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Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion to Dismiss,  In Re: African-American Slave Descendants' Litigation, United States District Court, N.D. Illinois, Eastern Division. MDL-1491. No. 02-7764 (CRN) October 7, 2003. (Table of Contents Omitted) (Trial Motion, Memorandum, and Affidavit)


On July 8, 2003, in a speech delivered in Senegal, the President declared slavery "one of the greatest crimes" in history, noting we can "fairly judge the past by the standard of John Adams who called slavery an evil of "colossal magnitude'..." The President noted that from the past we can "discern eternal standards" and the "rights of African-Americans are not the gifts of those in power." The President further acknowledged that "many of the issues that still trouble America have their roots" in slavery. Id These premises articulated by the President form the basis of this lawsuit.

Throughout our Country's history, groups of people whose property or tort rights have been violated by specific acts have properly turned to our Courts for redress. Often our Courts have fashioned equitable remedies to meet the needs of unique claims that were initially viewed warily by some.

The plaintiffs' legal claims rest on several simple premises. First, as early as 1886, our highest Court embraced the concept that wrongdoers who hold the fruits of another's labor are deemed to be holding the profits as a constructive trust and have an obligation to preserve these funds in favor of those who are equitably entitled to same.

Second, consistent with the President's speech in Senegal, a body of U.S. law since the late 18th Century and early 19th Century concludes that slavery was a violation of natural law and international law. International law is incorporated as part of U.S. common law. Either directly or under theories of secondary liability these defendants, or their predecessors in interest, aided and abetted, conspired or jointly participated in acts that illegal at the time, were against the natural law or constituted crimes against humanity for which they are responsible.

Third, plaintiffs have alleged modern day violations of consumer protection statutes by virtue of the misleading statements made by some of the defendants regarding their role in slavery either prior to or immediately after the initiation of these actions. See infra, Point IV.C.7.

Defendants seek to dismiss this action at its nascent phase, arguing that procedural bars preclude the plaintiffs from having their day in Court. However, it is defendants that bear the burden at this stage and they have failed as to each of the grounds they assert: Standing. Taking all allegations as true and drawing all reasonable inferences in plaintiffs' favor, defendants have not shown that plaintiffs lack standing where plaintiffs need only allege that they and/or their slave descendants suffered individual concrete harm that is redressable by the court and that it is fairly traceable to these defendant corporations. It is only a slender reed of injury that plaintiffs need to show. Wright & Miller, 13 Fed. Prac. & Proc. Juris. 2d §3531.4 (last updated 2003). On its face, the complaint alleges that enslaved African-Americans suffered concrete injury to their property and tort rights and that their descendants suffer derivative harm today. Plaintiffs have sufficiently pleaded that at least some of this harm is fairly traceable to the defendants' predecessors' who profited and/or participated or aided and abetted in the transatlantic slave trade. Moreover, plaintiffs' consumer protection claims, and the claim for accounting rest on modem day harm to the plaintiffs.

Statute of Limitations. First, some of plaintiffs' claims, namely; accounting and state consumer protection, allege modern day actions. Hence, these claims survive dismissal without any need for further consideration by the Court in this motion. Second, plaintiffs have sufficiently pleaded equitable theories of tolling that entitle them to survive dismissal at this stage. Moreover, all tolling theories involve questions of fact, which cannot be decided at this stage.

Political Question. Defendants' claims of political question bear no consideration where plaintiffs are not asserting public claims, but rather, private causes of action based upon individual rights sounding in property and tort. Moreover, defendants' assertion that Reconstruction legislation and executive power precludes judicial redress, is not supported by history or law where: 1) Reconstruction never dealt with compensation to former slaves or their descendants and; 2) the court had the power to act during Reconstruction and did, asserting itself as a co-equal branch of government.

Individual Causes of Action. Defendants attempt to parlay a motion to dismiss into a summary judgment motion where each of plaintiffs' claims state the requisite elements under law to survive this motion.

As will be shown herein, defendants have failed to show that plaintiffs' claims should be dismissed.





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[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.



