Florida Federal Judge refuses to enforce Nicaraguan judgment against Dole Food

Posted on December 14, 2009 by Edward Joffe

The tide is turning in favor of Dole Food in its decades old battle defending its use of the chemical compound dibromochloropropane (DBCP).   In an action filed in the U.S. District Court for the Southern District of Florida, Osorio v. Dole Food Company, Judge Paul C. Huck refused
to enforce a $97 million Nicaraguan judgment under the Florida Uniform Out-of-country Foreign Money-Judgments Recognition Act..

Plaintiffs are 150 Nicaraguan citizens alleged to have worked on banana plantations in Nicaragua between 1970 and 1982, during which time they were exposed to the DBCP is an agricultural pesticide that was banned in the United States after it was linked to sterility in factory workers in 1977. Nicaragua banned DBCP in 1993. Defendants are Dole Food Company and The Dow Chemical Company.  Dow manufactured DBCP from 1957 until 1977, and Dole used DBCP on its banana farms in Nicaragua until the farms were expropriated by the Sandinista regime that came to power in 1979.

The judgment in this case was rendered by a trial court in Chinandega, Nicaragua. The trial court awarded Plaintiffs approximately $97 million under “Special Law 364,” enacted by the Nicaraguan legislature in 2000 specifically to handle DBCP claims. The average award was approximately $647,000 per plaintiff. According to the Nicaraguan trial court, these sums were awarded to compensate Plaintiffs for DBCP-induced infertility and its accompanying adverse psychological effects. Defendants have appealed the judgment to an intermediate appellate court in Nicaragua. That appeal is still pending.

Defendants raise several objections to domesticating the judgment. They contend that under the Florida Recognition Act this Court cannot enforce the judgment because (1) the Nicaraguan trial court lacked personal and/or subject matter jurisdiction under Special Law 364, (2) the judgment was rendered under a system which does not provide procedures compatible with due process of law, (3) enforcing the judgment would violate Florida public policy, and (4) the judgment was rendered under a judicial system that lacks impartial tribunals. The Court held that Defendants have clearly established their entitlement to non-recognition on each of these independent grounds.

Lead trial counsel for Dole was Andrea E. Neuman of Gibson, Dunn & Crutcher LLP, Los Angeles, CA,

 

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Settlement in Truckers lawsuit against Port of Long Beach

Posted on November 5, 2009 by Edward Joffe

Clean Truck Crosses Heim BridgeImporters and transportation professionals should be aware of the recent settlement of the litigation over the Port of Long Beach’s Concession Plan. This past week U.S. District Court Judge Christina Snyder approved the compromise negotiated between the Port and American Trucking Association (ATA). Earlier this year preliminary rulings by the U.S. District Court and a federal appellate court in California indicated that some provisions in the port concession plans, and possibly the concession requirements in their entirety, most likely violate the Federal Aviation Administration Authorization Act.


The April 28 preliminary injunction against the Port’s Concession Agreements will remain in effect until the newly negotiated Registration and Agreement process is implemented. The Port and ATA emphasized that the new registration apparatus, which includes an agreement by carriers to provide the Port necessary operating information, will allow the Port to strictly oversee and enforce motor carrier’s compliance with federal, state, and port safety, security, and environmental regulations. Motor carriers will agree to replace old, polluting trucks with vehicles that comply with the federal Environmental Protection Agency's 2007 model emission standards.  Bill Mongelluzzo of the Journal of Commerce has reported controversy over the deal. The National Retail Federation, which represents many of the retailers that ship through Southern California, said Long Beach recognized that the concession requirements did not contribute to clean air but rather added unnecessary costs for importers shipping through the port. "A compliant truck emits the same emissions regardless of who is driving the truck," said Jonathan Gold, vice president for supply chain and customs policy at NRF.


Environmental interests, meanwhile, criticized Long Beach for failing to stick with the Port of Los Angeles in attempting to preserve the concession requirements in the ports' clean-truck programs. Los Angeles's concession program had many of the same requirements as the Long Beach agreement, with the added requirement that motor carriers hire drivers as direct employees. This requirement, supported by the Teamsters, would make it easier for the Teamsters to organize harbor truck drivers and was subject to litigation filed by ATA. Despite this settlement, the Port of Los Angeles is continuing with its litigation.


The Natural Resources Defense Council criticized Long Beach for settling the lawsuit with ATA. "Rather than clean up the trucks that serve its port, Long Beach ran away from a fight with an industry that has opposed clean-air regulation locally and nationally and is content to sit on the sidelines while the Port of Los Angeles pays to clean up the trucks that serve both ports," said David Pettit, senior attorney and director of NRDC's Southern California clean-air program.
There are good arguments made by both sides of the equation – the interests of small trucking operations and environmental interests. In this tough economic environment a compromise was in the best interests of all parties and I encourage the Port of Los Angeles to follow its neighbors lead and bring an end to its costly litigation.
 

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