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Afghanistan president signs war crimes amnesty bill
Legal World News | 2007/03/11 18:13

A revised version of a controversial bill granting amnesty to groups that allegedly committed war crimes was signed into law Saturday by Afghan President Hamid Karzai after being approved earlier in the day by the Afghan parliament, which includes many former militia leaders. The resolution bars the state from independently prosecuting individuals for war crimes absent accusation from an alleged victim. It also extends immunity to all groups involved in pre-2002 conflicts, as opposed to only leaders of various factions alleged to have committed war crimes during the 1980s resistance against Soviet forces and war crimes committed during the country's civil war. The Taliban and other human rights violators active before the establishment of the December 2001 Interim Administration in Afghanistan are protected under the bill. Critics say the law may violate Afghanistan's constitution as well as certain international human rights treaties. MPs opposing the bill reportedly were threatened by former militiamen in the national assembly.

Both houses of the Afghan parliament initially approved a resolution calling for amnesty for leaders in February. That resolution drew some popular support but was criticized by the UN High Commissioner for Human Rights and other rights advocates. Afghanistan's highest body of Islamic clerics also opposed the issuance of a blanket amnesty, arguing that the perpetrators of war crimes can only gain forgiveness from the victims and not the parliament.



How Business Trounced the Trial Lawyers
Attorney Blogs | 2007/03/11 08:58

The media recently has been writing the obituary of the tort lawyers. "The power of the plaintiffs bar is on the wane," argued the American Lawyer; a cover story in Business Week promised to reveal "How Business Trounced the Trial Lawyers." With apologies to Mark Twain, the reports of the trial lawyers' demise are greatly exaggerated.

While asbestos and tobacco litigation bonanzas are winding down, America's most aggressive contingency-fee law firms still have in place a fee structure in search of an investment strategy. And so, faced with shrinking domestic opportunities, these firms have gone global.

Consider one class-action lawsuit, in which a plaintiffs firm sued Deutsche Bank on behalf of an African tribe which suffered atrocities committed by imperial Germany in the 19th century. Or another, consolidating 10 complaints filed around the country on behalf of all South Africans injured by the former apartheid regime from 1948 to the present.

One of the South African complaints was on behalf of a class including 32,000 plaintiffs; the class in another was estimated to encompass "millions of individuals." The defendants, almost 100 multinational corporations that did business in South Africa after 1948, were alleged to be liable for injuries on the theory that they had aided and abetted the apartheid regime. Purported damages in just one of the consolidated actions total $400 billion.

The law used to lodge these massive foreign class actions in the U.S. is the Alien Tort Statute (ATS). This obscure piece of legislation adopted in 1789 gave federal district courts jurisdiction in civil cases brought by an alien for a tort committed in violation of the law of nations, or of a U.S. treaty. The law was passed primarily to assure a hearing for cases involving offenses against foreign ambassadors, violations of safe conduct and piracy.

The ATS was virtually dormant for two centuries. Then relatives of a Paraguayan citizen who had been kidnapped and tortured to death by a Paraguayan police official—on Paraguayan soil—brought a civil suit against the police official. Plaintiffs and defendants happened to be in the U.S., the police official illegally. In 1980 a U.S. court of appeals allowed the suit to go forward under the ATS, on the grounds that the police official violated international law, including various U.N provisions. From that acorn a mighty oak has grown.

Even by American standards the size of recent ATS class actions is extraordinary. Cases involving wholly foreign events routinely consist of tens or hundreds of thousands of "John Doe" plaintiffs who reside in remote locations as distant as Sudan and Pakistan. The size of the class of defendants has also grown to 500 or more deep-pocketed individuals or companies.

The fact that these lawsuits appear in U.S. courts at all defies common sense. Imagine our justifiable indignation if courts in Japan, France or Russia determined they had jurisdiction over alleged wrongdoing by Americans, in America, against other Americans. It takes a thoroughly arrogant view of the world—call it legal imperialism—to presume that our courts should be the arbiter of problems everywhere, whether or not the problem had anything whatsoever to do with the U.S.

Nevertheless, our tort lawyers presume just that, demanding that our court system sit in judgment over alleged conduct occurring completely within the borders of other sovereign nations, regardless of the effect this may have on U.S. foreign relations. Huge ATS cases have been filed against classes of unnamed defendants in Saudi Arabia, the United Arab Emirates, Qatar and other countries in the Middle East where vital, and delicate, U.S. national security interests are at stake.

