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Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion to Dismiss,  In Re: African-American Slave Descendants' Litigation, United States District Court, N.D. Illinois, Eastern Division. MDL-1491. No. 02-7764 (CRN) October 7, 2003. (Table of Contents Omitted) (Trial Motion, Memorandum, and Affidavit)


On July 8, 2003, in a speech delivered in Senegal, the President declared slavery "one of the greatest crimes" in history, noting we can "fairly judge the past by the standard of John Adams who called slavery an evil of "colossal magnitude'..." The President noted that from the past we can "discern eternal standards" and the "rights of African-Americans are not the gifts of those in power." The President further acknowledged that "many of the issues that still trouble America have their roots" in slavery. Id These premises articulated by the President form the basis of this lawsuit.

Throughout our Country's history, groups of people whose property or tort rights have been violated by specific acts have properly turned to our Courts for redress. Often our Courts have fashioned equitable remedies to meet the needs of unique claims that were initially viewed warily by some.

The plaintiffs' legal claims rest on several simple premises. First, as early as 1886, our highest Court embraced the concept that wrongdoers who hold the fruits of another's labor are deemed to be holding the profits as a constructive trust and have an obligation to preserve these funds in favor of those who are equitably entitled to same.

Second, consistent with the President's speech in Senegal, a body of U.S. law since the late 18th Century and early 19th Century concludes that slavery was a violation of natural law and international law. International law is incorporated as part of U.S. common law. Either directly or under theories of secondary liability these defendants, or their predecessors in interest, aided and abetted, conspired or jointly participated in acts that illegal at the time, were against the natural law or constituted crimes against humanity for which they are responsible.

Third, plaintiffs have alleged modern day violations of consumer protection statutes by virtue of the misleading statements made by some of the defendants regarding their role in slavery either prior to or immediately after the initiation of these actions. See infra, Point IV.C.7.

Defendants seek to dismiss this action at its nascent phase, arguing that procedural bars preclude the plaintiffs from having their day in Court. However, it is defendants that bear the burden at this stage and they have failed as to each of the grounds they assert: Standing. Taking all allegations as true and drawing all reasonable inferences in plaintiffs' favor, defendants have not shown that plaintiffs lack standing where plaintiffs need only allege that they and/or their slave descendants suffered individual concrete harm that is redressable by the court and that it is fairly traceable to these defendant corporations. It is only a slender reed of injury that plaintiffs need to show. Wright & Miller, 13 Fed. Prac. & Proc. Juris. 2d §3531.4 (last updated 2003). On its face, the complaint alleges that enslaved African-Americans suffered concrete injury to their property and tort rights and that their descendants suffer derivative harm today. Plaintiffs have sufficiently pleaded that at least some of this harm is fairly traceable to the defendants' predecessors' who profited and/or participated or aided and abetted in the transatlantic slave trade. Moreover, plaintiffs' consumer protection claims, and the claim for accounting rest on modem day harm to the plaintiffs.

Statute of Limitations. First, some of plaintiffs' claims, namely; accounting and state consumer protection, allege modern day actions. Hence, these claims survive dismissal without any need for further consideration by the Court in this motion. Second, plaintiffs have sufficiently pleaded equitable theories of tolling that entitle them to survive dismissal at this stage. Moreover, all tolling theories involve questions of fact, which cannot be decided at this stage.

Political Question. Defendants' claims of political question bear no consideration where plaintiffs are not asserting public claims, but rather, private causes of action based upon individual rights sounding in property and tort. Moreover, defendants' assertion that Reconstruction legislation and executive power precludes judicial redress, is not supported by history or law where: 1) Reconstruction never dealt with compensation to former slaves or their descendants and; 2) the court had the power to act during Reconstruction and did, asserting itself as a co-equal branch of government.

Individual Causes of Action. Defendants attempt to parlay a motion to dismiss into a summary judgment motion where each of plaintiffs' claims state the requisite elements under law to survive this motion.

As will be shown herein, defendants have failed to show that plaintiffs' claims should be dismissed.