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LEGAL ARGUMENT

 

I. PLAINTIFFS HAVE SUFFICIENTLY ALLEGED STANDING.

A. Allegations of Fact Must Be Accepted As True in a Motion to Dismiss for Standing.

""Over the years, our courts have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized * * *; and (b) "actual or imminent, and not "conjectural" or "hypothetical,' " * * *. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly...trace[able] to the challenged action of the defendant, and not...th[e] result [of] the independent action of some third party not before the court.'* * * Third, it must be "likely,' as opposed to merely "speculative', that the injury will be "redressed by a favorable decision.' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561. (1992). Standing need not be a wall that plaintiffs must scale to get into federal court. Standing can be supported by a very slender reed of injury. Wright & Miller Treatise, 13 Fed. Prac. & Proc. Juris. 2d §3531.4 (Amended 2003). Essentially the standing inquiry as to private parties is a simple one that looks at whether a case presents a hypothetical question as opposed to a concrete one between adverse parties:

A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character, from one that is academic or moot... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting an opinion advising what the law would be on a hypothetical state of facts...Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised.

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937) (quoting, Justice Hughes).

In ruling on a motion to dismiss for lack of standing, the well-pleaded allegations of the complaint must be accepted as true and the Court must construe the complaint in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501-502 (1975); Perry v. Village of Arlington Heights, 186 F.2d 826, 829 (7th Cir. 1999). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss, we "presum[e] that general allegations embrace those specific facts that were necessary to support the claim'. Lujan v. Defenders of Wildlife, 504 U.S. at 561 (quoting, Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).

As will be show herein, taking the allegations of the Consolidated and Amended Complaint ("ACC") as true and making all presumptions favorable to the plaintiffs, the facts as alleged in the pleadings, more than meet the "case and controversy' requirement for federal jurisdiction.

B. Plaintiffs Have Alleged Concrete and Individualized Harm.

As indicated, supra, standing need not be a wall that plaintiffs must scale to get into federal court. Wright & Miller Treatise, at §3531.4. Any level of injury in fact is sufficient: as "an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation". Moreover, it has been common to recognize standing for plaintiffs who complain of abstract injuries, such as acts that will affect the character of residential neighborhoods, acts that will cause segregation, or acts that effect one's aesthetic sensibilities, such as inability to view certain birds or the psychological harm occasioned by seeing primates exhibited in environments that do not provide for the primate's psychological well-being More to the point, standing has been grounded on concrete, non-economic stigmatic injury, such as where a black resident had standing to challenge a racial steering practice adopted by the city in which he lived for the purpose of maintaining its current population composition of 75% white and 25% black in that he was deprived of the benefits associated with a naturally selected population in that sufficient injury was alleged by a process that "[was] perceived by [the plaintiff] as a black person as imposing a badge or a label of inferiority on him based purely on race". Smith v. City of Cleveland Heights, 760 F.2d 720, 722 (6th Cir. 1985), cert. denied, 474 U.S. 1056 (1985). Importantly, even though Smith was not physically impacted by the steering process because he could remain in the city, he was effected as a "black man" because he "immutably" shared in "the perceived insult or indignity" of the city's policy. Id.; see also, infra Pt. I.B. n. 7, 8.

Standing has also been grounded on such harm as lost opportunity a recognized property right (even a derivative one) or even where an award or distribution to one diminishes the amount available for others Although, only one of these harms is sufficient for a finding of "injury-in-fact", plaintiffs, in the ACC, have each alleged multiple injuries, each injury has been pleaded with more than the necessary "identifiable trifle." All plaintiffs have alleged a particularized and concrete harm. First, plaintiffs have alleged that they are "presently consumers of the defendants" and that defendants suffered the harm of being misled, confused and deceived about the roles defendants played in the enslavement of African people" and from "the benefits of a competitive market for the goods and services they purchased from the defendants." (ACC, „„ 93, 94) The state consumer fraud allegations alone are sufficient on their face without further explanation, to justify this Court's exercise of jurisdiction. But plaintiffs supply the necessary pleading allegations to support injury on their other claims as well. Hence, plaintiffs allege that they "suffered segregation, lost opportunity, diminished self-worth and value, loss of property rights, loss of derivative property rights, psychological harm from having witnessed the degradation of their relatives". (ACC, „ 95). Moreover, each of the class representatives alleged separate injury and harm as well. Each of the plaintiffs is also likely to encounter future harm, as he/she is more likely to have a shorter life expectancy, more likely go to jail; and is more likely to be murdered, than his/her white counterparts. (ACC, „ 102). Given these facts and law, questioning the concrete nature of plaintiffs' individualized harm, is simply unconscionable. If our Courts can recognize aesthetic harm in the case of birdwatchers not being able to view their favorite birds as in Cantrell, 241 F.3d at 679-682, or in the harm occasioned by one witnessing a caged primate suffering psychological harm, as in Animal Legal Defense Fd., 154 F. 3d at 434 n.4, surely the multitude of harms plaintiffs suffered from the defendants' participation in the institution of slavery and defendants' wrongful retention of the profits therefrom, more than meet the threshold level for entry into this Court.