Of course, it ultimately will be impractical for U.S. courts to police these monster ATS class actions if they are allowed to proliferate; they dwarf in size the asbestos cases that currently plague the U.S. courts. Congress could have amended the ATS to limit the damage, and in 2005, Democratic Sen. Dianne Feinstein proposed to do so, without success.

Fortunately, the Supreme Court weighed in. In Sosa v. Alvarez-Machain, a Mexican doctor suspected to have participated in the torture and murder of a U.S. DEA agent was apprehended in Mexico by Jose Sosa, a Mexican national hired by U.S. law enforcement. Mr. Sosa brought the Mexican doctor to the U.S., where he was arrested. The doctor sued Mr. Sosa for unlawful detention. In 2004, the Supreme Court dismissed the action and imposed a "high bar" against innovative ATS lawsuits. As a result of Sosa, several ATS suits have been rejected because of the potential for interference with U.S. foreign policy.

In one case, the D.C. circuit dismissed an ATS case seeking reparations from Japan for crimes committed during World War II because the suit interfered with state-to-state negotiations and threatened to "disrupt Japan's delicate relations with China and Korea, thereby creating serious implications for stability in the region."

In another, a federal court dismissed a case brought after the Israeli Defense Forces used heavy equipment to demolish buildings in the Palestinian territory. Plaintiffs sought damages from the manufacturer, Caterpillar, along with an order to stop supplying products to the Israeli armed forces. The court noted that the plaintiffs improperly sought to challenge the acts of an existing government in a region "where diplomacy is delicate and U.S. interests are great."

Trial lawyers nevertheless continue to test the outer limits of ATS liability, "high bar" or not, by filing an array of increasingly ambitious ATS class actions. In one pending case, Wal-Mart has been sued on behalf of residents of China, Bangladesh, Indonesia, Swaziland and Nicaragua. Plaintiffs seek to hold the company vicariously liable for the labor policies of its overseas suppliers. The improvement of labor policies in other countries is certainly a worthy goal. But it is the province of the executive branch and Congress under the foreign affairs and treaty-making powers, not that of attorneys looking for contingency fees.

The corporations named in the South African case—including IBM, General Motors, Ford, Xerox, Coca-Cola and Citigroup—were legally doing business in South Africa pursuant to the official U.S. policy of "constructive engagement" that sought to encourage positive changes in South Africa through economic investment. Recognizing this, the federal court in the Southern District of New York dismissed all 10 of the cases.

That dismissal, along with the dismissals of several other ATS cases, is now pending on appeal before the Second and Ninth Circuits. As these and other ATS cases ripen for appellate review, the era of post-Sosa ATS jurisprudence is entering a critical phase.

The executive branch has promoted strict conformance with Sosa: Both the Clinton and Bush administrations have filed progressively stronger "Statement of Interest" briefs urging that federal courts dismiss ATS cases that could interfere with U.S. foreign policy.

Still, leading class-action law firms such as Motley Rice, Milberg Weiss and Cohen Milstein have launched exploratory ATS cases to test the waters, trying to maneuver around sovereign immunity, which prevents lawsuits against foreign governments. Instead, the plaintiffs lawyers claim that U.S. corporations doing business abroad are vicariously liable for the purely overseas acts of foreign governments, or other actors, in jurisdictions where the U.S. companies do business. And pressured by the massive exposure involved in ATS class actions, defendants in some early cases have opted to settle rather than undertake the risks of litigation.

These plaintiffs firms are flush with cash, experts in the business of creating cases, and undeterred by setbacks. In fact, contingency-fee lawyers take each rejection as a lesson in which tactics work and which do not. They know that if they can weather dismissal motions in a single case, they can proliferate a succession of copycat ATS class actions.

Once they do, you can be sure that a torrent of global ATS class actions will follow—to the detriment of the U.S. court system, foreign policy and U.S. standing around the world.

The media recently has been writing the obituary of the tort lawyers. "The power of the plaintiffs bar is on the wane," argued the American Lawyer; a cover story in Business Week promised to reveal "How Business Trounced the Trial Lawyers." With apologies to Mark Twain, the reports of the trial lawyers' demise are greatly exaggerated.

While asbestos and tobacco litigation bonanzas are winding down, America's most aggressive contingency-fee law firms still have in place a fee structure in search of an investment strategy. And so, faced with shrinking domestic opportunities, these firms have gone global.

Consider one class-action lawsuit, in which a plaintiffs firm sued Deutsche Bank on behalf of an African tribe which suffered atrocities committed by imperial Germany in the 19th century. Or another, consolidating 10 complaints filed around the country on behalf of all South Africans injured by the former apartheid regime from 1948 to the present.

