In October 2006, after lawyers for SINALTRAINAL appealed Judge Jose E. Martinez's dismissal of the 2001 Colombian human rights abuse lawsuits, it was discovered that the judge may have had serious conflicts of interest. The Campaign to Stop Killer Coke believes Judge Martinez should be recused in light of his strong ties to the University of Miami and its athletics, which are intertwined with Coca-Cola. There are also questions regarding his work defending corporations in product liability matters. In addition, his former law firm has a relationship with a Colombian law firm in which a name partner was a vice president of Coca-Cola Colombia.
Martinez, the University of Miami and UM Sports
"If you didn't know any better, you would think that I didn't want to have anything to do with this case, wouldn't you?"
Martinez is very closely connected to the University of Miami and its athletics, which are in large part sponsored by Coca-Cola.
He's a graduate of the University and its law school. Back in 2002, the Miami Herald reported that "he is best known for his sideline: color commentator on Spanish radio for Los Huracanes [The Hurricanes]" and that "the judge's passion often returns to University of Miami athletics." The Herald specified that he is "active in UM law school and athletic department functions...(and) serves as color commentator for Hurricanes football and baseball broadcasts on Spanish radio." The Herald quoted UM athletic director Paul Dee at the reception for Martinez when he became a judge, saying the "crowd might be impressed that the Hurricanes have won 32 straight games...'but that's nothing compared to the fact that we've never lost a game on Spanish radio.'"
Judge Martinez's role as a sports analyst for broadcasts of UM football games as early as 2003 is also described on the University of Miami Athletic Dept. website, sponsored by Coca-Cola. The University has had an exclusive beverage contract with Coca-Cola for years.
Judge Martinez has also "been active in UM matters, serving as...a member of the Governing Board of the UM Hurricane Club," according to the biographical note supplied for an Oct. 30, 2006 luncheon at which he was the keynote speaker. UM identifies the Hurricane Club as "the primary fundraising arm of the athletic department," which is heavily subsidized by Coke. Judge Martinez continues his active participation with UM sports.
In March 2003, Judge Martinez dismissed The Coca-Cola Company from the lawsuit brought in 2001, but allowed the lawsuit to continue against its bottlers. When he inappropriately dismissed Coke's Atlanta headquarters from the lawsuit, it had nothing to do with the merits of the case. Lawyers for the Colombian union say the judge found prematurely, and in error, that The Coca-Cola Company didn't have sufficient ownership or control of its bottlers to be liable.
He ruled prior to any discovery and the opportunity for plaintiffs to show that The Coca-Cola Company does have ownership and control. Martinez's decision was also based on a single document — a sample bottlers' agreement that Coca-Cola admitted wasn't the actual agreement with the Colombian bottlers cited in the lawsuit.
"The three years since Judge Martinez had dismissed Coke from the ATCA case in 2003 had not been kind to Terry Collingsworth and Dan Kovalik. Martinez's indifference, if not contempt, for the case was apparent from the get-go. He seemed to take pride in getting details wrong, at points referring to Uraba as "Bogota or Medellin or whatever the heck it was" and to Isidro Gil as "Joe Blow." His spontaneous style might seem refreshing to someone without a case before him, but to SINALTRAINAL's lawyers it was downright infuriating. Each June, he dismissed all pending motions, allowing them to be resubmitted the following year. Finally at a hearing in June 2006, Panamco's lawyer was reciting the judge's history of dismissals when Martinez broke in. "If you didn't know any better," he said, "you would think that I didn't want to have anything to do with this case, wouldn't you?"
"Collingsworth and Kovalik were flabbergasted to hear such disdain expressed openly by a United States judge. A few months later, Martinez proved the point in a ruling that finally dismissed all the bottlers from the case as well. "
From "The Coke Machine: The Dirty Truth Behind the World's Favorite Soft Drink," by Michael Blanding (Penguin Books Ltd., Sept. 2010)
A Forbes magazine article in December 2003, "Coke's Sinful World," pointed out:
A Forbes magazine article in December 2003, "Coke's Sinful World," pointed out:
"The biggest bottlers aren't subsidiaries of Coke, nor are they completely independent. Coke effectively controls them by maintaining big equity stakes and a heavy presence on their boards, and by providing their main source of business. Yet it keeps its stakes in the bottlers below 50% thereby avoiding getting hit with their piles of debt and any unpleasant liabilities."
Coca-Cola FEMSA is Coke's largest Latin American bottler and a defendant in the litigation. FEMSA's website lists The Coca-Cola Company as owning either 31.6% or 39.6% of its capital stock (both figures are used) and 46.4% of its capital voting stock. Many of Coca-Cola's top executives serve as directors and alternate directors on Coca-Cola FEMSA's board.
When he gave The Coca-Cola Co. a pass in 2003, Martinez chose to ignore documents admittedly created by Coca-Cola, such as letters to consumers and a statement to shareholders that frankly acknowledged the company's control over workplace practices and its right to inspect the plants to ensure that local managers abide by human rights conventions and domestic law.
Martinez's Predisposition for Corporations
In 2002, President George W. Bush nominated Martinez to the Federal bench. At his confirmation hearing, Sen. Dianne Feinstein (Dem.-Calif.) drew attention to his having "specialized in product liability litigation...advising and defending large corporations in product liability suits." Predictably, Martinez promised to be an objective judge, stating: "I think that I will do the right thing and the fair thing." (Senate Hearing 107-584, Pt. 4; Serial No. J-107-23)
Another ethics question came up last year when Martinez overturned a unanimous jury conviction against the Roman Catholic Archdiocese of Miami. The judge neglected to mention that he is a Eucharistic minister, playing a role in Catholic services at St. Augustine Catholic Church in Coral Gables. Fla. Judge Martinez was a name partner at the Martinez & Gutierrez law firm from 1991 until the time of his nomination, September 2002. Upon his appointment to the bench, the firm was renamed Gutierrez & Associates, but retained as its web address, http://www.martlaw.com , apparently referencing Martinez. The home page of Gutierrez & Associates highlights Jose Martinez's work as a partner, reflecting his importance to the firm. The Gutierrez & Associates list of representative clients includes such major corporations and governmental agencies as American Airlines; Borden, Inc.; California Insurance Commissioner; United States Tobacco International; Ford Motor Company; The Philip Morris Companies; Florida Department of Insurance; Emerson Electric Co.; BAC Florida Bank; US Education Finance Corporation; Terrabank, N.A.; E.I. du Pont de Nemours & Company, and the government of Nicaragua.
Martinez himself, while at Martinez and Gutierrez, represented the Tobacco Institute in a case before the Supreme Court. Gutierrez & Associates lists among its associated law firms a Bogota, Colombia firm, Gamboa, Chelela, Gamboa & Useche. That firm's website, in turn, identifies as a name partner Carlos Alberto Useche-Ponce de Leon, a former vice president of Coca-Cola de Colombia, S.A., who also serves as an "Advisor" to the Council of American Companies.
"Everything we have learned about Judge Martinez's connections to the interests of Coca-Cola, the University of Miami, its Coke-subsidized athletic department and his former law firm suggests at least the appearance of impropriety, if not actual bias," said Ray Rogers, director of the Campaign to Stop Killer Coke. "To preserve the integrity of the judicial process, we believe he must be recused from the Coca-Cola cases."