Apartheid reparations lawsuits (re So. Africa)

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In 2002 a group of South Africans, represented by the Khulumani Support Group, sued 20 banks and corporations in US federal court that did business in South Africa during apartheid.  The plaintiffs allege that the participation of the defendant companies in key industries during the apartheid era was influential in encouraging and furthering abuses against black Africans during that time.  The plaintiffs are victims of human rights abuses such as extrajudicial killings, torture and rape, and they allege that the defendants’ activities in South Africa during the apartheid era made them complicit in the commission of those abuses. 

The South African Government was opposed to this lawsuit, and it filed documentation with both the district court and appeals court publicly stating its position regarding the case.  A federal district court judge granted the defendants’ motion to dismiss in November 2004.  The plaintiffs appealed this dismissal in August of 2005.  In October of 2007, the appeals court reversed the lower court's dismissal of this case and remanded the case back to the lower court for further proceedings.  On 10 January 2008, the defendant companies petitioned the US Supreme Court for certiorari, asking the court to hear their appeal of the October 2007 decision of the US Court of Appeals for the Second Circuit.  In May 2008, the US Supreme Court declared that it could not intervene in this case because four of the nine justices had to recuse themselves for apparent conflicts.  Lacking the required quorum, the Supreme Court had no option but to uphold the decision of the Second Circuit Court of Appeals allowing the lawsuit to proceed.  On 8 April 2009, the federal district court issued a ruling in this case.  The judge's ruling narrowed the claims in the case but allowed the case to continue against Daimler, Ford, General Motors, IBM and Rheinmetall Group.  In September 2009, the South African Government announced its support of the lawsuit, withdrawing its previous opposition to the case. 

The South African Justice Minister sent a letter to the District Court judge informing her that the government believes the court to be the appropriate forum to decide this case.  In August 2013 the US Court of Appeals for the Second Circuit returned the case to the lower court and recommended dismissing the case, citing the US Supreme Court's limitation on extraterritorial application of the Alien Tort Claims Act in Kiobel v. Shell.  On 26 December 2013 the lower court issued an order dismissing Daimler and Rheinmetall from the case, but the court declined to dismiss the claims against IBM and Ford. In April 2014, the lower court ruled the plaintiffs could amend their complaints against Ford and IBM to provide evidence that the companies' activities "touch and concern" the territory of the United States. The judge said that in order to overcome the presumption against extraterritoriality set forth in Kiobel, the plaintiffs must show corporate presence plus additional factors. On 29 August 2014, the lower court judge dismissed the case finding that the plaintiffs had not shown a sufficient connection with the United States to warrant the case being heard in US court.  On 27 July 2015, the court of appeals upheld the lower court's dismissal of the case. On 20 June, the US Supreme Court rejected the plaintiffs’ appeal, of a lower court decision holding that the plaintiffs had failed to show a sufficiently close connection between IBM and Ford’s actions in the US and human rights abuses by the apartheid government.

On 27 February 2012, the plaintiffs reached a settlement with General Motors.

- "U.S. top court declines to revive apartheid claims against IBM, Ford", Lawrence Hurley, Reuters, 20 Jun 2016
- "Ford, IBM defeat appeal over apartheid abuses - U.S. court", Jonathan Stempel, Reuters, 27 Jul 2015
- "Apartheid corporate lawsuit dismissed", Reuters, 29 Aug 2014
- "U.S. judge dismisses apartheid claims against 2 German companies", Nate Raymond, Reuters, 27 Dec 2013
- "High Court Decision Cited in Rejection of Apartheid Liability", Brendan Pierson, New York Law Journal, 22 Aug 2013 
- "US General Motors settles apartheid reparations claim", Adrian Ephraim, Mail & Guardian, 29 Feb 2012
- "State supports apartheid-era victims", Christelle Terreblanche, Cape Times [So. Africa], 3 Sep 2009
- "Judge Narrows Claims in Apartheid Torts Case Against Multinational Companies", Mark Hamblett, New York Law Journal, 9 Apr 2009
- "Court won't block U.S. lawsuit by apartheid victims", Mark Sherman, Associated Press, 12 May 2008
- “US court allows apartheid claims to go forward”, Paritosh Bansal, Reuters, 12 Oct 2007
- “Apartheid Victims Sue Global Corporations”, Alison Raphael, OneWorld US, 13 Nov 2002

