Updates on Two Alien Tort Lawsuits

A new Alien Tort Statute (ATS) lawsuit has been filed against the Alabama coal firm, Drummond Co., alleging that it made payments to the Colombian paramilitary group, Autodefensas Unidas de Colombia (AUC). (This blog has had a post on the Alien Tort litigation against Chiquita Brands International for its payments to the AUC.)

The Alien Tort Statute allows non-US citizens to bring lawsuits for certain violations of international law. It has been used to successfully bring lawsuits or in settlement against other corporations (and individuals) including Chevron, Unocal and Yahoo!

According to the complaint in the new lawsuit:

Drummond Co. paid a Colombian death squad millions of dollars to murder and terrorize union workers at its coal mine, hundreds of people claim in Federal Court. They claim the Autodefensas Unidas de Colombia used a "scorched earth policy ... torturing and murdering" and displacing thousands of peasants from their homes along Drummond's railroad line in Cesar and Magdalena provinces.
"Almost every family in these provinces lost a family member, a neighbor or friend to war crimes committed by the AUC during its brutal civil war with the FARC," the complaint states.
The plaintiffs also sued Alfredo Araujo Castro, Drummond's "manager of community relations" in Colombia, and James Atkins, its director of security in Colombia.
They claim, among other things, that Araujo committed perjury when he testified in June 2005, in Romero v. Drummond Co., that he had never met with "his childhood friend, Rodrigo Tovar Pupo, alias Jorge 40, the leader of the AUC's Northern Block ... or any other AUC members."
They claim that Atkins and Araujo were present at a meeting with death squad leaders in November 2000 "at the entrance to Drummond's mine in La Loma," and that "at this meeting, defendant Atkins, on behalf of Drummond, approved a payment to the AUC of the assassination of the top leaders of the Drummond union".

Second, on Tuesday, a jury is to be selected in the Wiwa v. Royal Dutch Petroleum Co. case. From a previous post on this trial:

A trial against Royal Dutch Shell for its close relationship with the Nigerian military regime is set to begin in New York on May 26. It alleges that Shell was complicit in the Nigerian military's egregious campaign of human rights abuse, including the strategy that led to the executions.

Shell began oil production in the Niger Delta in 1958 and worked with the Nigerian government to suppress opposition to its presence. Nigerian soldiers used deadly force and massive, brutal raids against the Ogoni people (the ethnic group that lives in that region) throughout the early 1990s to repress a growing movement against the oil componsibilityany. This was done at the request of Shell, and with Shell’s assistance and financing.

Law.com has posted an excellent article on the Wiwa case and the state of the Alien Tort Statute when it comes to suing corporations.

"We know that corporations can in principle be liable but of course proving liability at trial is necessarily a different matter," [George Washington University Law School Professor Ralph] Steinhardt said. "We don't have very many examples of these cases going to trial because of very lengthy pretrial proceedings. There has been an effort to wear down the plaintiffs."

Steinhardt agrees that the rarity of cases going to trial also stems from the novelty of the claims and period of adjustment.

"Assuming everyone is working in good faith, it is true that this is the application of ancient principles in new settings and whenever you get ancient principles in new settings" it takes awhile for the law to develop, he said.

Adding to the uncertainty in lower courts, he said, is that, to this point, "the Supreme Court has looked out at this body of jurisprudence and let it stand."

There is another element at work: Plaintiffs' lawyers are gaining more experience and have gotten a much better feel as they have learned from their past success and their past failures.

Drimmer also said that fewer cases are being dismissed on forum non conveniens and other grounds as judges have made the adjustment. [Jonathan C. Drimmer is a partner at Steptoe & Johnson who lectures on the Alien Tort Statute at Georgetown Law School and advises multinational companies on compliance with the Alien Tort Statute.]

"Courts clearly are a lot more comfortable hearing alien tort cases that have no direct connection to United States than they were five years or 10 years ago," he said. "We are still in the nascent stages of litigation on the parameters of the ATS. Twenty years from now, we are going to look back at and see this as the period when the blocks were being built on how this law is going to be interpreted."