Monthly Archives: November 2009

Psalm 109:8 and Good Faith Biblical Interpretation

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The latest popular religious-political brouhaha to erupt involves a new conservative slogan, which is being featured on bumper stickers, t-shirts, coffee mugs, and other items of internet kitsch. The slogan is, “Pray for Obama, Psalm 109:8.”

On the face of it, Psalm 109:8 does seem like an appropriate sentiment for a right-leaning Christian to pray for God to bring onto Obama: “Let his days be few; and let another take his office.”

But the slogan might be worth reexamining when taken with the rest of the text of Psalm 109:

6 Appoint an evil man to oppose him;
let an accuser stand at his right hand.

7 When he is tried, let him be found guilty,
and may his prayers condemn him.

8 May his days be few;
may another take his place of leadership.

9 May his children be fatherless
and his wife a widow.

10 May his children be wandering beggars;
may they be driven from their ruined homes.

11 May a creditor seize all he has;
may strangers plunder the fruits of his labor.

12 May no one extend kindness to him
or take pity on his fatherless children.

13 May his descendants be cut off,
their names blotted out from the next generation.

14 May the iniquity of his fathers be remembered before the LORD;
may the sin of his mother never be blotted out.

15 May their sins always remain before the LORD,
that he may cut off the memory of them from the earth.

Bible verses are often quoted in a way that obscures or sanitizes the meaning if taken in context, and the vast majority of the time the “true” meaning is adamantly not implied or suggested by whoever is using the quotation. However, while undoubtedly some people purchasing the Psalm 109 products do so with unawareness of the double meaning, I do not think all who advocate the slogan’s use do so in good faith.

People are defending the “Pray for Obama Psalm 109” slogan even after being informed of the larger and more sinister context of the verse. Those in favor of the slogan argue that they don’t mean the slogan “like that,” so the shirts are merely expressing a benign sentiment. However, what this argument basically boils down to is that it is acceptable to deliberately spread about misinterpretations of the Bible and to obscure the true meaning of God’s word. Somehow, I don’t think that argument is entirely coherent with certain other Biblical passages.

At least one online company has announced it will no longer sell Psalm 109 shirts, although when I checked earlier, the shirt pictured in the image above was still available for purchase. Zazzle says:

With that in mind, it is only after great thought that we have determined that these products, in the context of the full text of Psalm 109, may be interpreted in such a way as to suggest physical harm to the President of the United States. In deference to the Office of the President of the United States, and in accordance with federal law prohibiting the making of threats against the physical wellbeing of the President of the United States, Zazzle has therefore determined that these products are in violation of the Zazzle User Agreement and not appropriate for inclusion in the Zazzle Marketplace. We have begun efforts to remove them from our website, and we will be vigilant to the publication of similar products moving forward.

-Susan

Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

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Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the following paragraph from the Notice, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indications, PZ is not nearly so dense as to be oblivious to the irony of quoting another poet, in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession — and many of the copyrights that PZ is trying to protect are themselves volumes of poetry criticism. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright, and contrary to his own father’s feelings on poetry.

Instead, PZ’s Copyright Notice is itself a form of literary criticism, a piece of scholarship about the Zukofskys’ works — albeit one that is, unfortunately, backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, and to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.

-Susan

p.s. If you want to at least listen to P. Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”

The International Law of Antarctic Whiskey of Historical Value

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A New Zealand expedition is planning to drill for one hundred year old whiskey in Antarctica, from two crates left behind by the Nimrod Expedition in 1909.

The Nimrod Expedition, lead by Sir Ernest Shackleton, came within 97 miles of the South Pole before they gave up and came home. They’d originally brought with them 25 crates of McKinlay’s scotch, but two were found to have been left behind in the expedition’s Cape Royds base hut.

However, a century of ice and snow isn’t the only thing standing in the way of the whiskey’s recovery. International law may also pose a barrier, as the hut at Cape Royds has been designated an Antarctic Specially Protected Area (ASPA) under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. Art. 8(4) of the Annex requires that “Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.” Although temporary removal of objects for conservation purposes is permitted, and taking samples of the whiskey for study would be permitted, the crates and most the whiskey are prohibited from being removed completely by any one party under current treaty law. Today, preservation of the hut is the responsibility of the New Zealand Antarctic Heritage Trust, hence their carrying out of the whiskey mission.

There are a couple sources of treaty requirements regarding Shackleton’s whiskey and other historical relics. Resolution 3 from ATCM XXXII incorporated the Guidelines on Preservation of Historic Areas, which states:

“To that end, Parties should notify the other Parties of the discovery, indicating what remains have been found, and where and when. The consequences of removing such remains should be duly considered. If items nonetheless were removed from Antarctica, they should be delivered to the appropriate authorities or public institutions in the home country of the discoverer, and remain available upon request for research purposes.”

Measure 5 of ATCM XXXII, “Revised Management Plan for ASPA 121 (Cape Royds),” is more specifially relevant to the McKinley whiskey, as it addresses the handling and conservation of artifacts from the Nimrod Expedition. The plan became effective in July, 2009. Section 7(vii) requires that:

“Material may be collected or removed from the Area only in accordance with a permit should be limited to the minimum necessary to meet scientific or management needs.”

“Any new artifacts observed should be notified to the appropriate national authority. Relocation or removal of artifacts for the purposes of preservation, protection or to re-establish historical accuracy is
allowable by permit.”

So while recovering a sample of whiskey with a syringe to take back for study would qualify as a “scientific need,” it or any other materials retrieved must remain in the hands of a public institution and be available to other nations for research purposes. Incidentally, I do not know exactly what “permits” are required or where they are obtained from, but I find it depressing to know that not even the remote icefields of Antarctica are free from the strictures of bureaucracy.

Finally, part of me suspects that the whiskey retrieval mission is less about getting a sample of historical whiskey and more about an awesome publicity campaign. Or possibly just part of an advertising war between whiskey makers — Jameson’s may dive into the sea during a storm to recover a barrel of their whiskey, but McKinlay’s can trump that by sending an expedition to Antarctica to retrieve Shackleton’s lost whiskey cache.

