Mass torts and the Fukushima Nuclear Disaster
Here’s a curious development.
A US law firm has announced that it is:
actively handling Japan nuclear toxic exposure lawsuits in all 50 states. If you or somebody you know has been exposed to excessive amounts of radiation while visiting or living in Japan, you should contact us immediately. You may be entitled to compensation and our law firm can help.
It continues to list a number of symptoms of acute radiation sickness, namely hair loss, vomiting and diarrhea… that sounds like a standard Friday night for most Japanese salary men, no?
This is a mass torts strategy – basically, the plan is to assemble a large number of potential litigants and to bring a claim against the defendant (here, TEPCO) in an effort to either use their numbers as a source of funds to effectively prosecute the case to final judgment (an economy of scale benefit) or, and in my view more likely, an attempt to force TEPCO to settle the matter.
Mass torts litigation in the US is not unusual – in fact, the US is arguably where the phenomenon was born, and while this particular breed of litigation has its place in righting the imbalance between the community and global corporations, I’m not convinced that this strategy will work here for a number of reasons I’ve outlined below.
First, I’m not sure on the process by which they hope to launch the litigation. As I understand it, there are two possibilities: either the firm initiates proceedings in Japan or in the United States.
Assuming the first scenario, that the firm initiates the claim in Japan, this would mean that they will need to pair up with a Japanese lawyer or law firm. It is notoriously difficult for foreign firms to conduct litigation in Japan, and most fall foul of the domestic regulations on foreign lawyers. Perhaps this firm (which I have consciously refused to name in this blog, but you can find it by clicking on the link at the very top) is aware of these problems, but the greatest difficulty will be finding a decent lawyer with experience of circumnavigating the Japanese civil litigation system that will have the stomach to represent a group of litigants from the US.
It needs to be understood that the Japanese have an extremely dim view of the US legal system, and whenever the topic of conversation turns to US litigation, you will invariably hear about the McDonalds Coffee Case – Liebeck v McDonald’s Restaurants. No doubt you’re familiar with the case – in 1994, a jury awarded Liebeck nearly US$3 million in compensatory and punitive damages for suffering 3rd degree burns after spilling McDonald’s coffee over her lap. Ultimately, Liebeck didn’t get that much as the amount was reduced by the judge, and a confidential settlement was reached between the litigants – but by this time the damage had been done: the myth (?) of the unreasonable American litigants had burned itself into the Japanese psyche (pun intented). (As a side note, you may be interested to learn that a documentary on the incident was released in 2011. I’ve included a link to the Amazon page to the right. I haven’t seen it, but it seems to have some fairly positive reviews.)
So as I said above, the firm will be lucky to find a Japanese lawyer willing to prosecute the claim, and one that is in any way capable of doing so.
If, on the other hand, the firm intends to prosecute the claim in the US, then things become increasingly complex and starts to fall outside my scope of knowledge, but I am equally convinced that it would be unsuccessful.
Problem 1: WTF?!?
First, torts are usually (though not always) prosecuted by plaintiffs in the country where the damage was sustained. In the present scenario, this will necessarily be Japan. Even the firm has not spread its net of potential litigants to include those who were outside of Japan at the time of the fallout as they ask for people who were “visiting or living in Japan”. This is not a hard-and-fast rule, however, and the US is rather unique in its insistence on exercising jurisdiction over practically anything and everything that happens in the world. How? The Alien Tort Claims Act.
This is a law of some controversy given its overreach into incidents in other jurisdictions and as between non-US litigants. The key operating provision of the Act is that “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.”
I would assume that it is under this provision that the firm would seek to prosecute its claim. It isn’t clear to me, however, as to the nature of the alleged violation of the law of nations or a treaty of the United States. I’m aware that there are currently investigations into the criminal culpability of TEPCO management, so perhaps something may eventuate in that respect, but this leads the second problem…
Problem 2: Enforcement!
Even if there is a violation of the law of nations, or perhaps the claim is prosecuted outside of the scope of the Alien Tort Claims Act, and the claim is then enforced, how does the firm plan on enforcing it’s judgment? According to a Reuters report, TEPCO has very few assets to sell, and whatever assets it does have will no doubt be primarily located in Japan and not the US. If the assets are located in Japan, then it will be necessary for the firm to register the US judgment with the Japanese courts to effect enforcement over assets located in Japan.
This is where things will get sticky. I have no doubt in my mind that the Japanese government will prevent this from ever happening. As fractious as the Diet may well be, you can bet on your obaachan‘s life that there will be bipartisan… nay… tripartisan… nay… quadpartisan (?)… nay… (I’ve lost count) support for legislation that will prohibit the enforcement of foreign judgments against TEPCO assets. If anything, the Japanese government would likely establish a fund to pay compensation to those who can demonstrate that they were affected by the Fukushima Nuclear Disaster. But this then brings us to Problem 3!
Problem 3: Everyone else!
The pool of potential litigants is vast. So vast, that even if there was such a fund to pay compensation to all and sundry, I doubt that there would be much available to each individual claimant.
So for the above reasons, I really don’t see what hope, if any, the US firm has of ever seeing this litigation strategy get off the ground. If you disagree, or if I’ve got something wrong, do let me know. I find the whole thing extremely perplexing…