Friday, September 21, 2018

 RacismLogo02


Upcoming Webinar

Dying While Black:
Why Reparations is the Only Cure for the Black Health Deficit!

September 25, 6:00 p.m.   
Free - Registration Required: http://bit.ly/2wO4dhl 

B. Pleadings

 

1. Factual Allegations of Plaintiffs' Second Consolidated and Amended Complaint

Plaintiffs' SCAC begins with a narration of the historical background of the Transatlantic Slave Trade in America. The Complaint proceeds to describe the Slave Codes, which various States enacted in order to perpetuate the institution of slavery. The Complaint also chronicles how the forced labor of enslaved Africans helped to build our Nation and enrich early American industry, while simultaneously dismantling a culture and impoverishing a race of fellow men and women.

The SCAC then outlines the beginnings of laws that outlawed the trafficking and trade of slaves, which progressed into a body of law that found the institution of slavery to be contrary to the Natural Law of Man. The Complaint proceeds to allege that despite this body of law that found the institution of slavery to be contrary to the Natural Law of Man, the vestiges of slavery, in the form of racism, have resulted in modern-day disparities between descendants of slaves and the remainder of our society.

Ultimately, the SCAC alleges that “Defendants' actions caused Plaintiffs economic losses and cultural psychic scars and heretofore without remedy.” SCAC, ¶ 41. Plaintiffs allege that the practice of slavery has caused the following specific social inequities:

twenty-six (26) percent of African–Americans in the United States live in poverty compared to eight (8) percent of whites .... 14.7 percent of African–Americans have four-year college degrees, compared with 25 percent of whites.... [A] black person born in 1996 can expect to live, on average, 6.6 fewer years than a white person.... African–Americans are more likely to go to jail, to be there longer and ... to receive the death penalty.... [African–Americans] lag behind whites according to every social yardstick: literacy, life expectancy, income and education. They are more likely to be murdered and less likely to have a father at home.... Black families earn only $580 for every $1000 earned by white families.Id. ¶ 41 n. 1.

 

2. Counts of Plaintiffs' Second Consolidated and Amended Complaint

Count I of Plaintiffs' SCAC is styled: “Conspiracy.” Plaintiffs allege that “[e]ach of the defendants acted individually and in concert with their industry group and with each other, either expressly or tacitly, to participate in a plan that was designed in part to commit the tortious acts referred to herein.” Id. ¶ 258.

Count II is styled: “Conversion.” Plaintiffs allege that “[t]he enslaved Africans had a property right in themselves.” Id. ¶ 270. Plaintiffs then allege that “[t]his property right was wrongfully and illegally taken.” Id. ¶ 271. Plaintiffs further allege that “defendants have willfully and wrongfully misappropriated and converted the value of [slave] labor and its derivative profits into defendants' own property.” *741 Id. ¶ 278. Plaintiffs' prayer for relief under Count II seeks an accounting of profits earned from slave labor, a constructive trust imposed on such profits, restitution, equitable disgorgement, and punitive damages.See id. ¶ 280.

Count III is styled: “Unjust Enrichment.” Plaintiffs allege that “[d]efendants' failure to pay for the labor provided by the slaves without receiving any compensation, has allowed defendants to retain a benefit at the expense of plaintiffs and their ancestors.” Id. ¶ 284. Plaintiffs further allege that “[d]efendants have failed to account for and or return to plaintiffs and the plaintiff class the value of their ancestors' slave labor and/or the profits and benefits the defendants derived therefrom....” Id. ¶ 283. Plaintiffs' prayer for relief under Count III seeks an accounting of profits earned from slave labor, a constructive trust imposed on such profits, restitution, equitable disgorgement, and punitive damages. See id. ¶ 288.

Count IV is styled: “Replevin.” Plaintiffs allege that “defendants hold personal property that was never properly vested in them ... because the enslaved person's work was unpaid, stolen, and forcibly held.” Id. ¶¶ 290–91. Plaintiffs further allege that defendants “fraudulently concealed the cause of action from the heirs or the estates [of Plaintiffs], so that the statute of limitations does not begin to accrue until the full facts of the cause of action are revealed to the heirs and the estate [of Plaintiffs].” Id. ¶ 296. Plaintiffs' prayer for relief under Count IV seeks an accounting of profits earned from slave labor, a constructive trust imposed on such profits, restitution, equitable disgorgement, and punitive damages. Id. ¶ 298.

A second Count IV is styled: “42 U.S.C. § 1982.”18 Plaintiffs allege that as a result of the Defendants' conduct in denying slaves the value of their labor, and restricting slaves' access to corporate records regarding Defendants' participation in slavery, the Plaintiffs' ancestors' and their descendants' rights to inherit and convey property have been violated in contravention of 42 U.S.C. § 1982. Id. ¶ 300.

Count V is styled: “Intentional Infliction of Emotional Distress.” Plaintiffs allege that “Defendants' predecessor companies aided or abetted, or under other theories of secondary liability ..., participated in, allowed, or implicitly or recklessly, sanctioned, and/or benefitted from an institution that relied on the sexual exploitation, violent abuse and rape to achieve its goals of a malleable and unpaid work force.” Id. ¶ 305. Plaintiffs further allege that “[t]he violence and crimes against the enslaved group were done with the calculated intent of demeaning, subjugating, and controlling the enslaved population for the purposes of exploitation for profit and for the direct benefit of commercial industries.” Id. Plaintiffs' prayer for relief under Count V seeks an accounting of profits earned from slave labor, a constructive trust imposed on such profits, restitution, equitable disgorgement, and punitive damages. Id. ¶ 310.

