of a “predominance” class under Rule 23(b)(3)
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`consisting of the following individuals:
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`All persons who were the victims of (or who are the relatives and/or legal
`representatives of decedent victims) of extrajudicial killing; forced disappearance;
`torture; cruel, inhuman, or degrading treatment; kidnapping; rape; forced
`displacement; crimes against humanity; or crimes against civilians constituting war
`crimes committed by the AUC in the banana-growing regions of Uraba and
`Magdalena from 1995 through 2004.
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`[DE 2290, Motion p. 5]. The proposed class representatives are “Jane Doe 7,” whose husband
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`(John Doe 11) was a banana worker and union leader allegedly killed by the AUC in June 1999,
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`6
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`and “John Doe 7,” whose son (John Doe 8) was a banana worker allegedly killed by the AUC in
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`2000 after being accused of stealing from a banana farm in Uraba [DE 2290, Motion pp. 5-6].
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` The New Jersey Plaintiffs alternatively seek certification of an “issues” class under Rule
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`23(c)(4), proposing certification of the following asserted common issues:
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`a. Was the AUC a violent, right-wing organization in Colombia that engaged in the
`kidnapping and murder of civilians?
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`b. Did Chiquita make more than 100 payments totaling more than $1.7 million to the
`AUC, through Chiquita’s subsidiary Banadex, from at least 1997 through 2004?
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`c. Were these payments reviewed and approved by senior Chiquita executives?
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`d. Did the AUC use convivirs as front organizations to collect money?
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`e. Did the AUC instruct that Banadex should make payments to convivirs?
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`f. In 2003 and 2004, did Chiquita continue to pay the AUC against the advice of its
`outside counsel, even after being advised that the payments were illegal under U.S.
`law?
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`[DE 2290, p. 23] [DE 2290-1].
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`B. PLAINTIFFS’ FACTUAL PROFFER
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`1. Report of Professor Oliver Kaplan8
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` The university affiliation and general credentials of Professor Kaplan are not apparent from
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`the limited excerpts of the report which Plaintiffs have supplied as an attachment to the affidavit
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`8 The proffered excerpts from the Kaplan report (pp. 1, 10-11, 19-24, 26-27, 41, 44 and 53] do not appear as sworn
`expert testimony supplied via affidavit or deposition. Although a floating signature of “Oliver Kaplan,” is appended
`to the excerpted pages, there is no attestation block averring that the contents are sworn under penalties of perjury.
`Although not submitted as sworn testimony, and although the contents of the report itself - to the extent it relays
`second and third-hand information - have been challenged by Defendant as pure hearsay which should be excluded
`from the analysis, the Court shall accept and consider the substantive contents of the excerpts in this narrow context,
`recognizing that “the Federal Rules of Evidence are not stringently applied at the class certification stage because of
`the preliminary nature of such proceedings.” See Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 279 (S.D.
`Ala. 2006) and cases cited infra. That is, in the context of determining class certification, the evidence rules are
`relaxed, and courts may consider evidence that may not ultimately be admissible at trial. Shamblin v. Obama for
`America, 2015 WL 1909765 (M.D. Fla. 2015).
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`7
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`of counsel (Attorney Sean Powers). Kaplan seeks to draw a causal link between Chiquita’s
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`financial ties to the AUC and harm to the civilian population in the Uraba and Magdalena regions
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`of Colombia, urging a causal inference based on any given individual’s geographical connection
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`to areas laboring under an active AUC presence. Kaplan does not purport to establish a nexus
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`between any specific human loss and an AUC operative. Rather, he seemingly advances a
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`circumstantial theory of causation based on the AUC’s estimated proportionate responsibility for
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`the death toll in these regions: Kaplan generally states in this regard, “Although the AUC was not
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`responsible for all violence in Colombian or in the Uraba or Magdalena areas, they were
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`responsible for a majority of it.” [DE 2290-6, p.6].9
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` After synthesizing a large body of historical data regarding the formation, organizational
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`hierarchy and vociferous growth of the AUC from the 1960s forward,10 Professor Kaplan opines
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`on the phenomenon of what he describes as “signature” AUC-killing methodologies – public and
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`especially gruesome displays of extra-lethal violence and killings, often involving live bodily
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`dismemberment, decapitations, chain-saw quarterings and the mutilation and abuse of corpses (e.g.
