Thursday, August 06, 2020


Article Index


A. Standard for Sufficiency for Motion to Dismiss.

Since dismissal is a drastic measure, a complaint should be dismissed only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief". Flanagan v. Bernstein, 1996 WL 84184, *2 (N.D. Ill. February 22, 1996) (citing, Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must assume as true factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor. Hartford Fire Insurance Company of Illinois v. Maynard, 2002 WL 256800, *2 (N.D. Ill. February 21, 2002). A complaint need not set forth all relevant facts or cite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Id.; Fed. R. Civ. P. 8(a). Moreover, it is unnecessary to specifically identify the legal basis for a claim as long as the facts alleged would support relief. Id. Nor is a Court free to employ a higher standard. See, Swierkiewicz v. Sorena N.A., 534 U.S. 515 (2003). An application of these standards to the pleadings as alleged, more than sufficiently supports the plaintiffs' claims for relief.


B. Plaintiffs' Claims Are Not Barred by the Concept of Retroactivity.

Defendants argue in their Joint Memo at 38 that plaintiffs' claims are barred as plaintiffs seek to apply present-day law to their claims that date back to a prior era. Defendants again paint the plaintiffs' claims with one broad brush that ignores factual allegations in the complaint. First, not all of plaintiffs' claims are based upon acts of a different era. Second, as to the claims that occurred in the 1800s, many were illegal at the time they occurred, while others can be viewed as illegal based upon principles of natural law. Alternatively, there is support for a retroactive application of law under the facts and circumstances of this case.

1. Some of Plaintiffs' Claims Are Based Upon Modern Day Events.

Defendants cannot hide from the fact, that several of plaintiffs' claims are based on the current actions of the corporate defendants. Most of the allegations of plaintiffs' consumer protection claims (ACC, „„ 125-173; Count X-XIV), as well as, the defendants demand for an accounting, (ACC, Count II), are based upon acts that have occurred in modem day times. These claims, therefore, should survive dismissal without further consideration by this Court.

2. Claims Arising From the Slavery Era Were Illegal at the Time or Can Be So Construed by This Court.

Nor can the defendants shirk their responsibility to the plaintiff class by claiming slavery was legal at the time. As alleged in the ACC, as early as 1799, many individual states outlawed the slave trade, years before the federal government abolished it. In 1794, the Third U.S. Congress enacted a law barring the building or equipping of vessels fitted for the "carrying on of the slave trade." As part of that law, Congress required forfeiture and payment of $20,000 by "all and every person, so building, fitting out, equipping, loading, or otherwise preparing, or sending away, any ship or vessel, knowing or intending that the same shall be employed in such trade or business ..or any ways aiding or abetting therein."

In 1800, the Congress made it unlawful for any U.S. citizen or resident "directly or indirectly: to have any interest in a slave-trade vessel, and granted jurisdiction to the federal courts to handle violations of the law." In 1807, the United States enacted a law prohibiting the importation of slaves and required forfeiture and payment of $20,000 by persons who aided or abetted in the "building, fitting out, equipping, loading, or otherwise preparing or sending away" of vessels intended for the importation of slaves. In 1820, Congress determined that the slave trade was so repugnant that perpetrators as well as their aiders and abettors should be subject to the death penalty and the slave trade should be formally equated to the international crime of piracy. Although, the slave trade was formally abolished by England in 1807 and by the United States in 1808, individuals, industries and the government, wholly dependent upon the economic benefits derived from the use of unpaid labor, continued to keep the trade alive by aiding and abetting in the illegal smuggling of enslaved Africans and by aiding and abetting in the institution of "breeding" enslaved Africans. Breeding continued since every child born enslaved, bore a capital value to its owner that far exceeded the cost to raise the enslaved child.

Defendants' acts from 1799 forward constituted aiding and abetting or conspiring to participate in crimes as deemed such by many of the applicable laws of that time. For some defendants, their participation was more direct. For instance, Fleetboston's predecessor in interest, loaned money to its founder, Rhode Island businessman John Brown after Brown was prosecuted in federal Court for participating in the slave trade after it became illegal under federal law. (ACC, „125). It likewise collected custom fees due from ships transporting slaves. (ACC, 1126). Likewise, N.Y. Life's predecessors' involvement was while it was illegal in the State of N.Y. (ACC, 146). Regardless, however, of the particulars of each defendant's involvement, either direct or indirect, under principal of secondary liability, it can be interpreted as illegal.

Not only were their statutory laws in place that made the defendants acts illegal, as states abolished the slave trade before the federal government did, so too, did both state and federal courts create a body of common law finding slavery a violation of the natural law of man. As early as 1781, in one of the famous Quark Walker cases, Commonwealth v. Jennison, Chief Justice William Cushing of the Supreme Judicial Court of Massachusetts charged his jury as to the natural law against slavery:

whatever usage formally prevailed or slid in upon as by the examples of others on the subject, they can no longer exist... sentiments more favorable to the natural rights of mankind, and to that innate desire for liberty which heaven, without regard to complexion or shape, has planted in the human breast - - have prevailed since the glorious struggle for our rights [the Revolution] began ... slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. Id. (emphasis added).

Several years later, in a First Circuit case, Justice Joseph Story in the La Jeune Eugenie case, concluded that the international slave trade violated the natural law of man in that it was:

repugnant to the great principles of Christian duty, the dictates of natural religion, the obligation of good faith and morality, and the eternal maxims of social justice [and]... was inconsistent with any system of law that purports to rest on the authority of reason or revelation. And it is sufficient to stamp any trade as interdicted by public law, when it can be justly affirmed that it is repugnant to the general principles of justice and humanity.

Moreover, in Anderson v. Poindexter, 6 Ohio St. 623 (1857), the Ohio Supreme Court held that a slave coming into a free jurisdiction (with the consent of the master) for a temporary sojourn was automatically freed because slavery was repugnant to reason and the principles of natural law. Similarly, in 1987, Supreme Court Justice Clarence Thomas, before rising to his current position, offered similar support for the proposition that slavery now must be viewed as contrary to the Constitution. In writing about a "higher law" that condemns inequality and hence, slavery, Thomas argued the "original intent" of the Constitution must follow the ideals of the Declaration of Independence, which must be read as hostile to slavery in order to conform with the "higher" principals of our nation that rest on natural law:

Paine captured well the revolutionary meaning of basing a particular nation on a universal truth, the truth of human equality. Edwin S. Corwin described this many years ago as the "higher law background' of the Constitution. And Martin Luther King, Jr. brought out the contemporary significance of "higher law' well in his famous letter from a Birmingham Jail. Paraphrasing St. Thomas Aquinas, King declared, "A just law is a man-made code that squares with the moral law or the law of God ... An unjust law is a human law that is not rooted in eternal law and natural law.'

As recently as July 2003, President Bush acknowledged that slavery violated an "eternal standard". 7/9/03 Speech (http://

Finally, as argued in detail infra at Point IV.C.2, slavery was a violation of the law of nations at the time the defendants' acts were committed. The law of nations was a part of our common law. Hence, under both statutory and common law of the time, there is support for the proposition that defendants' actions were illegal at the time.

Alternatively, however, should this Court accept that some of the defendants' acts were not illegal at the time they were committed, there is sufficient rationale to apply the standards of today's law retroactively.