One of the South African complaints was on behalf of a class including 32,000 plaintiffs; the class in another was estimated to encompass "millions of individuals." The defendants, almost 100 multinational corporations that did business in South Africa after 1948, were alleged to be liable for injuries on the theory that they had aided and abetted the apartheid regime. Purported damages in just one of the consolidated actions total $400 billion.

The law used to lodge these massive foreign class actions in the U.S. is the Alien Tort Statute (ATS). This obscure piece of legislation adopted in 1789 gave federal district courts jurisdiction in civil cases brought by an alien for a tort committed in violation of the law of nations, or of a U.S. treaty. The law was passed primarily to assure a hearing for cases involving offenses against foreign ambassadors, violations of safe conduct and piracy.

The ATS was virtually dormant for two centuries. Then relatives of a Paraguayan citizen who had been kidnapped and tortured to death by a Paraguayan police official—on Paraguayan soil—brought a civil suit against the police official. Plaintiffs and defendants happened to be in the U.S., the police official illegally. In 1980 a U.S. court of appeals allowed the suit to go forward under the ATS, on the grounds that the police official violated international law, including various U.N provisions. From that acorn a mighty oak has grown.

Even by American standards the size of recent ATS class actions is extraordinary. Cases involving wholly foreign events routinely consist of tens or hundreds of thousands of "John Doe" plaintiffs who reside in remote locations as distant as Sudan and Pakistan. The size of the class of defendants has also grown to 500 or more deep-pocketed individuals or companies.

The fact that these lawsuits appear in U.S. courts at all defies common sense. Imagine our justifiable indignation if courts in Japan, France or Russia determined they had jurisdiction over alleged wrongdoing by Americans, in America, against other Americans. It takes a thoroughly arrogant view of the world—call it legal imperialism—to presume that our courts should be the arbiter of problems everywhere, whether or not the problem had anything whatsoever to do with the U.S.

Nevertheless, our tort lawyers presume just that, demanding that our court system sit in judgment over alleged conduct occurring completely within the borders of other sovereign nations, regardless of the effect this may have on U.S. foreign relations. Huge ATS cases have been filed against classes of unnamed defendants in Saudi Arabia, the United Arab Emirates, Qatar and other countries in the Middle East where vital, and delicate, U.S. national security interests are at stake.

Of course, it ultimately will be impractical for U.S. courts to police these monster ATS class actions if they are allowed to proliferate; they dwarf in size the asbestos cases that currently plague the U.S. courts. Congress could have amended the ATS to limit the damage, and in 2005, Democratic Sen. Dianne Feinstein proposed to do so, without success.

Fortunately, the Supreme Court weighed in. In Sosa v. Alvarez-Machain, a Mexican doctor suspected to have participated in the torture and murder of a U.S. DEA agent was apprehended in Mexico by Jose Sosa, a Mexican national hired by U.S. law enforcement. Mr. Sosa brought the Mexican doctor to the U.S., where he was arrested. The doctor sued Mr. Sosa for unlawful detention. In 2004, the Supreme Court dismissed the action and imposed a "high bar" against innovative ATS lawsuits. As a result of Sosa, several ATS suits have been rejected because of the potential for interference with U.S. foreign policy.

In one case, the D.C. circuit dismissed an ATS case seeking reparations from Japan for crimes committed during World War II because the suit interfered with state-to-state negotiations and threatened to "disrupt Japan's delicate relations with China and Korea, thereby creating serious implications for stability in the region."

In another, a federal court dismissed a case brought after the Israeli Defense Forces used heavy equipment to demolish buildings in the Palestinian territory. Plaintiffs sought damages from the manufacturer, Caterpillar, along with an order to stop supplying products to the Israeli armed forces. The court noted that the plaintiffs improperly sought to challenge the acts of an existing government in a region "where diplomacy is delicate and U.S. interests are great."

Trial lawyers nevertheless continue to test the outer limits of ATS liability, "high bar" or not, by filing an array of increasingly ambitious ATS class actions. In one pending case, Wal-Mart has been sued on behalf of residents of China, Bangladesh, Indonesia, Swaziland and Nicaragua. Plaintiffs seek to hold the company vicariously liable for the labor policies of its overseas suppliers. The improvement of labor policies in other countries is certainly a worthy goal. But it is the province of the executive branch and Congress under the foreign affairs and treaty-making powers, not that of attorneys looking for contingency fees.