- South African Minister of Justice and Constitutional Development Jeffrey Radebe: [PDF] Letter to Judge Shira Scheindlin regarding In Re South African Apartheid Litigation, 1 Sep 2009
- South African Minister of Justice and Constitutional Development Dr. P M Maduna: [PDF] Declaration of Minister Maduna to US District Court Judge Spizzo, 11 Jul 2003

- South African Minister of Foreign Affairs Nkosazana Dlamini Zuma: [PDF] Letter to US Secretary of State Colin Powell Re Apartheid Litigation, 16 May 2002

 

- Schonbrun DeSimone Seplow Harris & Hoffman LLP (plaintiffs’ co-counsel): case summary (includes links to legal briefs filed in this case)
- Hausfeld LLP (plaintiffs' co-counsel):  Khulumani v. Barclays National Bank Ltd. - Info Center
- Khulumani Support Group (plaintiffs): Khulumani Lawsuit in New York
- Khulumani Support Group: US Circuit Court dismisses apartheid litigation, 22 Aug 2013

- [PDF] Balintulo v. Ford, IBM, US Court of Appeals for the Second Circuit, 27 Jul 2015 [order affirmng lower court's dismissal]
- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 29 Aug 2014 [order dismissing the lawsuit]
- [PDF] In re South African Apartheid Litigation, US District Court for the Southern District of New York, 26 Dec 2013 [order dismissing Daimler & Rheinmetall from case]
- [PDF] Balintulo v. Daimler AG, US Court of Appeals for the Second Circuit, 21 Aug 2013
- [PDF] American Isuzu Motors, Inc., et al. v. Lungisile Ntsebeza, et al. - Brief for the United States as Amicus Curiae in Support of Petitioners, 11 Feb 2008 [brief of in support of dismissal of lawsuit]
- [PDF] American Isuzu Motors Inc. et al. v. Ntsebeza et al. - Petition for a Writ of Certiorari, 10 Jan 2008 [petition filed by the defendant companies at US Supreme Court]
- US District Court for the Southern District of New York: [PDF] In re South African Apartheid Litigation, 8 Apr 2009
- US Court of Appeals for the Second Circuit: [PDF] Khulumani v. Barclay National Bank, Ltd., 12 Oct 2007

 

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Article
14 October 2013

Should Multinational Corporations be Held Liable for Having Done Business with the Apartheid Regime? (So. Africa)

Author: Nadia Bernaz (Middlesex University), on Rights as Usual

[A]t the University of the Witwatersrand in Johannesburg...[o]n...16 October I will deliver a lecture entitled “Should Multinational Corporations be Held Liable for Having Done Business with the Apartheid Regime?” The question...has been specifically looked at in two...forums: the South African Truth and Reconciliation Commission (TRC) and US Federal Courts....The issue of liability is of both a moral and legal nature...What is particularly interesting in the South African example is that room was made for the question of liability to be approached from both moral and legal angles, arguably allowing for a better and perhaps more balanced understanding of the issues.

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Article
1 October 2013

[PDF] Out of Bounds - Accountability for Corporate Human Rights Abuse After Kiobel

Author: EarthRights International

This report presents a summary of the history, jurisprudence and politics of the [Alien Tort Statute (ATS)], explaining how this obscure law became one of the most important and hotly contested tools in the area of business and human rights and the target of attack by the corporate lobby, the Bush Administration, and eventually even the Obama Administration. We track the rise of the ATS through its highs, including the Supreme Court’s 2004 decision in Sosa v. Alvarez Machain, to its recent holding in Kiobel v. Royal Dutch Petroleum (Shell). We consider the future of ATS claims and other avenues for human rights litigation more broadly in light of the holding, and conclude that new tools are needed to fulfill U.S. obligations to hold corporations accountable. [Also refers to Arab Bank, CACI, Chevron, Chiquita, Cisco, ExxonMobil, Pfizer, Rio Tinto, Total, Unocal (part of Chevron).]

