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Wiwa et al v. Royal Dutch Petroleum et al

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Synopsis

Wiwa v. Royal Dutch Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum Development Company are three lawsuits brought against the Royal Dutch Petroleum Company and Shell Transport and Trading Company (Royal Dutch/Shell), the head of its Nigerian operation, and Royal Dutch/Shell's Nigerian subsidiary, charging them with complicity in human rights abuses against the Ogoni people in Nigeria.

Status

On June 8, 2009, on the eve of trial, the parties in Wiwa v. Shell agreed to a settlement for all three of the lawsuits. The settlement, whose terms are public, provided a total of $15.5 million to compensate the plaintiffs, establish a trust for the benefit of the Ogoni people, and cover some of the legal costs and fees associated with the case. 

Description

Wiwa v. Royal Dutch Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum Development Company are three lawsuits filed by the Center for Constitutional Rights (CCR) and co-counsel from EarthRight International on behalf of relatives of murdered activists who were fighting for human rights and environmental justice in Nigeria. The lawsuits are brought against the Royal Dutch Petroleum Company and Shell Transport and Trading Company (Royal Dutch/Shell); the head of its Nigerian operation, Brian Anderson; and the Nigerian subsidiary itself, Shell Petroleum Development Company (SPDC).

The defendants are charged with complicity in human rights abuses against the Ogoni people in Nigeria, including summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional distress. The cases were brought under the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA). The case against Royal Dutch/Shell also alleges that the corporation violated the Racketeer Influenced and Corrupt Organizations (RICO) Act.

Royal Dutch/Shell began using land in the Ogoni area of Nigeria for oil production in 1958. Pollution resulting from the oil production has contaminated the local water supply and agricultural land upon which the region's economy is based. Also, Royal Dutch/Shell for decades worked with the Nigerian military regime to suppress any and all demonstrations that were carried out in opposition to the oil company's activities. The oil company and its Nigerian subsidiary provided monetary and logistical support to the Nigerian police and bribed witnesses to produce false testimonies.

In 1995, the company and its subsidiary colluded with the Nigerian government to bring about the arrest and execution of the Ogoni 9. The Ogoni 9 was a group of activists that were hanged on November 10, 1995 after a "trial" before a special military tribunal based on fabricated charges. One of the nine, Ken Saro-Wiwa, was an internationally renowned writer and activist and was the leader of the Movement for the Survival of the Ogoni People (MOSOP). He is represented in this case by Ken Wiwa, Mr. Saro-Wiwa's son and the executor of his estate. Mr. Saro-Wiwa was outspoken in condemning Shell for polluting and destroying the Ogoni ecosystem, and he led the struggle for the autonomy of the Ogoni people and for an equitable distribution of Nigeria's oil riches.

Other MOSOP leaders include John Kpuinen, the Deputy President of MOSOP's youth wing, the National Youth Council of Ogoni People (NYCOP), and Dr. Barinem Kiobel, the Honorable Commissioner of the Ministry of Commerce and Tourism and member of the Rivers State Executive Council. These MOSOP activists, along with six others, including Saturday Doobee, Felix Nuate, and Daniel Gbokoo, were known as the Ogoni 9. Human rights groups and political leaders around the world condemned both the executions and the lack of due process that was accorded to the victims in connection with the so-called trial.

Other incidents of torture and detention include that of Owens Wiwa, who was detained for more than a year under false charges to prevent him from protesting. During his detention he was beaten repeatedly. Michael Vizor, then a NYCOP vice-president, was beaten by police in front of his children when he would not confess to a false charge. He also had 400,000 (Naira) in cash and documents stolen from his house during his arrest. He was further tortured and denied medical assistance during his wrongful detention. Another plaintiff, Uebari N-nah, was shot and killed in October 1993 near a Shell flow station at Korokoro, Rivers State, Nigeria.