3. Retroactive Application of Laws is Not Uncommon.

Laws and precedents are commonly retroactive. The Supreme Court has emphasized that:

Both the common law and our own decisions have recognized a general rule of retrospective effect for the constitutional decisions of this Court. Nothing in the Constitution alters the fundamental rule of retrospective operation that has governed judicial decision for near a thousand years. Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 96-97 (1993).

It is also an axiomatic principle of law, that a court must apply the law in effect at the time it renders its decision. Bradley v. School Bd. of Richmond, 416 U.S. 696, 711 (1974). Moreover, this Court can apply modem day standards to slavery because it is properly viewed as not a law-sanctioned regime, but " as a corruption or displacement of the law". Keith N. Hylton, Slavery and Tort Law, Boston University School of Law Working Paper No. 03-02, 30 (2003) ( (last visited, XX/XX/2003). "Applying today's law to [slavery] should be viewed as bringing law to a regime from which it had been entirely displaced, not as retroactive application of a different set of rules". Id. at 11. "The appropriate model is one of warlords which have displaced the state and held it at bay while they imposed their own law on the subjected populations. When the state becomes strong enough to displace the warlords, it has no moral duty to respect the warlord's law." Id. This approach is further supported in that institutions should not be able to benefit from the absence of law that encouraged a stronger party in enslaving a weaker one. Id. at 2, 6-7 Accord Kaimiponal David Wenger, Slavery as a Takings Cause Violation, 64-68 Draft 7/21/2003), publication forthcoming in, Am. U. L. Rev. ( abstract id=420540) (last visited September 18, 2003).

Finally, applying a current day application of the law is entirely consistent with the federal courts' approach to apply modem day standards to human rights abuses under the law of nations. "[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980). "[I]t does not follow...that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations." United States v. La Jeune Eugenie, 26 F.Cas. 832, 846 (C.C.D. Mass. 1822) (No. 15,551) (Story, J.), overruled on other grounds, 23 U.S. (10 Wheat.) 66 (1825).

As such, this Court should not hesitate to apply today's' standards when evaluating plaintiffs' claims.

Defendants' offer scant legal support for their argument about retroactivity. In White v. Hart 80 U.S. (13 Wall.) 646 (1872) and Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1872), the claims involved the authority of states to impose laws that would retroactively invalidate the collection of slavery-related pre-debt contracts. Herein, plaintiffs' claims implicate neither the constitutional validity of states' powers nor invalidate pre-slavery contracts. Likewise, defendants' reliance on Landgraf v. USI Film Prods, 511 U.S. 244, 265 (1994) is misplaced. Landgraf involved the question of the retroactivity of The Civil Rights Act of 1991 where from a textual review of the statute and from an examination of the legislative history of the passage of the statute, it was plain that Congress did not intend that the statute have a retroactive effect. Id. at 259-263. Here the bulk of plaintiffs' claims are not based upon a request for retroactive application of a statute. Moreover, the Supreme Court conceded that the question of retroactivity is one for a judge's discretion that involves a balancing test of "fairness". Id. at 270. There can be no serious question, that fairness dictates that plaintiffs be allowed to pursue their claim of securing the proper fruits of their ancestors' labor when due to legal and social disabilities and from the self-conceding acts of defendants, plaintiffs have been heretofore precluded from bringing such a rightful claim. Nor can defendants reasonably claim, that they would be surprised by such a retroactive application of the law given the longstanding notice of slavery being a crime against humanity and violative of inalienable rights even during the time of the defendants' acts.

Therefore, defendants' request for dismissal of plaintiffs' claims based upon the concepts of Retroactivity must be rejected.


C. Each of Plaintiffs' Claims are Legally Sufficient.

1) Plaintiffs' Complaint Alleges all the Requirements of an Accounting Claim.

Contrary to the defendants' claims in their Jt. Memo, the Amended Complaint states a valid cause of action for an accounting under Illinois law. Defendants have misconstrued and mischaracterized the law of Illinois by arguing that a fiduciary relationship, a need for discovery, and complex mutual accounts are all necessary to sustain a claim. In fact, any one of these elements is sufficient. Plaintiffs have pleaded a viable claim for accounting because of their need for discovery, the complexity of the accounts at issue, and the existence of a fiduciary relationship between plaintiff and defendants. Plaintiffs also urge the Court to exercise its discretionary equitable powers to recognize profiting from slavery, or other gross human rights violations, as a new justification for granting an accounting.

a) Defendants Misstate Illinois Law.

In their Jt. Memo, defendants misstate Illinois law. Defendants maintain that to support a cause of action for accounting, plaintiffs must demonstrate "an inadequate remedy at law, 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." Defendants' Jt. Memo at 40. However, it is well established in Illinois that:

[A] court will take jurisdiction of an accounting action in the absence of an adequate remedy at law and if the accounting action is based upon one of the following: (1) a breach of a fiduciary relationship between the parties; (2) a need for discovery; (3) fraud; or (4) the existence of mutual accounts which are of a complex nature.

In light of this fact, defendants' analysis of the fiduciary relationship between themselves and plaintiffs no longer has force. Even if the court were to agree with defendants that no such relationship exists, the need for discovery is, in and of itself, sufficient to support a claim for an accounting.

b). The Demand for an Accounting is Justified by Plaintiffs' Need for Discovery

The plaintiffs' need for discovery is only addressed by defendants in a footnote. Defendants state, in a conclusory manner, that plaintiffs cannot demonstrate a need for discovery, despite plaintiffs' extensively detailing such need in their complaint. Defendants have erred in this assertion, as plaintiffs have adequately pleaded their need for discovery to maintain their demand for an accounting. The case of People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188, 190 (ll. App. 1st Dist. 1986), is instructive of the relevant law. In Hartigan, the state filed suit, alleging that the Candy Club had illegally violated its not-for-profit charter and seeking, inter alia, an accounting of its assets from the estate of the club's manager. The court found that the complaint sufficiently set forth the need for discovery to support an accounting claim because "[w]ithout access to the estate records through the discovery process, the amount of monies in the [manager's] estate would not be known nor what amounts represent Candy Club funds." Hartigan, 501 N.E.2d at 191. The circumstances in this case are nearly perfectly analogous; without an accounting, plaintiffs have no means of discerning the quantity of assets possessed by the defendants, nor what portion of these assets they acquired through their participation in slave trading.

c) The Complexity of the Accounts at Issue Requires an Accounting

The complexity of the accounts at issue in this case also merits the imposition of an accounting. An equitable accounting is justified when plaintiff "show[s] that the accounts between the parties are of such a complicated nature that only a court of equity can satisfactorily unravel them." Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478 (1962). "No precise rule can be laid down as to what constitutes such complication of accounts as will give equity jurisdiction, that being a matter for the determination of the court in a particular case in the exercise of its discretion." 1 C.J.S. Accounting § 18, 653; see also Lorsch v. Gibraltar Mutual Casualty Co., 262 N.E.2d 313, 317 (Ill. App. 1st Dist. 1970).

