Case 0:08-md-01916-KAM Document 1201 Entered on FLSD Docket 12/02/2016 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-1916--MARRA
IN RE: CHIQUITA BRANDS INTERNATIONAL
ALIEN TORT STATUTE AND
SHAREHOLDER DERIVATIVE LITIGATION
_________________________________________/
This Document Relates To:
ATS Action
_________________________________________/
Case No. 08-CV-80465-MARRA
DOES (1-144), PEREZES (1-95), PEREZES (96-795)
and Carmen Tulia Cordoba Cuesta, et al.,
Plaintiffs,
vs.
CHIQUITA BRANDS INTERNATIONAL, INC., et al.,
Defendants.
_________________________________________/
ORDER DENYING CONRAD & SCHERER, LLPS RENEWED MOTION TO
WITHDRAW WITHOUT PREJUDICE
THIS CAUSE is before the court upon Conrad & Scherer, LLPs (Conrad Scherer)
renewed motion to withdraw as counsel for Plaintiffs in the above-captioned action [Case
08-MD-1916/ DE 1011] [Case 08-80465/ DE 310], together with supporting final report regarding
client notice and objections to the proposed withdrawal [DE 1087]; the Defendants, Chiquita
Brands International, Inc. and Chiquita Fresh North America, LLCs (Chiquita)s response in
opposition to the motion [DE 1108]; Plaintiffs, Does 1-144, and Attorney Paul Wolfs response
in opposition to the motion [DE 1015], and Conrad Scherers reply [DE 1112].

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Having carefully reviewed the renewed motion to withdraw, and all papers submitted in
connection with it, the Court has determined to deny the motion without prejudice for reasons
stated below.
I.

INTRODUCTION

Conrad Scherer filed its original motion for substitution of counsel, seeking to substitute
International Rights Advocates in place of Conrad Scherer as counsel for Plaintiffs Does 1-144,
Perezes 1-95, Perezes 96-795 and Carmen Tulia Cordoba Cuesta on December 18, 2015 [DE 965].
As grounds, the motion stated that Attorney Terrence Collingsworth, formerly a member of
Conrad Scherer appearing as one of several counsel of record for Plaintiffs in this action, had left
the firm and assumed employment at International Rights Advocates. By Order entered January
14, 2016, the Court denied the motion without prejudice due to Conrad Scherers failure to comply
with the client notice requirements of S.D. Fla. L.R. 11.1 (d) (3) [DE 989]. This Rule provides:
No attorney shall withdraw the attorneys appearance in any action or proceeding
except by leave of Court after notice served on the attorneys client and opposing
counsel. A motion to withdraw shall include a current mailing address for the
attorneys client or the clients counsel.

On March 3, 2016, Conrad Scherer filed a renewed motion to withdraw, stating that it was
in the process of implementing a plan to notify all Plaintiffs of the proposed substitution via a joint
letter issued by Conrad Scherer and Terrence Collingsworth [DE 1011/Case No.
08-MD-1916-MARRA] [DE 310/Case No. 08-8045-Civ-Marra]. The plan called for written
notification to the Plaintiffs, all of whom reside in Colombia, a reasonable time period within
which client objections might be lodged, submission of a report to the Court certifying the results
of the notice, and briefing by any interested party.

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In its final report [DE 328] and reply brief [DE 340], Conrad Scherer states that of the total
2322 Plaintiffs listed in this action, substantial compliance with the client notification
requirements of the Local Rule has been achieved as follows:
(1) Conrad Scherer has directly notified 1,362 Plaintiffs of the proposed substitution of
counsel by way of personal (hand) delivery, and has indirectly notified 66 Plaintiffs by
way of personal (hand) delivery through a relative;
(2) Conrad Scherer has mailed notice to 235 Plaintiffs and has emailed notice to 4 Plaintiffs;
(3) Conrad Scherer anticipates hand delivery or regular mail notice to an additional 39
Plaintiffs soon;
(4) Conrad Scherer has confirmed 63 Plaintiffs as deceased;
(5) Conrad Scherer did not deliver notice to Does 1-144, nor does it have contact information
for any individuals in this group, the control of which is reportedly claimed by Attorney
Paul Wolf.1
1

Conrad Scherer asks to be excused of any obligation to notify this group in light of the authority asserted by
Mr. Wolf. On the other hand, Mr. Wolf asks the Court to dispense with any notice requirement because he contends
Conrad Scherer does not represent this group, and that issuance of notice of withdrawal from Conrad Scherer will
generate client confusion. The Court declines both invitations.
At the outset of this MDL proceeding, Terrence Collingsworth, at that time a managing member of Conrad
Scherer, and Attorney Paul Wolf submitted competing applications for designation as lead counsel to Does 1-144.
Each acknowledged a joint representation agreement between them as to this client pool, while disagreeing on
designation of lead counsel. Ultimately, the Court designated Mr. Collingsworth, of Conrad Scherer, as lead counsel
for Does 1-144, based in part on a written stipulation approving the designation signed by Mr. Wolf himself [Case No
08-MD-1916 / DE 124, 125, 136, 137, 144 and 147].
The record does not reflect any subsequent courtapproved modifications to this designation. Conrad
Scherer therefore remains in place as counsel of record for Does 1-144, notwithstanding Mr. Collingsworths
intervening departure from the firm; this is plainly so in light of Conrad Scherers previous, unsuccessful effort to
withdraw and substitute International Rights Advocates and Terrence Collingsworth as counsel for all Plaintiffs
(including Does 1-144). Indeed, Conrad Scherer, through Mr. Collingsworth, continued to file pleadings on behalf of
Does 1-144 in recognition of this relationship, and in the exercise of that representation has asked the Court to strike
any papers filed by Wolf on behalf of Does 1-144 as unauthorized [DE 823 p. 1 n. 1].
In short, unless and until the Court grants Conrad Scherer permission to withdraw as counsel of record for all
Plaintiffs, Conrad Scherer is charged with the obligation to continue representation of the entire plaintiff pool,
including Does 1-144. Accordingly, to the extent it seeks to withdraw from representation, it must certify its good
faith effort at notifying all Plaintiffs including Does 1-144 -- of its proposed withdrawal pursuant to the requirements
of Local Rule 11.1(d) (3).

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(6) Conrad Scherer has been unsuccessful in attempts to contact 358 Plaintiffs. In the
supporting affidavit of Robert Perillo [DE 1087-1], the individual assigned to oversee the
notification process, these attempts are generally described to include a personal visit to
the last known address of each plaintiff, a phone call to the last known telephone number,
or both.
In its opposition to the motion, Defendant Chiquita voices concern that the withdrawal of
Conrad Scherer at this juncture will impede the Courts ability to compel Conrad Scherers
compliance with outstanding discovery requests pertaining to possible fact witness payments in
Colombia made in the context of this case. This item is currently the subject of a second motion
to compel directed to Conrad Scherer and Attorney Collingsworth [DE 1080], a matter now ripe
for resolution in conjunction with Conrad Scherers privilege objections to the production of
relevant documents which have been submitted to the Court for in camera review [DE 1116; 1117;
1118; 1119; 1120].

In effort to neutralize this concern regarding enforcement of the Courts

discovery orders, Conrad Scherer offers to condition its withdrawal on its submission to the
limited jurisdiction of the Court for purposes of any discovery the Court deems appropriate
[DE 1011 10].
II.

DISCUSSION

The decision to grant or deny a request for withdrawal of counsel is committed to the broad
discretion of the district court. See Robinson v. Boeing Co., 79 F.3d 1053, 1055 (11th Cir. 1996);
Whiting v. Lacara, 187 F.3d 317, 320 (2nd Cir. 1999). In the exercise of this discretion, the factors
a trial court can fairly consider in deciding whether to allow substitute counsel include the
fundamental right to counsel; the courts docket; injury to the plaintiff; delay in reaching
decision; the judicial time invested; the expense to any objecting parties; and the potential for
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manipulation or impropriety. Id. See also Haines v. Liggett Group, Inc., 814 F. Supp. 414 (D.
N.J. 1993) (criteria for consideration on motion to withdraw include reasons why withdrawal is
sought; prejudice withdrawal may cause to litigants; harm to administration of justice and likely
delay resolution of the case). Put another way, in ruling on a motion to withdraw, courts may
consider the disruptive impact that the withdrawal will have on the prosecution of the case. Byrd
v. District of Colombia, 271 F. Supp. 2d 174 (D.D.C. 2003), citing Whiting, 187 F.3d at 320.
The procedural requirements imposed by Local Rule 11.1(d)(3) also inform the courts
ruling on a motion to withdraw. As noted, this Rule authorizes withdrawal of counsel if: (1)
written notice is served in advance on the client and opposing counsel; (2) the attorney obtains
leave of Court; (3) counsel provides a current mailing address for the client or clients counsel.
S.D. Fla. L.R. 11.1 (d) (3).
1. Undue Delay -- Prejudice to Clients
The Court has an obligation to ensure that withdrawal of counsel would not disrupt
prosecution of the case. Byrd v. District of Colombia, 271 F. Supp.2d 174 (D. D.C. 2003). In
this case, allowing the withdrawal of Conrad Scherer at this juncture of this complex MDL
proceeding -- now in its eighth year potentially may force a postponement of important deadlines
and disrupt the plaintiffs prosecution of the action.
Conrad Scherer dismisses this factor, contending that its proposed substitution of Terrence
Collingsworth, an experienced litigator of human rights litigation in courts throughout the United
States and former member of its firm intimately familiar with the complexities of this MDL
proceeding, will permit a seamless transition in the representation.

