Saturday, July 21, 2018

In re: African American Descendants’ Slave Litigation, MDL-1491. No. 02-7764 (CRN). June 7, 2004.) United States District Court, N.D. Illinois, Eastern Division.

This document relates to: 02-CV-6180 (Porter/Hurdle-Toomey) 02-CV-7765 (Barber) 02-CV-7766 (Farmer-Paellmann) 02-CV-7767 (Carrington) 02-CV-7768 (Madison) 02-CV-9180 (Johnson/Wall) 02-CV-9181 (Bankhead) 03-CV-2430 (Wyatt-Kervin)

Judge Norgle.

Ignoring this Court's prior ruling, Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion to Dismiss the Second Amended and Consolidated Complaint merely re-argues the allegations that already have been held by this Court to be insufficient as a matter of law.

 

I. STANDING

Article III “iniury-in-fact” requirement. First, plaintiffs repeat their generalized allegations of harm to the class. See Pl. Resp. at 1-2 (e.g., loss of “opportunities,” “loss of their history, language and culture”). This Court and courts in other reparations cases already have held that these assertions do not allege the concrete and particularized injury-in-fact required by Article III. See Jan. 26, 2004 Order of Dismissal at 28-30 (and cases cited therein).

Article III “causation” requirement. Next, plaintiffs acknowledge that they have alleged “their connections to the defendants as clearly as they can.” Pl. Resp. at 2. Because those allegations “fail to allege any conduct by the [seventeen] specifically named Defendants that individually affected any of the Plaintiffs,” however, they fail to satisfy Article III. Order at 34. “Likewise, the named Plaintiffs who alleged that they were slaves [see Pl. Resp. at 2] fail to allege that they were enslaved by any of the [seventeen] specifically named Defendants.” Order at 28. Rather, plaintiffs now ask to be allowed to pursue this litigation in the hope that they might discover a connection to satisfy Article III. See Pl. Resp. at 2-3. But standing is a threshold requirement for justiciability. See Wolf v. Fed. Republic of Germany, 95 F.3d 536, 544 (7th Cir. 1996). Having failed again to meet their burden of alleging facts demonstrating Article III standing, see Order at 24-25 (and cases cited therein), plaintiffs may not pursue this litigation.

Prudential limitations. Plaintiffs do not dispute that they still are trying to litigate a generalized grievance, see Order at 36-37, or that the Second Amended Complaint largely repeats their prior allegations with respect to third-party standing, see Def. 2d Mem. at 3. They merely insist that the repeated allegations are sufficient. See Pl. Resp. at 3. As this Court and courts in similar cases already have held, however, prudential standing limitations mandate dismissal of plaintiffs' claims. See Order at 34-37; see also Def. Mem. at 11-15.

 

II. POLITICAL QUESTION

Plaintiffs' latest attempt to avoid the political question doctrine is no more viable than their effort preceding this Court's decision that their claims are non-justiciable. Undeterred by the Court's determination that “the President and Congress have the constitutional authority to determine the nature and scope of the relief sought in this case, not the courts,” Order at 74, plaintiffs in fact confirm the appropriateness of that determination. They say, “[e]quality under the law and freedom from discrimination” - i.e., the remedies chosen by the political branches in place of reparations after the Civil War - “are not reparations.” Pl. Resp. at 4 (emphasis in original). That is correct, and as this Court has held, those very decisions by the political branches render all reparations claims non-justiciable on a political question basis. Order at 49. Plaintiffs simply offer their continued disagreement with the choices made by the political branches over a century ago, but offer no basis for this Court to disregard them.

 

III. STATUTES OF LIMITATIONS

Other than an erroneous assertion about their replevin claim, Plaintiffs' Response simply re-argues the limitations points this Court already properly rejected. It does so without suggesting that any allegation in the Second Amended Complaint would require a different outcome. And it appears that plaintiffs have abandoned the only arguably new tolling theory they raised (fraudulent concealment). Accordingly, because nothing has changed in the arguments this Court already has rejected, it once again should find plaintiffs' claims barred by the statutes of limitations.

 

IV. FAILURE TO STATE A CLAIM

Plaintiffs' Response does not dispute that the claims in their Second Amended Complaint for conspiracy, conversion, unjust enrichment, 42 U.S.C. § 1982, and intentional infliction of emotional distress are identical in all material respects to the same claims in their dismissed complaint. Cf. Order at 55-57. Nor do plaintiffs dispute that their new claim for negligent infliction of emotional distress fails to state a claim. See Def. 2d Mem. at 8. Plaintiffs' Response mentions only their new claim for replevin and their previously dismissed “consumer protection” claims. The replevin and “consumer protection” claims, however, are no more viable than any of the other claims.

A. Replevin

Plaintiffs attempt to circumvent the Court's dismissal of their conversion claim by re-styling it as a claim for replevin. But replevin, like conversion, is unavailable where a plaintiff would at best have a right to an “indeterminate sum of money” rather than the entirety of a “specific identifiable fund.” Sutherland v. O'Malley, 882 F.2d 1196, 1200-01 (7th Cir. 1989) (affirming district court's rejection of conversion claim). Plaintiffs cite no cases to support their assertion that wages allegedly owed to their ancestors constitute “ “personal property,' ” distinguishable from “ “money in general.' ” See Pl. Resp. at 15. In fact, the courts have uniformly rejected attempts to invoke replevin even with respect to specific bank accounts. Plaintiffs' replevin claim fails on that ground alone.

Moreover, plaintiffs' rhetoric about “stolen property” and “a thief's title [being] void,” Pl. Resp. at 14, cannot obscure the other fatal flaw in their claim: they have failed to plead facts showing that any of their ancestors was owed but not paid wages by any of these defendants, nor have they alleged that wages which were owed but not paid to their ancestors were paid to any of these defendants instead.

B. ””Consumer Protection” Claims

As defendants have demonstrated, the conclusory allegations of the Second Amended Complaint fail to state a claim under any of the state consumer protection statutes invoked by plaintiffs; and Plaintiffs' Response does not explain how their allegations satisfy the elements of a claim under any of those statutes.

To the extent plaintiffs seek reparations on behalf of “their ancestors and all other descendants” of former slaves, SAC „„ 315, 323, 333, 341, 350 and 359, their consumer protection claims - like all of their other claims - are barred by lack of standing, the political question doctrine, and statutes of limitations. See also Def. Mem. at 57 & n.54 (consumer protection statutes are inapplicable to pre-enactment conduct). Even if the claims are treated as pertaining solely to alleged “current misrepresentations made by the defendants,” Pl. Resp. at 9 n.8, rather than as re-labeled reparations claims barred by the foregoing doctrines, plaintiffs fail to state a claim under any relevant state statute. To begin with, plaintiffs do not identify any representations of any kind attributable to 10 of the 17 defendants. Plaintiffs' Response makes no effort to explain how these 10 defendants can possibly be held liable under consumer protection statutes in the absence of any identified misrepresentations.

With regard to those defendants who are alleged to have made identified statements, plaintiffs offer no rebuttal to the argument that these statements made in defense of actual or threatened litigation cannot possibly give rise to a consumer protection claim. See Def. 2d Mem. at 11. It is hardly surprising that plaintiffs cite no case to support their novel theory that a defendant's denial of liability in response to highly publicized litigation can give rise to liability. Nor do plaintiffs attempt to explain how they could possibly have been “deceived” by public statements made in response to their actual or threatened filing of these lawsuits. Plaintiffs have continued vigorously to pursue their claims and cannot therefore suggest that they suffered a compensable injury in reliance on the statements quoted in the Second Amended Complaint. Id. at 11-12. Indeed, plaintiffs make no effort to explain how the alleged statements are in any way deceptive, unfair, or misleading.

Instead, plaintiffs simply assert that they have met the pleading requirements under each of the state statutes upon which they rely. But as defendants have demonstrated, plaintiffs' bare bones and conclusory allegations are insufficient to state a claim under any of the relevant state statutes. See Def. 2d Mem. at 9-13. Plaintiffs' bald assertion that they suffered “damages” caused (in some completely unspecified way) by certain statements made by certain defendants is clearly not enough to satisfy the statutory “injury” or “causation” elements for purposes of a motion to dismiss. Cf. Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir. 1995); see also Def. 2d Mem. at 12-13 & nn.15-20. Nor are plaintiffs' vague, nonspecific, and conclusory allegations sufficient to establish other required elements of each of the state statutes. See id.

Rather than explaining how their conclusory allegations satisfy the minimal pleading requirements to state a claim, plaintiffs argue that some of the cases cited by defendants identifying the elements of the state statutes are inapplicable because they were decided after the motion-to-dismiss (or state equivalent) stage of the proceedings. This argument misses the mark for two reasons. First, the elements of a claim remain the same at every stage of the proceedings. Second, contrary to plaintiffs' suggestion, courts routinely dismiss consumer protection claims on motions to dismiss where plaintiffs base their claims on conclusory allegations or otherwise fail to allege facts sufficient to satisfy the elements of the claims. See, e.g., Champion Parts, Inc. v. Oppenheimer & Co., 878 F.2d 1003, 1009 (7th Cir. 1989) (affirming dismissal of Illinois and New York consumer fraud and deceptive practices act claims); DeJohn v. The .TV Corp. Int'l, 245 F. Supp. 2d 913, 924 (C.D. Ill. 2003) (dismissing Illinois consumer fraud claims); Pelman v. McDonald's Corp., No. 02-Civ-7821, 2003 WL 22052778, **11-13 (S.D.N.Y. Sept. 3, 2003) (dismissing New York deceptive practices act claim for failure to allege with specificity, inter alia, causation and deceptive conduct); Bracco Diagnostics Inc. v. Bergen Brunswig Drug Co., 226 F. Supp. 2d 557, 562 (D.N.J. 2002) (dismissing New Jersey consumer fraud act claim); Filmlife, Inc. v. Mal “Z” Ena, Inc., 598 A.2d 1234, 1237 (N.J. Super. Ct. App. Div. 1991) (affirming dismissal of New Jersey consumer fraud act claim where allegations did not rise to level of “unconscionable commercial practice”); Am. Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1391-92 (5th Cir. 1991) (affirming dismissal of Louisiana consumer protection claim); Watson v. State Farm Lloyds, 56 F. Supp. 2d 734, 738 (N.D. Tex. 1999) (dismissing Texas deceptive practices act claim because “conclusory allegations are insufficient to avoid dismissal for failure to state a claim”); Bush v. Loanstar Mortgagee Servs., L.L.C., 286 F. Supp. 2d 1210, 1216 (N.D. Cal. 2003) (dismissing California unfair competition claim for failure to identify any unfair or fraudulent conduct by defendant); Searle v. Wyndham Int'l, Inc., 102 Cal. App. 4th 1327, 1333-36 (2002) (affirming grant of demurrer to California unfair competition claim where complaint failed to allege any unfair, unlawful or fraudulent conduct by defendant). Plaintiffs' consumer protection claims also must be dismissed under Rule 12(b)(6).

Finally, after choosing to file their claims in federal court and urging them in federal court for the past two years, plaintiffs now argue that should the Court conclude that they lack standing to assert their consumer protection claims, the Court should dismiss those claims without prejudice so they can refile in state court. Pl. Resp. at 13-14. However, despite repeated opportunities to replead, plaintiffs have been unable to state any claim under any theory. Plaintiffs' claims clearly are not viable. The Court should reject plaintiffs' invitation and dismiss the Second Amended Complaint with prejudice. Cf. Crenshaw v. Baynerd, 180 F.3d 866 (7th Cir. 1999) (affirming dismissal with prejudice - with no reference to prior amendments - where action was barred by immunity or, in the alternative, for failure to state a claim); Bourke v. Dun & Bradstreet Corp., 159 F.3d 1032 (7th Cir. 1998) (affirming dismissal with prejudice - with no reference to prior amendments - where claim was barred as a matter of law),

CONCLUSION

Plaintiffs have been given generous time and ample opportunity to state justiciable claims. They have not done so and cannot do so. For the foregoing reasons, the reasons in this Court's Order dismissing plaintiffs' prior complaint, and the reasons set forth in defendants' prior briefs, defendants respectfully request that all of plaintiffs' claims be dismissed with prejudice.


Footnotes

1

Referred to herein as “Plaintiffs' Response” and cited as “Pl. Resp.”

2

Cited herein as “Order.”

3

Though never pled in any complaint and therefore not properly before the Court, plaintiff Farmer-Paellman includes assertions in a footnote (1) that she was a passenger on CSX, whose railroad subsidiary, CSXT, is a freight railroad that transports no passengers; (2) that she was misled by denials of defendant Fleet's (alleged) connections to slavery while simultaneously suing Fleet for such connections; and (3) that her great-great-grandfather, who was still living in 1860 (see Pl. Resp. at 3 n.2), may be the same person as an insured slave who necessarily must have died in or before 1858 when - as shown by the documents attached to Plaintiffs' Response - Aetna Life Insurance Company approved payment on the policy (see Pl. Resp. Exh. A, at 1). Even if these contradictory and insupportable allegations had been properly pled, they would not establish standing. For instance, even if she could establish some connection between one of her ancestors and some Aetna company, Farmer-Paellmann has not alleged facts showing that she personally has suffered concrete and particularized injury-in-fact, nor that her ancestors were prevented continually from pursuing their own rights, nor that she possesses a legally sufficient relationship to pursue her ancestors' supposed claims - all requirements for third-party standing. Nor would her allegations survive the multiple other grounds for dismissal.

4

Citations to “Def. 2d Mem.” are to the memorandum in support of defendants' motion to dismiss the pending Second Amended Complaint. The memorandum in support of defendants' motion to dismiss plaintiffs' prior, dismissed complaints will be cited as “Def. Mem.”

5

Plaintiffs erroneously assert that defendants' political question argument “ignor[es]” the claims they have labeled “consumer protection” claims. Pl. Resp. at 5. To the extent those claims are based on defendants' alleged participation in the institution of slavery, the political question doctrine bars them as well. And to the extent they are intended to be true consumer protection claims, rather than re-labeled reparations claims, they fail on other grounds. See infra Part IV.B.

6

Inexplicably, plaintiffs assert that “defendants do not dispute, and hence, effectively concede that the statute of limitations on replevin has not expired per Illinois statutory law cited in the new complaint.” Pl. Resp. at 15. In fact, defendants specifically demonstrated in their opening brief on this motion that the replevin claim became timebarred long ago under Illinois' five-year statute of limitations for replevin claims. See Def. 2d Mem. at 4. With respect to the replevin claim, plaintiffs also repeat, without support, the same general type of tolling allegations already rejected by this Court. See Pl. Resp. at 8; Order at 65-67.

7

The cases cited by plaintiffs dealing with alleged “specifically identifiable” funds of money involve allegations that bear no resemblance to plaintiffs' claims here. See, e.g, Cirrincione v. Johnson, 703 N.E.2d 67 (Ill. 1998) (claims arising from physician's lien); Collin County Say. & Loan v. Miller Lumber Co., 653 S.W.2d 114, 117 (Tex. App. 1983) (claim for recovery of a deposit; conversion claim unavailable because sum certain deposited with bank did not create “obligation to return specific, identifiable currency”). Plaintiffs' reliance on the Seventh Circuit's opinion in FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300 (7th Cir. 1990), is equally misplaced. The Seventh Circuit in FMC did not address replevin; instead, it reversed the dismissal of a conversion claim on an issue that has no application to this case - i.e., whether a copy of a document is the sort of personal property which can be the subject of a conversion claim when the original of the document is missing.

8

See, e.g., Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 163 (Fla. Dist. Ct. App. 1986) (funds on deposit in a checking account are not tangible personal property which can be the subject of a replevin action); Walther v. Cent. Trust Co., NA, 590 N.E.2d 375, 379 (Ohio Ct. App. 1990) (bank account balance is an intangible asset that cannot be the subject of a replevin claim); see also A.R. v. Topper, 834 S.W,2d 238, 239 (Mo. Ct. App. 1992) (“Money is not the subject of an action of replevin, unless it be marked, or designated in some manner, so as to become specific as regards the power of identification, such as being in a bag, or package.”) (quotation omitted).

9

See Def. 2d Mem. at 10 n.3.

10

As defendants have noted, plaintiffs' allegations are so threadbare as to make a proper choice-of-law analysis impossible. However, plaintiffs do not dispute - and appear to accept - defendants' assumption that “each named plaintiff intends to pursue a consumer protection act claim against the defendants named in his or her original complaint, under the statute of the state in which his or her complaint was originally filed.” Def. 2d Mem. at 9 n.12.

11

Plaintiffs assert that their general allegations that they themselves suffered “monetary and other economic damages” as a result of contemporaneous statements by certain defendants gives them standing to assert those particular claims. Pl. Resp. at 9 & n.7. Even if these allegations were sufficient to establish standing, plaintiffs' claims must be dismissed for failure to state a claim. Moreover, federal courts commonly dismiss deficient claims on alternate and independent grounds. See, e.g., Chow v. Aegis Mortgage, 185 F. Supp. 2d 914, 918 (N.D. Ill. 2002); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997); Venetian Casino Resort, L.L.C. v. Cortez, 96 F. Supp. 2d 1102, 1108 (D. Nev. 2000); see also DeJohn, 245 F. Supp. 2d at 924.

12

The claims against the Tobacco Defendants (Brown & Williamson Tobacco Corporation, Liggett Group, Inc., and R.J. Reynolds Tobacco Co.) should be dismissed for an additional, independent reason. Plaintiffs have failed to respond to Loews Corporation's motion to dismiss in which the Tobacco Defendants joined and, accordingly, the claims against them should be dismissed pursuant to Local Rule 78.3

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2004 WL 3688423 (N.D.Ill.) (Trial Motion, Memorandum and Affidavit)

United States District Court, N.D. Illinois,

Eastern Division.

In re: African American Descendants’ Slave Litigation.

MDL-1491.

No. 02-7764 (CRN).

April 26, 2004.

This document relates to: 02-CV-6180 (Porter/Hurdle-Toomey) 02-CV-7765 (Barber) 02-CV-7766 (Farmer-Paellmann) 02-CV-7767 (Carrington) 02-CV-7768 (Madison) 02-CV-9180 (Johnson/Wall) 02-CV-9181 (Bankhead) 03-CV-2430 (Wyatt-Kervin)

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

TABLE OF CONTENTS

INTRODUCTION

1

I. PLAINTIFFS LACK STANDING

2

II. PLAINTIFFS' CLAIMS ARE NON-JUSTICIABLE UNDER THE POLITICAL QUESTION DOCTRINE

3

III. PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTES OF LIM ITATIONS

4

IV. PLAINTIFFS FAIL TO STATE A CLAIM

6

A. Replevin (first Count IV)

7

B. Negligent Infliction of Emotional Distress (Count VI)

8

C. “Consumer Protection” Claims (Counts VII, IX - XIII)

8

CONCLUSION

14

TABLE OF AUTHORITIES

FEDERAL Cases

Bath Petroleum Storage, Inc. v. Mkt. Hub Partners, L.P., 129 F. Supp. 2d 578, 598 (W.D.N.Y. 2000)

13

Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362, 373-75 (D.N.J. 2001)

13

Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119, 1126 (N.D. Cal. 2000)

12

City of Marshall v. Bryant Air Conditioning Co., 650 F.2d 724 (5th Cir. 1981)

12

Corgan v. Muehling, 574 N.E.2d 602, 606 (Ill. 1991)

8

Daenzer v. Wayland Ford, Inc., 193 F.Supp. 2d 1030, 1041 (W.D. Mich. 2002)

7

FMC Corp. v. Capital Cities, Inc., No. 88C10199, 1989 U.S. Dist. LEXIS 7719, at *2 (N.D. Ill. June 29, 1989)

7

Gerasta v. Hibernia Nat'l Bank, 411 F. Supp. 176 (E.D. La. 1975)

13

Gredell v. Wyeth Labs., Inc., 803 N.E.2d 541, 548 (Ill. App. 1st Dist. 2004)

5

Greisz v. Household Bank, 8 F. Supp. 2d 1031 (N.D. Ill. 1998)

12

Halas v. Executor of Estate of Halas, 445 N.E.2d 1264, 1271 (111. App. Ct. 1983)

5, 6

Hurdle v. Fleetboston et al., No. 03cv2644

1

Lann v. Davis, 793 So. 2d 463, 466 (La. App. 2d Cir. 2001)

8

Looper Maint. Serv,, Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999)

9

Maracallo v. Bd. of Educ. v. City of New York, 769 N.Y.S.2d 717, 724 (N.Y. Sup. Ct. 2003)

8

Martin v. Consultants & Adm'rs, Inc., 966 F. 2d 1078, 1095 (7th Cir.1992)

5

N. Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir. 1995)

12

Norwest Mortgage, Inc. v. Superior Court, 85 Cal. Rptr. 2d 18 (1999)

12

Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002)

12

Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995)

13

Phillips Petroleum v. Shutts, 472 U.S. 797, 821 (1985)

9

Relational Funding Corp. v. Advantage Sch., Inc., No. 2C1242, 2002 U.S. Dist. LEXIS 10622, at *28 (N.D. Ill. June 13, 2002)

7

Society of Lloyd's v. Ashenden, 233 F.3d 473, 478 (7th Cir. 2000)

10

Stanley v. Wal-Mart Stores, Inc., 839 F. Supp. 430, 434 (N.D. Tex. 1993)

12

Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 163 (Fla. App. Ct. 1986)

7

Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993)

5

STATE CASES Statutes

§ 17.46

13

§ 17.50(a)(1)

13

§ 17.50(a)(2)

13

§ 17.50(a)(3)

13

§ 17.50(a)(4)

13

§§ 13810, 13812

10

42 U.S.C. § 1982

6

Cal. Ins. Code § 1764.1

10

La. Rev. Stat. Ann. § 51:1409(A)

13

N.J. Stat. Ann. § 56:8-19

13

N.J. Stat. Ann. § 56:8-2

13

Rules

12(b)(6), Fed. R. Civ. P

1

735 ILCS 5/13-205

4

Rules 12(b)(1)

1

Van Tu v. Koster, No. 02-4209, 2004 WL 823494, *3 (10th Cir. Apr. 16, 2004)

5

Plaintiffs' Second Consolidated and Amended Complaint (“Second Amended Complaint” or “SAC”), like their prior dismissed complaint, fails on multiple legal grounds. Defendants Aetna Inc., Brown Brothers Harriman & Company, Brown & Williamson Tobacco Corporation, Canadian National Railway Company, CSX Corporation, FleetBoston Financial Corporation, J.P. Morgan Chase & Co., Lehman Brothers Inc., Liggett Group, Inc., New York Life Insurance Company, Norfolk Southern Railway Company, R.J. Reynolds Tobacco Company, The Society of Lloyd's, and Union Pacific Railroad Company and Union Pacific Corporation (collectively, “defendants”) respectfully move to dismiss, with prejudice, plaintiffs' Second Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(l) and 12(b)(6).

The Court dismissed plaintiffs' prior complaint on four independent grounds: 1) lack of standing; 2) statutes of limitations; 3) the political question doctrine; and 4) failure to state a cognizable claim. The Second Amended Complaint fails to cure any of these four deficiencies. In material respects, the Second Amended Complaint restates the same allegations contained in the prior dismissed complaint, attaching new labels to the same legally deficient theories. As discussed more fully in defendants' accompanying memorandum of law, the handful of “new” allegations in the Second Amended Complaint provide no basis to modify the Court's prior dismissal ruling.

The deficiencies in plaintiffs' Second Amended Complaint cannot be cured by amendment. Accordingly, the Court should dismiss all of plaintiffs' claims with prejudice pursuant to Fed. R. Civ. P. 12(b)(l) and 12(b)(6).

INTRODUCTION

Plaintiffs' Second Amended Complaint does not cure any of the four deficiencies that caused this Court to dismiss the prior complaint. In fact, in material respects, plaintiffs' allegations are virtually unchanged. Defendants hereby incorporate by reference, without repeating, their prior Memorandum (“Def. Mem.) and Reply (“Def. Reply”) in support of dismissal of the prior complaint. They address briefly herein the “new” allegations of the Second Amended Complaint, which are - in essence - simply a repackaging of the prior, unsuccessful allegations.

The “new” allegations provide no basis to modify the Court's prior dismissal ruling. The Second Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

I. PLAINTIFFS LACK STANDING.

Article III “injury-in-fact” requirement. Plaintiffs again allege injury through their inability to inherit their ancestors' assets, but now refer to unspecified “property” rather than “lost pay.” See, e.g., SAC „ 67. Either way, these allegations are “conjectural” and “speculat[ive]” and “insufficient to show a personal injury to Plaintiffs.” Jan. 26, 2004 Order of Dismissal at 27 (cited herein as “Order at ___”) (“Plaintiffs can only speculate that their ancestors' estates would have passed on to them”). Plaintiffs also again allege a continuing injury through “daily indignities from the legacy of slavery, including, but not limited to, racial profiling, racial slurs, and improper and hurtful assumptions regarding their overall status.” SAC „ 115. This is identical to the allegation the Court already determined to be “too speculative and generalized” to establish an injury-in-fact. Order at 28, 30. Finally, two plaintiffs allege that they are consumers of two defendants, see SAC „„ 84, 90, and assert the harm “of being misled, confused, and deceived about the roles the defendants played in the enslavement of African people,” id. „ 104. This “consumer injury” allegation is likewise not new, and this Court already ruled that “alleging a general state of confusion” is insufficient to state a cognizable injury. See Order at 32.

Article III “causation” requirement.” Plaintiffs' Second Amended Complaint still fails “to allege any conduct by the [seventeen] specifically named Defendants that individually affected any of the Plaintiffs.” Order at 34. Instead, the Second Amended Complaint's allegations of a “causal connection” remain vague and conclusory. See, e.g., SAC „ 69 (“[Plaintiff Madison's ancestor] was victimized by the atrocities of the institution of slavery, instigated, supported and financed by one or more of the defendants, in particular by R.J. Reynolds Tobacco Co., Brown and Williamson Tobacco Corp., Fleetboston Financial Corporation, Aetna Casualty, CZX [sic] and/or their predecessors”) (emphasis added); see also id. „„ 67, 72, 75, 79. Thus, plaintiffs have failed to satisfy the second requirement of constitutional standing.

Prudential limitations. The Second Amended Complaint also fails to meet prudential standing requirements. Plaintiffs are still trying to litigate a “generalized grievance” over an entire chapter of our nation's history, see SAC „„ 1-59, rather than a personal dispute. See Order at 36-37. Thus, as discussed further in § II, this dispute must be left to the political branches. See id. Moreover, to the extent that the Second Amended Complaint seeks redress for injuries to plaintiffs' ancestors, those claims fail. See id. at 35-36. Two plaintiffs allege that they are now seeking to become administrators of their ancestors' estates, see SAC „„ 83, 84, but neither plaintiff currently possesses a legally sufficient relationship to pursue their ancestors' claims. In any event, such third party claims fail on multiple additional standing grounds, including the lack of (1) any injury-in-fact attributable to these defendants suffered by these plaintiffs' ancestors, (2) any injury-in-fact suffered by these plaintiffs, and (3) any allegation that these plaintiffs' ancestors were prohibited from asserting their own rights. See Order at 35-36.

II. PLAINTIFFS' CLAIMS ARE NON-JUSTICIABLE UNDER THE POLITICAL QUESTION DOCTRINE.

Plaintiffs offer nothing new to distinguish the Second Amended Complaint from the dismissed complaint with respect to the political question doctrine. Precisely as they did before, plaintiffs improperly invite the Court to second-guess the momentous political decisions made by the Political Branches pursuant to their war-making and other powers to remedy the consequences of slavery. Thus, this Court's previous analysis applies fully to the claims in the Second Amended Complaint, which again implicate all the Baker factors that render them non-justiciable on political question grounds. See Order at 37-53; see also Def. Mem. at 26-38; Def. Reply at 16-22.

III. PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTES OF LIMITATIONS.

The Second Amended Complaint also provides no basis to disturb the Court's ruling that plaintiffs' claims are barred by statutes of limitations. Order at 65. The new Complaint adds two new claims - for replevin and negligent infliction of emotional distress - both of which became time-barred long ago. Under Illinois law, for example, the statute of limitations for both replevin and negligent infliction of emotional distress is five years. See 735 Ill. Comp. Stat. 5/13-205. Because more than 130 years have passed since the statutes of limitations ran, those new claims are barred.

Plaintiffs also re-cast their equitable estoppel argument as a “fraudulent concealment” claim in the Second Amended Complaint. See SAC pp. 18-19, „„ 53-54. The Court, however, already addressed the issue of fraudulent concealment in the context of the prior equitable estoppel argument:

Plaintiffs have not asserted any facts alleging that any Defendant concealed information in a way that would have prevented Plaintiffs' ancestors from asserting their claims within the proscribed statute of limitations period. Plaintiffs do not allege that Defendants concealed the injury. In fact, the injury was not concealed, but rather quite obvious when inflicted. Plaintiffs merely make vague generalizations about Defendants and their perceived practices. Plaintiffs' vague assertions are not enough to satisfy the requirements for equitable estoppel.

Order at 70.

Far from curing that deficiency, the Second Amended Complaint alleges, in only conclusory terms, that defendants “fraudulently concealed the facts supporting the plaintiffs' plead causes of action within this complaint from the heirs or the estates of the slaves and former slaves[.]” SAC pp. 18-19, „ 53; see also SAC „ 296 (same). But the “fraudulent concealment” is by silence: “No defendant had disclosed any facts ... which would provide the plaintiffs with notice of any facts of the cause of action as plead within this complaint.” Id. Plaintiffs then just repeat that they “have been unable to secure records from a number of the defendants ....” Compare SAC p. 19, „ 54 with Am. Compl. „„ 200; cf. Van Tu v. Koster, No. 02-4209, 2004 WL 823494, at *3 (10th Cir. Apr. 16, 2004) (rejecting tolling argument, which was based on “plaintiffs' poverty, their status as subjects of a Communist government, the Vietnam War, and their inability to travel,” as insufficient to justify tolling claims for more than 20 years).

As before, plaintiffs fail to allege any affirmative act or representation by any defendant designed to prevent any of their ancestors from discovering their claims. To prove fraudulent concealment, a plaintiff “must show” that the defendant made “affirmative acts or representations” that “were designed to prevent and, in fact, did prevent, plaintiff from discovering his claim.” Gredell v. Wyeth Labs., Inc., 803 N.E.2d 541, 548 (Ill. App. Ct. 2004); see also 735 ILCS 5/13-215; Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993); Martin v. Consultants & Adm'rs, Inc., 966 F. 2d 1078, 1095 (7th Cir.1992) (fraudulent concealment requires trick or contrivance to exclude suspicion or inquiry). “[M]ere silence by defendants and failure by plaintiff to learn of his cause of action does not amount to fraudulent concealment.” Id.; see also Halas v. Executor of Estate of Halas, 445 N.E.2d 1264, 1271 (Ill. App. Ct. 1983) (“silence alone does not constitute fraudulent concealment”).

Plaintiffs' fraudulent concealment allegations, like their prior attempts to avoid the statutes of limitations, are based on defendants' purported failure to provide information to plaintiffs, which is insufficient to establish fraudulent concealment. See Order at 65-73; Halas, 445 N.E.2d at 1271. Accordingly, the statutes of limitations bar plaintiffs' claims.

IV. PLAINTIFFS FAIL TO STATE A CLAIM.

Plaintiffs' Second Amended Complaint asserts common law claims for conspiracy (Count I), conversion (Count II), unjust enrichment (Count III), 42 U.S.C. § 1982 (second Count IV), and intentional infliction of emotional distress (Count V). These claims are identical in all material respects to the same claims asserted in plaintiffs' dismissed complaint. This Court has already ruled that in addition to being barred by the doctrines of standing, political question, and limitations, the allegations fail to state a claim. See Order at 55-57.

Plaintiffs now add two common law claims - replevin and negligent infliction of emotional distress - that are equally deficient. So, too, are plaintiffs' attempts to revise their prior unsuccessful state statutory “consumer protection” claims. As before, plaintiffs' “broad allegations ... fail to give Defendants fair notice of what conduct is alleged to have injured which persons, in what manner, and when over the past four centuries covered in the [Second Amended] Complaint.” Order at 56.

A. Replevin (first Count IV)

Plaintiffs' newly-added claim for replevin fares no better than their unsuccessful claim for conversion. See Def. Mem. at 48-50; Def. Reply at 33-36. Plaintiffs “do not allege that they had any present property interest that was injured as a result of the Defendants' actions.” Order at 34.

Personal property that cannot be specifically identified and returned to a plaintiff either because it is intangible or because - like money - it is fungible, cannot, as a matter of law, be the subject of a replevin claim, just as it could not be the subject of a conversion claim. See FMC Corp. v. Capital Cities, Inc., No. 88C10199, 1989 U.S. Dist. LEXIS 7719, at *2 (N.D. Ill. June 29, 1989) (dismissing replevin claim seeking return of intangible property because “[b]oth conversion and replevin require, as the subject of their action, a chattel”); Daenzer v. Wayland Ford, Inc., 193 F. Supp. 2d 1030, 1041 (W.D. Mich. 2002) (replevin not available “for the return of money”); Williams Mgmt. Enters., Inc. v. Buonauro, 489 So. 2d 160, 163 (Fla. App. Ct. 1986) (funds on deposit in a checking account not tangible personal property which can be the subject of a replevin action). Thus, there is no identifiable tangible personal property that could be subject to replevin.

B. Negligent Infliction of Emotional Distress (Count VI)

Plaintiffs fare no better with their claim that defendants' alleged participation in the pre-Civil War economy constituted a “negligent infliction of emotional distress” on modem-day descendents of African-American slaves. See SAC „ 312. In jurisdictions that recognize this disfavored tort, a plaintiff must allege that the defendant breached some specific duty of care arising from a special relationship between plaintiff and defendant. See Corgan v. Muehling, 574 N.E.2d 602, 606 (Ill. 1991); see, e.g., Calhoun v. Jumer, 686 N.E.2d 406, 408 (Ill. App. Ct. 1997) (dismissing a mother's emotional distress claim against a house-guest who allegedly assaulted her child). In addition to this claim's myriad other defects, supra §§ I-III, plaintiffs have failed to allege any facts from which the Court could conclude that any pre-Civil War actions of any defendant breached a legal duty to these Twenty-First Century plaintiffs who were born later. See SAC „ 313. The passage of so much time compels the determination that the connection is far too tenuous to state a claim for negligent infliction of emotional distress.

C. ””Consumer Protection” Claims (Counts VII, IX - XIII)

In addition to the foregoing new claims, plaintiffs reassert causes of action for violations of the consumer protection laws of New York, Texas, California, Illinois, Louisiana, and New Jersey. As this Court previously ruled, plaintiffs' reliance on these state consumer protection laws to seek reparations for defendants' alleged connections to the institution of slavery fail for at least three independent reasons: lack of standing, the political question doctrine, and statutes of limitations. The “injuries alleged in Plaintiffs' status as consumers of Defendants do not establish a legally cognizable injury. Aside from alleging a general state of confusion, the Plaintiffs fail to allege any injury-in-fact that has come about as a result of that confusion.” Order at 32.

Plaintiffs try to overcome these incurable infirmities by including in the Second Amended Complaint certain recent alleged “intentional misrepresentations” made by some - but not all - defendants after plaintiffs threatened to or actually filed these lawsuits. See SAC „„ 227-256. But these new allegations do not cure the deficiencies in the “consumer protection” claims.

First, plaintiffs' new allegations do not satisfy the minimum pleading requirements of the Federal Rules of Civil Procedure. As this Court has noted, to provide defendants with fair notice of their claims, “ “a complaint must allege facts bearing on all material elements necessary to sustain a recovery under some viable legal theory.' ” Order at 55 (quoting Looper Maint. Serv., Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999)). Plaintiffs repeat their vague assertion of “deceptive public communications made by defendants,” SAC „ 104, but fail to include allegations of public communications of any kind attributable to 10 of the 17 defendants. As to the other seven defendants, the Second Amended Complaint merely complains of defendants' public responses to plaintiffs' highly publicized claims against them, either when this litigation was threatened or in response to its filing. The Second Amended Complaint fails to draw any connection between any of these so-called “misrepresentations” and any injury suffered by any plaintiff, thus underscoring plaintiffs' fundamental lack of standing. Because the “broad allegations” “fail[] to connect any alleged injury of any one of the Plaintiffs ... to ... any one of the defendants,” they “fail to give Defendants fair notice of what conduct is alleged to have injured which persons, in what manner, and when.” Order at 55-56.

Second, the so-called “intentional misrepresentations” cited in the Second Amended Complaint focus on defendants' responses to the allegations asserted against them and their expectations of success in defending against these lawsuits. See, e.g., SAC „ 232, 241, 247 (“Courtrooms are the wrong setting for this issue”; “Any reparations suit against CN is wholly without merit and CN will defend itself vigorously”; allegations are “completely without merit”). Not only are defendants fully within their rights to contest liability, this Court dismissed plaintiffs' claims for reparations because they lack legal merit. Such statements asserting valid defenses to actual or threatened lawsuits cannot possibly give rise to a consumer protection claim. Otherwise, anyone could manufacture a consumer protection claim simply by filing a complaint, giving it as much publicity as possible, and then claiming that the defendant's public response caused them harm. This cannot be and is not the law.