The case of Trans Union LLC v. Credit Research, Inc., 2001 WL 648953 (N.D. Ill. 2001) provides an instructive example. In Trans Union, the issue before the court was a contractual dispute between companies in the credit reporting business. The compensation Trans Union was obligated to pay on each transaction was dependent on the number of records provided with credit scores above a particular level, which varied with each transaction. Trans Union, 2001 WL 648953 at *1-*2. There were multiple types of products; reports were sold and resold. Id. at *3. The fact-finder needed to calculate the revenue from every pre-screened list plaintiff sold over fifteen years, and the revenue share owed had changed over time. Id. Prices varied, depending on the purchaser. Id. The court concluded that "this could well be beyond the ken of average jurors." Id. (internal quotations omitted).

In the instant case, at issue is defendants' considerable and integral involvement in the institution of slavery. There are literally tens, if not hundreds of millions of transactions dating back almost four hundred years. Slaves were sold and resold, their names were changed, prices fluctuated over time, and the value of an individual slave changed throughout the course of his lifetime. Calculating the total amount of revenue from these transactions--let alone the profits of individual defendants--would be a Herculean task requiring a highly trained team of accountants and historians. It seems almost beyond question that "this could well be beyond the ken of average jurors." Id.

d) Plaintiffs and Defendants Had a Fiduciary Relationship.

Defendants also mistakenly contend that there was no fiduciary relationship between plaintiffs' ancestors and defendants. (Defendants' Jt. Memo at 41). Black's Law Dictionary, (7th ed. 1999), defines a fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship," and that they "require the highest duty of care." Finally, it says that they "usually arise...when one person assumes control and responsibility over another."

The complaint alleges, and defendants do not refute, that defendants used and profited from the slave labor of plaintiffs' ancestors. (ACC, „„10-11). Civil liability for the acts of slaves was recognized under common law over five hundred years ago, and served as the foundation for the modem doctrine of vicarious liability. See generally In re Austin, 36 B.R. 306, 311 (Bkrtcy. Tenn. 1984); Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. L. Rev. 315 (1894); 2 Holdsworth, History of English Law, 46 (4th Ed. 1936). A slave's master had complete and utter control over the slave, who had the same legal status as property-mere chattel without any rights its owner was forced to respect. See generally NAACP v. Lansing Bd. of Ed., 429 F. Supp. 583, 586-7 (W.D. Mich. 1976); Gunnar Myrdal, An American Dilemma (1944). While a clearer example of one person assuming control and responsibility for another may exist, plaintiffs cannot conceive of one. Therefore, the relationship between the plaintiffs and defendants rises to the level of a fiduciary relationship.

e) The Court Should Recognize Participation in the Slave Trade or Other Gross Violations of Human Rights for Profit, as a New Justification for Awarding an Accounting Under Illinois Law.

The specific scenario of slaves or their descendants demanding an accounting from those responsible for their servitude seems to be an issue of first impression under Illinois law, nor could any cases be found in other jurisdictions based on the premise. However, recognizing enslavement as a justification for demanding an accounting is entirely consistent with the principles and policies underlying current accounting jurisprudence.

The purpose of equitable accounting is to force a defendant who has unduly taken advantage of a plaintiff to disgorge the gains he has received from his improper use of plaintiffs property or entitlements. Government Guarantee Fund of Republic of Finland v. Hyatt Corp., 955 F.Supp. 441, 466 (D.C.V.I. 1997); 1 Dan B. Dobbs, Law of Remedies § 4.3(5), at 610 (2d ed.1993). Under Illinois law, the right to an accounting typically arises when a defendant possesses money or property which, because of some particular relationship between himself and the plaintiff, he is obligated to surrender. In re Midway Airlines, Inc., 221 B.R. 411, 456 (Bkrtcy. N.D. Ill. 1998) (citing 1A C.J.S. Accounting § 15 at 13 (1985)).

It is difficult to imagine a more fitting example of an unduly disadvantaged individual being deprived of that to which he is rightfully entitled than a chattel slave. Nor is it reasonable to argue that one who has profited through the enslavement of another should not be forced to relinquish these profits to the victim. Courts have held that accounting may be available under special circumstances where the interests of justice warrant equitable relief; undeniably, slavery presents such a circumstance. See e.g., Matter of Fugazy Exp., Inc., 124 B.R. 426 (S.D.N.Y. 1991).

An accounting is an equitable remedy, and the Court has broad discretion to determine when it is appropriate. First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007 (7th Cir. 1985). Allowing slaves the right to demand an accounting from their former masters and those complicit in their forced servitude is entirely consistent with existing jurisprudence. Moreover, it furthers the administration and interests of justice by enabling the cause of action to address a wider scope of individual and social wrongs. Therefore, it is proper for the Court to exercise its discretion and hold that participating in the slave trade or other gross violations of human rights for profit is a valid justification for awarding an accounting under Illinois law.

Plaintiffs' Amended and Consolidated Complaint therefore states a valid claim for an accounting under Illinois law.

2. Plaintiffs' Claim for Redress Based on the Commission of a Crime Against Humanity is Well Founded, and Defendants' Motion to Dismiss This Claim Must Be Rejected.

In Defendants' Jt. Memo at 41, they assert that "Plaintiffs' crime against humanity claim fails as a matter of law." In a motion to dismiss, the movant has the burden of persuasion, and defendants have failed to meet this burden.

Defendants' Motion is based on their argument that: (1) Plaintiffs have no "private right of action" to bring a claim for violations of the crime against humanity, (2) that this 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." Each of these contentions is without merit.

a) U.S. Courts Have Recognized Repeatedly that Injured Parties Can Bring Civil Actions in U.S. Courts for Violations of International Law.

U.S. courts have recognized repeatedly that injured parties can bring claims in U.S. courts for violations of international law. Although many of these claims have been brought under 28 U.S.C. 1350 (the Alien Tort Claims Act) and the Foreign Sovereign Immunities Act, courts have also recognized that such claims can be brought under 28 U.S.C. §1331 (which gives the courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States") and 28 U.S. 1332 (which provides for jurisdiction in diversity cases).

Section 111(2) of the Restatement (Third) of the Foreign Relations Law of the United States (1987) is explicit in stating that "Cases arising under international law or international agreements of the United States are within the Judicial Power of the United States and, subject to Constitutional and statutory limitations and requirements of justiciability, are within the jurisdiction of the federal courts." Comment e goes on to explain that "Civil actions arising under international law or under a treaty or other international agreement of the United States are within the jurisdiction of the United States district courts. 28 U.S.C. 1331...Customary international law, like other federal law, is part of the "laws...of the United States."

Judicial decisions support the Restatement position. Since the beginning of this nation's history, courts have allowed individuals to enforce customary international law norms in civil actions. Ware v. Hylton, 3 U.S. 199, 227-28 (1796); Respublica v. DeLongchamps, 1 U.S. 111, 114 (1784); Talbot v. Jansen, 3 U.S. 133, 161 (1795); Talbot v. Seeman, 5 U.S.1, 36-37 (1801); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191,198 (1815).

The right to bring a claim for a violation of internationally-recognized human rights is well established under international law. There is also ample case law support for the proposition that 28 U.S.C. at 1331 provides subject matter jurisdiction in federal courts. While the cases cited by the defendants are readily distinguishable.

