THE BROOKLYN SLAVERY CLASS ACTION:
More Than Just A Political Gambit

On March 26, a group of lawyers filed a lawsuit in federal court in Brooklyn, New York, that comprises one of the largest class actions ever filed in America. The case asks for relief for every descendant of African slaves brought to the United States. It was filed against three corporations - Aetna, CSX, and FleetBoston - but more names are promised. It seeks both injunctive relief (that is, a court order asking the companies to do, or refrain from doing, certain things) and damages.

It would be easy to dismiss this lawsuit as an exercise in political grandstanding. But that would be a mistake, for two reasons.

Experienced Class Action Attorneys, and Sharp Litigation Strategy

First, although the lawyers who have brought this suit are not as famous as some others who have threatened to bring a slavery reparations suit, such as Charles Ogletree of Harvard Law School and Johnnie Cochrane, they are not novices either. One of the lawyers who signed the complaint is Ed Fagan, who was instrumental in forcing German industry to pay a $6 billion settlement for profit from Nazi-era slave labor (a settlement I discussed in an earlier column). People thought Fagan was crazy when he filed against Volkswagen and Deutsche Bank-but his strategy worked.

The second reason is strategic. Even if the lawsuit filed last month is deficient in some important ways-and I think it is-it will prepare the way for the next lawsuit. Ogletree's Reparations Assessment Group (RAG) is probably preparing to file their own lawsuit in the coming year, which may look reasonable and moderate in comparison.

RAG's theory of liability is likely to be somewhat different from Fagan's in the Brooklyn class action. In an opinion piece published in the New York Times on the Sunday after Fagan's suit was filed, Ogletree suggested that a better reparations strategy would be to sue not private companies, but the federal government.

The suit Ogletree proposes would require either Congress's consent to be sued, or a brave judge willing to overturn Cato v. United States, which holds that the United States cannot be sued in tort for slavery. Still, one can imagine that the RAG's claim against the government might look reasonable when compared to the current suit against corporate America.. And outrage over a loss in the Brooklyn suit, even after slavery's terrible harms have been persuasively argued there, might spur Congressional action.

The Plaintiffs' Claims in the Brooklyn Class Action: A Property Law Basis

The current complaint the class action plaintiffs have filed in Brooklyn is based on a simple thesis (copied from Fagan's German slave suits): labor is property, and wrongdoers who hold property produced by slaves should give it up.

What are the property claims? They are, in themselves, pretty familiar to anyone who has studied private law: conversion (which consists of taking of another's property wrongfully), unjust enrichment (which means just what it says), and a demand for an accounting (that is, a request that the disposition of property be traced).

To take Aetna as an example, the argument appears to be that because Aetna sold insurance on the life of a slave, it profited from the slave labor of that slave. Therefore, Aetna was "unjustly enriched" or it "converted the value of [the slave's] labor and its derivative profits."

The German Slave Labor Cases Provide a Favorable But Uncertain Precedent

This is, in essence, what the lawyers in the German slave labor cases argued. It is important to recall that the vast majority of the class members on whose behalf Germany paid $6 billion were not Jewish, and were not the subject of Nazi extermination policies. They were Poles, Ukrainians and other citizens of vanquished lands who were impressed into working for Germany without pay.

The Holocaust slavery cases never went to trial and they were never subjected to appellate review. But a handful of federal judges permitted them to survive motions to dismiss that were filed by German defendants who were confident that there was no law behind the suits-just politics.

If the German slavery suits were able to survive dismissal attempts drafted by some of New York's finest law firms, what are the survival chances of the current African American slavery lawsuit?

The problem any comparison with the German slavery cases is that because they settled so quickly, it is not clear what they stand for. A quick settlement was compelled partly out of a need to ensure that as much money could be distributed to living survivors before they began to die from old age. But the German slavery cases left many questions unanswered.

Questions that Linger After The German Slavery Labor Settlement

First of all, it seemed easy to assume that the class of plaintiffs in the German slavery cases could and should be certified under Rule 23 of the Federal Rules of Civil Procedure. There seemed to be no point to asking about the adequacy of class-wide treatment, since the wrong for which they sued-stolen labor-was common to all. And there have, in the past, been class actions involving property torts, such as class actions relating to fraud by credit card companies who overcharge their customers. One could even imagine a class action for conversion or unjust enrichment.