Plaintiffs' Amended and Consolidated Complaint asserts and/or alleges that all applicable statutes of limitation have either been tolled or have not run with respect to all currently pleaded causes of action. Tolling theories are applied to address questions of equity and to prevent injustice to plaintiffs due to factors occurring quite outside of the plaintiffs' control.

As to plaintiffs' claims that are facially outside the statute of limitations, plaintiffs assert, given their pleadings which allege affirmative concealing and self-concealing conduct by the defendants and which chronicle and refer to the utterly unique and horrific experience of the African-American community both prior to and after 1865, that the plaintiffs have, for purposes of this motion to dismiss, presented sufficient pleadings to render the issues of statutes of limitation unripe for dismissal. That is, the court must "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990). A statute of limitations analysis is likely to prove unproductive at this stage, requiring the court to revisit it later. Staggs v Northwest Airlines Inc., 592 F. Supp 165, 169 (1984); Thompson v. Metropolitan Life, 149 F. Supp.2d 38 (S.D.N.Y. 2001). Plaintiffs, therefore, urge the Court to decline to rule on the tolling issues pending discovery.

As will be shown herein, case law and the facts at bar trigger one or more tolling theories for the appropriate causes of action.


A. Federal Accrual/Discovery Rule.

Plaintiffs' claims when taken as true, trigger the application of the federal accrual tolling provision more commonly referred to as the federal discovery rule. Although under federal law an action normally accrues at the time of injury, there are exceptions to this rule. Specifically, "where plaintiff would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted, the so-called "diligence-discovery rule of accrual' applies." Therefore, "accrual may be postponed until the plaintiff has or, with reasonable diligence, should have discovered the critical facts of both his injury and its cause."

It is well settled that a court may consider the sophistication of a plaintiff investor in evaluating issues of inquiry notice, fraudulent concealment, and constructive knowledge because an investor's sophistication affects the extent to which a court may properly conclude that a particular event should have influenced that investor to inquire into the likelihood of fraud involving his or her investment."

In the present case, plaintiffs have alleged that in their miserable condition which was a direct result of slavery and a perpetuation of slavery, near-slavery and unequal segregation through to the present, the plaintiffs' ancestors and plaintiffs that were enslaved, although intimately familiar with their pitifully horrific condition, were not aware of the nature of the investments, insurance policies, joint ventures and other schemes and conspiracies developed and utilized by these defendants and other corporations or their predecessors in interest to profit from slavery. Given the self-concealing nature of the profits gained via the private business dealings of the insurance industry, the banking industry, the railroads and all other businesses which profited from slavery while not necessarily owning slaves, plaintiffs could not have been aware of either the injury of stolen profits nor of the causation with sufficient clarity to either be aware of the existence of their cause of action or even be placed upon inquiry notice.

Tolling based on the facts at bar is entirely consistent with Thompson where the court allowed plaintiffs to proceed on tolling theories where plaintiff African- American life insurance holders claimed self-concealing discriminatory sales practices dating back to 1881 through to the 1970s. Thompson, 149 F. Supp.2d at 38-39.


B. Equitable Tolling

""The essence of the doctrine of equitable tolling is that a statute of limitations does not run against a plaintiff who is unaware of his cause of action." Thompson, 149 F. Supp.2d at 60. (quoting Cerbone v. Int'l Ladies Garment Worker's Union, 768 F.2d 45, 48 (2d Cir. 1985). The difference between the Federal Accrual/Discovery Rule and Equitable Tolling relates to the self-concealing nature of the defendant's conduct or the affirmative acts by the defendant, one or both of which prevented the plaintiffs' from discovering the conduct within the limitations period. Id. at 48-49; State of New York v. Hendrickson Bros. Inc., 840 F.2d 1065, 1083 (2d Cir. 1988). The plaintiffs' condition which has contributed to a lack of knowledge of the cause of action must be as a result of "disability, irremediable lack of information, or other circumstances beyond his control just cannot reasonably be expected to sue in time." Hoosier Bancorp of Indiana v. Rasmussen, et al, 90 F.3d 180, 183 (7th Cir. 1996)(quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) cert. denied, 519 U.S. 937 (1996). It is clear that in the case at bar the relevant question as to equitable tolling is whether the circumstances preventing the plaintiffs from gaining equal access to the justice system over the past decades are sufficiently extraordinary to justify application of the equitable tolling doctrine. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)(citing to Alvarez-Machain v. U.S., 107 F.3d 696, 701 (1996), vacated on other grounds, 321 F.3d 604 (9th Cir. 2002), petition for cert. filed, 72 USLW 3170 (Sept. 2, 2003).

