Saturday, October 25, 2008

Chevron Fights Lawsuit Filed by Nigerian Hostage Takers

SAN FRANCISCO, Calif., Oct. 24, 2008 – A lawsuit brought on behalf of Nigerian hostage takers against Chevron (Bowoto v. Chevron) is scheduled to begin trial on Oct. 27 in a San Francisco federal court before Judge Susan Illston. This is only the second ATS case to make it to the trial stage. Chevron's lawyers, Jones Day, will present evidence that shows the hostage takers put Chevron Nigeria Limited (CNL) employees and contractors in danger by holding them hostage on an oil platform.

Wednesday, October 1, 2008

01 October 2008: THE GLOBAL ISSUE: The Nine

"The American Lawyer"
Michael D. Goldhaber and Daphne Eviatar

Talisman in Sudan
Presbyterian Church of Sudan v. Talisman Energy Inc.
The presbyterian church filed a class action in 2001 on behalf of all Christian and non-Muslim residents of southern Sudan. It alleges that the Canadian oil company, Talisman, assisted Sudan in a campaign of genocide, crimes against humanity, and war crimes. These efforts included the displacement, torture, rape, and killing of civilians, and the burning of their churches and villages, in part to make way for oil exploration. A Talisman subsidiary owned a one-quarter interest in the Greater Nile Petroleum Operating Company between 1998 and 2003. It eventually sold that stake to India's Oil and Natural Gas Corporation Ltd.-Videsh Limited (ONGC). A federal district court judge in New York denied Talisman's motion to dismiss, concluding that the U.S. Supreme Court in Sosa v. Alvarez-Machain had contemplated the existence of corporate liability under international law; the U.S. Court of Appeals for the Second Circuit affirmed. But in September 2006, following discovery, district court judge Denise Cote granted summary judgment for Talisman-concluding that plaintiffs had failed to "locate admissible evidence that Talisman has violated international law." Plaintiffs have appealed to the Second Circuit. As the only alien tort appeal in a summary judgment posture, Talisman might be well-positioned for Supreme Court review.

Plaintiffs counsel: Berger & Montague; Lieff Cabraser Heimann & Bernstein. Defense counsel: Lovells; Clifford Chance.

Chevron in Nigeria
Bowoto v. Chevron Corporation
Four nigerian villagers and their families claim that in May 1998, Chevron aided the Nigerian military in an attack on an offshore oil platform that killed two protesters and injured several others. According to the plaintiffs, unarmed protesters were peacefully negotiating when they were shot and beaten by Nigerian soldiers. The federal case seeks compensation for the victims and their families. A parallel state case seeks injunctive relief to prevent future abuses.
After rejecting motions for dismissal and summary judgment, federal district court judge Susan Illston scheduled the case for trial in San Francisco on October 27.
In an August 2007 ruling, Judge Illston found evidence that Chevron's personnel "were directly involved" in the attack; they transported soldiers to the platform despite knowing that the soldiers were "prone to use excessive force." Illston dropped a claim of "crimes against humanity" but left in the case claims for torture and cruel, inhuman, or degrading treatment under international human rights law, as well as claims under California and Nigerian law for wrongful death and assault and battery. "Nearly everything is in dispute," says Robert Mittelstaedt of Jones Day, who is lead trial counsel.

Plaintiffs counsel: Center for Constitutional Rights; EarthRights International; Hadsell Stormer Keeny Richardson & Renick; Traber & Voorhees; Siegel & Yee; Schonbrun DeSimone Seplow Harris & Hoffman; Law Offices of Judith Brown Chomsky.
Defense counsel: Jones Day.

Occidental in South America
Mujica v. Occidental Petroleum Corporation; Shiguago v. Occidental Petroleum Corporation
Luis alberto galvis mujica, a Colombian villager, alleges that Occidental instigated and guided a 1998 Colombian military bombing on the village of Santo Domingo. The attack killed 17 civilians, including three of his relatives. He argues that the raid was designed to protect the company's nearby oil pipeline from attacks by FARC guerillas thought to be hiding in the village. A federal district court judge in Los Angeles dismissed the case in 2005, after the U.S. Department of State said that it would interfere with U.S. foreign relations. An appeal to the U.S. Court of Appeals for the Ninth Circuit has been frozen pending the outcome of the Ninth Circuit appeals in the parallel alien tort case of Sarei v. Rio Tinto. In its first Sarei ruling, the Ninth Circuit held that the State Department's view should not govern. That ruling-which the plaintiffs believe should revive Mujica-is now on review en banc. Esther Mamallacta Shiguago and other Ecuadorean villagers allege that Occidental is complicit in human rights violations inflicted by paramilitaries that guard the company's oil pipeline in Ecuador. By far the youngest case on this list, it had little chance to develop before being stayed pending the en banc appeal in Sarei.

Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Schonbrun DeSimone Seplow Harris & Hoffman (for Mujica).
Defense counsel: Munger, Tolles & Olson.

Shell in Nigeria
Wiwa v. Royal Dutch Petroleum Company; Kiobel v. Royal Dutch Petroleum Company
Wiwa centers on Nigeria's 1995 execution of activist/poet/Nobel Peace Prize nominee Ken Saro-Wiwa and eight others who campaigned against environmental damage caused by Royal Dutch Shell plc's drilling in the Niger Delta region of Ogoniland. According to plaintiffs, Shell and its Nigerian subsidiary provided monetary and logistical support to the Nigerian crackdown on Ogoni demonstrations, and bribed witnesses to produce false testimony. The case was initially dismissed by New York federal district court judge Kimba Wood under forum non conveniens. It was reinstated by the U.S. Court of Appeals for the Second Circuit in 2000-on the rationale that the strong federal interest in adjudicating the law of nations trumped considerations of convenience. This March, Judge Wood dismissed the claim against Shell's subsidiary for lack of jurisdiction; the plaintiffs' appeal is now being briefed. Kiobel is a separate, broader case arising out of Shell's activities in Nigeria. It alleges that Shell supplied ammunition, transit, and logistical support for the Nigerian military's "Operation Restore Order in Ogoniland." Judge Wood dismissed claims for summary execution by military tribunals-while allowing claims for torture; cruel, inhuman, degrading treatment; crimes against humanity; aiding and abetting; and arbitrary arrest. Both sides have appealed. Kiobel and Talisman will each give the Second Circuit a new opportunity to clarify the confused doctrine of aiding and abetting liability.

Plaintiffs counsel: Center for Constitutional Rights (Wiwa); EarthRights International (Wiwa); Law Offices of Judith Brown Chomsky (Wiwa); Berger & Montague (Kiobel); Schonbrun DeSimone Seplow Harris & Hoffman (Kiobel).
Defense counsel: Cravath, Swaine & Moore.

Exxon in Indonesia
Doe v. Exxon Mobil Corporation
Eleven villagers from the separatist Indonesian province of Aceh allege that, to protect its natural gas operations there, Exxon knowingly employed brutal military groups who beat, shot, and tortured them. These crimes violated both the alien tort statute and Washington, D.C., tort law. As in several other alien tort cases, the U.S. Department of State argued that the suit undermined U.S. foreign policy. In 2005 federal district court judge Louis Oberdorfer in Washington, D.C., dismissed the alien tort claims on a narrow reading of aiding and abetting liability-but declined to dismiss the whole case under the political question doctrine. Last year, the U.S. Court of Appeals for the D.C. Circuit refused to immediately review the question of justiciability. In June the U.S. Supreme Court denied certiorari. In August, Judge Oberdorfer rejected Exxon's motion for summary judgment, finding trialworthy evidence that Exxon's Indonesian subsidiary helped to manage military security, and that the parent exerted control over its subsidiary in such matters. The case is potentially cleared for trial next year on state tort law claims.

Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Public Citizen Litigation Group; Cohen, Milstein, Hausfeld & Toll.
Defense counsel: Willkie Farr & Gallagher; O'Melveny & Myers; Paul, Weiss, Rifkind, Wharton & Garrison.

Rio in Papua New Guinea
Sarei v. Rio Tinto plc
Plaintiffs allege that Rio Tinto despoiled the pristine rain forest environment of Bougainville, Papua New Guinea, while operating the world's largest copper mine during the 1980s. After the islanders revolted against the central government in Papua New Guinea in 1990, forcing the mine to close, plaintiffs allege that Rio supported a ten-year military blockade of food and medicine. These actions caused the deaths of more than 10,000 Bouganvilleans. The complaint cites crimes against humanity, war crimes, racial discrimination, torture, and violations of the United Nations Convention on the Law of the Sea. Rio Tinto has stated that the allegations are wholly false, malicious, and defamatory. In 2002 federal district court judge Margaret Morrow in Los Angeles dismissed the case under the political question doctrine. In 2006, an initial panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the case. The majority found that the district court judge had deferred unduly to the U.S. Department of State. The judges also rejected the need for a heightened pleading standard and, bucking precedent, contemplated recognition of certain environmental claims under the alien tort statute. Rio argued for reconsideration before an en banc panel of 11 Ninth Circuit justices in October 2007.
The political question may now be moot, because a new party came to power in Papua New Guinea, and withdrew its predecessor's objection to the litigation. The main remaining question is whether alien tort plaintiffs must exhaust all available legal options in their home forum before suing in the United States. Expect a close vote, a fractured opinion, and a certiorari petition by the loser.