-Susan

Big Brother’s Invisible Yellow Dots: Using Secret Printer Tracking Data in Civil Litigation

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This is apparently very old news, but I’ve never heard of it before. U.S. laser printer manufactures have, in cooperation with the federal government, included special tracking dot systems with their printers, so that every page printed contains hard to see dot patterns encoding the serial number of the printer and the time and date that a given page was printed.

The dots’ minuscule size, covering less than one-thousandth of the page, along with their color combination of yellow on white, makes them invisible to the naked eye, Crean says. One way to determine if your color laser is applying this tracking process is to shine a blue LED light–say, from a keychain laser flashlight–on your page and use a magnifier.

The best website up about the tracking dots is over at the Electronic Frontier Foundation. The EFF has sent in a FOIA request for information on the program. So far, they say,

“[the] [d]ocuments we’ve begun to receive in response to our FOIA requests suggest that the government may have convinced all printer manufacturers to put some kind of tracking mechanism in every color laser printer.”

The EFF has discovered the key to the tracking dot code, as shown in the picture here. They reveal the printer serial number and the exact date — down to the minute — of when the document was printed.printerguide

The Secret Service seems to be the agency that convinced printer companies to include these dots patterns. An anti-counterfeiting agent has stated that, “The only time any information is gained from these documents is purely in [the case of] a criminal act,” but there are no statutes actually limiting their use in any way.

Printing companies, like Xerox, assist the government in using the dot patterns. In the course of an investigation, the Secret Service

“decodes the information contained in the dots only to investigate counterfeiting cases. Once it has the serial number of the printer, the agency can work with printer companies to find out where the printer was sold.”

However, counterfeit investigations are only the tip of the iceberg for potential uses of the tracking dot system.

The EFF, and most other sites with information on the dots, seem primarily concerned with privacy concerns regarding government abuse of the tracking data, which is certainly a valid issue. But the first thought I had was the potential value of tracking dot information for private parties, especially for use in civil litigation. I was hoping to find an example out there of a case where tracking dots were used as evidence to either establish when a document was printed or who did the printing, but I couldn’t turn one up. Still, this seems like it’d be such an insanely useful information bonanza that there’s not way it could have not been used in litigation at some point. I’m going to scout around some more this afternoon, and if I find any cases where they were used, I’ll put them up.

Off the top of my head… Potential cases where tracking dot data might be invaluable would be, for instance, contract cases where there are allegations additional pages have been substituted in the contract, or family law cases where maybe one party is alleging they have a threatening not sent by another party, or employment cases where an employee is alleged to have engaged in improper conduct at work where printing was involved. There are thousands of cases where it might come in handy.

On a final note, because this is LL2 and because in my world essentially every subject can and should be linked to international law, there may in fact be some international law implications here as well. According to the European Parliament,

To the extent that individuals may be identified through material printed or copied using certain equipment, such processing may give rise to the violation of fundamental human rights, namely the right to privacy and private life. It also might violate the right to protection of personal data.

The protection of privacy is ensured by Article 8 of the Convention of Human Rights and Fundamental Freedoms. The Charter of Fundamental Rights of the European Union, in Article 7, provides for the protection of private and family life, home and communication, and in Article 8, for the protection of personal data.

Directive 95/46/EC of Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (‘Data Protection Directive’) ensures the protection of personal data and applies regardless of the technology used for the processing of personal data.

-Susan

The Lakota Tribe’s Lawsuit Over the Sweat Lodge Deaths Cites to Wrong DRIP

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Following the sweat lodge deaths of three people who attended an Angel Valley self-help seminar, the Lakota tribe has filed suit [PDF] in the Arizona federal district court against the seminar leader, James Arthur Ray, and the Angel Valley Retreat Center, as well as the United States and the state of Arizona. (Hat tip: Religion Clause).

The Lakota Nation alleges that Ray and the Retreat Center have (1) Violated Article 1 of the Fort Laramie Treaty of 1868 by violating the peace between the United States and the Lakota Nation, (2) Desecrated the Onikig’a (sweat lodge ceremony) by causing the three deaths, (3) Violated the UN Declaration on the Rights of Indigenous Peoples Arts. 29 & 36, and (4) that Ray and the Angel Valley Retreat Center committed fraud by impersonating and Indian and should be held accountable for the deaths to the survivors.

They also demand that those who requested the sweat lodge be dismantled be charged with destruction of evidence, and request that the judge refer Ray for prosecution.

I think it’s fairly clear that the lawsuit, which in essence is a criticism of cultural appropriation and the commodifiction of Indian Heritage, is intended as a means of obtaining publicity rather than a serious legal claim. There are huge issues with the suit’s standing (such as requesting relief for the deceased individuals’ descendants), its causes of action, and the requested relief, which would prevent the Ogala Lakota Delegation of the Black Hills Sioux from going further with their claims. Sam Longblackcat’s press statement, released in regards to the lawsuit, suggests as much. After noting that, unlike James Arthur Ray, Lakota Indians “don’t go into a Roman-Catholic church, put on the Pope’s hat and take the Pope’s staff and call ourselves Pope,” Longblackcat states:

We expect this lawsuit to strengthen our stand as first nation people. Manifest destiny, divide and conquer, these are tactics to assimilate and annihilate the first nations – no matter on which continent. It happened in Vietnam, it is happening today in Iraq. We want the world to know that the first nations exist, and that we are not going to let anybody take from us ever again.

As for the lawsuit, it first bases its claims upon a violation of the Fort Laramie Treaty of 1868, 15 Stat. 635. The Fort Laramie Treaty was in face the basis of a case heard once before by the Supreme Court, in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). Article 1 of the treaty, which the suit claims Ray violated, states:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

As the Lakota tribe is in North and South Dakota, not Arizona, clearly there’s no claim based upon territorial jurisdiction, and no Indian persons were involved at the sweat lodge ceremony where the deaths occurred. So if there is wrong upon Indian person or property here, it’d appear to be based upon intellectual property. Having zero experience with Indian law, I have no idea if there’s any precedent for something like this, but I’m certainly not aware of any U.S. statutes that protect against cultural appropriation.

