Can corporations accused of abetting torture abroad be sued?

On Tuesday the Supreme Court will hear a challenge brought by 12 Nigerian plaintiffs who say a Shell oil subsidiary  aided and abetted acts of murder, rape and systematic torture by the Nigerian government in the early 1990s.

At issue is whether corporations can be sued in U.S. courts for violations of human rights committed abroad.

Human rights groups hope the high court will reverse a 2010 lower court decision that held that corporations - unlike individuals - cannot be sued under the Alien Tort Statute, a  federal law that allows foreigners to bring lawsuits in U.S. federal court for violations of international human rights law.

Lawyers for the plaintiffs, who were associated with the Movement for the Survival of the Ogoni People,  allege in court papers that the Nigerian military, assisted by Shell's operations in the region, "engaged in a widespread and systematic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings constituting crimes against humanity to violently suppress the movement."

In court papers, lawyer Kathleen M. Sullivan, representing Royal Dutch Petroleum Co., a holding company for Shell, says the lower court was right to find that international law does not recognize corporate responsibility for the alleged offenses.

Sullivan says the Nigerian plaintiffs "fail to demonstrate that international law, with the requisite specificity and universal acceptance, imposes responsibility on corporations for the offenses alleged here. "

Ralph G. Steinhardt, a law professor at George Washington Law School, says the lower court got it wrong.

"The lower court in this case was alone among federal courts of appeals in concluding that corporations never - under any circumstance - have obligations under international law," says Steinhardt who filed a brief representing international law scholars on behalf of the Nigerian plaintiffs. "Four other courts of appeals have explicitly reached an opposite conclusion."

The United States government  has filed a brief in support of the plaintiffs.

"The United States has taken the position that whatever complexities may arise in future cases, the absolute rule adopted by the court of appeals in this case is wrong, " says Steinhardt.

The Alien Tort Statute was part of the first piece of legislation adopted by the U.S. Congress in 1789 largely for the purpose of making sure that foreigners injured by violations of international law could use U.S. courts to get compensation.

Only in the 1980's was the Alien Tort Statute used to enforce human rights law.

Peter Weiss, vice president of the non-profit group Center  for Constitutional Rights, was the first to use the Alien Tort Statue to go after individuals who had committed human rights crimes abroad. Later the statute was applied to corporations with ties to the United States.

"The interesting thing is that until the Second Circuit decision came down, the question of whether a corporation  can be sued under the Alien Tort Statue was never raised. Not by defendants, and not by judges," says Weiss. "Then all of a sudden the Second Circuit  said it is not part of customary international law to be able to sue corporations  for human rights violations. "

Weiss says that if the Supreme Court rules against liability for corporations, it will still leave open the possibility of suing individuals in those corporations who may have been guilty of committing  crimes, but that is a much harder case to prove.

John B. Bellinger III, who served as the legal adviser to the Department of State during the Bush administration, argues  that the Supreme Court should curb the Alien Tort Statute.

"More than 120 lawsuits have been filed in federal courts against 59 corporations for alleged wrongful acts in 60 countries," Bellinger writes in a recent opinion piece for the Washington Post .

He says that few of the lawsuits against entities such as ExxonMobil and Coca-Cola have resulted in judgments, "but most cases have dragged on for years, and some companies have settled rather than submit to protracted and reputation-damaging litigation."

On the diplomatic front he said the Obama administration should be concerned about reciprocity. The administration "would certainly object if foreign governments were to encourage lawsuits in their courts against U.S. companies for perceived violations of international law, such as against the manufacturers of drone aircraft."

Also Read

View the original article here

7 accused in $375 million Medicare fraud scheme

DALLAS (AP) — A Texas doctor has been charged with running a massive health fraud care scheme with thousands of fraudulent patients and intermediaries allegedly offering cash, food stamps or free groceries, to bilk Medicare and Medicaid of nearly $375 million.

A federal indictment unsealed Tuesday charges Jacques Roy, a doctor who owned Medistat Group Associates in DeSoto, Texas, and six others in an alleged scheme to bill Medicare for home health services that were not properly billed, not medically necessary or not done.

The scheme was the largest dollar amount by a single doctor uncovered by a task force on Medicare fraud, authorities said.

