The View From LL2

Earlier today, I was hoping to find a list of Alien Tort Statute (ATS) cases that resulted in plaintiff victories of some sort or another — I figured that would be a pretty handy list to have for reference, so someone must have compiled it before. So while I’m sure another, better list does exist somewhere out there, my Google-fu was too weak to find it, and I had to go and make one myself.

This list is almost certainly incomplete, but it’s all I could scare up after a not-entirely exhaustive search, so if anyone knows of any I’ve missed, by all means tell me! As for total ATS cases ever filed, the official answer from a few sources seems to be “over one hundred,” without anything more specific; if anyone knows of a full listing of ATS cases ever filed, I’d be grateful if they could point me towards it.

A. Successful ATS Claims Against Non-Corporate Entities

1. Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795): Suit against French captain who captured a Spanish slave ship in 1794. Defendant was forced to return slaves or pay restitution.
2. Adra v. Clift, 195 F.Supp. 857 (D.Md.1961): Iraqi mother found in violation of law of nations by refusing to return custody of daughter to her father, and for forging passports for her to be admitted to U.S. However, the Lebanese father was denied relief as court found it to be in daughter’s best interest to remain with mother.
3. In re Estate of Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1993): This was the first ATS case to go to trial. Defendant liable to the class for over $766 million in compensatory damages, and $1.2 billion in exemplary damages.
4. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996): Bench Trial. Case against Ethiopian guard for torture and CITD, affirmed by the 11th Circuit. Plaintiffs each awarded plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. Also note that one of the attorneys for the plaintiffs was Harold Koh.
5. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997): “Judgment entered on behalf of Plaintiffs and against Defendants the Republic of Cuba and the Cuban Air Force for total compensatory damages of $49,927,911. Judgment entered for Plaintiffs and against the Defendant the Cuban Air Force (only) as punitive damages, the sum of One Hundred Thirty Seven Million, Seven Hundred Thousand Dollars ($ 137,700,000). Total compensatory and punitive damages awarded to Plaintiffs $187,627,911, for which sum execution issued against the Defendants Cuba and the Cuban Air Force and against any of their assets wherever situated.”
6. Cabello v. Fernández Larios, 205 F.Supp.2d 1325 (S.D. Fla. 2002), aff’d in 402 F.3d 1148 (11th Cir. 2005): Jury verdict on Oct., 2003. Murder of Chilean economist by one of Pinochet’s military commanders, descendants sue for, inter alia, crimes against humanity and CITD. $3 million in compensatory damages ($2 mill. for extrajudicial killing, $1mil. for CAH), plus $1 million in punitive. So far, plaintiffs have recovered $200,000. (Also worth interest — 1th Cir. cited to ICCPR in its decision. It also found Larios could be indirectly liable under either a theory of aiding and abetting or conspiracy.) (Further, defendant in case is the source of one of the creepiest threats I have ever heard: “I will caress the little pigeons.”)
7. Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006): “The three plaintiffs in this case are Salvadoran refugees who were allegedly tortured by military personnel in El Salvador during a campaign of human rights violations by the Salvadoran military from 1979 to 1983; the two defendants were leaders in the Salvadoran military. All of the plaintiffs sought compensatory and punitive damages under the Torture Victim Protection Act; two plaintiffs sought the same relief under the Alien Tort Claims Act. A jury awarded the plaintiffs a total of $ 54,600,000, and the court entered judgments accordingly. The defendants now appeal, contending that the statute of limitations bars the plaintiffs’ claims. We conclude, based on the doctrine of equitable tolling, that the claims are not time-barred.” Although the 11th Circuit reversed its decision initially, after finding the reversal was based on certain factual errors, the jury verdict was upheld in the entirety.
8. Jean v. Dorelien, No. 03-20161 (S.D. Fla.) (verdict issued Feb. 23, 2007): $4.3 million verdict. ($580,000 recovered to date).
9. Chavez v. Carranza, W.D. Tenn. No. 03-2932 M1/P (Nov. 18, 2005) (aff’d by 6th Cir., 17 Mar 2009): Jury verdict for $6 million against commander liable for crimes against humanity.