Third, the so-called “intentional misrepresentations” on which the Second Amended Complaint focuses were made after the actual or threatened filing of the cases in this consolidated action. These plaintiffs, who were either contemplating or already actually suing these defendants for slavery reparations, cannot argue that they were misled as consumers by defendants' responses to their claims. After all, plaintiffs have continued vigorously to pursue their claims despite defendants' defenses and cannot therefore suggest that they suffered a compensable injury in reliance on the statements quoted in the Second Amended Complaint. See, e.g., Oliveira v, Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002) (affirming dismissal of complaint where plaintiffs did not allege that they were deceived by the alleged misrepresentation and thus could not show proximate causation); Stanley v. Wal-Mart Stores, Inc., 839 F. Supp. 430, 434 (N.D. Tex. 1993) (plaintiffs failed to prove “actual and justifiable” reliance, as required to state a claim under the Texas statute).

Fourth, without a coherent factual allegation that any of the alleged misrepresentations caused any named plaintiff some actual harm or ascertainable loss, plaintiffs cannot state a claim under any of their re-pled consumer protection theories. See, e.g., Greisz v. Household Bank, 8 F. Supp. 2d 1031 (N.D. Ill. 1998) (dismissing claim under Illinois Consumer Fraud Act for failure to show any actual harm); see also City of Marshall v. Bryant Air Conditioning Co., 650 F.2d 724 (5th Cir. 1981) (reversing verdict under Texas unfair competition statute where plaintiffs could not show that behavior would have been any different and thus could not show misrepresentations caused actual damage); Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362, 373-75 (D.N.J. 2001) (dismissing claim for violation of New Jersey Consumer Fraud Act because plaintiffs could not show misrepresentation caused any ascertainable loss); Bath Petroleum Storage, Inc. v. Mkt. Hub Partners, L.P., 129 F. Supp. 2d 578, 598 (W.D.N.Y. 2000) (dismissing claim under New York consumer protection statute where plaintiffs have not pled and cannot show misrepresentation proximately caused any injury), aff'd, 229 F.3d 1135 (2d Cir. 2000), cert. denied, 532 U.S. 1037 (2001); Gerasta v. Hibernia Nat'l Bank, 411 F. Supp. 176 (E.D. La. 1975) (dismissing claim under Louisiana Unfair Trade Practices Act where plaintiff failed to show unfair trade practice caused actual damage to plaintiffs), aff'd in part and rev'd in part on other grounds, 575 F.2d 580 (5th Cir. 1978).

For all of these reasons, plaintiffs' consumer protection act claims must be dismissed.

CONCLUSION

For the foregoing reasons and the reasons reflected in this Court's prior Order, defendants respectfully request that the Second Amended Complaint be dismissed with prejudice.

Footnotes

1

R.J. Reynolds, Brown & Williamson and Liggett (the “Tobacco Defendants”) raised additional arguments for dismissal of the previous complaint by joining and incorporating by reference the 12(b)(6) arguments made by Loews in its separate motion to dismiss. Specifically, Loews demonstrated that, as a matter of law, there is no liability for conduct alleged to have occurred before Loews or any of the Tobacco Defendants or their alleged predecessors even existed. See Motion and Memorandum in Support of Motion to Dismiss Plaintiffs' First Consolidated and Amended Complaint Pursuant to Rule 12, filed by Loews on July 18, 2003. Plaintiffs conceded those arguments by failing to respond to Loews' motion, though the Court has yet to rule. Now, because the SAC fails to cure those pleading failures in any way, Loews has moved to dismiss the SAC for all of the same reasons. The Tobacco Defendants again join and incorporate by reference these additional 12(b)(6) grounds for dismissal which are unopposed by plaintiffs, and respectfully request that for these additional reasons the motion be granted with prejudice at this time.

1

The Second Consolidated and Amended Complaint (cited herein as “Second Amended Complaint” and “SAC „ ___”) is brought by plaintiffs in eight of these nine consolidated cases. The plaintiffs in the ninth case, Hurdle v. Fleetboston et al., No. 03cv2644, which was originally filed (but not served) against certain of the defendants in California, chose not to join the Second Amended Complaint and, instead, filed a premature notice of appeal.

2

Defendants joining in this brief are Aetna Inc., Brown Brothers Harriman & Company, Brown & Williamson Tobacco Corporation, Canadian National Railway Company, CSX Corporation, FleetBoston Financial Corporation, J.P. Morgan Chase & Co., Lehman Brothers Inc., Liggett Group, Inc., New York Life Insurance Company, Norfolk Southern Railway Company, R.J. Reynolds Tobacco Company, The Society of Lloyd's, and Union Pacific Railroad Company and Union Pacific Corporation (collectively, “defendants”). (Upon information and belief, the other two named defendants - American International Group, Inc. and Southern Mutual Insurance Company - have not been served in any action and have not appeared in this litigation. A defendant named in the dismissed complaint, WestPoint Stevens, is in bankruptcy and has been dropped by plaintiffs from the Second Amended Complaint.) By joining in this motion, defendants do not waive any and all defenses to jurisdiction and service in any and all of these actions.

3

As before, “the vagueness of Plaintiffs' [SAC] prevents a thorough choice of law analysis,” Order at 61 n.30, but no applicable law would provide a long enough statute of limitations to allow these claims now.

4

Plaintiffs' allegations regarding some defendants' recent statements, see, e.g., SAC „„ 227-256; compare Am. Compl. „ 199, cannot establish fraudulent concealment because the allegations are “merely a veiled attempt to circumvent the statute of limitations for their underlying claims.” Order at 69.

5

Plaintiffs also repeat that slaves and their descendants did not have “omniscient knowledge of their rights, the violations they suffered, those that were the cause of and those that illegally profited from those violations.” SAC „ 46; compare Am. Compl. „ 193 (same). This is merely a reiteration of plaintiffs' previous attempt to avoid the statutes of limitations, which this Court already rejected. See Order at 69.

6

The Second Amended Complaint contains two counts numbered IV.

7

Likewise, plaintiffs have not alleged that any defendant obtained any tangible personal property from any of their own ancestors. “It is well-established that an order of replevin can only be entered against the person who has possession of the goods.” Relational Funding Corp. v. Advantage Sch., Inc., No. 2C1242, 2002 U.S. Dist. LEXIS 10622, at *28 (N.D. Ill. June 13, 2002) (dismissing replevin claim against defendant not presently in possession of property in question).

8

Here, plaintiffs allege that defendants “hold personal property that was never properly vested in them,” SAC „ 290, but this “personal property” is not alleged to be tangible or identifiable. It rather appears to consist of the alleged value of “the enslaved person's work [which] was unpaid.” SAC „ 291.

9

New York and Louisiana, for example, generally do not permit recovery for negligent infliction of emotional distress. See, e.g., Maracallo v. Bd. of Educ. v. City of New York, 769 N.Y.S.2d 717, 724 (N.Y. Sup. Ct. 2003); Lann v. Davis, 793 So. 2d 463, 466 (La. App. 2d Cir. 2001).

10

See also Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 723 (Tex. App. Ct. 2001) (dismissing a widow's negligent infliction of emotional distress claim against a newspaper for publishing photographs of her deceased husband). Some jurisdictions also require that the plaintiff allege “bodily injury or sickness” proximately caused by the defendant's conduct. Dello Russo v. Nagel, 817 A.2d 426, 435 (N.J. Super. Ct. App. Div. 2003). Plaintiffs here have not made such an allegation.

11

There is no count numbered VIII in the Second Amended Complaint.

12

As previously noted, see supra n.3, plaintiffs' Second Amended Complaint is so vague as to make it impossible to conduct a proper choice of law analysis. Presumably, each named plaintiff intends to pursue a consumer protection act claim against the defendants named in his or her original complaint, under the statute of the state in which his or her complaint was originally filed. Indeed, a contrary result - allowing plaintiffs to apply the laws of a state with no significant contact or significant aggregation of contacts to the claims asserted by each plaintiff - would violate due process. See Phillips Petroleum Co. v. Shutts 472 U.S. 797, 821 (1985).

13

The Second Amended Complaint makes no allegations of such comments by defendants The Society of Lloyd's (“Lloyd's”), Lehman Brothers Inc., Norfolk Southern Railway Company, New York Life Insurance Co., Union Pacific Railroad Co. (or Union Pacific Corporation), AIG, Brown & Williamson Tobacco Corp., Liggett Group Inc., Loews Corporation or Southern Mutual Insurance Company.

While plaintiffs do not allege any such public communications by defendant Lloyd's, they do allege that “Lloyd's withheld information in that it failed to report any documents to the California registry as required,” SAC „ 175, in what appears to be an indirect reference to Cal. Ins. Code §§ 13810 et seq. However, that statute applies by its express terms (see §§ 13810, 13812) only to “insurers licensed ... in this state.” Plaintiffs have not alleged that Lloyd's is an insurer licensed in California and have therefore not pleaded a necessary element of any claim related to that statute. Indeed, not only is Lloyd's itself not an insurer, see, e.g., Society of Lloyd's v. Ashenden, 233 F.3d 473, 478 (7th Cir. 2000), a cursory review of the information available on the California Department of Insurance's website (http:// www.insurance.ca.gov/docs/FS-Insurer.htm) will confirm that none of the underwriters who conduct business in the Lloyd's market are licensed in California. (Certain syndicates of underwriters appear on the Department's List of Eligible Surplus Lines Insurers; such “nonadmitted” or “surplus lines” insurers are by definition not licensed in California. See Cal. Ins. Code § 1764.1.)

14

Indeed, only two plaintiffs even attempt to allege that they have any connection whatsoever with any of the defendants. Plaintiff Ina Bell Daniels Hurdle McGee alleges that she is a “customer of Defendant Aetna Insurance Company. But for Aetna's deception, Ina would not have been a customer of Aetna.” SAC „ 90. However, the Second Amended Complaint does not identify what “deception” Aetna allegedly engaged in, where or when the alleged deception occurred, or what damages, if any, plaintiff McGee suffered. Nor could the statements of apology attributed to Aetna elsewhere in the Second Amended Complaint possibly give rise to a deceptive practices act claim. Plaintiffs allege that Aetna has “long ago acknowledged that for several years shortly after its founding in 1853, the company may have insured the lives of slaves” and that Aetna “express[ed] [its] deep regret over any participation at all in this deplorable practice” and “apologized.” SAC „„ 229, 230. Finally, as the caption of the Second Amended Complaint makes starkly clear, plaintiff McGee has not named Aetna as a defendant in the lawsuit she filed in Texas.

Similarly, plaintiff Marcelle Porter alleges that she is “a customer of Defendant, JP Morgan Chase. But for this Defendant's deception, she would not have been its customer.” SAC „ 84. The Second Amended Complaint does not identify what “deception” J.P. Morgan Chase allegedly engaged in, where or when the alleged deception occurred, or what damages, if any, plaintiff Porter suffered. Nor has plaintiff Porter named J.P. Morgan Chase as a defendant in the lawsuit she filed in Illinois.

15

Plaintiffs make the identical, general allegation that each plaintiff was harmed under each statute as follows: “The Continued Intentional Misrepresentations were a direct, foreseeable, producing, and proximate cause of monetary and other economic damages to Plaintiffs.” SAC „„ 321, 331, 339, 348, 357, 365. This conclusory allegation is not sufficient to state a claim. See Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir. 1995) (conclusory statements of law, and their unwarranted inferences, are not sufficient to defeat a motion to dismiss for failure to state claim).

In addition, Plaintiffs' claims under California's unfair competition law fail because none of the named plaintiffs is a California resident and plaintiffs do not allege that any of the challenged conduct occurred in California. See Norwest Mortgage, Inc. v. Superior Court, 85 Cal. Rptr. 2d 18 (1999) (California's unfair competition law does not apply to claims of non-California residents caused by conduct occurring outside of California's borders); see also Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119, 1126 (N.D. Cal. 2000) (same). Chester and Timothy Hurdle, the only two California residents who have appeared as plaintiffs, conspicuously elected not to join the Second Amended Complaint, but instead filed a premature notice of appeal.

16

In order to state a claim under the Illinois statute, a plaintiff must plead and prove: “(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Oliveira, 776 N.E.2d at 160.

17

Under the Texas statute, a plaintiff must plead and prove damages caused by one of the twenty-six specific unlawful practices enumerated in Tex. Bus. & Com. Code § 17.46, id. § 17.50(a)(1), or prove there was a breach of warranty, id. §17.50(a)(2), unconscionability, id. § 17.50(a)(3), or a violation of article 21.21 of the Insurance Code, id. § 17.50(a)(4).

18

N.J. Stat. Ann. § 56:8-19 provides that a private right of action is available only to “[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act.” Id. There must also be a statement by a defendant made “in connection with the sale or advertisement of any merchandise or real estate.” N.J. Stat. Ann. § 56:8-2.

19

To state a claim under the New York statute, it must be proved that defendant has engaged in “[c]onsumer-oriented conduct” with a “broad[ ] impact on consumers at large” or that any act or practice of any defendant was “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995). There must also be proof that plaintiff was injured as a result of any alleged public statement by a defendant. See id.

20

Under La. Rev. Stat. Ann. § 51:1409(A), a private right of action is available only to a plaintiff who “suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result” of unfair competition or unlawful or deceptive acts. Id.

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2003 WL 24256585 (N.D.Ill.) (Trial Motion, Memorandum and Affidavit)

United States District Court, N.D. Illinois,

Eastern Division.

In re: African American Descendants’ Slave Litigation.

MDL-1491.

No. 02-7764 (CRN).

October 28, 2003.

This document relates to all cases

Reply in Support of Defendants' Joint Motion to Dismiss

TABLE OF CONTENTS

INTRODUCTION

1

I. PLAINTIFFS LACK STANDING

1

A. Every Plaintiff Has Failed To Allege an Injury “Fairly Traceable” to These Defendants

2

B. The Plaintiffs Who Allege They are Descendants of Enslaved African-Americans Fail To Satisfy Other Standing Requirements

3

1. Plaintiffs do not allege an “injury-in-fact.”

3

2. Plaintiffs impermissibly seek to litigate a generalized grievance

5

3. Plaintiffs' alleged consumer status is insufficient to confer standing

7

C. Plaintiffs Lack Standing To Sue for the Derivative Claims of Their Ancestors

8

II. PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTES OF LIMITATIONS

9

A. The Federal Accrual/Discovery Rule is Not Applicable Here

9

B. Equitable Tolling is Not Proper

12

C. Equitable Estoppel Cannot Revive Plaintiffs' Claims

14

D. The Continuing Violation Doctrine is Not Applicable

14

E. Plaintiffs' Crimes Against Humanity Claim is Not Excepted from the Statute of Limitations

15

III. PLAINTIFFS' CLAIMS ARE NON-JUSTICIABLE UNDER THE POLITICAL QUESTION DOCTRINE

16

A. Courts Have Consistently Dismissed Reparations Claims on Political Question Grounds Even When They are Asserted Against Private Parties

17

B. The Political Branches Have Directly Addressed the Slave Reparations Issue

19

C. Plaintiffs' Reparations Claims Meet All the Political Question Criteria Required for Dismissal Under Baker

20

1. The Constitution gave the Political Branches the exclusive authority to determine the terms for ending the Civil War, including the issue of reparations

20

2. Plaintiffs' reparations claims are not amenable to judicial resolution

21

IV. PLAINTIFFS HAVE FAILED TO STATE A CLAIM

22

A. The Application of Present-Day Law to Slavery-Era Events Has Already Been Rejected

23

B. Plaintiffs Fail To State a Claim Even Under Present-Day Law

24

1. Plaintiffs fail to state a claim for an accounting (Count II)

25

2. Plaintiffs fail to state a claim for crimes against humanity (Count III)

28

a. Plaintiffs have no private right of action under international law

28

b. The international law claim fails under the Supremacy Clause

31

c. International law does not support plaintiffs' claims

31

3. Plaintiffs fail to state a claim for intentional infliction of emotional distress (Count V)

32

4. Plaintiffs fail to state a claim for conversion (Count VI)

33

5. Plaintiffs fail to state a claim for unjust enrichment (Count VII)

36

6. Plaintiffs fail to state a claim under 42 U.S.C. § 1982 (Count VIII)

38

7. Plaintiffs fail to state a claim under the consumer protection statutes of Illinois, Louisiana, New Jersey, New York, or Texas (Counts X-XIV)

39

8. The Hurdle plaintiffs fail to state a claim under California's unfair com petition law

42

9. Plaintiffs' conspiracy and other vicarious liability claims fail as a matter of law

43

a. The conspiracy count (Count I) fails to state a claim

43

b. Plaintiffs' other allegations of third-party liability are equally deficient

45

CONCLUSION

46

TABLE OF AUTHORITIES

FEDERAL CASES

3Com Corp. v. Elec. Recovery Specialists, Inc., 104 F. Supp. 2d 932 (N.D. Ill. 2000)

26

Alexander v. Sandoval, 532 U.S. 275 (2001)

30

Alperin v. Vatican Bank, 242 F. Supp. 2d 686 (N.D. Cal. 2003)

17

Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996)

12

The Amistad, 40 U.S. (15 Pet.) 518 (1841)

31

Asch v. Teller, Levit & Silvertrust, P.C., No. 00 C 3290, 2003 WL 22232801 (N.D. Ill. Sept. 26, 2003)

37

Baker v. Carr, 369 U.S. 186 (1962)

18, 20, 21

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984)

9

Barron v. Ford Motor Co., 965 F.2d 195 (7th Cir. 1992)

25

Bath Petroleum Storage, Inc. v. Mkt. Hub Partners, L.P., 129 F. Supp. 2d 578 (W.D.N.Y)

41

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

30

Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000)

17

Bradley v. Sch. Bd. of Richmond, 416 U.S. 696 (1974)

24

Brug v. Nat'l Coalition for the Homeless, 45 F. Supp. 2d 33 (D.D.C. 1999)

45

Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999)

17, 18

Burgess v. Clairol, Inc., 776 F. Supp. 1278 (N.D. Ill. 1991)

8

Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424,428 (1965)

11

Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990)

10, 11, 14

Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d-362 (D.N.J. 2001)

41

Cato v. United States, 70 F.3d 1103 (9th Cir. 1995)

3, 5, 6, 7, 21

City of Marshall v. Bryant Air Conditioning Co., 650 F.2d 724 (5th Cir. 1981)

41

Cumis Ins. Soc'y, Inc. v. Peters, 983 F. Supp. 787 (N.D. Ill. 1997)

26

Damato v. Hermanson, 153 F.3d 464 (7th Cir. 1998)

45

Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703 (11th Cir. 1998)

13

In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467 (9th Cir. 1994)

30

Farries v. Stanadyne, 832 F.2d 374 (7th Cir. 1987)

16

Fed. Elec. Commission v. Akins, 524 U.S. 11 (1998)

5

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)

32

Firstar Bank, N.A. v. Faul, No. 00 C 4061, 2001 WL 1636430 (N.D. Ill. Dec. 20, 2001)

26

First Say. Bank of Hegewisch v. Orchowski, No. 91 C 7083, 1994 WL 148668 (N.D. Ill. Apr. 21, 1994)

37, 38

Flores v. S. Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003)

29

Fordice Constr. Co. v. Cent. States Dredgin Co., 631 F. Supp. 1536 (S.D. Miss. 1986)

36

Garrison v. Burke, 165 F.3d 565 (7th Cir. 1999)

15

Gerasta v. Hibernia Nat'l Bank, 411 F. Supp. 176 (E.D. La. 1975)

41

Great Lakes Higher Educ. Corp. v. Austin Bank, 837 F. Supp. 892 (N.D. Ill. 1993)

34

Greisz v. Household Bank, 8 F. Supp. 2d 1031 (N.D. Ill. 1998)

40

In re H. King & Assocs., 295 B.R. 246 (Bankr. N.D. Ill. 2003)

25, 26

Harisiades v. Shanghnessy, 342 U.S. 580 (1952)

20

Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000)

12

Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001)

15

In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000)

22

Humana Health Plan, Inc. v. Heritage Ind. Med. Group, P.C., No. 99 C 6276, 2001 WL 8878 (N.D. Ill. Jan. 3, 200 1)

26

Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52 (D.D.C. 2001)

17

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999)

17, 18, 30, 31

Japan Whaling Assoc. v. Am. Cetacean Society, 478 U.S. 221 (1986)

18

Johnson v. McAdoo, 45 App. D.C. 440 (1916)

13

Justice v. United States, 6 F.3d 1474 (11th Cir. 1993)

9, 11

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)

18

Kelberine v. Societe Internationale, 363 F.2d 989 (D.C. Cir. 1966)

17, 18

Kinesoft Dev. Corp. v. Softbank Holdings Inc., No. 99 C 7428, 2000 WL 1898577 (N.D. Ill. Dec. 20, 2000)

26

Landgraf v. USI Film Prods., 511 U.S. 244 (1994)

24

Lenz v. Associated Inns & Rest. Co., 833 F. Supp. 362 (S.D.N.Y. 1993)

10

Mahone v. United States, No. C-94-1337 DLJ, 1994 WL 225095 (N.D. Cal. May 9, 1994)

5, 6

In re Midway Airlines, Inc., 221 B.R. 411 (Bankr. N.D. Ill. 1998)

26

Miller v. United States, No. C-94-1451 DLJ, 1994 WL 224815 (N.D. Cal. May 9, 1994)

5, 6, 7

Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996)

38

Motherway, Glenn & Napleton v. Tehin, No. 02 C 3693, 2003 WL 21501952 (N.D. Ill. June 26, 2003)

35

N. Trust Co. v. Peters, 69 F.3d 123 (7th Cir. 1995)

41

Nat'l Am. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., No. 99 C 2637, 2000 WL 975176 (7th Cir. July 11, 2000)

37

Nat'l Westminster Bank plc v. Grant Prideco, Inc., 261 F. Supp. 2d 265 (S.D.N.Y. 2003)

36

Natural Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493 (3d Cir. 1993)

3

In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370 (D.N.J. 2001)

17, 18

New Christian Valley M.B. Church v. Bd. of Educ., 704 F. Supp. 868 (N.D. Ill. 1989)

38

Occidental of Umm al Qaywayn v. A Certain Cargo of Petroleum Laden Aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196 (5th Cir. 1978)

20

Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1871)

24, 31, 32, 36

Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977)

44

Perry v. Vill. of Arlington Heights, 186 F.3d 826 (7th Cir. 1999)

2

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)

4

Rick Nolan's Auto Body Shop, Inc. v. Allstate Ins. Co., 711 F. Supp. 475 (N.D. Ill. 1989)

38

Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857 (7th Cir. 1999)

44

Sanders v. City of San Diego, 93 F.3d 1423 (9th Cir. 1996)

4, 8

The Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., No. C-99-0593 MHP, 1999 WL 760527 (N.D. Cal. Sept. 21, 1999)

7, 8

Singh v. Xytel Corp., No. 84 C 6049, 1985 U.S. Dist. LEXIS 23368 (N.D. Ill. Jan. 16, 1985)

35

Smith v. City of Cleveland Heights, 760 F.2d 720 (6th Cir. 1985)

4

Soo Line R.R. Co. v. Tang Indus., Inc., 998 F. Supp. 889 (N.D. Ill. 1998)

10

Staggs v. Northwest Airlines, Inc., 592 F. Supp. 165 (N.D. Ill. 1984)

13

In re Stevens, No. 98 B 15966, 2001 WL 776201 (Bankr. N.D. Ill. May 31, 2001)

26

Sutherland v. O'Malley, 882 F.2d 1196 (7th Cir. 1989)

35

Tab P'ship v. Grantland Fin. Corp., 866 F. Supp. 807 (S.D.N.Y. 1994)

10

Thompson v. Metro. Life Ins. Co., 149 F. Supp. 2d 38 (S.D.N.Y. 2001)

12

Tolle v. Carroll Touch, Inc., 977 F.2d 1129 (7th Cir. 1992)

10

Trans Union, LLC v. Credit Research, Inc., No. 00 C 3885, 2002 WL 31993974 (N.D. Ill. Dec. 2, 2002)

26

United States v. 5 S 351 Tuthill Road, 233 F.3d 1017 (7th Cir. 2000)

4, 8

United States v. Stanley, 483 U.S. 669 (1987)

30

United States v. Yousef, 327 F.3d 56 (2d Cir.)

31

Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)

6, 18

Warth v. Seldin, 422 U.S. 490 (1975)

2, 4, 6

White v. Hart, 80 U.S. (13 Wall.) 646 (1871)

24

White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998)

29, 30

Whitmore v. Arkansas, 495 U.S. 149 (1990)

4, 7

Williams Elec. Games, Inc. v. Barry, No. 97 C 3743, 2001 WL 1104619, at *10 (N.D. Ill. Sept. 18, 2001)

26

In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160 (N.D. Cal. 2001)

10

ZCM Asset Holding Co. v. Allamain, No. 01 C 6250, 2003 WL 732753 (N.D. Ill. Mar. 4, 2003)

26

Zeising v. Kelly, 152 F. Supp. 2d 335 (S.D.N.Y. 2001)

46

Zivkovich v. Vatican Bank, 242 F. Supp. 2d 659 (N.D. Cal. 2002)

17

STATE CASES

Allen v. Ill. Minerals Co., 20 N.E.2d 898 (Ill. App. 4th Dist. 1939)

26

Belott v. New York, 267 N.Y.S.2d 797 (Sup. Ct. 1966)

35

Burr v. State Bank of St. Charles, 100 N.E.2d 773 (Ill. App. 2d Dist. 1951)

27

Cirrincione v. Johnson, 703 N.E.2d 67 (Ill. 1998)

35

Collin County Say. & Loan v. Miller Lumber Co., 653 S.W.2d 114 (Tex. App. 1983)

35

Couri v. Couri, 431 N.E.2d 711 (Ill. App. 3d Dist. 1982)

27

Ellis Oil Co. v. Adams, 109 S.W.2d 1026 (Tex. Civ. App. 1937)

35

Hayes v. Ill. Power Co., 587 N.E.2d 559 (Ill. App. 4th Dist. 1992)

33

Hornbeek v. Hombeek, 125 N.E.2d 535 (Ill. App. 3d Dist. 1955)

26

HPI Health Care Servs., Inc. v. Mt. Vernon Hosp. Inc, 545 N.E.2d 672 (Ill. 1989)

36, 37

Kenneke v. First Nat'l Bank, 382 N.E.2d 309 (Ill. App. 1st Dist. 1978)

38

Kurtz v. Solomon, 656 N.E.2d 184 (Ill. App. 1st Dist. 1995)

27, 28

Landers v. Fronczek, 532 N.E.2d 265 (Ill. App. 1st Dist. 1988)

27

Lorsch v. Gibraltar Mut. Cas. Co., 262 N.E.2d 313 (Ill. App. 1st Dist. 1970)

26, 27

Mann v. Kemper Fin. Co., 618 N.E.2d 317 (Ill. App. 1st Dist. 1992)

26

Mayr v. Nelson Chesman & Co., 195 Ill. App. 587, 1915 WL. 2527 (Ill. App. 1st Dist. 1915)

26

Melnick v. Sable, 206 N.Y.S.2d 825 (App. Div. 2d Dep't 1960)

35

Mid-Am. Fire & Marine Ins. Co. v. Middleton, 468 N.E.2d 1335 (Ill. App. 4th Dist. 1984)

35

Mueller v. Technical Devices Corp., 84 A.2d 620 (N.J. 1951)

35

Newton v. Aitken, 633 N.E.2d 213 (Ill. App. 2d Dist. 1994)

27

Nieberding v. Phoenix Mfg. Co., 176 N.E.2d 385 (Ill. App. 2d Dist. 1961)

25, 26

Norwest Mortgage Inc. v. Superior Court, 85 Cal. Rptr. 2d 18 (Cal. Ct. App. 1999)

43

Oliveira v. Amoco Oil Co., 776 N.E.2d 151 (Ill. 2002)

40

Peddinghaus v. Peddinghaus, 692 N.E.2d 1221 (Ill. App. 1st Dist. 1998)

26

People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188 (Ill. App. 1st Dist. 1986)

26, 27

People v. Davis, 561 N.E.2d 165 (Ill. App. 5th Dist. 1990)

35

Reynolds v. Reiss, 81 So. 884 (La. 1916)

35

Skopp v. First Fed. Say., 545 N.E.2d 356 (Ill. App. 1st Dist. 1989)

41

Spindulys v. L.A. Olympic Org. Comm., 220 Cal. Rptr. 565 (Cal. Ct. App. 1985)

17

Tiefel Bros. & Winn v. Maxwell, 154 S.W. 319 (Tex. Civ. App. 1913)

35

Willis v. Ventrella, 674 So. 2d 991 (La. Ct. App. 1996)

36

FEDERAL CONSTITUTION AND STATUTES

U.S. Const. art. I, § 8, cl. 10

30

28 U.S.C. § 1350

22, 28

42 U.S.C. § 1982

38

STATE STATUTES

Cal. Bus. & Prof. Code § 17200

23, 41, 42

OTHER AUTHORITIES

Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968

15, 16

European Convention on Human Rights, Apr. 11, 1950, 213 U.N.T.S. 221

29

Foner, Eric, Politics and Ideology in the Age of the Civil War 131-44 (1980)

19

The International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171

29

The Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc A/810 (1948)

29

Restatement (Second) of Torts § 46

33

Restatement (Third) of the Foreign Relations of the United States § 111, Comment

31

1A C.J.S. Accounting § 15 (1985)

25

INTRODUCTION

Plaintiffs' responses to defendants' joint motion to dismiss fail to defeat any of defendants' four independent grounds for dismissal: (1) lack of standing, (2) time-bar, (3) non-justiciability under the political question doctrine, and (4) failure to state a claim. Plaintiffs' claims should be dismissed with prejudice.

I. PLAINTIFFS LACK STANDING.

Plaintiffs' Opposition offers no authority to overcome the absence of standing evidenced in the allegations of the Amended Complaint. As with prior (unsuccessful) reparations lawsuits, the complaint focuses on the pre-Emancipation system of slavery and seeks to recover for current societal ills allegedly suffered by a putative class of many millions as a result of that system. The Amended Complaint fails to demonstrate that any of these 19 named plaintiffs has personally suffered an “injury-in-fact” that is “fairly traceable” to any of these 18 named defendants. And Plaintiffs' Opposition simply reinforces that plaintiffs are seeking to litigate a “generalized grievance,” in violation of prudential limitations on standing, as well as the foregoing Article III requirements.

A. Every Plaintiff Has Failed To Allege an Injury “Fairly Traceable” to These Defendants.

The 10 named plaintiffs who seek to sue on behalf of deceased ancestors have alleged no connection between any one of their ancestors and any one of the defendants. To the extent any plaintiff is seeking to sue for the current “vestiges” of slavery, see Am. Compl. „„ 46, 49-52; Hurdle Compl. „ 29, rather than on behalf of their ancestors, they have also failed to allege any conduct committed at any time by any defendant that gave rise to an injury they personally have suffered as a result of slavery. See Def. Mem. at 10-11.

Plaintiffs' only response to this fundamental defect is to repeat the vague allegations of the Amended Complaint about “co-dependent” industries and assorted theories of vicarious liability. See Pl. Opp. at 11-12. The Amended Complaint simply does not allege the connection required for Article III standing. Plaintiffs have offered nothing to show that the current social and economic inequities about which they complain can be fairly traced to the pre-Emancipation conduct of any defendant (as opposed to, for example, the pre-and post-Emancipation conduct of countless other third parties). See Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995) (“In any case, [Cato] does not trace the presence of discrimination and its harm to the United States rather than to other persons or institutions.”).

This failure to meet the “fairly traceable” requirement for Article III standing is shared equally by the nine new plaintiffs added to the Amended Complaint, who allege that they were held against their will and forced to work without compensation by unnamed third parties in the early decades of the last century. See Am. Compl. „„ 75, 89-91. Plaintiffs' Opposition does not even address the absence of a causal connection between these nine plaintiffs and any defendant. See Def. Mem. at 16-17.

B. The Plaintiffs Who Allege They are Descendants of Enslaved African-Americans Fail To Satisfy Other Standing Requirements.

1. Plaintiffs do not allege an “injury-in-fact.”

The 10 named plaintiffs who allege they are descendants of enslaved African-Americans also fail to satisfy Article III's “injury-in-fact” requirement. See Def. Mem. at 7-9. Plaintiffs cite to a litany of cases to argue that many different types and magnitudes of injury can confer standing. See Pl. Opp. at 5-9. That argument misstates the issue. The “injury-in-fact” requirement ensures that the plaintiff who is suing has personally suffered an injury - of whatever type or magnitude - that is concrete and particularized as to that plaintiff. See Def. Mem. at 7-9 (and cases cited therein).

Here, the Amended Complaint does not allege any injury specific to any named plaintiff. Instead, plaintiffs complain of the “vestiges” of slavery, such as “segregation,” “lost opportunity,” “loss of property rights,” and “psychological harm.” Pl. Opp. at 8 (quoting Am. Compl. „ 95). Such bald assertions are simply insufficient to establish standing. See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (“The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements.”). Indeed, plaintiffs allege harms that are wholly hypothetical, including that each plaintiff is “more likely ... than his/her white counterparts” to “go to jail,” “to have a shorter life expectancy,” etc. Pl. Opp. at 8 (citing Am. Compl. „ 102) (emphasis added). Such speculation about what might occur does not create standing. See, e.g., Whitmore, 495 U.S. at 155.

Other courts have dismissed complaints for slavery reparations because (inter alia) virtually identical assertions of harm did not satisfy the injury-in-fact standing requirement. See Def. Mem. 9. Plaintiffs attempt to distinguish these cases by arguing that they were dismissed solely because the plaintiffs had “failed to allege what specific government officials failed to do and what specific law was implicated.” Pl. Opp. at 9-10. The clear holdings of these cases prove otherwise. For example, in Cato, the Ninth Circuit found that the plaintiff had failed to allege “a concrete, personal injury that is not abstract.” 70 F.3d at 1109. And in Miller v. United States, No. C-94-1451 DLJ, 1994 WL 224815 (N.D. Cal. May 9, 1994), the court found that plaintiffs' claims of “miseducation,” “lack of knowledge of self, culture, social facets, indigenous religion” “do not represent the type of sufficiently particularized injury that courts have deemed constitutionally necessary in order to find the existence of a case or controversy.” Id. at *1 (emphasis added); accord Mahone v. United States, No. C-94-1337 DLJ, 1994 WL 225095, at *1 (N.D. Cal. May 9, 1994) (same). Like these prior plaintiffs seeking reparations for slavery, plaintiffs here cannot satisfy Article III's “injury-in-fact” requirement for standing.

2. Plaintiffs impermissibly seek to litigate a generalized grievance.

Even if the named plaintiffs had alleged a personal “injury-in-fact” particularized to satisfy Article III (they have not), and even if that injury were, on the face of the Amended Complaint, fairly traceable to the named defendants (it is not), plaintiffs would still lack standing. They seek to litigate a “generalized grievance” rather than a discrete personal dispute, contrary to all prudential standing limitations. Indeed, the essence of plaintiffs' dispute - that African-Americans “lag behind whites according to every social yardstick: literacy, life expectancy, income and education,” Am. Compl. „ 50 - is precisely the “abstract question[] of wide public significance” that should be left to the political branches. Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982).

Plaintiffs contest defendants' characterization, arguing that “[t]hese are not generalized public interests that plaintiffs seek to litigate, but specific property and tort rights.” Pl. Opp. at 13. The Amended Complaint, however, does not identify any specific property rights, and does not identify any concrete and particularized injury suffered by any one of these plaintiffs personally. To the contrary, the Amended Complaint alleges only generalized harms potentially applicable to all African-Americans, see Pl. Opp. at 8-9 (citing Am. Compl. „„ 93-95, 102), or roughly 13% of the population of the United States. In short, “plaintiffs' grievances are claimed to arise from the fact of their inclusion in a racial group, and are therefore insufficient to overcome the problem that they constitute a “generalized grievance' which does not give them standing to bring this lawsuit.” Miller, 1994 WL 224815, at *1; see Mahone, 1994 WL 225095, at *1 (same); see also Cato, 70 F.3d at 1109-10. Plaintiffs' attempt to recover for African-Americans' exposure to unequal social and economic conditions is precisely the type of “generalized grievance” that should be left to the political branches and, under settled standing limitations, may not be litigated.

3. Plaintiffs' alleged consumer status is insufficient to confer standing.

Plaintiffs attempt to salvage their Amended Complaint by pressing their alleged injury as “consumers” to support standing. See Pl. Opp. at 8. The attempt fails.

To begin with, the Amended Complaint merely alleges, generally, that plaintiffs are “presently consumers of defendants.” Am. Compl. „ 93. It does not allege that any named plaintiff is a customer of any named defendant. Indeed, several of the named defendants simply do not have individual consumers as customers. To satisfy Article III, a plaintiff “must clearly and specifically set forth facts,” see Whitmore, 495 U.S. at 155, which plaintiffs have not done.

Further, although plaintiffs contend that they have been “mis[led], confused and deceived,” Pl. Opp. at 8, by certain statements made by various defendants in response to the filing of these lawsuits, they do not allege any injury - let alone a concrete and particularized “injury-in-fact” - that they personally suffered as a result. See infra Parts IV.B.7-8. Instead, plaintiffs argue that “under some state statutes, the plaintiffs need not even allege injury.” Pl. Opp. at 11. (The Hurdle plaintiffs make this same argument (and no other) in opposing dismissal on standing grounds of their California unfair competition claim. See Hurdle Opp. at 10-11.) The short answer is that the requirement of an Article III “case or controversy” is constitutional and may not be abrogated by state legislation. See, e.g., The Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., No. C-99-0593 MHP, 1999 WL 760527, at *6 (N.D. Cal. Sept. 21, 1999) (California's consumer protection statute does not alter the standing requirements in federal court). Plaintiffs' alleged “confusion” is not a sufficient injury to establish standing.

