Provost Umphrey accuses Dole of banana litigation conspiracy

By Steve Korris | Nov 9, 2007

Joe Fisher of the Provost Umphrey firm in Beaumont has accused Dole Food Company of negotiating directly with his clients in Nicaragua to settle pesticide exposure claims.

Fisher has asked Jefferson County 60th District Court Judge Gary Sanderson to order Dole to stop talking to banana workers he represents.

Fisher's petition states that Provost Umphrey "is not asking this court to intervene in a foreign lawsuit."

It states, "The plaintiff is merely requesting instead that this court enjoin American attorneys and an American corporation from tortiously interfering with an American contract subject to Texas law."

Fisher alleges that Dole general counsel Michael Carter and Dole attorney James Teater of Houston conspired to interfere with client contracts.

He describes the conspiracy as "a complicit design to derail banana worker litigation from the foreign country grass roots."

He claims Carter violated the California Bar's rules of professional conduct and Teater violated the rules in Texas.

Provost Umphrey signed about 3,000 contracts with Nicaraguan banana workers in 2001, according to Fisher.
The workers claimed Dow Chemical's Fumazone and Shell Oil's Nemagon rendered them sterile and otherwise harmed them.

A Nicaraguan court awarded $97 million to Provost Umphrey clients in 2005, but they haven't collected because defendants appealed.

They may not collect even if the appeal fails, because then Provost Umphrey would have to enforce the judgment in an American court.

Nicaraguans can't enforce the judgment because Dole has no assets in Nicaragua.

Los Angeles attorney Walter Lack, who tried to enforce a $487 million Nicaraguan judgment in an American court, came away with zero.

U. S. District Judge Nora Manella dismissed Lack's claim, ruling that Nicaraguan justice was not impartial.

Plaintiff attorneys knew from the start that Nicaraguan justice didn't operate like American justice.

In the 1990s, American attorneys representing banana workers throughout Central America sued American chemical and fruit companies in American courts. American judges, however, ruled that the suits belonged where the workers lived.

As Nicaraguans returned to their own courts, their National Assembly tipped the scale of justice in their favor with a heavy hand. They passed Special Law 364, requiring defendants to post a $20 million guarantee of judgment plus a $100,000 bond. They created an unrebuttable presumption of causation upon proof of sterility. They provided for damages commensurate with U. S. law.

Legislators in Ecuador and Guatemala passed similar measures, but courts declared them unconstitutional.

In Nicaragua attorneys filed about 80 suits with thousands of plaintiffs. In one suit against Dole, Dow and Shell, Lack represented 1,030 plaintiffs. Because the defendants did not follow the special law, the judge would not hear their arguments.

Even without opposition, Lack could not prove half his claims. The judge awarded $487 million to 436 plaintiffs, about $1,117,000 per plaintiff.

Provost Umphrey sued 10 U. S. companies for 201 plaintiffs in Chinandega, Nicaragua.

The judge in Chinandega heard the defendants and ruled in 2005 that half of them bore no liability. The judge dismissed claims of 51 plaintiffs.The judge awarded $97 million to 150 plaintiffs, about $647,000 per plaintiff.

Provost Umphrey prepared to bring more claims in Chinandega.

Dole then opened negotiations with labor leader Victorino Espinales, who claimed to represent 70 percent of Nicaraguan banana workers.

Last year, according to Fisher's petition, Dole general counsel Carter and Espinales jointly advised workers to withdraw their suits.

Espinales said American lawyers lied and swindled. He called them impotent.

According to Fisher's petition, Carter told banana workers to revoke their powers of attorney and execute new powers of attorney to him.

According to Fisher, Provost Umphrey's office in Chinandega received a fax from Espinales on May 26, 2006, revoking powers of attorney for 2,400 plaintiffs. According to Fisher, the list included 66 Provost Umphrey clients.

Two weeks later, Fisher sued Dole in Jefferson County and asked for a temporary restraining order to keep Dole from negotiating with his clients. The day Fisher filed the suit, Sanderson granted the order. He ruled there was no time to give Dole notice or hold a hearing.

Sanderson set a hearing but two days before he would have held it, Dole removed the suit to U. S. Distrct Court.

Dole attorney Wayne Mason of Dallas argued that Provost Umphrey fraudulently sued Teater to defeat federal jurisdiction.

Teater sought a different escape route. The day Dole removed the suit, Teater asked Sanderson to transfer it to Harris County. In October, U. S. District Judge Marcia Crone remanded the suit to Sanderson.

Crone wrote, "…under Texas law, Provost has an arguable basis for recovery on its conspiracy claim against Teater."

She wrote, "Civil conspiracy may be proven entirely by circumstantial evidence."

She wrote, "Teater may be liable for civil conspiracy on the basis of tortious acts committed by Dole or Carter if Provost can show that a conspiracy existed."

She wrote, "Teater need not have visited Nicaragua or specifically advised Dole concerning its dealings with Victorino Espinales."

Dole then copied Teater, moving for transfer to Harris County.

On Aug. 10, Provost Umphrey asked Dole to produce a "privilege log" detailing the history of banana worker litigation.

On Aug. 13, Carter received notice of the suit for the first time. With the notice he received 22 interrogatories and 53 requests for documents.

Among the interrogatories, Provost Umphrey asked Carter:

If he gave Espinales money or anything of value;

To identify everyone he sent to Central America and tell how much money they took and how much they brought back;

If he promised money to President Daniel Ortega;

If he gave money to Provost Umphrey clients, appellate judges, any government official, past or present attorneys general, U. S. government officials, Nicaraguan press or media, investigators, or National Assembly members;

If he was aware of any of them receiving money;

To describe his trips to Nicaragua, the length of his meetings there, and the names, addresses and phone numbers of everyone at the meetings;

Whether money exchanged hands at meetings;

If he met an appellate judge and if so, whether they discussed money;

To produce copies of his income tax returns since 2000, his calendars since 2000, his U. S. passport and his driver's license;

For "all documents regarding any connection between you and the state of Texas;"

For his travel itineraries since 2000, not only to Nicaragua but also to Panama, Costa Rica, Honduras and Guatemala;

For receipts and vouchers for Nicaraguan travel by him, Teater or anyone else since 2000;

For records of jet travel in Nicaragua since 2000;

For notes of meetings with Ortega or any other Nicaraguan official;

For copies of checks or bank wires transferring money to any person or entity in Nicaragua since 2000; and

For all correspondence with the Internal Revenue Service and the Texas Comptroller of Public Accounts about banana litigation since 1995.

On Sept. 4, Dole attorney David Kent of Houston challenged Jefferson County's jurisdiction over Carter.

Kent wrote, "There is no substantial connection between the operative facts of the case and any contacts of Carter with the state of Texas."

On Oct. 3, Kent asked Sanderson to defer Carter's responses to Provost Umphrey's interrogatories and requests for production, pending a decision on jurisdiction.

On Oct. 22, Kent moved to protect the privilege log. He wrote, "It would be unduly burdensome and wasteful to require Dole to prepare a privilege log covering more than a decade of international litigation with thousands of claimants."

Sanderson has set a Dec. 14 hearing on the motions of Dole and Teater to transfer the suit to Harris County. He has set a Jan. 25 hearing on Carter's challenge to his jurisdiction. He has not set a hearing on the privilege log.

Regardless of the outcome, the allure of Special Law 364 has faded. American plaintiff attorneys have found their way back to American courts.

Last week jurors in Los Angeles awarded about $3 million to six banana workers among 12 who brought claims to trial.

Jurors continue deliberating over whether to award punitive damages.

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