Georgia Law clinics join to assist in litigation by immigrant women alleging abuse, retaliation while in ICE detention

Two clinics here at the University of Georgia School of Law have joined forces on behalf of women who allege they endured abusive gynecological and other medical treatments, as well as inhumane conditions and retaliation, while in the custody of U.S. Immigration and Customs Enforcement (ICE), at a privately run facility in south Georgia.

Allegations became public with a September report by an independent team of experts who reviewed complaints by detainee-whistleblowers at the Irwin County Detention Center in Ocilla, located 187 miles south of Atlanta and 55 miles north of Valdosta.

Investigations, congressional inquiries, and litigation ensued – including a habeas corpus petition that one detainee, Yanira Yesenia Oldaker, filed November 9 in the U.S. District Court for the Middle District of Georgia. The Immigrants’ Rights Clinic at Columbia Law School in New York represents Oldaker.

A mid-November phone call led to the representation by Georgia Law’s Community HeLP and First Amendment Law Clinics of another Irwin detainee-whistleblower. Because ICE has sought – at times successfully – to deport detainees who assist in exposing conditions, the case implicates both immigration statutes and the Constitution’s free speech guarantees.

The Georgia Law clinics prepared a motion on behalf of their client and 21 other detainees, women who migrated to the United States from at least 4 continents. Filed last Thursday, the motion and memorandum of law (available here) seek to add these women’s declarations in support of the Oldaker petition; additionally, to permit 19 of the women, who fear retaliation if identified, to proceed using “Jane Doe” pseudonyms and to file under seal their declarations, which contain allegations of abuse.

Clare R. Norins, Assistant Clinical Professor and a clinic director, explained:

While normally the First Amendment Clinic stands on the side of transparency in the courts, this time we are arguing for less public access in order to protect our client and the other 21 women from suffering retribution for exercising their free-speech right to describe their inhumane treatment to the court, and in so doing, petition to government for grievances.

The motion is pending before U.S. District Judge W. Louis Sands in Valdosta.

Taking part in this team effort were faculty, staff, and students: for the First Amendment Clinic along with Professor Norins were 3L Anish Patel and Legal Fellow Samantha Hamilton; and for the Community HeLP Clinic, the director, Associate Dean  Jason A. Cade, and Staff Attorney Kristen Shepherd. Providing further assistance, including translation from English to Spanish, was administrative associate Sarah Ehlers.

At 9th Circuit, Georgia Law Appellate Litigation Clinic students press client’s case for asylum, withholding of removal, relief under Convention Against Torture

The U.S. Court of Appeals for the Ninth Circuit heard arguments this week in an immigration case prepared by a team of students in the Appellate Litigation Clinic here at the University of Georgia School of Law.

Georgia Law 3L Sarah Nelson argued on behalf of client Alicia Naranjo Garcia in Case No. 19-72803, Naranjo Garcia v. Barr. On account of the covid-19 pandemic, Nelson’s argument was delivered virtually, to a panel composed of Ninth Circuit Judges Ronald M. Gould and Michelle T. Friedland, along with U.S. District Judge Stephen R. Bough, sitting by designation. (Video here; Nelson is pictured above at lower left.)

Joining Nelson on the briefs were Jonathan Kaufman and Joe Scarborough, who earned their J.D.s earlier this year.  3L Maddie Conkel, one of Nelson’s classmates in the Appellate Litigation Clinic, helped Nelson prepare for the argument.

Together they represent appellant Naranjo Garcia, the mother of two children who are U.S. citizens. The client herself came to the United States after a cartel killed her husband, stole her husband’s property, tried to recruit her son, stole her home, and twice threatened to kill her.

Both the Immigration Judge and the Board of Immigration Appeals agreed that she had been persecuted, but found that her persecution was not “on account of” a protected ground.  Because of that, they denied her asylum and withholding of removal claims.  They also found that no public official would acquiesce to her being tortured if she were returned, and thus denied her claim under the Convention Against Torture.

The Ninth Circuit panel is now deliberating.

Foreign media quote Georgia Law Professor Elizabeth Burch on mass tort suits against Bayer herbicide Roundup

University of Georgia School of Law Professor Elizabeth Chamblee Burch, an expert on mass torts and complex litigation, recently was quoted in overseas news media regarding ongoing lawsuits against Bayer AG, the Germany-based multinational corporation.

The reporting centered on negotiations to end U.S. litigation in which tens of thousands of plaintiffs have alleged that glyphosate, an ingredient in the Bayer herbicide Roundup, is a carcinogen that causes non-Hodgkin’s lymphoma.

In an article entitled “Bayer vor Glyphosat-Einigung – So sieht der teure Plan aus” (“Bayer before the Glyphosate Agreement – This Is What the Expensive Plan Looks Like”), reporters Bert Fröndhoff and Katharina Kort wrote:

“Legal expert Elizabeth Chamblee Burch, professor at the University of Georgia, thinks it makes sense in principle to withdraw the product from the market beyond agricultural use. ‘But even that doesn’t solve the problem of complaints that can come from those who have already used the product,’ warns the lawyer.”

(Translated from the original German.) The article appeared in Handelsblatt, a business newspaper headquartered in Düsseldorf.

