Tort Liability in the United States

Note: for information about Strict Liability in Tort, click here.

Journalistic Practices, Tort Liability and the Freedom of the Press

According to the Encyclopedia of the American Constitution, about its article titled “Journalistic Practices, Tort Liability, and the Freedom of the Press”, two seemingly clear precepts come into sharp conflict when journalists are charged with wrongful acts in gathering news. On one hand, the media have never been held to be immune from the general civil and criminal laws that govern the nation.

Alien Tort Claims Act (ATCA) Liability

By Pamela A. MacLean (2001), who covers the federal courts for the San Francisco Daily Journal.

In May 2000, 22 village leaders filed suit against Rio Tinto in U.S. district court in Los Angeles, basing their suit on a 200-year-old statute, the Alien Tort Claims Act (ATCA, 28 USC §1350). Lead plaintiff Alexis Holyweek Sarei, who now lives in Los Angeles, accused the mine owners of violating human rights, international law, and accepted standards for international environmental protection. Sarei v Rio Tinto plc (CD Cal) Civ No. C00-11695.

The Sarei case is at the cutting edge of alien tort claims. Most of the recent ATCA cases have been filed by human rights groups seeking to halt alleged abuses by embarrassing U.S.-based corporations doing business overseas. But Sarei involves a foreign corporation with no direct business ties to the United States, and it was filed by private plaintiffs attorneys rather than by human rights activists. Lead counsel Steve W. Berman, a principal in Seattle’s Hagens Berman, most recently represented 14 states in litigation against U.S.-based tobacco companies. He is joined by Paul N. Luvera of another well-known Seattle plaintiffs firm-Luvera, Barnett, Brindley, Beninger & Cunningham.

Berman acknowledges that Sarei is something new for his practice, a case that literally walked in the door when attorney Paul Stocker, an old friend who had retired to the Solomon Islands, referred the Bougainville landowners to him. Berman jokes that his colleagues were skeptical. “One of my partners asked me, ‘Can’t we find enough clients at home? Do we have to go to Mars?’ ”

Until recently, few plaintiffs attorneys knew-or cared-that the Judiciary Act of 1789, a federal statute, gives foreign nationals the right to sue in U.S. courts for injuries caused in violation of U.S. treaties or in violation of well-established norms of international law. The statute’s broad authority is based on the U.S. Constitution’s grant of congressional power “[t]o define and punish … Offenses against the Law of Nations” (Article I, Section 8).

Apparently intended to combat piracy along North Africa’s infamous Barbary Coast, ATCA provided U.S. jurisdiction for hostile acts at sea regardless of the flag of the ship attacked. It worked to keep the United States out of foreign wars under the Jefferson administration, but as the years went by the statute was largely forgotten. The Supreme Court has cited the “Offenses Clause” in only a handful of cases, a jurisdictional exception that opens the federal courts to tort matters traditionally regulated by state law.

Now the involvement of the private plaintiffs bar has raised the stakes, both for corporate defendants and the federal courts. The number and variety of victims who are potential plaintiffs seem endless.

In recent years, for instance, Holocaust victims have sued the German government and private corporations for injuries ranging from slave labor and stolen art to unpaid death benefits for relatives who had allegedly purchased life insurance policies. U.S. District Judge Vaughn R. Walker in San Francisco recently dismissed former American and Allied prisoners of war from a slave-labor complaint against the Japanese government, finding that their claims were eclipsed by the U.S.-Japan peace treaty ending World War II. But claims by victims from non-Allied nations remain alive, including those of Chinese, Korean, Taiwanese, and Filipina “comfort women” against Japan arising out of their forced prostitution during the war. The class action firms of Cohen, Milstein, Hausfeld & Toll in Washington, D.C., and Lieff, Cabraser, Heimann & Bernstein in San Francisco represent these women. Walker calls the general growth of international law cases in federal court “a phenomenon that is a product of a shrinking world.”

The Sarei case pushes the limits still further. Berman’s two biggest hurdles are establishing jurisdiction and establishing the right to sue for violations of international law. He bases his claim on Rio Tinto’s majority ownership of several U.S.-based minerals companies, including Kennecott Utah Copper, Kennecott Minerals Co., and U.S. Borax of Los Angeles.

Defense lawyers filed a motion to dismiss based on the lack of subject-matter jurisdiction, the common law doctrine of forum non conveniens, and the inapplicability of international law to the conduct in question. “This case should be filed in Papua New Guinea (PNG),” says Rio Tinto defense attorney Jack W. Londen, a partner with San Francisco’s Morrison & Foerster. He defends the conduct of the mine owners as supervised by the government and consistent with accepted practices at the time, while the actions of the PNG military occurred after Rio Tinto left the island. “This suit,” Londen claims, “is an example of an effort by mass tort plaintiffs lawyers to develop a new line of business, where they subject foreign corporations to litigation in the United States.”

