Cohen Milstein Sellers & Toll scored a million-dollar settlement in November for a Nepalese subcontractor who was killed while working in Iraq. It was the latest victory in the firm’s campaign to enforce World War II-era legislation on behalf of foreign laborers working on U.S. bases in Iraq and Afghanistan.
Agnieszka Fryszman, a partner at Cohen Milstein, said that, in the process of representing the Nepalese subcontractors, she and her colleagues uncovered a pattern: U.S. contractors were forcing workers to labor under “horrible” conditions and then summarily shipping them home when they were injured on the job. “It’s really tragic,” she said.
The firm began in 2006 to develop a pro bono niche in workers’ compensation cases under the Defense Base Act. Fryszman had come across news reports about 12 Nepalese men who signed labor contracts thinking they would serve as hotel clerks and custodians in Jordan. Instead, their passports were seized, and they were shipped off to a U.S. base in Iraq. Before they could get there, the men were captured and executed by Iraqi insurgents — one, Mangal Limbu, was beheaded. A 13th worker, Buddhi Gurung, managed to escape, only to be sent to a military warehouse where he worked for 15 months before being returned to Nepal.
“I couldn’t believe it,” Fryszman said. “These men had gone into debt to secure their travel to Jordan. But when they were killed or forced to do menial tasks for low pay in a different country, their families were given nothing.”
The men had been hired by Daoud & Partners Ltd., a Jordanian subcontractor doing work for Halliburton Co. subsidiary KBR Inc., itself a U.S. military contractor, Fryszman said. That gave the workers standing to sue under the Defense Base Act — the 1941 law that allows people employed at U.S. military bases overseas to file workers’ compensation claims with the U.S. Department of Labor if they are injured or killed on the job.
The trouble was how to find the families of the men in their native Nepal. For that, Fryszman turned to Matthew Handley, then an associate at Cohen Milstein, who had spent two years in Nepal with the Peace Corps. Handley contacted the network of nongovernmental organizations he had worked with while there. The search was made easier by the fact that the execution of the 12 men had been widely reported in Nepal — the executions had been filmed and broadcast over the Internet, Handley said. “This was similar to 9/11 in Nepal in the amount of coverage it received. It was the first time that outside forces had had a direct impact on the people of that country in such a public way.”
Filing a claim under the Defense Base Act is usually “similar to filing an insurance claim,” Handley said, but KBR and Daoud opted to fight. They hired Roger Levy, a name partner at Laughlin, Falbo, Levy & Moresi in San Francisco who had served as editor in chief of a Defense Base Act litigation handbook.
After winning an early victory that allowed the case to proceed before an administrative law judge, Fryszman and Handley managed to contact Gurung, the surviving subcontractor. He produced a copy of his contract with Daoud and testified that the other 12 men had been hired by Daoud as well. .
“It was so fortuitous,” Fryszman said. “We just happened to hear about this case and were able to get into contact with the 13th subcontractor. And we happened to have an associate who stayed in touch with his contacts in Nepal and spoke Nepali.”
After months of additional discovery, Fryszman and Handley won summary judgment in 2008 on behalf of 10 of the 12 families of the slain contractors. While Fryszman declined to put an exact figure on the amount given to each family, she said that the total was more than $1 million. “That is a substantial amount in a country where many live below the poverty line,” she said.
Levy, who lost that case, said, “I was very impressed by their work. The were very thorough.”
Within weeks of the summary judgment, Fryszman and Handley filed suit against KBR and Daoud in federal court, alleging that the two companies knowingly hired laborers who were subject to human trafficking. Although the case originally was filed in California, it was transferred to the U.S. District Court for the Southern District of Texas. “We ended up drawing Judge Keith Ellison, who has given the case an attentive and thorough hearing,” Fryszman said.
That case is tied up in discovery, but Fryszman and Handley have already cleared the first hurdle. On Nov. 3, 2009, KBR and Daoud, represented this time by a team of Baker Hostetler lawyers led by David Rivkin Jr., lost their bid to have the case dismissed. Although Fryszman and Handley still must show that KBR and Daoud knowingly engaged in human trafficking and racketeering, Fryszman was heartened. “This is one of the first cases to be filed under the Trafficking Victims Protection Reauthorization Act, so we were pleased with the judge’s decision,” Fryszman said. Rivkin could not be reached for comment.
Thanks to news coverage in Nepal, Handley said, several more Nepalese workers have asked the firm to represent them in Defense Base Act claims. In November, Handley and Fryszman reached a tentative settlement with Edinburgh International, a security company employed by the U.S. Agency for International Development on behalf of the family of Thaman Gurung, a Nepalese man who was killed by an improvised explosive device while working as a subcontractor in Afghanistan. That settlement, which would be worth more than $1 million, is awaiting final approval by the Labor Department.
In June, they recovered benefits for Buddhi Kumar Sunuwar, who was working as a subcontractor for URS Corp. when he lost his foot in a forklift accident.
Cohen Milstein has expanded its work on behalf of Nepalese laborers to include political asylum cases. So far, Fryszman and Handley have secured asylum for four individuals and are involved a fifth case.
The firm’s work has been recognized by the U.S. ambassador to Nepal and the prime minister of Nepal. Handley added to those honors earlier this month when he was promoted to partner.
“It’s as though, every time we talk to one person who has been wronged, we find two more,” Handley said. “And the people who are contacting us are only the most savvy to have heard about our services. There must be so many more people out there who don’t know who to turn to for help.”
Contact Jeff Jeffrey at firstname.lastname@example.org.