Plaintiffs counsel: Hagens Berman Sobol Shapiro; Luvera, Barnett, Brindley, Beninger & Cunningham.
Defense counsel: Morrison & Foerster.

Drummond in Colombia
Romero v. Drummond Company, Inc.
A colombian labor union, and the families of three former union leaders, allege that Drummond hired paramilitaries to murder the three men in 2001, in order to intimidate the union. (Drummond is a family-owned Alabama company that operates coal mines in Colombia.)
In July 2007-in the first corporate alien tort case to be tried to completion-a federal jury in Birmingham exonerated Drummond of liability for war crimes under international customary law. An appeal to the U.S. Court of Appeals for the Eleventh Circuit has been filed by plaintiffs lawyer Terry Collingsworth. He is a partner in the Washington, D.C., office of Florida-based Conrad & Scherer and executive director of the nonprofit International Rights Advocates. Collingsworth says that the district court judge did not give him enough time, under international evidence-gathering rules, to obtain testimony from a witness in a Colombian prison who, according to Collingsworth, witnessed a senior Drummond executive pay a paramilitary representative for two of the murders. Collingsworth will also ask the court to note that a second key witness is newly available as a result of being extradited to the U.S. Plaintiffs think that a new trial is in order. Lead defense counsel William Jeffress, Jr., of Baker Botts responds that these witnesses' testimony is not credible, and that a trial cannot be postponed indefinitely until a witness becomes available. Jeffress argues that the difficulty of gathering foreign evidence is but another reason for not trying these cases in U.S. court. Oral argument is set for October 9.

Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Wiggins, Childs, Quinn & Pantazis.
Defense counsel: Baker Botts.

Wednesday, September 24, 2008

24 September 2008

Still Waiting for the Ninth Circuit En Banc Decision

Sarei v. Rio Tinto, PLC, 02-56256 / 02-56390

Subject Matter: Appeal of the district court’s dismissal of a class action complaint brought by current and former residents of the island of Bougainville in Papua New Guinea against a mining company under the Alien Tort Claims Act.

Three-Judge Panel Opinion: 487 F.3d 1193 (9th Cir. 2007)
Order Taking Case En Banc: 499 F.3d 923 (9th Cir. 2007)
Date of Order Taking Case En Banc: August 20, 2007
Status: Argued and submitted October 11, 2007
Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta.

Holding: Not yet decided.Petition For Rehearing En Banc:

Friday, April 4, 2008

04 April 2008

Revolutionary look at the ATS...

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, “it made hardly any changes to the provisions on aliens, including what became the ATS.” The Court did not point out any of these changes, but did comment that, because of the “poverty of drafting history” modern commentators have been forced to concentrate on the text of the ATS itself. Commentators have remarked on the innovative use of the word “tort” and the mixture of expansive and restrictive terms, “but despite considerable scholarly attention,” Justice Souter continued, “it is fair to say that a consensus understanding of what Congress intended has proven elusive.”

Jurists and commentators have also addressed the words “cognizance” and “sues,” and articles considering the ATS in light of Article III speculate about the type of cases the First Federal Congress might have had in mind when it used the phrase “tort only in violation of the law of nations.” But until now, the word that puts the “A” in ATS has been completely overlooked. No court or commentator has looked to the 1789 meaning of “alien,” or to the drafters’ understanding of, and possible intentions behind, that word.

When Justice Souter pointed out in Sosa that the first House made hardly any changes when it modified the Senate’s draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction “of all causes where a foreigner sues for a tort only in violation of the law of nations….” The house retained that sentence, except for changing “a foreigner” to “an alien”. The word “alien” did not appear in this part of the bill until the House put it there. This was not mere happenstance.

In 1789 relevant legislators and writers acknowledged a difference between the terms alien and foreigner. This paper details the changes made from Oliver Ellsworth’s initial handwritten draft of the first judiciary bill to the final product: the Judiciary Act of 1789. Defining “alien” and “foreigner” and related words using legal, international, and general lexicons available to the First Federal Congress (many of which have not been written about in this context), this paper details an understanding of the terms as used in relevant historical writings, and introduces the ramifications and possible reasons for the change from “foreigner” to “alien” in the judicial bill. I conclude that the Senate’s original intent was to make the ATS available to all persons born outside the United States, but because Congress narrowed the scope in the Judiciary Act of 1789 and later interpretations, the ATS should only be available to plaintiffs who are foreign-born residents of the United States.

