Human rights law can be used in clergy sex abuse suit, judge rules
St. Paul lawyer's attacks on church show increasingly international reach

By Annysa Johnson of the Journal Sentinel

Feb. 28, 2011

A federal law that allows U.S. courts to hear lawsuits involving human rights violations in other nations can be used in a case involving Catholic clergy sex abuse, a federal judge in Los Angeles ruled on Monday.

The decision by U.S. District Judge Josephine S. Tucker appears to be the first time the 200-year-old Alien Tort Statute has been used to pursue a sex abuse claim against the Catholic Church. And it illustrates the increasing international reach of victims attorney Jeffrey Anderson of St. Paul, Minn., who is suing the Vatican and has opened a practice in London to pursue cases in the United Kingdom. Anderson represents a number of victims in civil fraud cases against the Archdiocese of Milwaukee.

"This is huge, very significant," said Anderson, who filed the case on behalf of a Mexican boy after seeing the law used to bring cases involving Japanese women conscripted as sex slaves in World War II.

Attorneys and a spokesman for retired Los Angeles Cardinal Roger Mahony did not immediately return calls.

In her ruling Monday, Tucker denied a motion to dismiss by lawyers for Mahony, arguing that the federal court did not have jurisdiction. The lawsuit also names as defendants Mexico City Cardinal Norberto Rivera and Father Nicholas Aguilar Rivera.

Aguilar is accused of molesting 60 children in Mexico before he was sent to Los Angeles, where he is accused of molesting 26 others. He returned to Mexico, where he allegedly molested four more children - including Juan Doe 1 named in the Alien Tort Statute case - and his whereabouts are unknown, Anderson said.

[See April 2010 ATS Today post about this case here and  here.]
[See also The Huffington Post.]

Pfizer Settles Lawsuits Over Drug Trials on Children in Nigeria

Nearly 15 years after its controversial drug trial on 200 children with meningitis in Nigeria, Pfizer Inc. and all plaintiffs in the cases related to the trial announced today that they have reached a global settlement.

In a joint statement, the parties said, "Under the terms of the settlement agreement, the plaintiffs will join the ongoing Healthcare/Meningitis Trust Fund process, which is being managed by an independent Board of Trustees in Kano, Nigeria.

"The cases have been amicably resolved after many years of litigation. The settlement will bring an end to all litigation pertaining to Trovan in the United States and Nigeria and allow for just compensation for participants in the study and their families."

Bradley Lerman, Pfizer senior vice president and associate general counsel, said in a statement: "The settlement of the cases pertaining to Trovan clears the way for the board to finalize its work in Nigeria to determine claimants' eligibility. We are pleased that this agreement moves us one step closer to providing compensation to those for whom the fund was intended. Putting an end to all litigation related to Trovan will allow Pfizer to focus all its attention on bringing health care solutions to benefit all the people of Nigeria."

Pfizer spokesman Christopher Loder said the trust fund can pay a maximum of $175,000 per child to those able to prove death or permanent disability due to the 1996 trial of Trovan. The antibiotic has since been restricted to adult emergency care in America because of its damaging side effects.

Loder said the settlement is confidential and he could not discuss if there were any other terms. Plaintiffs' lawyer Peter Safirstein of Milberg also declined comment beyond the statement.

Both parties agreed to pay their own court costs, according to a stipulation order posted today in U.S. District Court in Manhattan. That's where families of the children first filed suit in 2001 under the Alien Tort Statute.

The suit accused Pfizer of using the experimental drug without the consent of the parents, and of not telling the families that another acceptable drug was available and was being used by Doctors Without Borders in Nigeria to treat the epidemic. Pfizer denied their allegations.

The families battled Pfizer all the way to the U.S. Supreme Court and back after U.S. District Judge William H. Pauley, III, had dismissed the suit in 2005. As of a hearing on Friday, the case was still in the pre-trial motion stage.

But earlier this month the plaintiffs' cause took a bleak turn when the 2nd Circuit Court of Appeals ruled en banc in a different case that claims against a corporation cannot be brought under the Alien Tort Statute. Rather than risk another dismissal and another appeal that was destined to lose at the next level, the plaintiffs agreed on Friday to settle all claims both in the U.S. and Nigeria.

Pfizer established the $35 million Healthcare/Meningitis Trust Fund as part of settling a suit in 2007 brought by the Kano state government, where the drug trial took place. That settlement also is confidential.