C. Plaintiffs Lack Standing To Sue for the Derivative Claims of Their Ancestors.

To the extent that plaintiffs are attempting to sue for injuries to their ancestors, rather than on their own behalf, those claims fail as well. First, any cognizable claims were abated and extinguished no later than on the death of the persons in whose favor they might have originally accrued. See Def. Mem. at 15 n.7; see also Burgess v. Clairol, Inc., 776 F. Supp. 1278, 1283 (N.D. Ill. 1991). Plaintiffs' Opposition does not even address this fatal defect.

Second, plaintiffs' lack of standing bars them from asserting the derivative claims of their ancestors. In their Opposition, plaintiffs argue only that they should be permitted to seek redress for the injuries to their ancestors even without a formalized legal relationship, or that they should be allowed more time to try to become executors of their ancestors' estates. See Pl. Opp. at 14-15. Plaintiffs simply ignore that their attempt to seek redress for the injuries to their ancestors fails on multiple grounds, including that: (1) plaintiffs do not identify any connection between their ancestors and these defendants, and thus fail to establish that their ancestors would themselves have had standing to sue these defendants, see Def. Mem. at 13; (2) plaintiffs cannot demonstrate that they have suffered any injury-in-fact, see supra; and (3) there are no allegations that these plaintiffs' ancestors sought to and were prevented from ever asserting their own rights, see Def, Mem. at 15. Thus, establishing the necessary legal relationship with their ancestors' estates would not overcome plaintiffs' other third-party standing deficiencies, each of which independently prevents plaintiffs from pursuing redress for their ancestors' injuries.

II. PLAINTIFFS' CLAIMS ARE BARRED BY THE STATUTES OF LIMITATIONS.

Plaintiffs' claims fail for the additional, independent reason that they are all time-barred and have been for many decades and even centuries. See Def. Mem. at 17-25. Plaintiffs now concede that at least some of their claims are “facially” outside the statutes of limitations, Pl. Opp. at 15, but argue that the applicable statutes of limitations have either been tolled or have not yet run. Id. Plaintiffs entirely fail to demonstrate any basis under any recognized legal theory for excepting their claims from the applicable limitations periods,

A. The Federal Accrual/Discovery Rule is Not Applicable Here.

Plaintiffs rely on the federal accrual/discovery rule to argue that their claims did not even accrue until recently. However, plaintiffs do not allege that their ancestors were unaware of their injuries or even that plaintiffs just discovered those injuries. Plaintiffs allege only that the details of historical business transactions have been unavailable to them. See Am. Compl. „ 194; Hurdle Compl. „ 60. There is simply no basis for plaintiffs' “recent accrual” argument.

Under the federal discovery rule, “a claim accrues once the party performs the alleged unlawful act and once the party bringing a claim discovers an injury resulting from this unlawful act.” Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1139 (7th Cir. 1992) (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990)); see also In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, 1180-81 (N.D. Cal. 2001), aff'd, 317 F.3d 1005 (9th Cir.), cert. denied, 2003 U.S. LEXIS 5627 (Oct. 6, 2003) (under federal law, a cause of action accrues when a plaintiff knows or has reason to know of the injury that is the basis of the action).

Soo Line R.R. Co. v. Tang Indus., Inc., 998 F. Supp. 889, 896 (N.D. Ill. 1998), is instructive. The court refused to apply the discovery rule (or the continuing violation doctrine) where a property owner knew, ten years before suing three former lessees of the property, that the property was contaminated (and had even earlier sought compensation from another former lessee). The same principle applies here. Certainly plaintiffs' ancestors were aware of their enslavement as it occurred, and the Amended Complaint does not plead facts to the contrary. Thus, any claims accrued at least 140 years ago, even if these present-day plaintiffs allege that they just discovered that defendants might have had some role in the pre-Emancipation economy.

Moreover, as noted, a plaintiff need not be aware of all possible facts of the injury before a claim accrues. See Cada, 920 F.2d at 451 (“[i]f a plaintiff were entitled to have all the time he needed to be certain his rights had been violated, the statute of limitations would never run - for even after judgment, there is no certainty”) (emphasis in original). To suggest otherwise would defeat the purpose of statutes of limitations. This lawsuit, brought more than a century after the expiration of the statutes of limitations, is a classic example of the importance of statutes of limitations. “Statutes of limitations are not arbitrary obstacles ... They protect important social interests in certainty, accuracy, and repose... We should not trivialize the statutes of limitations by promiscuous application of tolling doctrines.” Id. at 452-53. Statutes of limitations

””promot[e] justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.

Justice, 6 F.3d at 1479 (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965)). In sum, because plaintiffs have alleged injuries to their ancestors that were both knowable and known to their ancestors - injuries that occurred decades and even centuries ago - the discovery rule does not apply here. The claims have long since accrued and expired.

B. Equitable Tolling is Not Proper.

Nor does the doctrine of equitable tolling revive plaintiffs' claims. Plaintiffs contend that the “relevant question as to equitable tolling is whether the circumstances preventing the plaintiffs from gaining equal access to the justice system over the past decades are sufficiently extraordinary to justify application of the equitable tolling doctrine.” Pl. Opp. at 19.

The cases on which plaintiffs rely do not support equitable tolling here. For example, in Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000), cited in Pl. Opp. at 19, the court rejected the argument that the appellant's lawyer's mistaken interpretation of a statute constituted “extraordinary circumstances” and refused to toll the statute. 209 F.3d at 330. And in Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996), cited in Pl. Opp. at 19, a non-English-speaking Mexican citizen was kidnapped by DEA agents and brought to the United States where he was incarcerated for two years. The court found that (1) his claims arising from his imprisonment (e.g., for false arrest, false imprisonment, etc.) did not accrue until his acquittal on criminal charges, and (2) reasons of both judicial economy and the circumstances of his imprisonment constituted a “rare” instance that warranted equitable tolling of his post-release Federal Tort Claims Act claim against the government. Id. at 701.

By contrast, plaintiffs have not alleged that any of these 19 named plaintiffs (or any of these plaintiffs' ancestors) was ever denied access to any court, let alone that he or she was denied access for generations up until 2002 when these cases were filed. In fact, there is no allegation that any plaintiff or any plaintiff's ancestor ever sought judicial relief at any time, let alone during any applicable limitations period. Cf. Johnson v. McAdoo, 45 App. D.C. 440, 441 (1916) (reparations claims brought by former slaves in 1916). Plaintiffs present only general, conclusory arguments that the African-American community was denied equal access to the courts post-Emancipation. See Pl. Opp. at 20-21.

Downplaying the Seventh Circuit's strict view of equitable tolling, plaintiffs urge application of equitable tolling to their admitted “delay” in filing based on the “uniquely catastrophic historical context from which their [putative] class is still seeking to advance.” Pl. Opp. at 20. Certainly this cannot be (and is not) the applicable standard. Such a standard would effectively eliminate statutes of limitations on any claim based on historical social wrongs.

C. Equitable Estoppel Cannot Revive Plaintiffs' Claims.

Given the flaws in their tolling theories, plaintiffs now argue in the alternative that defendants are “equitably estopped from asserting a statute of limitations defense.” Pl. Opp. at 22. This argument also fails. Equitable estoppel “comes into play if the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations.” Cada, 920 F.2d at 450-51 (giving as another example of a defendant's conduct triggering equitable estoppel when the defendant presented fraudulent documents to the plaintiff to negate the cause of action). Plaintiffs simply have not alleged any “active steps” by any defendant to prevent them (or their ancestors) from filing on time. Rather, they have alleged only that “defendants withheld documents,” Pl. Opp. at 23, hardly an “active step,” particularly where no obligation to “produce” documents has been alleged.

D. The Continuing Violation Doctrine is Not Applicable.

Nor does the continuing violation doctrine revive plaintiffs' accounting claim, which is the only claim they seek to salvage on that basis. Pl. Opp. at 22. Slavery as a legal institution in this country ended in the 1860s. Notwithstanding allegations of post-Emancipation illegal slavery in some parts of this country, the Amended Complaint only charges defendants with profiting from pre-Emancipation slavery. Thus, the supposed wrongdoing of defendants ended almost 140 years ago. The Amended Complaint does not detail any demand for an accounting made by any plaintiff to any defendant. Therefore, the first suggestion that plaintiffs wanted an accounting occurred with the filing of the first of these cases in March 2002. No “refusal” to provide an accounting could have occurred before that. Thus, there is a gap of almost 140 years between the supposed refusal to give an accounting and whatever transactions are to be accounted for (wholly apart from the absence of any “account” on which an “accounting” might be due here, see infra Part IV.B.1). This, alone, is dispositive of plaintiffs' “continuing violation” argument. Seventh Circuit precedent establishes that a gap in time can dissociate even conduct that might otherwise constitute a continuing violation. Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir. 1999). Here, not only are plaintiffs alleging two discrete “violations,” but the two alleged violations were almost a century and a half apart.

Nor does plaintiffs' argument fit the parameters of a “continuing violation.” In the Seventh Circuit, a continuing violation is allowed only where it “would be unreasonable to require or even permit [plaintiff] to sue separately over every incident of the defendant's unlawful conduct.” Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001) (finding a continuing violation where an inmate suffering from a hernia asked repeatedly over several months for medical attention). The enslavement of plaintiffs' ancestors before Emancipation and any profits realized by pre-Emancipation corporations are quite distinct from a demand for a historical accounting almost 140 years later by different people several generations removed. The latter is not a continuation of the former.

E. Plaintiffs' Crimes Against Humanity Claim is Not Excepted from the Statute of Limitations.

Plaintiffs argue that no statute of limitations should bar their crimes against humanity claim, relying on the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968. See Pl. Opp. at 54. But that Convention was neither signed nor ratified by the United States (or most other Western nations). See Def. Mem. at 20. And the Convention governs only crimes, not civil actions. Id.

Plaintiffs also suggest, without support, that their international law claims are “equitable” and are thus governed by laches, rather than by the statute of limitations. See Pl. Opp. at 53. However, federal courts have consistently applied statutes of limitations to international law claims, see Def. Mem. at 19 (and cases cited therein), and plaintiffs cannot escape limitations periods by now labeling their claim “equitable.” Moreover, their claims are precluded by laches as well. Laches requires two elements: (1) lack of diligence on the part of the plaintiff and (2) prejudice to the defendant. See Farries v. Stanadyne, 832 F.2d 374, 378-79 (7th Cir. 1987). It is evident that plaintiffs have delayed filing their claims; they have even admitted as much. See Pl. Opp. at 55 (“[p]laintiffs have explained the reasons for the delay”). And prejudice to defendants is equally clear: because these claims are being brought more than a century out of time, all of the people with first-hand knowledge of the events of the time period are deceased and reliable documentary evidence is unlikely to be available.

In sum, all of plaintiffs' claims are time-barred, and neither the discovery rule nor plaintiffs' various tolling theories can revive them.

III. PLAINTIFFS' CLAIMS ARE NON-JUSTICIABLE UNDER THE POLITICAL QUESTION DOCTRINE.

As a third, independent basis for dismissal, defendants have shown that these claims for reparations are non-justiciable under the political question doctrine. The Executive and Legislative Branches (the “Political Branches”) rejected reparations and provided other remedies to freedmen in the exercise of the Political Branches' exclusive and clear constitutional authority to determine the conditions for ending the Civil War. See Def. Mem. at 26-38. Nothing plaintiffs have offered in response justifies their invitation to this Court to second-guess these historic decisions.

A. Courts Have Consistently Dismissed Reparations Claims on Political Question Grounds Even When They are Asserted Against Private Parties.

Plaintiffs have not offered a single case where federal courts have granted reparations to remedy a past societal wrong. There is none. Courts have universally dismissed such claims on, inter alia, political question grounds, most recently in the context of reparations claims arising out of World War II. See, e.g., Kelberine v. Societe Internationale, 363 F.2d 989, 995 (D.C. Cir. 1966); Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 66-67 (D.D.C. 2001), aff'd, 332 F.3d 679 (D.C. Cir. 2003); In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 382 (D.N.J. 2001); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 489 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 282-85 (D.N.J. 1999).

Plaintiffs attempt to avoid the political question doctrine by describing their claims as “private” and directed against private corporations. See Pl. Opp. at 25. But the political question doctrine applies to public and private rights and to governmental and private entities alike. See Baker v. Carr, 369 U.S. 186, 217 (1962). It is immaterial whether the rights sought to be vindicated are described as “private” or “public”; the critical question is which branch of government is the appropriate branch to determine policy. See In re Nazi Era Cases, 129 F. Supp. 2d at 375 (“The issue is not how Plaintiff has styled his suit, but instead what the underlying controversy is.”). Indeed, the World War II reparations cases dismissed on political question grounds were brought against specific private concerns, ostensibly to vindicate no less “private” claims than those asserted here. The attempt to evade political question dismissal by styling the claims as “private” has been tried, and rejected, before. It should be rejected here, too.

B. The Political Branches Have Directly Addressed the Slave Reparations Issue.

As shown in Defendants' Memorandum, the historical record is clear - and plaintiffs offer nothing to the contrary - that during and after the Civil War, the Political Branches addressed the reparations issue in the context of their war-making powers, deliberately electing to reject reparations in favor of (1) the enactment of important constitutional amendments and civil rights legislation to protect freedmen and (2) amnesty to the Confederates so that they would be restored as participating citizens. See Def. Mem. at 29-33; see also, e.g., Eric Foner, Politics and Ideology in the Age of the Civil War 131-44 (1980). Indeed, even plaintiffs concede that reparations were “occasionally and earnestly suggested” by some in the post-Civil War era and that the Political Branches rejected reparations in favor of other remedial measures. Pl. Opp. at 28; see also Hurdle Opp. at 22-23.

The political question doctrine prohibits plaintiffs from asking this Court to second-guess the Political Branches' choice to enact important constitutional amendments and civil rights legislation rather than reparations, irrespective of plaintiffs' characterization of these choices as not “compensatory.” Pl. Opp. at 28. The point is not that the Political Branches “could” have done something. See Pl. Opp. at 27. It is that they deliberately and expressly elected to eschew reparations, which was (and is) the province of the Political Branches. See Def. Mem. at 34.

C. Plaintiffs' Reparations Claims Meet All the Political Question Criteria Required for Dismissal Under Baker.

In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court enumerated six conditions, the presence of any of which requires dismissal under the political question doctrine. See Def. Mem. at 26; see also Occidental of Umm al Qaywayn v. A Certain Cargo of Petroleum Laden Aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1203 (5th Cir. 1978). All six conditions are met here. See Def. Mem. at 26-38.

1. The Constitution gave the Political Branches the exclusive authority to determine the terms for ending the Civil War, including the issue of reparations.

Plaintiffs misstate Baker when they claim that the Constitution must display “on its face” a textual commitment of the issue to the Political Branches before the political question doctrine applies. Pl. Opp. at 26. Plainly, the “constitutional commitment” to which Baker refers is the commitment of the issue to the Political Branches, not a requirement that the text of the Constitution refer literally to the issue. For example, nowhere on the “face” of the Constitution is there is any reference to World War II or reparations. Nonetheless, as shown above, courts have had no difficulty consistently concluding that the political question doctrine barred these claims. Here, the Political Branches had the explicit and exclusive constitutional authority to wage the Civil War and to determine the conditions for its resolution, including the war-related decision whether to provide reparations to freed slaves. See Baker, 369 U.S. at 211-13; see also Harisiades v. Shanghnessy, 342 U.S. 580, 589 (1952). The authority to make that determination about reparations was committed by the Constitution to the Political Branches and is, therefore, beyond judicial review. This is a conclusion the courts have already reached in the slavery reparations context. See, e.g., Cato, 70 F.3d at 1105.

Judicial second-guessing of decisions by the Political Branches more than a century after they were made, and the implicit disrespect for the Political Branches' policy choices, are barred under five of the Baker criteria. Dismissal is required under any of these five criteria. See Def. Mem. at 26-27, 37-38. Nothing plaintiffs have offered in response changes that conclusion.

2. Plaintiffs' reparations claims are not amenable to judicial resolution.

Plaintiffs' reparations claims fail separately because there are no “judicially discoverable and manageable standards for resolving [them]” - i.e., they must be dismissed under the second of the six Baker political question triggers. Baker, 369 U.S. at 217; id. at 210 (“In determining whether a question falls within (the political question) category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.”) (quotation omitted). Put simply, adjudication of plaintiffs' reparations claims is impossible, for the many reasons set forth in Defendants' Memorandum. See Def. Mem. at 35-37.

In response, plaintiffs assert that there is “ample evidence” that private reparations claims are “extremely well suited” for judicial resolution. For this bald proposition they offer a single case from the Eastern District of New York and two law review articles. See Pl. Opp. at 30 & n.47. However, the only case plaintiffs cite is not a case in which the issue of reparations was actually adjudicated - i.e., judicially “resolved.” Rather, the court there approved a settlement between Holocaust victims and Swiss banks involving dormant accounts. See In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000). In approving the settlement, the court noted that had the parties chosen litigation instead of settlement, “plaintiffs' chance of success as a class [would have been] uncertain.” Id. at 148. Furthermore, noting previous cases where Holocaust-era claims had been dismissed, the court held: “it must be understood that the law is a tool of limited capacity. Not every wrong, even the worst, is cognizable as a legal claim. Indeed, a number of obstacles stand in the path of plaintiffs' claims in this case.” Id. at 149 (quotation omitted). Plaintiffs cannot offer authority for their conclusion that this is a case well-suited for judicial resolution. Defendants are not aware of any litigation that actually awarded the kind of recovery sought here.

IV. PLAINTIFFS HAVE FAILED TO STATE A CLAIM.

As set forth above, the doctrines of standing, limitations, and political question each independently bars plaintiffs' claims in their entirety. Even in the absence of those bars, however, the Amended Complaint would be subject to dismissal for failure to state a claim. Plaintiffs' Opposition does not even respond to defendants' showing that plaintiffs have failed to state a claim for piracy (Count IV) and under the Alien Tort Statute (Count IX). See Def. Mem. at 45-47, 53-56. Plaintiffs' Opposition offers no authority for sustaining the remaining counts.

A. The Application of Present-Day Law to Slavery-Era Events Has Already Been Rejected.

Plaintiffs' defense of the remaining counts relies on present-day law to try to impose liability for alleged conduct dating back centuries. That reliance simply underscores that plaintiffs are attempting to impose liability for conduct that was legal at the time. In an effort to circumvent this fundamental defect, plaintiffs argue, first, that their claims under state consumer protection statutes and for an accounting are based on recent conduct. See Pl. Opp. at 33. This argument implicitly concedes that all of their other claims - and the gravamen of the Amended Complaint, which focuses on the pre-Emancipation practice of slavery - seek to impose liability for events from a different legal era. Moreover, as set forth infra in Parts IV.B.1 and IV.B.7-8, the accounting and consumer protection counts fail to state a claim even if grounded in “recent” events.

Next, plaintiffs argue that slavery was illegal pre-Emancipation. See Pl. Opp. at 33-36. Plaintiffs' assertion of illegality “at the time” is belied by plaintiffs' response on each count of the Amended Complaint: Plaintiffs rely on present-day law. See Pl. Opp. at 39-73. They do not attempt to demonstrate that the causes of action in the Amended Complaint even existed at the time of the alleged events, let alone that the law of that time would support liability under the facts pleaded in the Amended Complaint.

Finally, plaintiffs make a direct appeal for the retroactive application of present-day law to long-ago events. See Pl. Opp. at 37-39. This Court need not entertain that invitation, because the Supreme Court has already rejected such retroactive liability. See White v. Hart, 80 U.S. (13 Wall.) 646 (1871), and Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1871) (rejecting attempt to use post-Emancipation changes in state constitutions, which made slavery related contracts and debts unenforceable as against public policy, to defeat claims that were valid pre-Emancipation); see id. at 663 (“Whatever we may think of the institution of slavery viewed in the light of religion, morals, humanity, or a sound political economy, as the obligation here in question was valid when executed, sitting as a court of justice, we have no choice but to give it effect.”).

B. Plaintiffs Fail To State a Claim Even Under Present-Day Law.

Even if retroactivity were permissible here (it is not), the Amended Complaint would be subject to dismissal under present-day law. Plaintiffs' federal and state statutory claims fail under the law governing those statutes; and plaintiffs' state common law claims fail under the law of Illinois (the forum state) and any other state conceivably implicated in this litigation. See infra Parts IV.B.1-8. The claims cannot be saved with vague allegations of “conspiracy” or “aiding and abetting.” Plaintiffs have failed to first establish primary liability on an underlying tort, let alone allege the other requirements for vicarious liability. See infra Part IV.B.9.

1. Plaintiffs fail to state a claim for an accounting (Count II).

A court cannot order an equitable accounting unless the defendant “possesses money or property which, because of some particular relationship between himself and the plaintiff, he is obligated to surrender.” In re H. King & Assocs., 295 B.R. 246, 271 (Bankr. N.D. Ill. 2003) (citing 1A C.J.S. Accounting § 15 (1985)). Plaintiffs do not allege the existence of any particular account in which they are entitled to share - there simply is none. Plaintiffs also do not allege any relationship between any plaintiff and any defendant. Rather, they rely on vague allegations that their (largely unnamed) ancestors were enslaved (by unnamed persons) and that defendants' alleged corporate predecessors, as participants in the pre-Emancipation economy, were beneficiaries of the practice of slavery. Allowing an accounting action to proceed on such generic allegations would remove all bounds on this extraordinary equitable remedy.

Even the cases plaintiffs cite (see Pl. Opp. at 40 n.67) support the irrefutable proposition that an accounting claim requires a direct relationship between the plaintiff seeking the accounting and the defendant holding the account - for example, a fiduciary, partnership, contract, or family relationship.

Here, plaintiffs have made no such allegations. They attempt to gloss over this fatal deficiency by arguing that their alleged need to discover historical pre-Emancipation records, alone, justifies this claim. See Pl. Opp. at 41. However, plaintiffs have cited no case granting an accounting as a discovery tool in the absence of a particular relationship between the parties. Moreover, plaintiffs' stated “need for discovery” of historical records has nothing to do with discovery related to an accounting. See Pl. Opp. at 41 n.70 (stating alleged “need for discovery into how, when, to where, from where, and by whom their enslaved ancestors were taken”). Discovery related to an accounting is just that - discovery pertaining to specific accounts kept by the parties involving monetary transactions.

Next, plaintiffs acknowledge that Illinois cases require that the accounts be both mutual and complex, Pl. Opp. at 42 n.73, but urge the Court to adopt the position that an accounting can be based on the complexity of accounts alone. Id. In addition to being contrary to law, this argument ignores plaintiff's failure to allege either mutual or complex accounts.

Finally, plaintiffs assert that the parties had a fiduciary relationship that requires an accounting. But, plaintiffs have alleged only that “defendants used and/or profited from slave labor.” Am. Compl. „ 174. These allegations do not establish any direct or particular relationship whatsoever, let alone a fiduciary relationship, between defendants and plaintiffs' ancestors. To show a need for an accounting, a “plaintiff must establish a breach of a fiduciary relationship with the person required to account.” Kurtz v. Solomon, 656 N.E.2d 184, 192 (Ill. App. 1st Dist. 1995). Plaintiffs have not done so. Their accounting claim fails.

2. Plaintiffs fail to state a claim for crimes against humanity (Count III).

As defendants have demonstrated, plaintiffs' claim for crimes against humanity fails, inter alia, on at least three independent grounds: (1) no private right of action exists; (2) the claim is barred under the Supremacy Clause of the U.S. Constitution; and (3) at the time plaintiffs' claim accrued, international law did not prohibit slavery. See Def. Mem. at 41-45. Plaintiffs do not rebut any of these points.

a. Plaintiffs have no private right of action under international law.

In response to the many cases cited by defendants holding that international law does not provide a private cause of action, Def. Mem. at 42, plaintiffs cite three international instruments that they argue provide them with such a remedy. Pl. Opp. at 47 n.76. Plaintiffs are wrong with regard to each. The Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc A/810 (1948), is “merely aspirational and [was] never intended to be binding on member States of the United Nations.” Flores v. S. Peru Copper Corp., 343 F.3d 140, 165 (2d Cir. 2003) (citations omitted). The International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, is “not self-executing” and “does not create a private cause of action in United States courts.” Flores, 343 F.3d at 163, 164 n.35. The United States is not a signatory to the European Convention on Human Rights, Apr. 11, 1950, 213 U.N.T.S. 221, which only applies to its regional parties. Flores, 343 F.3d at 170. (Moreover, the section of the European Convention cited by plaintiffs merely guarantees a fair trial and does not create a private cause of action.)

Nor does customary international law provide plaintiffs with a private cause of action. Defendants have cited numerous cases holding that customary international law is not self-executing, see Def. Mem. at 42 n.35, and plaintiffs offer scant authority to the contrary, see Pl. Opp. at 48. Plaintiffs rely on White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998), but that case undermines their argument. White held that for a claim for a violation of international law to succeed, “a source of federal law other than § 1331 must give rise to a private right of action.” 997 F. Supp. at 1383. The court in White rejected the argument advanced by plaintiffs here that the law of nations is self-executing: “The law of nations itself does not create such a right of action because “[i]nternational law does not require any particular reaction to violations of law.' ” Id. (quoting In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)). The White court declined to imply a cause of action for the alleged violations of international law because “[t]he determination of what international obligations the United States chooses to recognize or enforce is an area that long has been recognized as entrusted principally to the Legislative and Executive branches of the federal government.” Id. at 1385.

Plaintiffs also cite dicta from a footnote in Iwanowa stating that it is “well-established that international law is “self-executing' and is applied by courts in the United States without any need for it to be enacted or implemented by Congress.” 67 F. Supp. 2d 424, 442 n.20 (D.N.J. 1999) (quotation omitted). The Iwanowa court relied on a single law review article that itself cited no authority for so sweeping (and legally incorrect) a proposition. In this regard, the Iwanowa court was manifestly wrong, because the Constitution gives Congress both the power and the duty to “define and punish ... Offenses against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10. International law does not provide plaintiffs with a private cause of action.

b. The international law claim fails under the Supremacy Clause.

Moreover, plaintiffs cannot assert a cause of action under customary international law if it would conflict with the Constitution. See Def. Mem. 43 & nn.36-37. During the period in question, slavery was legal and tolerated by the Constitution; therefore, customary international law cannot provide a basis for plaintiffs' claims. In response to the numerous authorities cited by defendants in support of this point, plaintiffs rely exclusively on a comment to the Restatement (Third) of the Foreign Relations of the United States. See Pl. Opp. at 49. But that passage merely states that federal law is supreme over state law, a proposition not in dispute. Plaintiffs' international law claims are barred by the Constitution.

c. International law does not support plaintiffs' claims.

Plaintiffs argue at great length that slavery currently is considered a violation of international law. See Pl. Opp. at 50-52. Defendants do not dispute that proposition. But at the time the alleged claims arose, neither slavery nor the slave trade was a violation of the law of nations. See Def. Mem. at 43-45. In Osborn, the Supreme Court held that while slavery and the slave trade might have been condemned by some and were “contrary to the law of nature” they were “recognized by the law of nations.” 80 U.S. at 661. Even after slavery was abolished in the United States, vested rights arising out of transactions related to slavery remained enforceable. Id. at 662-63. In asking this Court to rule retroactively that slavery violated international law at the time of the events on which they base their claims, plaintiffs invite the court to turn a blind eye to history and to repudiate binding Supreme Court precedent. In sum, plaintiffs have failed to state a claim for violations of international law.

3. Plaintiffs fail to state a claim for intentional infliction of emotional distress (Count V).

Plaintiffs' arguments in support of their claim for intentional infliction of emotional distress (“IIED”) are similarly misguided. The ten plaintiffs who allege that they are the descendants of enslaved African-Americans seek to recover for emotional distress that they have allegedly experienced as a result of the treatment of their ancestors pre-Emancipation. See Am. Compl. „„ 232-38; Pl. Opp. at 55-56. Plaintiffs do not allege that these defendants engaged in such treatment - or had any contact whatsoever with any one of plaintiffs' ancestors. Plaintiffs' IIED claim depends on theories of alleged third-party liability. As discussed infra in Part IV.B.9 and in Defendants' Memorandum at 62-66, those theories are wholly without merit. Moreover, the law is clear that a plaintiff cannot recover for outrageous conduct that is directed at a third party unless, at a minimum, the plaintiff personally witnesses such conduct. See Restatement (Second) of Torts § 46(2); see also id., Comment 1. Plainly, the ten alleged “descendants of enslaved African-Americans” cannot recover under IIED for conduct that occurred over a century ago, long before these plaintiffs were even born. See id.

The nine plaintiffs who allege that they were enslaved during the early decades of the last century seek to recover for the emotional distress that resulted from such treatment. See Am. Compl. „ 96. Yet their IIED claims plainly fail because the Amended Complaint makes clear that defendants had absolutely nothing to do with the illegal enslavement of these plaintiffs. See Am. Compl. „„ 75, 89, 91 (alleging enslavement by unnamed third parties). The Amended Complaint fails to allege any conduct by any defendant that was extreme or outrageous with respect to these nine plaintiffs - much less any conduct that actually or proximately caused these nine plaintiffs' emotional distress. Count V should be dismissed.

4. Plaintiffs fail to state a claim for conversion (Count VI).

Plaintiffs have failed to allege the essential requirement of any claim for conversion - that tangible personal property was taken from them. They have also failed to allege that any defendant had anything to do with the alleged “taking” upon which they base their claim.

Plaintiffs do not dispute the requirement that a claim of conversion must relate to tangible personal property, and do not distinguish or even discuss the cases cited by defendants on this point. Instead, plaintiffs point out that slavery reduced the enslaved to the status of chattel property that could be subject to conversion. Pl. Opp. at 57. However, plaintiffs' claims against the defendants in this case are not based on an alleged taking of tangible personal property from slaveowners. Rather, plaintiffs' conversion claim is based solely on defendants' alleged deprivation of their ancestors' right to the “value of their [own] slave labor.” Am. Compl. „ 240. Put simply, the right of individuals to the value of their own labor is not tangible personal property. See Def. Mem. at 49-50 & n.45.

Plaintiffs' Opposition attempts to recast their claim about the value of labor as a “property interest in their person - a property right of self-ownership” (Pl. Opp. at 57), but this characterization appears nowhere in the Amended Complaint. Even if it did, such characterization would not transform a set of intangible rights - described by plaintiffs as including a right to bodily integrity, a right to make choices, a liberty interest, and right to privacy (Pl. Opp. at 57-58) - into tangible property. Each and every case cited by plaintiffs underscores this principle, as each involves the alleged conversion of what is indisputably tangible personal property, making clear that intangible property rights cannot be converted.

Plaintiffs' reliance on cases involving conversion of a specific identifiable fund or amount of money is equally misplaced. Money can be recovered in an action for conversion if it can be “described as a specified chattel” and not sums owed pursuant to a debt or obligation. Motherway, Glenn & Napleton v. Tehin, No. 02 C 3693, 2003 WL 21501952, at *5 (N.D. Ill. June 26, 2003). Money can be described as a specific chattel if there is a “right to a specific fund or specific money in coin or bills.” Mid-Am. Fire & Marine Ins. Co. v. Middleton, 468 N.E.2d 1335, 1339 (Ill. App. 4th Dist. 1984). Plaintiffs here do not allege that defendants converted any specific fund or specific currency rightfully belonging to them or their ancestors, but instead seek to recover the monetary value of plaintiffs' ancestors' labor. Am. Compl. „ 240; Pl. Opp. at 59. In fact, plaintiffs admit that their conversion claim does not involve a specific fund of money when they state that “it is effectively impossible to assess with certainty the precise value of property converted by defendants without an accounting.” Pl. Opp. at 41 n.68. The conversion claim should be dismissed.

5. Plaintiffs fail to state a claim for unjust enrichment (Count VII).

Plaintiffs' Opposition does nothing to salvage their claim for unjust enrichment. Plaintiffs concede that they have not conferred any benefit on any defendant. Pl. Opp. at 60. Instead, they argue that defendants unjustly obtained unspecified benefits from unspecified third parties. Plaintiffs argue that Illinois law supports a claim for unjust enrichment if either (1) a defendant procured a benefit from a third party “through some type of wrongful conduct”; or (2) a plaintiff has “a better claim to the benefit” than does a defendant. Id. (quoting HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc, 545 N.E.2d 672, 679 (Ill. 1989)). Plaintiffs fail to state a claim under either theory.

Plaintiffs fail to cite any authority applying the “wrongful conduct” exception to alleged conduct that was legal at the time it occurred. As discussed above, the Supreme Court has held that pre-Emancipation transactions relating to slavery were legal and that courts have “no choice but to give [them] effect.” Osborn, 80 U.S. at 663. As one of the cases on which plaintiffs rely notes, a benefit conferred “according to a contractual or legal obligation ... cannot be unjust.” Nat'l Am. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., No. 99-2637, 2000 WL 975176, at *3 (7th Cir. July 11, 2000). Plaintiffs also fail to allege how they themselves are entitled to the unspecified benefits defendants allegedly received. See Asch v. Teller, Levit & Silvertrust, P.C., No. 00 C 3290, 2003 WL 22232801, at *7 (N.D. Ill. Sept. 26, 2003) (even where a defendant had engaged in wrongful conduct, “the court has uncovered no case, in which a court has applied HPI's wrongful conduct exception where a plaintiff is attempting to recover money to which it is not entitled”); see also HPI, 545 N.E.2d at 679 (unjust enrichment requires that defendant retain benefit “to the plaintiff's detriment”).

For many of the same reasons, plaintiffs' argument that they have a “better claim” to any benefit than do these defendants fails. See Pl. Opp. at 62. Their Amended Complaint contains wholly conclusory allegations that defendants benefited from various transactions related to slavery, without identifying the transactions, the parties to the transactions, or any benefits conferred. See, e.g., Am. Compl. „„ 174, 244. Although plaintiffs argue that “[a]s the intestate heirs of their ancestors, plaintiffs clearly have a better claim to the benefit than the defendants,” Pl. Opp. at 62, the utter absence of allegations connecting plaintiffs or their ancestors to these defendants means that plaintiffs have no claim at all to the alleged benefits. In each of the cases cited by plaintiffs to support their argument, the plaintiffs alleged facts to show that a specific benefit was conferred by a specific third party on defendant, and that plaintiffs had a right to those benefits. See, e.g., First Say. Bank of Hegewisch v. Orchowski, No. 91 C 7083, 1994 WL 148668 (N.D. Ill. Apr. 21, 1994) (funds illegally disbursed by plaintiff's former employee and conveyed to specific defendants belonged to plaintiff); Kenneke v. First Nat'l Bank, 382 N.E.2d 309 (Ill. App. 1st Dist. 1978) (plaintiffs' former employer made payments to defendant's pension fund on their behalf, pursuant to collective bargaining agreement). By contrast, the Amended Complaint contains no allegation identifying any benefit to which these plaintiffs have any claim, much less a better claim. Plaintiffs have failed to state a claim for unjust enrichment.

6. Plaintiffs fail to state a claim under 42 U.S.C. § 1982 (Count VIII).

Plaintiffs' Opposition fails to counter a fundamental defect in their claim under 42 U.S.C. § 1982 (in addition to lack of standing, untimeliness, and non-justiciability). They allege a “loss of wealth,” Am. Compl. „ 260 (emphasis added); and their Opposition reiterates that plaintiffs are complaining of an alleged interference with “their rights to inherit and convey wealth,” Pl. Opp. at 63 (emphasis added). Section 1982, however, addresses “discrimination in property transactions.” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (emphasis added). Plaintiffs' Opposition cites to no authority extending the statute to the “loss of wealth,” and defendants have located no such authority. Indeed, the authority cited in Defendants' Memorandum is to the contrary. See Def. Mem. at 52-53.

Here, plaintiffs have not identified any property of any kind - whether real or personal - that they (or their ancestors) tried to buy, sell, lease, etc., let alone any property transaction that they (or their ancestors) attempted with any of these defendants (or their predecessors). Thus, they have not stated a claim under section 1982.

Plaintiffs' claim is also defective because plaintiffs are seeking to apply section 1982 retroactively (to conduct prior to the statute's enactment in 1866). Plaintiffs do not dispute that the statute applies only to post-enactment conduct, see Pl. Opp. at 63, but they then try to convert their complaints about defendants' alleged pre-enactment conduct (alleged profiting from slavery) into post-enactment conduct (alleged failure to disgorge the profits or information about them), see id. They cite to no case law that would support such a circumvention of the effective date of the statute, and defendants have located no such authority. Thus, in short, plaintiffs have failed to state a claim under section 1982.

7. Plaintiffs fail to state a claim under the consumer protection statutes of Illinois, Louisiana, New Jersey, New York, or Texas (Counts X-XIV).

Plaintiffs' Opposition does not even attempt to respond to the demonstration in Defendants' Memorandum (at pp. 56-60) that the Amended Complaint fails to state a claim under the consumer protection statutes of Illinois, Louisiana, New Jersey, New York, or Texas. Instead, plaintiffs disclaim the Amended Complaint in its entirety as to these claims, asserting instead that their Proposed Second Amendment would state a claim, and improperly attaching portions of the proposed amendment. See Pl. Opp. at 66-67 & Attach. However, they conspicuously fail to cite a single case or authority for the proposition that the Proposed Second Amendment, even if they were granted leave to file it, would cure the admitted fatal deficiencies of the Amended Complaint.

