Monday, September 17, 2007

U.S. Legal Adviser’s Office Involved in the Following Current ATS Cases

Last weekend the State Department held a meeting of the Advisory Committee on International Law (ACIL) to discuss issues relating to current international legal topics, including recent developments in litigation under the Alien Tort Statute. The list of cases under discussion included:

1. South African Apartheid (2d Circuit)

The plaintiffs allege that defendants are liable for damages they suffered during apartheid because defendants aided and abetted those policies by doing business in South Africa during apartheid: defendants supplied the South African government with resources including technology, money, and oil, which the government used to further its policies of oppression and prosecution, and benefited from apartheid policies, which provided them with cheap labor.

Motion to dismiss granted; appeal to 2d Circuit fully briefed; argued January 24, 2006; awaiting Second Circuit opinion. USG filed SOI in district court and amicus brief.

2. Agent Orange (2d Circuit)

Complains that chemical companies provided USG with toxic chemicals used to defoliate parts of Vietnam during Vietnam war, resulting in physical injury and damages to plaintiffs.

District Court dismissed; awaiting Second Circuit opinion on appeal. (Argued June 18, 2007.) USG filed SOI in district court and amicus brief.

3. Presbyterian Church of Sudan v. Talisman and Sudan (2d Circuit)

Plaintiffs allege that Sudan committed genocide, a crime against humanity (systematic forcible transfer of civilians), and a war crime (military attacks on civilians), and that based on its oil exploration activities in Sudan, Talisman is liable for these human rights abuses based on theories of aiding and abetting, conspiracy, vicarious liability, and alter-ego liability.

Summary judgment granted for defendant Talisman; as of 9/4/2007, appeal to Second Circuit fully briefed, oral argument not yet scheduled. Sudan is in default; the claims against it have been stayed pending the outcome of the appeal. USG filed SOI in district court and amicus brief in 9th Circuit.

4. Doe v. Unocal (9th Circuit)

Plaintiffs argue that the defendants are liable for human rights violations perpetrated by the Myanmar military for the benefit of the joint venture project that defendants entered into with French oil co. and the Myanmar government.

Case settled. Appeal dismissed by 9th Circuit after granting rehearing en banc and declaring that 9th Circuit panel opinion (which reversed district court) has no precedential value; district court opinion dismissing ATS claims vacated. USG filed SOI in one of the consolidated district court cases.

5. Mujica (9th Circuit)

Plaintiffs sued under ATCA, TVPA, and state law for the 1998 bombing raid on civilians of Santo Domingo. Defendants allegedly planned and helped carry out, with aid by Colombian military, bombing raids in effort to protect oil production facility from insurgents. (Similar suit brought by plaintiffs in Colombian court against Colombian military forces.)

District court dismissed; as of 8/23/2007, fully briefed and argued April 19, 2007, before the 9th Circuit, but stayed pending en banc consideration of Sarei v. Rio Tinto by the 9th Circuit. USG filed SOI in district court and amicus brief in 9th Circuit.

6. Corrie v. Caterpillar (9th Circuit)

Claims brought under 28 U.S.C. § 1331 and the ATS for: war crimes; aiding and abetting extrajudicial killing in violation of the TVPA; cruel, inhuman, or degrading treatment or punishment or aiding and abetting same; wrongful death as defined in Illinois law; public nuisance; and RICO violations. All claims are based on Caterpillar’s sale of bulldozers to the Government of Israel which that government allegedly used to cause death or injury to the plaintiffs.

District court dismissed; as of 9/4/2007, Ninth Circuit decision pending. (Argued July 9, 2007.) USG filed amicus brief.

**UPDATE: 9/17/2007: "Because we agree that plaintiffs' claims present nonjusticiable political questions that deprive the district court of subject matter jurisdiction when construed under Federal Rule of Civil Procedure 12(b)(1), we do not reach the remaining questions presented under state, federal, and international law. Plaintiffs' action cannot proceed because its resolution would require the federal judiciary to ask and answer questions that are committed by the Constitution to the political branches of our government." Corrie v. Caterpillar, 2007 U.S. App. LEXIS 22133 (9th Cir. 2007).

7. Sarei v. Rio Tinto (9th Circuit)

Plaintiffs allege that Rio Tinto, acting in concert with the Papua New Guinea Government to build a mine, ordered the forceful removal of indigenous people, caused massive environmental destruction by way of highly toxic chemical contamination to surrounding land and river systems, poisoned the inhabitants, used slave labor to employ local residents and concealed relevant information upon investigation. Complaint alleges that Rio Tinto’s actions to maintain mine lead to a 10-year civil war between the PNG government (funded by Rio Tinto) and local people, who eventually forced the mine’s closure. Continued efforts to reopen mine by Rio Tinto, in concert with PNG, lead to a medical blockade and massive killings and torture of native people by PNG military with estimated deaths of 15,000 people.

District court dismissed, 9th Circuit panel reversed; 9th Cir. has granted rehearing en banc. Argument scheduled for 10/11/2007. USG filed SOI in district court; two amicus briefs in support of motions for rehearing and rehearing en banc. USG motion to participate in argument granted.

8. Yahoo! (9th Circuit)(still in N.D. Cal.)

Alleges that defendants helped the PRC censor and monitor internet users and provided PRC personal internet information, resulting in arbitrary detention, torture, etc.

As of 9/5/2007: Motion to dismiss filed by defendants 8/23/2007, awaiting plaintiff’s opposition due on 9/26/2007. USG response to court request for views due 10/26/2007.

9. Doe v. ExxonMobil (D.C. Circuit)(split between D.D.C. and Supreme Court)

Plaintiffs argue that defendants are liable for actions of the Indonesian soldiers taken in the course of protecting and a natural gas extraction pipeline, and thus violated the ATS, the TVPA, and state law.

Motion to dismiss ATS claims granted, but dismissal of state claims denied and case not stayed pending appeal (discovery proceeding); interlocutory appeal denied; cert petition filed July 20, 2007. USG filed letters in district court.

10. Dyncorp (D.C. Circuit)(still in D.D.C.)

Ecuadorian plaintiffs bring suit under ATS and TVPA alleging over-spraying of damaging chemicals by DynCorp in Ecuadorian provinces, across the border with Colombia, while implementing contract with United States and GOC to eradicate cocaine and heroin poppies in Colombia, causing damage to plaintiff’s health, land, water supplies, and economy. Order from Arias issued 5/21/2007 dismissing TVPA claims.

As of 9/6/2007: Both cases in D.D.C. Response to Arias complaint from DynCorp filed Aug. 29th. Consolidated complaint from Quinteros due September 28. DOS/INL declaration submitted by Dyncorp 11/27/2001.

11. Drummond (11th Circuit)(still in N.D. Al.)

Plaintiffs sued defendants under the ATS, TVPA, and state tort law for allegedly employing Colombian paramilitaries to eradicate union and union leaders at Drummond Ltd in the Cesar province in Colombia.

N.D. AL dismissed on 7/30/2007. Notice of appeal to 11th Circuit filed 9/10/2007. USG filed SOI in district court.