Opinion
CIVIL ACTION # CV 02 1862, CLASS ACTION
March 26, 2002
COMPLAINT AND JURY TRIAL DEMAND
Plaintiffs, on behalf of themselves and all other persons similarly situated, state, upon information and belief, as follows:
INTRODUCTION, JURISDICTION AND VENUE Introduction
1. Over 8,000,000 Africans and their descendants were enslaved in the United States from 1619 to 1865. The practice of slavery constituted an "immoral and inhumane deprivation of Africans' life, liberty, African citizenship rights, cultural heritage" and it further deprived them of the fruits of their own labor.
2. The first slave ship that sailed into Jamestown Harbor in Virginia in 1619 contained a handful of captive Africans, but by the end of the Atlantic slave trade, more than two centuries later, somewhere between 8 million and 12 million Africans had arrived in the New World in chains.
Brent Staples, African Holocaust, The Lessons of a Graveyard.
3. Historians estimate that one slave perished for every one who survived capture in the African interior and made it alive to the New World, meaning as many as 12 million perished along the way.
Ira Berlin, "Many Thousands Gone".
4. Although, it is a common perception that the South alone received the enslaved Africans, many of them arrived in the Dutch colonial city of New Amsterdam that later became New York City. Integral to the colony from the start. slaves helped build Trinity Church, the streets of the city and the wall, from which Wall Street takes its name, that protected the colony from military strikes.
Brent Staples, African Holocaust, The Lessons of a Graveyard.
5. These slaves in New York lived in attics, hallways and beneath porches, cheek to jowl with their master and mistresses. In death, these same slaves were banished to the Negro Burial Ground, which lay a mile outside the city limits and contained between 10,000 and 20,000 bodies by the time it was closed in 1794. Id..
6. Further research conducted by Howard University of 400 skeletons of these buried slaves revealed that 40 percent were children under the age of 15 and the most common cause of death was malnutrition. Most of the children had rickets, scurvy, anemia or related diseases. The adult skeletons show that many people died of unrelenting hard labor. Strain on the muscles and ligaments was so extreme that muscle attachments were commonly ripped away from the skeleton taking chunks of bone with them — leaving the body in perpetual pain. The highest mortality rate is found among women ages 15 to 20. Investigators have concluded that some died of illnesses acquired in the holds of slave ships or from a first exposure to the cold or from the trauma of being torn from their families and shipped in chains halfway around the globe. Moreover, the research has concluded that these women were worked to death by owners who could simply go out and buy a new slave.
Brent Staples, African Holocaust, Lessons from a Graveyard, quoting in part form Dr. Michael Blakey, Howard University.
7. But New Yorkers were not alone in the utilization of slaves, in fact, more recent research has revealed that many of our esteemed and celebrated institutions of learning had their origins in the profits derived from the slave trade. For instance, money from the slave trade financed Yale University's first endowed professorship, its first endowed scholarships and its first endowed library fund. Moreover, in the 1830's, Yale officials led the opposition that prevented the building of the first African American college, on the grounds that such an institution would have been "incompatible with the existence of Yale". Nicholas and John Brown, two of the founders of what became Brown University were slave traders. Likewise. Harvard Law School was endowed by money its founder earned selling slaves in Antigua's cane fields.
Kate Zernike, "Slave Trader's in Yale's Past Fuel Debate on Restitution", New York Times (August 13, 2001).
8. Many early American industries were based on the cotton, sugar, rice, tobacco, and other products African labor produced. Railroads and shipping companies, the banking industry and many other businesses made huge profits from the commerce generated by the output of enslaved labor.
9. Slaves built the U.S. Capitol, cast and hoisted the statue of freedom on top of its dome, and cleared the forest between the Capitol and the White House.
Randall Robinson, Compensate the Forgotten Victims of America's Slavery Holocaust.