More interesting are the Lakota’s claims that are brought under the Declaration on the Rights of Indigenous Peoples (the unfortunately acronymed “DRIP”). The DRIP was a UN General Assembly resolution was adopted in 2007. However, the United States, along with Canada, Australia, and New Zealand, objected to its passing. The DRIP is therefore, for multiple reasons, not a “treaty” that can be incorporated into U.S. law via the Supremacy Clause, and it’s also not the sort of international law that can be Paquete Habana‘d in through the judiciary.

Even if that weren’t the case, the Lakota Nation’s complaint would be an inadequate pleading, as it does not quote DRIP as it was finally adopted, but rather quotes the 1994 draft articles. I think this was an honest mistake on the plaintiff’s part, not intentional, as the adopted DRIP is actually more favorable to their case. The Draft Articles that the complaint quotes merely provide that, “Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.”

In contrast, the DRIP, as it was adopted, states that,

“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.” DRIP Art. 11.

It also provides that indigenous people “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” DRIP Art. 31. So not only does DRIP provide for an aspirational cultural property rights regime for indigenous people, but also attempts to place an obligatory duty on states to “provide effective redress mechanisms” for violations of these rights. Unlike aspirational If the DRIP were a “real” treaty, Longblackcat might’ve had a legitimate claim to bring forward, particularly alleging that the U.S. does not provide a way of Indian tribes to protect their intellectual and cultural heritage from being used by scam artists like James Arthur Ray.

-Susan

Alien Tort Statute Cases Resulting in Plaintiff Victories

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This post is an attempt to catalog all Alien Tort Statute (28 U.S.C. § 1350) cases that have resulted in something other than complete failure for the plaintiffs who have brought the claims.

Most ATS victories have been default judgments against individual defendants, with a few claims against individual government officials and states being decided on the merits. Collection of judgments awarded under the ATS is a low probability game, although a few lucky plaintiffs have succeeded. Most judgments remain moral victories.

To date, only two judgments have been entered against corporate defendants, with one judgment entered by default and one after a jury trial.

There have been maybe a dozen settlements reached in ATS cases against corporate defendants; many of these settlements are confidential, but of the ones that have been revealed, it appears to be a fairly even split between settlements that appear to have favored the plaintiffs and settlements that appear to have favored the defendants.

In other words, the argument that ATS litigation is financially ruinous for international businesses or a serious impediment to multinational operations is vastly overstated. Tort claims under the ATS make up an infinitesimal fraction of corporate litigation budgets worldwide.

A. Successful ATS Claims Against Non-Corporate Entities, With Decisions Reached Other than by Default

  1. Jansen v. The Brigantine Vrow Christina Magdalena (D.S.C. 1794),  aff’d by Talbot v. Jansen, 3. U.S. 133 (1795). Ship owned by a Dutch citizen was captured by an American citizen who had attempted to renounce his American citizenship in order to take commission from France as a privateer. After co-capturer Talbot intervened and challenged the district court’s jurisdiction — based, in part, of the inability of a U.S. court to be acting as a prize court over a captor alleging to hold a French commission — the court was required to consider, in the absence of prize jurisdiction, “[w]hether this court has any and what jurisdiction relative to matters arising on the high seas.” The court concluded that it did have jurisdiction, and cited to both its admiralty jurisdiction and the ATS in support of this: “[t]he court shall have exclusive original cognizance in all civil causes of admiralty and maritime jurisdiction; and concurrent jurisdiction with the courts of the several states, or the circuit courts of the United States (as the case may be) where an alien sues for a tort only in violation of the law of nations, or a treaty of the United States.” The district court then found that although the capture was not piracy, it was in violation of both the law of nations and the U.S.’s treaty with Holland, and in doing so the defendants’ acts risked the U.S.’s neutral character in the conflict, and so found for the Dutch plaintiff. On appeal to the Supreme Court, France argued that it was a breach of international law for the U.S. to adjudicate a dispute between Holland and France arising from an act occurring on the high seas. The Supreme Court affirmed the lower court’s decision, and Justice Iredell held that “[t]he general law of nations are enquirable and may be proceeded against in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it[.]” Iredell concluded that “[t]his is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part,…) as well as of the law of nations generally; that I cannot entertain the slightest doubt, but that … the District Court had jurisdiction.”
  2. 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. The district court concluded that it had jurisdiction to hear Bolchos’ suit, noting that “as the 9th section of the judiciary act of congress gives this court concurrent jurisdiction with the state courts and circuit court of the United States where an alien sues for a tort, in violation of the law of nations, or a treaty of the United States, I dismiss all doubt upon” the question of jurisdiction.
  3. 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.
  4. In re Estate of Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1993): 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.
  5. 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.
  6. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D.Fla. 1997):* (AEDPA/TVPA) Punitive damages assessed in reference to punitives assessed for violations of international human rights law in ATS cases; “[j]udgment 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.” Collection efforts are ongoing.
  7. 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 noted to have made what is quite possibly the creepiest threat I have ever heard: “I will caress the little pigeons.”)
  8. 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.
  9. Jean v. Dorelien, No. 03-20161 (S.D.Fla.) (verdict issued Feb. 23, 2007): $4.3 million verdict. ($580,000 recovered to date) (nearly $1mil recovered to date, out of Defendant’s lottery winnings?).
  10. 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.
  11. M.C. v. Bianchi (consolidated cases) (E.D.PA 2011): Anthony Mark Bianchi was convicted of several federal felonies under 18 U.S.C. § 2423 for engaging in child sex trafficking/tourism. The plaintiffs in the consolidated cases were Moldovan minors, asserting claims against Bianchi under the ATS for sexual assault in violation of the law of nations. In March 2011, the district court dismissed Bianchi’s Motion to Dismiss the matter, and, at the time, I predicted that a reversal of the decision was inevitable. I underestimated, however, the defendant’s financial and practical interests in settling the cases (Bianchi was in jail, and was a millionaire who had assets that could be collected against). Shortly thereafter, Bianchi settled with the plaintiffs for $725,000.00. Also notable is the fact that the plaintiffs’ attorneys in the matter managed to turn international human rights abuses into a lucrative enterprise, collecting a comfortable 40% contingency fee out of the settlement proceeds.