U.S. Attorney Sarah Saldana accused Roy of "selling his signature" to home health agencies that rounded up thousands of patients' names and billed Medicare and Medicaid for five years.

The indictment alleged that from January 2006 through November 2011, Roy or others certified 11,000 Medicare beneficiaries for more than 500 home health service agencies — more patients than any other medical practice in the U.S. More than 75 of those agencies have had their Medicare payments suspended.

Roy, 54, is charged with several counts of health care fraud and conspiracy to commit health care fraud. He faces up to 100 years in prison if convicted on all counts. He appeared briefly in court Tuesday and is scheduled to have a detention hearing Wednesday. Authorities also moved to seize cash in Roy's bank accounts, cars and two sailboats.

His attorney, Patrick McLain, said authorities had contacted Roy months ago. McLain said it was too soon to comment on the case because prosecutors hadn't provided him with most of the evidence yet. Phone messages and emails left with Medistat, located just south of Dallas, were not immediately returned Tuesday.

The attorney for one of the home health agency owners, Cynthia Stiger, alleged to be part of the scheme called the charges and the dollar amounts listed overblown. Stiger pleaded not guilty Tuesday.

"They're not anywhere close to accurate," said Jeffrey Grass, Stiger's attorney.

Investigators for the U.S. Health and Human Services department noticed irregularities with Roy's practice about one year ago, officials said.

Roy had "recruiters" finding people to bill for home health services, said Saldana, the top federal prosecutor in Dallas. Some of those alleged patients, when approached by investigators, were found working on their cars and clearly not in need of home healthcare, she said.

Medicare patients qualify for home health care if they are confined to their homes and need care there, according to the indictment.

Saldana said Roy used the home health agencies as "his soldiers on the ground to go door to door to recruit Medicare beneficiaries."

"He was selling his signature," she said.

For example, authorities allege Charity Eleda, one of the home health agency owners charged in the scheme, visited a Dallas homeless shelter to recruit homeless beneficiaries staying at the facility, paying recruiters $50 for each person they found. A message was left Tuesday at Eleda's Dallas-based company, Charry Home Care Services, Inc.

Others indicted are accused of offering free health care and services such as food stamps to anyone who signed up and offered their Medicare number.

Roy would "make home visits to that beneficiary, provide unnecessary medical services and order unnecessary durable medical equipment for that beneficiary," the indictment alleged. "Medistat would then bill Medicare for those visits and services."

The indictment says Roy's business manager — identified only by his initials — recorded conversations between the two in January 2006. The business manager heard Roy describe his alleged scheme and refuse to market for patients in a legitimate way, the indictment said.

The Centers for Medicare and Medicaid Services also announced the suspension of an additional 78 home health agencies associated with Roy. The agencies were collecting about $2.3 million a month, said Peter Budetti, CMS' deputy administrator for program integrity.

The alleged fraud went unnoticed for several years. After CMS suspended Medicare provider accounts belonging to Roy and Medistat last July, Medistat's employees allegedly started billing Medicare under a different provider number under Roy's supervision, authorities said.

Until recently, HHS could not effectively track data to identify the kind of fraud now linked to Roy, who was billing beneficiaries "off the charts" for more than five years, officials said. The department's inspector general, Dan Levinson, told reporters the department's technology "has not come online as quickly as we'd like to see."

The department is now beefing up its data analysis and tracking other cases, Levinson said. It has also established task forces in several U.S. cities to track Medicare fraud, officials said.

"We're now able to use those data analytic tools in ways — in 2012 and 2011 — that no, we really could not have done in years past," Levinson said.

A spokesman for Trailblazer Health Enterprises, which paid home health claims through a contract with federal authorities, did not return a phone message Tuesday.

Health care fraud is estimated to cost the government at least $60 billion a year, mainly in losses to Medicare and Medicaid. Officials say the fraud involves everything from sophisticated marketing schemes by major pharmaceuticals encouraging doctors to prescribe drugs for unauthorized uses to selling motorized wheelchairs to people who don't need them.

"These are public programs, and we must protect them for future generations," Saldana said.

___

Lozano reported from Houston. Associated Press writer Ricardo Alonso-Zaldivar in Washington, D.C. contributed to this report.

View the original article here