The proposed new allegations, like the old, are not sufficient to allege a cause of action under the consumer protection statutes of Illinois, Louisiana, New Jersey, New York, or Texas. Essentially all of the statements alleged to be “consumer fraud” are public statements made with respect to the subject matter of this litigation, either in response to the filing of this litigation or to pre-filing publicity concerning the potential filing of this litigation. Plaintiffs offer no support for the proposition that these allegations give rise to a claim, and for good reason: Plaintiffs cannot possibly have suffered any compensable injury as a result of defendants' unwillingness to agree publicly with plaintiffs' meritless liability claims against them. No reliance can credibly be alleged or inferred. See Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002) (affirming dismissal of complaint where plaintiffs did not allege that they were deceived by the alleged misrepresentation and thus could not show proximate causation). They were obviously not deterred from commencing this litigation by any of the statements allegedly made before the litigation was filed, and even more obviously have not been dissuaded from continuing this litigation by any of the statements allegedly made after the litigation was commenced (the majority of the alleged “misrepresentations”).

Without a coherent factual allegation that any of the alleged misrepresentations caused any named plaintiff some actual harm or ascertainable loss, plaintiffs cannot state a claim. See, e.g., Greisz v. Household Bank, 8 F. Supp. 2d 1031 (N.D. 11. 1998) (dismissing claim under Illinois Consumer Fraud Act for failure to show any actual harm); see also City of Marshall v. Bryant Air Conditioning Co., 650 F.2d 724 (5th Cir. 1981) (reversing verdict under Texas unfair competition statute where plaintiffs could not show that behavior would have been any different and thus could not show misrepresentations caused actual damage); Cannon v. Cherry Hill Toyota, Inc., 161 F. Supp. 2d 362, 373-75 (D.N.J. 2001) (dismissing claim for violation of New Jersey Consumer Fraud Act because plaintiffs could not show misrepresentation caused any ascertainable loss); Bath Petroleum Storage, Inc. v. Mkt. Hub Partners, L.P., 129 F. Supp. 2d 578, 598 (W.D.N.Y) (dismissing claim under New York consumer protection statute where plaintiffs have not pled and cannot show misrepresentation proximately caused any injury), aff'd, 229 F.3d 1135 (2d Cir. 2000), cert. denied, 532 U.S. 1037 (2001); Gerasta v. Hibernia Nat'l Bank, 411 F. Supp. 176 (E.D. La. 1975) (dismissing claim under Louisiana Unfair Trade Practices Act where plaintiff failed to show unfair trade practice caused actual damage to plaintiffs), aff'd in part and rev'd in part on other grounds, 575 F.2d 580 (5th Cir. 1978).

8. The Hurdle plaintiffs fail to state a claim under California's unfair competition law.

Defendants established in their opening memorandum that the Hurdle plaintiffs failed to state a claim for violation of California's unfair competition law (“UCL”) because (1) the action is barred by the four-year statute of limitations; and (2) the UCL cannot be applied retroactively to reach the conduct described in their complaint. See Def. Mem. at 60-62. Nothing in the opposition filed by the Hurdle plaintiffs compels a different conclusion.

As discussed supra in Part II, plaintiffs' tolling doctrines have no application here, and the Hurdle plaintiffs therefore cannot avoid the statute of limitations bar. Moreover, notwithstanding the Hurdle plaintiffs' assertion that they are not seeking to apply the statute retroactively because they are challenging conduct that purportedly continues today, the only conduct alleged in their complaint that extends past 1865 is the defendants' purported failure to provide them an accounting. As demonstrated in Defendants' Memorandum, such conduct cannot support an unfair competition claim because defendants were under no obligation to provide such an accounting, and thus there is nothing unlawful, unfair, or fraudulent in defendants' failure to do so. For these reasons, the Hurdle plaintiffs have not stated a claim for violation of California's UCL.

Nor does the remaining plaintiffs' Amended Complaint assert a claim fo violation of the UCL. Although plaintiffs take the remarkable position in their Opposition that they have adequately stated such a claim, see Pl. Opp. at 67, their Amended Complaint does not even purport to allege a claim for violation of California's UCL.

9. Plaintiffs' conspiracy and other vicarious liability claims fail as a matter of law.

Plaintiffs' Opposition, like their Amended Complaint, uses a grab-bag of vicarious liability terms - such as “conspiracy” and “aiding and abetting” - in an attempt to gloss over the foregoing defects in each of plaintiffs' claims. That attempt fails.

a. The conspiracy count (Count I) fails to state a claim.

As an initial matter, no independent cause of action exists for “conspiracy.” In the absence of an underlying tort, the conspiracy count (and plaintiffs' other vicarious liability theories) fail. See Def. Mem. at 64-65 (and cases cited therein). Plaintiffs' Opposition relies, for the underlying tort, on the Amended Complaint's claims for intentional infliction of emotional distress (Count V) and crimes against humanity (Count III). See Pl. Opp. at 67. As demonstrated supra in Parts IV.B.2 and 3, and in Def. Mem. at 41-45 and 47-48, however, plaintiffs have failed to state a claim on either of those counts. Consequently, their conspiracy count (and their other vicarious liability theories) fail.

The conspiracy count also fails because it does not meet the most basic requirement for such a claim - the pleading of an identifiable agreement. Plaintiffs acknowledge in their Opposition that an agreement is an indispensable element of any civil conspiracy claim, and they implicitly concede that the defendants (or the defendants' alleged predecessors) never entered into any identifiable agreement to commit the alleged tortious acts. Pl. Opp. at 68. Rather, they urge that the defendants are vicariously liable for the torts of unnamed pre-Emancipation principal tortfeasors because the defendants (or their alleged predecessors) and the alleged unidentified principal tortfeasors possessed an “understanding” that they would “maintain slavery for the mutual profit of all.” Id. at 68; see also Am. Compl. „ 217 (“each industry group was co-dependent on others”). In other words, plaintiffs urge that the defendants' alleged understanding that they were doing business in an economy that included slave labor constituted an actionable “agreement” to commit tortious acts.

Plaintiffs' argument is directly contrary to law, which requires that plaintiffs allege far more than that the defendants, at various unidentified moments in a period spanning three centuries, were all part of the then-existing economic system. See Def. Mem. at 63-64 (and cases cited therein). The Seventh Circuit, for example, recently affirmed the dismissal of a civil conspiracy claim that, like plaintiffs' claim here, contained

no indication of when an agreement between [the defendant] and the other defendants was formed, what its terms were .. or what [the defendant]'s role was ... The form and scope of the conspiracy are thus almost entirely unknown. This is a case of a bare allegation of conspiracy, and such an allegation does not satisfy Rule 8, either under our cases, or cases in the other circuits that have dealt with the issue. So the district court was right to dismiss the conspiracy charge ...

Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 860 (7th Cir. 1999) (citations omitted), cited in Pl. Opp. at 69. Here, plaintiffs have given no indication of when the alleged agreement was formed, what its terms were, or what the defendants' roles were. See, e.g., Brug v. Nat'l Coalition for the Homeless, 45 F. Supp. 2d 33, 40-41 (D.D.C. 1999) (“Complaints containing only “conclusory,' “vague,' or “general allegations' of a conspiracy ... will be dismissed.”) (quotation omitted). Plaintiffs' conspiracy claim should be dismissed.

b. Plaintiffs' other allegations of third-party liability are equally deficient.

Nor does plaintiffs' use of other vicarious liability terms like “aiding and abetting” save their claims from dismissal. Plaintiffs concede that civil liability for aiding and abetting is not assumed under federal law but has been recognized only on a “statute-by-statute basis.” See Pl. Opp. at 71. Plaintiffs then ask this Court to assume civil liability under the common law. Even if a separate civil cause of action for aiding and abetting were generally available (it is not, see Def. Mem. at 65), Plaintiffs' Opposition fails to identify any facts alleged in the Amended Complaint to support two essential elements of aiding and abetting liability: (1) specific knowledge of an identified principal's intent to commit a specific wrongful act and (2) the intent to further that wrongful act. See, e.g., Damato v. Hermanson, 153 F.3d 464, 473 (7th Cir. 1998). The Amended Complaint's vague allegations that some of the defendants (at some unspecified time) “aided and abetted” (in some unspecified way) “other” (unidentified) people or entities, does not come close to meeting the required standard. See id. at 473 (dismissing an aiding and abetting claim).

Plaintiffs' Opposition does not even attempt to demonstrate the sufficiency of plaintiffs' other vicarious liability theories. Compare Def. Mem. at 66 with Pl. Opp. at 73. To give just one example, neither Plaintiffs' Opposition nor their Amended Complaint identifies any “criminal enterprise” or “joint enterprise” of which the defendants allegedly were part. See, e.g., Zeising v. Kelly, 152 F. Supp. 2d 335, 347 (S.D.N.Y. 2001) (dismissing a claim where the plaintiff alleged a mere “community of interest, or a joint interest in profitability,” and thus failed to plead sufficient facts establishing a joint venture). In sum, the recitation of vicarious liability terms does not save plaintiffs' claims from dismissal.

CONCLUSION

For the foregoing reasons and the reasons set forth in Defendants' Memorandum, plaintiffs' First Amended Complaint, together with the Hurdle plaintiffs' complaint, should be dismissed with prejudice.

Footnotes

1

This reply applies to all of the actions in these MDL proceedings, including the separate complaint filed by Chester and Timothy Hurdle against 10 of the defendants (“Hurdle Compl.”). The opposition filed by the Hurdle plaintiffs is referred to herein as “Hurdle Opposition” and cited as “Hurdle Opp.” The consolidated opposition filed by the remaining plaintiffs is referred to as “Plaintiffs' Opposition” and cited as “Pl. Opp.” Citations to defendants' memorandum in support of their joint motion to dismiss (“Defendants' Memorandum”) appear as “Def. Mem.”

Defendant Loews Corporation, which filed a separate motion to dismiss, is filing a separate reply, which adopts the arguments of this reply. All other defendants that have been served in one or more of the underlying actions join in this reply. Defendants Brown & Williamson Tobacco Corporation, Liggett Group, Inc., and R.J. Reynolds Tobacco Company, in addition to joining in this reply, also join in Loews' reply. Defendant Canadian National Railway Company, in addition to joining in this reply, is filing a separate reply.

2

Implicitly conceding the inadequacy of their First Amended Complaint (“Amended Complaint” or “Am. Compl.”), plaintiffs in the consolidated cases improperly attach allegations from their proposed Second Amended Complaint (“Proposed Second Amendment” or “PSAC”), despite this Court's order deferring briefing on plaintiffs' motion to amend. Plaintiffs have not stated a claim even with those proposed amendments.

3

Plaintiffs' assertion that the prior reparations lawsuits were all part of the “same line of cases,” Pl. Opp. at 9 n.16, is wrong. Those cases were decided by different courts, and different judges within the same court, all of whom reached the same conclusion. See Def. Mem. at 2-3 n.2.

4

As set forth infra in Part III.C.2 (discussing the political question doctrine), the Amended Complaint also fails to meet the third prong of the test for Article III standing: redressability. As plaintiffs note, the redressability “element is oft-discussed as a question of justiciability under the heading of Political Question Doctrine.” Pl. Opp. at 13.

5

Because standing is a threshold inquiry and plaintiffs bear the burden of alleging facts to establish standing, see Def. Mem. at 6, courts routinely determine standing at the motion-to-dismiss stage. Indeed, two of the cases plaintiffs rely on to try to escape their burden at this stage were dismissed for lack of standing. See Warth v. Seldin, 422 U.S. 490, 493 (1975), cited in Pl. Opp. at 5; Perry v. Vill, of Arlington Heights, 186 F.3d 826, 828 (7th Cir. 1999), cited in Pl. Opp. at 5.

6

As discussed infra in Part IV.B.9 and in Def. Mem. at 62-66, plaintiffs' vicarious liability allegations fare no better.

7

Plaintiffs' reliance on Natural Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493 (3d Cir. 1993), see Pl. Opp. at 12 n.20, is misplaced. That case considered the “fairly traceable” requirement in the (inapplicable) context of a citizen suit to enforce the Clean Water Act. 2 F.3d at 505. In any event, the case is unhelpful to plaintiffs as it confirms that standing requires a direct causal connection between a plaintiff's alleged injury and the defendant's alleged conduct, see id., which plaintiffs fail to allege here.

8

General allegations of injury to the class will not suffice. To have standing, the named plaintiff must be among the injured. See Warth, 422 U.S. at 502.

9

While the loss of an “opportunity” or “property,” or the infliction of a “stigma,” may be sufficient to satisfy Article III in appropriate circumstances, the mere recitation of these phrases cannot alone confer standing. In the cases relied on by plaintiffs, the litigants pleaded facts sufficient to establish that the plaintiff had suffered concrete and particularized personal injuries. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (loss of an opportunity to compete for all 100 places in medical school class); United States v. 5 S 351 Tuthill Rd., 233 F.3d 1017 (7th Cir. 2000) (forfeiture of residence in which plaintiff held a right to future proceeds); Sanders v. City of San Diego, 93 F.3d 1423 (9th Cir. 1996) (seizure of jewelry in which plaintiff possessed legitimate possessory interest); Smith v. City of Cleveland Heights, 760 F.2d 720 (6th Cir. 1985) (stigmatic injury from racial steering practices which branded plaintiff, an African-American resident, as less desirable than white residents). Absent from plaintiffs' Amended Complaint, by contrast, are any such facts.

10

Plaintiffs assert erroneously that the Cato court “left open the option of a claim that was more specifically pleaded.” Pl. Opp. at 10. In fact, the Cato court held: “To us, as to the district court, it is clear that this complaint cannot be cured by amendment.” Id. at 1105.

11

Plaintiffs also contend that they have suffered harm “by the defendants in not turning over documents.” Pl. Opp. at 12. This contention is meritless. Unlike in the case relied on by plaintiffs - Fed. Election Comm'n v. Akins, 524 U.S. 11 (1998) - no federal statute requires defendants in this case to produce the documents that plaintiffs seek. As discussed in Defendants' Memorandum at 40-41, plaintiffs simply have no right to defendants' corporate records. Moreover, plaintiffs' allegation of harm is based upon pure speculation that the documents they seek actually exist, and that, moreover, such documents would establish some connection between these defendants and plaintiffs' ancestors. See Pl. Opp. at 12 (“Plaintiffs' ancestors might have worked for the predecessor train companies, might have been insured by the defendant insurance companies ... ,” etc.) (emphasis added). Such speculative harm is insufficient to establish an injury-in-fact.

12

Plaintiffs argue at length the unremarkable point that Valley Forge involved different facts. See Pl. Opp. at 13-14. This does not render Valley Forge inapposite. To the contrary, Valley Forge stands squarely for the irrefutable proposition that prudential limitations on standing prevent the adjudication of “ “generalized grievances,' pervasively shared and most appropriately addressed in the representative branches,” see 454 U.S. at 475, a proposition that has particular force and clear application here.

13

Although standing is not to be denied simply because many people suffer the same injury, see Pl. Opp. at 9, the Supreme Court has made clear that a plaintiff may not base his or her claim on an abstract grievance “shared in substantially equal measure by all or a large class of citizens.” Warth, 422 U.S. at 499. Plaintiffs must therefore demonstrate that they have suffered some specific and perceptible harm that differentiates them from other African-American citizens. Where, as here, plaintiffs' alleged harms flow from their inclusion within a racial group, plaintiffs are not litigating some specific and perceptible personal harm but rather a generalized grievance. See Cato, 70 F.3d at 1109; Miller, 1994 WL 224815, at *1.

14

Notably, even in the Proposed Second Amendment, only two of the named plaintiffs are alleged, in conclusory fashion and without supporting detail, to be customers of two of the named defendants.

15

Moreover, even if plaintiffs had alleged that they personally were customers of specific defendants (they have not), and even if they had alleged a sufficiently concrete injury as “consumers” of defendants' products (they have not), such injury would, at most, confer standing on plaintiffs to challenge as deceptive consumer practices recent statements to the press by some defendants (Counts X-XIV). (And those counts, in any event, are subject to dismissal on multiple other grounds.) Such injury would not confer standing on plaintiffs to pursue the broad recovery they seek for defendants' alleged participation in and benefit from pre-Emancipation slavery, or to litigate Counts I-IX of the Amended Complaint.

16

Plaintiffs rely on 5 S 351 Tuthill Road and Sanders, yet neither case involved the issue of third-party standing rights. Rather, plaintiffs' claims in both cases were based on direct personal injuries (not derivative injuries) as a result of the forfeiture and/or seizure of property in which plaintiffs held a direct interest. See 5 S 351 Tuthill Road, 233 F.3d at 1017; Sanders, 93 F.3d at 1423. These cases are simply inapposite.

17

Contrary to plaintiffs' suggestion (see Pl. Opp. at 15), sympathy for a plaintiff is not a valid justification for tolling. Indeed, it is well-recognized that

[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of ... sympathy for particular litigants ... [I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.

Justice v. United States, 6 F.3d 1474, 1483 (11th. Cir. 1993) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151-52 (1984)).

18

Plaintiffs argue that the court should consider the sophistication of the plaintiffs (or their ancestors) in determining when these claims accrued, citing two New York securities cases. See Pl. Opp. at 17 & n.29. These cases are inapposite, as they involved claims of fraudulent concealment (not alleged here) in § 10(b) securities fraud cases. Moreover, a full reading of the cases shows they are unhelpful to plaintiffs because the courts rejected the attempts to escape the statute of limitations, finding that even accusations of fraud do not “discharge the duties of due diligence and inquiry.” Tab P'ship v. Grantland Fin. Corp., 866 F. Supp. 807, 811 (S.D.N.Y. 1994); Lenz v. Associated Inns & Rest. Co., 833 F. Supp. 362, 373 (S.D.N.Y. 1993) (rejecting claims of fraudulent concealment, even though the court found a fiduciary relationship existed, because plaintiff had enough information to trigger the duty to inquire but did not do so).

19

In World War II Era, the court rejected claims brought by forced laborers from a Japanese labor camp filed more than 50 years after the fact, The court also rejected plaintiffs' contention that because the Japanese government allegedly “suppressed” similar claims brought shortly after the war the plaintiffs were not aware of the opportunity to bring their claims. The district court found “mere ignorance of the cause of action does not, in itself, toll the statute.” 164 F. Supp. 2d at 1181 (quotation omitted).

20

Plaintiffs' reliance on Thompson v. Metro. Life Ins. Co., 149 F. Supp. 2d 38 (S.D.N.Y. 2001), as support for application of the discovery rule here is misplaced. Pl. Opp. at 18. The plaintiffs in Thompson allegedly were harmed because, unbeknownst to them, the insurer sold them substandard insurance policies and charged them higher prices. Thus, the court did not charge the plaintiffs with knowledge of the insurers' allegedly discriminatory practices (over a span of decades) until the practices had become public knowledge many years later. Here, by contrast, alleged injuries to plaintiffs' ancestors (enslavement, kidnapping, etc.) were, by the nature of the injuries, necessarily known to plaintiffs' ancestors when they occurred.

21

Plaintiffs assert that tolling principles apply to “prevent injustice to plaintiffs due to factors occurring outside of the plaintiffs' control.” Pl. Opp. at 15; see id. at 16 n.24 (citing Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998)). In Ellis, the Eleventh Circuit decided the case on grounds other than equitable tolling but did discuss the concept, explaining that equitable tolling affords a court the discretion to allow a suit after the statute of limitations has expired if the plaintiff can demonstrate that he or she has been prevented from bringing the claim because of some inequitable conduct on the defendant's part. Id. Here, however, plaintiffs have identified no plaintiff or plaintiff's ancestor who was prevented from pursuing any claim because of any conduct (inequitable or otherwise) by any defendant.

22

Plaintiffs also urge the Court to delay ruling on the tolling issue, see Pl. Opp. at 16, relying on Staggs v. Northwest Airlines, Inc., 592 F. Supp. 165, 169 (N.D. Ill. 1984). Stags does not support a delay here. Staggs involved a vigorous factual dispute concerning when and if the union worker (plaintiff) received his appeal denial from the union arbitration board. Plaintiff claimed the statute of limitations should be tolled because he had not received the denial. Id. at 168. This was a discrete factual issue dispositive of the limitations question, which could be resolved with traditional discovery of relevant evidence.

23

This issue was not briefed initially by defendants because it was not pleaded in the Amended Complaint. It first appeared in Plaintiffs' Opposition. It also appears in plaintiffs' Proposed Second Amendment. As discussed herein, equitable estoppel cannot revive these long-barred claims.

24

This is true of both the Amended Complaint and the Proposed Second Amendment.

25

To the extent plaintiffs contend that their accounting and consumer protection claims are based on present-day events, those claims necessarily cannot pertain to pre-Emancipation transactions, nor revive claims pertaining to such transactions. Moreover, plaintiffs have not alleged any post-Emancipation wrongdoing of any defendant that would give rise to present-day accounting or consumer protection claims. See infra Parts IV.B.1, 7-8.

26

Cf. Bodner v. Bangue Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000) (denying defendants' motion to dismiss in a class action brought by descendants of Jewish customers of French banking institutions to recover specific sums of money and deposited assets that were expropriated and retained by defendant banks). Bodner, which has not been followed by other courts, is distinguishable from the instant action. The plaintiffs' claims in Bodner were based on the expropriation of distinct sums of money and deposited assets that remained in the hands of the defendant banks. Id. at 121-23. Furthermore, the defendants in Bodner never raised the political question doctrine in their motion to dismiss, so the issue was never before the court. Id. at 129 n.9. At least two federal judges who have dismissed reparations claims on political question grounds have distinguished the Bodner decision on the same grounds. See Alperin v. Vatican Bank, 242 F. Supp. 2d 686, 694 (N.D. Cal. 2003); Zivkovich v. Vatican Bank, 242 F. Supp. 2d 659,667 (N.D. Cal. 2002).

27

The Hurdle plaintiffs also argue that the political question doctrine does not apply to claims based on a California statute. See Hurdle Opp. at 17-18. This is incorrect. See, e.g., Spindulys v. L.A. Olympic Org. Comm., 220 Cal. Rptr. 565 (Cal. Ct. App. 1985) (dismissing statutory claim on political question grounds); Alperin, 242 F. Supp. 2d at 694 (dismissing claims under California forced labor statute on political question grounds).

28

Plaintiffs seem to rely on cases such as Kadic v. Karadzic, Japan Whaling, and Valley Forge (Pl. Opp. at 25-26) for rhetorical effect, as these cases do not add anything substantive to the legal analysis here.

29

See, e.g., Kelberine, 363 F.2d 989; In re Nazi Era Cases, 129 F. Supp. 2d 370; Iwanowa, 67 F. Supp. 2d 424; Burger-Fischer, 65 F. Supp. 2d 248.

30

Plaintiffs also assert more broadly that defendants' reliance on World War II cases is “misleading.” Pl. Opp. at 30. They argue that their claims here arose in a “different” context, that reparations were “never part of the Reconstruction efforts,” that defendants have not shown that “this realm was constitutionally proscribed as exclusively the realm of Congress or the Executive,” and finally that those cases, unlike this one, implicated treaties with foreign governments. Id. The first point is, of course, true but irrelevant: Plaintiffs offer nothing to show why the different context refutes defendants' conclusion. The second point ignores defendants' uncontradicted showing that reparations were expressly rejected by the Political Branches during and after the Civil War. The absence of reparations from Reconstruction was an expression of deliberate decisionmaking by the Political Branches, which triggers the political question doctrine. Equally unsupported is the one-sentence assertion that it has not been established that “this realm” was “constitutionally proscribed” for the Political Branches. That is precisely what defendants have shown in their Memorandum. Finally, the mistaken and unsupported notion that the political question doctrine somehow requires the involvement of foreign treaties confuses a foreign affairs or preemption defense with a political question analysis, for which foreign treaties are not a prerequisite.

31

The Political Branches continue to address the issue of reparations to this day, as plaintiffs acknowledge. See Am. Compl. „ 195; Hurdle Opp. at 7-9 (citing current efforts by the Political Branches). The fact that thus far Congress has declined to grant reparations does not detract from the principle that any reconsideration of the Reconstruction-era decisionmaking of the Political Branches must be made by the Political Branches and not the courts.

32

And the war powers do not cease with the cessation of hostilities. See Baker, 369 U.S. at 213.

33

The political question doctrine protects from review the policy choices made more than a century ago and is not affected by current statements about historical events. Cf. Pl. Opp. at 31 (relying on a speech by President Bush in July of this year to argue that the political question doctrine does not apply).

34

Certain plaintiffs argue that the Court should follow the example of the school desegregation cases and provide a judicial remedy since the Political Branches have allegedly not done so. Hurdle Opp. at 24. However, the desegregation cases are plainly distinguishable. In this case, there is an extensive history of the Political Branches exercising their war powers to provide certain remedies to freedmen (and rejecting reparations). Plaintiffs argue that reparations were then “unthinkable.” Pl. Opp. at 28. But this argument only acknowledges the political choices that the Political Branches made. By contrast, the desegregation cases involved no such history of action by the Political Branches. Instead, those cases involved federal courts issuing prospective injunctive relief to stop ongoing unconstitutional state government actions. That is a far cry from this litigation - in which the plaintiffs are asking the Court to ignore the Political Branches' rejection of reparations and to provide a damage remedy that is clearly not required by the Constitution.

35

In fact, none of the recent cases over World War II-era events ever reached a merits determination that reparations were due. It took a massive involvement of the Political Branches, often in international political negotiations, for any reparations to be secured for the claimants in those cases.

36

Similarly, the Hurdle plaintiffs, who asserted only two claims (for an accounting, and for unfair competition under Cal. Bus. & Prof. Code § 17200), do not respond to defendants' showing that their accounting count fails to state a claim.

37

Plaintiffs note that certain northern states abolished slavery before the federal government did so, see Pl. Opp. at 33 n.51; see also id. at 35 (citing court decisions from certain northern jurisdictions); but their Amended Complaint does not plead that any defendant enslaved anyone, let alone any particular plaintiff's ancestor, in any of those states. Plaintiffs also cite to various laws abolishing the slave trade prior to the abolition of slavery itself, see id. at 33-34; but, again, the Amended Complaint does not plead that any of the defendants engaged in the slave trade after it was abolished. Plaintiffs are left with the assertion that defendants “conspired” or “aided and abetted” the participation by others, see Pl. Opp. at 34-35; but, as set forth infra in Part IV.B.9, plaintiffs have failed to plead the requisites to establish such vicarious liability. Plaintiffs then cite to modern-day condemnations of slavery, see Pl. Opp. at 36, which are universally shared today but which say nothing about the law at the time of the events alleged in the Amended Complaint.

38

“[T]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (internal quotation omitted); see also id. at 277 (”“Bradley [cited in Pl. Opp. at 37] did not alter the well-settled presumption” against retroactivity). None of the cases cited in Plaintiffs' Opposition justifies the application of present-day law to claims grounded in the pre-Emancipation practice of slavery. See Pl. Opp. at 37-38.

39

Plaintiffs' Amended Complaint fails to plead facts relevant to a choice-of-law analysis, and Plaintiffs' Opposition appears to assume the application of Illinois law. (The Opposition does not respond to the law cited in Defendants' Memorandum from the other jurisdictions connected in some way with this litigation.) A choice-of-law analysis is not required at this stage, however, because - as demonstrated in Defendants' Memorandum - plaintiffs have failed to allege the most basic requirements for a claim under the laws of any potentially relevant jurisdiction. See Barron v. Ford Motor Co., 965 F.2d 195, 197 (7th Cir. 1992).

40

Plaintiffs erroneously charge that defendants have misstated the law as to the elements of an accounting claim. See Pl. Opp. at 40. To establish an accounting claim in Illinois, the plaintiff must allege there is no adequate remedy at law and some special ground on which to base equity jurisdiction “such as fraud, the need of a discovery, the mutuality or complexity of accounts, or the existence of a fiduciary relation.” Nieberding v. Phoenix Mfg. Co., 176 N.E.2d 385, 387 (Ill. App. 2d Dist. 1961) (quotation omitted). Some Illinois cases list these elements in the conjunctive and others use the disjunctive. Whichever line of cases this Court follows, the important point, and the one plaintiffs do not mention in their Opposition, is that there can be no accounting claim without an account and a particular relationship between the parties. To the extent other potentially relevant jurisdictions even recognize a separate cause of action for accounting, they impose similar requirements. See Def. Mem. 40-41 n.32.

41

See H. King & Assocs., 295 B.R. at 271 (fiduciary relationship between corporation's officers and corporation); People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188, 190 (Ill. App. 1st Dist. 1986) (the state, which was responsible for regulating not-for-profit corporations, sued a not-for-profit corporation which had violated its charter and the estate of the corporation's manager who was the corporation's fiduciary); Mann v. Kemper Fin. Co., 618 N.E.2d 317, 327 (Ill. App. 1st Dist. 1992) (fiduciary duty between investment advisor and its investors); Hornbeek v. Hornbeek, 125 N.E.2d 535, 538 (Ill. App. 3d Dist. 1955) (mother/son relationship); Allen v. Ill. Minerals Co., 20 N.E.2d 898, 900 (Ill. App. 4th Dist. 1939) (leasor/lesee); 3Com Corp. v. Elec. Recovery Specialists, Inc., 104 F. Supp. 2d 932, 941 (N.D. Ill. 2000) (contractual); ZCM Asset Holding Co. v. Allamain, No. 01 C 6250, 2003 WL 732753, at *5 (N.D. Ill. Mar. 4, 2003) (contractual); Williams Elec. Games, Inc. v. Barry, No. 97 C 3743, 2001 WL 1104619, at *10 (N.D. Ill. Sept. 18, 2001) (employer/employee, contractual); Humana Health Plan, Inc. v. Heritage Ind. Med. Group, P.C., No. 99 C 6276, 2001 WL 8878, at *2 (N.D. Ill. Jan. 3, 2001) (contractual); Kinesoft Dev. Corp. v. Softbank Holdings Inc., No. 99 C 7428, 2000 WL 1898577, at *6 (N.D. Ill. Dec. 20, 2000) (parties to a settlement contract); Cumis Ins. Soc'y, Inc. v. Peters, 983 F. Supp. 787, 797 (N.D. Ill. 1997) (fiduciary as principal/agent, contractual); In re Midway Airlines, Inc., 221 B.R. 411, 457 (Bankr. N.D. Ill. 1998) (vendor of services suing to be paid in bankruptcy proceedings); Mayr v. Nelson Chesman & Co., 195 Ill. App. 587, 1915 WL 2527, at *6 (Ill. App. 1st Dist. 1915) (contractual); Trans Union, LLC v. Credit Research, Inc., No. 00 C 3885, 2002 WL 31993974 (N.D. Ill. Dec. 2, 2002) (contractual); Firstar Bank, N.A. v. Faul, No. 00 C 4061, 2001 WL 1636430, at *8 (N.D. Ill. Dec. 20, 2001) (contractual); In re Stevens, No. 98 B 15966, 2001 WL 776201, at *2 (Bankr. N.D. Ill. May 31, 2001) (escrow account between mortgage holder and debtor); Lorsch v. Gibraltar Mut. Cas. Co., 262 N.E.2d 313, 317 (Ill. App. 1st Dist. 1970) (contractual); Nieberding, 176 N.E.2d at 388 (employment contract); Peddinghaus v. Peddinghaus, 692 N.E.2d 1221, 1226 (Ill. App. 1st Dist. 1998) (principal/agent); Burr v. State Bank of St. Charles, 100 N.E.2d 773, 776 (Ill. App. 2d Dist. 1951) (mortgage bank/debtor); Landers v. Fronczek, 532 N.E.2d 265, 268 (Ill. App. 1st Dist. 1988) (land purchase contract); Kurtz v. Solomon, 656 N.E.2d 184 (Ill. App. 1st Dist. 1995) (fiduciary relationship involved a family); Newton v. Aitken, 633 N.E.2d 213, 218 (Ill. App. 2d Dist. 1994) (contractual); Couri v. Couri, 431 N.E.2d 711, 714 (Ill. App. 3d Dist. 1982) (fiduciary relationship), rev'd on other grounds, 447 N.E.2d 334 (Ill. 1983).

42

Plaintiffs' reliance on People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188, 190 (Ill. App. 1st Dist. 1986), as sole support, is misplaced. Hartigan is not “nearly perfectly analogous” as plaintiffs argue. Pl. Opp. at 42. Unlike this case, it did not involve strangers. The State, exercising its statutory responsibility to oversee not-for-profit corporations, sued the executor of the estate of a not-for-profit corporation's manager because the manager, a fiduciary of the corporation, had misappropriated its funds. The parties in Hartigan had a very direct relationship based on the State's statutory responsibility to oversee not-for-profit companies and the fiduciary relationship between the deceased manager and the not-for profit corporation. Moreover, in contrast to this case, Hartigan involved allegations that the funds of the corporation and its manager had been commingled.

43

Moreover, their complexity argument fails because “[i]t is a well accepted rule of law that the mere existence of numerous accounts alone will not confer equitable jurisdiction.” Lorsch, 262 N.E.2d at 317.

44

In response to defendants' argument that no private right of action exists to support their claims for “crimes against humanity,” plaintiffs spill considerable ink addressing a very different issue - whether federal courts can exercise subject matter jurisdiction over claims implicating international law. Pl. Opp. at 46-48. Defendants agree - and never argued otherwise - that federal courts can exercise subject matter jurisdiction over claims for violations of international law where Congress has specifically authorized a cause of action and other jurisdictional requirements are satisfied. But this does not answer the question of whether a cause of action exists in the first instance.

45

Many of the cases on which plaintiffs rely have interpreted the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), as providing both subject matter jurisdiction and a private cause of action. While defendants believe these cases were wrongly decided, they are irrelevant given that plaintiffs appear to have abandoned their cause of action under the ATS. Plaintiffs have failed to oppose defendants' motion to dismiss their ATS claim, This is hardly surprising, given that plaintiffs are not aliens and that such claims are barred by a 10-year statute of limitations. See Def. Mem at 53-56.

46

In support of their argument that the court should imply a cause of action in this case, plaintiffs cite Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971) (holding that federal courts can imply a cause of action for a Constitutional violation even in the absence of a specific statute authorizing such relief). See Pl. Opp. at 48. Bivens is inapplicable, because plaintiffs do not allege any Constitutional violation on the part of these private defendants. Moreover, the Supreme Court has recently “sworn off” earlier cases implying causes of actions in federal statutes, absent clear congressional intent. Alexander v. Sandoval, 532 U.S. 275, 287 (2001). Even under Bivens, “special factors counsel[] hesitation” in implying a cause of action in this case. Bivens, 403 U.S. at 396. One “special factor” is when “the Constitution explicitly confer[s] upon Congress the power” to make rules and regulations. United States v. Stanley, 483 U.S. 669, 679 (1987) (Court will not imply cause of action for members of armed forces alleging Constitutional violations because the Constitution grants Congress the power to regulate the armed forces). Indeed, contrary to plaintiffs' suggestion, Pl. Opp. at 48-49, in Stanley, the Court refused to imply a cause of action for involuntary human experimentation, even though, as Justice O'Connor noted in her dissenting opinion, such conduct violated principles of international law recognized by the Nuremberg Tribunal. Stanley, 483 U.S. at 710. No cause of action should be implied in this case given that the Constitution grants to Congress - not the courts - the power to “define and punish ... Offenses against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10.

47

Even though the Iwanowa court held that the plaintiff in theory had a cause of action under international law, the court nonetheless dismissed plaintiff's cause of action for World War II-era slave labor because, inter alia, under the political question doctrine “[t]he specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task” than the federal courts are equipped to handle. 67 F. Supp. 2d at 489.

48

Any suggestion in the Restatement that customary international law might “trump prior inconsistent statutory law” or the Constitution is “without foundation or merit.” United States v. Yousef, 327 F.3d 56, 100 n.31 (2d Cir.), cert. denied, No. 03-5976, 2003 WL 22005941 (U.S. Oct. 6, 2003).

49

Plaintiffs suggest that the Supreme Court held that slavery violated international law in The Amistad, 40 U.S. (15 Pet.) 518 (1841). See Pl. Opp. at 53. To the contrary, the Court held that if the African individuals at issue in that case were in fact “lawfully held as slaves under the laws of Spain, and recognised by those laws as property capable of being lawfully bought and sold” then they could be returned as slaves to their putative owners. 40 U.S. (15 Pet.) at 593. However, the Court held that the putative owners had failed to carry their burden of proof that the individuals in question were in fact slaves. Rather, the evidence suggested that the individuals were “free” people who had been unlawfully kidnapped, were not slaves at all, and were thus entitled to their freedom.

50

Plaintiffs wrongly suggest that Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), stands for the proposition that their claims, which are more than a century old, should be judged by “the law of today, as it has evolved.” Pl. Opp. at 54. Filartiga merely noted that international law is evolving and needs to be examined for its current meaning when applied to current events. It did not hold or suggest that past acts must or may be reexamined in light of evolving standards. The court in Filartiga applied contemporary standards of international law to contemporary acts.

51

Plaintiffs suggest, in a footnote, that their alleged emotional distress is also caused by defendants' purported refusal to provide an accounting, and by defendants' statements to the press denying liability for plaintiffs' claims. See Pl. Opp. at 56 n.88. That argument conflicts with the Amended Complaint, which bases plaintiffs' claim for IIED on the treatment of plaintiffs' ancestors. See Am. Compl. „„ 232-38. Moreover, plaintiffs provide no authority to support that the purported recent conduct in allegedly refusing an accounting and in making certain statements to the press, is “extreme and outrageous” so as to give rise to an IIED claim. See Hayes v. Ill. Power Co., 587 N.E.2d 559, 564 (Ill. App. 4th Dist. 1992) (affirming dismissal of IIED claim where conduct was not extreme and outrageous); see also Restatement (Second) of Torts § 46, comment g (“[t]he actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way”).