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Article
20 September 2013

Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in Apartheid Case

Author: Tyler Giannini & Susan Farbstein, Human Rights @Harvard Law

This week, the International Human Rights Clinic, along with co-counsel, filed a petition on behalf of plaintiffs for panel rehearing or rehearing en banc to review the U.S. Second Circuit Court of Appeal’s decision in Balintulo v. Daimler AG, which is also known as the In Re South African Apartheid Litigation. The petition stated that “The panel opinion in Balintulo v. Daimler AG would eviscerate more than thirty years of this Court’s Alien Tort Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this Circuit.” [also refers to Ford, IBM]

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Article
19 September 2013

[PDF] Corporate Legal Accountability Quarterly Bulletin – Issue 10, Sep 2013

Author: Business & Human Rights Resource Centre

Welcome to the 10th issue of the Corporate Legal Accountability Quarterly Bulletin. To assist all those following corporate legal accountability issues, we send this bulletin to highlight key developments, new cases profiled on our site, updates to existing profiles, and other news. Our Corporate Legal Accountability Portal is an online information hub providing resources for non-lawyers as well as lawyers – including victims, advocates, NGOs, businesspeople, lawyers bringing lawsuits against companies and lawyers defending companies. The portal provides impartial, concise information about lawsuits against companies in which human rights abuses are alleged – its aim is to demystify these lawsuits. Each case profile includes materials from both the plaintiffs and defendants, to the extent they are available…This bulletin is now available in Spanish and French. [Refers to African Barrick Gold, Alstom, BP, CACI, Chevron, Coca-Cola, COMILOG (part of ERAMET), Daimler, Danzer, Dow Chemical, Drummond, ERAMET, Ford, HudBay Minerals, IBM, KBR, Ledesma, Mercedes-Benz (part of Daimler), Monterrico Metals, Nestlé, PA Child Care, Qosmos, Rio Tinto, Shell, Sinter Metal, SNCF, Texaco (part of Chevron), Thomson Safaris, Total, Union Carbide (part of Dow), Vedanta Resources, Veolia (part of Veolia Environnement), Veolia Environnement, Walmart]

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Article
10 September 2013

Post-Kiobel roundup: Apartheid case is not dismissed, but may soon be; some positive decisions from other courts [USA]

Author: Marco Simons, Earth Rights International

The first wave of decisions interpreting the Supreme Court’s ruling in Kiobel continues to come down, and it’s a mixed bag. Perhaps most important is a terrible opinion by the Second Circuit Court of Appeals, the court that issued the original Kiobel ruling, in the apartheid litigation. Two other decisions, however, give some hope that many human rights cases under the Alien Tort Statute (ATS) may continue after Kiobel…[Earth Rights International] is also proceeding with our ATS case against Chiquita for funding paramilitary death squads in Colombia. In that case, the Eleventh Circuit Court of Appeals is now considering the effect of the Kiobel decision on the case. If the court follows the reasoning of the judges in the SMUG v. Lively and Ahmed v. Magan cases, our ATS claims against Chiquita should continue – and Chiquita won’t be the last corporation we sue for human rights abuses.

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Article
2 September 2013

Justice takes a step back for sake or profit

Author: Mia Swart, BDlive (So. Africa)

On [21 August], the Second Circuit Court of Appeal in New York dismissed the apartheid lawsuit…From a procedural point of view, it came as no surprise. The case nevertheless was a huge setback for human rights law and for the international right to reparations…The door of justice is not entirely closed for the Khulumani plaintiffs. They have the option of starting anew in another US circuit court or to initiate a new case against the directors of the companies in their personal capacities…What is clear post-Kiobel and post-Khulumani is that the dream of Nuremberg, that there should be no impunity for serious human rights violations, has been deferred…The hopes of global law scholars that the act could "revive the Nuremberg ideal" by expanding norms of accountability to encompass violations by US-based corporations, have been dashed…[Refers to Daimler, Ford, IBM, Shell, ThyssenKrupp]

