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 amended complaint.