52

See Def. Mem. at 48-50 (citing, among other cases, Great Lakes Higher Educ. Corp. v. Austin Bank, 837 F. Supp. 892, 897 (N.D. Ill. 1993) (“Illinois courts do not recognize an action for conversion of intangible rights.”)).

53

Plaintiffs' reliance on seventeenth-century case law suggesting that slaveowners might once have had a conversion claim against anyone who deprived them of their slaves (Pl. Opp. at 57) thus has no relevance to the claims asserted in the Amended Complaint.

54

Plaintiffs cannot avoid this requirement by arguing that they may sue for the market value of converted tangible property in lieu of the return of the object itself. They must (but have failed to) plead that the item whose value they seek to recover was tangible personal property in the first instance. The value of labor or services (and thus any profits allegedly derived from that labor) simply is not tangible personal property capable of being converted. See Singh v. Xytel Corp., No. 84 C 6049, 1985 U.S. Dist. LEXIS 23368, at *12-13 (N.D. Ill. Jan. 16, 1985) (dismissing claim for conversion of profits and sales proceeds as too intangible); People v. Davis, 561 N.E.2d 165 (Ill. App. 5th Dist. 1990) (rejecting argument that employer's intangible right to employees' services was “property” within meaning of statute defining crime of theft).

55

See, e.g., Reynolds v. Reiss, 81 So. 884 (La. 1916) (railroad switch track); Mueller v. Technical Devices Corp., 84 A.2d 620 (N.J. 1951) (goods and chattels sold as part of a bankruptcy proceeding); Belott v. New York, 267 N.Y.S.2d 797 (Sup. Ct. 1966) (molding sand); Melnick v. Sable, 206 N.Y.S.2d 825 (App. Div. 2d Dep't 1960) (deposit left with defendants for the purchase of a gasoline station); Collin County Say. & Loan v. Miller Lumber Co., 653 S.W.2d 114 (Tex. App. 1983) ($100,000 deposited with defendant bank that defendant improperly used to satisfy a separate loan); Tiefel Bros. & Winn v. Maxwell, 154 S.W. 319 (Tex. Civ. App. 1913) (cattle); Ellis Oil Co. v. Adams, 109 S.W.2d 1026 (Tex. Civ. App. 1937) (oil rig).

56

The cases cited by Plaintiffs on this point are completely inapposite. For example, Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill. 1998), involved the conversion of a specific check, a tangible object, belonging to the plaintiff pursuant to a physician's lien. And in Sutherland v. O'Malley, 882 F.2d 1196 (7th Cir. 1989), the court affirmed the grant of summary judgment dismissing a claim for conversion of attorneys fees stemming from a litigation settlement because the settlement did not involve a “specific identifiable fund capable of being the subject of a conversion.” Id. at 1201 (quotation omitted).

57

Plaintiffs are incorrect when they state (see Pl. Opp. at 60 n.96) that “most of the other states” potentially relevant to this matter do not require direct dealings or some kind of substantive relationship between the parties. See, e.g., Willis v. Ventrella, 674 So. 2d 991, 995 (La. Ct. App. 1996) (plaintiff must demonstrate its loss was “directly related to defendants' gain”); Nat'l Westminster Bank plc v. Grant Prideco, Inc., 261 F. Supp. 2d 265, 275-76 (S.D.N.Y. 2003) (plaintiff must demonstrate it had a possessory interest in benefit purportedly received by defendant); Fordice Constr. Co. v. Cent. States Dredging Co., 631 F. Supp. 1536, 1539 (S.D. Miss. 1986) (“[T]o prevail on its claim for unjust enrichment, Fordice must not only prove that Defendants were unjustly enriched by the award of the contract but also that it was entitled to the award of the contract.”).

58

Plaintiffs do not argue that defendants were unjustly enriched through the mistake of a third party. See HPI, 545 N.E.2d at 679.

59

See supra Part I; see also Def. Mem. at 6-17.

60

Plaintiffs assert erroneously that the cases cited in Defendants' Memorandum “were all decided at the summary judgment stage of the litigation or later.” Pl. Opp. at 64. In fact, courts - including in cases cited by defendants - have not hesitated to resolve section 1982 claims at the motion to dismiss stage where, as here, the complaint fails to state a claim. See, e.g, New Christian Valley M.B. Church v. Bd. of Educ., 704 F. Supp. 868, 870 (N.D. Ill. 1989), cited in Def. Mem. at 52-53; Rick Nolan's Auto Body Shop, Inc. v. Allstate Ins. Co., 711 F. Supp. 475, 477 (N.D. Ill. 1989), cited in Def. Mem. at 53.

61

By relying solely on the Proposed Second Amendment to oppose dismissal of their consumer protection claims, plaintiffs disregard this Court's order deferring consideration of their motion for leave to amend until after the Court has ruled on defendants' motion to dismiss the Amended Complaint. Defendants highlight briefly herein the most glaring deficiencies in the Proposed Second Amendment, although defendants do not in this Reply attempt to present all the reasons why the Proposed Second Amendment fails to state a claim, nor do they acquiesce in the filing of the Proposed Second Amendment.

62

Plaintiffs' new, supposedly more detailed, factual allegations do not even allege any “Continuing Intentional Misrepresentations” attributable to eleven out of the eighteen defendants, yet plaintiffs allege that “defendants” as a group have made such “misrepresentations.” See Pl. Opp. at Attach. „„ 242-243; PSAC „„ 239-259.

63

Plaintiffs make the identical, general allegation that each plaintiff was harmed under each statute as follows: “The Continued Intentional Misrepresentations were a direct, foreseeable, producing, and proximate cause of monetary and other economic damages to Plaintiffs.” Pl. Opp. at Attach. „„ 250, 260, 268, 279, 288, 296; PSAC „„ 366, 376, 385, 395, 403, 411. This conclusory statement is not sufficient to state a claim. See N. Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir. 1995) (conclusory statements of law, and their unwarranted inferences, are not sufficient to defeat a motion to dismiss for failure to state claim).

64

Moreover, most, if not all, of the alleged misrepresentations were statements that pertain to the current litigation at issue and are thus subject to an absolute privilege protecting defendants from suit. See, e.g., Skopp v. First Fed. Sav., 545 N.E.2d 356, 360-61 (Ill. App. 1st Dist. 1989) (dismissing claim for slander where court found statements pertaining to litigation made outside of court subject to absolute privilege). Under plaintiffs' theory, anyone could manufacture consumer protection claims simply by filing a complaint and giving it as much publicity as possible, and then claiming that the defendant's public response caused them harm. This cannot be and is not the law.

65

Indeed, the Hurdle plaintiffs appear to have abandoned their claim for an accounting (the only other claim, in addition to their UCL claim, asserted in their complaint): Their opposition does not respond to the showing in Defendants' Memorandum that all plaintiffs have failed to state a claim for an accounting.

66

As discussed supra, to the extent plaintiffs contend that their Proposed Second Amendment properly states a claim for violation of California's UCL, defendants note that California's UCL does not apply to claims of non-California residents caused by conduct occurring outside of California's borders. Norwest Mortgage, Inc. v. Superior Court, 85 Cal. Rptr. 2d 18 (Cal. Ct. App. 1999).

67

Under the plaintiffs' theory, everyone (not just the defendants) who allegedly benefited from business transactions in pre-Civil War America would be liable for “agreeing” to an illegal conspiracy. See, e.g., Am. Compl. „ 217 (””[a]ll industries ... benefited from reduced costs of slave-produced goods”) (emphasis added). That, of course, is not the law. Indeed, even parallel action, which the Amended Complaint does not allege, would be insufficient to state a claim for conspiracy. See Def. Mem. at 64 (and cases cited therein). Mere commonality of interest simply cannot give rise to a conspiracy claim. See id.

68

Plaintiffs attempt to distinguish Ryan, along with Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977), on the grounds that the alleged misconduct in those cases had occurred more recently “than in the instant case, involving private entities whose agreement to conspire occurred more than 150 years ago,” suggesting that the longer the delay in bringing a claim, the lower the requirements for holding the defendant liable. Pl. Opp. at 69-70. Plaintiffs provide no authority for such an anomalous rule.

69

Perhaps because private citizens have no authority to bring suits claiming violations of the criminal law, see Def. Mem. at 65 (and cases cited therein), plaintiffs apparently are abandoning the attempt in their Amended Complaint to allege the aiding and abetting of crimes. See Am. Compl. „ 206.

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2003 WL 24256581 (N.D.Ill.) (Trial Motion, Memorandum and Affidavit)

United States District Court, N.D. Illinois.

In re African American Descendants’ Slave Litigation.

MDL-1491.

No. 02 CV 7764 (CRN).

September 4, 2003.

Defendants' Opposition to Plaintiffs' Motion for Enlargement of Time to Respond to Defendants' Joint Motion to Dismiss and to File a Second Amended Complaint

Judge Charles R. Norgle, Sr.

Defendants, by and through their counsel, respectfully oppose the “Motion for an Enlargement of Time to File Response to Defendants' Joint Motion to Dismiss First Consolidated and Amended Complaint Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure,” which Plaintiffs predictably filed just as their time to oppose Defendants' Joint Motion to Dismiss was about to expire. In support of their Opposition, Defendants state as follows:

1. These cases began nearly 1 1/2 years ago, and since that time Plaintiffs have made every effort to thwart having a court address the fatal legal flaws in their complaint. The present motion is simply another attempt by Plaintiffs to avoid having their claims tested under applicable law. Plaintiffs would not be prejudiced by proceeding with the briefing schedule set by the Court, and Defendants are entitled to adjudication of whether the claims brought against them are legally sufficient. There is no basis for yet another delay of these proceedings, and Plaintiffs' Motion should be denied.

BACKGROUND

2. On March 26, 2002, Plaintiffs filed the first three of these suits, with attendant publicity, in the Eastern District of New York (“E.D.N.Y.”). Plaintiffs waited 3-1/2 months, until mid-July 2002 (just before expiration of the 120-day deadline for service under the federal rules), to serve the three entities named as defendants in each of those cases. Defendants in the E.D.N.Y. cases promptly prepared motions to dismiss and, because the local rules required a pre-motion conference before the motions could be filed, requested such a conference.

3. Meanwhile, in a case Plaintiffs had filed in the District of New Jersey (“D.N.J.”), defendant Norfolk Southern Railway Company (“Norfolk Southern”) filed a motion to dismiss and an answer on July 26, 2002, before having been served with the complaint. Plaintiffs then moved the Judicial Panel on Multidistrict Litigation (“JPML”) for consolidation of the virtually identical complaints that they were filing in various jurisdictions.

4. At the pre-motion conference in the E.D.N.Y. cases on July 31, 2002, Plaintiffs announced that they were filing similar complaints in other courts around the country and seeking consolidation before the Judicial Panel on Multidistrict Litigation (“JPML”). On that basis, Plaintiffs were able to delay the filing of and briefing on motions to dismiss the original E.D.N.Y. complaints. On the same basis, they were able to obtain a stay of any briefing on Norfolk Southern's motion to dismiss in the D.N.J. case.

5. Plaintiffs used the same approach in their other cases: They waited months to serve the other complaints (never properly serving some defendants). Then, having manufactured the need for consolidation by filing virtually identical complaints in several courts around the country, they used the consolidation process to delay briefing on any motion to dismiss.

6. On October 25, 2002, the JPML ordered consolidation of Plaintiffs' cases and transferred the cases to this Court. After allowing time for transfer, this Court held an organizing conference on February 26, 2003. At the conference, Plaintiffs advised the Court that they intended to file an amended complaint to govern all the actions. Although their motion to consolidate had been granted five months earlier - during which time Plaintiffs could have prepared an amended complaint - Plaintiffs said they needed more than 90 additional days to file the amended complaint.

7. Plaintiffs requested and received over 90 days - until June 3, 2003 - to file their amended complaint. Nevertheless, at the next status conference on May 7, 2003, Plaintiffs requested yet another extension of time. The Court granted Plaintiffs an additional 7 days, until June 10, 2003, to file their amended complaint.

8. On June 6, 2003 - four days before their amended complaint was due - Plaintiffs filed an emergency motion for yet another extension of time. The Court granted Plaintiffs' motion, giving Plaintiffs an additional 7 days to file their amended complaint. Plaintiffs finally filed their First Consolidated and Amended Complaint (“First Amended Complaint”) on June 17, 2003.

9. Defendants timely filed their Joint Motion to Dismiss thirty days later, on July 18, 2003. Pursuant to the briefing schedule set by the Court, Plaintiffs' Opposition is due on September 9, 2003, and Defendants' Reply is due on October 10, 2003.

10. On Friday, August 29, 2003 - six business days before the due date for their Opposition (and six weeks after they were served with Defendants' Motion) - Plaintiffs filed the present motion, seeking a four-month extension of time to oppose Defendants' Joint Motion to Dismiss “or file a Second Amended Complaint.” (Pls.' Mot. at 3-4.)

11. Plaintiffs attempt to justify their request for an extension on the following grounds: first, because they want to “open estates for their deceased ancestors” (Pl.'s Mot. „ 6); second, because they “wish to amend their complaint to address Defendants' concern on Consumer Fraud claim[s], Stat[utes] of Limitations and allegations relating to individual harms suffered by Plaintiffs and other alleged defects” in the Complaint (id. „ 8); and third, because they wish to effect service on certain Defendants (id. at „ 10). None of these vague justifications provides any reason to delay the briefing schedule on Defendants' Joint Motion to Dismiss.

ARGUMENT

12. Plaintiffs had ample time to prepare their amended complaint and have had ample time to respond to Defendants' Joint Motion to Dismiss. No further extension is warranted, and Plaintiffs' Motion should be denied.

Plaintiffs' Motion Fails To Comply With The Requirements For Seeking Leave To Amend Their Complaint.

13. Though styled as a motion for enlargement of time, Plaintiffs offer no reason why they need additional time to complete their opposition to Defendants' Joint Motion to Dismiss. Instead, Plaintiffs' Motion is, in effect, a request for leave to possibly file a Second Amended Complaint some four months from now. Plaintiffs, however, had the burden of pleading cognizable claims when they filed these actions in the first place, and they had the opportunity to cure any defects when they prepared their First Amended Complaint. There is no justification to allow Plaintiffs, in the middle of the Court-ordered briefing schedule, to explore whether they can further amend their complaint. See Hindo v. University of Health Sci./The Chi. Med. Sch., 65 F.3d 608, 614 (7th Cir. 1995) (“Seeking to amend one's complaint when it appears that the current one is a sure loser is not unusual; nor is the denial of leave to file that amended complaint.”).

14. In any event, Plaintiffs have not even attempted to comply with, let alone satisfy, the requirements associated with seeking leave to file another amended complaint. See Moore v. State of Ind., 999 F.2d 1125, 1131 (7th Cir. 1993) (proper motion for leave to amend complaint must set forth contents of the proposed amendments); Twohy v. First Nat. Bank of Chicago, 758 F.2d 1185, 1197 (7th Cir 1985) (failure to submit draft amended complaint with motion to amend indicated a lack of due diligence and good faith); Chicago District Council of Carpenters Pension Fund v. G & A Installations, Inc., No. 95C6524, 1996 WL 288629, at *2 (N.D. Ill. May 30, 1996) (Kocoras, J.) (recognizing that “vague factual assertions” are insufficient to warrant granting leave to file an amended complaint) (Ex. A).

Plaintiffs Fail To Show That Future Amendment Could Cure The Core Legal Deficiencies In The First Amended Complaint

15. Even if the Court were to treat Plaintiffs' Motion for an extension of time as a request (albeit an improper one) for leave to file a Second Amended Complaint in January of 2004, the Motion still should be denied because Plaintiffs cannot cure the defects in the First Amended Complaint through amendment. Plaintiffs' Motion only refers to issues peripheral to Defendants' Joint Motion to Dismiss and fails to meaningfully address the core legal deficiencies Defendants identified in Plaintiffs' complaint: non-justiciability, standing, statutes of limitations, and failure to state a claim.

16. First, nothing in Plaintiffs' Motion explains how they would overcome the non-justiciability of their claims under the political question doctrine, which commits the reparations issue to the executive and legislative branches of government. (See Mem. In Supp. Of Defs.' Jt. Mot. to Dismiss at 27-37.) The political question doctrine bars all of Plaintiffs' claims, and amendment of the complaint cannot cure this threshold defect.

17. Second, nothing in Plaintiffs' Motion explains how they would overcome the statutes of limitation bar to their claims. Although Plaintiffs mention that in the future they wish to address the statutes of limitation issue, they fail to specify how an extension of time or eventual amendment of the complaint would allow them to do so. Plaintiffs have been aware of this issue at least since the filing of Norfolk Southern's Motion to Dismiss in the District of New Jersey case - over one year ago - and have had ample time to explore any facts relevant to their contention that their claims are not time barred. Their Motion does not specify any facts (or even theories) to suggest that additional time or amendment of the complaint will allow them to overcome the applicable statutes of limitation.

18. Third, nothing in Plaintiffs' Motion explains how they would show standing to pursue the claims in the First Amended Complaint. In particular, there is no merit to Plaintiffs' newly minted theory that they could overcome their third-party standing deficiencies by “open[ing] estates for their deceased ancestor [s].” (See Pls.' Mot. „ 7.) As a threshold matter, Plaintiffs offer no explanation for why they waited until now to raise this issue. More fundamentally, Plaintiffs' request for time to “open estates” ignores that there are multiple defects in their standing to sue on behalf of their ancestors. Specifically, even if Plaintiffs could open estates for their ancestors and be appointed as representatives of these estates, two dubious propositions, Plaintiffs still would fail to meet the following separate and independent prerequisites for third-party standing in federal court: (1) the First Amended Complaint does not identify any conduct by any Defendant that is fairly traceable to any injury suffered by any one of Plaintiffs' ancestors; (2) Plaintiffs cannot demonstrate that they have suffered any injury-in-fact; and (3) there are no allegations that these Plaintiffs' ancestors sought to and were prevented from ever asserting their own rights. (See Mem. In Supp. Of Defs.' Jt. Mot. to Dismiss at 12-16.) Thus, lack of standing is a yet another fundamental deficiency in all of Plaintiffs' claims, and that deficiency cannot be overcome by the “cure” Plaintiffs purport to need time to effect.

19. In addition, even if Plaintiffs' claims were not already barred through lack of standing, untimeliness, and non-justiciability, Plaintiffs have failed to state a claim on each and every count in the First Amended Complaint. (See Mem. In Supp. of Defs.' Jt. Mot. to Dismiss at Pt. IV.) Plaintiffs' Motion is silent as to how they could “cure” this problem through amendment.

20. When faced with circumstances strikingly similar to those presented here, this Court previously has recognized that leave to amend should be denied. Specifically, in Collier v. Cicero, this Court denied leave to amend where, as here, plaintiff filed a complaint, defendants moved to dismiss the complaint, plaintiff had not yet responded to defendants' motions, and the proposed amended complaint would not cure the deficiencies identified by the motions to dismiss. Collier v. Cicero, No. 98 C 8071, 1999 WL 1046414, at *1 (N.D. Ill. Nov. 10, 1999) (Norgle, J.) (Ex. B). Because leave to amend would have been futile, the Court ruled on the defendants' motions. Id. See also Perkins v. Silverstein, 939 F.2d 463, 472 (7th Cir.1991) (“a district court may deny leave to amend if the proposed amendment fails to cure the deficiencies in the original pleading, or could not survive a second motion to dismiss”). Similarly, there is no justification here for a four-month postponement in briefing Defendants' Joint Motion to Dismiss to allow Plaintiffs to explore possible amendments to the First Amended Complaint.

CONCLUSION

For the above reasons, Defendants respectfully request that Plaintiffs' Motion for an Enlargement of Time to File Response to Defendants' Joint Motion to Dismiss First Consolidated and Amended Complaint Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure be denied, and that Plaintiffs remain ordered to file and serve their Opposition to Defendants' Joint Motion to Dismiss on September 9, 2003.

Footnotes

1

Defendants include: Aetna Inc.; Brown Brothers Harriman & Co.; Brown & Williamson Tobacco Corporation; Canadian National Railway Company; CSX Corporation; FleetBoston Financial Corporation; Lehman Brothers Inc.; New York Life Insurance Company; Norfolk Southern Railway Company; R.J. Reynolds Tobacco Company; Union Pacific Corporation and Union Pacific Railroad Co. All the aforementioned defendants are involved in one or more of the underlying actions. This filing is not a consent to jurisdiction by any defendant in any of the underlying cases or in this MDL action.

2

That motion to dismiss - like Defendants' Joint Motion in this MDL proceeding - remains pending and unanswered.

3

Plaintiffs provide absolutely no authority to support their contention that they can open the estates of ancestors who have been deceased for many decades at least (and perhaps for over a century) and become appointed as legal representatives.

4

Plaintiffs' contention that they need an extension to serve Defendants Canadian National and Loews Corporation is a red herring. There is no reason to delay briefing and adjudication of the substantive issues raised in Defendants' Joint Motion to Dismiss simply because Plaintiffs failed properly to serve two Defendants within the time allowed by Federal Rule 4(m). Moreover, Defendants Canadian National and Loews Corporation demonstrated not merely lack of proper service, but also lack of personal jurisdiction - a threshold defect that any additional time for service will not cure.

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

United States District Court, N.D. Illinois, Eastern Division.

In re: African American Descendants’ Slave Litigation. MDL-1491.

No. 02-7764 (CRN).

July 18, 2003.

This document relates to all cases.

Memorandum in Support of Defendants' Joint Motion to Dismiss

TABLE OF CONTENTS

INTRODUCTION
ARGUMENT
I. PLAINTIFFS LACK STANDING TO MAINTAIN THIS ACTION
A. The Plaintiffs Who Allege They Are Descendants of Enslaved African-Americans Fail To Satisfy the Requirements of Article III
1. The Amended Complaint fails to demonstrate any “distinct and palpable” injury to these plaintiffs
2. The Amended Complaint fails to allege any injury “fairly traceable” to these defendants
B. Prudential Limitations Also Prevent Adjudication of the Claims of the Alleged Descendants of Enslaved African-Americans
C. Plaintiffs Lack Third-Party Standing To Sue for Injuries to Their Ancestors
D. The New Plaintiffs Who Allege They Were Formerly Enslaved Do Not Have Standing To Sue These Defendants
II. THE STATUTES OF LIMITATIONS BAR PLAINTIFFS' CLAIMS
A. All of Plaintiffs' Claims Are Barred by the Statutes of Limitations
B. Equitable Tolling, the Discovery Rule, and the Continuing Violation Doctrine Do Not Revive Plaintiffs' Claims
1. The equitable tolling doctrine does not revive plaintiffs' claims
2. The discovery rule does not revive plaintiffs' claims
3. The continuing violation doctrine does not revive plaintiffs' claims
III. PLAINTIFFS' CLAIMS ARE BARRED BY THE POLITICAL QUESTION DOCTRINE
A. Plaintiffs' Claims Are Barred Because There Is a Demonstrable Constitutional and Historical Commitment of the Reparations Issue to the Executive and Legislative Branches
the Confederacy
2. Later wartime efforts to address Freedmen refugee problems
3. Post-war amnesties to secure a lasting peace
4. The later enactment of civil rights legislation in lieu of reparations
5.Later reparations efforts by the political branches
B. Plaintiffs' Claims Cannot Be Resolved Pursuant to Any Judicially Discoverable and Manageable Standards
C. The Adjudication of Plaintiffs' Claims Would Also Necessarily Implicate the Remaining Baker Factors
IV. PLAINTIFFS' ALLEGATIONS DO NOT SUPPORT ANY CAUSE OF ACTION
A. Plaintiffs Cannot Use Present-Day Law To Impose Retroactive Liability for Alleged Conduct Dating Back Centuries
B. Plaintiffs Fail To State a Claim Even Under Present-Day Law
1. Plaintiffs' accounting claim fails as a matter of law
2. Plaintiffs' crime against humanity claim fails as a matter of law
a. No private right of action under international law
b. Plaintiffs' international law claim fails under the Supremacy Clause
c. Separately, no claim under international law can be stated
3. Plaintiffs' piracy claim fails as a matter of law
4. Plaintiffs' claim for intentional infliction of emotional distress fails as a matter of law
5. Plaintiffs' conversion claim fails as a matter of law
6. Plaintiffs' unjust enrichment claim fails as a matter of law
7. Plaintiffs' claim under 42 U.S.C. § 1982 fails as a matter of law
8. Plaintiffs' claim under the Alien Tort Statute fails as a matter of law
9. Plaintiffs have not pled a claim under any of the state statutes they invoke
a. The statutes cannot be applied retroactively
b. No violation of any of the statutes is pleaded
10. The California plaintiffs' unfair competition (Section 17200) claim fails as a matter of law
11. Plaintiffs' conspiracy claim and other third-party liability allegations fail as a matter of law
a. The conspiracy count fails to state a claim
b. Plaintiffs' other allegations of third-party liability fail to create such liability
CONCLUSION
TABLE OF AUTHORITIES (Omitted)

This action is the latest in a long line of cases that have sought reparations for slavery. Like all of those earlier cases, this action fails on multiple legal grounds. Defendants Aetna Inc., Brown Brothers Harriman & Company, Brown & Williamson Tobacco Corporation, Canadian National Railway Company, CSX Corporation, FleetBoston Financial Corporation, J.P. Morgan Chase & Co., Lehman Brothers Inc., Liggett Group, Inc., New York Life Insurance Company, Norfolk Southern Railway Company, R.J. Reynolds Tobacco Company, The Society of Lloyd's, Union Pacific Railroad Company, and Union Pacific Corporation (collectively, “defendants”) respectfully submit this memorandum in support of their joint motion to dismiss, with prejudice, the claims asserted in plaintiffs' Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

INTRODUCTION

The named plaintiffs seek reparations on behalf of a class consisting of all “descendants of formerly enslaved Africans” and a recently added sub-class of all living “formerly enslaved African-Americans.” Am. Compl. „ 60. Defendants are 18 present-day companies whose predecessors are alleged to have “illicitly profit[ed] from slave labor” between 1619 and 1865 and post-emancipation slavery through the 1930's. Id. „„ 53, 54. Plaintiffs seek to hold defendants responsible for the entire sweep of slavery and its consequences. Without alleging any connection between themselves or their ancestors and these defendants, they seek to hold defendants jointly and severally liable for “the appointment of an independent historic commission,” “an accounting,” “the imposition of a constructive trust,” restitution of the value of the slave labor performed by the ancestors of the putative class, disgorgement of profits, compensatory and punitive damages, and other forms of equitable and injunctive relief. Id. „„ 55, Prayer. It is beyond debate that the practice of slavery marked a deplorable period in our nation's history, but it is also beyond debate that grievances arising from that period cannot be heard in 2003 in a court of law.

For the past century, descendants of slaves have repeatedly attempted to obtain reparations from the United States government through litigation. Courts have consistently dismissed these lawsuits because of insurmountable problems including lack of standing, untimeliness, nonjusticiability, sovereign immunity, and/or failure to state a claim. See, e.g., Cato v. United States, 70 F.3d 1103 (9th Cir. 1995) (dismissing slavery reparations claims based on plaintiffs' lack of standing, the political question doctrine, and sovereign immunity); Johnson v. McAdoo, 45 App. D.C. 440, 441 (1916) (affirming on sovereign immunity grounds dismissal of claims by three former slaves, on behalf of themselves and their ancestors, seeking $68 million from the federal government for uncompensated work associated with cotton production between 1859 and 1868), aff'd mem.,244 U.S. 643 (1917).

Note: Page 3 missing in original document

consistently dismissed them on standing, justiciability, and/or untimeliness grounds. See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999) (dismissing forced labor reparations claims against private company on grounds of political question, comity and statute of limitations); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999) (dismissing slave labor claims against private defendant on political question grounds).

Consistent with this long line of precedent, plaintiffs' claims against defendants must be dismissed on at least four independent grounds. The recent addition of nine new plaintiffs who contend, without alleging any connection to any defendant, that they were forced by unnamed persons to work without pay during the early decades of the last century, does nothing to save plaintiffs' claims from dismissal on grounds that include:

First, plaintiffs' claims fall far short of both constitutional and prudential standing requirements. Without alleging any connection between these plaintiffs and these defendants, plaintiffs seek reparations for events between 1619 and 1865 involving not plaintiffs but their ancestors, and for post-emancipation slavery through the 1930's. Plaintiffs do not allege that they personally have suffered any constitutionally cognizable injury that is fairly traceable to defendants. Rather, they seek - in direct contravention of the law of standing - to assert a generalized, class-based grievance. See infra § I.

Second, each of plaintiffs' causes of action is time-barred, and has been for many decades or even centuries. Plaintiffs' cursory tolling allegations do not revive their claims. See infra § II.

Third, plaintiffs' claims are nonjusticiable. Courts have declined to address the issue of reparations for former slaves through private litigation. Rather, during and immediately after the Civil War, and up to the present, the subject has been handled exclusively by Congress and the President. Given this history, there is no question that the issue of reparations for slavery is constitutionally committed to the political branches of the federal government. Moreover, because the Amended Complaint's allegations are so sweeping, the connections between the parties so tenuous, and the events in question so remote, there are no judicially discoverable and manageable standards for the Court to apply in addressing these claims. See infra § III.

Fourth, plaintiffs' Amended Complaint fails to state any cognizable claim. Plaintiffs attempt to convert an historical wrong into a present-day dispute through the use of inapplicable legal labels like “unfair competition.” That attempt is unavailing. Plaintiffs cannot state a claim under present-day legal doctrines, let alone under the law in effect at the time of the alleged conduct. See infra § IV.

The infirmities in plaintiffs' Amended Complaint cannot be remedied by amendment. Accordingly, as set forth below, the Court should dismiss plaintiffs' claims with prejudice.

ARGUMENT

I. PLAINTIFFS LACK STANDING TO MAINTAIN THIS ACTION.

Federal courts must determine standing at the outset of every case, see Wolf, 95 F.3d at 544, and a plaintiff bears the burden to allege facts “demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Renne v. Geary, 501 U.S. 312, 316 (1991) (quotation omitted). The Amended Complaint does not come close to meeting that burden. While it focuses on the issue plaintiffs seek to litigate - the practice of slavery - the doctrine of standing requires focus “on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99 (1968) (emphasis added).

This focus “involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.” Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (quotation omitted). Specifically, Article III requires a plaintiff to establish “a personal injury” that is “fairly traceable to the defendant's allegedly unlawful conduct” and that is “likely to be redressed by the requested relief.” Baaske v. City of Rolling Meadows, 191 F. Supp. 2d 1009, 1014 (N.D. Ill. 2002) (citing Allen v. Wright, 468 U.S. 737, 751 (1984); Johnson v. Allsteel, Inc., 259 F.3d 885, 887 (7th Cir. 2001)).

Beyond these constitutional limitations, “courts also impose “prudential limitations' on the class of persons who may invoke federal jurisdiction.” Massey, 196 F.3d at 739. These prudential limitations prompt courts to “refrain[] from adjudicating “abstract questions of wide public significance' which amount to “generalized grievances,' pervasively shared and most appropriately addressed in the representative branches.” Locals 666 & 780 v. United States Dep't of Labor, 760 F.2d 141, 143-44 (7th Cir. 1985) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472 (1982)). Prudential limitations also require that a litigant “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing United States v. Raines, 362 U.S. 17, 22-23 (1960)).

The Amended Complaint falls far short of satisfying these standing requirements. As with all of the named plaintiffs in the original complaints, ten of the named plaintiffs in the Amended Complaint allege that they are “descendants of enslaved African-Americans,” Am. Compl. „ 1, and they seek - just as they did by their separate actions - reparations for slavery as it existed between 1619 and 1865. As discussed below, these plaintiffs cannot meet the constitutional and prudential standing requirements necessary to pursue this historical wrong. The Amended Complaint now adds, for the first time, nine new plaintiffs (eight unidentified) who allege that they were held against their will and forced to work without compensation, after Emancipation, in the early decades of the last century. See Am. Compl. ml 75, 89, 91. But the addition of these new plaintiffs does nothing to save the Amended Complaint from dismissal because they, too, lack standing to sue these defendants. The Amended Complaint should be dismissed, just as numerous other complaints for slavery reparations have been dismissed. See, e.g., Cato, 70 F.3d at 1109-10;see also supra pp. 2-3 n.2 (citing numerous cases).

A. The Plaintiffs Who Allege They Are Descendants of Enslaved African-Americans Fail To Satisfy the Requirements of Article III.

The plaintiffs in this action who allege that they are the descendants of African-Americans who were enslaved in this country before 1865 cannot establish the constitutional standing requirements necessary to sue these defendants.

1. The Amended Complaint fails to demonstrate any “distinct and palpable” injury to these plaintiffs.

The most basic requirement for access to the courts, often described as “injury in fact,” requires a plaintiff, at an “irreducible minimum,” to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Valley Forge, 454 U.S. at 472 (quotation omitted) (emphasis added); accord Massey, 196 F.3d at 739-40;Baaske, 191 F. Supp. 2d at 1014. A plaintiff cannot circumvent this requirement through general allegations of injury to a class to which plaintiff claims to belong. See Warth, 422 U.S. at 502. To establish standing, the plaintiff himself or herself must be among the injured. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). And the plaintiff's injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Plotkin v. Ryan, 239 F.3d 882, 885-86 (7th Cir. 2001) (quotation omitted).

The Amended Complaint does not begin to satisfy this basic requirement. It recites the suffering of slaves generally in America during the period between 1619 and 1865 when slavery was permitted in some places, see Am. Compl. „„ 9-26, and it alleges that plaintiffs' ancestors were enslaved. Yet a plaintiff cannot establish a “concrete and particularized” personal injury by merely identifying a tort victim and alleging some familial relationship. See, e.g., Simonsen v. Bd. of Educ., No. 01 C 3081, 2001 WL 1250103, at *7 (N.D. Ill. Oct. 17, 2001) (dismissing claims brought by wife and children of teacher suspended without pay) (“That they may be indirectly suffering the consequences of his being suspended does not create standing ....”); Patterson, 1995 WL 714372, at *2 n.4 (slave descendant “lacks standing to assert constitutional deprivations suffered by his ancestors”); Langley, 1995 WL 714378, at *2 n.3 (same); cf. infra § I.C.

Nor do the plaintiffs' sweeping, general allegations that African-Americans today are subjected to the vestiges of slavery, and lag behind other citizens in terms of “literacy, life expectancy, income and education,” Am. Compl. „ 50, come close to alleging the required “injury-in-fact.” Read in the light most favorable to plaintiffs, at best the Amended Complaint alleges that some putative class members have been exposed to general social and economic injustices. As a matter of law, such exposure does not constitute the “concrete and particularized” individual injury required to establish standing. See, e.g., Plotkin, 239 F.3d at 886 (“[Plaintiff's injury] is too speculative and generalized to constitute an injury-in-fact for standing purposes.”).

For example, in Cato, 70 F.3d 1103, the Ninth Circuit held that the plaintiff, who sued for slavery reparations and complained of “disparities in employment, income, and education,” lacked standing “to litigate claims based on the stigmatizing injury to all African Americans caused by racial discrimination.” Id. at 1109-10. “Without a concrete, personal injury that is not abstract and that is fairly traceable to the government conduct that she challenges as unconstitutional, [plaintiff] lacks standing.” Id. at 1109. Similarly, the United States District Court for the Northern District of California dismissed complaints seeking reparations for injuries that included “miseducation [and] lack of knowledge of self, culture, social facets, [and] indigenous religion.” Miller, 1994 WL 224815, at *1. In dismissing the complaints, the court emphasized the absence of a particularized injury: “These claimed injuries are not of the character to create standing, as they do not represent the type of sufficiently particularized injury that courts have deemed constitutionally necessary in order to find the existence of a case or controversy.” Id. at *1; accord Mahone, 1994 WL 225095, at *1 (same).

Like these prior plaintiffs who sought reparations for slavery, the named plaintiffs in this case who are the alleged descendants of enslaved African-Americans cannot satisfy the first and most basic requirement of constitutional standing - a concrete and particularized personal injury.

2. The Amended Complaint fails to allege any injury “fairly traceable” to these defendants.

In addition, plaintiffs fail to allege a sufficient connection between any “injury” and these defendants. To establish standing, a plaintiff must demonstrate “that the injury can be fairly traced to the challenged action of the defendant and not from the independent action of some third party not before the court.” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) (citing Lujan, 504 U.S. at 560-61). Courts cannot confer standing where the causal link is tenuous, and where speculativeie inferences are necessary to connect the[] injury to the challenged actions of [defendants].” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976); see also Linda R.S. v. Richard D., 410 U.S. 614, 618-19 (1973); Shakman v. Dunne, 829 F.2d 1387, 1396-97 (7th Cir. 1987); Plotkin v. Ryan, No. 99 C 53, 1999 WL 965718, at *4 (N.D. Ill. Sept. 29, 1999), aff'd,239 F.3d 882 (7th Cir. 2001). Thus, for example, even though deprivation of the opportunity for an integrated education was “one of the most serious injuries recognized in our legal system,” that allegation of injury did not establish standing when the theory of causation by the defendants' acts was “attenuated at best.” Allen, 468 U.S. at 756-57.