Until now, the trust fund money has been tied up in legal battles in Nigeria, where some families opposed taking a DNA test.

Kiobel: Second Circuit rejects en banc review: upholds key ruling in Kiobel

* Split in federal courts could go to U.S. Supreme Court

By Jonathan Stempel

NEW YORK, Feb 4 (Reuters) - A U.S. appeals court refused to reconsider a lawsuit that accused Royal Dutch Shell Plc (RDSa.L) of helping Nigerian authorities violently suppress protests against oil exploration in the 1990s.

In a divided vote [5 to 5] that prompted a bitter debate among some of its judges, the court left intact what some legal experts call a landmark ruling in September that companies cannot be liable[under the ATS] in U.S. courts for violations of international human rights law.

more...

Herrera v. Toth, Case No. 08-4167, Third Circuit:
Opinion filed: January 6, 2011

"Jesus Alberto Mejia Herrera appeals from an order of the District Court of the Virgin Islands, which dismissed his complaint.  We will affirm, albeit on a different basis."
...
"Herrera . . . sought to raise claims pursuant to the Alien Tort Statute. We noted in McPherson that a ten-year limitations period extends to such claims.  Herrera's complaint, filed in 2008, was several years too late [claims arose in 1993].  We further agree with the Government that even if equitable tolling could be applied, it is highly unlikely that Herrera could "show that he has exercised reasonable diligence in pursuing or investigating his claim" in order to warrant equitable tolling of the limitation periods. Government Response at 4; see McAleese v. Brennan, 483 F.3d 206, 219 (3d Cir. 2007) (person seeking equitable tolling must show he diligently pursued rights and extraordinary circumstances stood in his way)."

M. Anderson Berry's Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute was republsihed in the Immigration and Nationality Law Review, Vol. 30, Issue 1 (2009), pp. 111-176 in late 2010. 

"Berry discusses the seemingly minor linguistic change by Congress that substantially altered the class of individuals to whom the Alien Tort Statute is available."

Jonathan Drimmer, a partner at Steptoe & Johnson LLP in Washington, D.C., discusses Kiobel:

Excerpt:  "Throughout this era, courts repeatedly have concluded, relying on U.S. domestic law, that corporations - like individuals - could be viable defendants under the ATS."  "Without question, Kiobel, breaking with 20 years of federal court decisions on the ATS, is a significant decision. Some 30% of all corporate ATS cases to date have been brought in the Second Circuit, more than any other. Should the decision stand, it is a near certainty that federal courts in addition to Flomo, Viera, and Nestle will follow suit. However, the practical impact of the decision, in the end, may be more limited than some commentators have declared."  "For companies and in-house counsel, that of course necessitates continued care in overseeing, and close scrutiny of, overseas operations to avoid potential ATS and other human rights lawsuits against corporate officers and the company itself. Specifically, that includes meaningful stakeholder engagement, a suite of related corporate policies and controls focusing on human rights-related issues and norms, and an effective corporate compliance programs that at a minimum includes training, reporting mechanisms, due diligence of third parties, and investigatory resources related to human rights principles."

Subscribers can access the complete commentary on lexis.com here. Additional fees may be incurred. (approx. 7 pages)

"It's primarily about justice for the victims, even if they're not going to be compensated in the end."

U.S. [ATS] Suits Against Pakistani Spy Chief Face Hurdles
by The Associated Press

The plaintiffs in two U.S. lawsuits accusing Pakistan's spy chief of nurturing terrorists involved in the 2008 Mumbai attacks are hoping for a historic outcome recalling the Lockerbie settlement, but they would have to overcome serious legal obstacles first, lawyers and experts say.

The civil complaints naming Gen. Ahmed Shuja Pasha and his Inter-Services Intelligence agency as defendants are like past lawsuits filed in federal courts against overseas figures with alleged links to terrorist attacks and other atrocities.  More...

Pakistan Spy Chief to Ignore U.S. Summons
By SALMAN MASOOD (NYT)

Pakistan — Prime Minister Yusuf Raza Gilani of Pakistan said Thursday that there was no possibility that the head of the country’s powerful spy organization, the Inter-Services Intelligence Directorate, would obey a summons requesting his appearance before a court in the United States relating to the 2008 Mumbai terrorist attacks.  More...