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U.S. Court Upholds Damages Against Marcos

TIMES LEGAL AFFAIRS WRITER

In a major victory for human rights advocates, a federal appeals court in San Francisco on Tuesday upheld a $1.9-billion verdict against the estate of the late Philippine President Ferdinand E. Marcos.

The U.S. 9th Circuit Court of Appeals affirmed the huge verdict handed down by a Honolulu jury last year after finding that Marcos, who died in exile in 1989, was responsible for massive human rights abuses, including torture, murder and “disappearances of fellow Filipinos.”

In its key legal ruling, the appeals court held that the principle of military “command responsibility” for the wartime misconduct of subordinates is applicable in a class-action suit alleging peacetime human rights abuses by the agents of a political leader.

Philadelphia attorney Robert Swift, lead lawyer for the plaintiffs, said, “As far as I know it’s the first appellate decision affirming and applying the concept of ‘command responsibility’ to a person who did not himself commit the abuses but either ordered them to be committed or failed to prevent them.”

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Swift and some legal experts said the ground-breaking 9th Circuit decision increases the chances that the plaintiffs, who brought their case under the Alien Tort Claims Act of 1789, may gain a substantial recovery.

Swift acknowledged that his clients still have a formidable challenge in collecting their judgment. So far they have garnered only about $1 million stemming from a settlement over a Marcos house and a Mercedes in Hawaii.

They have been unsuccessful in persuading two large Swiss banks, which hold about $475 million in Marcos-linked funds, to turn over any of that money to them. A legal battle over the money has been pending before a federal judge in Los Angeles for more than a year.

On Tuesday, Swift said he would take the latest decision to the Philippines and use it to launch legal efforts to get title to an estimated $1 billion in Marcos-linked assets there, including real estate, corporate holdings and jewelry.

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James P. Linn, the Oklahoma City lawyer who has represented Marcos’ wife, Imelda, and her children for several years, acknowledged that his clients had substantial holdings in the Philippines, although he said he did not know their total worth.

He said he thought it was unlikely that the Swiss banks would ever agree to turn over any funds to Swift’s clients. He noted that the Philippine government has laid claims to those funds, as has a Los Angeles lawyer who recently won a $22-billion judgment against the Marcos estate in Hawaii.

Linn said that the human rights plaintiffs will have to “come out of the stratosphere” and agree to some sort of compromise if they are to secure any meaningful recovery. “Mrs. Marcos doesn’t have $1.9 billion.”

He said Mrs. Marcos has agreed to settle the case by paying each of the 9,541 Filipinos determined to have a valid claim “several times their annual income.” The current annual per capita income there is $1,085.

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Although it is unlikely that the full $1.9 billion will ever be obtained, Tuesday’s decision set an important precedent, according to international law experts.

“To use the term ‘command responsibility’ sounds novel,” said UC Davis law professor Diane Amman. “But it reflects a trend in the federal courts to enunciate theories by which [foreign] national leaders can be held liable for the actions of their subordinates.”

She said the ruling might be important in litigation pending in New York federal court against former Bosnian Serb leader Radovan Karadzic and several other men. They have been sued for damages under the same law that was used to sue Marcos.

“Much of what is alleged in the Karadzic case is torture and sexual assaults committed by his subordinates,” Amman said. “The decision of the 9th Circuit to extend liability in this way is significant.”

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American University international law professor Diane F. Orentlicher, who testified as a plaintiffs’ expert in the Marcos case, also said the ruling was quite significant.

“This is a real landmark, a watershed in international justice,” Orentlicher said. “It resolves doubts about whether a political leader [from another country] has responsibility and can be held accountable in a U.S. court for the acts of his subordinates who he had a duty to control.”

To utilize the Alien Tort Claims Act, a plaintiff must establish court jurisdiction over the individual he wants to sue. Several American judges ruled that U.S. courts had jurisdiction over the Marcoses after the couple fled their native land in 1986 and settled in Hawaii.

Several lawsuits have been brought under the statute in recent years after advocates of international human rights realized that it could be used by people who had been wronged by foreign officials and might have a better chance of redress in U.S. courts than in their native land. Although several individuals have won such cases, only one has been able to secure a substantial monetary recovery.

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In another key ruling, the appeals court upheld the procedure used by trial Judge Manuel Real to establish damages. He appointed a special master to conduct depositions and set a benchmark for compensatory damages based on interviewing a representative sample of claimants.

Special master Sol Schreiber interviewed 137 randomly selected claimants and their witnesses in 1994.

He evaluated whether the claimed abuse fit into one of three categories--torture, summary execution or disappearance; whether the Philippine military or paramilitaries were involved in the abuse; and whether the abuse occurred between September 1972 and February 1986, when Marcos was in power.

After determining that 131 of the 137 claims were valid, he considered a variety of factors, such as the method and duration of torture, the victim’s age, medical bills, the mental anguish of a victim’s family and lost earnings in calculating damages. He came up with benchmark figures of $51,719 for a torture victim, $107,853 for an individual who had been “disappeared” and $128,515 for a summary execution. This method yielded total compensatory damages of $767,491,493. The jury adopted most of the master’s findings. The jury also awarded exemplary damages of $1.2 billion, a decision that the appeals court unanimously upheld.

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The Marcos estate asserted that the compensatory damage procedure was invalid and violated due process of law. Marcos attorney Mark Lane contended that each claimant had to be questioned in order to accurately assess damages. Judges Betty B. Fletcher and Harry Pregerson disagreed.

Although she agreed with her colleagues on other aspects of the case, Judge Pamela Rymer dissented on this issue, saying the process raised “more than ‘serious questions’ of due process. . . . Even in the context of a class action, individual causation and individual damages must still be proved individually.” Judges Fletcher and Pregerson acknowledged that the procedures Rymer objected to were “unorthodox,” but they upheld them, citing the case’s “extraordinarily unusual nature.”


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