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FUKUSHIMA LAWSUITS AND CLASS ACTION

U.S.-style class action? Unlikely for Tepco suits

by Tomohiro Osaki

Staff Writer

About 1,700 people from various prefectures filed four separate lawsuits against Tokyo Electric Power Co. and the government last March 11, exactly two years after the start of the Fukushima nuclear disaster.

The crisis, which is a long way from ending, has devastated local industries and agriculture and uprooted thousands of people, some of whom will perhaps never be able to return home. But the victims are banding together to seek redress, and the process is expected to be long.

For the plaintiffs, who recoil at the prospect of backbreaking litigation, just trying to estimate their losses and find the evidence to support their claims will be an arduous task, with no guarantee that any redress won will even come close to equaling their losses.

Tepco is meanwhile struggling to stay afloat as it faces the prospect of trillions of yen in legal costs as well as the cost of financing the decades-long process of decommissioning its melted reactors.

To expedite the litigation and mitigate the anxiety of the victims, experts are calling for the introduction of American-style class-action lawsuits.

Following is a look at the current suits pending and how class-action suits might work in the plaintiffs’ favor:

What options are available to seek damages from Tepco?

One option is to initiate a lawsuit, but there are also two nonlitigious ways to press for compensation. Neither appears likely to succeed.

The first way is to apply directly with Tepco for compensation — a process entailing reams of documents, many fraught with technical terms. Although the paperwork has improved, the process still reflects Tepco’s reluctance to offer anything remotely close to full reimbursement, said freelance journalist Shojiro Akashi, who has extensively covered the Fukushima disaster.

To sign all of these arcane documents means the victim is “agreeing to terms arbitrarily set up by the power utility,” giving Tepco the upper hand, Akashi said.

The second way is to take the out-of-court alternative dispute resolution tack.

Third-party legal experts at a special center established for this purpose are mediating settlements between Tepco and its victims. But since mediated settlements are legally nonbinding in nature at this point, any proposals made by the center can be vetoed by either side.

As of July 26, the center had processed 7,221 cases, with 3,494 ending in full satisfaction, a science ministry report said.

What is the most high-profile Fukushima case?

The four suits filed March 11 for some 1,700 plaintiffs, seeking a combined ¥5.3 billion at district courts in Tokyo, Chiba and Fukushima prefectures are so far the most prominent.

One of the plaintiffs’ lawyers, Izutaro Managi, who is in charge of the lawsuit filed by 800 people at the Fukushima District Court, told The Japan Times that 1,000 more plaintiffs intend to file a second collective lawsuit against Tepco and the government in September.

How does a U.S.-style class-action suit differ from the mass litigation targeting Tepco?

The most typical form of Japanese mass litigation involves individuals who have incurred the same damage joining hands to sue the same defendant.

A downside of this system is that nonlitigants can’t qualify for judgments handed down by the courts unless they have actually participated as plaintiffs.

Their eligibility for settlements, therefore, is only ensured if they commit to the enormous hassle of initiating and pursuing a mass lawsuit. This includes coordinating their claims and collecting evidence.

Referred to as “representative actions,” the American version is considered more flexible. Under U.S. procedures, only one or a few “representative plaintiffs” proceed with lawsuits on behalf of many others similarly victimized.

Court decisions apply even to nonlitigants.

What are the benefits of introducing American-style class actions?

A U.S.-style class-action suit would spare the plaintiffs the hassle of having to meet and coordinate their positions beforehand.

That makes the class-action option easier to pursue.

Also, a class action would lessen the number of plaintiffs appearing in court, thereby expediting proceedings toward a settlement.

The class-action approach would also alleviate the need for individuals to file separate but similar suits, flooding the courts. This would go a long way toward easing the burden on taxpayers of having to support widespread trial proceedings.

What is the downside?

Class-action participants would be bound by whatever settlement is reached in court. If they feel they are getting short-changed, they would have to declare their intention to “opt out” in advance.

Representative plaintiffs are thus duty-bound to inform their class-action colleagues about any likely settlement, via notices, newspaper ads, TV commercials or other communications. Those who fail to opt out will be subject to whatever settlement terms are reached, however disagreeable.

How could class-action suits be introduced in Japan?

Yukuo Yasuda, who co-authored a book on Fukushima’s victims with Akashi and novelist Takashi Hirose in 2011, suggests that the Diet first pass a special bill to allow for representative class actions. Once the law is enacted, disaster victims would be able to form different classes based on occupation or level of damages, such as dairy farmers, rice growers, fishery operators and so on. Members of each group would then select representative plaintiffs.

Once a decision is reached on the appropriate level of due compensation, this amount would be presented as the damages sought for a specific class to estimate the settlement amounts.

Theoretically, most of the victims would just wait until the lead plaintiffs’ case is over and apply for the agreed-upon redress later.

Are U.S.-style class actions on the horizon for Japan?

Although there are strong voices calling for such litigation, there are also strong foes, so they are unlikely to debut anytime soon.

When contacted by The Japan Times, a lawyer representing a major Japanese firm who asked to remain anonymous said the introduction of U.S.-style class-action suits would “certainly decimate” Tepco by making an untold number of victims eligible for compensation.

Setting a class-action precedent would also be a nightmare for Japanese companies in general, which means strong resistance can be counted on from the business community, he said.

Noting that the current redress being meted out by cash-strapped Tepco is actually being financed by taxpayers, class actions would only increase the public’s burden, he added.

“The whole idea of Japan adopting class actions is totally nonsense,” he said. “There is no way that will ever happen.”

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp