Appeals Court Keeps Hope Alive For Reparations Suit

Michael Higgins, Chicago Tribune, Dec. 13, 2006

A federal appeals court revived part of a slavery reparations lawsuit on Wednesday, giving a measure of hope to descendants of slaves who are seeking damages from firms they say profited from the slave trade.

The 7th U.S. Circuit Court of Appeals rejected most of the plaintiffs’ claims. But the court ruled that contrary to a trial judge’s decision last year, companies could be held liable if they lied about their ties to slavery to avoid chasing away customers.

The appellate judges offered no opinion on whether the plaintiffs would ultimately win on their consumer-protection claims “but merely reject the district court’s ruling that they are barred at the threshold,” said Judge Richard Posner, writing for a unanimous three-judge panel.

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The plaintiffs had filed suit against more than a dozen companies, including Aetna insurance, Brown and Williamson Tobacco, CSX railroad, and financial services companies Lehman Brothers and JPMorgan Chase.

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The plaintiffs have said they want proceeds from the lawsuit to become part of a trust fund that would benefit the descendants of slaves, possibly to fund education and health care.

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Norgle had ruled that the statute of limitations on the plaintiffs’ claims had run out, and that it would not be possible for the plaintiffs to show how they had been damaged by the acts of the defendants about 150 years ago.

On Wednesday, the appeals court ruled that Norgle should have dismissed the plaintiffs’ claims without barring them from refiling. But the court otherwise largely agreed with Norgle’s reasoning.

“It would be impossible by the methods of litigation to connect the defendants’ alleged misconduct with the financial and emotional harm that the plaintiffs claim to have suffered,” Posner wrote in a 16-page opinion.

Even if a plaintiff showed that Aetna insured slaves or that JPMorgan Chase lent money to slave-buyers, “there is no way to determine that a given black American today is worse off by a specific, calculatable sum of money … as a result of the conduct,” Posner wrote.

Posner compared the case to the ancestor of a Union soldier, killed in battle, who attempts sue a gunmaker that sold guns illegally to the Confederacy.

The ruling was a mixed result for plaintiffs, according to Eric J. Miller, a law professor at St. Louis University who favors reparations.

“On the one hand, they’ve managed to survive in the appellate court with a reparations suit, which I think is remarkable,” Miller said. “The problem is they haven’t managed to sustain the main claim, being [the idea] that descendants can sue for reparations on behalf of their ancestors…. Posner has asserted that 150 years is just too long.”

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A federal appeals court on Wednesday rejected most claims by slave descendants that they deserve reparations from some of the nation’s biggest insurers, banks and transportation companies.

The three-judge panel of the 7th U.S. Circuit Court of Appeals affirmed a lower court ruling that slave descendants have no standing to sue for reparations based on injustices suffered by ancestors and that the statute of limitations ran out more than a century ago.

But the panel did keep alive a smaller portion of the suit, claiming that major U.S. corporations may be guilty of consumer fraud if they hid past ties to slavery from their customers.

The opinion, written by Judge Richard A. Posner, said that “statutes of limitations would be toothless” if descendants could collect damages for wrongs against their ancestors.

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The panel also said the descendants lacked standing to sue because their links to the slaves were distant.

It said the “causal chain is too long and has too many weak links for a court to be able to find that the defendants’ conduct harmed the plaintiffs at all, let alone in an amount that could be estimated without the wildest speculation.”

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U.S. District Judge Charles R. Norgle Sr. had dismissed all the claims. He found that the descendants lacked standing and that the statute of limitations had expired, and that the issue was political and shouldn’t be worked out in a court.

While largely upholding Norgle’s decision, the appeals court kept alive the consumer protection claims.

Descendants claim they have been injured by buying products from companies that concealed the fact that they or their predecessor companies somehow benefited from slavery.

In allowing the consumer-protection claims, the appeals court said it knew of no law saying a seller has “a general duty to disclose every discreditable fact about himself.” But it added that sellers who misrepresent a product, fearing the loss of buyers who would object to it, are guilty of fraud.

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—AP, December 13, 2006

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