B. Default Decisions Entered Against non-Corporate Entities

1. Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). $10.4 million judgment, as yet unenforced, for torture by Paraguayan official.
2. Martinez-Baca v. Suarez-Mason, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. 1988): Defendant initially contested, but default judgment in end.
3. Paul v. Avril, 901 F. Supp. 330(S.D. Fla. 1994): Default after defendant decline to participate. Defendant Avril, then the elected mayor of Port-au-Prince, Haiti, was found to have “personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule of September 1988 until March 1990. He also bears personal responsibility for the interrogation and torture of each of the plaintiffs in this case. All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of the authority granted by him. Many of the tormentors included members of the Presidential Guard and Avril’s personal security detail.” The court granted $41 million in compensatory and punitive damages to six Haitian victims of torture and false imprisonment.
4. Xuncax v. Gramajo and Ortiz v. Gramajo, 886 F. Supp. 162 (D. Ct. Mass. 1995): Suit by Kanjobol Indians against former Guatemalan Defense Minister. Default judgment award, $47.5 million. Court sustained claims for torture, summary execution, disappearance, and arbitrary detention as obvious bases of ATS jurisdiction, but called cruel, inhumane, and degrading treatment as a “closer question,” before ultimately accepting it.
5. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995): Default decision on the merits — jury determined damage award of $745 million.
6. Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996): Incitement to genocide, based on Rwanda. $103 million awarded.
7. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002): Default decision on merits – $140 million.
8. Doe v. Saravia, 348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004): Case involved the 1980 assassination of Salvadoran Archbishop Oscar Romero (go watch the movie Romero!). ATS liability found for crimes against humanity and extrajudicial killing. Default judgment of $10 million judgment ($5 million compensatory, $5 million punitive). (Note of interest: trial court cited to ICTY cases, as well as to Rome Statute. Court cites credibility of Rome Statute by noting that “four of the five members of the Security Council” have signed it. But irrelevant that U.S. has not.)
9. Doe v. Liu Qu (N.D. Cal. 2004): Declaratory relief granted.
10. Reyes v. Grijalba (S.D. Fl. 2006): $47 million to six plaintiffs .
11. Doe v. Constant (SDNY 2006): Defendant was a leader of a Haitian political police force used to “repress and terrorize” the civilian population. Damages at $4 million total compensatory, $15 million punitive. ($300,000 recovered so far). Point of interest: During a deposition, Constant stated, “I’m not a member of F.R.A.P.H. I’m a leader of F.R.A.P.H.” I am guessing that did not help his case. Also note that the charges in the ATS case were also relevant to his sentencing for a mortgage fraud conviction in People v. Constant, 842 N.Y.S.2d 255, (2007).
12. Mwani v. Bin Ladin, Mwani v. Bin Ladin, 244 F.R.D. 20 (D.D.C. 2007): Plaintiff, 523 Kenyan citizens, brought an action under the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, for harm sustained as a result of a truck bomb exploding outside the United States Embassy in Kenya allegedly at the direction of defendants, a terrorist organization and its leader. The citizens filed a motion to set a date for ex parte proof and for entry of default judgment under Fed. R. Civ. P. 55 against defendants. Court later allowed for evidentiary hearing on damages, but found no right to jury trial on the issue.

C. Successful ATS Claims Against A Corporation

1. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008): Defendant did make an appearance but refused to defend himself. Plaintiffs were awarded $80 million in damages total. “The Defendant in this case, one of the largest drydock companies in the Western Hemisphere, with tens of millions if not hundreds of millions of dollars in annual revenues, conspired with the Republic of Cuba to force Cuban citizens to travel to facilities the Defendant owns in Curacao, to hold them in captivity there, and to force them to work repairing ships and oil platforms.” The court also found that an ATS claim was sustainable as, “Forced labor constitutes a violation of a well-established, universally-recognized norm of international law. It is widely recognized as one of the handful of serious claims for which the ATS provides jurisdiction in U.S. district courts regardless of where it occurred. It is a brutal offense condemned by the civilized world. This Court is compelled to act strongly to punish and deter it.”
2. Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008) (Aug. 2009): Plaintiff’s verdict for $1.5 million compensatory damages and $250,000 in punitive damages. Appeal planned.

