Results matching “apartheid”

Germany's Daimler -- which is also objecting to the South African government's turnabout on the suit -- and Barclays Bank are among those protesting the creative legal theories. Earlier here.

More: Princeton Lyman (Council on Foreign Relations), NYT op-ed. And also on the Alien Tort Statute, here's a YouTube video in which Linda Kelly, director of legal education programs for the Searle Center on Law, Regulation, and Economic Growth at Northwestern Law, discusses the center's efforts related to the statute.

Around the web, December 16 - PointOfLaw Forum

  • Someone leaked SEIU's Employee Free Choice Act "cheat sheet" [Big Government via @Eric_B_Meyer]
  • "Shameful" prosecutorial misconduct, lack of evidence: judge tosses charges against last two defendants in Broadcom backdating case [AP, Ribstein]
  • "Date set for 'apartheid' class action" [Daily Dispatch, South Africa]
  • Chicago class action firm KamberEdelson has filed secondhand smoke suits against Wynn, Caesar's Palace casinos in Nevada [Las Vegas Sun]
  • "Qui Tam Suit Against University Nets $78.5 Million Settlement" [University of Phoenix; The Recorder]
  • A trend? Federal Circuit issues a third mandamus order removing patent case from E.D. Tex. [Alison Frankel, AmLaw] Update: et plus encore.
  • "UMass Trustees Approve Plan for Public Law School" [Above the Law, earlier]
  • Don't hesitate to donate food generously at this time of year, Congress and most states have enacted Good Samaritan liability immunities that should stand up [Matti Neustadt Storie, Food Liability Law]

Around the web, September 11 - PointOfLaw Forum

Consumer arbitration in retreat - PointOfLaw Forum

Consumer arbitration, long targeted by the plaintiffs' bar and "consumer activists," has just taken a big hit in the political and PR world, and the legislative world awaits, sap at the ready.

Attorney General Lori Swanson of Minnesota last week sued (news release, complaint) and then negotiated a settlement with National Arbitration Forum, in which the NAF agreed to drop its business of arbitrating credit card and other consumer collection disputes.

In her release today announcing the settlement, Swanson said: "I am very pleased with the settlement. To consumers, the company said it was impartial, but behind the scenes, it worked alongside credit card companies to get them to put unfair arbitration clauses in the fine print of their contracts and to appoint the Forum as the arbitrator. Now the company is out of this business."

The Forum also issued a release, defending its practices and characterizing the settlement as a business decision forced upon it.

"The National Arbitration Forum remains committed to consumer arbitration as the best and most affordable option for consumers to resolve disputes quickly and efficiently. However, the FORUM lacks the necessary resources to defend against increasing challenges to arbitration on all fronts, including from state Attorneys General and the class action trial bar," said Forthright CEO Mike Kelly. "Mounting legal costs, a challenging economic climate, and increased legislative uncertainty surrounding the future of arbitration have prompted the FORUM to exit the consumer arbitration arena. At this time, the costs of providing consumer arbitration services far exceed the revenue generated. Until Congress resolves the legal and legislative uncertainty the cost is simply too high for users and providers of consumer arbitration."

The American Association of Justice hailed the settlement in a release, arguing it proved the need for U.S. legislation to end predispute consumer arbitration clauses. Pending in Congress are a complete ban, the Arbitration Fairness Act (S. 931 and H.R. 1020), and legislation limited to nursing home arbitration. Public Citizen, another anti-arbitration campaigner, called the settlement "a tremendous win" for consumers.

Attorney General Swanson gets to take a D.C. victory lap on Wednesday when she testifies before the House Committee on Oversight and Investigations, Domestic Policy Subcommittee, at a hearing, "Arbitration or 'Arbitrary': The Misuse of Arbitration to Collect Consumer Debts." Kelly is also scheduled to testify, but the hearing was planned before Swanson's suit and the settlement, so he could be forgiven...

News coverage...

"The U.S. Can't Be the World's Court" - PointOfLaw Forum

So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it's not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:

  • As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government's executive branch and today's duly elected multiracial South African government. Unfortunately, the State Department's up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: "Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability."
  • If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be "hold them against the eventual day when a non-tyrannical regime emerges there, it will need help." Reasonable possibility #2 might be "divide the assets among Castro's many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments". The answer you'd think makes no sense at all is "encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2". So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff's lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: "with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens" (more on Che Guevara, via).
  • On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.

