Foreign Tort Cases Increasingly Borrowing Pages from a Common Trial Lawyer 'Playbook'
NEW YORK, NY—A new study documents how plaintiffs’ attorneys and advocates are working with foreign plaintiffs and employing a common set of aggressive, out-of-court tactics that approach, straddle and sometimes cross ethical lines to gain litigation advantages against transnational companies. The first-of-its-kind study, released today by the U.S. Chamber Institute for Legal Reform (ILR), also shows a dramatic increase in the number of global tort claims or transnational tort cases filed in the U.S. against American companies for alleged injuries that occur abroad.
“International attorneys and their allies are playing off the same trial lawyer playbook, which is designed to hold the reputation of American companies hostage in order to gain the litigation upper hand,” said ILR President Lisa A. Rickard. “U.S. businesses need to beware that even small investments abroad could subject them to multi-million dollar lawsuits leveraged by sophisticated public relations campaigns orchestrated by plaintiffs’ attorneys.”
The study cites a commonly employed PR strategy of launching biased documentaries and websites, product boycotts, and political lobbying that support lawsuits filed against U.S. companies and foreign companies with a U.S. presence. The study also documents multiple instances in which courts have found that plaintiffs or their advocates fabricated injuries, submitted false evidence and otherwise engaged in misconduct. The paper argues that the nature of the cases – typically involving vulnerable defendants, overzealous attorneys, and alleged overseas harms – may encourage such transgressions.
“By piecing together these common elements and exposing the trial bar’s playbook, we are helping the global business community better prepare to combat these unscrupulous practices. We also hope to encourage a discussion about the role that basic fairness, the rule of law, and ethics plays in whether and how to pursue lawsuits against companies for their activities in foreign jurisdictions,” said Rickard.
Some of these brazen strategies were employed by international trial lawyers in Nicaragua in a lawsuit against Dole Foods, Dow Chemical Company, and Shell Oil for allegedly exposing banana plantation workers to pesticides. According to the evidence cited in the study, plaintiffs’ lawyers lobbied to change Nicaragua law retroactively to deprive the defendants of due process, fabricated testimony from plaintiffs who never worked at a banana plantation, and conspired with a local judge to rig judgments.
“Welcome to the Wild West of transnational tort cases, where what happens inside the courtroom is often overshadowed by what happens outside the courtroom,” said Jonathan Drimmer, a partner in the Washington, D.C., office of Steptoe & Johnson LLP and adjunct professor of law at the Georgetown University Law Center. “The use of these tactics is growing as plaintiffs and their representatives take advantage of improvements in technology and communications and learn from each other between cases. But most important, the increasing use of these tactics indicates that the plaintiffs’ bar believes they are effective.”
The report, Think Globally, Sue Locally: Out-of-Court Tactics Employed by Plaintiffs, Their Lawyers, and Their Advocates in Transnational Tort Cases, was prepared for ILR by Drimmer.
ILR seeks to promote civil justice reform through legislative, political, judicial, and educational activities at the national, state, and local levels.
The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.