On July 9 District Judge Margaret M. Morrow issued a tentative order that largely denied the defendants’ motion to dismiss, including a rejection of their forum non conveniens argument. However, she pared the complaint by dismissing with prejudice two of the plaintiffs’ seven claims under ATCA.The modern era of ATCA cases began in 1980 with an appellate decision by the Second U.S. Circuit Court of Appeals in New York. A Paraguayan family had sued a former Paraguayan police inspector general in U.S. district court for the torture and killing of their son, and the district court rejected the defendant’s motion to dismiss. On appeal, Judge Irving R. Kaufman wrote that the lower court ruling did not grant any new rights to aliens, “but simply open[ed] the federal courts for adjudication of the rights already recognized by international law.” Kaufman pointed out that torture is universally reviled among nations, and the torturer, like the pirate or slave trader of the past, had become an “enemy of all mankind.” Filartiga v Pena-Irala (1980) 630 F2d 876. He remanded the case to district court, where in 1984 a judge found the Paraguayan inspector general liable and issued a $10 million award, which has never been paid.

Filartiga touched off a wave of ATCA cases, many brought by nonprofit human rights groups such as the Center for Constitutional Rights in New York. Claims were filed against former Philippine president Ferdinand Marcos, as well as former Argentine general Carlos Suarez-Mason, responsible for the human rights abuses in Argentina’s “dirty war” of the 1970s. See Forti v Suarez-Mason (ND Cal 1988) 694 F Supp 707.

In 1994 Croatian and Muslim victims from Bosnia-Herzegovina brought an ATCA claim against Radovan Karadzic, the insurgent Bosnian-Serb forces’ leader, in the Southern District of New York. They alleged that Karadzic had planned and ordered human rights atrocities including rape, forced prostitution, torture, and summary execution in a campaign of genocide.

Although the district court dismissed the case on jurisdictional grounds, the Second Circuit reinstated it a year later. Kadic v Karadzic (1995) 70 F3d 232. The court held that the unrecognized regime could qualify as a “state” for international law purposes. It also held that, even as a private individual, Karadzic could be held accountable if he had engaged in “official action,” in this case with state aid from leaders of the former Yugoslavia. Last fall the case resulted in two verdicts against Karadzic, one for $745 million and the other for $4.5 billion.

A second wave of cases filed in the 1990s went beyond the solitary renegade official and began targeting multinational corporations that were allegedly involved in human rights violations, forced labor, and environmental destruction. With international courts largely limited to claims between nations, more and more citizens of other countries turned to American courts for redress.

But the federal courts remained hesitant to get tangled in disputes between foreigners over events in another country. In 1986, for instance, a federal court in New York refused to consider multibillion-dollar lawsuits against Union Carbide over a chemical disaster in Bhopal, India. In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India (SDNY 1986) 634 F Supp 842, aff’d as mod (2d Cir 1987) 809 F2d 195.

In fact, a number of second-wave cases targeted U.S.-based oil and mining corporations operating through their overseas subsidiaries. The companies commonly were named as co-conspirators with foreign governments in human rights violations and environmental destruction. One of those suits targeted U.S.-based Unocal and Total Oil S.A., a French corporation, accusing both firms of complicity with the government of Myanmar in the abuse of local villagers, including torture, rape, slave labor, and forced relocation during the construction of an oil pipeline.

The case survived Unocal’s motion to dismiss based on subject-matter jurisdiction. The district judge ruled Unocal could be held accountable if the villagers could show the company had acted jointly with the government of Myanmar to deprive them of human rights and thereby further its own financial interests. John Doe I v Unocal Corp. (CD Cal 1997) 963 F Supp 880. The ruling made Unocal one of the few ATCA cases to put the plaintiffs’ claims to the test.

“Judge [Richard A.] Paez set out the best parameter so far for how to proceed in these cases,” says Terry Collingsworth, lead plaintiffs counsel and general counsel of the International Labor Rights Fund (ILRF) in Washington, D.C. “He said you need to show a link or connection that allows a causation argument about whether a company could or did control the wrongs being done.”