The Amended Complaint seeks to obtain relief from 18 present-day companies for the “vestiges” of events that occurred beginning in 1619 and extending to the abolition of slavery in 1865. See Am. Compl. „„ 46, 49-52. Yet it does not identify any conduct committed at any time by any named defendant that is “fairly traceable” to any injury suffered by any plaintiff. Indeed, the Amended Complaint does not aver any contact between any one of these plaintiffs (none of whom were living in the period 1619-1865) and any one of these defendants (many of which did not even exist in that time period). Nor does the Amended Complaint allege even a connection between any defendant and any of plaintiffs' ancestors. Even at its most general level, in fact, the Amended Complaint does not aver a causal connection between the actions of these defendants and the general social and economic inequities allegedly suffered by some members of the putative class.

Thus, plaintiffs here cannot satisfy the causal connection requirement of standing, just as prior plaintiffs seeking slavery reparations failed to meet this requirement. See, e.g., Cato, 70 F.3d at 1110;Patterson, 1995 WL 714372, at *2;Langley, 1995 WL 714378, at *2;Bey, 1996 WL 413684, at *1;Hamilton, 1994 WL 412433, at *1;Nelson, 1994 WL 398513, at *1;Farr, 1994 WL 285037, at *1. Put simply, “ “[t]he remote possibility, unsubstantiated by allegations of fact, that the plaintiffs' situation might have been better had the defendants acted otherwise, and might improve were the court to afford relief' is simply insufficient” to establish standing. Shakman, 829 F.2d at 1394 (quoting Warth, 422 U.S. at 507) (brackets and citation omitted).

B. Prudential Limitations Also Prevent Adjudication of the Claims of the Alleged Descendants of Enslaved African-Americans.

In addition to its constitutional standing deficiencies, the Amended Complaint fails to meet prudential standing requirements. The federal courts are not “publicly funded forums for the ventilation of public grievances.” Valley Forge, 454 U.S. at 473. Thus, federal courts refrain from “adjudicating “abstract questions of wide public significance' which amount to “generalized grievances,' pervasively shared and most appropriately addressed in the representative branches.” Id. at 475 (quoting Warth, 422 U.S. at 499-500).

Yet plaintiffs are trying to use the federal courts for precisely that purpose: to “ventilate” a “generalized grievance” over an entire chapter in our nation's history. Their Amended Complaint, which starkly illustrates the reasons for prudential standing limitations, mirrors multiple prior complaints seeking reparations for identical grievances. Those prior attempts to ventilate these same grievances through the courts repeatedly have been dismissed on standing grounds. For example, in Miller, 1994 WL 224815, at *1, after concluding that the plaintiffs failed to demonstrate an injury in fact, the district court found that prudential standing limitations also required dismissal: “Here, plaintiffs' grievances are claimed to arise from the fact of their inclusion in a racial group, and are therefore insufficient to overcome the problem that they constitute a “generalized grievance' which does not give them standing to bring this lawsuit.”Id. at *1; see Mahone, 1994 WL 225095, at *1 (same); accord Bell, 2001 WL 1041792, at *2 (same); Langley, 1995 WL 714378, at *2 (same); Patterson, 1995 WL 714372, at *2 (same). Similarly, the Ninth Circuit agreed that a slavery reparations plaintiff lacked standing to pursue “a generalized, class-based grievance.” Cato, 70 F.3d at 1109;id. at 1109-10 (“Neither does [this plaintiff] have standing to litigate claims based on the stigmatizing injury to all African Americans caused by racial discrimination.”). The legislature, not the judiciary, remains the appropriate forum for plaintiffs' grievances. See id. at 1105; cf. infra § III.

C. Plaintiffs Lack Third-Party Standing To Sue for Injuries to Their Ancestors.

To the extent that plaintiffs seek redress for the injuries suffered by their ancestors, constitutional and prudential standing limitations - as well as state law prohibitions - foreclose those claims as well.

A litigant in federal court “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499;see also Massey, 196 F.3d at 740 (federal courts “hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of rights of third persons not parties to the litigation”) (quotation omitted). Before a litigant is permitted to seek vindication of the rights of some third party, the plaintiff must establish not only (1) that the third party would have standing to sue, but also (2) that the plaintiff himself or herself (a) has suffered an injury-in-fact, (b) has a close relation to the third party, and that (c) there exists some hindrance to the third party's ability to protect his or her own interests. See Massey, 196 F.3d at 739-41. Here, plaintiffs have failed to establish any of these requirements.

First, although plaintiffs apparently seek to stand in the shoes of their ancestors, the Amended Complaint does not identify any conduct committed by any named defendant that is “fairly traceable” to any injury suffered by any one of those ancestors. Thus, the Amended Complaint fails to establish that plaintiffs' ancestors would themselves have had standing to sue these defendants. Yet, inherent in the law of third-party standing is the requirement that the third party on whose behalf the suit is being brought actually possess a valid legal claim against the defendant. Cf. Warth, 422 U.S. at 516 (an association can have standing to sue as the representative of its members “only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit”). Where, as here, the complaint fails to show that the third party would have standing to sue, a fortiori there can be no derivative action to assert that third party's rights - there are simply no rights to enforce. On this ground alone, plaintiffs' attempt to assert the claims of their ancestors must fail.

Second, prudential standing limitations (and state law prohibitions) preclude plaintiffs from litigating the claims of their now-deceased ancestors.

(a)As discussed supra, plaintiffs cannot demonstrate that they have suffered an injury-in-fact. The absence of a cognizable injury to these plaintiffs precludes them from asserting the rights of their ancestors. See Massey, 196 F.3d at 739-40 (physician lacked standing to assert third-party claims on behalf of [alleged victims] in part because he lacked a constitutionally sufficient injury-in-fact).

(b)Moreover, plaintiffs lack a legally sufficient relation with the ancestors on whose behalf they purport to sue. No plaintiff alleges that he or she has been appointed executor, administrator, or any other type of duly-appointed representative of the estates of any of their ancestors. Only such a representative has standing to assert causes of action belonging to a decedent. The “well-established rule ... is that the executor or administrator of a decedent's estate has standing to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such standing.” McGill v. Lazzaro, 416 N.E.2d 29, 31 (111. App. Ct. 1980) (affirming dismissal of action brought by decedent's children for lack of standing). Thus, for example, the Southern District of Florida recently dismissed a claim seeking compensation for property seized during World War II on this very ground, among others. See Ungaro-Benages, No. 01-CV-2547, mem. op. at 32-33 (decedent's heirs lacked capacity to sue for seized property; such claims could be pursued only by the personal representative of the estate).

(c)In addition, although the Amended Complaint asserts generally that there were barriers preventing newly emancipated African-Americans from asserting their legal rights, see Am. Compl. „„ 192-196, there are no allegations that these plaintiffs' ancestors - on whose behalf these plaintiffs purport to sue - sought to and were prevented from ever asserting their rights following the abolition of slavery. See, e.g., Massey, 196 F.3d at 741 (“[t]here is no allegation ... that the [alleged victims] have any obstacle preventing them from properly asserting their own rights”); cf. Johnson, 45 App. D.C. at 441 (reparations claims by three former slaves in 1916).

In light of these same incurable deficiencies, other plaintiffs similarly seeking reparations for slavery have been denied third-party standing. See, e.g., Patterson, 1995 WL 714372, at *2 n.4 (alleged slave descendant “lacks standing to assert constitutional deprivations suffered by his ancestors”); Langley, 1995 WL 714378, at *2 n.3 (same).

D. The New Plaintiffs Who Allege They Were Formerly Enslaved Do Not Have Standing To Sue These Defendants.

The recent addition of nine plaintiffs who allege that they were enslaved during the early decades of the last century does not cure the standing defects in this action. These new plaintiffs also fail to demonstrate a fundamental constitutional requirement of standing: a causal connection between their alleged injury and the challenged actions of these defendants. The Amended Complaint does not allege that any defendant participated in the enslavement of any one of these nine plaintiffs. Indeed, the Amended Complaint does not aver any contact whatsoever between any defendant and any one of these nine plaintiffs - let alone any wrongdoing by a defendant that injured one of these plaintiffs personally. At most, the Amended Complaint alleges, “[u]pon information and belief,” that “in or about the 1920's-1930's some/or all of Defendants corporate entities doing business in Mississippi or Louisiana had reason to know of the construction of forms of slavery yet failed to take steps to eliminate same.” Am. Compl. „ 90. This vague assertion adds nothing to the Amended Complaint, and fails to establish standing on behalf of these nine plaintiffs. See, e.g, Simon, 426 U.S. at 45 (a plaintiff cannot establish a causal connection where “[s]peculativeie inferences are necessary to connect the[] injury to the challenged actions of [defendants]”); Shakman, 829 F.2d at 1394 (”” “[t]he remote possibility, unsubstantiated by allegations of fact, that the plaintiffs' situation might have been better had the defendants acted otherwise, and might improve were the court to afford relief' is simply insufficient” to establish standing) (quoting Warth, 422 U.S. at 507) (brackets and citation omitted).

The AmendedComplaint itself makes clear that any injuries suffered by these nine plaintiffs were caused by the independent actions of unidentified third parties who are not before the Court, rather than by the defendants. See Am. Compl. „„ 75, 89, 91. Accordingly, like the other named plaintiffs, these nine newly added plaintiffs have no standing to maintain this lawsuit.

II. THE STATUTES OF LIMITATIONS BAR PLAINTIFFS' CLAIMS.

A. All of Plaintiffs' Claims Are Barred by the Statutes of Limitations.

Plaintiffs' Amended Complaint fails for the additional, independent reason that all of the claims are time-barred. These claims - which are at a minimum decades, and in most cases centuries, old - are barred by statutes of limitations in every jurisdiction. See, e.g., Am. Compl. „ 9 (millions enslaved from 1619 to 1865); id. „ 89 (C. Doe alleges he was “enslaved through the 1960's”). Under Illinois law, for example, all state common law claims are barred by the statutes of limitations:

^ Intentional Infliction of Emotional Distress - two years. See, e.g, Dahl v. Fed. Land Bank Ass'n of W. Ill., 572 N.E.2d 311, 314 (Ill. App. Ct. 1991).

^ Conspiracy - three years. See, e.g., People v. Peebles, 457 N.E.2d 1318, 1322 (Ill. App. Ct. 1983); 720 Ill. Comp. Stat. 5/3-5 (2003).

^ Accounting - five years. See, e.g., Schlossberg v. Corrington, 400 N.E.2d 73 (Ill. App. Ct. 1980); 735 Ill. Comp. Stat. 5/13-205 (2003).

^ Conversion - five years. See, e.g., Bontkowski v. Smith, 305 F.3d 757 (7th Cir. 2002); 735 Ill. Comp. Stat. 5/13-205 (2003).

^ Unjust Enrichment - five years. See, e.g., Burns Philp Food, Inc. v. Cavalea Cont'l Freight, Inc., 135 F.3d 526 (7th Cir. 1998); 735 Ill. Comp. Stat. 5/13-205 (2003).

Plaintiffs' state statutory claims also are time-barred:

^ Texas Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 (Vernon 2002) - two years. SeeTex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002).

^ Illinois Consumer Fraud and Deceptive Business Act, 815 Ill. Comp. Stat. 505/1 (2003) - three years. See, e.g,815 Ill. Comp. Stat. 505/10a(3) (2003); Dreisilker Elec. Motors, Inc. v. Rainbow Elec. Co., 562 N.E.2d 970 (11. App. Ct. 1990).

^ New York Consumer Protection from Deceptive Acts and Practices Laws, N.Y. Gen. Bus. Law §§ 348, 350 - three years. See, e.g, Soskel v. Handler, 736 N.Y.S. 2d 853 (N.Y. Sup. Ct. 2001).

^ New Jersey Unfair Trade Practice Law, N.J. Stat. Ann. § 56:8-1 (2003) - six years. See, e.g, Mirra v. Holland Am. Line, 751 A.2d 138 (N.J. Super. Ct. App. Div. 2000).

^ Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev. Stat. Ann. § 51:1401 (2003) - one year. SeeLa. Rev. Stat. Ann. § 51:1409(e) (2003).

^ California Unfair Competition Act, Cal. Bus. & Prof. Code § 17200 - four years. SeeCal. Bus. & Prof. Code § 17208; Snapp & Assocs. Ins. Servs., Inc. v. Malcolm Bruce Burlingame Robertson, 96 Cal. App. 4th 884, 891 (Cal. Ct. App. 2002) (statute of limitations begins to run on 17200 claim “irrespective of whether plaintiff knew of its accrual”) (quotation omitted).

Plaintiffs' federal claims also are barred by the statutes of limitations:

^ Piracy - five years. 18 U.S.C. § 3282 (2000).

^ 42 U.S.C. § 1982 - two years. See, e.g., Honorable v. Easy Life Real Estate Sys., Inc., 182 F.R.D. 553 (N.D. Ill. 1998).

^ Alien Tort Statute - at most, ten years. See, e.g., Deutsch, 317 F.3d at 1005;Iwanowa, 67 F. Supp. 2d at 462.

Finally, plaintiffs' international law claim of “crimes against humanity” also is time-barred. Plaintiffs contend, erroneously, that there is no statute of limitations for such a claim, citing the Rome Statute of the International Criminal Court (“ICC”) (“The Rome Statute”), 17 July 1998, and Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968, in support. See Am. Compl. [ 190 & n.85. In fact, the federal courts consistently have applied statutes of limitations to civil claims for crimes against humanity. See, e.g, Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002) (claims under the ATS); Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 550-51 (D.D.C. 1981) (claims under the ATS and for “assault, battery, false imprisonment, intentional infliction of emotional distress and/or intentional infliction of cruel, inhuman and degrading treatment”) (quotation omitted), aff'd on other grounds,726 F.2d 774 (D.C. Cir. 1984); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 117-19 (D.D.C. 2003) (claims for “crimes against humanity, war crimes, and other violations of international law and domestic law”). The longest limitations period any court has applied to such a claim is ten years under the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350, note § 2(c) (2000). See Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1195-96 (S.D.N.Y. 1996); Xuncax v. Gramaio, 886 F. Supp. 162, 192-93 (D. Mass. 1995).

Plaintiffs' reliance on the Rome Statute for an exception is misplaced. First, the United States has not ratified this treaty. Second, Article 29 of the Rome Statute states that “[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.” Thus, for nations that have ratified it, Article 29 only supersedes the statute of limitations applicable to “crimes within the jurisdiction of the Court.” This civil action obviously is not within the criminal jurisdiction of the ICC. Third, for those nations that have ratified it, the ICC has jurisdiction only over crimes “committed after the entry into force of this Statute,” - i.e., July 17, 1998. See Rome Statute, art. 11. The Amended Complaint alleges only events that occurred long before July 17, 1998.

Nor does the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968 (the “Convention”), save plaintiffs' claims. First, the United States is not a signatory to the Convention. Second, the Convention applies only to the “prosecution and punishment of the crimes referred to in articles I and II...,” Convention, art. IV (emphasis added), not to civil claims. See Handel v. Artukovic, 601 F. Supp. 1421, 1431 (C.D. Cal. 1985). Thus, these international criminal treaties do not save plaintiffs' claims, which have been barred for many decades by the statutes of limitations.

Consequently, it is not surprising that numerous other complaints seeking slavery reparations were dismissed on statutes of limitations grounds. See, e.g., Cato v. United States, No. C94-01228CW, 1994 U.S. Dist. LEXIS 7908 (N.D. Cal. June 7, 1994) (slavery reparations complaint time-barred), aff'd on alternative grounds,70 F.3d 1103, 1107-08 n.6 (9th Cir. 1995); see also Bey, No. 02-705, report and rec., adopted, No. 02-705, mem. order; supra pp. 2-3 n.2 (citing numerous cases). Statutes of limitations also resulted in the dismissal of comparatively recent reparations claims stemming from World War II. The claims at bar should likewise be dismissed.

B. Equitable Tolling, the Discovery Rule, and the Continuing Violation Doctrine Do Not Revive Plaintiffs' Claims.

Acknowledging that their claims are well beyond any limitations period, plaintiffs attempt to plead equitable tolling, the discovery rule, and the continuing violation doctrine. See Am. Compl. „„ 189-204. These doctrines cannot revive plaintiffs' claims. Plaintiffs do not seek recovery for any act committed by any defendant against any plaintiff. They seek to impose successor liability on defendants for unpled wrongful acts by often unnamed predecessors against unidentified slaves many decades before most of the named plaintiffs were born. If cognizable pre-emancipation claims ever existed, they were owned by the former slaves themselves and became barred when the statutes of limitations expired in the nineteenth century. Post-emancipation claims also lapsed decades ago.

None of the doctrines cited in the Amended Complaint can revive claims already barred by statutes of limitations. They can only suspend the running of limitations periods before claims are barred. See, e.g., Andrews v. Heinold Commodities. Inc., 771 F.2d 184, 186 (7th Cir. 1985).

Here, plaintiffs make a number of conclusory allegations based on events that occurred long after the statutes of limitations had already barred their claims. For example, plaintiffs allege that they were “unable to secure records with regards to their ancestors” and, thus, unable to acquire an accounting from defendants. Am. Compl. „ 200. Whether plaintiffs, born long after these claims were barred, could secure certain records or acquire an accounting is irrelevant to any tolling doctrine. Similarly, plaintiffs refer to unsuccessful efforts to raise reparations issues in Congress, but allege that these efforts date back only 11 years. See id. „ 195. None of these events could revive lapsed pre-emancipation claims. And because these events have no connection to the newly-pled claims of post-emancipation unlawful enslavement by unidentified persons, they cannot avoid the bar of those claims either. Accordingly, neither the equitable tolling doctrine, nor the discovery rule, nor the continuing violation doctrine can revive plaintiffs' barred claims.

1. The equitable tolling doctrine does not revive plaintiffs' claims.

Equitable tolling occurs only if (1) “the defendant has actively misled the plaintiff,” (2) “the plaintiff has been prevented from asserting his or her rights in some extraordinary way,” or (3) “the plaintiff has mistakenly asserted his or her rights in the wrong forum.” Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill. 2000) (citing Ciers v. O.L. Schmidt Barge Lines, Inc., 675 N.E.2d 210 (Ill. App. Ct. 1996)). Equitable tolling must be applied with caution. See Ciers, 675 N.E. 2d at 214;see also United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (“Federal courts invoke the doctrine of equitable tolling “only sparingly.' ”). Conclusory assertions will not suffice. “To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled' plaintiff.” Iwanowa, 67 F. Supp. 2d at 467 (emphases added). And a plaintiff alleging equitable tolling through selfconcealing conduct must have acted with due diligence. See, e.g., Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).

Plaintiffs fail to plead, let alone particularize, the required elements of equitable tolling. For example, they do not allege that any defendant misled any plaintiff or any of their ancestors in any way prior to the running of the statute of limitations. Nor do they allege that they or their ancestors timely asserted their rights in the wrong forum. They merely assert in conclusory fashion that unspecified persons prevented plaintiffs and their ancestors from asserting claims for unrelated reasons.

For example, plaintiffs claim that “shipping manifests,” “human cargo lists,” and other documents were unavailable and that family names were changed over time. See Am. Compl. „ 200. But they do not explain how this caused their ancestors to delay seeking redress in court.

Plaintiffs also complain of the inaccessibility of corporate histories and records. Id. „ 202. However, the difficulty in reconstructing relevant records more than a century after the events in issue is a fundamental reason for statutes of limitations, not a justification for ignoring them. See Freeman v. New Jersey, 788 A.2d 867 (N.J. Super. Ct. App. Div. 2002) (rejecting equitable tolling argument); accord Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (statutes of limitations are “practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost”); see also Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993) (policy of statute of limitations is to bar stale suits), aff'd,512 U.S. 477 (1994).

Finally, plaintiffs allege that defendants' conduct was self-concealing because “there [was] no reason for the slaves to know or be aware that their lives were insured; that financing deals controlled their lives; or that profits far a field from their miserable existence occurred.” Am. Comp. 1 198. But plaintiffs' complaint does not contain any “particularized allegations that the defendant[s] actively misled” plaintiffs prior to the running of the statute of limitations. Iwanowa, 67 F. Supp. 2d at 467 (emphases added). Accordingly, equitable tolling did not halt the running of the statutes of limitations on plaintiffs' claims.

2. The discovery rule does not revive plaintiffs' claims.

Nor does the discovery rule revive plaintiffs' claims. Under the federal discovery rule, “a claim accrues once the party performs the alleged unlawful act and once the party bringing a claim discovers an injury resulting from this unlawful act.” Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1139 (7th Cir. 1992); see also United States v. Duke, 229 F.3d 627, 630 (7th Cir. 2000); Sellars v. Perry, 80 F. 3d 243, 245-46 (7th Cir. 1996). The same rule applies under Illinois law. See Kumpfer v. Shiley, Inc., 741 F. Supp. 738, 739 (N.D. Ill. 1990). While the date on which a plaintiff has or should have the knowledge necessary to trigger the limitations period often is a question of fact, the question may be answered as a matter of law if, as here, the answer is clear from the pleadings. See, e.g., Horn v. A.O. Smith Corp., 50 F.3d 1365, 1370 (7th Cir. 1995) (“Despite the fact-specific nature of this inquiry, the point at which a cause of action accrues may be determined as a matter of law if the relevant facts are undisputed and they lead to but one conclusion”).

Plaintiffs try to evade the statutes of limitations by alleging that slaves “were not privy to the causes and extent of the harms they suffered,” that slaves were “in large part uneducated, unsophisticated, and ... in extremely difficult circumstances,” and that “[t]o impute to these individuals ... what amounts to an omniscient knowledge of their rights, the violations they suffered, those that were the cause of and those that illegally profited from those violations is an incredible fiction.” Am. Compl. „„ 192-193. But the discovery rule does not require them to possess such knowledge. Plaintiffs' ancestors discovered their immediate (not latent) injury at the time that they were enslaved. Thus, the discovery rule did not delay the accrual of plaintiffs' claims.

3. The continuing violation doctrine does not revive plaintiffs' claims.

Plaintiffs also allege that the “continuing violation” doctrine tolls the statutes of limitations. See Am. Compl. „ 204. But the continuing violation doctrine governs accrual, not tolling. See Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). It does not save a claim arising from “a single event giv [ing] rise to continuing injuries.” Id. “A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir. 1987) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1989)).

Plaintiffs claim that defendants' alleged “failure to provide an accounting to the plaintiffs constitutes a continuing violation that tolls” the statutes of limitation. Am. Compl. „„ 204. This alleges a single event with purported continuing injuries, not a “continuing violation.” If, in fact, any plaintiff ever asked any defendant to provide an accounting, and putting aside whether any plaintiff actually had a claim to an accounting, that plaintiff could have sued that defendant the first time the defendant refused to provide an accounting. Indeed, under plaintiffs' theory, any unredressed claim would constitute a “continuing” violation, such that the statute of limitations would be meaningless.

Plaintiffs also fail to allege any date on which the purported duty to provide an accounting arose. (In fact, defendants have no such duty. See infra § IV.B.1.) A gap in time between alleged acts (here, the alleged enslavement and the alleged failure to provide an accounting) is sufficient to dissociate the acts, meaning that there is no “continuing violation.” See Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir. 1999) (two years between acts); Selan v. Kiley, 969 F.2d 560, 566 (7th Cir. 1992) (same). Thus, the continuing violation doctrine does not revive plaintiffs' claims.

III. PLAINTIFFS' CLAIMS ARE BARRED BY THE POLITICAL QUESTION DOCTRINE.

Plaintiffs' claims fail separately as a matter of law under the political question doctrine, which precludes a court from adjudicating claims that infringe on the exclusive discretion of the political branches. See Baker v. Carr, 369 U.S. 186, 210 (1962); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 259-61 (1796). This doctrine is firmly rooted in constitutional separation of powers and, like standing, imposes “constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Allen, 468 U.S. at 750 (citation and quotation omitted). The clearest modem articulation of this doctrine is in Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217.

Dismissal for lack of subject matter jurisdiction on political question grounds is warranted if any one of the six Baker factors is present, let alone, as here, when virtually all of them are implicated. Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard the Tanker Dauntless Colocotronis, 577 F.2d 1196, 1203 (Sth Cir. 1978). First, the questions raised by these actions - i.e., reparations to former slaves and peace-making in the wake of the Civil War - were consistently committed to the President and Congress, both during and after the Civil War. See infra § III.A. Additionally, these historical claims are not amenable to judicially discoverable and manageable standards for resolution. See infra § III.B. Finally, the remaining Baker factors also are implicated and independently justify dismissal. See infra § III.C.

It is thus not surprising that federal courts have widely concluded that reparations claims raise nonjusticiable political questions, in both slavery and other contexts:

While plaintiff may be justified in seeking redress for past and present [racial] injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff's grievances.

Cato, 70 F.3d at 1105 (quoting district court order); id. at 1110 (“[T]here is no cognizable avenue for litigating a complaint about the judgment calls of legislators in their legislative capacity.”); see also supra p. 4 & n.4. The claims here should likewise be dismissed.

A. Plaintiffs' Claims Are Barred Because There Is a Demonstrable Constitutional and Historical Commitment of the Reparations Issue to the Executive and Legislative Branches.

Dismissal is required because there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker, 369 U.S. at 217. The political question doctrine bars interference with the powers of the President and Congress (i) to make war and set the conditions of peace (including the treatment of former slaves), (ii) to suppress rebellion, (iii) to settle Civil War-related property and reparations claims, and (iv) to grant amnesty. See Baker, 369 U.S. at 211-13;see also Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (war making powers “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”).

Moreover, dismissal is separately required by the historical record showing that these issues have been, in fact, addressed by the political branches of government, not the judiciary. As the Supreme Court noted in Baker v. Carr:

Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.

369 U.S. at 211-12 (emphasis added); see Made in the USA Found. v. United States, 242 F.3d 1300, 1311 n.27 (1lth Cir. 2001) (“history may inform the inquiry inasmuch as it fleshes out the manner in which the executive and legislative branches have sought to exercise and accommodate their textually committed foreign affairs powers over time” and “may illuminate any prudential considerations governing the advisability or inadvisability of judicial intervention in a given controversy”), cert. denied,534 U.S. 1039 (2001). Thus, in assessing this Baker factor, the Court need not precisely allocate responsibility to any political branch, but need only “consider whether the issue in question is one whose resolution is best left to the political branches of government.” Greenberg v. Bush, 150 F. Supp. 2d 447, 452 (E.D.N.Y. 2001).

During and after the Civil War, Congress and the President considered reparations for former slaves along with other important national goals, including:

^ the need to end the war with a consensus that could preserve the Union;

^ the need to abolish slavery throughout the Union, including in the politically important border states;

^ the need to provide civil liberties and political protections to freed slaves; and

^ the need to provide an amnesty program to induce Confederate citizens to return to the Union.

The resulting political choices led to civil rights legislation and Constitutional amendments for the protection of freed slaves, rather than to reparations programs. See, e.g., Eric Foner, Politics and Ideology in the Age of the Civil War 131-44 (1980). These choices, driven by myriad historical, political, social and economic factors that were considered by Presidents and Congress, are precisely those which the “political question” doctrine bars a court from revisiting.

1. Efforts at the Civil War's outset to punish rebels and to induce defections from the Confederacy.

How to deal with slavery was part of the war plans even early in the Civil War. To punish those in rebellion and to induce them to rejoin the Union, President Lincoln and the Congress took the first steps toward ending slavery and providing relief for freed slaves, while not alienating the important “border” regions of Kentucky, Missouri, Maryland and western Virginia. The threat of property confiscations and the promise of amnesty were aimed at undermining the rebellion.

By September 1862, Lincoln issued a proclamation that in the next Congress he would recommend financial aid to states that (i) rejected the Confederacy and (ii) adopted “immediate or gradual abolishment of slavery.” 12 Stat. 1267 (1862). Lincoln also promised that on January 1, 1863, he would take the controversial step of freeing slaves in states still in rebellion, again tying freedom for slaves to the President's war effort.

2. Later wartime efforts to address Freedmen refugee problems.

On January 1, 1863, after a series of Union victories, Lincoln issued the Emancipation Proclamation. 12 Stat. 1268-69 (1863). See also The Wartime Genesis of Free Labor, 1861-1865 at 33, in Freedom: A Documentary History of Emancipation 1861-1867 (Ira Berlin et al. eds., 1990) (“History of Emancipation ”). Expressly relying on his war-making powers as commander-in-chief, Lincoln issued the proclamation “as a fit and necessary war measure for suppressing ... rebellion.” 12 Stat. 1268-69. Indeed, the political and war-related nature of this proclamation is confirmed by the remarkable fact that it did not purport to emancipate slaves in the states loyal to the Union, but only in those areas then in rebellion. See id. Throughout the war, Lincoln's war- and peace-making powers then continued to be used to ensure proper treatment of freed slaves.

Other initiatives similarly confirm that relief for former slaves was integral to the Union's war- and peace-making concerns. In 1865, Congress created an agency within the War Department, the Freedman's Bureau, to provide provisions, clothing, fuel and shelter to freed slaves. 13 Stat. 507-09 (1865). The Bureau had the authority to rent or sell to freed slaves land abandoned or confiscated in the Confederacy. Id. § 4; see also The Wartime Genesis of Free Labor, supra, at 59.

The Second Freedmen's Bureau Act authorized the sale to freed slaves of all remaining confiscated land in twenty-acre parcels. 14 Stat. 173-75 §§ 7, 9 (1866). This confirmed the policy of the political branches to reject reparations to freed slaves in the form of free land. See Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877 245-46 (1988) ( “Reconstruction”). Indeed, in the Southern Homestead Act, Congress provided for the sale of up to 80-acre parcels of the public lands in Alabama, Mississippi, Louisiana, Arkansas and Florida to freed slaves. 14 Stat. 66-67 (1866). Thus, although land was provided to freed slaves as interim relief during the war, in the Reconstruction era, this policy was not continued.

3. Post-war amnesties to secure a lasting peace.

At the end of the Civil War, it was again the political branches, exercising their peace-making powers, which addressed proposals to compensate former slaves. These were inextricably tied to the amnesties and other political efforts to reintegrate the former Confederate states into the Union.

Several amnesties were offered to Confederates in which their property rights were restored. See supra § III.A.2; 13 Stat. 741 (1864). President Johnson extended Lincoln's earlier amnesty to most rebels, restoring all property rights except the right to former slaves, 13 Stat. 758-59 (1865), and amnesty was further extended to virtually all persons willing to take an oath to support the Union of States. 15 Stat. 699-700 (1867). President Johnson later extended a full amnesty - one that was no longer contingent on the taking of any oath of allegiance. 15 Stat. 702-03 (1868). These measures put an end to proposals to use confiscated property to compensate former slaves because they restored property rights to former rebels.

4. The later enactment of civil rights legislation in lieu of reparations.

As noted, by the end of the Civil War there was insufficient political support for proposals to provide free land or other direct compensation to freed slaves. Ultimately, Congress rejected reparations in favor of laws providing civil and employment rights to freed slaves. This led to the Civil Rights Acts of 1866, 1870, 1871 and 1875 and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. In the end, the political controversy surrounding the legislation enacted to redress the evils of slavery was considerable and led to the impeachment of President Johnson and the eventual fall of the Radical Republicans. See Foner, Reconstruction at 333-45.

5. Later reparations efforts by the political branches.

Events after Reconstruction confirm that the determination of the proper remedies for slavery has always been committed to the political branches. In 1890, for example, Representative William J. Connell introduced a bill that would have provided for maximum payments of $500 and awarded lifetime pensions of up to $15 per month to former slaves, see H.R. 11119, 51st Cong., 1st Sess. (1890). This bill was not enacted. In 1898, a similar bill was proposed in the U.S. House of Representatives to award a “pension” to “all persons released from involuntary servitude, commonly called slaves.” H.R. 8479, 55th Cong. § 1 (1898); see also Senate Bill No. 1176, 56th Cong. (1899). That bill was not enacted either.

Calls for congressionally sanctioned reparations for slavedescendants were revived about a decade ago following the enactment of the Civil Liberties Act of 1988, 50 U.S.C. app. § 1989b (2000) (the “CLA”), which provided reparations to Japanese-Americans interned during World War II. Prompted by that act, Representative John Conyers began advocating the “African American Reparations Commissions Act” (currently H.R 40) to establish a national commission to study and make recommendations concerning reparations for slavery.

Simply put, reparations for former slaves were from the very beginning inextricably connected with the wartime and post-war efforts of the President and Congress to prosecute the military and political aspects of the Civil War and to conclude a peace that would be lasting, accepted and enforceable. These efforts ultimately eschewed direct compensation to former slaves in favor of amending the Constitution, enacting and enforcing civil rights legislation, and selling land to former slaves on favorable terms. The constitutional commitment of such issues to the political branches is clear, as is the record of those branches managing such issues without interference from the judiciary. Plaintiffs' invitation for this Court to second-guess these branches in the political, military, economic, moral and social considerations with which they grappled more than 130 years ago is patently unworkable, and in the end confirms the wisdom of the well-settled “political question” doctrine.

B. Plaintiffs' Claims Cannot Be Resolved Pursuant to Any Judicially Discoverable and Manageable Standards.

Baker also requires dismissal for the independent reason that there are no judicially discoverable and manageable standards for resolution of these claims. See, e.g., Baker, 369 U.S. at 198 (justiciability concerns “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded”). The historical issues raised here involve too broad a span of conduct over too broad an expanse of time to be susceptible to any manageable judicial standards for resolution. Indeed, in affirming the dismissal of comparatively recent World War II-era reparations claims, the D.C. Circuit spoke in words equally applicable here:

It may be that the Congress might enact a program and a procedure by which the objectives prayed for could be achieved. But we think the courts alone cannot do it. As presently framed, the problem is not within the established scope of judicial authority .... The span between the doing of the damage and the application of the claimed assuagement is too vague. The time is too long. The identity of the alleged tort feasors is too indefinite. The procedure sought - adjudication of some two hundred thousand claims for multifarious damages inflicted twenty to thirty years ago in a European area by a government then in power - is too complicated, too costly, to justify undertaking by a court without legislative provision of the means wherewith to proceed.... The events, the witnesses, the guilty tortfeasors, their membership in the conspiracy are all so potentially vague at this point as to pose an insoluble problem if undertaken by the courts without legislative or executive guidance, authorization or support. The whole concept is too uncertain of legal validity to sustain the self-establishment of the proceedings by a court in the absence of specific legislative or executive formulation.

Kelberine, 363 F.2d at 995;see also Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1174 n.1 (D.C. Cir. 1994).

Even more than the dismissed World War II reparations claims noted above, the claims here are rife with uncertainties that preclude adjudication by a court on a blank slate without any political framework. For example:

^ The relevant events took place as far back as 1619, see Am. Compl. „ 9.

^ The parties that would be necessary to the adjudication of claims for slavery reparations, including the federal government of the United States, various state governments, various foreign nations, slave traders, slave holders, etc. cannot be joined.

^ The nature of the relief requested in plaintiffs' Amended Complaint - e.g., “the appointment of an independent historic commission” - underscores that the relief they are seeking is political, not judicial.

^ There is no manageable standard nor practical methodology for determining the degree of lineage or level of consanguinity that should be necessary for an individual to be deemed a “descendant[] of enslaved African-Americans,” id. „ 1.

^ The apportionment of liability and damages is simply not subject to judicial determination. There is no reasoned basis for determining, for example, whether damages should be pegged to the number of ancestors who were slaves, or whether damages should be tied to plaintiffs' current economic status.

Having failed in the effort to bring similar charges against the government, plaintiffs seek nothing less than to hold defendant corporations responsible for the entire sweep of centuries of American slavery and its consequences. They couch their claims as “private claims” against “private defendants” as if that saved them from the political question bar. But this ignores that in resolving justiciability issues, the Court must “determine the nature of the underlying dispute and the interests of the parties in having the dispute resolved,” not “how Plaintiff has styled his suit.” In re Nazi Era Cases, 129 F. Supp. 2d at 375 (citing Renne, 501 U.S. at 316). These claims are “fundamentally interrelated with” a variety of sweeping political questions whose resolution can only be achieved in Congress. Id. at 375, 389.

C. The Adjudication of Plaintiffs' Claims Would Also Necessarily Implicate the Remaining Baker Factors.

The last four Baker factors are also independent bases to dismiss plaintiffs' dated claims. See Baker, 369 U.S. at 217. To allow claims for reparations would be to ignore or second-guess the political decisions that went into the enactment of the Civil War era constitutional amendments and associated civil rights laws, and a myriad of other political decisions that galvanized civil rights and other relief programs enacted to benefit minorities (including the descendants of slaves) throughout the past century. These policy determinations are for elected officials, not the courts.

Moreover, a resolution of these claims would necessarily tread on the political branches of government. Id. As described above, during and after the bloodiest war in this country's history, these branches grappled with the whole host of reparations issues while simultaneously trying to end the war successfully. These are not choices that the judicial branch may second-guess.

In sum, plaintiffs here are inviting the Court to engage in the same kind of political re-examination encouraged by the plaintiffs in Burger-Fischer, where the court concluded that the political question doctrine compelled dismissal of four class actions over World War II era slave labor:

In effect, plaintiffs are inviting this court to try its hand at refashioning the reparations agreements which the United States and other World War II combatants (whose blood and treasure brought the war of conquest and the program of extermination to an end) forged in the crucible of a devastated post-war Europe and in the crucible of the Cold War.... [T]his is a task which the court does not have the judicial power to perform. To state the ultimate conclusion, the questions whether the reparation agreements made adequate provision for the victims of Nazi oppression and whether Germany has adequately implemented the reparation agreements are political questions which a court must decline to determine.