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Article
30 August 2013

The Global Lawyer: The State of Play After Kiobel [Subscription required]

Author: Michael D. Goldhaber, in Litigation Daily (USA)

For a zombie doctrine, alien tort had a lively late summer. [In August]…U.S. judges handed down no fewer than five post-Kiobel rulings. And although alien tort plaintiffs see four rays of hope, their most ambitious claim of all took a stake through the heart…Explosive alien tort claims against KBR and Arab Bank each failed…for lack of a strong U.S. connection. However, both companies continue to face claims under a different federal statute…[In]…Balintulo v. Daimler…Judge Jose Cabranes fired the fatal bullet by concluding: “[I]f all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel.” It was a sad moment for corporate accountability, but I can't quibble with his reading of Kiobel…[P]laintiffs can draw constructive lessons from the courts’ high summer human rights spree…[and] should try to assert parallel claims under federal laws that are expressly extraterritorial…Of course, each is limited to its own narrow circumstances...

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Article
22 August 2013

High Court Decision Cited in Rejection of Apartheid Liability [USA]

Author: Brendan Pierson, New York Law Journal

Three companies cannot be held liable in the United States for racial discrimination and violence in apartheid-era South Africa now that the U.S. Supreme Court has limited the use of the Alien Tort Statute, a federal appeals court has ruled. A unanimous panel of the U.S. Court of Appeals for the Second Circuit ruled Wednesday in Balintulo v. Daimler AG…that U.S. courts have no jurisdiction over the lawsuit because all of the alleged wrongs took place in South Africa…[The judge] rejected all of the arguments put forth by the plaintiffs. The plaintiffs had argued that the Alien Tort Statute still allows suits over foreign conduct if the defendants are U.S. nationals or if the conduct implicates American interests…[Refers to Daimler, Ford, IBM, Shell]

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Article
10 June 2013

[PDF] The Business and Human Rights Review, Spring 2013, Issue 2

Author: Allen & Overy's Human Rights Working Group

[Foreword by Justice Richard Goldstone:] The Business and Human Rights Review provides an important and timely interdisciplinary forum for lawyers and members of the business community to discuss the growing relationship between corporations, both domestic and transnational, and the protection of the human rights of people impacted by commercial activities...The activities of transnational corporations have grown exponentially in recent years...The United Nations Guiding Principles on Business and Human Rights…acknowledges the growing significance of corporations on the global economy by encouraging businesses to respect human rights and provide access to remedies for human rights impacts…These developments bring with them new challenges...[N]one of these challenges is more important to resolve than the provision of accessible courts and tribunals with jurisdiction to consider and enforce appropriate remedies for human rights violations...[Refers to SKF, Atlas Copco, Ericsson, H&M, IKEA, Millicom, National Australia Bank]

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Article
1 October 2012

Will U.S. rule for rights of S. Africans?

Author: [opinion] Desmond Tutu, in USA Today

...[On] Monday,...the U.S. Supreme Court will consider a case that could severely weaken a key legal mechanism...for survivors of abuses such as those that fueled apartheid...Shell Oil is set to argue...that this law cannot be used to hold it accountable...Without legal remedies, violence begets more violence...Shell's attempts to eliminate this [remedy]...is troubling. But what bothers me more is that Shell has misrepresented South Africa's Truth and Reconciliation Commission... Shell argues that the commission shows that human rights victims do not need courts to receive justice, but it sadly misses the point. The truth commission was about victims and perpetrators sitting down, confronting wrongs, and speaking together honestly... The commission provided immunity only to those who confessed their crimes, not to those who maintained they bore no responsibility. Shell's officers and board of directors have shown no willingness to meet with the Nigerian families and ask for forgiveness...If the Supreme Court sides with Shell, it would represent a terrible step backward for human rights. [also refers to Daimler, Ford, IBM, General Motors]

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