Solving the Settlement Puzzle in Human Rights Litigation

• Author: William J. Aceves
• Position: Dean Steven R. Smith Professor of Law at California Western School of Law
• Pages: 105-161

Solving the Settlement Puzzle in Human Rights

Litigation

WILLIAM J. ACEVES*

ABSTRACT

In human rights litigation, there are no formal standards to guide lawyers

and their clients when they are considering whether to settle a case. Moreover,

there is a paucity of published data on human rights settlements. This Article

provides a quantitative assessment of recorded settlements in human rights

cases litigated under the Alien Tort Statute and Torture Victim Protection Act.

It examines both confidential and public settlements. It then considers how and

why these cases settled. Finally, this Article proposes a set of standards for

assessing proposed settlements. When cases involve fundamental rights and

individuals have suffered immeasurable harms, litigants, lawyers, and judges

should know whether the costs of settlement are worth the price.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

I. SETTLING HUMAN RIGHTS CASES IN U.S. COURTS . . . . . . . . . 110

A. PUBLIC SETTLEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

1. WIWA V. ROYAL DUTCH PETROLEUM CO.. . . . . . . . . . . . . . . . 114

2. IN RE SOUTH AFRICAN APARTHEID LITIGATION (KHULUMANI). . . 119

B. CONFIDENTIAL SETTLEMENTS . . . . . . . . . . . . . . . . . . . . . 120

1. SALIM V. MITCHELL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

* William J. Aceves is the Dean Steven R. Smith Professor of Law at California Western School of Law. I

participated in several of the cases addressed in this Article. I am grateful to Susan Burke, Terry Collingsworth,

Agnieszka Fryszman, Katie Gallagher, Tyler Giannini, Paul Hoffman, Ken Klein, Carrie Menkel-Meadow,

Burt Neuborne, Cesare Romano, Wayne Sandholtz, Marco Simons, Beth Stephens, and Penny Venetis for their

valuable comments and for their assistance in locating litigation documents. Chelsey Barkley, Regina Calvario,

Maliat Chowdhury, Sara Emerson, Lillian Glenister, Matt Halverson, Varun Sabharwal, Jose Vega Zamudio,

and Stacey Zumo provided excellent research assistance. This Article was presented at the 2020 Research

Forum of the American Society of International Law and the 2021 Southern California International Law

Scholars Workshop, and I am grateful to participants for their helpful feedback. All errors are my own. © 2022,

William J. Aceves.

105

2. IN RE XE SERVICES ALIEN TORT LITIGATION . . . . . . . . . . . . . . 123

3. DOE V. UNOCAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

II. SOME REFLECTIONS ON SETTLEMENT . . . . . . . . . . . . . . . . . . . 127

III. SOLVING THE SETTLEMENT PUZZLE. . . . . . . . . . . . . . . . . . . . . 135

A. ASSESS SETTLEMENTS THROUGH OBJECTIVE

STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

B. ACKNOWLEDGE SYSTEMIC HARMS . . . . . . . . . . . . . . . . . 137

C. LIMIT CONFIDENTIAL SETTLEMENTS. . . . . . . . . . . . . . . . 141

D. LIMIT NON-DISPARAGEMENT CLAUSES . . . . . . . . . . . . . . 144

E. REJECT SOME SETTLEMENTS . . . . . . . . . . . . . . . . . . . . . . 145

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

APPENDIX: HUMAN RIGHTS SETTLEMENTS (ATS AND TVPA) . . . . 152

INTRODUCTION

For over forty years, victims of serious human rights abuses have filed civil

lawsuits against alleged perpetrators in U.S. courts.

1

These cases involved egre-

gious harms—human trafficking, torture, war crimes, and genocide.

2

Cases were

typically filed in U.S. courts because accountability mechanisms were often lack-

ing in the countries where the harms occurred.

3

Most cases were dismissed on

jurisdictional grounds, and few cases ever reached a jury.

4

However, some cases

1. See generally WILLIAM J. ACEVES, THE ANATOMY OF TORTURE: A DOCUMENTARY HISTORY OF

FILARTIGA V. PENA-IRALA (2007); MARIA ARMOUDIAN, LAWYERS BEYOND BORDERS: ADVANCING

INTERNATIONAL HUMAN RIGHTS THROUGH LOCAL LAWS AND COURTS (2021); ANJA SEIBERT-FOHR,

PROSECUTING SERIOUS HUMAN RIGHTS VIOLATIONS (2009); RALPH G. STEINHARDT, PAUL L. HOFFMAN &

CHRISTOPHER N. CAMPONOVO , INTERNATIONAL HUMAN RIGHTS LAWYERING: CASES AND MATERIALS (2008);

BETH STEPHENS, JUDITH CHOMSKY, JENNIFER GREEN, PAUL HOFFMAN & MICHAEL RATNER, INTERNATIONAL

HUMAN RIGHTS LITIGATION IN U.S. COURTS (2d ed. 2008).