The corporations named in the South African case—including IBM, General Motors, Ford, Xerox, Coca-Cola and Citigroup—were legally doing business in South Africa pursuant to the official U.S. policy of "constructive engagement" that sought to encourage positive changes in South Africa through economic investment. Recognizing this, the federal court in the Southern District of New York dismissed all 10 of the cases.

That dismissal, along with the dismissals of several other ATS cases, is now pending on appeal before the Second and Ninth Circuits. As these and other ATS cases ripen for appellate review, the era of post-Sosa ATS jurisprudence is entering a critical phase.

The executive branch has promoted strict conformance with Sosa: Both the Clinton and Bush administrations have filed progressively stronger "Statement of Interest" briefs urging that federal courts dismiss ATS cases that could interfere with U.S. foreign policy.

Still, leading class-action law firms such as Motley Rice, Milberg Weiss and Cohen Milstein have launched exploratory ATS cases to test the waters, trying to maneuver around sovereign immunity, which prevents lawsuits against foreign governments. Instead, the plaintiffs lawyers claim that U.S. corporations doing business abroad are vicariously liable for the purely overseas acts of foreign governments, or other actors, in jurisdictions where the U.S. companies do business. And pressured by the massive exposure involved in ATS class actions, defendants in some early cases have opted to settle rather than undertake the risks of litigation.

These plaintiffs firms are flush with cash, experts in the business of creating cases, and undeterred by setbacks. In fact, contingency-fee lawyers take each rejection as a lesson in which tactics work and which do not. They know that if they can weather dismissal motions in a single case, they can proliferate a succession of copycat ATS class actions.

Once they do, you can be sure that a torrent of global ATS class actions will follow -to the detriment of the U.S. court system, foreign policy and U.S. standing around the world.



Mass. Supreme Court judge Sosman dies
Headline News | 2007/03/11 05:13

Martha B. Sosman, one of three Massachusetts Supreme Judicial Court judges who voted against the landmark decision legalizing gay marriage in the state, has died, the court said Sunday. She was 56.

Sosman was diagnosed with breast cancer in 2005 and had been participating in some cases by watching Webcasts of oral arguments, reading legal briefs at home and talking with other justices and law clerks by telephone.

Republican Gov. Paul Cellucci hailed Sosman as a "conservative" jurist when he appointed her to the high court as an associate justice in 2000.

She said the argument to define gay partnerships as marriages versus civil unions was "a squabble over the names to be used."

Sosman was a former assistant U.S. attorney in Massachusetts and founded an all-women law firm in 1989, where she worked until she was appointed to the Superior Court in 1993.



One Vt. sugar maker takes fight to U.S. court
Court Feed News | 2007/03/11 05:12

Berndt, 56, owns the Maverick Farm in Sharon, a 16,000-tree property that's one of the largest maple producers in the state. He's planning on sugaring another 20 years before passing the property on to his children or a conservation group. But warmer winters are threatening to cut the tapping season over the next several decades and, with the migration of Southern tree species, crowd out maples over the next century.

What to do? Berndt, a member of Greenpeace and Friends of the Earth, heard about the environmental groups' lawsuit against two U.S. government agencies - the Export-Import Bank and the Overseas Private Investment Corp. - for investing $32 billion in taxpayer money in overseas subsidies to such energy companies as Exxon Mobil Corp., General Electric Co., Halliburton and the now-defunct Enron.

According to the lawsuit, the two federal agencies should have followed the National Environmental Policy Act and reviewed the projected impacts of the resulting oilfields, pipelines and coal-fired power plants.

Had the government done so, it would have realized that the greenhouse-gas emissions from the subsidized fossil-fuel projects equal one-third of the nation's yearly output and almost 10 percent of the world's total, the lawsuit says.

Because scientists blame such gases for global warming, the review would have required the agencies to consider investing in alternatives such as renewable energy and efficiency projects.

Berndt supports such efforts. And so he and his wife, Anne, decided to join several other citizens and cities including Boulder, Colo., and Oakland, Calif., as plaintiffs in the lawsuit.

"We're trying to stimulate some change in policy," he says. "The United States needs to be a leader in the world to bring solutions to climate change."

Berndt isn't the only Vermonter involved in the lawsuit. The Burlington law firm of Shems Dunkiel Kassel & Saunders is representing all the plaintiffs.

"What we're asking for isn't novel," lawyer Ronald Shems says. "We're hoping federal agencies start complying with federal laws."

And stop fueling global warming, Berndt adds.

