Attorney uses obscure law to sue U.S. companies

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It's not just the empty food container on the floor that distinguishes Dan Kovalik's office from that of a typical lawyer. There's also the poster-size picture of Che Guevara and a substantial statue of Don Quixote.

But what's most unusual about Mr. Kovalik's office is the type of law that is being practiced there. As a lawyer for the United Steelworkers, the 38-year-old Mr. Kovalik is using an obscure law passed in the 1700s to target pirate ships in order to sue American companies for alleged crimes committed overseas.

"It's really quite a unique statute, and it wasn't used for over 200 years," said Douglas Branson, a law professor at the University of Pittsburgh who was involved in a previous case against an American company brought under the law, known as the Alien Tort Claims Act.

Mr. Kovalik's most prominent case, against an Alabama coal company accused of being complicit in the murders of three labor union leaders, is on route to being the first such case to go to trial.

Thus far, he's traveled to Colombia more than a dozen times and been held in contempt of court here for publicly filing sensitive documents -- a ruling that was overturned earlier this month.

The case hinges on the events of March 12, 2001, when Valmore Lacarno Rodriquez and Victor Hugo Orcasita Amaya were pulled off of a bus belonging to the Drummond mining company by Colombian paramilitary forces. Mr. Rodriquez was shot in the head several times in front of his co-workers, while Mr. Amaya was found dead hours later by the side of the road, after being tortured and shot in the head.

The men were both leaders of the Sintramienergetica labor union, which was engaged in contract negotiations with Drummond.

Several months later, the man who had stepped up to fill Mr. Rodriquez's shoes as union president also was taken off a company bus and murdered.

The lawsuit, filed in 2002, uses the Alien Tort Claims Act to sue Drummond on a variety of charges -- including extrajudicial killing, wrongful death and aiding and abetting -- on behalf of the labor union and the families of the murder victims.

Last week, the Colombian government said it had opened a formal investigation into whether Drummond collaborated with paramilitary groups to kill the labor union leaders.

Drummond unilaterally denies any knowledge of or involvement in the killings, saying in a statement released last week that it "has not nor will it make any payments, agreements or transactions with illegal groups and emphatically denies that the company or any of its executives has had any involvement with the murder of the three labor union leaders."

The Alien Tort Claims Act, passed in 1789 to protect victims of attacks by pirate ships, allows foreign residents to bring civil cases in U.S. courts for personal injuries suffered "in violation of the law of nations or a treaty of the United States."

The law was barely used until civil rights lawyers discovered it in the 1970s to sue foreign military members who were living in the United States. In 1980, a Paraguayan man won a multi-million dollar judgment against a policeman who had tortured and killed his son in Paraguay, because the general was living in the United States.

In the mid-1990s, lawyers started using the law to sue U.S. or multinational companies for actions overseas. In 2005, energy company Unocal settled a suit that accused it of being responsible for forced labor, rapes and a murder in Myanmar, where the company was building a gas pipeline.

About three dozen cases have been filed against major corporations, such as DaimlerChrysler, ExxonMobil and Wal-Mart. A few have been settled out of court, but the majority have been dismissed on legal or procedural grounds.

With opening arguments scheduled for July, the Drummond case would be the first to go to trial. Drummond has pledged that it will not settle the case.

For business groups, the Alien Tort Claims Act represents a law gone wild.

"The framers of the Constitution would shudder at the thought that the Alien Tort Claims Act is being used to hit up U.S. companies for events that have happened in foreign countries that are completely outside their ability to influence," said John Murphy, vice president for international affairs at the U.S. Chamber of Commerce.

"This is the most creative kind of lawyering that we've ever seen."

Indeed, said Mr. Branson, the Pitt law professor, the law is almost exclusively the province of "hippies who wear bandannas and Levis."

But Mr. Kovalik, who graduated from Columbia Law School in New York but has been known to play his guitar in Market Square, doesn't seem to mind that stereotype.

The law, he said, is a tool to bring justice even to people in foreign countries -- a topic that's fascinated him ever since watching a "60 Minutes" segment at age 12 on the killings of priests in El Salvador.

"In law school, I knew I wanted to do something on behalf of working people," he said. "This is a dream job."

Rebecca Droke, Post-Gazette
Attorney Dan Kovalik's Downtown office includes a poster-size picture of Argentine-born Cuban revolutionary Che Guevara.
Click photo for larger image.

Anya Sostek can be reached at asostek@post-gazette.com or 412-263-1308.


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