The Court is not satisfied,

however, that the proposed substitution coming as it does in the midst of ongoing discovery
proceedings touching on Colombian witness payments in this case, and findings of probable cause
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of substantial misconduct involving witness payments lodged against Mr. Collingsworth in other
Colombian human rights litigation2 -- would achieve an effective substitution of counsel.
In light of this ongoing discovery, and developments in other litigation, the Court finds the
proposed substitution inappropriate at this time. It is impossible to assess, before discovery on
the witness payment issue is complete, whether Mr. Collingsworth may become a potential
witness in the case, or other potential grounds for disqualification may evolve, developments
which would plainly militate against the proposed substitution. To be clear, the Court is making
no finding and expressing no opinion on misconduct of any kind attributable to Mr. Collingsworth
or any other party touching upon this issue at this juncture.

The Court has simply concluded that,

until discovery on the witness payments issue in this case is completed, it is premature to consider
the proposed substitution.
Without an effective substitution of counsel, it would be difficult for the Court to allow
Conrad Scherer to withdraw at this juncture without unfairly prejudicing the Plaintiffs in their
prosecution of the case, given the advanced stage and complexity of the litigation.

Therefore,

the factors of undue delay and prejudice to the clients weigh heavily against withdrawal at this
time.
2. Compliance with Notice Requirements
a. 358 Un-locatable Plaintiffs

The Court takes judicial notice of the record in Drummond v. Terrence Collingsworth et al., Case
2:11-CV-3695-RDP [N.D. Ala. Dec. 7, 2015], where the U.S. District Court for the Northern District of Alabama
found there is (at least) probable cause to believe that Collingsworth, while prosecuting lawsuits on behalf of his
firm, engaged in witness bribery and suborning perjury at the time the work product [at issue] was created, and
that [t]his alleged witness bribery continues to this day as to some of these former paramilitary witnesses as they
continue to received security payments. [DE 1015-6, p. 27] The Alabama court thus found a sufficient factual
basis to establish a prima facie case for applying the crime-fraud exception to pierce work product and attorney client
privileges asserted as discovery objections by Mr. Collingsworth in the Balcero action against Drummond.

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By its own admission, Conrad Scherer has been unsuccessful in giving notice of the
proposed withdrawal and substitution to 358 Plaintiffs.

The supporting affidavit of Robert

Perillo does not indicate what efforts were made to ascertain or update the residential addresses for
this group, nor does it indicate what efforts, if any, were made to ascertain or update the telephone
numbers for this group. Without further details regarding the extent of efforts made to acquire
accurate contact information for this client pool, and without information as to what, if any,
intervening contact Conrad Scherer may have had with any member of the group since the
inception of its representation, the Court has insufficient information to find that Conrad Scherer
has made good faith, reasonable efforts at compliance with the notice requirements of Local Rule
11.1 (d) (3) as to this group.
b. Does 1-144
Similarly, as to Does 1-144, Conrad Scherer admits it has no contact information, yet does
not indicate what efforts it has made to secure this information from Attorney Wolf, who it
identifies as a repository of this information. As the record now stands, Conrad Scherer is
designated lead counsel of record for Does 1-144, and it was therefore incumbent upon it to
provide notice of its proposed withdrawal to this class of Plaintiffs. By its own admission, it has
taken no steps to notify Does 1-144, nor has it taken any affirmative action to secure relevant
contact information from Mr. Wolf.
Under these circumstances, the Court is presently unable to find good faith, reasonable
efforts at compliance with the notice requirements of Local Rule 11.1 (d) (3) as to this group.
3. Reason for Withdrawal
Finally, the court notes that Conrad Scherer does not proffer any reason for its withdrawal,
nor has it submitted evidence indicating that its clients were given an explanation of the reasons for
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its proposed withdrawal, the consequences of the withdrawal or the consequences of the proposed
substitution of counsel.

Nor does it suggest that any client conduct has rendered it unreasonably

difficult or impossible for it to carry out its employment effectively. Counsels failure to identify
a compelling reason for the proposed withdrawal also weighs against withdrawal at this time.
III.

CONCLUSION

The Court has an obligation to ensure that Conrad & Scherer has taken all reasonable steps
to avoid reasonably foreseeable prejudice to its clients in connection with its proposed withdrawal
from representation. Finding that Conrad Scherer is presently unable to make this showing, and
that the factors of undue delay and prejudice weigh against withdrawal under the present
circumstances, it is
ORDERED AND AJDUGED:
1. Conrad & Scherers renewed motion to withdraw as counsel of record of plaintiffs is
DENIED WITHOUT PREJUIDCE.

Counsel may renew its motion to withdraw if

the circumstances should change as the case progresses and it has cured the
deficiencies noted herein. .
2. As to Does 1-144 and the un-locatable plaintiffs identified above, the renewed
motion to withdraw is DENIED WITHOUT PREJUIDCE on the alternative and
independent ground of failure to satisfy the notice requirements of Local Rule 11.1.
DONE AND SIGNED in Chambers at West Palm Beach, Florida this 2nd day December,
2016.

KENNETH A. MARRA
United States District Judge
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cc. All counsel