Particularly when dealing with a jus cogens principle or peremptory norm recognized universally as a central component of customary international law, as explained below, no specific new "cause of action" needs to be enacted by Congress to support a claim brought by victims of human rights abuses. Thus, courts have explained that it is "well-established that [customary] 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." Iwanowa v. Ford Motor Company, 67 F. Supp.2d 424, 442 n. 20 (D.N.J. 1999) (citing Louis Henkin, International Law as Law in the United States, 82 Mich. Law. Rev. 1555, 1561 (1984)). The opinion in White v. Paulson, 997 F. Supp. 1380, 1382-83 (E.D.Wash. 1998), reiterated that "federal courts have the authority to imply the existence of a private right of action [under 28 U.S.C. at 1331] for violations of jus cogens norms of international law." In reaching this conclusion, the court followed the analysis of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971), and cited the opinion of Justice Sandra Day O'Connor in United States v. Stanley, 483 U.S. 669, 710 (1987) where she expressed willingness to infer a Bivens right of action for due process violations relating to the Nuremberg Code's prohibition on nonconsensual medical experimentation.

Although jurisdiction appears to be well established under 28 U.S.C. §1331, it may not be necessary to address this issue, because plaintiffs have also invoked diversity jurisdiction pursuant to §1332, and plaintiffs' claims are unquestionably within the scope of this section. Once an independent basis of subject matter jurisdiction exists, the court is authorized to enforce customary international law as part of federal common law.

b) Plaintiffs' Claim Is Not in Any Way Inconsistent with the United States Constitution, and Thus Is Not Barred by the Supremacy Clause.

Defendants' assertion that plaintiffs' claims are inconsistent with the U.S. Constitution and barred by the Supremacy Clause, Article VI, paragraph 2, is particularly bizarre because, as explained above and recognized repeatedly by numerous opinions, customary international law is federal law, and as such is the "supreme Law of the Land" by Article VI of the Constitution. See e.g., Restatement (Third) of the Foreign Relations Law of the United States, §111, Comment, which says that "International agreements of the United States other than treaties..., and customary international law, while not mentioned explicitly in the Supremacy Clause, are also federal law and as such are supreme over State law." (Emphasis added.)

c) The Prohibition on Slavery Is Universally Recognized to Be a Peremptory Norm, or Jus Cogens Principle, of International Law and a Crime Against Humanity, and This Principle was Widely Recognized at the Time Plaintiffs' Claim Accrued.

i. Slavery Is A Jus Cogens Violation of International Law.

Certain principles of international law known as "jus cogens" or "peremptory norms" incorporate values that are so central to the international community that no country may diverge or derogate from them. The Ninth Circuit, for instance, has explained that all nations are bound by jus cogens principles, regardless of consent, because "universal norms constituting jus cogens transcend such consent." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Ci6r. 1992). See also Vienna Convention, §§, 64 (stating that treaty provisions in violation of jus cogens norms are void); The Schooner Amistad, 40 U.S. (15 Pet.) 518, 553, 595-96 (1841) (ruling a treaty with Spain could not be invoked to require the return of alleged fugitive slaves because "where human life and human liberty are in issue, and constitute the very essence of the controversy, a [treaty pertaining to ships and cargo] could never have intended to ...deprive foreigners of the protection given the general law of nations"); United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) cert. denied, 519 U.S. 1118 (1995) (recognizing that jus cogens rules "[a]re nonderogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and cannot be preempted by treaty"); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939-40 (D.C. Cir. 1988) (describing jus cogens as an elite subset of the norms recognized as customary international law). Jus cogens rules "prevail over and invalidate international agreements and other rules of international law in conflict with them." Alvarez-Machain v. United States, 266 F.3d 1045, 1050 (9th Cir.2001) op. vacated on other goods, 331 F. 3d 604 (9th Cir. 2003), petition for cert. filed, 72 USLW 3170 (September 2, 2003), (quoting from Restatement (Third) of the Foreign Relations Law of the United States, 102, comment k (1987)).

Jus cogens violations of international law include slavery and the slave trade, as well as torture, summary execution, disappearance, prolonged arbitrary detention, genocide and systematic racial discrimination. Siderman, 965 F.2d at 715-16 (citing Restatement (Third) of the Foreign Relations Law of the United States § 702 cmt. n (1987)).

ii. Slavery and the Slave Trade Are Crimes Against Humanity.

Enslavement was classified by the Nuremberg Tribunal as a "crime against humanity." The Nuremberg Trial, 6 F.R.D. 69, 130 (Int'l Military Tribunal 1946). In Principle VI of the Nuremburg Principles codified by the International Law Commission, "enslavement" was explicitly included in the list of "crimes against humanity," along with murder, extermination, deportation, inhuman acts committed against civilians, and persecutions on political, racial, or religious grounds. See Report of the International Law Commission, 5 U.N. GAOR Supp.(No. 12) at 11-14, U.N.Doc A/1316 (1950); and see also Mehinovic v. Vuckovic, 198 F. Supp.2d 1322, 1352 (N.D.Ga. 2002) (citing the Nuremburg documents in listing "enslavement" as included among the crimes against humanity).

Private citizens and corporate entities were criminally prosecuted at Nuremberg for utilizing slave laborers in the Industrial Cases. The crime of slavery is thus classified as a universal crime, and "enslavement [is] to be opposed and punished, wherever [it] may have been committed." Prosecutor v. Tadic, Int'l Crim. Tribunal for the Former Yugoslavia, IT-94-1-AR72 (Appeals Chamber, Oct. 2, 1994), reprinted in Jordan J. Paust, Joan M. Fitzpatrick, and Jon M. Van Dyke, International Law and Litigation in the U.S. 452, 453 (2000) (quoting from General Wagener, Revista Penale 753, 757 (Sup. Mil. Trib., Italy 1950)). Today, slavery must be understood as covering all contemporary manifestations of its practice, including forced labor. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1304 (C.D. Cal. 2000), aff'd in part, revs'd. in part, Doe (I) v. Unocal Corp, 2002 WL 31063976 (9th Cir. Sept., 18, 2002), op. vacated, 2002 WL 3597787 (9th Cir. Feb. 14, 2003) (citing United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995), cert. denied, 519 U.S. 1118 (1995) (citing Siderman de Blake, 965 F.2d at 717)). Civil liability for the use of slave labor is established by showing that a private party "participated [or cooperated] in the forced labor practices." Id. at 1310.

iii. Slavery Violated International Law at the Time Plaintiffs' Cause of Action Accrued.

Defendants have argued that Plaintiffs cannot pursue their claim because "at the time Plaintiffs' claim accrued, "international law' did not prohibit slavery." It is an obvious fact too apparent to need stating that many people certainly believed that slavery did violate the law of nations and all fundamental principles of justice in the early decades of our nation's history, and that this belief was held so strongly that it caused our country to fight a long and terrible war in order to be able to enforce this belief. The slave trade was decisively condemned in 1815 by the countries of Europe in the Final Act of the Congress of Vienna, which formally ended the Napoleonic Wars. The United States, the United Kingdom, and other countries abolished the slave trade at about this same time. The recognition that slavery was not acceptable under international law is found clearly in The Amistad, 40 U.S. 518 (1841), where the Supreme Court rejected a claim of Spain, based on a treaty, for property rights over a shipload of Africans who had been taken from Africa to be slaves in the new world. In an important opinion written by Justice Joseph Story, the Court explained that the language of the treaty had to give way to "the eternal principles of justice and international law," particularly in light of the fact that the United States had prohibited the importation of slaves many years earlier. Id. at 595-96. Defendants rely upon Osborn v. Nicholson, 80 U.S. (13 Wall.) 654 (1872), to support the legitimacy of slavery, but that opinion recognizes that this practice was "contrary to the law of nature" and characterized the slave trade as "atrocious." Id. at 661.