B. Default Decisions Against Individual Defendants in ATS Cases 

  1. de Letelier v. Republic of Chile, 502 F.Supp. 259 (D.D.C. 1980). Tort claims brought as result of Chilean government’s bombing of diplomat’s car in Washington, DC. Default judgment against Chilean government. Court found that it had subject matter jurisdiction to hear the case “pursuant to 28 U.S.C. §§ 1330, 1331, 1332(a)(3), 1343(1)-(2), 1350,” treating ATS as an uncontroversial and additional jurisdictional grant. There was no discussion of the substantive basis of Plaintiffs’ claim for “tortious actions in violation of international law,” and the court appears to have simply assumed its existence as a federal common law cause of action, with jurisdiction provided via unspecified combination of FSIA, domestic tort law, and federal criminal statutes.
  2. 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.
  3. Martinez-Baca v. Suarez-Mason, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. 1988): Defendant initially contested, but default judgment ultimately awarded in the amount of $21 million. See also related cases, Forti v. Suarez, 694 F.Supp. 707 (N.D.Ca. 1988) ($4 million total damages, on torture, prolonged arbitrary detention, and disappearances, but not CIDT); de Rapaport, et al. v. Suarez-Mason, No. C87-2266-JPV (N.D.Cal. Apr. 11, 1989) ($30 million total damages)
  4. Todd v. Panjaitan, CIV.A. 92-12255-PBS, 1994 WL 827111 (D. Mass. 1994): Default judgment against Indonesian general, for summary execution of New Zealand national in East Timor. The descendant was in a crowd of people watching a funeral procession when troops fired, killing approximately 150-200 persons. General Panjaitan was the regional commander, and was transferred out of Indonesia after incident; he then relocated to the U.S., where he was sued. On default, descendant’s mother received: “(1) An award of compensatory damages to Helen Todd as administratrix of the estate of her son Kamal Bamadhaj for the conscious mental and physical pain and suffering of Kamal Bamadhaj in the amount of two million dollars ($2,000,000), plus interest. (2) An award of compensatory damages to plaintiff Helen Todd for her pain and suffering and loss of companionship of her son in the amount of two million dollars ($2,000,000), plus interest. (3) An award of punitive damages to plaintiff Helen Todd in the amount of ten million dollars ($10,000,000).”
  5. 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.
  6. Xuncax v. Gramajo and Ortiz v. Gramajo*, 886 F. Supp. 162 (D. Ct. Mass. 1995): Suit by Kanjobol Indians against former Guatemalan Defense Minister, with Ortiz brought under the TVPA. Default judgment award, $47.5 million. Court sustained claims for torture, summary execution, disappearance, and arbitrary detention as obvious bases of jurisdiction, but called cruel, inhumane, and degrading treatment as a “closer question,” before ultimately accepting it.
  7. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995): Default decision on the merits — jury determined damage award of $745 million.
  8. Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996): Incitement to genocide, based on Rwanda. $103 million awarded.
  9. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002): Default decision on merits – $140 million. Plaintiffs were four Bosnian Muslims who were tortured by a Serb soldier in Bosnia-Herzegovina.
  10. 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.)
  11. Doe v. Liu Qu (N.D. Cal. 2004): Declaratory relief granted.
  12. Reyes v. Grijalba (S.D. Fl. 2006): Case against former Honduran military intelligence chief Juan López Grijalba, on behalf of six torture survivors and families of the disappeared. Default judgment with $47 million in damages awarded.
  13. Doe v. Constant (S.D.N.Y. 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).
  14. 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.
  15. Lizarbe v. Hurtado, (S.D. Fla. 2008): Default judgment against Peruvian army officer for. Bench trial on damages resulted in award of $12 million dollars in compensatory damages and $25 million in punitive damages.
  16. Aguilar v. Imperial Nurseries (D.Conn. 2008): Human trafficking case. A default judgment was also reached against non-appearing defendants: “Plaintiff Alexander Aguilar is awarded $679,663.09; Plaintiff Carlos Aguilar is awarded $394,195.17; Plaintiff Leopoldo Santos Catu is awarded $660,000; Plaintiff Santos Chajchaguin is awarded $822,000; Plaintiff Marvin Coto is awarded $827,127.43; Plaintiff Esteban Epinoza is awarded $392,641.40; Plaintiff Walter Hernandez is awarded $824, 796.78; Plaintiff Angel Mendoza is awarded $823,864.52; Plaintiff Hugo Oreno is awarded $679,929.19; Plaintiff Carlos Pinto is awarded $391,553.77; Plaintiff Hector Rodas Lopez is awarded $392,019.90; and Plaintiff Luis Amilcar Rodriguez is awarded $823,234.01.”
  17. Kpadeh, et al. v. Emmanuel, 261 F.R.D. 687 (S.D. Fla. 2009): Damages awarded in February 2010. ATS case brought Chuckie Taylor — American citizen turned commander of the Liberian Anti-Terrorism Unit — for torture, CIDT, arbitrary arrest, and prolonged detention. Taylor defaulted, and liability was entered against him. Plaintiffs then moved “to certify as a class all persons whose human rights were violated by Mr. Taylor and the ATU forces working under his command.” Class certification was denied, but on a jury trial for damages, the five plaintiffs were awarded $22.4 million. As far as could be determined, enforcement of award has not resulted in any collection for plaintiffs.
  18. Yousuf v. Samantar (4th Cir. 2012): Ongoing litigation against Somali official for various human rights abuses. In 2010, case made an appearance before the Supreme Court, where Samantar was denied foreign official immunity. In February 2012, Samantar filed for bankruptcy, and then agreed to an entry of default judgment against him before the district court. Damages were set at $21 million. In November 2012, the Fourth Circuit once again denied Samantar’s claim of immunity.