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`playing soccer with decapitated heads) --- all designed to instill terror in rural populations and
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`discourage association, sympathy or support for guerilla insurgents. To this end, Kaplan states
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`the AUC typically targeted persons associated with any progressive or social movement
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`9 The Kaplan report cites secondary sources for the proposition that 1,982 killings occurred in context of “massacres”
`(more than four people killed in single attack) between 1980-2012 in Colombia, and of these, 59% (1,166) are
`attributed to paramilitaries, 17 % (343) to guerillas, and 9 % (170) to state forces. He also cites secondary sources for
`the proposition that paramilitaries were responsible for at least 5,311 murders and 565 acts of torture in the Uraba area
`alone. Combining Uraba with the Santa Marta region, he contends at least 10,406 civilians were “killed, massacred
`or disappeared” in this time frame, and notes that “[i]n many cases, the victims were buried in mass graves, most of
`which have yet to be exhumed or the casualties identified.” [DE 2290-6, p. 10].
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`10 Kaplan estimates the AUC grew from an umbrella organization formulated in 1997 with approximately 1,000
`fighters and arranged into seven blocs, to a total of 37 blocs and a total troop strength of 31,671 by the time of its
`negotiated demobilization between 2003-2006. According to Kaplan, this made it the “largest non-state armed actor
`in Colombia” in that time frame. [DE 2290-6, p. 3].
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`8
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`organizations, including “leftist politicians and activists associated with the Patriot Union party”,
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`“banana workers and unionists,” as well as “suspected guerilla militia members.” He notes,
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`however, that much of the AUC’s violence was “poorly targeted,” resulting in many “errors”
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`leading to the death of nonviolent and peaceful civilians. In other cases, the widespread
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`indiscriminate killing of civilians was an intentional part of a pernicious strategy known as
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`“draining the sea” – wiping out broad swathes of rural civilian populations in a “scorched earth”
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`policy designed to flush out the insurgent “fish.” In the end, the AUC negotiated an agreement
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`with the Colombian government to demobilize in exchange for legal benefits (reduced prison
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`sentences) conferred under the Justice and Peace Law.11
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`2. Report of Professor Terry Lynn Karl
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` Excerpts from the report (three pages) of Professor Terry Lynn Karl (Stanford University)
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`are also submitted in support of the Plaintiffs’ motion [DE 2290-8]. These excerpts also bear an
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`attached floating signature without an attestation block [DE 2290-8, p. 6]. The Karl report focuses
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`on the symbiotic relationship between Chiquita and the AUC, discussing financial and other
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`contributions allegedly made by Chiquita to the paramilitaries, and strong-arm labor-control
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`assistance exchanged in return.
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`3. Report of Colonel Carlos Alfonso Velasquez Romero
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` Plaintiffs also submit the 25-page report of Carlos Alfonso Velasquez Romero, a Professor
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`of Political Theory at the University of La Sabana and a retired officer of the Colombian Army
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`(serving between 1970-1996). This report, submitted in affidavit format,12 addresses whether links
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`11 Professor Karl reports that “[a]pproximately 3,000 people, 10% of the paramilitary forces entering into the
`demobilization programs, began the Justice and Peace Law process.” [DE 2290-8, p. 3].
`12 This document, dated December 23, 2018, bears an attestation block, but reflects no visible signature mark [DE
`2290-9].
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`9
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`existed between the Colombian Military forces and the paramilitaries, including the AUC, from
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`the time of the paramilitaries’ initial emergence (1980-1990) to their later “political legitimization”
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`(1994-2002). It also discusses the extent to which these entities coordinated joint activities over
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`time, and the negotiated demobilization process which ultimately took place (2002-2010).