10. Slavery fueled the prosperity of the young nation. From 1790 to 1860 alone, the U.S. economy reaped the benefits of as much as $40 million in unpaid labor. Some estimate the current value of this unpaid labor at 1.4 trillion dollars.
Tim Wise, "Breaking the Cycle of White Dependency" (5/22/02).
Tamara Audi, "Payback for Slavery; Growing Push for Reparations Tries to Fulfill Broken Promise", quoting Randall Robinson (9/18/00).
11. Not only did the institution of slavery result in the extinguishment of millions of Africans, it eviscerated whole cultures: languages, religions, mores, and customs, it psychologically destroyed its victims. It wrenched from them their history, their memories, and their families on a scale never previously witnessed.
12. When the institution finally ended, the vestiges, racial inequalities and cultural psychic scars left a disproportionate number of American slave descendants injured and heretofore without remedy.
13. Although the institution of slavery in the United States was officially outlawed in 1865, it continued, de facto, until as recently as the 1950's. National archive records reveal that in the 1920's and 1930's, the NAACP still received letters from African-Americans claiming to still be on plantations and forced to work without pay. Several claims were investigated and were found to be legitimate. Moreover, as late as 1954, the Justice Department prosecuted the Dial brothers in Sumpter County, Alabama because they held blacks in involuntary servitude.
Alistair Highet, "Will America Pay for the Sins of the Past, Slavery's Past". (February 14, 2002). The Hartford Adovate, quoting. Dr. Ronald Waters.
14. Even for those who were "freed", their lives remained locked in quasi-servitude, due to legal, economic and psychic restraints that effectively blocked their economic, political and social advancement.Id..
15. Hence, new measures called "Black Codes" guaranteed control of Blacks by white employers. As John Hope Franklin noted in From Slavery to Freedom:
the control of blacks by white employers was about as great as that which slaveholders had exercised. Blacks who quit their job could be arrested and imprisoned for breach of contract. They were not allowed to testify in court except in cases involving members of their own race; numerous fines were imposed for seditious speeches, insulting gestures or acts, absence from work, violating curfews and the possession of firearms. There was of course no enfranchisement of blacks and no indication that in the future they' could look forward to full citizenship and participation in democracy.
Franklin, John Hope. From Slavery to Freedom, New York; Knof(1947).
16. The post-Reconstruction Southern practices of peonage and sharecropping which continued well into the twentieth century were direct outgrowths of slavery that continued a system of complete control by the dominant culture. Peonage was a complex system where a black man would be arrested for "vagrancy", ordered to pay a fine that he could not afford, and then incarcerated. A plantation owner would then pay the fine and then hire him until he could afford to pay off the fine. The peon was forced to work, locked up at night and if he escaped, was chased by bloodhounds until recaptured.
Yuval Taylor, I was Born a Slave.
17. Likewise, during the 1920's, fortunate African-Americans became sharecroppers on land leased from whites whose grandparents had owned their forebearers. These African Americans were not allowed to vote, and were socially and economically relegated to the leftovers in education, earnings, and freedoms.
18. More recently, a 1998 census report shows that 26 percent of African American people in the United States live in poverty compared to 8 percent of whites. It also showed that 14.7 percent of African Americans have four-year college degrees, compared with 25 percent of whites. The same year, African American infant-mortality rates were more than twice as high as those among whites. Federal figures also show that a Black person born in 1996 can expect to live, on average, 6.6 fewer years than a white person born the same year.
19. African-Americans are more likely to go to jail. to be there longer, and if their crime is eligible, to receive the death penalty. They lag behind whites according to every social yardstick: literacy, life expectancy, income and education. They are more likely to be murdered and less likely to have a father at home.
20. Defendants, including, but not limited to FLEETBOSTON FINANCIAL CORPORATION, AETNA INC., CSX, through their predecessors-in-interest, conspired with slave traders, with each other and other entities and institutions (whose identities are not yet specifically identified, but which are described herein as CORPORATE DOES # 1-100) and other un-named entities and/or financial institutions to commit and/or knowingly facilitate crimes against humanity, and to further illicitly profit from slave labor.
