Monthly Archives: August 2011

First off we’d like to announce the winner of our giveaway of a copy of volumes 1-5 of the Marc Andreyko run of Manhunter, as described in our previous post in this series.  Thank you to everyone who entered.  We got a tremendous response from our readers for the giveaway, so we’ll definitely run another one soon.  Anyway, without further ado: congratulations to our winner: Michael Burstein!

Now, on to volume 5 of Manhunter.  The main story arc in this volume involves a multi-national pharmaceutical/biotech/medical device company, Vesetech, with a plant in El Paso, Texas.  Many of the workers at the plant are Mexican women who live in Ciudad Juárez across the border.  While investigating the disappearances of a large number of women in the area, Kate Spencer discovers that Vesetech was kidnapping the women and using them in unethical medical experiments.  After busting up the supervillain-led research team, Spencer announces at a press conference that she is leading a class action lawsuit against the company on behalf of the former employees.  This leads to a few questions.

I. Federal Labor Laws

Kate says that Vesetech was paying the women ‘pennies,’ suggesting a violation of minimum wage laws.  For violations of the federal minimum wage (the same as the minimum wage in Texas), employees can sue for both back wages and an equal amount as liquidated damages under 29 U.S.C. 216(b).  However, violations of the federal minimum wage law are frequently enforced by the Department of Labor’s Wage and Hour division, which is empowered to sue on the employee’s behalf.  If the Department of Labor steps in then that terminates the employee’s right to sue on their own behalf.  So there’s a very good chance that part of the suit could be dismissed.  But there would still be the injuries suffered by the women who were experimented on.

II. Class Actions and Federal Jurisdiction

Kate announces that she will represent the women in a class action lawsuit, but things aren’t that simple.  A class must be certified by a judge, and the plaintiffs in this case may not meet the requirements.  For simplicity we’ll assume that the case would be brought in federal court.  Bringing a case in federal court requires (among other things) that the court have subject matter jurisdiction.  That is, it must be the kind of case that the federal courts can address, since the federal courts are courts of limited jurisdiction.

In brief, federal courts can get subject matter jurisdiction three ways: the Arising Under clause, diversity of citizenship, and supplemental jurisdiction.  The Arising Under clause grants jurisdiction in cases involving a federal question.  Diversity of citizenship applies when no plaintiff is a citizen of the same state as any defendant and the amount in controversy is at least $75,000.  Supplemental jurisdiction allows state law issues to tag along when they are related to another claim or controversy that the court had jurisdiction over.

In this case, federal jurisdiction seems likely since the plaintiffs are all Mexican citizens while the defendant is a US corporation, giving a federal court jurisdiction under diversity of citizenship. (legal pedant note: it is broadly assumed that this is so, but the Supreme Court has indicated in dictum that a foreign plaintiff may not claim federal jurisdiction under diversity of citizenship.  Verlinden BV v. Central Bank of Nigeria, 461 U.S. 480, 492 (1983).  It is not completely clear what the answer is in a case like this, with foreign plaintiffs and a US defendant.)

There may also be federal question jurisdiction (e.g. if the women sue for wages and the Department of Labor doesn’t step in).

In any case, federal class actions are governed by Federal Rule of Civil Procedure 23.  There are several requirements, but the biggest issue here is probably commonality: are there “questions of law or fact common to the class?”  The problem is that there are at least two groups of plaintiffs: women who were paid below minimum wage and the women who were experimented on (or at least their estates).  Admittedly, members of the latter group may also be members of the former group, but the questions of law and fact are very different between the two groups.  It is possible that a federal court would consolidate the cases, but they would probably be brought as two separate suits.

But even that may not be enough.  Unless the women were subjected to at least broadly similar mistreatment at the hands of Vesetech’s scientists then a class action may not be the best way to resolve their claims.  A court could decide that the women’s injuries were too unique to be treated as a class.

III. The Measure of Damages

During the press conference Kate explains that data gleaned from Vesetech’s human experiments may have been used to develop a range of highly profitable and widely-used products.  Kate says that this is “fruit of the poisonous tree” (a rather terrible mis-use of a legal phrase).  Anyway, it is implied that this has something to do with the women’s case.  Ordinarily the women’s damages would be what it took to compensate them (or their estates) for their injuries, plus likely punitive damages of up to 10 times the compensatory damages.  See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that Due Process generally requires punitive damages be less than 10 times the compensatory damages).  The women would ordinarily not be entitled to any share of the ill-gotten gains derived from their suffering.

However, the equitable remedy of restitution may allow the women to recover some of those ill-gotten gains.  But as an equitable remedy restitution is discretionary, so a court may or may not impose it.

IV. Tort Claimants and Bankruptcy

The real bad news is that Vesetech is almost certainly going to be bankrupt in short order: all of its facilities around the world were raided, virtually every aspect of its business is suspect, and it is looking at massive criminal penalties.  What’s more, tort claims are general unsecured claims, aka “the back of the line” in bankruptcy.  So even if the women’s case is successful, they may ultimately receive nothing as secured creditors and the government take everything the corporation owns in liquidation.  Sad, but that’s the law for you.

That’s it for our series on this run of Manhunter.  Look for our next series on Batman: No Man’s Land!