class actions and mass tort litigation in a global context prof. linda s. mullenix human rights...

Class Actions and Mass Tort Litigation in a Global Context

Prof. Linda S. Mullenix

Human Rights Class Actions in American Courts


Questions and Themes: Theme: Problems and difficulties in

pursuing group human rights violations in international institutions

Question: Are American courts more receptive to resolving group human rights violations?

Question: Is the American class action rule suitable for resolving human rights violations?


Questions and Themes: Question: Has the American class action rule

proven effective to address human rights violations? In what cases have class actions been approved? In what cases have class actions been rejected?

Question: What are the bases for authorizing human rights class action litigation in the United States? What is the scope of that jurisdiction?


Jurisdiction for Human Rights Litigation in the United States (possible bases): Federal diversity jurisdiction Jurisdiction over aliens (alienage jurisdiction) Federal question jurisdiction New possibility: class action jurisdiction created

by Class Action Fairness Act of 2005 Alien Torts Claim Statute Torture Victims Protection Act

Alien Tort Claims Statute


Jurisdiction for Human Rights Litigation in the United States (possible bases):

Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350 Specific jurisdiction originally granted in

Judiciary Act of 1789 ATCS provides jurisdiction over: “any civil action by an alien for tort only,

committed in violation of the laws of nations or a treaty of the United States.”


Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350

Little use made of statute for nearly two hundred years

Revitalized in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980): Jurisdiction found under ATCS Suit by two Paraguayan citizens against

Paraguayan police official Accused of acts of torture in Paraguay


Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350 Applied in Doe v. Karadzic, 866 F. Supp.

734 (S.D.N.Y. 1994) Jurisdiction found under ATCS ATCS extends to alleged violations of

international law committed by private individuals acting under color of state law



Does not define what constitutes a “violation of the law of nations”

Does identify who is a proper defendant Actions brought against person who were officials

at time of actions complained, or, Persons acting under color of foerign authority

Foreign government itself cannot be sued under ATCS (barred by Foreign Sovereign Immunity Act)



Filartiga decision limited application of ATCS to “universally recognized norms of international law” Genocide, slavery, torture, murder List not exclusive


Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350 International law violations cognizable under the ATCS:

Repeated acts of terror and violence so systematic and gross as to violate rights of association, expression and political participation

Administration of experimental medication Administration of lower doses of medication than

standard of care, for research purposes, without informed consent

Forced labor, slave trading Murder, rape Piracy Genocide



Alleged violations not within the ATCS: Seizure of citizen’s property Causing environmental harms (even if

detrimental to human life, health, and development)

Torture Victim Protection Act


Torture Victim Protection Act (TVPA): Enacted by Congress 1992 Implements 1984 Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment Establishes federal jurisdiction over types of

claims previously brought under ATCS Guarantees torture victims (and like acts) a cause

of action Does not specify who is proper plaintiff or

defendant Applies only to individuals, not corporations


Torture Victim Protection Act (TVPA) Persons accountable under the Act:

Persons acting “under actual or apparent authority, or color of law, of any foreign nation”

Makes persons liable for damages to any person subjected to torture (or their legal representative or survivor)

Foreign states or instrumentalities not proper defendants Liability under TVPA narrower than under ATCS

Limited to acts by individuals under authority of a foreign nation

Ten year statute of limitations Requirement of exhaustion of local remedies


Torture Victim Protection Act (TVPA) Other aspects:

Litigants frequently invoke both the ATCS and the TVPA

Both compensatory and puntive damages have been awarded for violations

Commentators suggest TVPA supplements ATCS: Allows courts to recognize causes of action under

the ATCS for customary international law violations other than torture and extrajudicial killing


Other Possible Bases for U.S. Jurisdiction Over Human Rights Violations:

Direct reliance on treaties by human rights plaintiffs is rare

Private legal claims could be predicated in customary international Prospects even less likely

Case Studies:

Hilao v. Estate of Ferdinand Marcos

Doe v. Karadzic

Case Study: Hilao v. Estate of Marcos

Factual Basis: Plaintiffs: Philippine nationals Defendant: Estate of Ferdinand Marcos

(former president of the Phillipines) Allegations: human rights violations

committed against them or their decedents Venue: U.S. federal district court in Hawaii Legal basis: violations of Alien Tort Claim

Act and Torture Victim Protection Act Procedural basis: Rule 23(b)(3) class

action


Class definition:

All civilian citizens of the Philippines who, between 1972 and 1986, were tortured, summarily executed, or disappeared by Philippine military or paramilitary groups

Class included survivors of deceased members

Over 10,000 persons in this class


Proceedings: Federal district court certified a Rule 23(b)

(3) damage class action Court implemented a three-phase trial Case tried to the jury in three phases Jury awarded $766 million in

compensatory damages Jury awarded $1.2 billion in exemplary

(punitive damages) Estate appealed judgment, class

certification, and trial plan


Questions (on appeal): Did the district court have jurisdiction over this

human rights litigation? Did the district court properly certify the class

action under Rule 23(b)(3)? Did the three-phase trial plan violate the

Defendant’s due process rights? Did the court abuse its discretion in ordering a

three-phase trial? Did the use of statistical sampling in determining

compensatory damages violate due process?