It also needs to be stressed that the relevant international law that must be applied by this Honorable Court is the law of today, as it has evolved. "[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." Filartiga, 630 F.2d at 881. "[I]t does not follow...that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations." United States v. La Jeune Eugenie, 26 F. Cas.832, 846 (C.C.D. Mass. 1822) (No. 15,551) (Story, J.), overruled on other grounds, 23 U.S. (10 Wheat.) 66 (1825).

d) Plaintiffs' Claim is Not Barred By Any Statute of Limitations.

The international community's view that statutes of limitations should not bar claims based on crimes against humanity has been codified in the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, which provides that no statute of limitations is applicable to war crimes or crimes against humanity. Although that treaty applies to criminal prosecutions rather than civil claims, it expresses the international community's rejection of traditional statutes of limitation for crimes against humanity. Similarly, in Handel v. Artukovic, 601 F.Supp. 1421, 1431 n.4 (C.D. Cal. 1985), a case relied upon by Defendants, the court noted that tolling the statute of limitations may be appropriate in suits for crimes against humanity based on a "wide variety of considerations" including "the disruptions of war to the difficulty in obtaining authenticated documents located in confidential government files."

Because the essence of plaintiffs' claim is that defendants were unjustly enriched by the labor of Plaintiffs' ancestors, these are claims that are equitable in nature. See e.g., SEC v. Common-Wealth Chemical Sec., Inc., 574 F.2d 90, 95 (2d Cir.1978) (disgorgement of ill-gotten profits and restitution are equitable remedies). The relevant doctrine regarding the timeliness of the claim is thus laches, rather than statute of limitations. See Holmberg v. Ambrecht, 327 U.S. 392, 396 (1946) ("Traditionally and for good reasons, statutes of limitations are not controlling measures of equitable relief."). To bar a claim on the ground of laches, a defendant must show, (1) the plaintiffs' knowledge of the defendants' misconduct, (2) plaintiffs' inexcusable delay, and (3) prejudice to the defendants. See Ikelionwu v. United States, 150 F.3d 233, 238 (2d Cir.1998). Plaintiffs have explained the reasons for the delay in bringing this claim in their Complaint, ACC „„ 190-203, and in light of these considerations and the extreme hardship that these claims are based upon, laches should not bar the pursuit of the present claim.

3. Plaintiffs' Sufficiently Allege Tort of Intentional Infliction of Emotional Distress.

Defendants argue that plaintiffs' claim for Intentional Infliction of Emotional Distress ("IIEM") is deficient in that it fails to allege "extreme and outrageous behavior" by the defendants that was "fairly traceable to any injury suffered by the any of the plaintiffs." Defendants' Jt. Memo at 48. However, the complaint expressly states otherwise:

Defendants' predecessor companies aided and abetted or under other theories of third party liability as have been described more fully herein, participated in, allowed, or implicitly or recklessly, sanctioned, an/or benefited from an institution that relied in the sexual exploitation, violent abuse and rape to achieve its goals of a malleable and unpaid work force. The violence an crimes against the enslaved group were done with the calculated intent of demeaning, subjugating and controlling of the enslaved population for purposes of exploitation for profit and for the direct benefit of commercial industries." (ACC, „233) See also, ACC, „„234-238.

Moreover, plaintiffs have painstakingly outlined each of the elements for establishing a claim: 1) extreme outrageous behavior by the defendants (ACC, „„234-235) 2) intentional or reckless behavior by the defendants (ACC, „„ 234-238 (IIED); 175, 224-230 (crimes against humanity); 2(b)-2(c) (willful violation of Transatlantic slave trade laws and conspiring with slave traders to separate families and dehumanize Africans) 3) severe emotional distress (ACC, „„ 238 (severe physic scarring), 237 (acts caused "severe emotional harm and distress,") 95(diminished self worth, psychological harm from having witnessed the degradation of their ancestors and relatives); 96 (C. Doe and other family members suffered severe emotional distress) and; 4) a traceable connection between the harm and the defendants' conducts (ACC, „„ 234-238, 2(b), 2(c), 224-230, 125-175).

In notice pleading, a party is not required to set out in detail the facts or even the legal theory upon which his claims are based. Elwonger v. Career Academy Inc., 54 F.R.D. 514, 515 (E.D. Wis. 1972), Hartford Fire Insurance , 2002 WL 256800 at *2. The facts and information in the complaint need only be "sufficient to form the basis of a reasonably fruitful discovery proceedings." Id., Bose Corporation v. Consumers Union of the United States, Inc. 57 F.R.D. 528, 530 (D. Mass. 1973). As such, plaintiffs have sufficiently pleaded allegations of IED.

4. Plaintiffs Sufficiently Allege Conversion.

Defendants in their Joint Brief at 48-49 argue plaintiffs fail to state a cause of action for conversion where there is no allegation of a wrongful taking of chattel, an object or personal property that is tangible. They further argue that conversion cannot be brought to "satisfy a mere obligation to pay money". Defendants' arguments fail on both points. As to the necessity of alleging the wrongful taking of personal property, defendants miss the obvious. Slavery reduced the enslaved to the status of chattel or personal property. It is axiomatic that the enslaved was viewed as property. As early as 1677, Justices of the Kings' Bench in England ruled that an action for trover (conversion) lie for the taking of one hundred Negro slaves. Butts v Penney, 2 Lex. 201, 83 Eng. Rep. 518 (K.B. 1677). The Court therein suggested two theories to accommodate their conclusion: Negroes were "infidels" and they were "usually being bought and sold among Merchants as Merchandise..." Id.

Besides the enslaved being considered property, the enslaved had a property interest in their person---a property right of self-ownership. Kaimipono David Wenger describes this property right:

Self-ownership can be viewed as implied ownership of one's physical body and bodily integrity. That is widely accepted by legal scholars as a minimum definition of self-ownership. A more expansive definition would view self-ownership as ownership in one's liberty---less about direct ownership of one's body, and more about ownership of the ability to make choices. In that sense, the right of self-ownership can be seen as related to the constitutional rights of privacy and of familial integrity. Under either a limited or an expanded right of self-ownership, slaves were the owners of that right.

Wenger, Slavery as a Takings Clause Violation at 12. Hence, the descendants' claims can be viewed as stemming from property rights, as well as, from human rights.

In all of the jurisdictions in which the lawsuits arise, one whose property is unlawfully taken may sue for its recovery, together with the rent that may have incurred through deprivation of its use while in defendant's possession.

Plaintiffs' allegations that the defendants have "failed to account for, acknowledge and return to plaintiffs and the plaintiff class, the value of their ancestors' slave labor" and that the "defendants willfully and wrongfully misappropriated and converted the value of that labor and its derivative profits into defendants own property," (ACC, „ 240) coupled with the plaintiffs' allegation that they demanded an accounting of the value of this labor (ACC, „ 219) sufficiently establishes the necessary elements for conversion.