Count VI is styled “Negligent Infliction of Emotional Distress.” Plaintiffs allege that, as a result of Defendants' negligent conduct and omissions in relation to the slave trade and the slavery industry, “Plaintiffs and their deceased enslaved African ancestors suffered emotional distress and mental anguish.” Id. ¶ 314.

Counts VII—XIII19 of the Plaintiffs' Complaint allege violations of various state consumer protection laws. Specifically, Count VII alleges violations of the New *742 York Consumer Protection from Deceptive Acts and Practices Law, NY Gen. Bus. Law §§ 349–350; Count IX alleges violations of the Texas Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com.Code § 17.41 et seq.; Count X alleges violations of California's Preservation and Regulation of Competition Law, Cal. Bus. & Prof.Code § 17200 et seq.; Count XI alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat.. 505/1 et seq.; Count XII alleges violations of the Louisiana Unfair Trade Practices and Consumer Protection Law, La.Rev.Stat. Ann. § 51:1401 et seq.; Count XIII alleges violations of the New Jersey Unfair Trade Practices Law, N.J. Stat. Ann.. § 56:8–1 et seq. See SCAC ¶¶ 315–366.

In essence, the Plaintiffs seek reparations from Defendants for their alleged roles in the institution of human chattel slavery as it existed in the United States from 1619 through 1865, to date.

 

3. Plaintiffs' Second Consolidated and Amended Complaint is Not Materially Different from Plaintiffs' First Consolidated and Amended Complaint

Plaintiffs' SCAC repeats many of the same factual and legal allegations found in Plaintiffs' First Consolidated and Amended Complaint (“FCAC”). The FCAC and the SCAC both begin with a lengthy allegation of the historical background of the Trans–Atlantic Slave Trade, the institution of slavery in the colonies and the United States, the “state slave codes” which gave legal sanction to slavery, the horrors of slavery, and the eventual abolishment of slavery. Both Complaints then go on to allege that the institution of slavery still negatively impacts African–Americans. The Complaints allege, inter alia, that African–Americans receive fewer college degrees than whites, have less income than whites, and are more likely to be incarcerated than whites. The Complaints further allege that Defendants' participation in the slave trade and the institution of slavery is a direct cause of these harms.

Both Complaints include the following Counts: Conspiracy, Intentional Infliction of Emotional Distress, Conversion, Unjust Enrichment, and 42 U.S.C. § 1982. The Conspiracy Counts are generally materially similar, and they are virtually identical in places. Compare FCAC, ¶¶ 215–17 with SCAC, ¶¶ 257–67. The Intentional Infliction of Emotional Distress Counts again are generally materially similar, and they are virtually identical in places. Compare FCAC, ¶¶ 232–35 with SCAC, ¶¶ 304–10. The Conversion Counts are also generally materially similar, and they are virtually identical in places, although Plaintiffs now allege that the slaves had a property interest in themselves as well as a property interest in their labor. Compare FCAC, ¶¶ 239–42 with SCAC, ¶¶ 268–80. The Unjust Enrichment Counts as well are materially similar, and are virtually identical in places. Compare FCAC, ¶¶ 243–53 with SCAC, ¶¶ 281–88. The 42 U.S.C. § 1982 Count is virtually identical in both Complaints. Compare FCAC, ¶¶ 254–60 with SCAC, ¶¶ 299–303. Both Complaints also include numerous Counts alleging violations of various state consumer fraud and fair trade statutes. Compare FCAC, ¶¶ 244–53 with SCAC, ¶¶ 315–66. Plaintiffs' allegations in the various SCAC Counts are, in many places, word for word repetitions of allegations made in FCAC Counts. Compare, e.g., FCAC, ¶ 255 with SCAC, ¶ 300.

The SCAC adds new Counts of Replevin and Negligent Infliction of Emotional Distress. However, the fundamental problems contained within the FCAC, Plaintiffs' lack of standing, the political question issue, the statutes of limitations, and Plaintiffs' failure to state a claim on which relief *743 can be granted, have not been resolved by the SCAC. Plaintiffs' SCAC still fails to state a claim upon which relief could be granted, and also fails to allege any facts that would indicate that Plaintiffs have standing, that the issue of slave reparations is not a political question, or that the applicable statutes of limitations have not expired.

 

4. Defendants' Joint Motion to Dismiss Plaintiffs' Second Consolidated and Amended Complaint

Defendants have responded to Plaintiffs' Second Consolidated and Amended Complaint with the present Joint Motion to Dismiss, brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).20 See Defs.' Joint Mot. to Dismiss Pls.' Second Consolidated and Amd. Compl., at 1. Defendants allege four separate grounds which, they assert, warrant dismissal: (1) Plaintiffs' claims fall short of both constitutional and prudential standing requirements; (2) all of Plaintiffs' claims are time-barred; (3) Plaintiffs' claims present a non-justiciable political question; and (4) Plaintiffs fail to state any cognizable claim. Id. at 1–2.

 

Defendants' Joint Motion to Dismiss Plaintiffs' Second Consolidated and Amended Complaint is now fully briefed and before the court.

 

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.

Updates/Notices

This will sign you up for regular updates - about one email per week. Your email is NOT shared or sold. Thank you! Prof. Randall

Recent Articles

 

 patreonblack01