The Marcos case How Class Actions can benefit Human Rights This is a paper by Thomas E. Hudson, a William Sampson Fellow who undertook an externship with PILA in 2011. Thomas is currently at J.D. student at the University of Washington, Seattle. Introduction This paper is an example of how class actions can be of benefit to human rights. The case concerns the human rights abuses inflicted upon the people of the Philippines by the Marcos regime. Filipino victims filed a suit against Marcos under the Alien Tort Claims Act and the Torture Victim Prevention Act and when Marcos died, it moved against his estate. As there were over 10,000 claims, class actions were the more favoured procedure and this avoids the barriers that hearing each case individually presents. Suing Marcos Hilao v. Estate of Marcos (103 F.3d 767 (9th Cir. 1996) provides a powerful example of how the Class Action (CA) procedure can benefit human rights litigation. 1 Marcos was the dictator of the Philippines for 14 years, from 1972 until 1986. 2 During this time he engaged in a series of extreme human rights abuses against the Filipino people. 3 Marcos fled to Hawaii when the Filipino people overthrew him in 1986, and was greeted with service of process for his atrocities. 4 See Margaret 1 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). 2 Id. at 771. 3 Id. 4 Margaret Perl, Not Just Another Mass Tort: Using Class Actions To Redress International Human Rights Violation, 88 GEO. L.J. 773, 777, Aug. 11, 2011.
Perl, Not Just Another Mass Tort: Using Class Actions To Redress International Human Rights Violation, 88 GEO. L.J. 773, 777, Aug. 11, 2011 Filipino victims filed a series of suits against Marcos under the Alien Tort Claims Act and the Torture Victim Prevention Act. 5 The Alien Tort Claims Act grants aliens the right to sue for any tort committed in violation of the law of nations or a treaty of the United States. 6 (The Alien Tort Claims Act, 28 U.S.C. 1350.) The Torture Victim Prevention Act allows actions for torture or extrajudicial killing under actual or apparent authority, or color of law. 7 (Torture Victim Protection Act of 1991, PL 102 256, 1992 HR 2092) Marcos died, and the suit moved against his estate. 8 Originally the suits against Marcos consisted of plaintiffs from the Philippines suing on an individual basis. 9 However, in 1991 the U.S. Courts certified a Class of 10,000 plaintiffs in Hilao v. Estate of Marcos. 10 This Class included all plaintiffs who were tortured, summarily executed (executed without a trial), or disappeared by the Marcos regime. 11 The trial was trifurcated into three phases. 12 These were a liability phase, an exemplary damages phase, and a compensatory damages phase. 13 See Margaret Perl s paper. Liability was established, at which point the judge required each plaintiff to send in a form confirming that they suffered one of the three listed abuses during the Marcos regime. 14 The forms were publicized, and over 10,000 5 See Hilao, 103 F.3d at 773. (Note that these laws are completely separate from the rules authorizing class actions. In America, Class Actions are a procedural device that can be used in tandem with any cause of action). 6 The Alien Tort Claims Act, 28 U.S.C. 1350. 7 Torture Victim Protection Act of 1991, PL 102 256, 1992 HR 2092. 8 Hilao, 103 F.3d at 773. 9 Perl, supra note 3, at 776 777. 10 Id. 11 Hilao, 103 F.3d at 771. 12 Id. at 782. 13 Perl, supra note 3, at 777. 14 Hilao, 103 F.3d at 772.
were sent in. 15 In phase two, the large Class secured 1.2 billion in exemplary damages. 16 See Margaret Perl s paper. For the third phase, the Court approved a detailed statistical method of determining causation and damages. The Court randomly selected 137 claims and determined the percentage of those claims that were invalid (through full deposition of the claimants and witnesses). 17 The Court then appointed a special master who used statistical analysis to turn those percentages of valid and invalid claims into a damages estimate for the entire Class. 18 See Hilao case. This resulted in a recommendation to the jury of $767,491,493. 19 See Hilao case. The jury followed these recommendations with some exceptions, resulting in a total judgement of approximately $2 billion. 20 This can be seen in Jaime Bautista s paper. The 9 th Circuit upheld this judgement on appeal. 21 This case is an excellent example of how CAs can benefit human rights litigation. First, the CA provides efficiency for human rights claims, particularly for wrongs done to large numbers of victims. Allowing the CA to move forward allowed 10,000 cases to be tried in a single proceeding. This efficiency is important, because it is the only way to adjudicate all the claims. As a practical matter, there is the issue that lawyers would not find it lucrative to take one case at a time, and thus it would be very difficult for many of the Filipino victims to find for-profit lawyers willing to represent their individual claims. Even if there are non-profit organizations that would do it for free, there are not enough non-profits to conduct 10,000 individual cases. 15 Id. 16 Id. 17 Id. at 782. 18 Id. at 783. 19 Id. at 784. 20 Jaime Bautista, Recovery of the Marcos Assets, THIRD GOOD GOVERNMENT SEMINAR, at 73 (Dec. 9, 2009), available at http://www.unafei.or.jp/english/pdf/pdf_thirdggseminar/third_ggseminar_p72-79.pdf. 21 Hilao, 103 F.3d at 787.
Furthermore, the 9 th Circuit stated that because of limits on judicial resources, adjudicating all 10,000 claims would be impossible but for the CA procedure. 22 See Hilao at 786. There would be other prohibitive costs as well, such as delivering 10,000 people, one at a time, from the Philippines into American courts (as they would inevitably be subpoenaed). These inefficiencies would allow defendants to avoid responsibility because they abused too many people! Thus the CA procedure allows justice to be done for a large number of victims in a way that individual suits cannot. Beyond the trial process being inefficient in terms of resources, the trial process sets up other barriers that would make it hard to acquire justice for atrocities without the CA procedure. For example, the standard sanction proceeding would require the victim to relive their abuse in explicit detail in a public trial, so as to establish an exact dollar figure for individual damages. Many victims would not want to go through this (especially on cross examination). Conversely, the statistical analysis allowed the few plaintiffs who were chosen to go through a private deposition. 23 See Hilao at 786. Then sanctions were established as an average value of a disappearance or a torturing, rather than forcing the other thousands of victims to involve themselves in the litigation. 24 See Hilao at 783. Cases like Marcos are very rare. 25 See Margaret Perl, Not Just Another Mass Tort: Using Class Actions To Redress International Human Rights Violation, 88 GEO. L.J. 773, 777, Aug. 11, 2011. And unfortunately the ability of foreign plaintiffs to actually acquire the damages they are awarded is hindered by international red tape. 26 See Jaime Bautista s paper. However, Marcos demonstrates how CAs can provide a powerful tool for human rights litigation. Whenever a large number of people 22 Id. at 786. 23 Id. at 782. 24 Id. at 783. 25 Margaret Perl, Not Just Another Mass Tort: Using Class Actions To Redress International Human Rights Violation, 88 GEO. L.J. 773, 777, Aug. 11, 2011. 26 Jaime Bautista, Recovery of the Marcos Assets, THIRD GOOD GOVERNMENT SEMINAR, (Dec. 9, 2009), available at http://www.unafei.or.jp/english/pdf/pdf_thirdggseminar/third_ggseminar_p72-79.pdf.
have been wronged, it is impracticable and ineffective to try each case individually. However, by allowing a class to pursue their human rights claims, it avoids the many barriers of trying each case individually, and is thus an important procedure for human rights litigation.