21. Plaintiffs and the plaintiff class are slave descendents whose ancestors were forced into slavery from which the defendants unjustly profited. Plaintiffs seek an accounting, constructive trust, restitution, disgorgement and compensatory and punitive damages arising out of Defendants' past and continued wrongful conduct.
JURISDICTION AND VENUE
22. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (a) since the amount in controversy exceeds $75,000 per plaintiff exclusive of interests and costs and there is diversity of citizenship.
23. The Court has personal jurisdiction over the parties in that the defendants conduct systematic and continuous business within the State of New York.
24. Venue is proper in this Court since the Defendants do business and may be found in the District within the meaning of 28 U.S.C. § 1391 (a).
25. Plaintiffs and the plaintiff class are African-American slave descendents.
26. Plaintiff is a New York resident whose ancestors were enslaved in the agricultural industry.
DEFENDANTS
27. Defendants and the other known and unknown defendants used and/or profited from slave labor and have retained the benefits and use of those profits and products derived from that slave labor. Defendants knew that the plaintiff class was subject to physical and mental abuse and inhuman treatment.
28. Defendants conspired with each other with intentions to violate Plaintiffs' ancestors' basic human rights from slavery in that and by so doing to profit from these violations.
29. Defendant FLEETBOSTON is a Delaware corporation with its principal place of business located at 100 Federal Street, Boston, Massachusetts 02110. It does continuous and systematic business in New York. FLEETBOSTON is the successor in interest to Providence Bank who was founded by Rhode Island businessman John Brown. Brown owned ships that embarked on several slaving voyages and Brown was prosecuted in federal court for participating in the international slave trade after it had become illegal under federal law. Upon information and belief, Providence Bank lent substantial sums to Brown, thus financing and profiting from the founder's illegal slave trading. Upon information and belief, FLEETBOSTON also collected custom fees due from ships transporting slaves, thus, further profiting from the slave trade.
30. Defendant CSX is a Virginia corporation with its principal place of business located at 901 E. Cary Street, Richmond, VA 23219. It is a successor-in-interest to numerous predecessor railroad lines that were constructed or run, at least in part, by slave labor.
Jim Cox, "Rail Networks Own Lines Bult with Slave Labor" USA TODAY (02/21/02)
31. Defendant AETNA INC. ("AETNA") is a corporation with its principal place of business located at 151 Farmington Avenue, Hartford, Connecticut 06156. Upon information and belief, AETNA's predecessor in interest, actually insured slave owners against the loss of their human chattel. AETNA knew the horrors of slave life as is evident in a rider through which the company declined to pay the premiums for slaves who were lynched or worked to death or who committed suicide. Additionally, AETNA insured enslaved Africans who worked in the agricultural industry of which Plaintiff's enslaved. AETNA, therefore, unjustly profited from the institution of slavery.
32. Defendants CORPORATE DOES NOS. 1-100 are other companies, industrial, manufacturing, financial and other enterprises that, like the named Defendants, its/their predecessors, affiliates and/or assigns unjustly profited from slave labor. The designation CORPORATE DOES NOS. # 1-100 is used until such time as the specific identity of such additional companies, as they relate to this action, is ascertained through discovery and/or other means.
CLASS ALLEGATIONS
33. This action is brought and may properly be maintained as a class action pursuant to the provision of the Federal Rules of Civil Procedure 23(a), 23(b)(2) and 23(b)(3). Plaintiffs seek certification of the following class: all African-American slave descendants.
34. The exact number of Plaintiff class members is not known. Plaintiffs estimate that the class includes millions of African-American slave descendants and the Plaintiffs estimate that the class is so numerous that joinders of individual members is impracticable. The number and identities of the class members can only be ascertained through appropriate investigation and discovery.