Appellate Court Decision – Jurisdiction of the court: Jurisdiction of the court upheld under the

Alien Torts Claim Act Subject matter jurisdiction appropriately

exercised even though actions of Marcos (causing torture and murder) occurred outside the United States

Alien Torts Claim Act does not contain statute of limitations


Appellate court decision: class certification: Class certification upheld Definition of class upheld:

Class definition sufficiently definite, class size limited (approximately 10,000 claimants)

8,538 claims found valid and awarded damages Typicality (upheld):

Whether compensable injury exists for particular class member – question is virtually identical in each case


Appellate decision: trifurcated trial plan: Trial plan upheld:

Phase I – liability trial Three day jury trial on liability 22 direct plaintiffs and the class Verdict against the Estate

Phase II – exemplary (punitive damages) Court orders notice to class members Court orders proof of claim form to opt into class 10,000 claims forms received Two day trial on exemplary damages Jury returns verdict $1.2 billion against estate


Trial plan upheld: Phase III – Compensatory damages

Special master appointed Selected 137 random cases for development and

testimony Random cases form basis for extrapolating

damages to larger class Statistical methodolgy and evidence presented to

jury Seven day jury trial on compensatory damages Jury returns $766 million compensatory damage

award


Appellate decision: trifurcated trial plan: Reasons for upholding trial plan:

District judge did not abuse discretion Compensatory damage phase presented more

complex questions than exemplary damage phase Need for special master to take individual

testimony in the Philippines Procedure followed by district court allowed in

Texas courts in asbestos litigation (providing a precedent)(Jenkins v. Raymark)

Appellate decision: trifurcated trial plan: Methodology for Determining Compensatory

Damages: Court upholds use of statistical sampling 137 randomly selected claims would achieve 95%

statistical probability that same percentage would be valid among totality of claims filed

Sample included torture, summary execution, and disappearance claims

Depositions taken of 137 selected claims Recommended damages in 131 of thos claims Applied American, Philippine, and international law

on damages



Average claims values based on statistical sampling: Torture claims: $51,719 each Summary execution: $128,515 each Disappearance: $107,853 each

Total of averages: $767,491,493 compensatory damages

Jury heard testimony from special master, statistical expert, accepted most claims, rejected others, allowed others


Appellate decision upholding trial plan: Upholds use of methodology Upholds use of statistical sampling Time & judicial resources to try nearly 10,000

claims would make resolution impossible Individual trials wasteful Methodology justified by extraordinary unusual

nature of the case Adversarial resolution of each class member’s

claims would impose insurmountable practical hurdles

Would clog docket of district court


On due process concerns:

“Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances.”

Case Study: Doe v. Karadzic


Factual Basis: Class action seeking compensatory and punitive

damages for acts of genocide, muder, rape torture & other torts committed in Bosnia-Herzegovina

Defendants: Radovan Karadzic and individuals under his command

Federal district court: certified mandatory Rule 23(b)(1)(B) class action (“limited fund” class action)

Two groups of Plaintiffs: Doe plaintiffs: moved for approval of notice plan Kadic plaintiffs: moved to decertify the class


Class definition:

“All people who suffered injury as a result of rape, genocide, summary execution, arbitrray detention, disappearance, torture or other cruel, inhuman or degrading treatment inflicted by Bosnian-Serb Forces under the command and control of defendant between April 1992 and the present.”


Questions: Was the Karadzic class action properly certified? Is this class action different than the Hilao class

action? In what ways? Do these differences suggest a different outcome

for class certification? Should one group of class Plaintiffs be able to

impede the interests of other class Plaintiffs? Should the class action be upheld or de-certified? What is the court’s reasoning for de-certifying the

class?


Court’s decision: De-certifies the class action Doe plaintiffs’ request for notice plan is

mooted by decision to de-certify the class Decertification justified by intervening U.S.

Supreme Court decision in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)

Karadzic class does not meet the requirements for a “limited fund” class action under Ortiz decision


U.S. Supreme Court Ortiz decision: Standards for certification of a Rule 23(b)(1)(B)

limited fund class action: Paradigm suit is one in which claims are made by

numerous persons against a fund insufficeint to satisfy all claims

Mandatory treatment under limited fund rationale confined to narrow category of cases

Must provide specific evidence supporting existence of a limited fund

Must demonstrate that claims will exhaust the fund and the defendants’ assets

Must demonstrate that fund will be distributed equitably across all class members


Did Proposed Karadzic class action satisfy the requirements for a limited fund class action? No: No proof of limited fund Defendant not corporation with limited liability or a

fixed and limited fund in danger of depletion Any judgment against defendant would be

enforcebale for at least twenty years Any assets subsequently discovered or earned by

defendant would be subject to judgment Plaintiffs unable to demonstrate that “substantial

probability” that Defendant would be unable to pay claims over life of the judgment

Final Questions: Why do the courts uphold the Hilao class

action, but reject the Karadzic class action? Is the Hilao class action a good model for

class treatment of human rights claims? Do the distinctions in the class categories

make sense? Should the Karadzic class action have been

allowed to proceed?

class actions and mass tort litigation in a global context prof. linda s. mullenix human rights...

Documents

human rights litigation

atcs atcs

class action jurisdiction

american courts jurisdiction

american courts questions

time of actions

class action fairness

specific jurisdiction