C. Successful ATS Claims Against A Corporation

  1. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D.Fla. 2008): (Bench) Defendant did make an appearance but refused to defend. 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.” In January 2010, Plaintiffs moved to commence proceedings supplementary to implead the Governments of Island Territory of Curaçao and the Government of the Netherlands Antilles and add them as Judgment Debtors, but motion was denied. See Licea v. Curacao Drydock Co., Inc., 06-22128-CIV, 2011 WL 2118716 (S.D.Fla. 2011). The plaintiffs are now trying to collect the judgment from the corporate defendants, by, in part, garnishing the Church of Scientology.
  2. Chowdhury v. Worldtel Bangladesh Holding, Ltd., et al., 588 F. Supp.2d 375 (E.D.N.Y. 2008) (Aug. 2009): (Jury) Plaintiff brought suit for torture that was motivated by desire to have plaintiff give up control of his company; Defendant hired Bangladeshi police unit to carry out the torture. Verdict after jury trial for $1.5 million in compensatory damages against both corporate and individual defendant, and $250,000 in punitive damages against individual defendant alone. Jury did not find that punitives were warranted against the corporate defendant. Notice of appeal was filed by defendants, but does not appear to have been acted on — presumably, payment of the judgment was made and the matter is done with, but need confirmation on this point. [Edit: After Kiobel, the Second Circuit, on appeal, reversed the plaintiff’s verdict, finding that the ATS did not confer jurisdiction.]

D. Ongoing Claims (Very Partial List)

  1. Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834, 838 (4th Cir. 2010): Case currently stayed. Claims arise out of defendant’s participation in the Peruvian “Accomarca Massacre.” Fourth Circuit affirmed the district court’s denial of immunity to Rondon under the FSIA. As of October 2012, another six month stay was entered, due to Peruvian criminal proceedings against the Defendant that are ongoing.
  2. Ahmed v. Magan, No. 2:10-cv-342 (S.D. Ohio): Ongoing claims against Somali official that now resides in Ohio. U.S. has filed statement of interest in the matter, recommending that the U.S. exercise jurisdiction over him, and recognizing “(1) that Magan is a former official of a state with no currently recognized government to request immunity on his behalf, including by expressing a position on whether the acts in question were taken in an official capacity, and (2) the Executive’s assessment that it is appropriate in the circumstances here to give effect to the proposition that U.S. residents like Magan who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts.” (Statement of Interest of the United States of America.) Although Defendant initially participated in litigation, he went AWOL midway through proceedings, and in November 2012 the court granted plaintiff’s unopposed motion for partial summary judgment. A hearing on damages has been set for May 2013.

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

  1. Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992). Settled Sept. 13, 1996, in the Central District Court of California. Siderman had a complicated procedural path, most of it focusing on FSIA jurisdiction and not ATS jurisdiction, but it started off as a default judgment for a claim brought under the ATS. Eventually, after winding its way up to and then being bounced back from the 9th Circuit, Argentina settled the case with the plaintiff. This was the first time in a U.S. case that a foreign state had settled for claims of human rights violations. The settlement terms were confidential, but sources place the total at around $6 million.
  2. Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078 (S.D.Fla. 1997). American corporation and its employee brought action against Bolivian distributor and distributor’s officer, alleging that employee was wrongfully imprisoned in Bolivia. Claim survived dismissal: “With deep reservations, the Court holds that Carballo has stated a claim under the ATCA. As egregious as Casa Kavlin’s conduct may be if plaintiff’s allegations stand true, it pales in comparison to the usual fare under the ATCA-hideous torture, gang rape, genocidal murder, and the like. Nonetheless, the Court finds that the law of nations does prohibit the state to use its coercive power to detain an individual in inhumane conditions for a substantial period of time solely for the purpose of extorting from him a favorable economic settlement. The Court also finds that the Alien Tort Claims Act makes responsible anyone who conspires with state actors to achieve such an unlawful arbitrary detention. Accordingly, defendants’ motion will be denied on this ground.” Afterward, the parties settled.
  3. 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. 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.
  4. Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001): Undisclosed sum, various sources cite “millions.”
  5. Doe v. Reddy, et al, C 02-05570 WHA, 2003 WL 23893010 (N.D. Cal. Aug. 4, 2003): Claims brought by Indian women trafficked into the U.S. for forced labor and debt bondage. All claims other than ATS claims dismissed. The primary wrongdoer was Lakireddy Bali Reddy, who personally was involved in the abuse and slave trafficking, but his involved family members and associated network of corporations were also defendants. Claims were eventually settled for approximately $11 million.
  6. Doe I v. The Gap, Inc., No. CV-01-0031, 2001 WL 1842389, at *1 (D. N. Mar. I. Nov. 26, 2001); Does I v. The Gap, Inc., No. CV-01-0031, 2002 WL 1000068, at *1 (D. N. Mar. I. May 10, 2002): Claims brought arising from allegations of sweatshop abuse in Saipan, including claims under ATS. “The case settled in two “pacts,” with nineteen defendants (“Group I”) participating in the settlement that was preliminarily approved on May 10, 2002,112 and the remaining seven retailers and twenty-three manufacturers (“Group II”) announcing an agreement on September 26, 2002…. The settlements for Group I and Group II both contain the same basic stipulations regarding monetary payments and injunctive relief. A twenty-million dollar settlement fund from Groups I and II is designated to pay back wages for workers (as compensation for “volunteer work”) and to establish and administer a monitoring agreement.” Smith, Erin Geiger, Case Study: Does I v. the Gap, Inc.: Can A Sweatshop Suit Settlement Save Saipan?, 23 Rev. Litig. 737, 752-53 (2004). However, it is worth noting that the Court didn’t believe this to be a ‘win’ for the plaintiffs: “The court finds that there was minimal success in the outcome of this litigation as originally contemplated by the plaintiffs. The defendants settled without admitting any liability or fault1 and the plaintiffs received only 2% or less of what they originally stated they were seeking.” Does I v. The Gap, Inc., CV-01-0031, 2003 WL 22997250 (D. N. Mar. I. Sept. 11, 2003). Still, in all, “Plaintiffs [we]re awarded attorneys’ fees of $3,150,000.00 and expenses in the amount of $4,687,651.97.”
  7. Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000): Holocaust litigation asserting ATS claims, eventually settled. “The putative class of Benisti plaintiffs is composed completely of aliens suing for torts in violation of international law, including allegedly aiding and abetting the Vichy and Nazi regimes to plunder plaintiffs’ private property, depriving members of the Jewish community in France the means to finance their escape, facilitating Nazi genocide, and other claims. Such deeds were allegedly achieved by methods including blocking and confiscating the deposit accounts and the safety deposit boxes of the members of the putative class in advance of any official compulsion to do so, requiring depositors to fill out detailed, anti-semitic, geneological questionnaires, and distributing a circular of the French Banking Association detailing a common plan to seize Jewish assets. Plaintiffs refer to United Nations resolutions and the work of the Nuremberg tribunals as further evidence of the content of customary international law and the Court finds that such analogies have merit.”
  8. Wang Xiaoning vs. Yahoo!: Undisclosed, but did cover Plaintiff’s legal fees.
  9. Wiwa v. Shell, 2009 U.S. App. LEXIS 11873 (2d Cir.) (June 3, 2009): $15.5 million settlement.
  10. 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.”
  11. Aguilar v. Imperial Nurseries (D.Conn. 2008): Human trafficking case. Default judgment entered against non-appearing defendants; confidential settlement reached with defendants Imperial Nurseries, Griffin Land & Nurseries, Gregory M. Schaan, Jim Wells, Frederick M. Danziger, and Anthony J. Galici.
  12. Mainawal Rahman Building & Construction Co., Ltd. et al v. Dyncorp International, LLC (E.D.Va. 2009): Claims brought against defense contractor for torts in Afghanistan. Settlement occurred on unknown terms.
  13. Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009): Following the 2d Circuit’s decision in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), the Pfizer plaintiffs accepted a settlement in February 2011. Terms of the settlement are confidential, but “Pfizer spokesman Christopher Loder said the trust fund can pay a maximum of $175,000 per child to those able to prove death or permanent disability due to the 1996 trial of Trovan.” It seems like the payments will be made out of a $35 million trust fund established under a previous settlement with the Nigerian state of Kano.
  14. In re XE Services Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009): Five consolidated cases. Plaintiffs were 45 Iraqi citizens and the estates of 19 deceased Iraqi citizens. Defendants were 11 corporations providing contract military services — a group of companies more that were more commonly known as Blackwater — along with two individuals, including Erik Prince, who owned and operated the companies. Settlement with the other individual defendant, a Blackwater employee, was reached first. Subsequently, following dismissal of parallel criminal charges, Xe settled the claims. Terms of the settlement were not disclosed, but from reports, it appears that plaintiffs averaged between $20,000 and $30,000 for claims for injuries, and $100,000 for the deceased plaintiffs. Many of the plaintiffs appear to be dissatisfied with the result; Blackwater, on the other hand, was reportedly “pleased” with the outcome.
  15. Shiguago et al. v. Occidental Petroleum Co. (C.D. Cal. 2010): Possible settlement. Case was dismissed with prejudice by stipulation; it appears that it could have been pursuant to a confidential settlement, but unconfirmed.
  16. Estate of Marani Manook v. Unity Resources Group (4th Cir. 2011): Suit by family of Iraqi woman against an Australian defense contractor. Marani Manook and another woman were shot by defendant’s contractors while the women were driving down a Baghdad street; claims were brought for war crimes and for the aiding and abetting of war crimes under the ATS, as well as for several additional domestic tortious causes of action. Plaintiff’s estate received a confidential out of court settlement.
  17. Al-Quraishi et al v. Nakhla et al. (4th Cir. 2012): ATS suit brought against L-3 Services, Inc., f/k/a Titan Corporatioan, for claims arising out of torture and CID treatment at Abu Ghraib. Confidential settlement reached in October 2012.