A review of 7th Circuit case law establishes that although it has decided cases regarding equitable tolling, it has infrequently addressed the issue of equitable tolling as between private parties. From this review, it is also incontrovertible that the historical, factual and legal arguments advanced in favor of equitable tolling in the instant litigation is a matter of first impression in this jurisdiction. The relevant 7th Circuit case law related to equitable tolling in general since its flagship equitable tolling decision in 1991, Cada v. Baxter Healthcare Corporation, 920 F.2d 446 (7th Cir. 1991), cert. denied, 501 U.S.1261 (1991) has done more to clarify what circumstances do NOT qualify for equitable tolling than to clarify what circumstances are sufficiently extraordinary to merit application of the doctrine. None of these doctrinal clarification cases should preclude this Court from denying defendant's motion to dismiss, given plaintiffs' tolling allegations. Additionally, none of the tolling allegation sufficiency cases should preclude this Cpurt from denying defendants' motion to dismiss given that plaintiffs' tolling allegations are clearly extraordinary.

The instant case provides a textbook example of a proper application of equitable tolling. If ever there was a case suited for it, it is the present case. It is unique on its face. The plaintiffs' delay in filing is not based on "garden variety" excusable neglect; it is not based on "run-of-the-mill" excuses for delay; it is not based on "inconvenience." The plaintiffs' delay is based on the uniquely catastrophic historical context from which their class is still seeking to advance and from which the defendants are still profiting. Equitable tolling is mandated as the case presents one of "those rare instances where -- due to circumstances external to the party's own conduct -- it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Harris, 209 F.3d at 330.

The pervasiveness of racial inequality in the administration of justice, which continues into the present day, in effect rendered the doors of the courts closed to African Americans seeking justice for the harms occasioned upon them and their ancestors as a consequence of slavery in the United States. The inaccessibility of the courts as a forum for seeking equal justice under law, prevented the plaintiffs from asserting the rights they raise in the instant litigation; and it prevented assertion of their rights in the kind of "extraordinary way" for which the equitable tolling doctrine provides a necessary remedy.

The defending corporations under the laws of this country have infinite lifespan and should be held to account for any illegal conduct they or their predecessors in interest engaged in relating to illegal profits from slavery transactions. Plaintiffs and other members of the class have been kept in ignorance of vital information essential to pursue their claims, without any fault or lack of diligence on their part. The class should not be penalized for the concealment or destruction of these records and should be granted equitable tolling.


C. Continuing Violation

"The continuing violations doctrine tolls the running of the statute of limitations on all [wrongful] acts until the defendant has taken its last [wrongful] act." The continuing violation doctrine also allows for claims outside a given limitations period if there is a "substantial nexus" between that conduct and conduct occurring within the limitations period.

Defendants illegally profited from slavery during the limitations period. Defendants have ever since failed to provide an accounting of those wrongs through to the current date. There is a substantial nexus between the acts of chattel enslavement and the ongoing lack of accounting by the defendants for the use of that unjust institution. The nexus between the two is enough to satisfy the well-pleaded facts standard to show that there was indeed a continuing violation at the motion to dismiss stage.

Defendants, in their motion to dismiss, claim that slavery was a single event with purported continuing injuries, not a "continuing violation." The defendants obtusely misconstrue the plaintiffs' claims. The plaintiffs' assertion of the applicability of the continuing violation doctrine is limited to plaintiffs' cause of action for an Accounting.