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`IV.
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`DISCUSSION
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`A. RULE 23 STANDARD
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` Class action litigation is allowed under Federal Rule of Civil Procedure Rule 23 as “an
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`exception to the usual rule that litigation is conducted by an on behalf of the individual named
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`parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2550 (2011). To
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`successfully move for class certification, the party seeking certification must satisfy an implicit
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`ascertainability requirement, prove all four pre-requisites listed at Rule 23(a), and prove at least
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`one of the requirements set out in Rule 23(b) by a preponderance of the evidence. Little v. T-
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`Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012); Vega v. T-Mobile USA, Inc., 564 F.3d
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`1256 (11th Cir. 2009); Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004).
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`A district court has wide discretion in determining a Rule 23 motion, Birmingham Steel
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`Corp v. Tenn. Valley Authority, 353 F.3d 1331, 1335 (11th Cir. 2003), but in the exercise of that
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`discretion it must conduct a “rigorous analysis” in determining whether Rule 23’s pre-requisites
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`have been met. Wal-Mart, 131 S. Ct at 2551; Gen. Tel. Co of Southwest v. Falcon, 457 U.S. 147,
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`161, 102 S. Ct. 2364, 72 L.Ed.2d 740 (1982). This means the court must go beyond the pleadings
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`in order to “understand the claims, defenses, relevant facts and applicable substantive law in order
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`to make a meaningful determination of the certification issues.” Unger v. Amedisys Inc., 401 F.3d
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`316, 321 (5th Cir. 2005). At this preliminary stage, the Court should not pass on the merits of the
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`claims, but because the merits and the Rule 23 prerequisites are often intertwined, some overlap is
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`10
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`unavoidable. Cooper v. Southern Co., 390 F.3d 695, 712 (11th Cir. 2004); Heffner v. Blue Cross
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`and Blue Shield of Alabama, Inc., 443 F.3d 1330, 1337 (11th Cir. 2006).
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` The prerequisites of Rule 23(a) require the party seeking certification to show, by a
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`preponderance of the evidence, that:
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` (1) the class is so numerous that joinder of all members is impracticable;
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`(2) there are questions of law or fact common to the class;
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`(3) the claims or defenses of the representative parties are typical of the claims or defenses of
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`the proposed class members, and
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`(4) the representative parties will fairly and adequately protect the interests of the class.
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`Fed. R. Civ. P. 23(a). See Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1188
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`n. 15 (11th Cir. 2003); Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1233 (11th Cir.
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`2016). These requirements are commonly referred to as (1) numerosity; (2) commonality; (3)
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`typicality, and (4) adequacy of both class plaintiffs and class counsel. Cooper v. Southern Co., 390
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`F.3d 695, 711 n. 6 (11th Cir. 2004).
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` Once these prerequisites are satisfied, class certification is permissible only if plaintiffs also
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`satisfy one or more prongs of Rule 23(b). Here, Plaintiffs invoke Rule 23(b)(3), which allows a
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`class to be certified if both common questions of law or fact predominate over questions affecting
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`only individual members, and a class action is superior to other methods for a fair and efficient
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`adjudication of the controversy. The Rule 23(b)(3) predominance inquiry “tests whether the
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`proposed class is sufficiently cohesive to warrant adjudication by representation.” Amchem
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`Products Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 138 L.Ed.2d 689 (1997).
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` This standard is similar to the commonality requirement of Rule 23(a), but is more
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`demanding, and mandates particular caution where “individual stakes are high and disparities
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`11
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`among class members great.” Id.; Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.
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`2002). A plaintiff cannot satisfy the predominance requirement if, as a practical matter, resolution
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`of common issues will “break [] down into an unmanageable variety of individual legal and factual
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`issues.” Cooper, 390 F.3d at 722 (quoting Andrews v. American Tel. & Tel. Co., 95 F.3d 1014,
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`1023 (11th Cir. 1996)).
