Wednesday, October 21, 2009

Sarei v. Rio Tinto UPDATE:

Sarei v. Rio Tinto, PLC, 02-56256 / 02-56390

Three-Judge Panel Opinion: 487 F.3d 1193 (9th Cir. 2007)

Order Taking Case En Banc: 499 F.3d 923 (9th Cir. 2007)

Date of Order Taking Case En Banc: August 20, 2007

En Banc Order: 550 F.3d 822 (9th Cir. 2008)

Date of En Banc Order: December 16, 2008

Status: Remand for consideration, in the first instance, of whether exhaustion of local remedies was required, in dismissal of Alien Tort Statute ("ATS") action.

On 9/29/09 the en banc court granted defendants' motion to reactivate the appeals, and ordered supplemental briefing. Oral argument to be scheduled by separate order.

Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta

Subject Matter: Appeal of the district court's dismissal of a class action complaint brought by current and former residents of the island of Bougainville in Papua New Guinea against a mining company under the Alien Tort Claims Act.

Holding: Certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.

Petition for rehearing en banc

Friday, October 16, 2009

Not an ATS case - but lesson here for ATS defense counsel... don't get greedy!

Dole withdraws lawsuit against Swedish filmmaker
Associated Press
7:45 AM PDT, October 15, 2009

STOCKHOLM -- Dole Foods is withdrawing a defamation lawsuit against a Swedish filmmaker after complaints in Sweden that it was trying to limit free speech, the company said Thursday.Dole had sued filmmaker Fredrik Gertten for showing the documentary "Bananas!" despite a court ruling that the case on which the film was based had been part of a massive extortion plot against the company.The documentary shows the alleged plight of Nicaraguan workers who say they were made sterile by a pesticide used at Dole banana plantations in the 1970s.

Dole's lawsuit sparked protests in Sweden, where critics said the food company was trying to interfere with the freedom of speech.In a statement, Dole said it decided to withdraw the lawsuit "in light of the free speech concerns being expressed in Sweden, although it continues to believe in the merits of its case.""While the filmmakers continue to show a film that is fundamentally flawed and contains many false statements we look forward to an open discussion with the filmmakers regarding the content of the film," Dole's Executive Vice President and General Counsel, C. Michael Carter said.The film was completed before a California judge dismissed two cases against Dole, saying the workers were recruited by a lawyer to lie.

That ruling has been appealed.The film was shown twice at the Los Angeles Film Festival in June with a lengthy written disclaimer by organizers who said it did not present a fair and accurate account but was worth showing as "a case study" of what happens when a story changes after a documentary is completed. It has been show at cinemas in Sweden since Oct. 9.Gertten told reporters in Stockholm he was very happy about Dole's decision and hoped the film can now continue to be screened in the U.S. and Canada."We have cut a very balanced film, we haven't done a propaganda story," he said.

"Really we did everything right."He was supported by two Swedish lawmakers and the Swedish minister for culture, Lena Adelsohn Liljeroth who said Thursday that Dole made a "wise" decision in withdrawing the lawsuit.Earlier this week Swedish food chain ICA -- a Dole customer -- held a meeting with the company saying it felt the filmmaker had the right to express his side of the story."We met their European division and ... put forward our view on the matter," ICA's fruit and vegetables chief Lars Astrom told The Associated Press. "We said we thought they should withdraw the lawsuit and asked them to get back to us, and now they have done that."

Copyright © 2009, The Los Angeles Times
Fraud by Trial Lawyers Taints Wave of Pesticide Lawsuits:

CHINANDEGA, Nicaragua -- After responding to a radio commercial seeking former banana-plantation workers for a lawsuit against Dole Food Co., Marcos Sergio Medrano thought he might be entitled to some money. He says an American law firm convinced him that a pesticide used on the Dole-operated banana plantation where he had worked years ago had made him sterile.
Lawyers for the 49-year-old peasant produced tests that purported to prove it. But DNA testing by Dole revealed that he had fathered three children -- something Mr. Medrano says was news to him. "I don't feel good about this," he says now. "I feel I was involved in foul play."

Mr. Medrano is part of the sorry fallout from a group of U.S. personal-injury and other lawyers who descended on this small, impoverished city, seeking to recruit thousands of clients and earn up to 40% of any awards. Emboldened by a developing-world legal system that heavily favored plaintiffs, they filed an avalanche of lawsuits here against California-based Dole and eventually won $2.1 billion in local judgments... more...

Wednesday, October 14, 2009

The Supreme has not yet decided whether to grant cert for Pfizer Inc. v. Abdullahi et al. On October 7 the justices received a Supplemental brief of petitioner Pfizer Inc., and on October 13 papers were again DISTRIBUTED for Conference of October 19, 2009. This may have something to do with the Second Circuit's recent decision in Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016.

Sunday, October 4, 2009

Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016
October 2, 2009

In an action alleging that defendant participated in the Sudan government's violations of international law through genocide, war crimes, and crimes against humanity, the dismissal of the complaint is affirmed where plaintiffs failed to establish defendant's purposeful complicity in human rights abuses.

Read Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

Friday, October 2, 2009

ATS Case up for cert in SCOTUS

Pfizer Inc. v. Abdullahi et al.

Issue: Whether ATS jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.


Cert petition...