Around the web, April 23 - PointOfLaw Forum

International law/international human rights edition:

April 14 roundup - PointOfLaw Forum

Around the web, December 4 - PointOfLaw Forum

  • Good response to clueless Marie Cocco column that celebrated tenth anniversary of corrupt, undemocratic multi-state tobacco settlement [Sullum, Reason "Hit and Run"]
  • New details on Philadelphia prosecution of ring that allegedly helped itself to class action proceeds by filing bogus claims [WSJ law blog, earlier]
  • More thoughts regarding that offensively titled "Patriot Employers Act" being pushed by union advocates in Congress [Coyote, earlier]
  • Proposal for tougher curbs on residents' work hours: will training suffer? [MedRants]
  • Remember the Nader-originated PIRG (Public Interest Research Group) groups? In Canada, University of Ottawa's OPIRG faces furor over its snubbing of Hillel group citing "relationship to apartheid Israel" [National Post]
  • Housing finance bubble the outcome of laissez-faire? What laissez-faire would that be? [Lawrence White, Cato Unbound via Bainbridge]
  • Motion to recuse Illinois Supreme Court justices who took Corboy & Demetrio money -- but that'd require recusing four of the seven [ABA Journal; more on Caperton v. Massey, headed for high court]

Division of spoils - PointOfLaw Forum

Directly below we cite Michael D. Hausfeld in the New York Times article about tort wars, discussing the future for litigation overseas.

Turns out many in Europe are already familiar with Mr. Hausfeld, as recounted in this October, 2004, article in the German political magazine, "Cicero" entitled, "The Business of Suffering." Our quick translation of a few paragraphs follows.

Payments from the foundation, "Memory, Responsibility and the Future" to forced laborers under the Nazi regime are entering their final stage. Also in the balance are the enormous fees flowing to the U.S. attorneys.

It's 7,700 against 7.7 million. The 7,700 Euro is the highest amount that an individual Nazi-era forced laborer can claim as damages. The 7.7 million Euro, that's the highest fee that the New York attorney Melvyn Weiss can add to his checking account for his work on the case. His colleagues are also earning hefty sums: 6,1 million Euro is going to Michael Hausfeld from Washington, 5.1 million to the New York law professor Burt Neuborne. In total, 51 attorneys will divide about 60 million Euro among themselves.

Certainly not a flattering story about the American legal profession.

Mr. Hausfeld has been in the U.S. news recently as an attorney in the suit Isuzu Motors v. Ntsebeza. That's the Alien Tort Claims litigation suing U.S. and foreign companies for having conducted commerce with apartheid-era South Africa, consistent with U.S. foreign policy. The U.S. Supreme Court failed to get a quorum to hear the case because of recusals, which means the suit remains alive at the appellate level. (Earlier Point of post here.)

Wonder what the division of spoils might be in that one?

P.S. Google searches in German, Spanish and French turned up no recent news stories about Mr. Hausfeld.

An unusual and unfortunate development at the U.S. Supreme Court today, as four justices recused themselves in an appeal of lawsuits brought by South African nationals against U.S. companies that did business with the South African government. Three of the justices own stock in the affected companies and another has a son who works for Credit Suisse. (AP story.)

The case is American Isuzu Motors Inc. v. Lungisile Ntsebeza, 07-919. The court's order is available here.

As Dow Jones explains:

When lacking a quorum, the Supreme Court is required to affirm a lower court [2nd Circuit] ruling that went against the companies, many of them major international corporations. Both the U.S. and South African governments also urged the high court to hear the case.

The South African apartheid appeal could affect more than 50 companies sued in 11 separate lawsuits for damages claims that exceed $400 billion. Among those who signed onto the appeal are American Isuzu Motors Inc., a unit of Isuzu Motors Ltd. (ISUZY), Ford Motor Co. (F), JPMorgan Chase & Co. (JPM), Honeywell International Inc. (HON), General Electric Co. (GE) and 3M Co. (MMM).

The lawsuits represent a major interference with the Executive Branch's conduct of foreign policy and open up U.S. businesses to liability claims for doing business in an entirely consistent fashion with that foreign policy.