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` The predominance inquiry begins with consideration of the elements of the underlying
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`cause of action, Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 131 S. Ct. 2179, 2184,
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`180 L.Ed.2d 24 (2011), and requires the court to consider “how a trial on the merits would be
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`conducted if a class were certified.” Sandwich Chef of Texas, Inc. v. Reliance Nat’l Indem. Ins.
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`Co., 319 F.3d 205, 218 (5th Cir. 2003). It does not mean that a plaintiff seeking class certification
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`must prove that each “element [] of his or her claim is susceptible to class wide proof, Amgen Inc.
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`v. Ct. Ret. Plans & Trust Funds, 568 U.S. 455, 133 S. Ct. 1184, 1196, 185 L. Ed.2d 308 (2013).
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`It does mean that only a small amount of individualized proof or legal analysis be necessary to
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`adjudicate the class members’ claims after adjudication of the class-wide issues. Klay v. Humana,
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`Inc., 382 F.3d 12451, 1255 (11th Cir. 2004), abrogated in part on other grounds by Local 703, I.B.
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`of T. Grocery & Food Employees Welfare Fund v. Regions Financial Corp., 762 F.3d 1248, 1255
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`(11th Cir. 2014). If the addition of more plaintiffs is likely to require presentation of significant
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`amounts of new evidence, this strongly suggest that individual issues are important; conversely, if
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`the addition of more plaintiffs leaves the quantum of evidence introduced by the plaintiffs as a
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`whole relatively undisturbed, then common issues are likely to predominate. Id.
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`B. CLASS CERTIFICATION ISSUES
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` Plaintiffs argue that they meet the four requirements of Rule 23(a). They further assert that
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`this case is maintainable as a class under Rule 23(b)(3) because common questions of law and fact
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`Case 0:08-md-01916-KAM Document 2471 Entered on FLSD Docket 05/31/2019 Page 13 of 23
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`predominate over questions affecting individual plaintiffs, and because the class action mechanism
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`presents a superior method for resolution of these claims. They contend that the liability questions
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`involve common questions of law based on the same set of operative facts (Chiquita’s interface
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`and financial relationship with the AUC), and that variations in proofs on causation (AUC-link)
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`and individual damages do not defeat the elements of commonality and predominance.
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` Chiquita argues that Plaintiff’s motion fails to establish Rule 23’s ascertainability,
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`numerosity, predominance and superiority requirements, in addition to other alleged defects
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`relating to the timing and scope of the motion. The Wolf Plaintiffs also challenge the
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`ascertainability of the proposed class, and further complain that there are conflicts of interest
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`between proposed class counsel, the putative class members, and existing named Plaintiffs which
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`impede Rule 23 certification.
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` This opinion first addresses certification issues pertaining to ascertainability. Because the
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`New Jersey Plaintiffs do not show an ascertainable class, the Court does not find that Plaintiffs’
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`claims present a viable vehicle for class certification and concludes that the motion is appropriately
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`denied on this basis alone. Assuming, arguendo, that the class definition could be refined to avoid
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`this impediment, the Court alternatively considers whether Plaintiffs have met their burden of
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`proving the prerequisites of Rule 23(a), in addition to the predicate for a “predominance” class
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`under Rule 23(b)(3) or an “issues” class under Rule 23(c)(4). Following careful consideration of
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`the parties’ arguments and proffered evidence on these points, the Court concludes that Plaintiffs
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`do not meet this burden and that the motion is appropriately denied on this alternative basis as
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`well.
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`C. ASCERTAINABILITY
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` The existence of an ascertainable class is an implied prerequisite of Fed. R. Civ. P. 23, and
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`the burden is on the party seeking certification to show that the proposed class is clearly
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`ascertainable. Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012); Heaven v. Trust
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`Co. Bank, 118 F.3d 735, 736 (11th Cir. 1997). This means the class must be defined “by reference
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`to objective criteria,” and that the analysis of those criteria is administratively feasible, i.e. the
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`procedure for identifying class members must be a “manageable process that does not require
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`much, if any, individual inquiry.” Bussey v. Macon County Greyhou