Coke and Confiscation
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|Martin Barillas||May 2nd 2012|
Cutting Edge senior correspondent
Dispossessed Egyptian-Jewish businessman Refael Bigio is embarking upon his 15th year battling a goliath corporate adversary, The Coca-Cola Company, which, he charges, is utilizing his family’s property just outside Cairo which was expropriated by Egyptian President Gamel Nasser during one of Nasser’s anti-Jewish purges. Over the course of a decade and a half, the Coca-Cola Company has, Bigios’ lawyers say, steadfastly refused to bargain in good faith or to negotiate fair compensation for the expropriated property although Coca-Cola has reaped hundreds of millions of dollars in profits from the operations of “Coca-Cola Egypt” that continues to utilize and exploit property which Coca-Cola has known since 1965 was seized unlawfully from Jewish owners by Nasser’s regime.
The Bigio family filed today a petition for a rehearing by the Second Circuit Court of Appeals’ 13 active Circuit Judges seeking to restore their lawsuit against Coca-Cola and ensure that the family will have an opportunity to litigate their claims in a US court. In March, a three-judge panel of the Second Circuit dismissed the case on the ground that the Bigios’ complaint did not sufficiently allege that Coca-Cola’s headquarters in the U.S. controlled “Coca-Cola Egypt.” In their petition for rehearing, the Bigios’ attorneys noted that the supposedly missing detailed facts regarding Coca-Cola’s internal operations could only be proved by evidence exclusively in Coca-Cola’s files. The lawyers stressed that the panel dismissed the Bigios’ case “before Coca-Cola even answered the complaint and plaintiffs were given any opportunity for discovery.” According to the petition for rehearing, the pleading standard applied by the Court of Appeals conflicts with the standard set by the U.S. Supreme Court and followed by the First, Sixth, Ninth and Eleventh Circuits.
The Bigios allege that Coca-Cola has been making millions of dollars annually in profits by exploiting, through “Coca-Cola Egypt,” property that Coca-Cola had, before 1965, leased from the Bigio family. The property was confiscated by the Egyptian government in Nasser’s anti-Jewish program of religious persecution, and it was used by a government-owned company called ENBC that purportedly leased it from a government-owned insurance company. Coca-Cola took control of the property in 1994 – over the Bigio family’s objection – by purchasing a substantial interest in ENBC, which was promptly renamed “Coca-Cola Egypt.”
For the past 17 years Coca-Cola has “stonewalled” the Bigio family’s effort to obtain fair compensation and it has since 1997 successfully blocked the family’s litigation from advancing beyond its initial stage. The case, which to date has dealt with only preliminary procedural issues, reached the Court of Appeals three times. The Court of Appeals twice reversed premature and precipitous dismissals of the Bigios’ complaint. On the case’s third appeal, the panel avoided a decision on the grounds stated by District Judge Barbara Jones and dismissed the case for reasons that had not been presented to the court and that are contradicted by the record of the case.
The three-judge panel that dismissed the case acknowledged that the Bigios’ complaint adequately established that ENBC (the Egyptian company purchased by Coca-Cola and renamed “Coca -Cola Egypt”) trespassed on the Bigios’ property. The panel noted that Coca-Cola Egypt “has constructed additional buildings on the land formerly owned by the Bigio family,” “continues to bottle Coca-Cola products in Egypt,” and that Coca-Cola “profits from sales of syrup and licensing agreements to Coca-Cola Egypt.” The panel nonetheless dismissed the case on the ground that the Bigios’ complaint did not contain sufficient evidence that Coca-Cola in the United States “caused or directed” Coca-Cola Egypt. In their petition for en banc rehearing, Bigios’ counsel maintained that the panel should not have required the Bigios to recite details that could only be obtained in discovery. The Court should have applied the “plausibility” standard articulated by the Supreme Court, which held that a complaint is “plausible” if it contains “enough fact to raise a reasonable expectation that discovery will reveal evidence” of a tort.
In the past, Coca-Cola has made the outrageous claim that Nasser’s nationalization of Jewish property, including that of the Bigios’, was legal and did not violate international law. Coca-Cola claimed that the Egyptian government, therefore, held the Bigios’ property “as of right” and the government could legally convey title to Coca-Cola. Bigios’ attorneys argued that Nasser’s anti-Jewish purge was clearly a violation of international law, and Coca-Cola, which had conducted business with the Bigios and leased the property prior to the purge, was fully aware that the property had been stolen from the family without compensation.
The Bigio family is represented by Nathan Lewin and Alyza D. Lewin of Lewin & Lewin, LLP in Washington, D.C. and Sherrie Savett, Arthur Stock, Douglas Risen, and Shoshana Savett of Berger & Montague, PC in Philadelphia, PA.
“The full roster of Second Circuit Judges will surely see that the panel’s clearly erroneous decision is grossly unjust and rewards Coca-Cola for litigation tactics that conceal the role that its highest corporate officers played in exploiting property confiscated from its owners only because they are Jewish,” said Nathan Lewin.
Sherrie Savett added, “"To dismiss a claim of this importance, after the Court of Appeals has sustained it twice on jurisdiction and venue grounds, based on a factual issue of whether Coca Cola "caused or directed" Coca Cola Egypt's unlawful actions, all before plaintiffs were allowed any discovery of facts in Coca Cola's possession, is a disappointing denial of justice."
Refael Bigio noted, “Our family has always considered the United States as an example of righteousness in this world. Our story is one of flagrant abuse, first by an anti-Jewish government, then by a greedy corporate Goliath. We hope and pray that our case will demonstrate that regardless of who you are, you will be judged in accordance with your deeds and not by what you pretend to be. We have faith that justice can and will ultimately be found in the USA."