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Sudanese plaintiffs who claim they were victims of genocide at the hands of their government in collaboration with a Canadian oil company have lost their bid for class certification in the Southern District of New York. Judge Denise Cote has refused to certify a class in the action against the Sudanese government and Talisman Energy Inc. that was brought under the Alien Tort Claims Act. The case alleged Talisman joined in a government strategy of ethnic cleansing that included rape, murder and torture, in part to secure the unmolested development of major oil fields. The number of victims in the putative class in Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882, was between 114,000 to 250,000. But despite the “calamitous suffering and appalling treatment” of some Sudanese that has been “well-documented,” Cote found individual issues predominated, making the class action vehicle inappropriate. “The core question establishing a genuine controversy is whether the suffering endured by each putative class member can be attributed to the defendants,” she said. “This is fundamentally an individual question.” Cote, describing the complaint in the case, said the ascendancy of the National Islamic Front, “a Taliban-style fundamentalist political group,” following a 1989 coup eventually led the government to a campaign of religious and ethnic persecution that devolved into an “oil war” for control of the country’s petroleum resources. She said the complaint “posits a perversely symbiotic partnership between foreign oil companies and the Government, such that the Government could only receive capital from the development of its oil reserves to expand its war against the Southern population by turning to foreign oil companies with the technology to develop resources successfully, while foreign oil companies could only develop the oil resources successfully under secure conditions by assisting the Government in waging war against its Southern population.” The alleged “deliberate depopulation” of areas around oil fields was carried out by the Sudanese Army, allied militias and so-called “Petroleum Security” forces working for Talisman, the complaint alleged, and the company was also accused of providing logistical support to government military operations. Examining the facts in light of the standard for class certification under Federal Rules of Civil Procedure 23(b)(3), Cote said the rule’s drafters were driven by the notion of vindicating the rights of people who, individually, would lack the “effective strength” to sue their opponents. The judge said this appeared to be the first case in which a federal court has ruled on class certification under rule 23(b)(3) on an action brought for damages for genocide or crimes against humanity. After reviewing certification under the rule in mass tort, toxic tort, product liability, and mass accident cases, Cote turned to the definitions of genocide and crimes against humanity in the context of the Alien Tort Claims Act, which the U.S. Supreme Court now refers to as the Alien Tort statute. PLAINTIFFS’ BURDEN While the plaintiffs have to show that each individual class member suffered injuries that “were actually caused” by a campaign of genocide and crimes against humanity, she said, they will be up against Talisman, which “intends to show that warfare persisted through much of the Class Period between shifting protean factions of rival rebel groups based loosely on tribal affiliations, and that such warfare included attacks on villages in the Class Area,” rendering proximate causation on each attack “a hotly contested issue.” “Tellingly, the plaintiffs have not described how they would confront the burden of showing causation in a class action trial,” she said, a trial that would involve a class period of “six and half years over a large territory, and at least hundreds, if not thousands, of separate attacks.” The plaintiffs listed a number of attacks in their complaint, but they have not offered a comprehensive list “or explained how they would develop such a list,” the judge said. “It appears, therefore, that they envision simply establishing in a general fashion that the Campaign existed, and they leave for another day proof of specific attacks pursuant to the Campaign that injured individual Class members,” Cote said. “It is the need for evidence of such linkage — for evidence of proximate causation — that signals the doom for Rule 23(b)(3) certification.” Attorneys with Berger & Montague in Philadelphia, Anderson Kill & Olick in New York, and Lieff, Cabraser, Heimann & Bernstein in New York and San Francisco represented the plaintiffs. Attorneys with Clifford Chance represented Talisman.

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