The German slave cases never really had to deal with this problem directly: the suit was on behalf of all living survivors, and the settlement built a mechanism into its scheme by which the children of claimants who died in the interim could inherit the claims of their parents. In any event, in the African American slavery actions, the question of whether common issues of fact "predominate" among the claims of the putative beneficiaries of property stolen before 1865 might pose a problem that even the most charitable judge may not ignore.

Serious Statute of Limitations Issues for the African American Slavery Class Action

Another question cut off by the settlement in the German slave suit related to the real meaning of "equitable tolling." Every judge that looked at the German slave cases was faced with the same problem: given the short statute of limitations for intentional tort, quasi-contract, and the like, how could the slaves of 1945 make a claim in 1998?

One plausible answer was that a special patchwork of treaties tolled any civil actions until the unification of Germany in 1991. But even then, none of the suits would have been able to make it under most state statute of limitations for a claim for damages based on unjust enrichment. However, as one district court judge pointed out, the claims were saved (maybe) by the fact that in addition to suing for unjust enrichment, the plaintiffs were suing under the Alien Tort Claims Act (ATCA), which has a statute of limitations of ten years and concerns torts relating to personal injury, not property.

The current African American slave suit will have a hard arguing that the statute of limitations for conversion, unjust enrichment, and the like should be "equitably tolled" (that is, extended for reasons of fairness to the plaintiffs) since Emancipation. Equitable tolling is generally triggered by the actions of the defendant, and it is hard to see how the corporations named in the suit could have prevented the filing of a complaint before now.

That is why, I suspect, the complaint described "human rights violations" as a separate claim in law. There is some evidence that in international law, "crimes against humanity" and "human rights violations" have no statute of limitations. This may be so-but what does that have to do with a case filed under New York's tort and contract law?

The Difficulty of Making the African American Slavery Class Action An ATCA Case

Of course, the federal courts in New York should apply international law, where appropriate. The ATCA, although federal law, incorporates international legal norms, and the Alien Tort Claims Act was used by the federal courts to save the German slave cases. However, it will be very hard for the plaintiffs to argue that their class action is really a claim under the ATCA - and not the set of common law property tort claims it strongly appears to be.

Remember, if the lawsuits are about property, then they are being brought on behalf of living plaintiffs for property that is currently unjustly held by others. In contrast, the ATCA concerns itself with crimes against humanity, such as genocide and torture.

Property Violations, Human Rights Violations, or Both? An Unclear Complaint

Before they were settled, the German slave labor cases ran together two very distinct claims-property theft and human rights violations. I am not sure if a court, if pressed, would have treated them as interchangeable; due to the settlement, however, we will never know. This very issue, however, may have to be settled in the African American slavery lawsuit.

If the African American slavery lawsuit is about genocide or torture, then the current complaint is extremely obscure and badly framed. First of all, if it is really about the crimes against humanity inflicted by Aetna, CSX, and FleetBoston against Africans and their descendants until Emancipation, then it is hard to see why the corporations are being sued.

The companies' alleged relationship to the actual crimes is somewhat attenuated. They may still be shown to have some form of responsibility, but the case against them is really that they profited from slavery, not that they were slave traders or slaveholders.

Secondly, it is not clear that the descendants of victims of crimes against humanity have standing (that is, the legal right) to sue for those crimes, even assuming that the corporations are the proper defendants (and, for purposes of this argument, have existed continuously since before 1865). Again, as I far as I know, no court has ruled on this point.

The slaves in the German suit were alive and were suing in their own name for violations of human rights committed against them. For a court to allow an ATCA claim to be made by African Americans today for crimes against humanity in the 19th Century and before, the whole ATCA will have to be remade, in effect, by a willing trial judge.

Difficult Challenges For A Provocative Suit, and For Its Judge

These are only the largest of the challenges that will face Ed Fagan and his team as they try to protect their complaint from dismissal. Their goal, I suspect, is to last long enough to try and arrange some sort of settlement, which is what happened in the German slave cases.

How one feels about such a strategy depends, I suppose, on how one feels about the underlying politics of the claims. One thing must be admitted, however: Settlements in cases like these-cases based on difficult, untested theories-produce their own form of "shadow" law. No one really knows what the German slave cases stood for, in the end, and if the African American slave cases are allowed to settle without a thorough review of their claims, the confusion will only be compounded.