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

- "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
31 July 2015

Alien Tort Case Development: Second Circuit Affirms Dismissal of Claims Against Ford and IBM

Author: Sarah Altschuller, CSR and the Law by Foley Hoag

Earlier this week, the Second Circuit Court of Appeals affirmed a decision in In re: South African Apartheid Litigation dismissing claims brought pursuant to the Alien Tort Statute (“ATS”) against Ford and IBM. Plaintiffs had alleged that the companies aided and abetted tortious conduct by South Africa’s apartheid regime. The Court observed that the “focus” of the necessary inquiry as to whether plaintiffs’ claims properly “touch and concern” the United States is “the nature and location of the conduct constituting the alleged offenses under the law of nations.”

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Article
30 July 2015

Unrealistic Pleading Standards: Another Injustice for Human Rights Victims

Author: Sophia Cope, Electronic Frontier Foundation

The Second Circuit Court of Appeals dealt a blow to human rights victims when it dismissed Balintulo v. Ford Motor Co. this week. The appellate court…[applied] an unrealistically and unfairly high pleading standard to a case brought by black South Africans against IBM Corp. and Ford Motor Co. for their roles in facilitating apartheid. In February, we filed an amicus brief in support of the plaintiffs’ case against IBM…We believe strongly in innovation and the power of technology to be a force for good…As we said in our amicus brief, “U.S. corporations should not enjoy immunity for their purposeful assistance, technological or otherwise, in gross human rights violations . . . Technology has the capacity to protect human rights, but it also can be customized to make violations ruthlessly efficient.”

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Article
27 July 2015

2nd Circuit Tosses Apartheid Cases Against IBM, Ford

Author: Dan McCue, Courthouse News Service

Victims of apartheid in South Africa cannot sue IBM and the Ford Motor Co. in New York because there is no evidence any of the corporations' alleged offenses occurred in the United States, the Second Circuit ruled Monday. The ruling, written by U.S. Circuit Judge Jose Cabranes on behalf of the three-judge panel, cites a 2013 ruling by the Supreme Court that significantly limits the reach of the 1789 Alien Tort Statute…The panel's ruling Monday upheld decision by U.S. District Judge Shira Scheindlin, who threw out the cases last year -- some of them filed as long ago as 2002, against scores of corporations and individuals -- because the conduct complained of occurred overseas.

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Article
27 July 2015

Ford, IBM defeat appeal over apartheid abuses -U.S. court

Author: Jonathan Stempel, Reuters

Victims of apartheid in South Africa cannot pursue lawsuits seeking to hold Ford Motor Co and IBM Corp liable for conducting business that helped perpetuate the practice decades ago…The 2nd U.S. Circuit Court of Appeals in New York said black South Africans did not show that Ford and IBM engaged in enough wrongdoing in the United States from the 1970s to early 1990s to justify lawsuits over their alleged roles in killings, torture and other human rights abuses. Ford was accused of providing military vehicles for South African security forces, and sharing information about anti-apartheid and union activists. IBM was accused of providing technology and training to perpetuate racial separation and the "denationalization" of black South Africans. The plaintiffs sued 13 years ago under the Alien Tort Statute…

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Article
27 July 2015

[PDF] Balintulo, et al. v. Ford, IBM - Opinion

Author: US Court of Appeals for the 2nd Circuit

This appeal presents the question of whether plaintiffs, victims of South African apartheid, have plausibly alleged relevant conduct committed within the United States that is sufficient to rebut the Alien Tort Statute’s presumption against extraterritoriality. We hold that they have not. Accordingly, we AFFIRM the August 28, 2014 order of the United States District Court for the Southern District of New York (Shira A. Sheindlin, Judge).