The National Association of Manufacturers joined other business groups in an amicus brief (available here); the others are the National Foreign Trade Council, USA*Engage, U.S. Council for International Business, and the Organization for International Investment.

The Solicitor General's brief is available at ScotusBlog here.

In an earlier Point of Law post, The Manhattan Institute's Jim Copland argued, "As I expressed in an interview this spring, before the case was decided, the suits are largely driven by "cowboy law professors who want to hijack U.S. human-rights laws. They exploit U.S. courts to get their preferred policies implemented without having to worry about the State Department or Congress." While the latter class of cases -- those against the multinationals -- are the more typical fee-driven sort, many of these cases are also driven by "a feeling of 'I want to be the secretary of state' among these lawyers."

Also, Michael Krauss commented, "Saudi Arabia's barbaric laws mistreat women and viciously oppress non-Muslims. China enslaves millions, harvests organs from thousands it executes, and is still in denial over Tiananmen Square. Warning to all US companies doing business in those places -- did you know you might be committing an American tort? Talk about a tariff barrier to exports!"

Transnational assaults on business in court - PointOfLaw Forum

Vince Vitkowsky (Edwards Angell Palmer & Dodge LLP) connects some of the dots between the Ecuador suit against Chevron Texaco, the Alien Tort Claims statute, and the audacious case (greenlighted recently by the Second Circuit) seeking to blame European and American businesses for the evils of South African apartheid, against the wishes of that country's current multiracial government.

The Legal Times' Tony Mauro reports on the latest development following the shocking October 2007 decision by the 2nd Circuit court of appeals to allow a suit to proceed against hundreds of corporations, under the Alien Tort Claims Act, for their participation in the South African economy under the apartheid regime.

The defendants have petitioned for cert to the U.S. Supreme Court. The petition in American Isuzu Motors Inc. et al. v. Ntsebeza et al., argues that the lawsuit should not be allowed in light of strong objections by both the United States and the elected government of South Africa. South Africa sees the suit as a "completely unacceptable" infringement of its sovereignty and an interference with its reconciliation policies, and the U.S. says the suit has already undermined its foreign policy.

Saudi Arabia's barbaric laws mistreat women and viciously oppress non-Muslims. China enslaves millions, harvests organs from thousands it executes, and is still in denial over Tiananmen Square. Warning to all US companies doing business in those places -- did you know you might be committing an American tort? Talk about a tariff barrier to exports!

Legal Imperialism - PointOfLaw Columns

By Joseph G. Finnerty III and John Merrigan

This piece originally appeared in the Wall Street Journal, 2-28-07

The media recently has been writing the obituary of the tort lawyers. "The power of the plaintiffs bar is on the wane," argued the American Lawyer; a cover story in Business Week promised to reveal "How Business Trounced the Trial Lawyers." With apologies to Mark Twain, the reports of the trial lawyers' demise are greatly exaggerated.

While asbestos and tobacco litigation bonanzas are winding down, America's most aggressive contingency-fee law firms still have in place a fee structure in search of an investment strategy. And so, faced with shrinking domestic opportunities, these firms have gone global.

Consider one class-action lawsuit, in which a plaintiffs firm sued Deutsche Bank on behalf of an African tribe which suffered atrocities committed by imperial Germany in the 19th century. Or another, consolidating 10 complaints filed around the country on behalf of all South Africans injured by the former apartheid regime from 1948 to the present.

One of the South African complaints was on behalf of a class including 32,000 plaintiffs; the class in another was estimated to encompass "millions of individuals." The defendants, almost 100 multinational corporations that did business in South Africa after 1948, were alleged to be liable for injuries on the theory that they had aided and abetted the apartheid regime. Purported damages in just one of the consolidated actions total $400 billion.

The law used to lodge these massive foreign class actions in the U.S. is the Alien Tort Statute (ATS). This obscure piece of legislation adopted in 1789 gave federal district courts jurisdiction in civil cases brought by an alien for a tort committed in violation of the law of nations, or of a U.S. treaty. The law was passed primarily to assure a hearing for cases involving offenses against foreign ambassadors, violations of safe conduct and piracy.

