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When Texas descendants of slaves filed a suit recently that named J.P. Morgan Chase, Union Pacific Railroad Co. and Westpoint Stevens Inc., the general counsel of those corporations probably didn’t have to go very far back in newspaper archives to find other corporate defense lawyers confronting broad claims based on historical injustices. In the past few years, plaintiffs have sued to hold corporations responsible for their alleged roles in historical events — such as the Holocaust or South African apartheid — that in hindsight the world has deemed inhumane or unlawful. There are more than a half-dozen slavery-related cases pending nationwide. In Texas, Julie Wyatt-Kervin, et al. v. J.P. Morgan Chase, et al., was filed on Jan. 21 in the U.S. District Court for the Southern District. Many of the same lawyers handling Wyatt-Kervin also represent plaintiffs in some of the other slavery and apartheid suits pending in other states against different corporations. In the suit, Wyatt-Kervin identifies herself as the daughter of slaves who worked on a Texas plantation producing cotton, cane and corn, and plaintiff Ina Daniels Hurdle McGee, a retired schoolteacher, says she is the great-granddaughter of a slave who was sold and taken away from his family to serve as a playmate to a Texas plantation owner’s son. Their complaint offers a lengthy history of slavery in this country and alleges that “Texas was the last frontier of slavery in the United States.” In their complaint, Wyatt-Kervin and McGee allege that the three named corporate defendants and 100 other unnamed defendants “through their predecessors-in-interest, conspired with slave traders, with each other and other entities and institutions (whose identities are not yet specifically identified) … to commit and/or knowingly facilitate crimes against humanity, and to further illicitly profit from slave labor.” The defendants engaged in “unjust enrichment,” “conspiracy” and “human rights violations,” the plaintiffs allege. The plaintiffs also make a demand for the corporations to detail records of any involvement they may have had with slave labor. “The Defendants knew or should have known of the existence of corporate records that indicate their profiting from slave labor,” the plaintiffs allege in their complaint. The complaint does not specify any roles of the present-day corporations’ predecessors beyond alleging, for example, that predecessor companies to defendant Westpoint Stevens made money in the textile industry in the South where slaves picked cotton. Westpoint Stevens assistant general counsel Christopher Zodrow declines to comment on the suit. He refers questions to the media spokeswoman for the Georgia-based company, Tony Cauble, who declines comment. At Omaha, Neb.-based Union Pacific, also a named defendant, regional corporate spokesman Mark Davis says the company has not yet hired outside counsel to handle the case. In-house, Henry Carnaby and Rick Walton, both assistant general counsels, will handle the initial tasks of the defense. Through Davis, both lawyers decline comment. “It is our stance that these suits are based on claims about companies that no longer exist,” Davis says. “Union Pacific never did benefit from [slavery]. The events took place under different social circumstances that don’t have any connection to the present-day Union Pacific. These lawsuits raise public policy questions that should be addressed in the Legislature.” Kent T. Stauffer, senior vice president and associate general counsel for another defendant, Manhattan-based J.P. Morgan Chase & Co., is faced with the allegations in Wyatt-Kervin as well as allegations made in a New York case alleging J.P. Morgan Chase supported South African apartheid by providing financial assistance for security systems for the government that supported segregation. Stauffer denies the allegations made in Wyatt-Kervin and the apartheid-related suit. Stauffer says such litigation consumes his department’s resources. “It’s something we have thought about a lot,” he says referring to suits alleging companies should be responsible for historical injustices. Stauffer says he assigned senior vice president and associate general counsel Robert Stephenson the task of managing J.P. Morgan Chase’s defense in all such cases. Stephenson did not return two calls by presstime on Feb. 6. APARTHEID REPARATIONS There are 11 apartheid-related cases pending nationwide. In one of them, Lungisile Ntsebeza, et al. v. ExxonMobil Corp., et al., filed in November 2002 in the Southern District in Houston, the plaintiffs seek “apartheid reparations” from multinational companies. In their complaint, the plaintiffs — people who lived in South Africa during apartheid and, in some instances, victims of alleged torture — contend that four named defendants and 100 unnamed defendants did business with South Africa during apartheid and facilitated the kind of repressive policies that prevailed in that country from 1948 until the 1990s. “Computer companies, oil companies, automotive companies, mining companies, financial institutions, construction companies, transportation companies and weapons manufacturers were needed to support and facilitate apartheid’s destructive civil goals,” the plaintiffs allege in their complaint, “[a]nd these companies derived exorbitant profits and benefits from and during apartheid.” Paul Wright, coordinator for international litigation and an in-house lawyer at Irving, Texas-based ExxonMobil responsible for handling the litigation, denies the allegations. “I would never recommend settlement in these cases,” Wright says. A general counsel faced with such broad-reaching claims that are much different than typical corporate litigation must start by looking at a company’s track record as it relates to the allegations, Wright says. “We have done that with the former Mobil and Exxon companies and talked to people who were there at the time and found out that we did more to help blacks in South Africa. We are finding all kinds of evidence,” Wright says. ExxonMobil hired James Quinn, a partner in the New York office of Weil, Gotshal & Manges, to manage the defense, Wright says. Quinn confirms that he represents ExxonMobil and other corporate clients who face slavery- and apartheid-related suits. He says he will file motions to dismiss all such cases. In particular about slavery claims, Quinn says, “Slavery is a horrible part of our history, but these claims have no merit.” Similarly, ExxonMobil’s Wright predicts that the claims ultimately will “fall by their own weight.” Wright concedes that for some corporate defendants the possibility of bad publicity can be a factor in the decision-making process of what to do when such a case is filed, but adds, “We are not afraid of taking this head on. We’re not afraid of it.” Lawyers on the plaintiffs’ team in Wyatt-Kervin and Ntsebeza — the same attorneys represent the plaintiffs in both cases — share a different perspective on how corporate defense counsel should respond to such suits. Diane Sammons, an associate with Nagel Rice Dreifuss & Mazie in Livingston, N.J., is one of the plaintiffs’ lawyers. Sammons says the litigation presents an opportunity for improved public relations for the defendant companies. The companies could take a conciliatory approach sooner rather than later, as many Swiss banks and German corporations did in Holocaust-related litigation filed in the United States. Sammons says if companies resist a conciliatory approach — saying they’re sorry and acknowledging they bear some responsibility — they could set themselves up for larger financial payouts in the long run if they don’t prevail in the litigation. “The tobacco cases provide a precedent,” Sammons says, arguing that the companies waited a long time to talk settlement with the states and ultimately paid more as a result of that postponement. Shelby Moore, a professor at South Texas College of Law in Houston who last year moderated a discussion about slavery reparations, agrees that corporate defendants may be better off responding quickly by starting with an apology. “I wouldn’t try to sit on it. That’s really a bad idea,” Moore says. Sammons says she expects the plaintiffs’ attorneys to receive 2 percent of any award, similar to what the lawyers received in Holocaust-related settlements, but notes that ultimately the fees must be approved by a judge. Notes Sammons, “It’s about making the company responsible for their role in slavery. We’re not looking to bankrupt these companies.”

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