Apartheid Victims Set Hopes on U.S. Lawsuit

[struggle4progress]

The mother of a teenager killed in 1976 riots and five other apartheid victims are suing the South African government and major international corporations for more than US$20 billion, their lawyer said Monday.

The lawsuit, filed Saturday in a U.S. court, targets South African President Thabo Mbeki and nine corporations, including mining giants Anglo American and Gold Fields, computer company IBM, Union Bank of Switzerland and local petroleum giant SASOL, according to U.S. attorney Ed Fagan.
<snip>

The lawsuit claims the plaintiffs suffered abuses under the country's former white rulers - including detention, beatings, torture, rape, forced removals from their homes and killings - that were part of a ``genocide'' campaign, Fagan said at a news briefing in Johannesburg.

Mbeki, South Africa's second black president, is named because his government has opposed previous attempts by the plaintiffs to seek compensation from international companies that operated here under apartheid.
<snip>

http://www.africana.com/newswire/blackworld_article.asp?ID=542

[AP]

1. I believe suits like this, and the Hollocaust reparations suits are GREAT

ways to get corporations to behave.

A lot of the worst shit that has happened in the last 150 years was done in order to preserve corporate profits. They have been able to hide behind state sovereignty though. If a government is willing to do something really shitty to another country in order to make Chiquita or IBM or whomever really wealthy, thos companies have been able to hide behind the skirts of their government, even though they reap huge financial benefits from the governments actions.

I think removing the profit element by having suits like these is part of the reason we have a civil justice system. The courts can be a huge force for doing good.

If Halliburton knew that there was a pretty good chance that all the money they make in Iraq could be recovered by a couple civil suits by Iraqi citizens, I wonder if they'd be so eager to go into Iraq in the first place?

[ZR2]

2. Do you really think these kind of suits will even bother them ?

They have liability and umbrella insurance coverage to protect them from lawsuits. The company won't even be the one fighting it in court, the insurance company will to prevent having to payout.

[FlemingsGhost]

3. Yup, folks looking to the U.S. for corporate justice?

Their naiveté is charming.

[ZR2]

5. They are not looking for "thier day in court"

They are hoping for a quick out of court settlement, and the only ones that will be getting much of anything will be the lawyers.

[AP]

8. That's not how the Hollocaust suits worked out. Those settled, victims

got money, and corporations are definitely thinking twice about aiding and abetting genocide.

And what's wrong with settling?

You say that as if you think that unless there's a 5 year trial, a law suit isn't worth the time and effort.

[ZR2]

9. When you agree to settle out of court it just proves

that the only interest is in getting money, not in proving your case.

[AP]

12. That's is the most uniformed opinion I've seen on DU in days.

Settling out of court often means the defendant knew he or she had no defense and that both sides can agree to the precise value of the claim.

[geek tragedy]

14. It also happens

because the defendant doesn't want to deal with bad publicity.

Settling would take away the "it wasn't about the money" claim.

My guess is that they won't settle this, but will instead get it thrown out of court.

[AP]

17. The truth sometimes hurst, but if there were any indication that these

suits were only about bad publicity and were some kind of bribe, the plaintiff could be sanctioned.

[geek tragedy]

19. That only happens

if the claim is so obviously groundless that it must have been brought in bad faith. Lots of lawsuits get tossed without any sanctions being applied. The courts will be very reluctant to sanction victims of human rights abuses.

[AP]

21. Looks like two other cases by Fagan are already pending and haven't

been thrown out. So, I suspect these claims are surviving motions for dismissal.

[geek tragedy]

23. There would have been major news

had the Court rejected a motion to dismiss.

[AP]

25. You don't think SDNY Fed judges like to follow the law - that they make

their decisions based on what the media thinks?

[geek tragedy]

27. No, what I'm saying

is that the news media would have reported it had they found a valid cause of action.

[AP]

29. So? I guess we could check the record and see if there have been

motions to dismiss filed and we could see if they failed.

It seems silly to hypothesize.

If you have Lexis there at work, why don't you check.

[geek tragedy]

31. Can't bill it to the client

That stuff ain't free.

[AP]

32. Then go Sheoppardize it. If you have time to post on DU, you have time

to walk down the hall to the library and get us the facts about these cases.

[geek tragedy]

34. I'm not your research assistant

and you obviously don't know what Shephardizing is.

[AP]

36. Yes you are. By posting here, you are taking the responsibilty of being

a research assistant to the public. Now that we know you're a lawyer we're going to hold you to higher standard. You can't just spout first year law BS about the general principles of tort law. If you want to make an argument about the ATL not applying, show us the statute. Show us a copy of the pleadings where they're claiming it's satisfied. Show us the respondent's pleadings where they say it isn't (if they in fact are claiming it isn't).

Then let's talk about the court's rulings on those issues in similar cases, like the holocaust cases and the other two pending apartheid claims.

[AP]

6. I think the Holocaust suits will make corps think twice abotu what they

did during WWII.

Insurrance companies are definitely going to do some due dilligence on corporations with potential liability in the billions of dollars. And they'll probably start writing in exclusions so that they don't cover shit like this (if they don't already).

That a defendant is insured has never been a good reason not to bring a law suit.

[Just Me]

11. I am in agreement with you, AP, about these suits.

They can be a very effective deterrent. Insurance companies are typically NOT obliged to cover anything that is tinged with criminal or malicious intent.

I hope this class action is fabulously successful and kicks ass big time!!!!

[geek tragedy]

4. The suit will be dismissed.

No violation of US law.

[AP]

7. Where were you during the Holocaust reparations suits?

[geek tragedy]

10. Let me rephrase

No cause of action under the Alien Tort Claims Act. They still need to allege a cause of action under US law.