The ATS was virtually dormant for two centuries. Then relatives of a Paraguayan citizen who had been kidnapped and tortured to death by a Paraguayan police official—on Paraguayan soil—brought a civil suit against the police official. Plaintiffs and defendants happened to be in the U.S., the police official illegally. In 1980 a U.S. court of appeals allowed the suit to go forward under the ATS, on the grounds that the police official violated international law, including various U.N provisions. From that acorn a mighty oak has grown.

Even by American standards the size of recent ATS class actions is extraordinary. Cases involving wholly foreign events routinely consist of tens or hundreds of thousands of "John Doe" plaintiffs who reside in remote locations as distant as Sudan and Pakistan. The size of the class of defendants has also grown to 500 or more deep-pocketed individuals or companies.

The fact that these lawsuits appear in U.S. courts at all defies common sense. Imagine our justifiable indignation if courts in Japan, France or Russia determined they had jurisdiction over alleged wrongdoing by Americans, in America, against other Americans. It takes a thoroughly arrogant view of the world—call it legal imperialism—to presume that our courts should be the arbiter of problems everywhere, whether or not the problem had anything whatsoever to do with the U.S.

Nevertheless, our tort lawyers presume just that, demanding that our court system sit in judgment over alleged conduct occurring completely within the borders of other sovereign nations, regardless of the effect this may have on U.S. foreign relations. Huge ATS cases have been filed against classes of unnamed defendants in Saudi Arabia, the United Arab Emirates, Qatar and other countries in the Middle East where vital, and delicate, U.S. national security interests are at stake.

Of course, it ultimately will be impractical for U.S. courts to police these monster ATS class actions if they are allowed to proliferate; they dwarf in size the asbestos cases that currently plague the U.S. courts. Congress could have amended the ATS to limit the damage, and in 2005, Democratic Sen. Dianne Feinstein proposed to do so, without success.

Fortunately, the Supreme Court weighed in. In Sosa v. Alvarez-Machain, a Mexican doctor suspected to have participated in the torture and murder of a U.S. DEA agent was apprehended in Mexico by Jose Sosa, a Mexican national hired by U.S. law enforcement. Mr. Sosa brought the Mexican doctor to the U.S., where he was arrested. The doctor sued Mr. Sosa for unlawful detention. In 2004, the Supreme Court dismissed the action and imposed a "high bar" against innovative ATS lawsuits. As a result of Sosa, several ATS suits have been rejected because of the potential for interference with U.S. foreign policy.

In one case, the D.C. circuit dismissed an ATS case seeking reparations from Japan for crimes committed during World War II because the suit interfered with state-to-state negotiations and threatened to "disrupt Japan's delicate relations with China and Korea, thereby creating serious implications for stability in the region."

In another, a federal court dismissed a case brought after the Israeli Defense Forces used heavy equipment to demolish buildings in the Palestinian territory. Plaintiffs sought damages from the manufacturer, Caterpillar, along with an order to stop supplying products to the Israeli armed forces. The court noted that the plaintiffs improperly sought to challenge the acts of an existing government in a region "where diplomacy is delicate and U.S. interests are great."

Trial lawyers nevertheless continue to test the outer limits of ATS liability, "high bar" or not, by filing an array of increasingly ambitious ATS class actions. In one pending case, Wal-Mart has been sued on behalf of residents of China, Bangladesh, Indonesia, Swaziland and Nicaragua. Plaintiffs seek to hold the company vicariously liable for the labor policies of its overseas suppliers. The improvement of labor policies in other countries is certainly a worthy goal. But it is the province of the executive branch and Congress under the foreign affairs and treaty-making powers, not that of attorneys looking for contingency fees.

The corporations named in the South African case—including IBM, General Motors, Ford, Xerox, Coca-Cola and Citigroup—were legally doing business in South Africa pursuant to the official U.S. policy of "constructive engagement" that sought to encourage positive changes in South Africa through economic investment. Recognizing this, the federal court in the Southern District of New York dismissed all 10 of the cases.

That dismissal, along with the dismissals of several other ATS cases, is now pending on appeal before the Second and Ninth Circuits. As these and other ATS cases ripen for appellate review, the era of post-Sosa ATS jurisprudence is entering a critical phase.

The executive branch has promoted strict conformance with Sosa: Both the Clinton and Bush administrations have filed progressively stronger "Statement of Interest" briefs urging that federal courts dismiss ATS cases that could interfere with U.S. foreign policy.