35. Questions of fact and law are common with respect to each class member. Common questions of fact and law include:
a. Whether Defendants knowingly, intentionally and systematically benefited from the use of enslaved laborers;
b. Whether Defendants wrongly converted to their own use and for their own benefit, the slave labor and services of the Plaintiffs' forebearers. as well as, the products and profits from such slave labor;
c. Whether the Defendants knew or should have known that they were assisting and acting as accomplices in immoral and inhuman deprivation of life and liberty;
d. Whether Defendants have been unjustly enriched by their wrongful conduct; and
e. Whether, as a result of this horrific and wrongful conduct by the Defendants, the Plaintiff class is entitled to restitution or other equitable relief, or to compensatory or punitive damages.
36. The claims of the individually named Plaintiffs are typical of the claims of the Plaintiff Class Members. Plaintiffs and all members of the Plaintiff Class have been similarly affected by the Defendants common course of conduct and the members of each class have similar claims against the Defendants. The claims of all class members depend on a showing of the Defendants' common course of conduct. as described herein, which gives Plaintiffs, individually and as class representative, the right to the relief sought herein.
37. There is no conflict as between Plaintiffs and the other members of the class with respect to this action or the claims for relief. Plaintiffs know and understand their asserted rights and their roles as class representatives.
38. Plaintiffs and their attorneys are able to and will fairly, and adequately, protect the interest of the Class. Several of Plaintiffs' attorneys are experienced class action litigators who are or will be able to conduct the proposed litigation. Plaintiffs' attorneys can vigorously prosecute the rights of the proposed class members.
39. Prosecution of separate actions by individual Plaintiffs will create the risk of inconsistent and varying adjudications and will establish incompatible standards of conduct for Defendants in that different Courts may order Defendants to provide different types of accounting or take other inconsistent actions.
40. Prosecutions of separate actions by individual plaintiffs of other proposed class members not party to the adjudications will substantially impair or impede their ability to protect their interest in that, for example, Defendants may exhaust their available funds in satisfying the claims of earlier plaintiffs to the detriment of later plaintiffs.
41. Defendants have acted and/or refused to act on grounds generally applicable to the proposed class, making final injunctive relief and correspondent declaratory relief appropriate with respect to the class as a whole in that Defendants have been unjustly enriched by participation in acts that were known to be immoral and inhumane, and Defendants: (a) prevented and or refused restitution to the proposed class members, (b) prevented and/or refused to disgorge wrongfully gained and/or earned profits and benefits, or (c) refused to provide a full and complete accounting and disclosure of the extent of their aforesaid actions.
42. Common questions of law and fact predominate in the claims of all class members, including the named Plaintiff. These claims depend on proving Defendants are liable for their acts and/or omissions based, in part, on evidence of a common scheme. Plaintiffs' and the plaintiff class members; proposed evidentiary showings would be based on the same documents and testimony concerning the Defendants' actions.
43. A class action is superior to the other available methods for the fair, just and efficient adjudication of the controversy. Plaintiffs and the Plaintiff class members have no interest in individually controlling the prosecution of separate actions and, instead are on the whole incapable as practical matter of pursuing individual claims. Even if individual class members had the resources to pursue individual litigation, it would be unduly burdensome to the Courts in which the individual litigation would proceed. Individual litigation magnifies the delay and expenses to all parties in that the Court system of resolving the controversies engendered by Defendants/individual and/or common course of conduct. The class action device allows a single court to provide the benefits of unitary adjudication, judicial economy and the fair and equitable handling of all plaintiffs; claims in a single forum. The conduct of this action as a class action conserves the resources of the parties and of the judicial system, and reserves the rights of each class member. Furthermore, for most class members, a class action is the only feasible mechanism that allows them an opportunity for legal redress and justice. A large concentration of proposed class members is estimated to reside in this District and nearby states. The management of the litigation as a class would pose few problems for this Court.