When property is converted, the owner may sue for specific article or for the market value thereof, "or, if sold, treat [the] conversioner as constructive trustee and sue for the proceeds." Kelly v. R-F Finance Corporation, 60 S.W. 2d 1067 (Tex. Civ. App. 1933) (emphasis added). A wrongful taking does not change the title, and it may be recovered if its identity is perceptible to the sense through changed in form and enhanced in value by the taker's labor. Ripy v. Less, 55 118 S.W. 1084 (Tex. App. 1909).

Defendants make the additional argument that the claim is deficient in that the law precludes an action for conversion where the claim is "nothing more than an obligation to pay money". Defendants' Joint Memo at 49. Defendants correctly state the general principle, but purposely ignore how the nature of this obligation, stemming at its inception from a property right, changes the character of the obligation. Likewise, merely because plaintiffs seek money for the value of their services or the profit derived from those services, does not preclude relief. A claim for conversion can be seeking a return of money when the money is specifically such as in a fund or where the amount is capable of discernment.

The facts at bar are analogous to Cirricione, wherein the Supreme Court of Illinois, allowed a conversion claim for a physician claiming he was entitled to payment of services under a physician's lien. Similarly, plaintiffs as equitable beneficiaries of the converters' trust are claiming an equitable lien over the proceeds of their ancestors' labor. As such, a claim for conversion is adequately stated.

5. Plaintiffs Sufficiently Allege Unjust Enrichment.

In their brief, defendants misstate the law of Illinois. It is irrefutable that under Illinois law, "[t]o state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiffs detriment, and that defendant's retention of the benefit violates the fundamental principles of justice, equity, and good conscience." The plaintiff is not barred from suit if the benefit at issue has not "proceeded directly from him to the defendant." HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (HPI), 545 N.E.2d 672, 679 (Ill. 1989) (internal citations omitted). A defendant who receives a benefit from a third party is still obligated to relinquish it to plaintiff if, inter alia, "the defendant procured the benefit from the third party through some type of wrongful conduct or the plaintiff for some other reason had a better claim to the benefit than the defendant." HPI, 545 N.E.2d at 679; accord National American Ins. Co. v. Indiana Lumbermen's Mut. Ins. Co., 221 F.3d 1339, 1339* (7th Cir. 2000) (Table, text in Westlaw, No. 99-2637); see generally 4 G. Palmer, The Law of Restitution §§ 21.2, 21.4, 21.5, at 292-93, 298-99, 316-18 (1978).

Therefore, defendants' reliance on the lack of a direct relationship between plaintiffs and defendants is entirely misplaced and irrelevant. Plaintiffs' ancestors' owners, as third parties, clearly conferred benefits on the defendants in various ways--they paid to have them shipped, have them insured, etc. These payments constituted a benefit for defendants, and these benefits accumulated as a direct and proximate result of plaintiffs' ancestors' slave labor. Plaintiffs argue that defendants' payment for participation in chattel slavery constituted wrongful conduct under the meaning of Illinois law. In the alternative, plaintiffs argue that defendants' participation in chattel slavery, to the extent that it violated then-existing law, constituted wrongful conduct. As a result, Illinois law demands that the unjust enrichment claim not be dismissed.

However, even if the court does not find any of defendants' behavior to have been wrongful, plaintiffs have still stated a claim for unjust enrichment. "[U]njust enrichment ... does not require fault or illegality on the part of the defendant; rather, the essence of the cause of action is that one party is enriched and it would be unjust for that party to retain the enrichment. Firemen's Annuity & Benefit Fund of the City of Chicago v. Municipal Employees, Officers', & Officials' Annuity & Benefit Fund of Chicago, 579 N.E.2d 1003, 1007 (Ill. App. Ct. 1991) (citing Partipilo v. Hallman, 156 Ill. App.3d 806, 810, 510 N.E.2d 8 (Ill. App. 1st Dist. 1987) (neighbor who mistakenly paid real estate taxes for improvement on an unknowing and innocent neighbor's property could recover from that neighbor)); accord First Savings Bank of Hegewisch v. Orchowski (First Savings), No. 91 C 7083, 1994 WL 148668, *8 (N.D. Ill. April 21, 1994) (entirely innocent recipients of gifts obtained through extortion forced to relinquish them). So long as plaintiffs have "a better claim to the benefit than the [defendants, they do] not need to show that the [defendants] committed a wrong in obtaining that benefit." First Savings, 1994 WL 148668 at *8.

As the intestate heirs of their ancestors, plaintiffs clearly have a better claim to the benefit than the defendants. The defendants' claim to the property is rooted in--and therefore can be no stronger than--the slavemasters' claim, which is clearly invalid. "A thief does not obtain nor can he pass title to stolen property." First Savings, 1994 WL 148668 at *8 (citing Douglass v. Wones, 458 N.E.2d 514, 519 (Ill. App. Ct. 1983)). Courts have applied the same rule to property obtained through other inequitable actions. See e.g., First Savings, 1994 WL 148668 at *8 (extortion). The plaintiffs see no reason why the Court should not apply this rule to slave trading, considered one of the most egregious violations of international law and outlawed in the United States by no less than a Constitutional Amendment. An exception to the rule does exist under Illinois law, but since defendants have not argued in favor of its application in their motion, the Court need not consider its applicability at this juncture.

In summary, defendants have misstated Illinois law, mistakenly creating a requirement that plaintiffs and defendants have a direct relationship. In fact, Illinois law does support claims against third parties to recover benefits when defendant obtained them through wrongful conduct or when plaintiff simply has a better claim to them than does defendants. Both of these conditions are met here. As such, the Court must reject defendants' motion for summary judgment and rule for plaintiffs.

6. Plaintiffs' Sufficiently State a Claim Under Section 1982.

Pursuant to the rules of notice pleading, plaintiffs have sufficiently stated a claim upon which relief may be granted pursuant to 42 U.S.C. §1982. The critical question in analyzing a case under §1982 is whether an African-American has the same rights as a white citizen to engage in one or more of the activities enumerated in the statute. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 423 (1968) (the first Supreme Court case to determine that 42 U.S.C. §1982, which had been passed 102 years before, was actually applicable to private action). In this case the African-American slaves and slave descendants were clearly not afforded the same rights as whites to convey and inherit the fruits of their labor part of which was held and concealed by the defendants or their predecessors in interest.

Plaintiffs and the putative plaintiff class bring this cause of action for the acts of the defendants that have directly and proximately prohibited their rights to inherit and convey wealth as granted under 42 U.S.C. §1982. As required within the statutory framework, the plaintiffs' complaints specifically target the defendants' wrongful conduct since 1866; when 42 U.S.C. §1982 was passed. The defendants' wrongful conduct includes failure to disgorge their ill-gotten gains from slavery to the freed slaves, concealing information related to their ill-gotten gains from slavery, failure to disclose information related to their ill-gotten gains from slavery, the fact that these acts were all race-based and that they were engaged in to inhibit the advancement of the African-American population. Had it not been for these actions and/or inactions the plaintiffs would have been able to exercise their rights under the statute to inherit and convey property.