Still, leading class-action law firms such as Motley Rice, Milberg Weiss and Cohen Milstein have launched exploratory ATS cases to test the waters, trying to maneuver around sovereign immunity, which prevents lawsuits against foreign governments. Instead, the plaintiffs lawyers claim that U.S. corporations doing business abroad are vicariously liable for the purely overseas acts of foreign governments, or other actors, in jurisdictions where the U.S. companies do business. And pressured by the massive exposure involved in ATS class actions, defendants in some early cases have opted to settle rather than undertake the risks of litigation.

These plaintiffs firms are flush with cash, experts in the business of creating cases, and undeterred by setbacks. In fact, contingency-fee lawyers take each rejection as a lesson in which tactics work and which do not. They know that if they can weather dismissal motions in a single case, they can proliferate a succession of copycat ATS class actions.

Once they do, you can be sure that a torrent of global ATS class actions will follow—to the detriment of the U.S. court system, foreign policy and U.S. standing around the world.

Mr. Finnerty heads the New York Litigation Practice Group for DLA Piper, which represents defendants in ATS cases. Mr. Merrigan, a partner at DLA Piper, is former chairman of the Democratic National Committee's Business Council.


For more information, please see "There They Go Again" The Trial Bar's Quest for the Next Litigation Bonanza By Arthur Fergensen and John Merrigan, January 2007.

NRO's Jonathan Adler, also a professor at Case Western Reserve University School of Law, posted a good piece online yesterday discussing the Supreme Court's holding last month in Sosa v. Alvarez-Machain. The case had addressed the recent application of the 1789 Alient Tort Claims Act to a variety of "international injustices."

As Adler explains: "The first such suits in federal courts were brought by foreign citizens against foreign officials alleging severe human-rights abuses overseas, such as torture and mass atrocities. More recently, human-rights and environmental activists have brought suits on behalf of foreign nationals against multinational corporations for their alleged complicity in the rights abuses of foreign regimes. In one suit, for example, U.S. plaintiffs' attorneys are suing corporations that did business with South Africa's Apartheid government, alleging these companies were complicit in the regime's human rights abuses - and that only a whopping tort settlement in a U.S. court can right the wrong."

My take on these suits? As I expressed in an interview this spring, before the case was decided, the suits are largely driven by "cowboy law professors who want to hijack U.S. human-rights laws. They exploit U.S. courts to get their preferred policies implemented without having to worry about the State Department or Congress." While the latter class of cases -- those against the multinationals -- are the more typical fee-driven sort, many of these cases are also driven by "a feeling of 'I want to be the secretary of state' among these lawyers."

The 1789 Act granted U.S. courts original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations . . ." The Court held, unanimously and quite sensibly, that the law in 1789 could only have been meant to include those "violations of the law of nations" acknowledged in 1789, i.e., "violating safe conduct, infringing the rights of ambassadors, and piracy."

But even then, the Court's majority opinion was sufficiently squishy that I expect we haven't heard the end of this tale. Justice Souter's majority opinion noted only that "a decision to create a private right of action is one better left to legislative judgment in the great majority of cases," it specifically left the door "ajar" to suits based on "international norms" that are "accepted by the civilized world and defined with a specificity comparable" to the original actions contemplated by the 1789 Act. Thus, the Supremes hardly stopped abuse of our courts based on this arcane law but rather trusted in the "vigilant doorkeeping" of our federal courts.

Adler quoted Hofstra law professor Julian Ku, my law school classmate and housemate, as stating that the opinion "makes all the right noises about the dangers of unrestrained federal court international lawmaking, but it didn't take that final step that would have restricted it in any meaningful way." Julian is a specialist in international law (see some of his academic writing here, and on Westlaw see some of his earlier writings, "Customary International Law in State Courts," 42 Va. J. Int'l L. 265 (2001), and "The Delegation of Federal Power to International Organizations: New Problems with Old Solutions," 85 Minn. L. Rev. 71 (2000)); he tells me that his bretheren among the international law faculty who were involved in this suit view the Supreme Court opinion as a victory, giving them a green light to pursue their international law-based claims against businesses.

Suits have already been filed against companies that made significant investments in Iraq. The tendency for such litigation to obstruct the executive branch's foreign policy powers is obvious. But trampling on the separation of powers and assuming all power for itself is what the rule of lawyers seems to be all about.