The Second Circuit Court of Appeals dealt a blow to human rights victims when it dismissedBalintulo v. Ford Motor Co. this week. The appellate court distorted Supreme Court precedent, applying an unrealistically and unfairly high pleading standard to a case brought by black South Africans against IBM Corp. and Ford Motor Co. for their roles in facilitating apartheid.
In February, we filed an amicus brief in support of the plaintiffs’ case against IBM. The plaintiffs asserted that IBM aided and abetted the human rights abuses they suffered at the hands of the South African government by creating a computerized national ID system that the white-run regime used for “denationalization.” IBM’s customized technology enabled efficient identification, racial categorization, and forced segregation – the hallmarks of the systematic oppression that stripped South Africa’s native population of its rights.
Thus, the appellate court said in effect that, at least without smoking gun evidence, under no circumstances would the judges ever believe that IBM could have “purposefully” aided and abetted the human rights abuses perpetrated by the apartheid government. This is an outrageous ruling on a motion to dismiss and creates an unrealistically and unfairly high hurdle for victims of heinous human rights violations – or any plaintiffs seeking justice.
Additionally, as we argued in our amicus brief, “such mens rea can be inferred through circumstantial evidence or potentially proven directly through additional discovery.” It is highly unlikely, given the circumstances at the time, that IBM’s U.S. personnel intended to simply build an “innocuous” computer system:
[The] plaintiffs alleged in their proposed amended complaints that the national identification system was highly customized, requiring close collaboration with the South African government; racial classification was a primary identifying characteristic; and the equipment was leased. Given this, it is certainly plausible that IBM New York understood that the national identification system was built for a client whose goal was to permanently segregate the blacks of the country and deprive them of their rights. The plausibility of purpose gets stronger given IBM New York’s record of taking affirmative steps to enable IBM South Africa or others under IBM’s ambit to service the South African government despite increasing global knowledge and sentiment against the apartheid regime, U.S. sanctions, and the growing public divestment movement.
The Second Circuit wants smoking gun evidence to be recited in the complaints that IBM intended to “further the aims of a brutal regime,” but it is unjust to expect the plaintiffs to have such direct evidence at the outset of the case. That is the purpose of discovery. It is IBM that has the private correspondence and other private documentation that proves the state of mind of its U.S. personnel who approved and worked on the South African project. To expect plaintiffs to have access to evidence at the pleading stage that only IBM possesses is unrealistic and unfair.
The plaintiffs have cited in their complaints the available public evidence – and that alone is sufficiently damning such that the Second Circuit should have allowed the plaintiffs’ case against IBM to move forward. Instead, the Second Circuit dealt a huge blow to human rights victims.