The defendants continued failure to make restitution and its false representations that the basis of restitution is not identifiable, constitute a continuous and ongoing violation of the law. "The nature of plaintiffs claim is such that the continued denial of their assets, as well as facts and information relating thereto, if proven, constitutes a continuing violation." Bodner v. Banque Paribas, 114 F. Supp.2d 117 (E.D.N.Y. 2000). The statute of limitations has not yet begun to run because the wrongful acts are ongoing.


D. Equitable Estoppel.

To the extent that the Court determines that none of plaintiffs' asserted tolling theories applies to any of their causes of action, plaintiffs argue in the alternative that the defendants are equitably estopped from asserting a statute of limitations defense. Equitable Estoppel has six elements: (1) defendant undertook words or conduct that amounted to a misrepresentation or concealment of material fact; (2) defendant knew, or had reason to know, the falsity of his misrepresentation or concealment; (3) plaintiff did not know, or have reason to know, that defendant's misrepresentation or concealment was false; (4) defendant intended, or reasonably expected, that plaintiff would detrimentally rely on defendant's misrepresentation or concealment; (5) plaintiff's detrimental reliance was reasonable and in good faith; and (6) plaintiff would be prejudiced if defendant were permitted to avoid the falsity of his misrepresentation or concealment. Specifically, as discussed above and within plaintiffs' complaint, plaintiffs have listed sufficient, if not substantial, factual allegations to create a fact question as to the defendants' conduct in concealing information from the plaintiffs, thus precluding them from being able to file suit within the statute of limitations period and, therefore, this Court should deny defendants' motion to dismiss.

Plaintiffs factual allegations include: 1) defendants withheld documents and information related to their illegal profits from slavery and/or lied about their participation in slavery; 2) the fact that the defendants benefited from concealing the information and that the concealment was so complete, provides a sufficient basis to conclude that they were aware of the concealment; 3) plaintiffs did not know of the defendants conduct or illegal profits and therefore could not have known of the concealment and/or misrepresentations; 4) defendants in concealing the information knew that this concealment would protect them from accountability for their actions; 5) plaintiffs' lack of information was reasonable and in good faith given the nature of defendants' conduct and plaintiffs' conditions; and 6) clearly justice would not be served by allowing the defendants to benefit from their concealing behavior as measured against the extreme harm suffered by plaintiffs and their ancestors.

As a result of this brief outline of plaintiffs' allegations against defendants, plaintiffs respectfully assert that dismissal of this action as a matter of law would be improper and unjust.


E. Defendants' Contentions Are Faulty.

Defendants, in their motion to dismiss, make unsupported conclusory assertions that the tolling mechanisms alleged by plaintiffs do not apply as a matter of law and/or precedent. In so doing, defendants misstate plaintiffs' claims. In attempted support for defendants' contentions they inappropriately cite to a slate of other reparations cases for the simple reason that these cases were dismissed at least in part on statute of limitations grounds. However, a simple reading of the cases establishes that these cases are clearly inapposite for one or more of the following reasons: 1) in several of the cases, the plaintiffs did not provide any legal basis for tolling, unlike in this case; 2) in others, a German statute of repose applied, therefore foreclosing a tolling argument, unlike in this case; and 3) in others, the plaintiffs were not found to have triggered tolling, given the limited or substandard nature of their tolling allegations, again unlike this case.


F. Crimes Against Humanity Do not Invoke Statute of Limitations Concerns.

Refer to the substantive treatment of the plaintiffs' Crimes Against Humanity section at Point IV.C.2. Alternatively, plaintiffs have adequately pleaded tolling herein.

G. Consumer Protection Statutes Do Not Invoke Statute of Limitations Concerns.

The facts supporting plaintiffs' state consumer protection claims are all brought within the applicable statutes of limitations, none of which have yet to run. See Point I.C.8.