((alien tort statute, ats, claims act, atca, ata, atc, legal history, first impression))

Link to Article: "Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute"

Thursday, March 27, 2008

12 March 2008

Bowoto v. Chevron

US District Court for the Northern District of California

Nigerian villagers who are suing Chevron (for the last 9 years!) moved to withdraw half of their claims that the oil company was responsible for military attacks on protesters in the late 1990s.

Without any explanation--even to the judge during a later CMC--Ps' lawyers asked Judge Illston to dismiss claims by 25 Nigerians re: a January 1999 attack on villages near oil facilities in the Niger Delta where residents had violently protested against Chevron.

In their lawsuit, the plaintiffs had alleged that Nigerian troops--using a helicopter and boats supplied by Chevron--killed at least four unarmed people and burned two villages to the ground. Chevron had previously asserted that the dismissed claims were fraudulent, and now they're mysteriously gone...

See "Nigerians pull half of claims in Chevron suit" in the SF Chronicle, by Bob Egelko, Chronicle Staff Writer, Wednesday, March 12, 2008.

This article also says Ps lawyers claim the dismissed claims "are still part of a separate lawsuit in San Francisco Superior Court that is scheduled for trial in August."

In a later discussion with two of Ps counsel (Marco Simmons and Rick Hertz), they confirmed this, and claimed that although they had to dismiss these Ps because of a "conflict of interest," they'll certainly use the instances in the State proceedings in an effort to show that Chevron conducted a pattern of illegal actions in Nigeria--by using military police to suppress protests and increase oil profits.

11 March 2008

Ruiz v. Martinez, 2008 U.S. App. LEXIS 5289, 1-2 (5th Cir. 2008)


In holding that plaintiff abandoned any challenge to the district court's dismissal of his ATS claim by failing to raise the issue in his brief, the court affirmed the district court's judgment, and... denied Ps motions for a temporary restraining order (stay of deportation), a transfer or relocation to another facility, and a picture of the district court judge.

1 February 2008

Haji Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008)


In an addendum, the court regurgitated Judge Randolph's concurrance in Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir. 2003):

"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255 (D.C. Cir. 2003). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The detainees therefore rely on the waiver provision in the Administrative Procedure Act, 5 U.S.C. § 702, which states: "An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity . . . shall not be dismissed . . . on the ground that it is against the United States. . . ."

Although relying on the APA's waiver for agencies, the detainees do not identify which "agency" of the United States they have in mind. They have sued the President in each case, but the President is not an "agency" under the APA and the waiver of sovereign immunity thus does not apply to him. See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This leaves the military. The APA specifically excludes from its definition of "agency" certain functions, among which is "military authority exercised in the field in time of war or in occupied territory." 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see id. §§ 553(a)(1) & 554(a)(4), exempting military "functions" from the APA's requirements for rulemaking and adjudication; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968) (Friendly, J.).

The district court ruled, in an alternative holding, that because of the military function exclusion, the APA does not waive sovereign immunity. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). I believe this is correct. Each of the detainees, according to their pleadings, was taken into custody by American armed forces "in the field in time of war." I believe they remain in custody "in the field in time of war."

It is of no moment that they are now thousands of miles from Afghanistan. Their detention is for a purpose relating to ongoing military operations and they are being held at a military base outside the sovereign territory of the United States. The historical meaning of "in the field" was not restricted to the field of battle. It applied as well to "organized camps stationed in remote places where civil courts did not exist," Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 274 (1960) (Whittaker, J., joined by Stewart, J., concurring in part and dissenting in part). To allow judicial inquiry into military decisions after those captured have been moved to a "safe" location would interfere with military functions in a manner the APA's exclusion meant to forbid. We acknowledged as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir. 1991), when then-Judge Ruth Bader Ginsburg stated for the court that the APA's military function exclusion applied to cases in which a court was asked to "review military commands made . . . in the aftermath of [] battle." It is also of no moment that the detainees were captured without Congress having declared war against any foreign state. "Time of war," as the APA uses it, is not so confined. The military actions ordered by the President, with the approval of Congress, are continuing; those military actions are part of the war against the al Qaeda terrorist network; and those actions constitute "war," not necessarily as the Constitution uses the word, but as the APA uses it. See Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concurring in the judgment); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not to contest this point. To hold that it is not "war" in the APA sense when the United States commits its armed forces into combat without a formal congressional declaration of war would potentially thrust the judiciary into reviewing military decision-making in places and times the APA excluded from its coverage."

