class actions and mass tort litigation in a global context prof. linda s. mullenix
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Class Actions and Mass Tort Litigation in a Global Context Prof. Linda S. Mullenix. Human Rights Class Actions in American Courts. Human Rights Class Actions in American Courts. Questions and Themes : - PowerPoint PPT PresentationTRANSCRIPT
Class Actions and Mass Tort Litigation in a Global Context
Prof. Linda S. Mullenix
Human Rights Class Actions in American Courts
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?
Human Rights Class Actions in American Courts
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?
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
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.”
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350
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)
Human Rights Class Actions in American Courts
Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350
Filartiga decision limited application of ATCS to “universally recognized norms of international law” Genocide, slavery, torture, murder List not exclusive
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
Alien Tort Claim Statute (ATCS), 28 U.S.C.A. sec. 1350
Alleged violations not within the ATCS: Seizure of citizen’s property Causing environmental harms (even if
detrimental to human life, health, and development)
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
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
Human Rights Class Actions in American Courts
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 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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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?
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Hilao v. Estate of Marcos
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
Case Study: Doe v. Karadzic
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.”
Case Study: Doe v. Karadzic
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?
Case Study: Doe v. Karadzic
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
Case Study: Doe v. Karadzic
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
Case Study: Doe v. Karadzic
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?