65 F. Supp. 2d at 282. The claims here should likewise be dismissed.

IV. PLAINTIFFS' ALLEGATIONS DO NOT SUPPORT ANY CAUSE OF ACTION.

In the absence of the other defects (lack of standing, untimeliness, non-justiciability), the Amended Complaint still would be subject to dismissal for failure to state a claim. Plaintiffs attempt to take a long-ago historical wrong and - with the use of inapplicable legal labels like “unfair competition” - convert it into a present-day dispute. The attempt fails.

A. Plaintiffs Cannot Use Present-Day Law To Impose Retroactive Liability for Alleged Conduct Dating Back Centuries.

Plaintiffs cannot conceal that they are trying to use the law as it exists in 2003 to impose liability for alleged conduct dating back to the 1600's - that is, they seek to impose retroactive liability using the law today, rather than the law at the time of the alleged conduct. In the immediate aftermath of the abolition of slavery, however, the Supreme Court rejected precisely such retroactive liability in a pair of decisions: White v. Hart, 80 U.S. (13 Wall.) 646 (1872), and Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1872). The plaintiffs in both cases had sold slaves prior to the abolition of slavery, in Georgia and Arkansas respectively, but had accepted promissory notes rather than cash in return. When they sued after abolition to collect on the promissory notes, the lower courts dismissed the actions on the basis of state constitutional provisions adopted by Georgia and Arkansas in the Reconstruction era that made slavery-related contracts and debts unenforceable as against public policy. The Supreme Court reversed those decisions, holding that the states lacked the constitutional authority to bar the collection of slavery-related debts that had been lawful at the time they were entered into. White and Osborn thus bar plaintiffs' claims in their entirety. See also Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly .... For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.”) (internal quotation omitted).

B. Plaintiffs Fail To State a Claim Even Under Present-Day Law.

Moreover, as set forth below, when the legal requirements for each of the individual alleged causes of action are compared with the allegations of the Amended Complaint, it becomes clear that plaintiffs have not stated any of those causes of action even under present-day law. Plaintiffs' federal and state statutory claims fail under the law governing those statutes. Plaintiffs' state common law claims fail under the law of Illinois (the forum state) and any other state conceivably implicated in this multidistrict litigation. Finally, as discussed infra in § IV.B.11, although plaintiffs begin the counts of the AmendedComplaint with theories of vicarious liability, such theories are inapposite because plaintiffs have failed to first establish primary liability on an underlying tort, let alone allege the other requirements to establish third-party liability.

1. Plaintiffs' accounting claim fails as a matter of law.

Plaintiffs' claim for an “accounting” (Count II) is wholly deficient. To maintain a claim for an accounting under Illinois law, a complaint must allege an inadequate remedy at law, see Couri v. Couri, 431 N.E.2d 711 (Ill. App. Ct. 1982), rev'd on other grounds,447 N.E.2d 334 (Ill. 1983), “the existence of a fiduciary relationship” between the plaintiff and defendant, “a need for discovery, and the existence of mutual accounts which are of a complex nature.” Newton v. Aitken, 633 N.E.2d 213, 218 (Ill. App. Ct. 1994) (citing Couri, 431 N.E.2d at 714). To maintain an accounting action that is cognizable at law, “the plaintiff must meet a high standard of showing that the accounts between the parties are so complicated that they necessitate a court in equity to unravel them to determine damages.” Enter. Warehousing Solutions, Inc. v. Capital One Servs., Inc., No. 01 C 7725, 2002 WL 406976, at *4 (N.D. Ill. Mar. 15, 2002).

These elements require plaintiffs to have a direct relationship with defendants through a fiduciary relationship andlor maintenance of mutual accounts. An accounting action cannot exist between strangers. Plaintiffs attempt to assert a fiduciary relationship by alleging that it arose “by virtue of defendants' superior position, maintenance of those positions and, their holding in constructive trust, the proceeds of the unpaid labor of the plaintiffs and/or their ancestors.” Am. Compl. „ 222. This allegation is insufficient, as it does not allege a fiduciary relationship; it is only a conclusory assertion that is belied by the utter failure of the Amended Complaint to allege any relationship - let alone a fiduciary relationship - between plaintiffs and/or their ancestors and any defendant. Accordingly, plaintiffs fail to state a claim for accounting.

2. Plaintiffs' crime against humanity claim fails as a matter of law.

Plaintiffs' claim under “international law,” “international norms,” or “human rights” (Count III) fails not only because it does not meet the requirements of standing, timeliness, or justiciability, but separately because: (1) there is no private right of action, (2) the claim is barred under the Supremacy Clause of the U.S. Constitution; and (3) at the time plaintiffs' claim accrued, “international law” did not prohibit slavery.

a. No private right of action under international law.

Plaintiffs have no private right of action to press international law claims. See, e.g., Dreyfus v. Von Finck, 534 F.2d 24, 28 (2d Cir. 1976); Tel-Oren, 726 F.2d at 816-819 (Bork, J., concurring); Handel, 601 F. Supp. at 1424-28;Ungaro-Benages, No. 01-CV-2547, mem. op. at 29-32; Fishel, 1998 U.S. Dist. LEXIS 21230, at *22-26.

There are only two bases for a private right of action under international law: (i) self-executing treaties, and (ii) express statutory grants. See, e.g., Dreyfus, 534 F.2d at 29-31;Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968-69 (4th Cir. 1992); Tel-Oren, 726 F.2d at 808-10;Friedman v. Bayer Corp., No. 99-CV-3675, 1999 WL 33457825, at *3 (E.D.N.Y. Dec. 15, 1999); Handel, 601 F. Supp. at 1424-28. Neither applies here.

Plaintiffs cite no self-executing treaties - i.e., agreements in which the United States as a signatory nation expressly denotes its specific intent to allow private citizens to sue thereunder - supporting a private right of action here under international law. In addition, plaintiffs cite no federal statute conferring private rights of action based on international law. Mere mention of “customary international law” is insufficient. See Tel-Oren, 726 F.2d at 777-78;Heinrich v. Sweet, 49 F. Supp. 2d 27 (D. Mass. 1999). As the court in Handel noted, where “no American legislative body has acted in any way with respect to customary international law ... [t]o imply a cause of action from the law of nations would completely defeat the critical right of the sovereign to determine whether and how international rights should be enforced in that municipality.” 601 F. Supp. at 1428.

b. Plaintiffs' international law claim fails under the Supremacy Clause.

Independently, plaintiffs' international law claim fails under the Supremacy Clause. International law cannot provide a basis for a right of action in the United States if it conflicts with the U.S. Constitution or Congressional legislation. As the modem Supreme Court noted, “[i]n analyzing the Constitution, we cannot ignore the regrettable fact that, as originally framed, it expressly tolerated the institution of slavery.” Karcher v. Daggett, 462 U.S. 725, 746 (1983) (Stevens, J., concurring); see also U.S. Const., art. I, § 2; U.S. Const., art. I, § 9; U.S. Const., art. IV, § 2. The Supremacy Clause alone bars a claim under international law.

c. Separately, no claim under international law can be stated.

Plaintiffs' international law claim also fails because at the time the claim could have accrued, there was no universal consensus to condemn slavery sufficient to constitute an accepted and enforceable norm of “international law.” Indeed, the international law prohibition against slavery is a relatively recent historical development - the result of decades of debate, negotiation and changes in historical circumstances. To state the obvious: it required the Civil War for that consensus to be formed in the United States alone. International law as it existed in 1865 did not reflect a universal condemnation of slavery. Absent such manifest consensus, no claim based on “international law” is (or could have been) recognized in the United States.

The United States Supreme Court has already addressed this very issue and held that as of 1861 the practice of slavery was not a violation of international law. In Osborn v. Nicholson, 80 U.S. (13 Wall.) 654, 661 (1872), the Court explained:

Slavery ... rested upon universally recognized custom, and there were no statutes legalizing its existence more than there were legalizing the tenure of any other species of personal property. Though contrary to the law of nature it was recognized by the law of nations. The atrocious traffic in human beings, torn from their country to be transported to hopeless bondage in other lands, known as the slave trade, was also sanctioned by the latter code [i.e., by international law].... The institution has existed largely under the authority of the most enlightened nations of ancient and modem times.

Id. at 661 (emphasis added).

Similarly, the Supreme Court's last decision on the question before the Civil War held that the slave trade (and, a fortiori, slavery) was not prohibited by the law of nations as such law existed before the Civil War. See The Antelope, 23 U.S. (10 Wheat.) 66, 114-23 (1825). Chief Justice Marshall, writing for the Court, explained:

However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt.... That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each.

Id. at 115-19 (emphasis added). These cases establish that “international law,” as it was recognized in the United States at the time, would not support the claim made here.

3. Plaintiffs' piracy claim fails as a matter of law.

Plaintiffs' claim of “piracy” (Count IV) is likewise deficient. Piracy is a crime, not a civil tort, and plaintiffs have no private right of action to prosecute it. And even if plaintiffs could privately prosecute a piracy claim, they fail to allege the necessary elements of such a claim.

Count IV points to the fourth section of the Act of May 15, 1820, 3 Stat. 600-01 (“the 1820 Act”), which is the statutory precursor of today's 18 U.S.C. § 1585, and alleges that defendants committed piracy “by their actions ... in support for the continuation of the smuggling of Africans.” Am. Compl. q[ 230. This allegation fails for several reasons.

First, both the 1820 Act and the current statute are criminal statutes providing no civil remedy. See 1820 Act, 3 Stat. 600-01; 18 U.S.C. § 1585. The plain language of both statutes declares piracy a crime, punishable by fines or imprisonment. They create no civil cause of action. Without demonstrated congressional intent to create a private cause of action, criminal statutes that provide a specific penalty do not provide a private cause of action. See Karahalios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527, 532-33 (1989). Nothing in either statute suggests that a private right of action exists.

Second, no plaintiff has alleged that he, she, or any ancestor was the victim of a violation of the 1820 Act or the current statute. If a private civil action could be found, it would not be available to anyone not victimized by a violation.

Finally, plaintiffs have not alleged that any defendant committed any act of “piracy” as listed in the statute. The 1820 Act punished any of four actions if done with an intent to turn Africans into slaves: (1) landing and seizing Africans, (2) forcibly bringing and carrying them onto a vessel, (3) decoying them, or (4) receiving them on board a vessel. United States v. Westervelt, 28 F. Cas. 529, 530 (C.C.S.D.N.Y. 1861) (No. 16668). Similarly, the current piracy statute, 18 U.S.C. § 1585, allows the United States to imprison or fine those convicted of taking a person from “any foreign shore” with intent to make the person a slave, transporting a person on a vessel with intent to make the person a slave, giving or selling a person on the high seas with intent to make the person a slave, or delivering a person onto land with intent to make the person a slave. Both the 1820 Act and current version of the statute criminalize the creation of slaves by those on the high seas, not the derivation of some benefit from slavery by those on dry land. Westervelt, 28 F. Cas. at 530;United States v. Corrie, 25 F. Cas. 658, 664 (C.C.D.S.C. 1860) (No. 14869); 18 U.S.C. § 1585.

The Amended Complaint alleges only that defendants or their alleged predecessors benefited from slavery by their involvement in the United States economy during the period of history when African-Americans were enslaved. It does not allege facts sufficient to satisfy the elements of a prosecution for piracy. If it did, plaintiffs would not be able to bring such an action, which can only be pursued by the executive branch of government. Plaintiffs fail to state a claim for piracy.

4. Plaintiffs' claim for intentional infliction of emotional distress fails as a matter of law.

Plaintiffs' claim for intentional infliction of emotional distress (Count V) is equally flawed and fails as a matter of law. Plaintiffs contend that the institution of slavery was based upon, and perpetuated through, repeated acts of rape, murder, torture, “breeding,” and racist propaganda. See Am. Compl. „ [ 233-238. These allegations, while horrific, do not state a claim for intentional infliction of emotional distress against these defendants.

There are four basic elements of the tort of intentional infliction of emotional distress as defined in the Restatement (Second) of Torts § 46(1), and as defined in the substantive law of most jurisdictions, including Illinois. To state a claim, a plaintiff must allege: (1) extreme and outrageous conduct by the defendant; (2) intent by the defendant to cause, or a reckless disregard of the probability of causing, emotional distress; (3) severe or extreme emotional distress suffered by the plaintiff; and (4) an actual and proximate causation of the plaintiff's emotional distress by the defendant's outrageous conduct. See, e.g., Wilson v. Norfolk & W. Ry., 718 N.E.2d 172, 180 (111. 1999); Haves v. Ill. Power Co., 587 N.E.2d 559, 563 (Ill. App. Ct. 1992).

Plaintiffs' Amended Complaint does not satisfy these basic requirements. Plaintiffs do not allege that these defendants (or their alleged predecessors-in-interest) engaged in the “extreme and outrageous” conduct underlying their claim. See Am. Compl. i„ 233, 234, 236. (At best, plaintiffs seek to hold defendants liable for that conduct under theories of third party liability that are, as discussed infra in § IV.B. 11, wholly without merit.) And they do not allege any causal connection between such distress and the actions of these defendants. As stated supra in § I, the Amended Complaint does not identify any conduct committed at any time by any named defendant that is fairly traceable to any injury suffered by any plaintiff. Indeed, the Complaint does not aver any contact whatsoever between any one of these plaintiffs - or any one of these plaintiffs' ancestors - and any one of these defendants. Count V fails to state a claim for intentional infliction of emotional distress.

5. Plaintiffs' conversion claim fails as a matter of law.

Plaintiffs do not come any closer to stating a claim under the label “conversion” (Count VI). This Court has stated that a “conversion is understood as the wrongful deprivation of an identifiable object of property to which the plaintiff was entitled.” Pritikin v. Liberation Publ'ns, Inc., 83 F. Supp. 2d 920, 922-23 (N.D. Ill. 1999). Thus, a conversion claim “may not be maintained to satisfy a mere obligation to pay money.” In re Thebus, 483 N.E.2d 1258, 1260 (Ill. 1985).

Plaintiffs' conversion claim is based on the alleged failure by the defendants or their predecessors in interest “to account for, acknowledge and return to plaintiffs and the plaintiff class, the value of their ancestors' slave labor.” See Am. Compl. „ 240. Even if defendants had received, and been obligated to pay for, the value of such labor, the failure to make such payments would not constitute conversion. See Thebus, 483 N.E.2d at 1260. Were the law otherwise, every statutory or contractual dispute between employers and employees over wage and salary issues (and, indeed, every contractual dispute over payment outside an employment relationship) could turn into a suit for conversion, which is simply not the case.

Plaintiffs likewise cannot base a claim for conversion on the alleged retention by defendants of the “value” of plaintiffs' ancestors' labor, or profits derived from such labor. See Am. Compl. 1 240 (alleging defendants have “converted the value of that labor and its derivative profits into defendants' own property”). Conversion requires a well-pleaded allegation of the wrongful taking of a “chattel,” or an “object,” or “personal property which is tangible, or at least represented by or connected with something tangible.” Thebus, 483 N.E.2d at 1260 (quotation omitted). Neither the abstract “value of labor,” nor any right to any profits allegedly derived from such labor, can be characterized as the sort of tangible property that can be the subject of a claim for conversion. See Great Lakes Higher Educ. Corp. v. Austin Bank, 837 F. Supp. 892, 897 (N.D. Ill. 1993) (“Illinois courts do not recognize an action for conversion of intangible rights”). The conversion claim should be dismissed.

6. Plaintiffs' unjust enrichment claim fails as a matter of law.

Plaintiffs' “unjust enrichment” claim (Count VII) fares no better than plaintiffs' other claims. At a minimum, a plaintiff claiming unjust enrichment must allege that a specific defendant received a specific benefit belonging to the plaintiff. See, e.g., HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (II. 1989) (under Illinois law, a plaintiff must plead “that the defendant has unjustly retained a benefit to the plaintiff's detriment”); TRW Title Ins. Co. v. Security Union Title Ins. Co., 153 F.3d 822, 828 (7th Cir. 1998) (same).

Plaintiffs' Amended Complaint fails to allege this most basic requirement. Not only have plaintiffs failed to allege that they themselves conferred any benefit upon any defendant, they have failed to allege that any of their ancestors conferred a specific benefit upon any defendant. Indeed, as noted supra in § I, plaintiffs have not alleged any connection between themselves or their ancestors and any of the defendants. For much the same reasons that the named plaintiffs in this litigation lack standing to pursue their claims, they also lack any basis for a viable claim of unjust enrichment. See, e.g., Int'l Bhd. of Teamsters Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 34 F. Supp. 2d 656, 665 (N.D. Ill. 1998) (rejecting unjust enrichment claim where plaintiffs failed to “allege[] what, if any, benefit they have conferred upon the defendants,” and noting that dismissal would be appropriate either for failure to state a claim or for lack of standing), aff'd,196 F.3d 818 (7th Cir. 1999). Like their other claims, plaintiffs' unjust enrichment claim must be dismissed.

7. Plaintiffs' claim under 42 U.S.C. § 1982 fails as a matter of law.

The claim under 42 U.S.C. § 1982 (Count VIII) is equally deficient. Plaintiffs complain of a “loss of wealth,” Am. Compl. 1 260; see id. 1 258 (“denial of wealth”), and contend that this alleged monetary loss “in turn denies them ... the opportunity to inherit and convey personal and real property,” id. „ 257. These allegations do not state a claim under section 1982.

Section 1982, originally enacted as part of the Civil Rights Act of 1866, “deals with discrimination in property transactions.” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996); accord Jones, 392 U.S. at 420 (section 1982 “grants to all citizens, without regard to race or color, “the same right' to purchase and lease property”). The statute “is limited on its face to discrimination with respect to property rights.” S.-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of Realtors, 713 F. Supp. 1068, 1089 (N.D. Ill. 1988) (internal quotation omitted), aff'd in part and rev'd in part on other grounds,935 F.2d 868 (7th Cir. 1991).

In short, a plaintiff cannot maintain a claim under section 1982 unless he or she pleads and proves discrimination in a transaction involving real or personal property. See, e.g., Morris, 89 F.3d at 415 (where plaintiffs could not demonstrate that they tried to purchase personal property, their § 1982 claim failed); New Christian Valley M.B. Church v. Bd. of Educ., 704 F. Supp. 868, 870 (N.D. Ill. 1989) (church congregation members did not state claim under § 1982 where they did not personally try to buy building); see also Rash v. Minority Intermodal Specialists, Inc., No. 00-C-6352, 2003 U.S. Dist. LEXIS 4311, at *11 (N.D. Ill. Mar. 19, 2003) (claim for termination of employment did not state claim for deprivation of property under § 1982); Rick Nolan's Auto Body Shop, Inc. v. Allstate Ins. Co., 711 F. Supp. 475, 477 (N.D. 111. 1989) (repair shop owner's claim that insurance company terminated “direct repair” agency relationship did not state claim under § 1982).

Here, plaintiffs have not identified any real or personal property of any kind that they (or their ancestors) tried to buy, sell, lease, etc., let alone any property transaction that they (or their ancestors) attempted with any of these defendants (or their alleged predecessors). Plaintiffs' claim rests on the speculation that if they or their ancestors had not been “denied wealth,” they or their ancestors would have purchased real or personal property that they would, in turn, have conveyed and distributed to their descendants. Were such a theory sufficient to state a claim under section 1982, any claim for monetary loss could be converted into a claim under section 1982. But it is not sufficient. Count VIII fails as a matter of law.

8. Plaintiffs' claim under the Alien Tort Statute fails as a matter of law.

Plaintiffs plead “in the alternative” claims under the Alien Tort Statute, 28 U.S.C. § 1350 (2000) (“ATS”). Plaintiffs' ATS claims (Count IX) fail as a matter of law for several independent reasons.

First, plaintiffs fail to satisfy the jurisdictional requirements of the statute. To invoke the court's subject matter jurisdiction under the ATS, a plaintiff must allege: (1) that he or she is an alien; (2) suing for a “tort only”; and (3) a violation of the law of nations or a treaty. See28 U.S.C. 1350. Plaintiffs satisfy none of these requirements.

No named plaintiff alleges that he or she is an alien. Accordingly, plaintiffs cannot pursue claims on their own behalf under the ATS. Nonetheless, plaintiffs suggest that the ATS allows them to pursue claims on behalf of “alien, non-citizen Africans” who were victims of the slave trade and slavery, because “[e]nslaved Africans were aliens, i.e., not considered citizens of the United States.” Am. Compl. [91 239, 238. This allegation does not help plaintiffs. To begin with, plaintiffs have not alleged facts sufficient to establish that they are legal representatives of their ancestors. See supra § I.C. Even if plaintiffs were able to demonstrate that they were the legal representatives of their ancestors, the jurisdictional inquiry focuses on plaintiffs' own status, not the status of their ancestors. See, e.g., Jones v. Petty Ray Geophysical Geosource. Inc., 722 F. Supp. 343, 348 (S.D. Tex. 1989) (plaintiff's ATS claim on behalf of estate of her deceased husband dismissed because “plaintiff's complaint does not allege that the plaintiff is an alien”) (emphasis added), aff'd,954 F.2d 1061 (5th Cir. 1992).

Nor have plaintiffs satisfied the second and third jurisdictional requirements of ATS - a tort only in violation of the law of nations or a treaty of the United States. As discussed supra in § IV.B.2, the Supreme Court has held that neither slavery nor slave trading violated the law of nations prior to 1865. See Osborn, 80 U.S. at 661 (slavery and slave trade recognized by the law of nations); The Antelope, 23 U.S. (10 Wheat) 66 (1825) (same); see also Handel, 601 F. Supp. at 1428-1429 (global consensus regarding human rights developed during the decades between the two World Wars). Even if these Supreme Court precedents were disregarded, plaintiffs have failed to allege that any defendant committed a tort against them or any of their ancestors.

Second, even if this court had subject matter jurisdiction under the ATS (it does not), the ATS does not provide an independent cause of action. Enacted as part of the Judicial Code of 1789, the ATS merely provides original jurisdiction in district courts for actions “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The Supreme Court has held that the “Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions.' Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249 (1951). Nor can courts imply a private cause of action in the absence of clear statutory intent. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001); Miller Aviation v. Milwaukee County Bd. of Supervisors, 273 F.3d 722, 729-30 (7th Cir. 2001). Accordingly, the ATS cannot be read to create a private cause of action. See Al Odah v. United States, 321 F.3d 1134, 1146-47 (D.C. Cir. 2003) (Randolph, J., concurring); Tel-Oren, 726 F.2d at 799 (Bork, J., concurring) (same); Jones, 722 F. Supp. at 348 (“Section 1350 merely serves as an entrance into the federal courts and in no way provides a cause of action to any plaintiff.”). Plaintiffs fail to state a claim under the ATS.

9. Plaintiffs have not pled a claim under any of the state statutes they invoke.

Plaintiffs' invocation (in Counts X-XIV) of private rights of action under the consumer protection or trade practices statutes of five separate states (Illinois, Louisiana, New Jersey, New York, and Texas) adds nothing to the merits of their case. These statutes were not enacted until a century after the abolition of slavery, and cannot be applied retroactively to impose liability for pre-enactment events (even if such claims would not otherwise be barred by the applicable statutes of limitations, which they are, see supra § II.A). Moreover, to the extent plaintiffs seek to attack more recent conduct of the defendants, they have not pled the elements of a violation of any of these statutes with respect to any of the defendants.

a. The statutes cannot be applied retroactively.

The statutory private rights of action plaintiffs seek to assert were created by the respective state legislatures at various times between 1971 and 1980. SeeLa. Rev. Stat. Ann. §§ 51:1401-1420 (enacted 1973); 815 Ill. Comp. Stat. 505/10a (statute enacted in 1961, but section authorizing private right of action not enacted until 1973); N.J. Stat. Ann. §§ 56:8-19 (statute enacted in 1960, but section authorizing private right of action not enacted until 1971); N.Y. Gen. Bus. L. § 349(h) (statute enacted 1970, but section authorizing private right of action not enacted until 1980); Tex. Bus. &. Com. Code §§ 17.41-17.63 (enacted 1973). None of these statutes can be applied to impose liability for pre-enactment conduct.

The Amended Complaint's allegations concerning the conduct of defendants is unspecific as to date, but all of the alleged conduct relating to profiting or benefiting from slavery necessarily occurred prior to 1865. Likewise, the plaintiffs' lengthy recital of facts they assert are “related” to their claims under the various state laws they invoke - a recital which does not link any of these “related” facts to any act or omission of any of the defendants - is almost entirely devoted to events prior to 1865. Am. Compl. „„ 103-124 (including, as only post-1865 event, a 1908 race riot in Springfield, Illinois not alleged to have involved either any of the plaintiffs or any of the defendants). Because these statutes are thus necessarily inapplicable to such pre-enactment conduct (and would in any event be unconstitutional if applied retroactively to slavery-related transactions that were lawful at the time - see supra § IV.A), Counts X, XI, XII, XIII, and XIV must be dismissed.

b. No violation of any of the statutes is pleaded.

To the extent plaintiffs' vague and conclusory allegations (see Am. Compl. „ 93) of “unconscionable, fraudulent and deceptive public communications made by defendants” are intended to provide a basis for a post-enactment violation of any of these statutes, no such claim can be maintained. First and foremost, the Amended Complaint's conclusory allegations utterly fail to comply with the specificity requirements of Rule 9(b) - they do not disclose to the reader who allegedly said what to whom on what date, much less how any such statement might constitute a violation of any statute invoked. See Ackerman v. Northwestern Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999) (Rule 9(b) “requir[es] the plaintiff to allege the who, what, where, and when of the alleged fraud”); Unique Coupons, Inc. v. Northfield Corp., No. 99 C 7445, 2000 WL 631324, at *3 (N.D. Ill. May 16, 2000) (dismissing Illinois consumer fraud statutory claim under Rule 9(b) because plaintiff's “allegations are too conclusory; there is no indication of who said what and when and how”). Moreover, plaintiffs fail to allege the location of any of these unspecified public statements, and in particular do not allege that any particular defendant made any such statements in any of the five states at issue, much less in all of them, a critical element of any state statutory claim. See, e.g, Goshen v. Mut. Life Ins. Co., 774 N.E.2d 1190, 1195 (N.Y. 2002) (no violation of New York statute unless transaction in which the consumer is allegedly deceived occurs in New York). Nor does the Amended Complaint contain any allegation that any of the plaintiffs engaged in any consumer transaction with any of the defendants in reliance on such statements. Plaintiffs also fail to plead one or more essential elements required for liability under each of the five statutes they invoke. For example:

Illinois. In order to state a claim under the Illinois statute, a plaintiff must plead and prove: “(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002). A plaintiff specifically “must state the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated.” Gallagher Corp. v. Mass. Mut. Life Ins. Co., 940 F. Supp. 176, 180 (N.D. Ill. 1996) (internal quotation omitted). Plaintiffs have not done so, and Count X must be dismissed.

Louisiana. Under La. Rev. Stat. Ann. § 51:1409(A), a private right of action is available only to a plaintiff who “suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result” of a violation by the defendant of the statute. Id. None of the plaintiffs have alleged any such ascertainable loss of money or movable property, and Count XI must therefore be dismissed.

New Jersey. In language similar to that of the Louisiana statute, N.J. Stat. Ann. § 56:8-19 provides that a private right of action is available only to “[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act.” Id. Since no such ascertainable loss of money or property is alleged, Count XII must therefore be dismissed.

New York. Plaintiffs have not alleged that any defendant has engaged in “[c]onsumer-oriented conduct” with a “broad[ ] impact on consumers at large” or that any act or practice of any defendant was “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744-45 (N.Y. 1995). Accordingly, there is no potential basis for liability under the New York statute. Likewise, there is no allegation that any plaintiff has been injured as a result of any alleged public statement by any defendant, which is likewise fatal to such a claim. See id. Count XIII must therefore be dismissed.

Texas. Under the Texas statute, a plaintiff must plead and prove damages caused by one of the twenty-six specific unlawful practices enumerated in Tex. Bus. & Com. Code § 17.46 which was detrimentally relied on by plaintiff, or by one of the other three types of conduct proscribed by § 17.50(a). Plaintiffs have not done so, and Count XIV must therefore be dismissed.

10. The California plaintiffs' unfair competition (Section 17200) claim fails as a matter of law.

Plaintiffs in the Hurdle action (the only action that was not included in the Amended Complaint) have asserted an additional - but equally deficient - state law claim against certain defendants under California's unfair competition law (the “UCL”). In addition to being barred by the four-year statute of limitations (see supra § II.A), plaintiffs' claim fails as a matter of law because the UCL cannot be retroactively applied to reach the conduct described in their complaint.

California's unfair competition law first appeared in 1933 in California Civil Code § 3369 and provided that “any person performing or proposing to perform an act of unfair competition within this State may be enjoined in any court of competent jurisdiction.” Id. In 1977, this provision was separately codified at Cal. Bus. & Prof. Code § 17203 as part of what is now known as the UCL. Section 17203, like its predecessor, reached only ongoing and imminent business practices. In August 1992, the California legislature amended Section 17203 to reach instances of past unfair competition, seeCal. Bus. & Prof. Code § 17203 (2003), so long as such conduct took place after August of 1992, the date of this enactment, an issue that already has been squarely decided. See Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998) (1992 amendments to the UCL have no retroactive application); accordCal. Civ. Code § 3 (2003) (a statute is not retroactive unless it so states expressly); Myers v. Philip Morris Cos., 50 P.3d 751, 758-62 (Cal. 2002) (absent express statement of retroactivity, statute has only prospective application).

Conduct that ended by 1865 is not within the purview of the UCL. As discussed supra in § IV.B.1, defendants' purported failure to provide an accounting to plaintiffs, the only conduct alleged in the Hurdle complaint that extends past 1865, cannot support an unfair competition claim because defendants were under no obligation - legal or otherwise - to provide such an accounting, and thus there is nothing unlawful, unfair or fraudulent in defendants' failure to do so. Moreover, although the Hurdle complaint alleges that the effects of slavery continued past 1865, there is no allegation that the defendants engaged in any conduct after 1865 that would constitute an unfair or unlawful business practice. In sum, California's modern unfair competition law simply does not reach the conduct alleged in the Hurdle complaint.

11. Plaintiffs' conspiracy claim and other third-party liability allegations fail as a matter of law.

As noted throughout this brief, one of the fundamental defects in the Amended Complaint is its failure to connect an alleged injury of any one of these plaintiffs to alleged conduct by any one of these defendants. Rather, plaintiffs seek to hold defendants liable for an entire chapter of history simply because their alleged predecessors purportedly were doing business in nineteenth century America. To try to obscure this fundamental defect, the AmendedComplaint includes a “conspiracy” count, as well as assorted terms like “aiding-and-abetting,” “criminal enterprise,” “joint venture,” and “agency relationship,” which are intended to allege some kind of third-party liability. As discussed herein, the attempt fails. The conspiracy count does not state a claim, and the use of other terms like “aiding and abetting” cannot cure the defects in the Amended Complaint.

a. The conspiracy count fails to state a claim.

Plaintiffs' conclusory allegation that the defendants' industries generally conspired with one another and with “their industry groups” to perpetuate and profit from slavery, Am. Compl. 1[ 216-218, fails the most basic requirement for maintaining such a claim: that the plaintiffs plead facts demonstrating the existence of an agreement. See Sain v. Nagel, 997 F. Supp. 1002, 1017 (N.D. Ill. 1998) (Illinois law).

A plaintiff cannot create a conspiracy claim by merely applying the label “conspiracy” to descriptions of alleged acts or intentions. Such conclusory or general allegations of a conspiracy are subject to dismissal. See, e.g., Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 860 (7th Cir. 1999) (“[Blare allegation of conspiracy ... does not satisfy Rule 8, either under our cases ... or cases in the other circuits that have dealt with the issue.”) (citations omitted); accord Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Norris v. Krystaltech Int'l, Inc., 133 F. Supp. 2d 465, 469 (S.D. Miss. 2000).

Here, plaintiffs do not allege any type of agreement between one defendant and anyone else to commit wrongs against plaintiffs. They do not name a date or place at which any purported agreement was reached, do not name the actors between whom it was allegedly agreed, and do not indicate how any particular defendant - let alone each and all of the defendants - could have been a participant in such an agreement. See Ryan, 188 F.3d at 860 (dismissing conspiracy claim where complaint gave no indication of when agreement between defendants was formed, terms of agreement, or role of individual defendant); Norris, 133 F. Supp. 2d at 469 (dismissing claim where allegations of conspiracy were conclusory and unsupported by factual allegations); A-Valey Eng'rs, Inc. v. Bd. of Chosen Freeholders, 106 F. Supp. 2d 711, 718 (D.N.J. 2000) (dismissing conspiracy claim that failed to describe the “general composition of the conspiracy and the role of each defendant therein”).

At most, plaintiffs allege that defendants - or, in most cases, some unidentified predecessors of defendants - were doing business in this country prior to the Civil War when the predecessors of other companies were also doing business, and that they were “co-dependent on each other.” Am. Compl. „ 217. Thus, rather than allege any specific agreement, plaintiffs simply assert that defendants or their alleged predecessors existed pre-Civil War, and such existence, ipse dixit, subjects them to liability because of the nature of this country's interdependent economy. Under plaintiffs' “doing-business-equals-a-conspiracy” theory, any business would be liable as a co-conspirator for any other business' conduct at any point in history. Such allegations are even further removed from proper pleading of a civil conspiracy than allegations of parallel action, which themselves would be insufficient. See, e.g., McClure v. Owens Coming Fiberglas Corp., 720 N.E.2d 242, 259 (Ill. 1999); Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 224 (N.Y. 1992); Matthews v. Johnson Publ'g Co., 366 S.E.2d 525, 527 (N.C. Ct. App. 1988). Indeed, the complaint alleges a mere commonality of interest, which is entirely inadequate to show a conspiracy. See, e.g., Bldg. Indus. Fund v. Local Union No. 3, 992 F. Supp. 162, 186 (E.D.N.Y. 1996), aff'd,141 F.3d 1151 (2d Cir. 1998); Green v. Advance Ross Elecs. Corp., 408 N.E.2d 1007, 1013 (Ill. App. Ct. 1980), aff'd,427 N.E.2d 1203 (Ill. 1981).

Moreover, the conspiracy claim fails for an additional, independent reason: Conspiracy is “not an independent cause of action, but ... only the mechanism for subjecting coconspirators to liability when one of their members committed a tortious act.” Beck v. Prupis, 529 U.S. 494, 503-04 (2000). Thus, whereee ... a plaintiff fails to state an independent cause of action underlying its conspiracy allegations, the claim for a conspiracy also fails.” Indeck N. Am. Power Fund, L.P. v. Norweb PLC, 735 N.E.2d 649, 662 (Ill. App. Ct. 2000). Because, as demonstrated above, plaintiffs have not stated a claim for any underlying tort, the conspiracy count must fail. The “civil conspiracy” label adds nothing to save the Amended Complaint from dismissal.

b. Plaintiffs' other allegations of third-party liability fail to create such liability.

Plaintiffs' attempt to create third-party liability through the use of terms like “aiding and abetting” is no more successful than their attempt to use the conspiracy count to create such liability. Plaintiffs assert that “Defendants aided and abetted others in the furtherance of the commission of ... crimes.” Am. Compl. q 206 (emphasis added). Private citizens, however, have no authority to bring suits claiming violations of the criminal law, Kuhne v. Illinois, 124 F.3d 204, No. 96-3160, 1997 WL 452312, at *2 (7th Cir. Aug. 6, 1997) (imposing sanctions on private citizen seeking to bring criminal suit), and the federal statute authorizing criminal aiding and abetting liability does not create a civil cause of action for aiding and abetting. See Cent. Bank of Denver, N.A., 511 U.S. at 191.

Moreover, even if plaintiffs had alleged that defendants were civilly liable for a tort of aiding and abetting, instead of for aiding and abetting “crimes,” the allegations of the Amended Complaint would still fail because thereee is no tort of aiding and abetting under Illinois law.” Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 452 (7th Cir. 1982). Indeed, Judge Posner went on to say in Cenco that he was unaware of a general civil tort of aiding and abetting under the law of any other state either. Id.; cf. Guidry v. Bank of LaPlace, 661 So. 2d 1052, 1057 (La. Ct. App. 1995) (in absence of conspiracy, no distinct cause of action for aiding and abetting). Nor is there any general federal civil aiding and abetting liability. See Cent. Bank of Denver, N.A., 511 U.S. at 181-82. Rather, civil liability for aiding and abetting under federal law may be imposed only when a statute expressly creates such liability. See id. at 183 (to hold otherwise would be a “vast expansion of federal law”).

Finally, even if plaintiffs had alleged liability for aiding and abetting a tort or statutory violation (they have not), and even if such liability were expressly recognized by law (it is not), their Amended Complaint would have to be dismissed because they have failed entirely to plead facts supporting such liability: specific knowledge by the defendant of an identified principal's intent to commit the wrongful act, intent by the defendant to further the wrong, and action by the defendant in furtherance of the wrongful act. See, e.g., Damato v. Hermanson, 153 F.3d 464, 473 (7th Cir. 1998) (requirements under Commodity Exchange Act, which creates a cause of action for aiding and abetting).

