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Shan v. China Construction Bank Corp.

June 28, 2010

LIU BO SHAN, PLAINTIFF,
v.
CHINA CONSTRUCTION BANK CORP., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Chinese national Liu Bo Shan (the "plaintiff") has sued his former employer, China Construction Bank Corp. (the "Bank"), alleging torture, prolonged arbitrary detention, and cruel, inhumane and degrading treatment or punishment in violation of customary international law. Plaintiff brings these claims pursuant to the the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"),*fn1 and the Torture Victim Protection Act, 28 U.S.C. § 1350 note ("TVPA"). On March 19, 2010, the Bank moved to dismiss plaintiff's amended complaint. For the following reasons, the Bank's motion is granted.

BACKGROUND

The following facts, taken from the plaintiff's March 5, 2010 amended complaint (the "Complaint"), are assumed to be true in deciding this motion. Plaintiff was employed by the Bank at its office in Hongling, China as a manager and loan department clerk between 1988 and 1993.*fn2 At the time, the Bank was wholly government-owned and controlled. Today, however, the Bank is a privately held corporation headquartered in Beijing, China.*fn3

In September 1993, plaintiff was assigned to audit a loan discrepancy. During the audit, plaintiff discovered that the Bank had issued false bank deposit certificates. Plaintiff then prepared a report disclosing the results of his audit and submitted it to the Bank's Audit Director.

Thereafter, in order to punish plaintiff for "exposing illegal banking practices" and/or "to intimidate and coerce Plaintiff from exposing the Bank's illegal practices to the general public," the Bank terminated his employment.*fn4

Additionally, the Bank accused plaintiff of violating Bank policy by consorting with a prostitute. The Bank contacted the police and sought to have plaintiff arrested on charges that he had paid a prostitute to engage in sexual acts on Bank property. To support this allegation, the Bank compelled three of its employees to provide false statements to the police. As a result of the Bank's accusation and the three employees' statements, plaintiff was arrested on November 13, 1993.

Plaintiff alleges that, after he was arrested, he was tortured and subjected to cruel treatment by the police. Plaintiff's wrists were shackled together and he was suspended by his wrists, beaten, and slapped. His trousers were removed and his genitals were burned and mutilated by lit cigarettes. Plaintiff was confined in a small cell, where five buckets of water were thrown on him. The water remained in the cell at a depth of several inches, causing his feet to swell and affording plaintiff no place to sit or lie down. After two days in these conditions, plaintiff was forced to sign a confession.

On November 15, 1993, plaintiff was formally charged with a crime and then sentenced to 15 days' imprisonment and a fine of RMB 5,000.*fn5 Plaintiff paid the fine and was held for eleven days through November 26, 1993. Despite a recantation by one of the three Bank employees who had given a statement to the police,*fn6 and despite an admission by the Bank's Vice President that he was responsible for issuing the false deposit certificates discovered by plaintiff, the Bank refused to investigate the circumstances surrounding his firing and instead "adhered to the false charge" against him.

Plaintiff thereafter left China, and was granted political asylum in the United States in 1997. He is now a United States permanent resident.

PROCEDURAL HISTORY

On October 8, 2009, the plaintiff filed this lawsuit pursuant to the ATS and TVPA, alleging violations of customary international law by the Bank. The Bank moved to dismiss this action on December 1, 2009. In opposition, the plaintiff requested leave to amend in the event that his complaint was determined to be insufficient. By Order of February 3, 2010, plaintiff was granted leave to amend.

Plaintiff submitted his amended complaint on March 5, 2010. On March 19, the Bank moved to dismiss the amended complaint. Plaintiff filed his opposition on April ...


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