44. Certification of the Plaintiff class is appropriate under Fed.R.Civ.P. 23(a) and also under 23(b)(2), 23(b)(3).
EQUITABLE TOLLING
45. The plaintiffs have been unable to secure records with regards to their ancestors due to the failure of most to be able to reliably access ship manifestos, or human cargo lists that directly connect them to their descendants. Moreover, family names were changed once the Africans arrived in America making it nearly impossible to accurately trace records. Recent advances in Internet and computer databases have made these records more accessible to the average African-American.
46. Likewise, corporate histories and records have also been extremely difficult and inaccessible to most people. Hence, research tracing the monetary benefit derived by American corporations from the slave trade has only been accessible and discussed by prominent researches within the last year.
47. Moreover, efforts to attempt to raise the issue of reparations for African-Americans in an attempt to secure easier access to information have stalled in Congress. Representative John Conyers from Michigan has for the last 11 years attempted to propose a resolution, No. 40, seeking to set aside $8 million dollars to study the effects of slavery and come up with a formula for reparations. His resolution has died in committee for each of these past eleven years.
48. Moreover, with the advent of litigation related to reparations for holocaust victims from government entities and corporations, more emphasis has been placed on the viability of lawsuits for reparations for human rights violations.
49. Finally, the action of each of the Defendants by their failure to provide an accounting to the plaintiff constitutes a continuing tort that tolls the statute.
COUNT I — CONSPIRACY
50. Each of the Defendants acted individually and in concert with their industry group and with each other, either expressly or tacitly, to participate in a plan that was designed in part to commit the tortious acts referred to herein.
51. For instance, each industry group was co-dependant on each other and operated as joint enterprise, designed in part, to maintain and continue a system of inhumane servitude. The shipping and railroad industry benefited and profited from the transportation of the slaves. The railroad industry utilized slave labor in the construction of rail lines. These transportation industries were dependent upon the manufacturing and raw materials industry to utilize the slaves they shipped. The cotton, tobacco, rice and sugar industries thrived on profits generated from their use of slave labor, and relied upon financial and insurance industries to finance and insure the slaves that they utilized and owned. All industries: raw market, retail, financial, insurance, and transportation, benefited from the reduced costs of slave-produced goods.
COUNT II — DEMAND FOR AN ACCOUNTING
52. Plaintiffs on behalf of themselves and all other descendants who are similarly situated, re-allege as if fully set forth, each and every allegation contained into the preceding paragraphs.
53. The Defendants knew or should have know of the existence of corporate records that indicate their profiting from slave labor. Plaintiffs and the public have demanded that the Defendants reveal their complete corporate records regarding same and that a just and fair accounting be made for profits derived from the slave trade.
54. Defendants have failed to provide said records and have failed to comply with plaintiffs' demand.
WHEREFORE, Plaintiffs demand judgment: (a) requiring defendants make a full disclosure of all of their corporate records that reveal any evidence of slave labor or their profiting from same; (2) seeking the appointment of an independent historic commission to serve as a depository for corporate records related to slavery and; (3) directing defendants to account to plaintiffs for any profits they derived from slavery.
COUNT III — HUMAN RIGHTS VIOLATIONS
57. Plaintiffs on behalf of themselves and all other descendants who are similarly situated, re-allege as if fully set forth, each and every allegation contained into the preceding paragraphs.
58. The Defendants participated into the activities of the institution of slavery and in so doing furthered the commission of crimes against humanity, crimes against peace, slavery and forced labor, torture, rape, starvation, physical and mental abuse, summary execution. Specifically, the defendants profited from these wrongs.
59. Defendants knowingly benefited from a system that enslaved, tortured, starved and exploited human beings, so as to personally benefit them. In the process, the Defendants directly or indirectly subjected the plaintiffs' ancestors to inhumane treatment, physical abuse, torture, starvation, execution and subjected the plaintiffs to the continued effects of the original acts, including but not limited to: race discrimination, unequal opportunity, poverty, substandard health care, substandard treatment, substandard housing, substandard education, unjust incarceration, racial profiling, and inequitable pay.