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): Jury trial held October, 2000, verdict to Defendants due to apparent constraints in jury instructions. (TVPA). 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, 621 F. 3d 1116 (9th Cir. 2010): 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. 2009).

  4. Hawa Abdi Jama v. Esmor Corr. Servs., 2009 U.S. App. LEXIS 17950 (3d Cir. 2009): Jury trial, jury found for Defendants on ATS claims. Decision reached on 11/07, trial ct. docket No. 2:97-cv-03093.

Updated, December 18 2010: Added a compilation of defendant victories under the ATS, for ATS cases from 1789-1990.

Updated, March 2013: Updates added on a few recent pending ATS matters that have now concluded.

-Susan

There’s a Map for That: AT&T sues Verizon

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In the first commercial ever to be more annoying than the “Can you hear me now?” ads, Verizon’s latest commercial series, “There’s a map for that,” is a direct attack on AT&T and their “There’s an app for that” iPhone-related marketing campaign.

mapforthat

The ad shows two maps comparing AT&T and Verizon’s 3G network coverage area, with Verizon’s map covering vastly more territory. Now, AT&T had filed suit against Verizon in the Northern District of Georgia, seeking an injunction to prevent further use of the maps in advertising. AT&T alleges that the maps are misleading, as although the Verizon map indicates total coverage, AT&T’s map only indicates a of its network area. This is because Verizon uses only 3G networks. In contrast, the 3G network is only a tiny footprint of AT&T total coverage, which also includes the slower but still usable 2.5G network. AT&T claims, therefore, that the maps are falsely claiming AT&T only has coverage, of any sort, in the tiny blue shaded areas.

Verizon has already changed the ads once before in response to AT&T complaints. Originally, the ad included the words “Out of touch,” which were removed, and Verizon added in small script “Voice & data services available out of 3G coverage areas.” With that modification, I fail to see what meager claim AT&T has remaining. Yes, I am sure many consumers are bad at reading maps and forget to pay sufficient attention to the legends, but that’s, well, advertising. There is nothing at all incorrect or even directly misleading about the advertising campaign — Verizon is just counting on people’s passive ignorance. It’s not nearly as shady as, say, mucking about with the y-axis on two graphs and claiming they show comparable figures.

I’m actually surprised AT&T didn’t just go all out and add in a meritless copyright or trademark infringement claim for the “there’s a map for that” slogan. Instead of going for the obvious meat, however, AT&T appears to have opted for the “Americans are stupid so ads cannot be at all complex” attack.

As discussed before on this blog, maps are inherently nonobjective. To claim that Verizon’s map is “misleading” is the same as claiming its “misleading” to depict a map with Greenland the same size as Africa. AT&T may not like the subject matter which Verizon chose to depict in its maps, but there is nothing incorrect or deceptive about them; they show precisely what they say the map shows, which is a comparison of 3G networks.