A. These Suits Involve Private Interests, Hence Political Question Doctrine is Not Implicated.

Defendants' misrepresent the complaint in an attempt to dissuade this Court from hearing claims that are properly before it. Plaintiffs' claims are brought by private individuals against private corporations for both tort and property harms that were occasioned by defendants' particular acts of years past, as well as their acts of today. Nowhere do the defendants claim, nor can they, that any acts of the Executive or Congressional branch, either then or now, were aimed at or meant to preclude judicial claims of this sort against private corporate entities. Defendants' err in arguing that merely because the claims raised may be considered "political" by some, that the "political question" doctrine is ipso facto invoked. In Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995), an Alien Tort Claims Act case involved gross human rights abuses by a Bosnian Serb leader and touched on highly politicized and sensitive issues. But the Court refused to dismiss on political question grounds cautioning that "judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions..." and adding that "[a]lthough these cases present issues that arise in a politically charged context, that does not transform them into cases involving non-justiciable political questions." Id. at 249. As the Supreme Court stated in Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 (1986), "[U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." See e.g., Valley Forge Christian College vs. Americans United for Separation of Church and State, Inc., 434 U.S. 464, 474 (1981) ("proper regard for the complex nature of our constitutional structure requires...that the Judicial Branch [not] shrink from confrontation with the other two coequal branches of the Federal Government."). Defendants fail to establish that the Constitution precluded the Courts from acting. Rather, history shows that the Court was a co-equal partner in Reconstruction. Likewise, defendants fail to sufficiently establish any of the other Baker factors.


B. The Baker Factors Endorse Justiciability.

1. Defendants Fail to Demonstrate A Constitutional Textual Commitment to the Executive or Legislative Branch.

Defendants offer nothing more than conclusory statements for their proposition that plaintiffs' claims are not justiciable under the first Baker factor, a constitutional textual commitment to the Executive or Legislative Branch .

Justice Brennan's language in Baker refers to a "textually demonstrable constitutional commitment." 369 U.S. at 217. (emphasis added) The text of the Constitution (including its amendments) must display this commitment on its face. Nowhere do defendants demonstrate such a textual commitment. Rather, throughout defendants' Jt. Memo, they make a preliminary logical error: they assume that because Congress or the Executive branch could do something, that means that other branches thereby could not. This is a non-sequitur. That Congress could, for example, enact public or private legislation compensating individuals for tortious acts by the instrumentalities of the federal government does not mean that the judiciary is automatically disabled from hearing all claims against the federal government, as the Federal Torts Claims Act attests. Along the same lines, the "policy choices and value determinations" that Japan Whaling, 478 U.S. at 230 mentions while being committed to Congress and the executive, may also implicate claims that may also be simultaneously justiciable. These are not mutually exclusive categories.

The principal textual commitment that the defendants cite lies in Section 5 of the Fourteenth Amendment and Section 2 of the Thirteenth Amendment. 2. But neither of those provisions is the exclusive commitment that Baker requires. Both explicitly empower Congress, for the first time in the text of the Constitution, to enforce policies and objectives set forth in preceding sections. If the Framers had meant to make those powers exclusive, they could easily have done so. But as Harold M. Hyman, William M. Wiecek, and Stanley I. Kutler, all well-known reconstruction scholars, have repeatedly demonstrated, the Framers chose not to do so, relying on the federal judiciary as a coordinate partner in the enforcement of Reconstruction policy. Whatever else the Constitution might be read to mean, it cannot be read to exclude judicial power from a role in Reconstruction. Id.

A second error by defendants assumes that civil rights legislation (both successful and failed) was intended by Congress in lieu of reparations. Congress did not enact reparations legislation during Reconstruction because it considered, say the 1866 Act or the Enforcement Acts preferable, but rather, because reparations were unthinkable in that era, except by a small coterie of visionary Republicans (Charles Sumner, Thaddeus Stevens, a few others) who are usually called "Radicals". Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, 228-230. (Harper & Row 1988). Reparations was so far from mainstream thought, that it was never seriously discussed, though occasionally and earnestly suggested by these few. The failed land policies of Reconstruction were not reparations efforts; they had other policy objectives, none of which were compensatory. Id. at 158-170. This is not a matter of comparing apples to oranges, but of comparing apples to a fruit that was not even in the room.