D. Ongoing Claims

1. Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009): Claims arise out of defendant’s participation in the Peruvian “Accomarca Massacre.” Defendant filed for dismissal based on personal jurisdiction, statute of limitations, immunity under FSIA, exhaustion of remedies, political question doctrine, act of state doctrine, failure to state a claim, that plaintiffs were nor “aliens,” whether venue was proper, and whether plaintiffs had standing as personal representatives for decedents’ estates. The District Court denied them all, and the certificate of appealability was likewise denied.

E. Plaintiffs Receiving Out of Court Settlements for ATS Claims Against Corporations or State Actors

1. Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J. 1998). Court granted motion to dismiss of ATS claims against INS, but denied motion to dismiss against INS agents in their personal capacity. (Judge must’ve been predicting Samantar.) Later, United States settled some of the claims including ATS claims.
   The settlement agreement provided: “In this Settlement Agreement, plaintiffs and the government defendants settle any and all claims filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997, in Jama, et al. v. INS, et al., Civ. No. 97-3093 (DRD) (D.N.J.) (the “lawsuit”), alleging, inter alia, tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA).” No word on how much the settlement was for.
2. Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001): Undisclosed Sum, various sources cite “millions.”
3. Wang Xiaoning vs. Yahoo!: Undisclosed, but did cover Plaintiff’s legal fees.
4. Wiwa v. Shell, 2009 U.S. App. LEXIS 11873(2d Cir.) (June 3, 2009): $15.5 million settlement.
5. Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (N.D. Ill., Jan. 15, 2008): “Based on discussions with the parties, it appears that the settlement in the case, the amount of which is evidently confidential, is being funded by the government of Nigeria, which is not a party to the lawsuit. It further appears that the government of Nigeria is the driving force behind the request to vacate the June 27, 2006 decision. The parties have adopted the request because it appears to be important, and perhaps necessary, to finalize the settlement.”

F. Defeated ATS claims after jury trial

1. Ford v. Garcia, aff’d in 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147, (2003): (TVPA) Jury trial held October, 2000, verdict to Defendants due to apparent constraints in jury instructions. First jury verdict in a contested trial under the TVPA only.
2. Romero v. Drummond Co., 552 F.3d 1303, 2008 U.S. App. LEXIS 25861 (11th Cir. Ala., 2008): Verdict given July, 2007, finding Drummond not liable for deaths of the three union representatives.
3. Bowoto v. Chevron, 312 F. Supp. 2d 1229 (N.D. Cal. 2004).

In December 2008, a jury unanimously found for Chevron. Chevron then, somewhat ridiculously, requested attorney’s fees, which the court denied, noting allowing the Defendant to recover fees would have a “chilling effect” on future human rights litigation. The court was not particularly impressed with the request that Nigerian villagers should pay a billionaire corporation for its attorneys fees, as seen from the following discussion:

Defendants argue that plaintiffs have not provided sufficient evidence to establish that plaintiffs are indigent. According to defendants, plaintiffs should also have provided the court with evidence of their assets. Defendants’ objection is not well taken. It can reasonably be assumed that plaintiffs do not earn pensions or accrue other significant assets through their work as, for instance, fish sellers in a Nigerian village. Defendants also argue that, because of the low cost of living in Nigeria, plaintiffs’ incomes “place them well above the average.” [FN2: Defendants cite a World Bank resource that lists the gross national product of Nigeria as amounting to $ 930 per capita in 2007]. While the Court accepts that the cost of living is lower in Nigeria than in the United States, defendants’ bill of costs seeks reimbursement for witness per diems, service of subpoenas, court reporters, videotaping, transcription, and photocopying in this county. The lower cost of living — and correspondingly lower incomes — in Nigeria would therefore suggest that plaintiffs are less able, not more able, to pay these fees, which are calculated according to U.S. standards. The Court finds that the declarations filed in conjunction with the instant motion, as well as evidence at trial about the abject poverty of villagers in Nigeria’s Ondo State, is sufficient to establish that plaintiffs are indigent. Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 38174 (N.D. Cal., Apr. 22, 2009).

4. Hawa Abdi Jama v. Esmor Corr. Servs., 2009 U.S. App. LEXIS 17950 (3d Cir. N.J., Aug. 12, 2009): Jury trial, no liability under ATS.

Updated, July 3, 2010: Still slowly working my way through updating this list, although it remains incomplete. I’m working on a master list of all ATS cases — wins, losses, and settlements — which is about halfway done, and eventually I’ll post that up instead.

-Susan