But in August 2000 U.S. District Judge Ronald Lew granted Unocal’s motion for summary judgment, finding no evidence that the company had a direct role in the alleged abuses. 110 F Supp 2d 1294. The plaintiffs appealed, and that matter is still pending. In April 2001 the Ninth U.S. Circuit Court of Appeals affirmed the district court’s dismissal of defendant Total Oil, finding that the French corporation did not have sufficient contacts with its California subsidiaries to be subject to personal jurisdiction in the United States. 248 F3d 915.

The courts have thus produced a series of findings that clarified the “law of nations” and established a high standard for bringing ATCA cases. The standard includes requirements that the conduct violate rules of behavior that command the “general assent of civilized nations,” that the conduct violate widely accepted definitions of human rights, and that the state or its agents be complicit in the alleged violations. The requirements greatly limit causes of action against private individuals but do not provide the individuals complete immunity. In 1998 the Second Circuit took an expansive view of the critical jurisdictional issue in ATCA cases. In a suit against Texaco, the court vacated the trial court’s grant of a motion to dismiss based on the doctrine of comity and forum non conveniens. Jota v Texaco, Inc. (1998) 157 F3d 153. Plaintiffs had attempted to show that the local courts in Ecuador were underfunded, corrupt, and incapable of independent judicial review. The appellate court held that to dismiss the suit on jurisdictional grounds would “frustrate Congress’s intent to provide a federal forum for aliens suing domestic entities for violation of the law of nations.” 157 F3d at 159.

Human rights activists then sought to extend jurisdiction to non-U.S. companies, filing suit against Royal Dutch Petroleum Co. and Shell Transport & Trading Co. after the execution of acclaimed Nigerian writer Ken Saro-Wiwa and eight other activists. Saro-Wiwa’s family alleged in federal district court in New York that Shell had recruited Nigerian police and military to put down organized opposition to its offshore drilling operations. Saro-Wiwa and the others were tortured by authorities, prosecuted in a show trial, and hanged in 1995.

The district court dismissed the case in 1999 based on forum non conveniens. But in September 2000 the Second Circuit reinstated the suit and sent it back to district court. Wiwa v Royal Dutch Petroleum Co. (2000) 226 F3d 88. The appellate court held that Congress had ratified its Filartiga decision when it passed the Torture Victim Prevention Act of 1991 (28 USC §1350 App). That statute, according to the court, “creates liability under U.S. law” for torture and also creates remedies that extend to both aliens and U.S. citizens. 226 F3d at 103 and 105 n10.

The court stated, “The new formulations of the Torture Victim Protection Act convey the message that torture committed under color of law of a foreign nation in violation of international law is ‘our business,’ as such conduct not only violates the standards of international law but also as a consequence violates our domestic law.” 226 F3d at 106. Shell Oil appealed the decision to the U.S. Supreme Court, which denied certiorari.

Last year a federal judge in San Francisco permitted a second suit to proceed that alleged human rights abuses by an oil company operating in Nigeria. Bowoto v Chevron (ND Cal) Civ No. C99-2506. “Judges take these cases very seriously,” says Jennifer M. Green, a lawyer for New York’s Center for Constitutional Rights who has litigated nine ATCA cases. “Our goal is for corporations to be accountable for the abuses they commit.” But Green acknowledges that no court has yet rendered judgment against a corporation in a suit involving claims of human rights or environmental abuse.Critics of ATCA suits see the proliferation of cases involving alleged human rights violations in dozens of countries as a poor use of the federal courts. Recently two academics, Curtis A. Bradley of the University of Virginia Law School and Jack L. Goldsmith of the University of Chicago Law School, challenged the widely accepted notion that the law of nations is part of federal common law. In a 1997 article published by the Harvard Law Review, Bradley and Goldsmith argued that customary international law should not have the status of federal law without the specific authorization of Congress and the president.

“When a federal court applies [customary international law] as federal common law, it is not applying law generated by U.S. lawmaking processes,” Bradley says. “Rather, it is applying law derived from the views and practices of the international community.”

Bradley contends that scholars have been “busy working out the implications of the wholesale federalization of [customary international law].” He maintains that human rights activists are attempting to extend widely accepted prohibitions against genocide, slavery, and torture to practices such as capital punishment for juvenile offenders, restrictions on religious freedom, and discrimination based on sexual orientation.

“We ought to think carefully if we want to use the U.S. courts as an international court,” Bradley says. “I’m not sure federal judges have the expertise. And in the long run, the plaintiffs don’t end up getting relief. [Human rights activists] are using the courts to get symbolic statements.”