60. The above referenced actions by the Defendants were in violation of international law.
61. As a result of the above referenced violations of international law, Plaintiffs and members of the Plaintiff class have suffered injury and are entitled to compensatory damages in an amount to be determined at trial.
COUNT IV — CONVERSION
62. Plaintiffs on behalf of themselves and all other slave ancestors who are similarly situated, re-allege as if fully set forth, each and every allegation contained in the preceding paragraphs.
63. As a result of Defendants' failure and refusal to account for, acknowledge and return to Plaintiffs and the members of the Plaintiff class, the value of their slave labor, Defendants have willfully and wrongfully misappropriated and converted the value of that labor and its derivative profits into Defendants' own property.
64. Defendants have never accounted for or returned the value of Plaintiffs ancestors' slave labor and the profits Defendants derived from said slave labor.
65. As a result of Defendants' wrongful acts and omissions, Plaintiffs and members of the Plaintiffs' class have been injured and demand judgment against the Defendants jointly, severally and/or in the alternative on this cause of action for, amongst other things: (a) an accounting of the slave labor monies, profits and/or benefits derived by Defendants; (b) a constructive trust in the value of said monies, profits and/or benefits derived by Defendants use of slave labor; (c) full restitution in the value of all monies, profits, and!or benefits derived by Defendants' use of slave labor; (d) equitable disgorgement of all said monies, profits, and/or benefits derived by Defendants' exploitation of slave labor; and (e) other damages in an amount in excess of the jurisdictional limits of this Court and to be determined at the trial herein, together with interest, exemplary or punitive damages, attorney's fees and costs of this action.
COUNT V — UNJUST ENRICHMENT
66. Plaintiffs on behalf of themselves and all other slave descendants who are similarly situated, re-allege as if fully set forth, each and every allegation contained into the preceding paragraphs.
67. Defendants have improperly benefited from the immoral and inhumane institution of Slavery in the United States.
68. Defendants have failed to account for and or return to Plaintiffs and the Plaintiff class the value of their ancestors' slave labor and or the profits and benefits the Defendants derived therefrom and Defendants have concealed the nature and scope of their participation in the Institution.
69. As a result of the Defendants' wrongful acts and omissions as described above, Defendants have been unjustly enriched.
70. Defendants have been unjustly enriched at the expense of Plaintiffs and the Plaintiffs' class. Plaintiffs and the Plaintiffs' class therefore demand restitution and judgment against the Defendants jointly, severally and/or in the alternative, in an amount in excess of the jurisdictional limits of this Court and to be determined at the trial herein, together with interest, exemplary or punitive damages, attorney's fees and the costs of this action.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs and the Plaintiffs' class demand a jury trial and judgment and damages against the Defendants, jointly, severally and/or in the alternative, as follows:
(1) For an order certifying the Plaintiff class alleged herein;
(2) For an accounting;
(3) For the appointment of an independent historic commission;
(4) For the imposition of a constructive trust;
(5) For restitution of the value of their descendants' slave labor;
(6) For restitution of the value of their unjust enrichment based upon slave labor;
(7) For disgorgement of illicit profits;
(8) For compensatory damages in an amount to be determined by trial together with interest;
(9) For exemplary or punitive damages in an amount to be determined at trial;
(10) For attorneys' fees; and
(11) For the cost of this action.
Edward D. Fagan By:___________________________ EDWARD D. FAGAN, ESQ. (EF-4125) FAGAN ASSOCIATES 301 South Livingston Avenue Livingston, New Jersey 07039 (973) 994-2908
Roger S. Wareham By:_________________________ ROGER S. WAREHAM, ESQ. (RW 4751) JOMO SANGA THOMAS, ESQ. (JT 7544) THOMAS WAREHAM RICHARDS 572 Flatbush Avenue, Suite 2 Brooklyn, New York 11225 (718) 941-6407