Class Actions and Mass Tort Litigation in a Global Context Prof. Linda S. Mullenix

1. Class Actions and Mass Tort Litigation in a Global ContextProf. Linda S. Mullenix Human Rights Class Actions in American Courts

2. 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?

3. 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?

4. 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

5. Alien Tort Claims Statute

6. 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.”

7. 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

8. 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

9. 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)

10. 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

11. 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

12. 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)

13. Torture Victim Protection Act

14. 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

15. 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

16. 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

17. 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

18. Case Studies: Hilao v. Estate of Ferdinand Marcos Doe v. Karadzic

19. 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

20. 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

21. 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

22. 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?

23. 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

24. 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

25. 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

26. 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

27. 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)

28. Case Study: Hilao v. Estate of Marcos • 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

29. 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

30. 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

31. 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.”

32. Case Study: Doe v. Karadzic

33. 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

34. 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.”

35. 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?

36. 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

37. 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

38. 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

39. Final Questions: • Why do the courts uphold the Hilao class action, but reject the Karadzic class action? • Is the Hilaoclass 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?

40. Fine