[AP]

13. Again, where were you during the Holocaust suits?

Weren't some of those claims brought in US courts?

[geek tragedy]

16. Yes, they were,

and they were brought under the Alient Tort Claims Act.

But, there's a big difference (legally--I'm not going to get into the morality) between the corporations that directly participated in the Nazi atrocities and the corporations that did business with South Africa.

[AP]

18. Same fascism, different victims.

[geek tragedy]

20. The legal difference

is between direct and indirect participation in human rights abuses.

[AP]

22. I think some of those mining companies might have been directly involved

in abusing civil rights.

Do you have a professional interest in these cases?

Are you a lawyer?

[geek tragedy]

24. Yes, I'm a lawyer

but no I'm not working on any of them.

[AP]

26. But you do work for corporations don't you?

[geek tragedy]

28. Frankly,

my clients are none of your business. So, save your cheap shots.

[AP]

30. What's cheap about revealing conflicts of interest, bias and motivation?

I don't want to know WHO your clients are.

But I think it's totally fair that DU'ers know where you're coming from.

[geek tragedy]

33. Oh, spare me the sanctimonious crap

This isn't about me or my "agenda." If you can't address the substance, accuse the person making the argument of disloyalty, having a secret agenda, or bias. Zzzzzzzz.

What I'm talking about is basic tort law.

Where I'm coming from is my own legal training and understanding of the law. And any first year law student can tell you that there's a big difference between actively participating in a wrongful act and doing business with someone who commits a wrongful act.

[AP]

35. You weigh in mostly when the discussion is about corp profits being

threatened by social justice.

This is more than BASIC tort law. This is about cases that are actually pending, and that actually have successful precendents, and have obvious liberalizing influences on corporate behavior.

If you weren't a lawyer, I could understand taking the superficial look at these cases. But because you are a lawyer, you should be held to the higher standard.

Why don't you provide us links to the cases so that we can see the arguments? Why don't you show us the links to the holocaust cases? Why don't we see where the various motions on the preceding two apartheid cases stand.

You're not a first year law student any more. So let's take this up a notch. No more sloganeering on this issue. Let's see the black and white on these cases.

And why don't you have the courage to tell us what kind of law you practice and what kind of clients you have?

[geek tragedy]

38. You just don't get it.

I'm applying law to facts. And the big difference between this case and the Holocaust cases is that the former involves allegedly indirect participation while the latter involved direct participation.

That makes a huge difference, l-e-g-a-l-l-y.

If you really want to find the cases and materials submitted, find them yourself.

And, again, please spare me the O'Reilly tactics of bullying, loyalty questioning, and insults. It's equally obnoxious when Marcusian punks and right-wing media pigs do it.

[AP]

40. Lets see the pleadings. How would you even know that? I suspect the

facts are remarkably similary. Fascist governments helping corporations make a buck off of human rights violations.

Why are you so eager to discredit these cases without even knowing what's in the pleadings.

I'd love to know what these pleadings say. That's why I'm asking the lawyer whom I presume is basing his (or her) statements on something other than just a prejudice against cases like this.

And if you haven't seen them yet, I suspect the answers are very easy to get, and you could spend less time finding them then you're spending jousting with me.

I'm sorry that you feel like me asking you to be honest is bullying. I don't mean it like that. But you do a lot of agressive arguing yourself, especially in thos Chavez threads, so I thought you could take it.

[geek tragedy]

42. Check out this link:

http://news.bbc.co.uk/1/hi/business/2184243.stm

<snip>
Mr Fagan said that while the companies named in the case did not commit the crimes, their support of the apartheid government made it possible for its officials to carry out crimes against humanity.
<snip>

and this link:

http://www.nzz.ch/2003/11/07/english/page-synd4425644.html<snip>
November 7, 2003

A United States judge looks set to throw out a class-action lawsuit brought by victims of apartheid against major multinationals, including Swiss banks.

Judge John Sprizzo said he could not see how doing business with South Africa’s apartheid regime was a breach of international law.
<snip>

[AP]

37. As a lawyer, you should know that these would be questions of fact and

not law and these suits would never be thrown out on grounds relating to this point.

So why did you think the suits would be tossed?

[AP]

15. Here's an article about the Alien Tort Claims Act

http://www.sangam.org/JANAKA/ATCA.htm

"“The Alien Tort Claims Act (ACTA) was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that ‘he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States…” For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases . As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA .



These suits produced several important decisions interpreting the meaning and scope of the 1789 Act. For example, in Filartiga v. Pena-Irala, this court held that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. More recently, we held in Kadic v. Karadzic, that the ATCA reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties."

...

[struggle4progress]

39. Well, perhaps you are right, although if I remember correctly ...

some multinationals worked very closely with the apartheid government. But why are you so sure?

[geek tragedy]

41. Because doing business with

regimes that abuse human rights has never been a violation of international law. The idea may be picking up some steam, but it's a long way from being reality. And it certainly wasn't a violation of international law twenty years ago.


And basic tort principles don't allow a defendant to get tagged unless they either had some affirmative duty to the plaintiff (not the case here), owned and/or controlled the actual wrongdoer (not the case here), or partipated in the actual tortious act (was the case in the Holocaust litigation, not the case here (with perhaps some exceptions for mining companies, which are always engaged in nasty shit, as the people of Appalachia can tell you).

[struggle4progress]

43. Is the complaint at hand simply based on vague business contacts? eom

[geek tragedy]

44. It's an enabler theory

The banks and corporations did business with and in South Africa. This helped keep the regime in power. Therefore, they're responsible for the actions of the state of South Africa.

As I posed in #42, not likely to work with the judge.