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Article
5 December 2014

Access to justice for victims of human rights abuses needs to be strengthened

Author: Sif Thorgeirsson, Manager, Corporate Legal Accountability Project, Business & Human Rights Resource Centre

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto,  Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

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Article
12 September 2014

Lawyer analyses US court decision in So. African apartheid case against IBM & Ford

Author: Michael Kourabas, TriplePundit

"The End of Apartheid Litigation and the Future of Corporate Accountability", 11 Sep 2014

The quest to hold corporations liable for alleged human rights abuses committed abroad was dealt another blow late last month when a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations...In a begrudging bow to current precedent...Judge Shira Scheindlin...denied plaintiffs’ motion to amend their complaint because they would be unable to meet the stringent demands of a test announced by the Second Circuit Court of Appeals earlier in the year...It seems, then, that all an American corporation has to do to protect itself from ATS exposure is ensure that, to the extent it engages in violations of international law in another country, it does so through a foreign subsidiary...As for Judge Scheindlin...“That these plaintiffs are left without relief in an American court is regrettable,” she wrote.  “But I am bound to follow [precedent]..."...

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Article
9 September 2014

Earth Rights Intl. - Analysis of decision in So. African apartheid Alien Tort case

Author: Marissa Vahlsing, Earth Rights International

"Justice Further Delayed in Apartheid Case", 04 Sep 2014

Last week..Judge Shira Scheindlin...dismissed a...case brought by black South Africans against U.S. companies IBM and Ford...But there was every indication that she did so reluctantly, and with regret...[S]he dismissed the Apartheid case, not because her personal view of the law compelled it, but because she had no other choice...[T]he federal courts have contorted the content and meaning of the Alien Tort Statute beyond recognition...In her decision...Judge Scheindlin wrote “[t]hat these plaintiffs are left without relief in an American court is regrettable. But I am bound to follow Kiobel II and Balintulo, no matter what my personal view of the law may be.”...Whatever does happen next, one thing is clear: the Apartheid plaintiffs have waited too long for justice. 

 

 

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Article
2 September 2014

Khulumani Support Group statement on dismissal of So. African apartheid litigation

Author: Khulumani Support Group

"US District Court Judge Scheindlin dismisses the Apartheid Litigation on grounds that the recent narrowing of the scope of application of the Alien Tort Statute now prevents claims that involve foreign subsidiaries of American corporations", 1 Sep 2014

After twelve years of sustained advocacy towards ending the impunity of transnational companies for aiding and abetting the perpetration of gross human rights violations in South Africa, through their collaboration with and provision of military and other strategic equipment to the security agencies of the apartheid regime, the presiding judge, Shira Scheindlin has ruled that ATS jurisdiction following Kiobel II no longer extends “to claims involving foreign conduct by foreign subsidiaries of American corporations.”… This particular setback comes at a historic point in a growing global movement seeking to end the impunity of multinational companies for corporate crimes. In June this year, the United Nations Human Rights Council moved for the building and adoption of a binding treaty to prevent human rights violations by transnational corporations. The Khulumani litigation has long pioneered efforts to secure accountability for corporate crimes...

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Article
1 September 2014

US court dismisses lawsuit against Ford & IBM alleging complicity in So. African apartheid abuses

Author: Reuters

"Apartheid corporate lawsuit dismissed", 29 August 2014

 A Manhattan federal judge has dismissed a 12-year-old lawsuit accusing Ford Motor and IBM of encouraging human rights abuses in apartheid-era South Africa, reluctantly concluding that the case does not belong in US courts…Judge Shira Scheindlin…said the black South Africans who brought the case did not show “relevant conduct” by Ford and IBM within the United States to justify holding the companies liable. The plaintiffs had accused Ford, IBM and other companies of having…aided South Africa's former apartheid government in abuses such as killings and torture… In April, Scheindlin…gave the plaintiffs one more chance, to meet the new [Alien Tort Claims Act] standards imposed by…higher courts. But in Thursday's decision, she said the bar proved too high, and that any alleged international law violations were by Ford's and IBM's South African units, and occurred abroad.

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