"If my wife and I have no maple trees, we have no farm income, and the aesthetic value of the land will also be devastated," he says in court papers. "If climate change has the predicted impacts, we should start culling trees now as the timber market will become saturated rather quickly once maples start disappearing in large numbers. However, like many people, we are in denial because it is too depressing to consider the loss."

Lawyers argued the case in U.S. District Court in San Francisco last April. The hearing came after a judge rejected the government's claims that the case should be dismissed because the agencies hadn't taken any action subjecting them to judicial review and were exempt from the National Environmental Policy Act.

"We're just waiting for a decision," Shems says. "It can take a few weeks to approximately a year."

The government has declined to comment until a ruling is reached. Berndt, for his part, is hopeful, although he doesn't know how much time the maple industry has left.

"There are more people who are starting to get concerned," he says. "We know if we continue along the course we're on, ultimately at some point all the sugar makers will be out of business."



Two former Rangers Pleads Guilty to Bank Robbery
Criminal Law Updates | 2007/03/11 01:37

Two former Army Rangers based at Fort Lewis pleaded guilty on Friday to charges related to an August 2006 bank robbery. Alex Blum, 19, of Greenwood Village, Colo., and Scott A. Byrne, 32, of California, pleaded guilty in U.S. District Court in Tacoma, according to the U.S. attorney for the Western District of Washington. A third Army Ranger, Chad Palmer pleaded guilty in December to charges related to the robbery.

A fourth Army Ranger, Luke E. Sommer, who has a dual U.S.-Canadian citizenship is under house arrest in his mother's home in Peachland, B.C., and fighting extradition to the United States. 

Blum, who pleaded guilty to conspiracy to commit armed bank robbery and brandishing a firearm during and in relation to a crime of violence, is scheduled to be sentenced by U.S. District Judge Franklin D. Burgess on June 8. Byrne, who pleaded guilty to conspiracy to commit armed robbery, is scheduled to be sentenced on June 1.

According to court documents, Sommer recruited Palmer, Blum and two men from Canada, Tigra Robertson and Nathan Dunmall. Blum was recruited to drive the getaway car. Byrne was identified in court documents as a "consultant" for the Aug. 7, 2006, robbery.

Byrne was not present at the robbery, the U.S. attorney said, but he advised Sommer to abandon his original plan to rob a casino and identified the bank as a potential target. Byrne also drove Sommer, Robertson and Dunmall to the bus station to catch a bus to Canada.

"While driving to the bus station, Sommer told Byrne that robbing the bank was more thrilling than combat and said he could not have organized the robbery without Byrne's help," the U.S. attorney said.

Blum drove the getaway car -- his own -- during the robbery, according to prosecutors. The robbers had removed the rear license plate of the car but didn't remove the front one. A witness jotted down the license plate number and authorities traced the car to Blum.

Searches at the Army base near Tacoma turned up body armor and money from the bank in the barracks rooms of Blum and Chad Palmer, a fellow Ranger. In Sommer's room, investigators found body armor, $10,000 in cash, two AK-47s and two semiautomatic handguns.

Blum was arrested in Greenwood Village while visiting his family.

Robertson is scheduled for a change of plea hearing on March 12. Sommer and Dunmall are fighting extradition from Canada.



Bush ignores Chavez on Latin American tour
Legal World News | 2007/03/10 18:48

President Bush stuck to talk of trade and friendship on Saturday during a Latin American tour, ignoring provocations from ideological rival Venezuelan President Hugo Chavez. With shouts of "Gringo, Go Home!" Chavez staged a Bush protest on Friday night in Buenos Aires, the Argentine capital across the River Plate from Montevideo, where Bush arrived from Brazil on a week long, five-nation tour.

Bush refrained from mentioning his leftist nemesis when asked during a press conference after meeting with Uruguayan President Tabare Vazquez whether Chavez should be considered a threat.

"I've come to South America and Central America to advance a positive, constructive diplomacy that is being conducted by my government on behalf of the American people," Bush said.

"I would call our diplomacy quiet and effective diplomacy."

Deeply unpopular in Latin America because of the Iraq war and U.S. trade and immigration policies, Bush is pushing a softer message aimed at improving his reputation and bolstering U.S. influence in the region.

Chavez blames U.S.-backed free-market policies for increasing poverty in Latin America and has embarked on a counter-tour during Bush's visit.

Bush traveled by helicopter on Saturday to meet Vazquez at his presidential retreat in Anchorena Park, some 125 miles (200 km) west of Montevideo.



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