Defendants' argument at 7 that plaintiffs have not shown that they have "personally suffered some actual or threatened injury" strains credulity. Defendants rely only on one allegation in the complaint to support this charge, ignoring scores of other allegations that set forth particularized harm to plaintiffs. Moreover, defendants' claim that plaintiffs fail to establish concrete and individualized harm because each plaintiffs harm is in many instances the same for the class as a whole, is logically incorrect. Merely because the same types of injuries are shared by other members in the class, does not preclude standing. If this were so, every class action suit would be dismissed on standing grounds. Finally, defendants urged reliance on a spate of nearly-identical in forma pauperis cases brought by individuals against the U.S. government for abuses purportedly stemming from slavery is misleading. The plaintiffs, all unrepresented, failed to allege what specific government officials failed to do and what specific law was implicated in their allegations against the government. Hence, the standing dismissals were based primarily upon the deficiencies that are common in pro se papers. Similarly, defendants' reliance on Cato v. U.S., 70 F. 3d (9th Cir. 1995) is similarly flawed. Cato, like the other cases cited by defendants, was brought by a pro se plaintiff alleging claims against the U.S. government where the Court concluded that the allegations against the Government were not particularized as to the governmental official who failed to perform a duty and as to the depiction of the governments' acts that were implicated. The Court in Cato, at 1109 n. 8 specifically left open the option of a claim that was more specifically pleaded.

C. The Injuries Complained of Are Fairly Traceable to the Actions of the Defendants.

The "traceability" element merely examines whether the challenged acts of the defendant are "fairly" traceable to the injury. Federal Election Commission v. Akins, 524 U.S. 11 (1988), Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) (emphasis added), Duke Power Company v. Carolina Envitl. Study Group, Inc., 438 U.S. 59 (1978). Standing can be established by showing that harm results "indirectly from the challenged acts". Warth v. Seldin, 422 U.S. 490, 504-505(1975); Duke Power, 438 U.S. at 59 Roe v. Wade , 410 U.S. 113 (1975), United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) (harm asserted by group of voters was inability to obtain information that FECA allegedly required organizations to make public).

Defendants' claim that the injuries suffered by the plaintiffs and the class are not fairly traceable to their companies' activities is baseless. As alleged in the complaint, plaintiffs make the necessary connection. As a preliminary matter on the state consumer protection statutes, all the plaintiffs allege their status of consumers of defendants' products, who were harmed as a result of representations made by various defendants within the past several years. Moreover, under some state statutes, the plaintiffs need not even allege injury. A mere cursory review reveals that these easily survive standing, as the court need not look further at any historical connection between the plaintiffs and the defendants. However, even the other allegations, that are based on earlier events in our nation's history, must survive at this stage of the proceedings as plaintiffs have sufficiently alleged a traceable connection for purposes of surviving a motion to dismiss. All defendants are alleged to have: (1) improperly and immorally profited from the use of slave labor (ACC, „„ 2(b), 174, 244); (2) engaged in a conspiracy with other companies to promote the slave trade (ACC, „„ 2(c), 175) and; (3) through their participation in slavery, to have "furthered the commission of crimes against humanity" (ACC, „„ 224-230). Defendants, through their predecessors in interest, allegedly utilized slave labor; or derived profits from other's use thereof. (ACC, „ 36) (See individualized allegations against each corporate defendant at ACC, „„ 125-172). At least two of the corporate defendants' predecessors,' FleetBoston and New York Life, engaged in these crimes while it was illegal in the states in which they did business. (ACC, „„ 126, 127, 146). By engaging in these acts, all defendants participated in a conspiracy in which each industry was co-dependent on the next. (ACC, „„ 216, 217). All industries operated in such a way as to contribute and maintain the system of slavery. Id. Defendants also aided and abetted crimes against humanity. (ACC, „ 205); engaged in criminal enterprise and other theories of secondary liability by their knowing participation in slavery or the fruits therefrom. („„ 208-214). Plaintiffs and their ancestors were affected by defendants' participation in the institution of slavery. Defendants' acts, alone and in conjunction with the acts of others, contributed to the continuation of slavery as a whole and the harm that plaintiffs' ancestors and plaintiffs still suffer as a result of the slavery.