Although no courts have expressly adopted the authors’ position, Shell incorporated the Bradley-Goldsmith argument in its unsuccessful certiorari petition in Wiwa, and Londen referred to it in his motion to dismiss in Sarei. The Bradley-Goldsmith article has also fueled academic debate about the appropriate use of the federal courts. In a lengthy response published in the Harvard Law Review, Yale Law School Professor Harold H. Koh wrote, “In effect, Bradley and Goldsmith argue for the near complete ouster of customary international law rules from federal judicial interpretation.” 111 Harv L Rev 1824, 1828 (1998).

Beth Stephens, a professor at Rutgers Law School in Camden, New Jersey, who has written extensively on international law, acknowledges the Bradley-Goldsmith argument could be used to push human rights cases out of federal courts. But she contends that ATCA is solidly based in the constitutional grant of authority for Congress to “define and punish” offenses against the law of nations, regardless of who commits them. Stephens adds that amendments to the Foreign Sovereign Immunities Act remove protection for certain acts by foreign governments listed by the U.S. State Department as state sponsors of terrorism: Iran, Iraq, Syria, Libya, Cuba, North Korea, and Sudan.

But the liability of private corporations for human rights violations committed by their alleged proxies is far from a settled matter. Federal judges seem more comfortable with cases that at least allege wrongdoing by U.S.-based corporations, and in instances in which direct involvement can be proved. “With the first couple of cases, the court reacted with, ‘Oh, oh, we’re in the realm of international law,’ ” says the ILRF’s Collingsworth. “But we have shown with Unocal that 90 percent of the case involves straightforward issues the courts have dealt with for years. There is a lot of law now, so you don’t see each federal circuit trying to reinvent the wheel.”

In late June the ILRF filed suit on behalf of eleven villagers in Aceh, Indonesia, who say that in the past year they and their families were the victims of torture, murder, kidnaping, and rape by an Indonesian military unit guarding PT Arun, a liquified natural gas complex owned by Exxon Mobil. Doe v Exxon Mobil Corp. (DC) Civ No. 1: 01CV01357. Collingsworth himself spent weeks in Aceh interviewing potential plaintiffs. “We have direct evidence that Exxon Mobil pays for and hires these security forces, thereby participating in human rights abuses,” he says. Exxon Mobil vehemently denies the charges.

Although Collingsworth is encouraged by the plaintiffs bar’s interest in ATCA cases, he doesn’t see any rush to the courthouse by private law firms acting alone. “You don’t see the classic plaintiffs firm on the ground capable of managing these cases,” he says. “We have years of experience in Indonesia that allows us to move around and get people to open up. Any lawyer who thinks he can just fly in and find clients is going to get killed.”

In addition, Collingsworth says, “The kind of money that attracts private firms just isn’t there yet.” He predicts a partnering of groups with human rights expertise and law firms that want to get involved. “The first case likely to get to trial is Unocal,” he says. “If we bring in the verdict we think we can, then you will see more of these cases.”Steve Berman characterized Judge Morrow’s tentative ruling in Sarei on the defendant’s motion to dismiss as “a major victory-if it sticks.” The ruling still must be made permanent, and Berman’s clients still must survive an all-but-certain motion for summary judgment later in the proceedings. He says Rio Tinto’s decision to abandon the Panguna mine is irrelevant. “There’s still a hole in the ground, and mine tailings, and sick people,” he says. “Giving up the mine doesn’t clean up the environment or help the people of Bougainville.”

Judge Morrow left alive claims by Berman’s clients based on genocide, violation of the law of war, murder, rape, torture, execution, racial discrimination, and degradation of the environment, as well as claims of negligence, nuisance, and strict liability. She also deferred any ruling on the “act of state” and “political question” doctrines, pending input from the U.S. State Department.

In addition, the judge dismissed without prejudice a claim for cruel, inhuman, and degrading treatment, which means that Berman can reformulate the claim to comply with the court’s analysis and refile it. Judge Morrow rejected the defendants’ objections of forum non conveniens and international comity.

“We think the tentative order is exactly right on some issues, and we disagree on others,” says defense attorney Londen. “We’ve never seen an 87-page tentative order before.”

Regardless of who prevails in Sarei, the involvement of the U.S. plaintiffs bar in remote Bougainville Island has raised the stakes in ATCA cases. “There is a serious question of whether and how much the courts should accept a shift of this statute from [human rights groups] suing a general on the lam in the U.S. to plaintiffs attorneys attempting to invoke this statute for mass foreign torts,” Londen says.

Berman obviously is pleased by that possibility. “Each of these cases going forward is setting new precedent,” he says. “These are new areas of the law, or old law used in new ways. Each case is trying to push the envelope.”

Tort Liability Between Sexual Partners

This section examines the Tort Liability Between Sexual Partners subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.