The other terms used by plaintiffs fall even further afield. For example, plaintiffs allege third-party liability under a “criminal enterprise” theory, see Am. Compl. „ 208, but the continuing criminal enterprise statute is a federal criminal statute for which the federal government has the sole power to bring an action or punishment. See21 U.S.C. § 848 (2000). Similarly, plaintiffs have not pled any facts to support that each or any defendant was engaged in a “joint venture” or “agency relationship” with any other party, or that such concepts could somehow create third-party liability. See, e.g., Pinski v. Adelman, No. 94 C 5783, 1995 WL 669101, at *14 (N.D. Ill. Nov. 7, 1995) (to survive a motion to dismiss, plaintiffs must plead “sufficient allegations to support the legal conclusion respecting agency”); Zeising v. Kelly, 152 F. Supp. 2d 335, 348-349 (S.D.N.Y. 2001) (dismissing claim where plaintiff failed adequately to plead each element of joint venture) (citing Barrett v. POAG & McEwen Lifestyle Cts.-Deer Park Town Ctr., LLC, No. 98 C 7783, 1999 WL 691850, at **6-8 (N.D. Ill. Aug. 26, 1999)). Put simply, like plaintiffs' conspiracy claim, plaintiffs' other allegations of third-party liability do not create such liability or cure the incurable defects in the AmendedComplaint.

CONCLUSION

Without question, the historical events described in the Amended Complaint caused great suffering and deep scars in this nation's history. But it is also beyond debate that our judicial system is not a proper forum for redressing the grievances arising from that era. Without alleging any connection between themselves or their ancestors and these present-day companies named as defendants, plaintiffs seek to use the courts to examine a tragic period in our nation's history. But plaintiffs cannot meet the basic requirements of standing, timeliness, and justiciability; nor can they state a cognizable claim. Defendants respectfully request that plaintiffs' Amended Complaint be dismissed with prejudice.

Footnotes

1

Plaintiffs' fourteen-count Amended Complaint asserts claims under the labels “conspiracy,” “demand for an accounting,” “crime against humanity,” “piracy,” “intentional infliction of emotional distress,” “conversion,” “unjust enrichment,” “42 U.S.C. § 1982,” “Alien Torts [Statute],” “Illinois state claim,” “Louisiana state claim,” “New Jersey claim,” “New York state claim,” and “Texas state claim.”

2

See also Johnson v. United States, 70 F.3d 1279, No. 94-36012, 1995 WL 713502 (9th Cir. 1995) (political question doctrine, standing, sovereign immunity); Bey v. United States, No. 02-705 (W.D. Pa. Oct. 31, 2002) (report and recommendation) (political question doctrine, statute of limitations), adopted, No. 02-705 (W.D. Pa. Dec. 19, 2002) (memorandum order); Bell v. United States, No. Civ. A. 301CV0338D, 2001 WL 1041792 (N.D. Tex. Aug. 31, 2001) (standing, sovereign immunity); Campbell v. IRS, No. 1:01 CV 588, 2001 U.S. Dist. LEXIS 23639 (N.D. Ohio Mar. 31, 2001) (statute of limitations, failure to exhaust administrative remedies); Butts v. IRS, No. 1:01CV0589, 2001 WL 1823930 (N.D. Ohio Mar. 26, 2001) (sovereign immunity); Boatwright v. IRS, No. 1:01CV0063, 2001 WL 350238 (N.D. Ohio Feb. 28, 2001) (same); Boatwright v. IRS, Case No. 1:01 CV 70, 2001 U.S. Dist. LEXIS 3100 (N.D. Ohio Feb. 28, 2001) (statute of limitations, failure to exhaust administrative remedies); Bey v. United States Dep't of Justice, No. 95 CIV. 10401 (LMM), 1996 WL 413684 (S.D.N.Y. July 24, 1996) (adopting Cato) (standing, political question doctrine, sovereign immunity); Langley v. United States, No. C. 95-4227 SBA, 1995 WL 714378 (N.D. Cal. Nov. 30, 1995) (standing);

4

See also Deutsch v. Turner Corp., 317 F.3d 1005, 1028-29 (9th Cir.) (affirming dismissal of slave labor claims against private corporations as, inter alia, time-barred), amended by324 F.3d 692 (9th Cir.), petition for cert. filed, 71 U.S.L.W. 3776 (U.S. June 2, 2003); Wolf v. Fed. Republic of Germany, 95 F.3d 536, 544 (7th Cir. 1996) (dismissing claims against private defendant on standing grounds); Kelberine v. Societe Internationale, 363 F.2d 989, 992 (D.C. Cir. 1966) (dismissing on justiciability and statute of limitations grounds reparations claims for World War II era slave labor against private company); Ungaro-Benages v. Dresdner Bank AG, No. 01-CV-2547 (S.D. Fla. Feb. 14, 2003) (memorandum opinion) (dismissing claims against private defendants for seized property on grounds of standing, statute of limitations, justiciability, and failure to state a claim), appeal filed, No. 03-11880 (l1th Cir. 2003); In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 389 (D.N.J. 2001) (dismissing slave and forced labor claims as nonjusticiable); Fishel v. BASF Group, No. 4-96-CV-10449, 1998 U.S. Dist. LEXIS 21230, at *26-33 (S.D. Iowa Mar. 11, 1998) (holding claims arising out of corporation's forced-labor practices during World War II to be time-barred).

5

Indeed, the Amended Complaint does not aver any contact whatsoever between any defendant and any one of plaintiffs' ancestors.

6

The law in the other jurisdictions mentioned in the Amended Complaint would lead to the same result. SeeN.J. Stat. Ann. § 2A:15-3 (2003) ( “[e]xecutors and administrators may have an action for any trespass done to the person ... of their testator or intestate”); Estate of Maselli by Maselli v. Silverman, 606 F. Supp. 341, 343 (S.D.N.Y. 1985) (noting that New York law “requires all surviving actions be brought by a legally appointed representative”); Frazier v. Wvnn, 472 S.W.2d 750, 752 (Tex. 1971) (“It is settled in Texas that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.”); Snipes v. Estates Admin., Inc., 28 S.E.2d 495, 498 (N.C. 1944) (noting that the “better, and more orderly, procedure” is for administrator of estate to bring action on behalf of estate rather than heirs bringing suit); Berryhill v. Nichols, 158 So. 470, 471 (Miss. 1935) (action for injuries to decedent outside scope of wrongful death act must be maintained by decedent's personal representative and “not by the next of kin or heirs at law”); S.C. Code Ann. § 62-3-703(c) (2002) (“personal representative of a decedent ... has same standing to sue ... as his decedent had immediately prior to death”); Strader v. Metro. Life Ins. Co., 105 S.E. 74, 76 (Va. 1920) (noting that legatee may not maintain action to recover property of decedent without approval from personal representative of decedent's estate). Finally, current Louisiana law (La. Civ. Code Ann. art. 2315.1 (2003)) provides that designated relatives may bring action for damages caused to their decedent by offense or quasi-offense (the civil law analogues to tort), but the same statute specifies that any such action must be brought within one year of the death of the relative whose rights are sought to be asserted, which unquestionably has not happened here. This time period is “peremptive” under Louisiana law, and thus not subject to tolling or extension. See Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 906-07 (5th Cir. 1985) (applying Louisiana law and affirming judgment against widow and surviving children who failed to bring suit within one year of death).

7

Moreover, all of the claims plaintiffs seek to assert on behalf of their ancestors were abated and extinguished no later than the dates of death of the various persons in whose favor they might have originally accrued. Even if their ancestors had a cause of action arising from pre-emancipation slavery (cf. infra § IV.A), such an action must necessarily have accrued no later than the enactment of the Thirteenth Amendment in 1865, and there is no dispute that all such ancestors are now deceased. “At common law, when a person died any personal tort causes of action which he might have had died with him.” Burgess v. Clairol, Inc., 776 F. Supp. 1278, 1283 (N.D. Ill. 1991) (citation omitted). All states have now modified this universal common-law rule by statute, enacting so-called survival acts. However, these survival acts cannot provide any benefit to plaintiffs, because virtually without exception they were first enacted well after 1865 - indeed, in many cases, not until the 20th century. See, e.g., Wilmere v. Stibolt, 504 N.E.2d 916, 917 (11. App. Ct. 1987) (Illinois Survival Act was first enacted in 1872); Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1167 (Miss. 1992) (claims for “injuries or torts done to the person” did not survive under Mississippi law prior to 1871) (quotation omitted); Hofer v. Lavender, 679 S.W.2d 470, 471-72 (Tex. 1984) (common law rule in Texas first changed by adoption of survival act in 1895); Hoke v. Atl. Greyhound Corp., 38 S.E.2d 105, 108 (N.C. 1946) (tort claims for personal injury did not survive under North Carolina law prior to 1915 amendment of survival act); Fontheim v. Third Ave. Ry., 12 N.Y.S.2d 90, 92 (App. Div. 1939) (noting 1935 enactment of first New York statute providing for survival of causes of action for personal injury); Ferguson v. Charleston Lincoln/Mercury, Inc., 544 S.E.2d 285, 288 (S.C. Ct. App. 2001) (noting that personal injury claims did not survive death in South Carolina prior to 1905 amendment of statute), aff'd,564 S.E.2d 94 (S.C. 2002); see also Miller v. Am. Mut. Liab. Ins. Co., 42 So. 2d 328, 330 (La. Ct. App. 1949) (“[B]oth at common law and at civil law a right of action for damages for personal injuries does not survive in case of death [but rather] died with the death of the injured party.....”).

8

The California statutory claim, asserted in the Hurdle complaint, was not included in the Amended Complaint. Cf. infra n.57.

9

The “standard and almost universal” practice under federal law has been to borrow the statute of limitations applicable to the most analogous cause of action under the law of the state in which the federal court sits. 19 Charles A. Wright, et al., Fed. Prac. & Proc. § 4519, at 595 (1996); see, e.g., North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“Since 1830, “state statutes have repeatedly supplied the periods of limitation for federal causes of action' when federal legislation made no provision.”) (quoting Auto. Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04 (1966)); Wilson v. Garcia, 471 U.S. 261 (1985) (adopting state law personal injury limitation period for claims under 42 U.S.C. § 1983).

10

See Ratification Status of the Rome Statute at <http:// untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp #N6>.

11

See Ratification Status of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity at <http:// 193.194.138.190/html/menu3/b/treaty6.htm>.

12

See, e.g., Deutsch, 317 F.3d at 1028-29;Hair v. United States, 52 Fed. Cl. 279 (2002); Hohri v. United States, 847 F.2d 779 (Fed. Cir. 1988); Ungaro-Benages, No. 01-CV-2547, mem. op. at 23-27; Iwanowa, 67 F. Supp. 2d at 424;Fishel, 1998 U.S. Dist. LEXIS 21230; Japanese War Notes Claimants Ass'n of the Philippines, Inc. v. United States, 373 F.2d 356 (Ct. Cl. 1967); Sampson v. Fed. Republic of Germany, 975 F. Supp. 1108 (N.D. 11.1997), aff'd,250 F.3d 1145 (7th Cir. 2001); Handel, 601 F. Supp. at 1434.

13

Plaintiffs also refer to efforts in Congress, repeated for the past eleven years, to obtain legislative relief for slavery. See Am. Compl. „ 195. But plaintiffs do not explain how these failed legislative efforts, more than a century after emancipation, invoke the discovery rule.

14

Moreover, the discovery rule is inapplicable as a matter of law to certain of plaintiffs' statutory claims. Canal Marine Supply, Inc. v. Outboard Marine Corp., 522 So. 2d 1201, 1204 (La. Ct. App. 1988) (one-year limitations period applicable to Lousiana unfair trade practices and consumer protection claim is “peremptive,” and thus subject neither to the discovery rule nor any other tolling doctrine); Wender v. Gilberg Agency, 716 N.Y.S. 2d 40, 41-42 (App. Div. 2000) (three-year limitations period applicable to claims under N.Y. Gen. Bus. Law § 349 not subject to extension by discovery rule).

15

See, e.g., Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986) (“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.”); Iwanowa, 67 F. Supp. 2d at 484.

16

See also Baker, 369 U.S. at 216;Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 65 (D. D.C. 2001) (“If any of these six factors is inextricable from the case at bar, then dismissal for non-justiciability on the ground of a political question's presence is appropriate”) (internal quotations omitted), aff'd,No. 01-7169, 2003 WL 21473010 (D.C. Cir. June 27, 2003); Kwan v. United States, 84 F. Supp. 2d 613, 622 (E.D. Pa. 2000), aff'd,272 F.3d 1360 (Fed. Cir. 2001).

17

The Supreme Court noted in Baker v. Carr, “the cessation of hostilities does not necessarily end the war power ... [which] includes the power to remedy the evils which have arisen from its rise and progress and continues during that emergency.” 369 U.S. at 213 (quotations omitted).

18

This is not the first time a challenge has been brought to the political arrangements that ended the Civil War chapter of American history. Indeed, the Supreme Court long ago held that courts should not interject themselves into the Civil War-era efforts of the President and Congress to bring the war to an end and to attempt to compensate and protect former slaves - the very subject of this litigation. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 54-55, 61-62 (1867) (refusing to consider challenge to the Reconstruction Acts of 1867, which effectively imposed martial law in the post-war South to protect former slaves, because it involved a non-justiciable political question); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499-501 (1866) (refusing to enjoin the President from performing his duties as commander-in-chief in enforcing Reconstruction Acts because “general principles ... forbid judicial interference with the exercise of Executive discretion”).

19

In considering a motion under Fed. R. Civ. P. 12(b), the Court may take judicial notice of official acts of government. See Menominee Indian Tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998).

20

For example: In 1861, Congress passed the First Confiscation Act as the first step to punish persons who participated in the rebellion by confiscating their property. This legislation also freed slaves who had been forced to join the Confederate army. 12 Stat. 319 (1861). Later, in 1862, Congress prohibited the U.S. military from returning escaped slaves to their owners. 12 Stat. 354 (1862). Congress abolished slavery in the District of Columbia. 12 Stat. 376 (1862). Congress enacted the Direct Tax Act, which imposed a tax lien on Confederate real property and authorized the President to confiscate such property in areas occupied by the Union army. 12 Stat. 422-26 §§ 1, 5-7, 11 (1862). This Act specifically provided for the use of confiscated Confederate property to fund relief for freed slaves. Congress abolished slavery in the United States territories. 12 Stat. 432 (1862). The Militia Act was passed to authorize the President to employ “persons of Afiican descent” in the armed forces and to free them from any owners who had supported the Confederacy. 12 Stat. 597-600 §§ 12, 13 (1862). And Congress passed the Second Confiscation Act, 12 Stat. 589-92 (1862), which freed all escaped slaves who were owned by “persons who shall hereafter be engaged in rebellion against the government of the United States.” Id.

21

This book contains a reprinted collection of a number of the orders, proclamations and directives issued by the Union Army and members of the Executive Branch during and after the Civil War that ultimately resulted in the emancipation of the slaves.

22

Driven by pragmatic concerns about prosecuting the Union war effort, Lincoln expressly excused from this proclamation certain strategically important areas of the country considered loyal or potentially loyal to the Union, including Tennessee, West Virginia and certain parts of Louisiana. Id.

23

See, e.g, Order by Cmdr. of the Dep't of the Gulf, in History of Emancipation, vol; III, doc. 81. General Order No. 12, issued by the Military Governor in the Department of the South, apportioned to former slaves (i.e., “freedmen”) small plots of land on which they could grow their own sustenance. See General Order No. 12, Dec. 20, 1862, in History of Emancipation, vol. II, doc. 28; see also Order by Sec'y of War, Jan. 28, 1863, in History of Emancipation, vol. II, doc. 15. On July 29, 1864, the Secretary of the Treasury promulgated regulations respecting the employment and welfare of former slaves. See Plantation Regulations by the Sec'y of Treasury, in History of Emancipation, vol. III, doc. 119. The best known of these initiatives was General Sherman's January 16, 1865 order - rescinded not long thereafter by President Andrew Johnson - that select areas along the South Carolina, Georgia and Florida coasts be used to provide plots of not more than 40 acres to freed slaves. Special Field Order No. 15, in History of Emancipation, vol. III, at 338-40. The order provided certain other settlement rights to former slaves that had served in the U.S. armed forces. Id. § IV; see also Order by Cmdr. of the South Carolina Expeditionary Corps (BG Sherman), Feb. 6, 1862, in History of Emancipation, vol. III, doc. 9.

24

After the Confederate surrender, as the statutory term of the Freedman's Bureau Act came to a close, Congress twice enacted legislation to extend it. Each time, President Johnson vetoed the legislation because he objected to giving confiscated land to former slaves. See 8 Messages and Papers of the Presidents 3596-3603 (1896) (Feb. 19, 1866 veto message); 8 Messages and Papers of the Presidents 3620-24 (1896) (July 16, 1866 veto message); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 397-98 (1978) (Marshall, J., concurring in the judgment in part and dissenting in part). Congress overrode the President's second veto, but with only a watered down version of the previous Freedmen's Bureau Act. See George R. Bentley, A History of the Freedmen's Bureau 133 (1955). In the end, the Freedmen's Bureau, which became embroiled in controversy over the construction of Howard University, see id. at 203-14, expired from lack of funding.

25

In fact, Congressman Stevens' effort to make it illegal for the Freedmen's Bureau to restore to their former owners lands held under the possessory titles conferred by General Sherman was defeated, as was a proposal to reserve one million acres of public land in the South for the use of refugees and freedmen. See Bentley, supra, at 134. Similar resolutions introduced by Senator Sumner were also defeated. See Foner, Reconstruction at 308-09 (citing Cong. Globe, 40th Cong., 1st Sess., 15, 51, 55, 79, 114, 147, 203-08, 304-08, 463 (1867)); Foner, Politics and Ideology at 131-49.

26

The Radical Republicans in Congress (led by Congressman Thaddeus Stevens and Senator Lyman Trumbull), unable to muster the votes for an expanded Freedmen's Bureau, turned to civil rights legislation, principally to ensure the rights to vote, to due process and, in particular, to contract to work for wages. In anticipation of this civil rights legislation, in March 1867, Congress enacted the Reconstruction Acts to provide for martial law in the former Confederacy until such time as new state constitutions and various civil rights acts were enacted and the states reincorporated into the Union. 14 Stat. 2-4, 428-29 (1867). Such enactments and the President's associated enforcement of martial law in the South were a clear exercise of the war- and peace-making powers granted to the political branches under the Constitution. See Stanton, 73 U.S. at 54-55, 61-62;Johnson, 71 U.S. at 499-501.

27

As the Supreme Court noted, in “abolish[ing] slavery, and establishing] universal freedom” in this nation, the Framers of the Thirteenth Amendment empowered Congress “to enforce the article by appropriate legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-40 (1968) (quotations omitted); U.S. Const. amend. XIII, § 2. This enabling “clause clothe[s] Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Jones, 392 U.S. at 439 (internal quotation omitted). Similar enabling clauses were included in the Fourteenth and Fifteenth Amendments. SeeU.S. Const. amend. XIV, § 5; id.amend. XV, § 2.

28

See H.R. 40, 107th Cong., 1st Sess. (2001); H.R. 40, 106th Cong., 1st Sess. (1999); H.R. 40, 105th Cong., 1st Sess. (1997); H.R. 891, 104th Cong., 1st Sess. (1995); H.R. 40, 103d Cong., 1st Sess. (1993); H.R. 3745, 101st Cong., 1st Sess. (1989).

29

See also Hwang Geum Joo, 172 F. Supp. 2d at 67 therehee is no question that this court is not the appropriate forum in which plaintiffs may seek to reopen those discussions [about reparations for sexual slavery] nearly a half century later”); id. at 66 (the rationale for dismissal in Kelberine is “even more persuasive now, decades later, when plaintiffs seek to adjudicate conduct sixty to seventy years after it occurred”); In re Nazi Era Cases, 129 F. Supp. 2d at 389 (“This Court must dismiss Plaintiff's claims because the magnitude of World War II has placed claims such as his beyond the province of this Court, and into the political realm.”); Iwanowa, 67 F. Supp. 2d at 489 (“The specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task for this Court to tackle than the Kelberine Court could have ever contemplated.”); Burger-Fischer, 65 F. Supp. 2d at 284 (“By what conceivable standard could a single court arrive at a fair allocation of resources among all the deserving groups? By what practical means could a single court acquire the information needed to fashion such a standard?”); see also Ungaro-Benages, No. 01-CV-2547, mem. op. at 12-16 (adopting Iwanowa, Burger-Fischer, and In re Nazi Era Cases).

30

Although plaintiffs have made no effort to plead facts relevant to a choice-of-law analysis, variations between the relevant laws of the different states are not material for purposes of this motion to dismiss because plaintiffs have failed to allege the most basic requirements for a claim under the laws of any potentially applicable jurisdiction. Accordingly, at this stage, a choice-of-law analysis is not required. See Jean v. Dugan, 20 F.3d 255, 260 (7th Cir. 1994).

31

Other Illinois courts have recognized accounting claims upon a showing of fraud. See, e.g., People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188, 190 (111. App. Ct. 1986); Mayr v. Nelson Chesman & Co., 195 Ill. App. 587, 1915 WL 2527 (1915). The Amended Complaint does not advance a claim of fraud.

32

Other jurisdictions impose similar requirements, to the extent that they even recognize a separate cause of action for accounting. See, e.g., Burdick v. Grimshaw, 168 A. 186 (N.J. Ch. 1933); Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44 (2d Cir. 1996) (New York); Rodgers v. Roulette Records, Inc., 677 F. Supp. 731 (S.D.N.Y. 1988); Hodson v. Hodson, 292 So. 2d 831 (La. Ct. App. 1974); Crescent River Port Pilots' Ass'n v. Heuer, 193 So. 2d 276 (La. Ct. App. 1966); Norman v. Nash Johnson & Sons' Farms, Inc., 537 S.E.2d 248 (N.C. Ct. App. 2000); Watson v. Fulk, 198 S.E.2d 730 (N.C. Ct. App. 1973); Elliott v. Ballentine, 173 S.E.2d 552 (N.C. Ct. App. 1970); Burgin v. Smith, 141 So. 760 (Miss. 1932); Bradley v. Howell, 134 So. 843 (Miss. 1931); T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass'n, 79 S.W.3d 712 (Tex. App. 2002).

33

Plaintiffs do not even allege that plaintiffs and defendants maintained mutual accounts.

34

Plaintiffs also cannot establish the absence of an adequate remedy at law and a need for discovery. Indeed, the Amended Complaint includes, for example, a claim for conversion - a remedy at law.

35

U.S. courts have held that broad international human rights conventions are not self-executing. See Dreyfus, 534 F.2d at 31-32 (Hague Convention); United States v. Noriega, 746 F. Supp. 1506, 1533 (S.D. Fla. 1990) (U.N. Charter, O.A.S. Charter), aff'd,117 F.3d 1206 (llth Cir. 1997); Handel, 601 F. Supp at 1424-27 (Hague and Geneva Conventions); Tel-Oren, 726 F.2d at 818-19 (Int'l Torture Convention).

36

See United States v. Yousef, 327 F.3d 56, 92-93, 100-106 (2d Cir. 2003); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1934) (“[I]n enacting statutes, Congress is not bound by international law.”); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1161, 1178 (E.D. Pa. 1980) (“It is therefore possible that the United States might find it necessary, in order to enforce domestic law, to violate international principles.”); accord United States v. Howard-Arias, 679 F.2d 363 (4th Cir. 1982); Tag v. Rogers, 267 F.2d 664, 666 (D.C. Cir. 1959) (in discussing treaties, statutes and constitutional provisions, “the federal courts are bound to recognize any one of these three sources of law as superior to canons of international law”).

37

See Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (rejecting “international law” defense to the death penalty as inconsistent with the accepted view of the Eighth Amendment in the United States); United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (“Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law.”).

38

See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-29 (1964) (noting, in affirming dismissal of claims, the lack of consensus respecting the status under international law of government expropriation of alien property); Yousef, 327 F.3d at 92-93, 100-106;Tel-Oren, 726 F.2d at 791-96.

39

See also The Amistad, 40 U.S. (15 Pet.) 518, 593 (1841) (noting in dicta that if claimants could prove ownership of the slaves in question under the laws of Spain in effect at the time then such slaves “ought to be restored to the claimants”) (Story, J.); Maria v. McElroy, 68 F. Supp. 2d 206, 233 (E.D.N.Y. 1999) (“During the nineteenth century, the rights of individuals were not subjects of international law.”), aff'd sub nom. Pottinger v. Reno, 242 F.3d 367 (2d Cir. 2000).

40

Indeed, not until 1890 did seventeen of the largest nations of the world sign the General Act of Brussels respecting the “Slave Trade and Importation into Africa of Firearms, Ammunition and Spiritous Liquors,” 27 Stat. 886 (1890), the first broad prohibition against the slavetrade (but not against slavery itself), which barred then ongoing “slave-trade in the interior of Africa,” id., art. I, and expressly noted that certain signatory nations continued to “recognize the existence of domestic slavery.” Id., art. LXII. And not until September 25, 1926 did thirty-seven countries enter into the Geneva Convention on the Suppression of Slave Trade and Slavery, 46 Stat. 2183 (1926), to ensure that signatories took steps “(a) [t]o prevent and suppress the slave trade;” and “(b) [t]o bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” Id., art. 2. This Convention alone shows that, as recently as 1926, the condemnation of slavery was still not universal.

41

The statute also limits its application to members “of the crew or ship's company.”

42

See also White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991) (same); Buckley v. Trenton Say. Fund Soc'y, 544 A.2d 857, 863 (N.J. 1988) (same); Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (N.Y. 1993) (same); Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992) (same); Upchurch v. N.Y. Times Co., 431 S.E.2d 558, 561 (S.C. 1993) (same); Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993) (same); Russo v. White, 400 S.E.2d 160, 162 (Va. 1991) (same). The state of Mississippi does not appear to have specifically adopted the Restatement definition, but it does require that “there is something about the defendant's conduct which evokes outrage or revulsion” before a plaintiff can recover for emotional distress. Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981).

43

See also, e.g., Ehrlich v. Howe, 848 F. Supp. 482, 492 (S.D.N.Y. 1994) (under New York law, “[a]n action of conversion does not lie to enforce a mere obligation to pay money”) (citation omitted); Upper Valley Aviation, Inc. v. Mercantile Nat'l Bank, 656 S.W.2d 952, 955 (Tex. App. 1983) (“[W]hen an indebtedness can be discharged by payment of money generally, an action in conversion is inappropriate to enforce the debt.”); Owens v. Andrews Bank & Trust Co., 220 S.E.2d 116, 119 (S.C. 1975) (“[T]here can be no conversion where there is a mere obligation to pay a debt....”).

44

The Amended Complaint contains no allegation that any defendant received or refused to pay for the value of any labor or other services rendered by any of the newly added plaintiffs who allege that they themselves were enslaved after 1865. Nor does the Amended Complaint contain any allegation that any uncompensated labor allegedly “converted” by any of these defendants was performed by any of these plaintiffs or their ancestors.

45

See also Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So. 2d 853, 856 (La. 1998) (under Louisiana law, conversion actions may be brought only by dispossessed owners of “corporeal movables” - the civil law analogue to tangible personal property); Mossler Acceptance Co. v. Moore, 67 So. 2d 868, 873 (Miss. 1953) (“Conversion lies only for personal property which is tangible.”); Cameco, Inc. v. Gedicke, 690 A.2d 1051, 1058 (N.J. Super. Ct. App. Div. 1997) (conversion claim properly dismissed when property allegedly “converted” was neither “tangible personal property, [nor] tangible evidence of title to intangible or real property”), aff'd in pertinent part,724 A.2d 783 (N.J. 1999); Ippolito v. Lennon, 542 N.Y.S.2d 3, 6 (App. Div. 1989) (“[C]onversion is limited to those intangible property rights customarily merged in, or identified with, some document[.]”) (citation omitted); Matzan v. Eastman Kodak Co., 521 N.Y.S.2d 917, 918 (App. Div. 1987) (“A claim for conversion does not lie for the withholding of indefinite, intangible, and incorporeal species of property[.]”) (citation omitted); Norman, 537 S.E.2d at 264 (North Carolina law does not recognize conversion claim for intangible interests); Owens, 220 S.E.2d at 119 (“Conversion has been defined in our case law as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another....”); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 901 (Tex. App. 2001) (“Texas law has never recognized a cause of action for conversion of intangible property except in cases where an underlying intangible right has been merged into a document....”); United Leasing Corp. v. Thrift Ins. Corp., 440 S.E.2d 902, 906 (Va. 1994) (“[A] cause of action for conversion does not encompass claims for interference with undocumented intangible property rights.”).

46

See also Willis v. Ventrella, 674 So. 2d 991, 995 (La. Ct. App. 1996) (under Louisiana law plaintiffs' failure to allege any connection between themselves or their ancestors and the defendants negates any possibility of a viable unjust enrichment claim); Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 496 (D.N.J. 1998) (under New Jersey law “it is the plaintiff's (as opposed to a third party's) conferral of a benefit on defendant which forms the basis of an unjust enrichment claim”); Fordice Constr. Co. v. Cent. States Dredging Co., 631 F. Supp. 1536, 1538-39 (S.D. Miss. 1986) (under Mississippi law, plaintiffs must allege “that the defendant holds money which in equity and good conscience belongs to the plaintiff”) (quotation omitted); Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (under New York law, benefit conferred by plaintiff upon defendant must be sufficiently “specific and direct ... to support an unjust enrichment claim”) (citing Wolf v. Nat'l Council of Young Israel, 694 N.Y.S.2d 424, 426 (App. Div. 1999)); Norman Owen Trucking, Inc. v. Morkoski, 506 S.E.2d 267 (N.C. Ct. App. 1998) (North Carolina law requires showing of a direct benefit conferred by plaintiff on defendant) (citing Effler v. Pyles, 380 S.E.2d 149, 152 (N.C. Ct. App. 1989)); Jupiter Enters., Inc. v. Harrison, No. 05-00-01914-CV, 2002 WL 318305, at *3 (Tex. App. Mar. 1, 2002) (unpublished decision) (Texas unjust enrichment law requires, inter alia, “that valuable services were rendered or materials furnished ... for the person sought to be charged”) (citing Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)); Brown v. Resolution Trust Corp., 30 F.3d 128, Nos. 93-2597, 94-1104, 1994 WL 384727, at *3 (4th Cir. July 25, 1994) (unjust enrichment claim requires proof “plaintiff conferred a benefit on the defendant, which was requested and accepted by the defendant”); Ellis v. Smith Grading & Paving, Inc., 366 S.E.2d 12, 15 (S.C. Ct. App. 1988) (dismissing claim where plaintiff failed to demonstrate that she, rather than a third party, conferred a benefit on defendant).

47

In addition to this threshold requirement, the laws of some states impose additional requirements for a claim for unjust enrichment. For example, to support a claim for unjust enrichment under New Jersey law, plaintiffs must show that they “expected remuneration from the defendant at the time [they allegedly] performed or conferred a benefit on defendant,” VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994), a requirement that plaintiffs cannot meet since at the time in question there was no such expectation in law or equity, see supra § IV.A. See also Eli Lilly & Co., 23 F. Supp. 2d at 496. Similarly, Texas law requires that at the time of the alleged enrichment, the defendant was “reasonably notified ... that the plaintiff in performing such services was expecting to be paid by” the defendant. Jupiter Enters., 2002 WL 318305, at *3 (citing Vortt, 787 S.W.2d at 944);see also Brown, 1994 WL 384727, at *3 (Virginia law same). Plaintiffs do not allege, nor can they, that any defendant received such notice.

48

“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (2000).

49

Not surprisingly, no court has ever applied section 1982 to claims arising from conduct before 1866. Thus, as discussed supra in § IV.A, this claim, like the others, also fails because it is an attempt to impose liability retroactively.

50

In determining the status of a party for purposes of jurisdiction, the United States Supreme Court recently reiterated the “ “longstanding principle that “the jurisdiction of the Court depends upon the state of things at the time of the action brought.' ' ” Dole Food Co. v. Patrickson, 123 S. Ct. 1655, 1662 (2003) (quoting Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).

51

Moreover, no plaintiff has alleged a sufficient connection to any former slave to establish third-party standing. See supra § I.C.

52

Plaintiffs might attempt to argue that even if defendants did not directly injure plaintiffs or their ancestors, they can be held liable for aiding and abetting unnamed third parties. But the ATS does not provide for aiding and abetting liability, and the Supreme Court has held that that under federal law, liability for aiding and abetting is unavailable unless specifically provided for by statute. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182-183 (1994); cf, infra § IV.B.11.b. Plaintiffs suggest that defendants can be held liable as non-state actors under the ATS, Am. Compl. „ 241 n.99, but, as noted above, private actors cannot be held liable for acts that were not even considered violations of the law of nations when they allegedly occurred. See, e.g., Tel-Oren, 726 F.2d at 791-795 (Edwards, J. concurring).

53

The Seventh Circuit has never addressed whether the ATS creates a private cause of action. However, there are good reasons not to read a cause of action into the ATS. If the ATS created substantive rights, all treaties (whether U.S. ratified or not) would be self-executing, contrary to the well-settled presumption that treaties do not create a privately enforceable cause of action. Al Odah, 321 F.3d at 1146 (Randolph, J., concurring); Tel-Oren, 726 F.2d at 812 (Bork, J., concurring); see also Curtis A. Bradley & Jack L. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modem Position,” 110 Harv. L. Rev. 815 (1997). Additionally, the Constitution makes it clear that it is Congress, not the judiciary, which is to define and punish violations of the law of nations. U.S. Const. art. I, § 8, cl. 10; see also Al Odah, 321 F.3d at 1147 (Randolph, J., concurring). Textual powers assigned to a particular branch may not be shifted from one branch to the other. See Clinton v. City of New York, 524 U.S. 417, 438-40 (1998). But see Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003) (en bane) (concluding without substantial analysis that the ATS provides a private cause of action); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (holding that the ATS creates a private right of action).

54

First of Am. Bank, Rockford, N.A. v. Netsch, 651 N.E.2d 1105, 1112-13 (Ill. 1995) (“[S]tatutes are presumed to apply prospectively only and will not be given retroactive effect absent clear language within the statute indicating that the legislature intended such effect.”); State ex rel. Guste v. Orkin Exterminating Co., 528 So. 2d 198, 204 (La. Ct. App. 1988) (rejecting claim of improper retroactive application of statute because finder of fact had properly found post-enactment commission of unfair trade practice); Williamson v. Treasurer, 814 A.2d 1153, 1163 (N.J. Super. Ct. App. Div. 2003) (New Jersey “courts have long preferred a rule of statutory construction which favors prospective application of statutes”); Buccino v. Cont'l Assurance Co., 578 F. Supp. 1518, 1527 (S.D.N.Y. 1983) (holding amendment providing private cause of action under New York deceptive practices statute not entitled to retroactive application); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984) (reversing judgment for plaintiff because of failure of sufficient evidence to support a jury finding that the alleged violation by defendant had occurred on or after May 21, 1973 effective date of statute).

55

There is also a vague allegation that some, unspecified Defendants had constructive knowledge of violations of the laws against slavery at some unspecified time during the 1920's or 1930's but failed to prevent the law from being broken. See Am. Compl. „ 90. This time period also long predated the enactment of any of the relevant statutes.

56

Plaintiffs cannot base any alleged violation on any statements made by defendants after the actual or threatened filing of any of the cases in this consolidated action. Any such allegation would be self-defeating, since plaintiffs could not have been mislead or deceived by any statement made in response to, or after the filing of, their allegations.

57

There is likewise no allegation that any statement by any defendant was made “in connection with the sale or advertisement of any merchandise or real estate,” a necessary element of liability under N.J. Stat. Ann. § 56:8-2. Indeed, the majority of the defendants are not even alleged to be in a line of business which involves the sale of merchandise or real estate.

58

The claim is asserted against the following defendants: Aetna Inc., Canadian National Railway Company, FleetBoston Financial Corporation, Liggett Group, Inc., The Society of Lloyd's, Loews Corporation, New York Life Insurance Company, R.J. Reynolds Tobacco Company and WestPoint Stevens. Because the Hurdle complaint was not served on any of the defendants, only Aetna, FleetBoston and New York Life, the three defendants that removed the action to federal court, join in this section of the joint motion and memorandum.

59

Nor does California's unfair competition law permit the recovery of the relief requested by the Hurdle plaintiffs in their complaint. Non-restitutionary disgorgement of profits, like that requested in the complaint, is not an available remedy under the UCL. See Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937 (Cal. 2003); Kraus v. Trinity Mgmt. Servs., Inc., 999 P.2d 718 (Cal. 2000).

60

Accord Apani Southwest, Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 635 (5th Cir. 2002) (Texas law); Wells v. Shelter Gen. Ins. Co., 217 F. Supp. 2d 744, 753 (S.D. Miss. 2002) (Mississippi law); Speedway Promoters, Inc. v. Hooter's of Am., Inc., 123 F. Supp. 2d 956, 963 (W.D.N.C. 2000) (North Carolina law); Vasile v. Dean Witter Reynolds, Inc., 20 F. Supp. 2d 465, 482 (E.D.N.Y. 1998) (New York law), aff'd,205 F.3d 1327 (2d Cir. 2000); Eli Lilly & Co., 23 F. Supp. 2d at 496-97 (New Jersey law); Louisiana v. McIlhenny, 9 So. 2d 467, 473 (La. 1942) (Louisiana law); Robertson v. First Union Nat'l Bank, 565 S.E.2d 309, 314 (S.C. Ct. App. 2002) (South Carolina law); Citizens for Fauquier County v. SPR Corp., 37 Va. Cir. 44, CL 94-40, 1995 WL 1055819, at *4 (Va. Cir. Ct. Mar. 27, 1995) (Virginia law).

61

Accord Wells, 217 F. Supp. 2d at 755;Sokol v. Addison, 742 N.Y.S.2d 311, 312 (N.Y. App. Div. 2002); Aranyosi v. Delchamps, Inc., 739 So. 2d 911, 917 (La. Ct. App. 1999).

 

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.

 patreonblack02