In support of their motion to dismiss, the defendants argue that the plaintiffs do not state a claim for the following reasons:

^ Plaintiffs have not identified any real or personal property transaction that they attempted to buy, sell, lease, etc...,

^ Plaintiffs claims based upon speculation that if they or their ancestors had wealth they would have been able to inherit or convey it,

^ Public policy reason: if plaintiffs' theory of recovery were the law, any claim for monetary loss could be converted into a §1982 claim and

^ Plaintiffs seek to retroactively apply § 1982 to conduct prior to 1866.

Plaintiffs address and refute each of these arguments in turn.

a) Requirement that Real or Personal Property and a Specific Transaction Be Identified

The cases cited by defendants in support of the proposition that §1982 coverage is restricted to identifiable property transactions were all decided at the summary judgment stage of the litigation or later. Although the Supreme Court has not held that an identifiable transaction is a prerequisite, plaintiffs recognize that a majority of the §1982 cases follow this construct. Be that as it may, plaintiff asserts that they have sufficiently identified for purposes of notice pleading that the defendants have amassed, concealed, maintained and withheld wealth that properly belongs to the plaintiffs. These very acts alleged by the plaintiffs against the defendants are sufficient to meet the requirements of stating a cause of action as specified by the defendants in their motion to dismiss. That is, the defendants withheld identifiable property from the plaintiffs, which directly impacted their ability to convey and inherit.

b) Claims Meet the Pleading Requirements

Defendants make a desperate argument regarding plaintiffs' "speculation" that absent the illegal conduct of the defendants that the plaintiffs or their ancestors would have conveyed and/or inherited their personal property. To begin, even if true, this argument is irrelevant at this stage of the litigation: the plaintiffs have plead it and the Court is to accept these pleadings as true. Second, it is wholly speculative to assume that African-Americans would have acted any differently than their white "neighbors" in the amassing of wealth conveying it to their descendents.

c) Claims Tailored to §1982 Rendering Defendants' Doomsday Prediction Meritless.

Defendants' "floodgates" argument has nothing to do with this case or the plaintiffs' allegations and causes of action. Plaintiffs' claims can hardly be likened to "any claim for monetary loss." Clearly U.S.C. §1982 is limited only to race-based claims. Plaintiffs' claims are race-based in the extreme, as they specifically target the theft, concealment, withholding of their wealth by the defendants for the very reason of denying the African-American population opportunity for advancement. This application of §1982 has no reasonable likelihood of "opening the floodgates" of litigation as the claim is unique on its face. Of course, if the acts of this case and the participation by corporations be repeated in the future case, §1982 is clearly present to protect against such conduct and should be applied without hesitation.

7. Plaintiffs Sufficiently Allege State Consumer Protection Claims

Defendants' seek dismissal of plaintiffs' consumer protection claims alleging they are impermissible based under theories of retroactivity and that they are not pleaded sufficiently to withstand the motion to dismiss. As a preliminary matter, plaintiffs may include additional allegations in their brief or in an affidavit to the Court to consider on a motion to dismiss for consumer protection claims as long as these allegations are consistent with those made in the initial complaint. Unique Coupons, Inc. v. Northfield Corp, 2000 WL 631324, * 2 (N.D. Ill. May 16, 2000); Herman M. Finch University of Health Sciences, 167 F.3d 1170, 1173 n.3 (7th Cir. 1999) Such additional allegations have been added to the proposed Second Amended and Consolidated Complaint and have been attached as an Exhibit A hereto). As such, the Court should incorporate these allegations into its consideration of the Motion to Dismiss. Combining these allegations with those contained in the ACC, defendants have not met their burden of proof justifying dismissal of the claims.

a) Doctrine of Retroactivity Does Not Apply As Allegations of the Consumer Protection Statute Are Based on Modern Day Times.

Defendants assert at 56-57 that the claims must be dismissed as they are based only upon actions that predate the passage of the Consumer Protection statutes. This is incorrect. A facial review of the ACC and the proposed SACC reference that the actions that plaintiffs' claims stem largely from modern day occurrences, as well as past practices. (Proposed SACC „„237-259; 361-411). To the extent that any claims are based upon past practices, plaintiffs rely on arguments made at Pt. Iv.C.1.

b) Violations of State Statutes Have Been Sufficiently Pleaded.

Illinois. Plaintiffs have sufficiently pleaded the who, what, where and method of misrepresentations. (Proposed SACC, „„237-259; 386-396).

Louisiana and New Jersey. Plaintiffs have pleaded that there was an ascertainable loss of money. (Proposed SACC, „„411).

New York. Plaintiffs have alleged acts that were likely to mislead consumers and have alleged injury as a result of defendants' conduct. (Proposed SACC, „„361-366).

Texas. Plaintiffs have alleged damages as a result of one or more of the twenty- six specific unlawful practices enumerated by the statute. (Proposed SACC, „„368-377).

California. Plaintiffs join in the specific argument as proposed by the Hurdle plaintiffs in their Brief regarding the well-pleaded allegations of the Hurdle complaint. Alternatively, plaintiffs have alleged additional language for the California complaint in the SACC that this Court should consider. (Proposed SACC „„378-386)

8. Plaintiffs' Conspiracy Count Does State a Claim.

The components of civil conspiracy as set out by defendants in their Jt. Memo have been met by plaintiffs' complaint: "i)an agreement; ii) to participate in an unlawful act or a legal act by unlawful means; iii) an overt act committed in furtherance of the scheme; iv) an injury caused by the overt act." Sain v. Nagel, 997 F. Supp. 1002, 1117 (N.D. Ill., 1998)

a) Underlying Tort

Defendants' claim that the conspiracy count fails because the plaintiffs fail to state an actionable cause of action cannot withstand close scrutiny. Notwithstanding the defendants' contentions, the ACC states claims under intentional infliction of emotional distress and under Crimes against Humanity committed in furtherance of the conspiracy. These include kidnapping, enslavement, forcible transfer of population, torture, murder, rape, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.

b) Agreement

Defendants state that the plaintiffs fail to plead facts demonstrating the existence of an agreement. They chastise the plaintiffs for failing to "name a date or place at which any purported agreement was reached ... name the actors ... and [to] indicate how any particular defendant ... could have been a participant in such an agreement." Defendants' Jt. Memo at 63.

Paragraph 216 of the ACC plainly implies an agreement. That paragraph cannot be read to mean anything else than there was an agreement to "participate in a plan that was designed in part to commit the tortious acts referred to herein."

Plaintiffs need not prove an express agreement:

need not prove that the unlawful agreement was express or that each participant in the conspiracy knew the "exact limits of the illegal plan or the identity of all participants,' as long as plaintiff alleges that each participant shares in "the general conspiratorial objective...' The plaintiff need not provide direct evidence of the agreement between the conspirators; it is enough that it could be circumstantially inferred from the facts that the conspirators had reached an understanding. Eli Lilly & Co. 23 F. Supp. 2d 460, 496 (D.N.J. 1998) (emphasis added).

