- The Washington Times - Friday, March 26, 2004

The U.S. Chamber of Commerce yesterday said it will fight a growing trend of class-action lawsuits being brought to U.S. courts by foreigners, as several international cases come before the Supreme Court.

The chamber, a Washington trade association for 3 million businesses, said a rising number of foreigners are exploiting the nation’s “more liberal” judicial system.

“The United States is becoming the jurisdiction of choice for plaintiffs who want to sue somebody, no matter who they are or what they have done,” Thomas Donohue, chamber president and chief executive, said yesterday.

The chamber wants to persuade the U.S. court system to limit its cases regarding cross-border issues and push for the adoption of an international agreement on jurisdiction.

Mr. Donohue and some legal analysts said the international cases threaten jobs and companies with operations in countries with different legal standards from the United States.

The American court system is a “magnet” for foreign plaintiffs because of its extensive pretrial discovery, jury trials, plaintiff awards and contingency fees, said John Beisner a Washington lawyer and partner with O’Melveny & Myers LLP.

“The little or no risk to the plaintiffs with the chance for high monetary rewards increases the attraction of litigation abroad,” Mr. Beisner said.

One particular law that foreign plaintiffs are using to get their cases in the courts is the Alien Tort Claims Act, a 1789 law signed by President Washington that allows foreigners to bring certain tort lawsuits in U.S. federal courts.

It has been used primarily in human rights cases against companies for the past two decades, Mr. Donohue said.

Human Rights Watch, a New York advocacy group, said 25 lawsuits have been filed against U.S. companies under the Alien Tort law and so far no damages have been awarded.

A spokeswoman was unavailable for comment, but the group’s Web site said foreign plaintiffs use the U.S. courts because they are prohibited from suing in their home countries.

The Alien Tort Claims Act will feature in a case that will be argued before the U.S. Supreme Court next week, Sosa v. Alvarez-Machain et al.

Two more cases by foreign plaintiffs involve antitrust claims against computer-chip maker Intel Corp. and price-fixing claims against foreign vitamin companies. Those cases are scheduled to appear before the Supreme Court in April.

The Sosa case dates back to 1985, when a U.S. drug-enforcement agent was captured and tortured to death in Mexico by members of a drug cartel.

U.S. agents believe Dr. Humberto Alvarez-Machain had helped keep the agent alive to be tortured longer, and they enlisted Mexican help to capture and bring him to the United States.

Before Dr. Alvarez-Machain was acquitted, he filed a claim that went to the U.S. Supreme Court. The claim said the United States had violated international law and an extradition treaty in Dr. Alvarez-Machain’s capture.

The Supreme Court rejected his claims, but Dr. Alvarez-Machain brought another lawsuit against the United States and Jose Sosa, a Mexican citizen who helped with the capture, saying Drug Enforcement Administration agents were not given the authority to enforce U.S. laws in other countries.

The 9th U.S. Circuit Court of Appeals in San Francisco allowed the case to proceed, ruling that Dr. Alvarez-Machain’s arrest violated a norm of international law and granted judgment against Mr. Sosa on a count under the Alien Tort statute.

U.S. Principal Deputy Solicitor General Paul Clement, who will argue for the U.S. government in the Sosa case, said the ramifications from the Alien Tort law may keep businesses from investing in foreign countries.

U.S. companies “would think more than twice” about opening subsidiaries in countries such as Burma, Mr. Clement said.

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