2. See, e.g., Fila

´rtiga v. Pe~

na-Irala, 630 F.2d. 876 (2d Cir. 1980) (alleging claims of torture).

3. See William J. Aceves, Liberalism and International Legal Scholarship: The Pinochet Case and the

Move Toward a Universal System of Transnational Law Litigation, 41 HARV. INT’L L.J. 129 (2000); Beth

Stephens, Translating Fila

´rtiga: A Comparative and International Law Analysis of Domestic Remedies for

International Human Rights Violations, 27 YALE J. INT’L L. 1 (2002); Beth Van Schaack, With All Deliberate

Speed: Civil Human Rights Litigation as a Tool for Social Change, 57 VAND. L. REV. 2305 (2004).

4. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (case dismissed for failing to over-

come the presumption against extraterritoriality).

106 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:105

were settled by the parties.

5

At first glance, it may seem puzzling that victims of serious human rights

abuses would settle their claims. These individuals—including both direct vic-

tims and their family members—suffered egregious harms committed by perpe-

trators who have not been held accountable nor accepted responsibility for their

crimes. In these cases, plaintiffs seek justice. But, they also seek truth—informa-

tion about what happened to family members and why they were harmed.

6

In

addition, they seek to promote respect for human dignity, uphold the rule of law,

and deter future harms.

7

Finally, plaintiffs seek closure.

8

In sum, these cases—at

least when they begin—are rarely about money.

9

Many human rights cases also involve systemic harms—massive abuses suf-

fered by a large segment of the population.

10

Crimes against humanity, genocide,

and war crimes often involve hundreds or even thousands of victims. Claims of

slavery and human trafficking can also involve large numbers of victims.

11

While

5. See Roxanna Altholz, Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-

Kiobel, 102 CALIF. L. REV. 1495 (2014); Cortelyou C. Kenney, Measuring Transnational Human Rights, 84

FORDHAM L. REV. 1053, 1072–74 (2015).

6. See Elizabeth J. Cabraser, Human Rights Violations as Mass Torts: Compensation as a Proxy for Justice

in the United States Civil Litigation System, 57 VAND. L. REV. 2211, 2236 (2004); Sandra Coliver, Jennie

Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S.

Courts: Advocacy Efforts and Complementary Strategies, 19 EMORY INT’L L. REV. 169, 180–82 (2005).

7. NAOMI ROHT-ARRIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF HUMAN RIGHTS

223 (2005); Tricia D. Olsen, Leigh A. Payne & Andrew G. Reiter, The Justice Balance: When Transitional

Justice Improves Human Rights and Democracy, 32 HUM. RTS. Q. 980, 983 (2010); Elliot J. Schrage, Judging

Corporate Accountability in the Global Economy, 42 COLUM. J. TRANSNAT’L L. 153, 157 (2003); Erin Foley

Smith, Right to Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to Victims of

Corporate Human Rights Abuses, 44 COLUM. J.L. & SOC. PROBS. 145, 155 (2010).

8. See Coliver et al., supra note 6, at 180–82; E. Allan Lind, Robert J. Maccoun, Patricia A. Ebener,

William L. F. Felstiner, Deborah R. Hensler, Judith Resnik & Tom R. Tyler, In the Eye of the Beholder: Tort

Litigants’ Evaluations of Their Experiences in the Civil Justice System, 24 LAW & SOC’Y REV. 953 (1990);

Jamie O’Connell, Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their

Victims?, 46 HARV. INT’L L.J. 295 (2005).

9. See STEPHENS ET AL., supra note 1, at 445; Dolly Fila

`rtiga, American Courts, Global Justice, N.Y. TIMES,

Mar. 30, 2004, at A21; Julia Lieblich, Bearing Witness, CHI. TRIB. MAG., May 25, 2003, at 10.

10. David Scheffer, Genocide and Atrocity Crimes, 1 GENOCIDE STUD. & PREVENTION 229, 238–39 (2006).

Ambassador Scheffer uses the term “atrocity crimes” to address human rights abuses that are widespread or

systematic and that involve a large number of victims:

In non-legal terms, these are high-impact crimes of severe gravity that are of an orchestrated char-

acter, that shock the conscience of humankind, that result in a significant number of victims, and

that one would expect the international media and the international community to focus on as mer-

iting an international response holding the lead perpetrators accountable before a competent court

of law.

Id. at 239; see also David Scheffer, Atrocity Crimes Framing the Responsibility to Protect, 40 CASE W. RES. J.

INT’L L. 111 (2008).

11. See generally U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT (2019) (identifying millions of

trafficking and slavery victims worldwide); THE HUMAN TRAFFICKING LEGAL CENTER, FEDERAL HUMAN

TRAFFICKING CIVIL LITIGATION : 15 YEARS OF THE PRIVATE RIGHT OF ACTION (2018) https://www.

htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-1.pdf [https://perma.cc/

ANC2-LH72].

2022] SOLVING THE SETTLEMENT PUZZLE 107