ShellNews.net: ROYAL DUTCH SHELL attempt to thwart US Ogoni Class Action Lawsuit fails: Thursday 8 September 2005: Update 2: 17.20 pm ET
Royal Dutch Shell attempt to thwart Ogoni US Class Action Lawsuit fails: Thurs 8 Sept 2005 17.20pm ET
By John Donovan
A US Magistrate Judge, Henry Pitman, has recommended in a report to a US District Judge that motions filed by Royal Dutch Shell to dismiss a class action lawsuit by former residents of Ogoniland, Nigeria, now living in the United States, should be denied.
The case in question before the UNITED STATES DISTRICT COURT OF SOUTHERN DISTRICT OF NEW YORK (Case No. 02-CV-7618) relates to Shell's oil operations in Ogoniland, an area located in the Niger River delta area of Nigeria. The plaintiffs have charged Royal Dutch Shell with violations of the laws of nations and customary international law and seeks legal recognition of a class consisting of “all Ogoni or Ogoni family members who resided in Ogoniland during the period of October 1, 1990 to May 28, 1999” who were injured during the course of the alleged misconduct by Shell. The class could potentially consist of hundreds of thousands of people.
The disgraced former Group Chairman of Shell, Sir Phillip Watts, and his predecessor, Sir Mark Moody-Stuart, have already given answers under oath in London in reply to questions put by US attorneys acting for the plaintiffs.
Judge Pitman stated in his recommendation (dated 15 August 2005) to District Court Judge Kimba M Wood, that “the elimination of two named plaintiffs and the addition of another… causes no cognizable prejudice to defendants. At most, dependents’ objection here is no more than a procedural quibble… the amended complaint was properly filed as a matter of right and… defendants’ motion to strike the amended complaint should be denied.”
Shell also reasserted previous arguments that the plaintiffs’ claims were barred by the doctrine on international comity, failed to state claims on which relief could be granted and were based on principles of international law that do not meet the standards set forth by the Supreme Court (in a quoted case). Judge Pitman rejected these arguments decisively and stated in relation to the latter point that Shell's argument was “procedurally defective” and that “Moreover, defendants have raised the argument in a perfunctory manner that is of little assistance to the Court.”
Judge Pitman also commented that the analysis presented by Shell’s attorneys was “not assisted by the facile two-and-one-third page discussion in Defendants’ Reply Memo. which, as noted above, simply ignores allegations that do not support defendants conclusions’ “
In the Conclusion of his Recommendation and Report, Judge Pitman stated: “Accordingly, for the reasons stated above, I respectfully recommend that defendants’ motion to strike and, in the alternative, motion to dismiss the amended complaint be denied in all respects.”
The complaint alleges that in response to peaceful Ogoni protests against the severe environmental damage caused by Shell’s oil development, Shell “instigated, planned, facilitated and cooperated” with the Nigerian military in attacks against the unarmed residents of Ogoniland. The complaint further alleges that the defendants and the military acted under a joint strategy to depopulate areas for oil exploration and extraction and discourage protests. In particular, the plaintiffs allege extrajudicial killing, torture, rape, arbitrary arrest and detention, cruel, inhuman and degrading treatment, crimes against humanity, forced exile, restrictions on assembly and the destruction of private property. The plaintiffs assert that these claims are all violations under customary international law.
In relation to their claims of joint action by Shell and the military, the plaintiffs allege a pattern of mutual support in which Shell officials met with Nigerian officials to develop strategies and in some instances joint media campaigns. The plaintiffs allege specific instances in which Shell asked for the “usual assistance” to suppress protest and allow work on the pipeline. The plaintiffs allege that the “usual assistance” included razing villages and the other violent methods used by the military. The complaint further alleges that Shell provided logistical services and financial support to the military operations, including cash, housing, vehicles and armaments.
Plaintiffs include relatives of Dr. Barinem Kiobel, executed in 1995, together with Ken Saro-Wiwa and seven others, after summary proceedings before the Ogoni Civil Disturbances Special Tribunal. The plaintiffs allege that Shell was actively involved in the tribunal, bribing and preparing witnesses.
Shell has admitted, after the leaking of a Shell internal report, that the corporate behaviour of Royal Dutch/Shell in Nigeria fed a vicious cycle of violence and corruption.
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