A separate article on the same subject, “Q&A – What Are the Obstacles to Bayer Settling Roundup Lawsuits,” appeared in Israel’s Haaretz. It this article, Reuters reporter Tina Bellon wrote:

“Non-Hodgkin’s lymphoma on average can take up to 10 years to emerge, increasing the likelihood of claims being filed after the litigation has settled. Product liability settlements generally include a cut-off date for future claimants and need to be properly funded for a court to approve the agreement.

“As long as the product continues to be sold without changes to the label, plaintiffs may continue to file lawsuits, said Elizabeth Burch, a law professor at the University of Georgia.”

Professor Burch, holder of the Fuller E. Callaway Chair of Law here at the University of Georgia School of Law,  is the author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019). In 2017, she presented at an international conference held by Tel Aviv University.

Georgia Law Dean Peter B. “Bo” Rutledge co-authors 6th edition of International Civil Litigation casebook

Now in print: the 6th edition of International Civil Litigation in United States Courts, a casebook co-authored by Peter B. “Bo” Rutledge (right), Dean and holder of the Herman E. Talmadge Chair of Law here at the University of Georgia School of Law, and Gary B. Born, London-based Chair of the International Arbitration Practice Group of the WilmerHale law firm.

As described by its publisher, Wolters Kluwer:

International Civil Litigation in United States Courts is the essential, comprehensive law school text for the current and future international litigator or international corporate lawyer. Covering all the topics discussed in competing texts and more, this casebook seamlessly combines international litigation, conflict of laws, and comparative civil procedure. This Sixth Edition includes excerpts and updated discussion of recent U.S. court decisions and legislation relating to a wide range of private and public international law topics, including foreign sovereign immunity, choice of law, antisuit injunctions, legislative jurisdiction, service of process on non-U.S. citizens, international discovery, foreign judgment enforcement, and international arbitration.

Table of contents and other details available here.

Georgia Law dean, alumnus co-author essay on human rights lawsuits in US

Alien Tort Cases Will Survive Supreme Court Trim,” predicts an essay published Monday in the Daily Report. Co-authoring the essay were Peter B. “Bo” Rutledge, Herman Talmadge Chair and Dean at the University of Georgia School of Law, and Michael Baker (JD’18), a Law Clerk for Superior Court Judge Ron Mullins, Chattahoochee Judicial Circuit. (Among other achievements, Baker served last year as Executive Conference Editor for the Georgia Journal of International & Comparative Law.)

In their essay, Rutledge and Baker noted that in the last several decades federal courts have adjudicated many lawsuits testing the scope of the Alien Tort Statute of 1789, which states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Most recently, that litigation gave rise to the April 2018 decision in Jesner v. Arab Bank, in which the U.S. Supreme Court held that the statute does not permit suits against foreign corporations.

Taking issue with commentators who have viewed Jesner as “a blow … to the cause of human rights,” the essay outlined, with references to other federal cases, “three anticipated battlegrounds in future ATS litigation.” Specifically, the decision in Jesner leaves open:

  1. Whether the statute precludes suits against all corporate defendants, or just against foreign corporations.
  2. Whether corporate officers remain liable even if lawsuits may not proceed against the corporation with which they are affiliated.
  3. What is the “degree of domestic conduct necessary for the ATS to have effect.”

The authors thus conclude:

“[T]he only certainty is that ATS litigation remains a ripe area for international human rights litigation.”

Their full essay is here.

Professor Burch presents on class actions at global conference in Israel

burch-profileA leading Georgia Law expert on complex litigation, Professor Elizabeth Chamblee Burch, recently presented on the subject at an international conference at the Tel Aviv University Faculty of Law in Israel.

Entitled “Fifty Years of Class Actions – A Global Perspective,” the 2-day conference brought together scholars not only from the United States and Israel, but also from Australia, Canada, Chile, Germany, Hong Kong, Italy, and the Netherlands.

Professor Burch, who holds the Charles H. Kirbo Chair of Law at the University of Georgia School of Law, spoke on the topic of “Publicly Funded Objectors.” Commenting on her paper was Dr. Eran Taussig, an attorney and lecturer at several universities in Israel.

Here’s the abstract:

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem: information barriers confront judges, objectors, and even reformers.

Rule 23’s answer to information barriers is to empower objectors. At best, objectors are a partial fix. They step in as the adversarial process breaks down in an attempt to resurrect the information-generating function that culture creates. And, as the proposed changes to Rule 23’s handling of objectors reflect, turmoil exists over how to encourage noble objectors that benefit class members while staving off those that namely seek rents from class counsel.
Yet, this concern about screening the bad from the good has distracted us from both the bigger question and the true challenge. The bigger question is how we ensure that judges have the necessary information (and incentive) to monitor the attorneys and ensure that the settlement is fair when the adversarial system breaks down. And the real challenge is how we confront the intense regulatory struggle that arises anytime private actors perform public functions.

Addressing the public-private challenge can generate possibilities for overcoming information deficits. Our class-action scheme is not the only one that relies on private actors to perform public functions: citizens privately fund political campaigns, and private lobbyists provide research and information to lawmakers about public bills and policies. Across disciplines, the best responses to those challenges have often been to level up, not down. As such, this Essay proposes a leveling up approach to address judges’ information deficit such that they can better perform their monitoring role. By relying on public funds to subsidize nonprofit objectors’ information-gathering function, we can disrupt private class counsel’s disproportionate influence.