-Susan

Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute

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Continuing with the discussion from a previous post, there are currently a number of companies, many of them based in the UK, selling fraudulent bomb and narcotic testing devices to nations such as Iraq, Mexico, and Thailand. These “bomb detectors” are worthless, although the governments who purchase them believe they can do all sorts of miraculous feats, based upon the manufacturers’ claims. As a result of the sniffer devices’ failure to detect the presence of bombs, and the subsequent failure of authorities to identify and prevent the detonation of car bombs and other explosive devices, documented human deaths have resulted.

Potentially, then, fraudulent sniffers such as the ADE651 and the GT200 provide the basis for a civil claim in U.S. courts against the devices’ manufacturers, based upon the Alien Tort Statute (ATS).

Under Sosa v. Alvarez-Machain, the ATS provides a jurisdictional basis for causes of action that are “specific, universal, and obligatory.” This means, roughly, violations of international law such as torture, genocide, slavery, crimes against humanity, and other acts of a similar level of “badness” can be targeted (“subject to vigilant gatekeeping,” etc.).

While fraud on its own, with only commercial damages, clearly won’t qualify as the sort of international norm violation that creates ATS jurisdiction, fraud on the scale of the GT200 or ADE651 that leads, directly or indirectly, to human deaths is more in line with previous international law violations that U.S. courts have recognized as valid ATS causes of action. But showing that the sale of fraudulent bomb detectors is a tort in violation of international law isn’t the only obstacle — any would-be ATS plaintiff would also have to contend with the fact that Global Technical and other producers of the dowsing rods are private corporations run by private individuals. Although corporate liability under the ATS been the subject of intense scrutiny over the past few years, and gallons of academic ink have been spilled in debating the validity of corporate responsibility for human rights violations, almost all previous ATS cases have been based upon some sort of joint venture theory, alleging that a corporation bears secondary liability as a result of the corporation’s joint action with or aiding and abetting of a state actor.

Although ATS jurisprudence is currently in the midst of Circuit disarray, if the Supreme Court accepts the cert petition pending before them for Pfizer v. Abdullahi, we should get a much better idea on how the issues in a hypothetical ADE651 case would play out.

The two major legal hurdles in Pfizer v. Abdullahi would be similar to the two predominant issues in an ADE651 case, although the facts between the two differ significantly. First, did the companies that produced the dowsing rods violate an international norm capable of violation by a private party, or, if not, did they act sufficiently in concert with foreign states so as to be considered a “state actor”? Second, is the selling of fraudulent and potentially deadly ‘bomb detectors’ a violation of international law which is actionable under the Alien Tort Statute?

Can selling fraudulent bomb detectors result in private actor liability?

Starting with Kadic, ATS suits against a private actor must show either (1) the tort does not require state action to be a violation of international law, or (2) if state action is required, whether the private actor can be hooked for joint action or aiding and abetting with a state actor. From Unocal, the best precedent we have to date, we have a rough guide that although most violations of international law can only be conducted by states and not individuals, certain “egregious” acts are a violation of CIL even if conducted by a private party. Such acts include slavery, genocide, and war crimes, or, to a limited extent, other bad acts (like rape) that are committed in furtherance of the primary egregious crimes, like genocide.

Whether or not international law violations by private actors will always be limited to that category is uncertain; at any rate, not-completely-ludicrous arguments could be made that the act of knowingly procuring dangerous military equipment for foreign states that results in needless civilian deaths is a violation of international law even absent state complicity.

Even if the above can’t be shown, a joint act or aiding and abetting theory of liability would still be a possible option. From the facts know, there does appear to be substantial evidence that state governments have been acting in concert with dowsing rod suppliers to carry out the scheme. From the original article,

Aqeel al-Turaihi, the inspector general for the Ministry of the Interior, reported that the ministry bought 800 of the devices from a company called ATSC (UK) Ltd. for $32 million in 2008, and an unspecified larger quantity for $53 million. Mr. Turaihi said Iraqi officials paid up to $60,000 apiece, when the wands could be purchased for as little as $18,500. He said he had begun an investigation into the no-bid contracts with ATSC.

Essentially, there is a conspiracy going on here between ATSC, Ltd. and the Iraqi government to sell useless plastic objects at a grossly inflated price. From here, it isn’t too far a leap to reach the conclusion that ATSC knowingly sold dangerously defunct equipment to corrupt government officials, therefore placing civilians in imminent danger due to their faulty belief that they will be able to know when explosives are present.

Recently in The Presbyterian Church of Sudan v. Talisman Energy, Inc., the Second Circuit announced that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” In contrast to most other ATS cases, showing that an ADE651 defendant possessed the requisite mental state will not be a particularly tricky proposition. I think it’s a more than fair assumption that ATSC and Global Techniques’ owners know damned well that the products they are selling are worthless snake oil, and that it wouldn’t be all that difficult to convince a jury of that fact.

Granted, dowsing rod producers could argue that their “purpose” was simply to sell a product, not commit human rights violations. The Talisman case was dismissed “because plaintiffs presented no evidence that the company acted with the purpose of harming civilians.” However, this is not the case of a corporation engaging in a legitimate business in a region where its partners conduct human rights abuses as a means of carrying out that business enterprise. As with the Zyklon B Case , you can’t argue you aren’t guilty of genocide because you “only intended to sell lice-remover,” when you know damned well your customers ain’t concerned with delousing.

A bigger concern would be that it appears the governments that are buying ADE651 sensors genuinely believe the devices work as advertised. Therefore, the States do not have the necessary intent of purposefully or knowingly endangering their population. So in essence, ATSC is only assisting governments to engage in corrupt acts — they are not aiding and abetting a state’s intentional endangerment of its citizens. At the very least, that would rule out Conspiracy liability, which requires furtherance of a “joint purpose.” However, although it’d take a lot more space to discuss the issue than I have here, I’m going to assume for now that courts are not going to accept the “it’s not a violation of international law because we were tricking states into killing their own citizens” defense. (And anyway, if the Court takes cert on Pfizer, we’ll shortly have an authoritative answer on the question of whether there can be corporate liability when there’s only cursory state involvement.)

Was there a violation of a norm of international law with the requisite specific, universal and obligatory character?