Moreover, defendants' citation of Georgia v. Stanton and Mississippi v. Johnson (Defendants' Jt. Memo at 28 n. 18) refutes their basic point. That is, they rely on these cases to demonstrate that the Supreme Court regarded Reconstruction policy as a matter for the political discretion of the President and Congress, not to be inhibited by federal equitable intervention. However, a passage in Georgia v. Stanton actually supports the plaintiffs' position: "But, according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."73 U.S. (6 Wall.) 50, 76 (1867). Herein, plaintiffs are presenting the "rights of persons or property" to which Justice Nelson referred. Their claims sound in property and tort, and are not public actions.

2. Lack of Judicially Discoverable and Manageable Standards for Resolving the Issues.

With regard to the second Baker factor (lack of judicially discoverable standards), defendants advocate a form of judicial defeatism and misstate the holdings of several cases and the facts in their haste to argue that there is "a lack of judicially discoverable and manageable standards" for the resolution of these actions. (Defendants' Jt. Memo at 35-36). Ignoring the allegations of the complaints, which include events as recent as last year (plaintiffs' consumer protection claims), defendants argue that "the relevant events took place as far back as 1619." Id. In cases raising similar arguments, courts have only found this second Baker factor to be present if the following reasons apply: (1) there are thousands of potential plaintiffs worldwide that must be identified and notified; (2) the existence of several treaties between the governments of defendants and each potential plaintiff that must be analyzed to determine whether they have subsumed individual claims or whether individual remedies have already been provided for; (3) relevant materials come from a multitude of sources -- often in foreign languages -- that are both voluminous and potentially unmanageable by individual courts; (4) when sources are scattered around the world, parties are unlikely to be able to gather all of the pertinent data; (5) potential plaintiffs who are elderly may raise unique challenges, particularly given their locations around the world. In short, defendants must prove that "[w]ithout guidance from the political branches of government, the courts are unable to manage and resolve the issues presented in this case. Beyond speculation, Defendants' have offered nothing to indicate that any of the five "standards" stated by the Baker court is present.

Rather, there is ample evidence that private reparations claims are extremely well suited to judicial resolutions.

Defendants' reliance on the dismissal of several World War II slave labor claims and war reparations claims arising out of the Nazi era on political questions grounds is misleading. Kelberine, Iwanowa and Burger-Fischer and others dealt with the reality that "the post-war claims settlement regime had been exclusively constructed by political branches, and that it was not the place of courts to resolve [these] claims." The claims herein arose in a different factual context than that of the cases addressing reparations for victims of Nazi atrocities. Compensatory payments or reparations to slaves were never part of the Reconstruction efforts. Furthermore, nowhere has it been established that this realm was constitutionally proscribed as exclusively the realm of Congress or the Executive branches. Finally, unlike the Nazi era claims, the claims herein never implicated the treaties or policies of foreign governments.

3. The Remaining Baker Factors (The Impossibility to Resolve the Case Without Disrespecting Other Branches, the Need to Adhere to Previously Made Political Decisions and the Potential to Embarrass Another Branch of the Government) Are Not Present.

Defendants in their Jt. Memo at 37 do not cite additional facts or law in support of the three remaining Baker factors, but rather, argue that the same reasons relied on by defendants also support dismissal under the remaining Baker factors. As has already been urged by plaintiffs, defendants' arguments fail for the same reasons as provided in Point III.B.1 and 2. However, the defendants' arguments fail for a separate basis under the remaining Baker factors.

As recently as several months ago, President Bush in a major policy speech given on Goree Island in Senegal, gave implicit support for the plaintiffs' claims. On July 8, 2003, President Bush publicly declared slavery to be "one of the greatest crimes in history" and to have been a crime even in "John Adam ['s]" time. President Bush's 7/8/03 Speech, (http://www.whitehouse. gov/news/releases/20030708-1.html.)

Far from defendants' cry that the current litigation would embarrass the executive branches, the litigation is entirely consistent with this administration's recent declaration.

As such, defendants' request for dismissal on the political question doctrine must fail.



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.


For the foregoing reasons, plaintiffs respectfully request that defendants' Joint Motion to Dismiss be denied.