U.S. Urges Court of Appeal to Throw Out Slave Labor Suit

Tuesday, November 5, 2002

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U.S. Urges Court of Appeal to Throw Out Slave Labor Suit

By a MetNews Staff Writer

A class action brought by a Korean immigrant seeking compensation for himself and others who were seized by the Japanese government and forced to labor for Japanese firms during World War II should be thrown out, a Justice Department lawyer argued yesterday before this district’s Court of Appeal.

The law under which Jae Won Jeong brought his suit against Taiheiyo Cement Corporation and other Japanese entities is unconstitutional because only the federal government can make foreign policy, Douglas Halward-Dreimeier told Presiding Justice Candace Cooper and Justices Laurence Rubin of Div. Eight.

The statute is Civil Code Sec. 354.6, which provides:

“Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate.”

The suit is similar to several that were thrown out by U.S. District Judge Vaughn Walker of the Northern District of California, who was assigned to the federal cases by the Judicial Panel on Multidistrict Litigation. Appeals from Walker’s rulings were recently argued before the Ninth Circuit.

In Jeong’s case, however, Los Angeles Superior Court Judge Peter Lichtman upheld the statute and ruled that the suit could proceed. The Court of Appeal stayed the trial court proceedings and granted an order to show cause why a writ of mandate or prohibition should not be granted.

Halward-Dreimeier and Matthew E. Digby of Bingham McCutcheon, who argued for Taiheyo, argued that all claims for injuries suffered by Korean nationals during World War II must be addressed by the Japanese and North and South Korean governments through “special arrangements” under the 1951 San Francisco Treaty.

But the appellate panel raised a number of questions, including whether the treaty is binding on Korean nationals, given that Korea was not a party, and whether the treaty implicitly bars claims in American courts.

Boland also questioned the lawyers as to how allowing the suit to proceed would impact foreign policy, given the friendly nature of U.S.-Japanese relations.

Halward-Dreimeier argued that the suit is inconsistent with the policy goal of the United States post-World War II, to limit the burden of war claims on Japan and thus enable it to become a viable country again. That policy has not changed, Halward-Dreimeier argued.

But Bill Lann Lee, the former head of the Justice Department’s Civil Rights Division, arguing yesterday for the plaintiff, said Jeong’s claims are for unpaid wages and tort damages, being sought from private companies and not the Japanese government, and do not impact foreign policy.

“This is not a war claims case,” Lee told the justices. “This is not a reparations case. This is not a case against Japan. This is a tort case.”

Claims by the defendant corporations that they were forced by the government to use slave labor as part of the war effort, Lee said, can be addressed in the trial court as affirmative defenses but do not constitute a basis for throwing out the suit.

The fact that a ruling against a foreign company might endanger relations between the defendant’s home country and the United States, he added, is no grounds for granting such companies immunity from suit. “Foreign companies are in our courts every day,” he said.