Moreover, plaintiffs allege a separate harm by the defendants in not turning over documents that relate to their involvement in securing profits from slavery. (ACC, „„ 218-223). This harm is likely traceable to defendants' acts. Plaintiffs' ancestors might have worked for the predecessor of the train companies, might have been insured by the defendant insurance companies or might have traveled from Africa or around the country on ships insured by the defendant Society of Lloyds. Certainly, at a minimum, each of the plaintiff representatives have the right to secure this information that might further assist their individual claims or the claims of others similarly situated. FEC v. Akins, 534 U.S. at 11 (harm asserted by group of voters was inability to obtain information that FECA allegedly required organizations to make public). While it is true that the defendants, in and of themselves, are not the only cause of the plaintiffs' injury, standing does not require the plaintiff to bring before the court all the parties that contributed to the harm to assert standing against one or more. Therefore, the plaintiffs' complaint sufficiently alleges the acts of the defendants that are "fairly traceable" to plaintiff class representatives and the class they represent.

D. Plaintiffs' Claims Are Redressable On Their Face.

The defendants do not allege the plaintiffs have failed to meet the third element of standing, namely redressability. Moreover, this element is oft-discussed as a question of justiciability under the heading of Political Question Doctrine, that is addressed at Defendants' Jt. Memo at 26 and infra at Pt. III.

E. Defendants Other Arguments Related to Prudential Standing and Third-Party Standing Are Meritless.

Defendants' remaining arguments, circular and repetitive, attempt to bootstrap traditional "standing" analysis, that generally examines whether there is true adversity in a case, into a full blown analysis of the merits of plaintiffs' claim. Hence, defendants' assertion that the plaintiffs' claims are nothing more than "generalized grievances," ignores the factual allegations of the plaintiffs' individual harm arising from a narrow and discreet class of corporate defendants that still exist today and who profited from and still profit from the transatlantic slave trade. These are not generalized public interests that plaintiffs seek to litigate, but specific property and tort rights.

Defendants' primary reliance on Valley Forge, 454 U.S. 473 (1982) and a series of pro formatis cases against the U.S. is nothing more than defendants' grasping at legal straws. These cases are distinguishable. Valley Forge involved a non-profit organization, who, on behalf of its taxpayer members, claimed that it was harmed by the transfer of property by the U.S. Government to a religious organization without payment from the transferee. The organization argued that such transfer breached the establishment clause and, hence, harmed the organization and its members both as citizens and taxpayers. The Court rejected standing on two grounds, both of which are not applicable to the facts at bar: (1) although the plaintiff organization claimed to sue on behalf of their members as taxpayers, the authority for sale of which the plaintiffs' complained did not derive from the spending clause, but from the property clause; and (2) absent a specific taxing power issue, the plaintiffs' mere assertion that their constitutional right had been impaired was insufficient. Plaintiffs herein are not contesting their rights were harmed as citizens or taxpayers by the government, but rather, that the defendants' actions in aiding and abetting the Transatlantic slave trade and keeping profits therefrom had the specific consequence of hurting these plaintiffs and their formerly-enslaved ancestors. Hence, Valley Forge is inapposite. Likewise, the series of pro formatis cases are not instructive. As already argued herein, the plaintiffs therein failed to particularize the acts of defendants that caused the harm, as well as to particularize their own injuries. Herein, plaintiffs have particularized both the acts of defendants and the resultant harm.

Finally, defendants' argument at 13-14 that the absence of a formalized legal relationship between the descendants and their deceased ancestors defeats standing, is equally without merit. First, plaintiffs are not suing solely in their capacity as descendants of their deceased ancestors. (See eg., ACC, Counts X - IV (Consumer Protection)). Second, to the extent claims are derivative, plaintiffs sue not in their capacity at law, but in equity as the trustees/beneficiaries of their deceased ancestors; such an equitable status is not precluded by standing rules. Insisting on a formalized legal relationship makes little sense where the ancestors are long deceased and there is little to no likelihood of superior or competing heirs at law.

Finally, some of the plaintiffs are now proceeding to be appointed in an official capacity, as administrators of their deceased, enslaved ancestor's estates. If this Court is inclined to insist that appointment as Executor or Administrator of their deceased slave ancestors' estates is necessary, at a minimum, this Court should stay the action as to the derivative claims pending appointment by the individual plaintiffs in a formal capacity.

The defendants have failed to show plaintiffs' complaint is insufficient in setting out the necessary requirements for Standing.

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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