“Talisman Energy Dealt a Powerful Setback in US Federal Court”
Talisman Energy, the defendant in an immense and potentially devastating legal suit in US Federal District Court (Southern District of New York), was dealt a sharp blow in a key decision rendered this week. Judge Allen G. Schwartz refused Talisman’s request to seek an opinion from the US State Department about the consequences of the suit for Sudan’s peace process. In short, the judge ruled against Talisman’s legal effort to involve the executive branch of American government in federal judicial proceedings involving plaintiffs from the oil regions of southern Sudan. He has thus made clear that the case must proceed on its merits, and not be held hostage to Talisman’s stalling tactics. Indeed, this week’s decision virtually insures that Judge Schwartz will rule against Talisman’s weakly argued motion to dismiss the suit. It is quite conceivable that the judge will make his decision within the month, thereby moving the lawsuit into its discovery phase—a time when we can be sure that the searing evidence against Talisman will be adduced in overwhelming fashion. The financial liability now staring facing Talisman in the face is huge, and will only continue to grow with the Khartoum regime’s escalating scorched-earth campaign in Talisman’s Concession Block 4.
Eric Reeves [September 6, 2002]
Northampton, MA 01063
Though scant attention has been paid to Talisman’s intensifying legal predicament in US Federal District Court, the consequences of a devastating judgment against the company should have observers wondering how much in excess of $100,000,000. the company will have to pay to southern Sudanese plaintiffs from the oil regions in which Talisman and its Greater Nile partners operate by virtue of Khartoum’s longstanding and continuing campaign of savage scorched-earth warfare and civilian clearances. And this figure likely now presumes Talisman’s settling before a final judgment in the case.
The case to date has been a slightly bizarre legal mismatch, with legal counsel for the plaintiffs, Berger & Montague, PC, overwhelming the expensive but apparently ill-prepared legal counsel of Clifford Chance Rogers & Wells, representing Talisman as defendant. The most recent evidence of this mismatch comes in the form of a ruling from Federal District Judge Allen G. Schwartz, refusing the request by Talisman’s legal team to have the judge solicit a letter from the US State Department concerning the impact of the class action suit on the peace process in Sudan.
Judge Schwartz has in effect, by wisely and appropriately refusing this request, ruled that the Executive Branch of the US government cannot be used by Talisman’s legal counsel to intrude upon a case before the Federal Judiciary. The case is clearly legitimate under the Alien Tort Claims Act, an act that is itself a reflection of the constitutionally unchallenged legislative will of the US Congress. To have acceded to the request by Talisman’s counsel would have raised extremely serious issues about the separation of powers, one of the fundaments of US constitutional government.
This ruling by Judge Schwartz removes what is in all likelihood the last possible support for the motion by Talisman’s counsel to have the case dismissed. And once this ruling is made final—very possibly within the month—the case enters the discovery phase, the phase in which the countless points of evidence against Talisman will be introduced. There is already enough deeply damning evidence within the original complaint (and its supplement) to suggest that Talisman will be overwhelmed.
No legal team, no matter how high-powered or expensive, will be able to defend the indefensible—Talisman’s well-established complicity in the ongoing and genocidally destructive scorched-earth warfare against civilian populations from the oil regions, especially in Western Upper Nile and southern Kordofan. These brutal realities have been repeatedly and authoritatively established by numerous human rights organizations and assessment missions, including Amnesty International, Human Rights Watch, the last three UN special rapporteurs for Sudan, Christian Aid (UK), the government of Canada, the European Coalition on Oil in Sudan, human rights specialists Georgette Gagnon (Canada) and John Ryle (UK), and many others.
Now these findings will, in effect, be consolidated in a single forum, one in which Talisman is clearly liable under terms of the US Alien Tort Claims Act. The largely anonymous human devastation in southern Sudan will take on a human face—many, many human faces. The victims and their families, those who have suffered the loss of all possessions and land, of health and limbs, of kin and friends, will be part of a class—the class of this “class action” lawsuit. And while their grievances are far beyond financial recompense, justice will see Talisman Energy pay dearly and deeply for their role in this extraordinary human suffering and destruction.
There are many legal aspects to this case that can’t easily be summarized in brief compass (inquiries welcome). But for those who will but look at the issues of law, the precedents, and the undeniable power of the complaint that has been brought against Talisman, it won’t be difficult to discern an enormous financial liability in the offing for this viciously rapacious corporation.
As intensifying military assault by Khartoum is now creating tens of thousands of new victims in Talisman’s concession areas in Western Upper Nile, this judgment and its potential for deterrent effect cannot come soon enough.