I’ve been jumping the gun a bit by asking whether or not ATSC or Global Techniques can be held up on a theory of primary or secondary liability. That’s all meaningless until it’s also shown that the tort they are alleged to have committed is also a violation of a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features” of such founding-era international crimes of piracy and beating up diplomats for sport.

Courts have held that the specificity and ease of definition of the international norm alleged to be violated are the “meat and potatoes” of ATS claims. Courts don’t really like plaintiffs with harebrained theories alleging that a corporation’s random activities violated a nebulous “right to health” or “right to not have their environment destroyed,” or other similar claims.

In Pfizer, the tort that plaintiffs alleged was committed in violation of international law is “the norm against nonconsensual medical experimentation.” Thanks to Nuremberg and the general legacy of the Holocaust, for the Pfizer plaintiffs, it will be slightly easier to prove that international law prohibits experimenting upon humans without their consent, and possibly that this norm is so firmly entrenched as to be capable of violation by private actors alone. Throw around the word “Mengele” a few times, and heck, you might even cause Scalia to at least pause for a couple seconds before he goes ahead and rejects the claim.

In contrast, there is not really any similar international condemnation of “selling bomb detecting devices that don’t work.” So the norm used as the basis of the tort will necessarily be of a more generalized character, based either in humanitarian or human rights law. Although humanitarian law might offer some possibilities, at least in Iraq or for other cases where the dowsing rods are bought for use in quasi-combat zones, that would still be pretty tricky to pull off. Though not completely analogous, the problems of applying war crimes to private military contractors shows the sort of international legal morass that results in. Or, if you wanted to get even more creative, you might borrow provisions from the Rome Statute, such as Art. 8(2)(b)(xx), which prohibits “employing… materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.” Selling and using phony bomb detectors is, if you squint at it funny, employing materials that cause unnecessary suffering to civilians who are killed or maimed in resulting bomb blasts.

As for human rights violations, they are probably just as unsatisfactory. Although a “right to security” appears in seven international and regional human rights treaties, such as Art. 9(1) of the ICCPR, these norms are “universal but not obligatory,” and thus do not provide a firm enough basis for ATS claims.

Still, many ATS claims have been brought alleging violations of international norms far stranger than the ADE651 hypo. Like the suit against UAE officials for abuses of underage camel jockeys, Mother Doe ex rel. R.M. v. Al Maktoum, (S.D. Fla., July 30, 2007)(and no, “underage camel jockeys” is NOT a euphemism), and claims against companies selling bulldozers that were used to mow down Palestinian buildings, Corrie v. Caterpillar, Inc., (9th Cir. 2007). So it wouldn’t be the most objectionable ATS claim ever brought, at least, and if Pfizer does go before the Supreme Court, and an expansive opinion is returned (highly unlikely), then there would be plenty of wiggle room available for an ADE651 case to be brought forward. However, as things currently stand, the odds of such an ATS suit succeeding are not particularly good.

-Susan

Interconnected World

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I love this map. Via NewScientist, Where’s the Remotest Place on Earth?


[Larger version available here.]

roads_2The map shows the travel times from anywhere on earth to the nearest city with a population of 50,000+. Taking into account roads, navigable waterways, and shipping lanes, the map shows how less than 10% of the earth’s (non-Antarctica) surface area is more than two days travel time away from an urban area. Also cool is how they calculated the travel times, as shown by this chart.

The remotest place of all is located on the Tibetan Plateau (34.7°N, 85.7°E). From this location, “it is a three-week trip to the cities of Lhasa or Korla – one day by car and the remaining 20 on foot.”

-Susan

The Security Paradox: Visible Security Measures Decrease Social Cohesion

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From the “unintended consequences” files, apparently the presence of surveillance cameras in urban environments does not reassure citizens, but rather increases people’s anxiety and apprehension of crime:

People are no more fearful of crossing a street with a young male skinhead in it than they are a street with a smartly dressed woman present, unless, that is, a CCTV camera is overhead. The new finding appears to undermine one of the key justifications for Britain’s network of 4.2 million surveillance cameras: that they provide reassurance to the public. It seems that the sight of a CCTV camera can have the opposite effect, cueing the perception of a threat.

The CCTV camera by itself did not cause apprehension, nor did a skinhead on his own. But shown images of both the skinhead and the CCTV, people’s stereotypes of skinheads became primed, and they displayed an increased fear of crime that does not occur when merely witnessing a skinhead without any other external cues to suggest a threat.

The CCTV/apprehension effect isn’t just limited to the UK. A similar phenomenon has been documented in the U.S.:

Where pre-existing anti-social stereotypes may be primed, or no pre-existing sense of threat and immediate need of security are evident, the presence of formal deterrence measures like CCTV, when noticed, may in fact come to represent a proxy symbol of the threat that others pose. Interestingly, Schweitzer et al. (1999) also found that the density of ‘neighbourhood watch’ [sic] signs increased FOC (fear of crime) within American urban locations, so this process may not be specific to CCTV, but part of a general response to environmental features that can indicate the ‘trustworthiness’ of others when making FOC-related appraisals.

I’d imagine a similar effect is caused by the presence of police officers. The idea of the “neighborhood cop,” a familiar police presence who has worked closely with a community, might provide reassurance to a small neighborhood area, but most cops on the streets are anonymous faces, serving more to remind people of the disembodied, lurking threats of urban life rather than inspiring confidence and feelings of safety.

There is no theoretical reason why such things as covers to protect other people seeing the entry of pin numbers for card payments, remote entry systems to flats, swipe card keys, barbed fencing, toughened barriers in shops, and even the armed officer within an airport, could not all play the same role. In essence, in respect of FOC for a given location and trust in the ‘other’, noticeable situational deterrence measures may be a double-edged sword.

The physical and practical measures used to increase a city’s security and its citizen’s welfare might also cause a corresponding decline in social cohesion and trust. That, in turn, could increase the need for security measures in the first place. Individual criminal acts do cause a net welfare loss to society, but an even bigger loss may be caused by the fear and apprehension crime engenders. If CCTV’s or Neighborhood Watch signs increase societal fear of crime beyond the “optimum level” — that is, cause a level of fear greater than what is needed to encourage people to take sensible precautions — then they should be replaced with less visible security measures.

-Susan