Other plaintiffs were attacked by troops summoned by Royal Dutch/Shell during a peaceful demonstration against Shell and the Nigerian military regime for bulldozing farmland in Bira Gokana for a pipeline contracted by Willbros West Africa, Inc. Karalolo Kogbara was shot by Nigerian troops while she was speaking out against the bulldozing of her crops. Plaintiff Michael Tema Vizor was arrested, beaten and detained for four days without charge for participating in the same protest.

Timeline

On November 8, 1996, CCR filed its original complaint against Royal Dutch Shell and Shell Transport and Trading Company in the Southern District of New York.

On May 21, 1997, Royal Dutch Shell/Shell Transport and Trade filed their motion to dismiss on grounds of forum non conveniens.  Per Judge Magistrate Pitman's recommendation, Judge Wood granted their motion to dismiss on September 30, 1998. The court determined that England would be an alternative forum to adjudicate the case.

CCR appealed this decision to the Second Circuit Court of Appeals. On September 14, 2000, the Court of Appeals reversed the district court’s decision, ruling that the United States is a proper forum because of personal jurisdiction over the defendants who had an office in New York. The case was remanded back to the district court.

The defendants petitioned the U.S. Supreme Court to review the Court of Appeal’s decision, arguing that the case should be dismissed because the ATCA and TVPA could not be used to punish their actions.

On March 26, 2001, the Supreme Court rejected the defendant’s writ of certiorari.

Also in March, 2001, the plaintiffs filed a lawsuit against Brian Anderson, former Managing Director of Royal Dutch/Shell’s Nigerian subsidiary.

Royal Dutch/Shell and Mr. Anderson filed motions to dismiss the case, arguing that the plaintiffs did not have a legal basis for their claims.

On February 22, 2002, U.S. District Court Judge Kimba Wood denied the defendant’s motions to dismiss and found that the plaintiffs were entitled to bring their actions under the ATCA, TVPA, and RICO. The Court also found that plaintiffs had adequately set forth their case that Royal Dutch knew what its Nigerian subsidiary was doing.

In September 2003, the cases against Royal Dutch/Shell and Brian Anderson were amended to include additional plaintiffs.

In April, 2004, an additional case was brought against Shell Petroleum Development Company.

At the end of May 2004, discovery in the cases officially closed.

In May and June 2004, CCR requested discovery conferences on numerous inadequate responses by the defendants, and to contest the defendants' improper discovery requests.

On August 15, 2005, Magistrate Judge Pitman rejected defendants' motion to dismiss a related case, Kiobel v. Royal Dutch Petroleum. In response, Royal Dutch/Shell filed a brief challenging the validity of the claims in Wiwa and claimed that the Supreme Court ruling in Sosa v. Alvarez-Machain excluded the human rights claims in Wiwa.

On January 3, 2006, Judge Wood ruled that she would accept further briefing from any of the parties on the impact of Sosa so that the matter would be completely briefed.

On January 20, 2006, CCR and defendants filed briefs on the impact of Sosa.

In September 2006, Judge Wood dismissed plaintiffs' summary execution, forced exile and right to life, liberty and personal assembly claims, but allowed plaintiffs' claims for aiding and abetting liability in general, as well as the claims for crimes against humanity, torture and prolonged arbitrary detention. The court certified all issues for appeal to the Second Circuit Court of Appeals, and both plaintiffs and defendants petitioned to the Second Circuit for appeal.

On March 4, 2008, Judge Wood denied plaintiffs additional jurisdictional discovery in Wiwa v. SPDC thereby dismissing the case.

On April 15, 2008, CCR filed an appeal with the Second Circuit in
Wiwa v. SPDC.

On October 7, 2008, a hearing was held regarding discovery in Wiwa v. RPDC and Wiwa v. Anderson.

On March 16, 2009, CCR and ERI filed a Fifth Amended Complaint in Wiwa v. Royal Dutch Petroleum Co. and a Third Amended Complaint in Wiwa v. Anderson. 

On June 8, 2009, on the eve of trial, the parties in Wiwa v. Shell agreed to a settlement for all three of the lawsuits.