The ACC at „„ 216, 217 does allege that each participant shared in the general conspiratorial objective -- i.e. the maintenance of the system of slavery, an inhumane enterprise from which they derived consistent and obscene profits. These profits flowed from the theft of enslaved African labor which was converted to the use of and unjustly enriched defendants. It is without question that the "understanding" between coconspirators can be inferred circumstantially from the facts already set out in the Complaint, e.g., the near seamless interaction between the co-conspirators, as members of one industry group benefited from and provided benefits to members of another industry group.

Defendants committed tortious acts in furtherance of the agreement. These included crimes against humanity, kidnapping, intentional infliction of emotional distress, torture, murder, rape, forcible transfer of population, enforced pregnancy, wrongful death.

Defendants in the Eli Lilly case, had an agreement which can be "circumstantially inferred from the facts." This is an agreement to maintain slavery for the mutual profit of all the co-conspirators, and committing the torts and/or crimes necessary to implement this agreement.

The defendants who financed and insured the Trans Atlantic Slave Trade were aware of the torts and/or crimes committed by their co-conspirators in the process of enslaving, kidnapping and disciplining/torturing Africans during the transportation, and the "breaking-in process" that occurred in the West Indies before the Africans reached North America, and continued until their death.

The type of detail which the defendants contend in is necessary to maintain a conspiracy cause of action (Defendants' Jt. Memo at 63) is not the essence of the holding of Ryan v. Mary Immaculate Queen Ctr., 188 F. 3rd 857, 860 (7th Cir. 1999). The court states quite clearly that:

""The purpose of this requirement [i.e. "some minimum description of the defendant's complained-of conduct,' is less to give the defendant enough information to prepare a defense ... than to allow the court to determine at the outset of the litigation, before costly discovery is undertaken, whether the plaintiff has any tenable theory or basis of suit, so that if he does not the case can be got rid of immediately without clogging the court's docket and imposing needless expense on the defendant." Id. at 860. (Emphasis added.)

In addition, both Ryan and Ostrer v. Aronwald, 567 F. 2d 551 (2d Cir. 1977) were cases involving alleged governmental misconduct by law enforcement authorities that had occurred within one or two years of the incident. It would be expected given those facts that the Court would demand a greater amount of detail in such a situation than in the instant case, involving private entities whose agreement to conspire occurred more than 150 years ago and whose records are not open to public scrutiny.

Norris v Krystaltech Int'l Inc., 135 F. Supp. 2d 465 (S.D. Miss. 2000) cited by defendants is distinguishable, which like Sain, involves a Motion for Summary Judgment, not a Motion to Dismiss, focuses more on the jurisdictional aspects of conspiracy.

The Complaint does provide sufficient facts to demonstrate that there was the agreement necessary to establish a conspiracy.

c) To Participate in an Unlawful Act or a Legal Act by Unlawful Means

While the parties to this suit still disagree on the issue of the legality of slavery per se during the 17th-19th centuries, none can dispute that the means used to further the agreement to maintain slavery - murder, torture, rape, enforced pregnancy, kidnapping, imprisonment, i.e Crimes against Humanity - were unlawful and tortious. The complaint, („„19, 22) clearly delineates these tortious means.

Similarly, plaintiffs maintain that the object of this conspiracy, the maintenance of this inhumane system of servitude, which in itself was illegal, was achieved through unlawful means. (ACC, „„ 3153)

d) Overt Acts

There are a plethora of overt acts alleged in the complaint. Direct and indirect management of plantations; policies insuring the enslaved Africans for the benefit of their owners; leasing of enslaved Africans; financing agreements, which were used to further the scheme. FleetBoston (ACC „ 125) predecessor Providence Bank lent money to John Brown to finance his illegal international trade in slaves. Also collected custom duties, fees, etc. (ACC „„ 126-127) AETNA insured slaves for the benefit of slaveowners (which included co-defendants) and for AETNA's profit. (ACC „ 134), see e.g. Brown Brothers running of plantations in default, ownership of plantations and slaves (ACC „„ 137-139); New York Life (ACC „ 142) (similar to AETNA); Lehman Brothers (ACC „ 148) (cotton middle-men); Lloyds (ACC „ 149); Union Pacific (ACC „ 152); JP Morgan (ACC „ 155); Westpoint Stevens (ACC „ 160). R.J. Reynolds (ACC „ 161); Canadian National (ACC „ 169); Southern Mutual Insurance (ACC „ 172); AIG (ACC „173).

e) Injury suffered.

The injuries suffered by the plaintiffs and their ancestors are adequately stated. (ACC „„ 49-52, 93-102).

In conclusion, all the factors necessary to state a claim for conspiracy have been met by the Complaint.

9. Plaintiffs' Other Theories of Secondary Liability Are Sufficiently Alleged.

The Defendants (Brief at 65) attack Plaintiffs' allegations of aiding and abetting. They challenge whether there is even any recognition of civil aiding and abetting. They are wrong on both the law and the facts.

The issue of whether there is civil liability for aiding and abetting has been settled in the affirmative. The federal government acknowledges such a right, on a statute-by-statute basis, even extending recognition where there the words "aiding and abetting" are not included in the statute. In the instant situation, where there is minimal statutory involvement, we must look to the common law and heed the words of the D.C. Circuit Court of Appeals,

We have seen the evolution of tort theory to meet twentieth century phenomena in areas such as product liability; there is no reason to believe it cannot also be adapted to new uses in circumstances of the sort presented here. This case is obviously only a beginning probe into tort theories as they apply to newly emerging notions of economic justice for victims of crime...

Defendants' citing to Kuhne v. Illinois, 124 F. 3d 204 (7th Cir. 1997) is inapt. Plaintiffs here are not, as was Kuhne, seeking to bring these defendants before a Grand Jury to press criminal charges but before a petit jury to achieve civil relief.

Defendants' contention (Defendants' Jt. Memo at 66) that Plaintiffs pleaded only aiding and abetting of crimes but not of a tort is also meritless. Plaintiffs' reference to defendants' aiding and abetting "crimes" (ACC, „206) clearly incorporates the underlying torts, which lay at the heart of this case. Defendants distort the Plaintiffs position by separating the language of paragraph 206 from that of paragraph 205 which clearly refers to "tortuous" acts which are pled throughout the complaint.

Furthermore, the Complaint establishes that the defendants: i) knew that an person/entity intended to commit a wrongful act; ii) intended to further that act; and iii) did so, thus satisfying all the elements of Aiding and Abetting.

Central Bank of Denver N.A. v. First Interstate, 511 U.S. 164 (1994) is distinguishable because it addresses whether a federal statute provides for private action under Aiding and Abetting. Plaintiffs seek recovery primarily under equity and common, not statutory, law. Both common law and international law recognize a private right of action in Aiding and Abetting. The Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 304, 320-321 (S.D.N.Y. 2003), Kadic v. Karadzic, 708 F. 3d 232, 244-245 (2d Cir. 1995).

Plaintiffs have also pleaded other applicable theories of secondary liability, such as enterprise liability and joint actors. Defendants incorrectly contend that these are only applicable to criminal liablilty. See Sindell v. Abbott, 607 P.2d at 294; Hymowitz v. Eli Lilly 539 N.E.2d at 1069; and Hall v. E.I. Dupont, 345 F. Supp at 353. Plaintiffs have pleaded sufficient facts to make out a claim for defendants' liability under aiding and abetting and other theories of secondary liability.

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