22 February 2008

Rodriguez Licea v. Curacao Drydock Co., 2008 U.S. Dist. LEXIS 13294 (D. Fla. 2008)


Plaintiffs' principal claims are that the Defendant and its government agents and co-conspirators violated the laws of nations by trafficking Ps from Cuba to Curacao and by holding them and forcing them to work there. The main thrust of their action comes under the ATS and federal RICO laws. The only issue before this court was Defendant's motion to dismiss for forum non conveniens.

In declining to dismiss the action, the court said:

"Further, any interest that a forum in Curacao may have is countered by the public interest factors this jurisdiction has in the matter. This case concerns alleged violations of international human rights norms of concern to all nations and that the Alien Tort Statute empowered this Court to address. It concerns an alleged act of international trafficking. It concerns the human rights of people who have been Cuban citizens, an issue of concern to many members of this community. It concerns the foreign policy interests of the United States as expressed in the Cuban Democracy Act of 1992, and the interests of Congress expressed in the RICO statute. All these public interest factors militate in favor of this Court's retention of this matter."

Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co.


Where Vietnamese nationals alleged that manufacturers were liable for violating international law norms prohibiting the use of poisoned weapons and infliction of unnecessary suffering, ATS claims failed because international norms did not prohibit use of materials that were only secondarily, and not intentionally, harmful to humans.

Friday, February 15, 2008

15 February 2008

American Isuzu Motors Inc. et al. v. Lungisile Ntsebeza, 07-919 (aka Khulumani v. Barclay Nat'l Bank Ltd., 509 F.3d 148 (2d Cir. 2007)--up for cert)

((see entry (below) for January 16, 2008))

WASHINGTON (AP) — Justice Department urges Supreme Court to stop lawsuit alleging companies aided apartheid

In a rare move, the Justice Department's Solicitor General Paul D. Clement urged the Supreme Court on Monday to reverse an October 2007 appeals court decision that allowed the apartheid suits to proceed. The ruling, by the 2nd U.S. Circuit Court of Appeals, "allows an unprecedented and sprawling lawsuit to move forward and represents a dramatic expansion of U.S. law," Clement wrote.

Business groups are concerned that the appeals court's decision expands the reach of the ATS, because it held companies could be held liable for "aiding and abetting" international law violations, in addition to actually committing them.

The case raises questions about how the United States deals with countries that abuse human rights. The government's brief argues that in some cases, such as apartheid-era South Africa, the United States may impose targeted sanctions while still allowing commerce in order to encourage reform. "Such policies would be greatly undermined" if corporations that subsequently do business in those countries are sued under the ATS, the Justice Department said.

Paul Hoffman, the lead attorney for some of the plaintiffs, said he will argue in a brief to the Supreme Court next month that it is too early in the litigation for the justices to weigh in. The lower court rulings have only addressed the question of whether to dismiss the suit. If the case is allowed to proceed, Hoffman said he will file a narrower complaint that will draw closer connections between the actions of the companies and the South African victims. That complaint will also likely name fewer companies, he said.

South Africa's government has repeatedly criticized the litigation as an infringement on its sovereignty, the Justice Department's brief said, and has asked U.S. courts to dismiss the case.
The court won't decide whether to take the case until late April at the earliest, and if it agrees to do so, oral arguments will take place during the court's next term, which begins in October.

For the complete article:

To see the Gov't full argument:

Tuesday, February 5, 2008

5 February 2008

Bismullah v. Gates, 2008 WL 269001 (C.A.D.C.) (DC Cir. Feb. 1, 2008)

"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C.Cir.1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207;see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980)."

Torrez v. Correctional Corp. of America (CV 07-1551-PHX-SMM, D. Ariz., 2008)

The only thing interesting in this United States District Court, D. Arizona, opinion is when the court asserts: "[T]he statute of limitation for ATS claims is 10 years."

Wednesday, January 23, 2008

15 January 2008

Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (January 15, 2008).
The United States District Court for the Northern District of Illinois vacated its June 27, 2006 holding that Nigerian plaintiffs satisfied their "burden of proving that Nigeria did not and does not provide them an adequate forum for their [ATS and TVPA] lawsuit."

In vacating this two year old decision, the court agreed to do so mainly because Nigeria agreed to settle (undisclosed amount) with plaintiffs on the condition that the earlier holding be vacated. The court noted "that its determination to vacate the decision does not arise from, and should not be considered to reflect, any question or hesitation about the accuracy of the [June 27, 2006] decision."

Because the earlier decision continues to be available on Westlaw and Lexis, "the Court cannot control what weight other parties and judges may put on the decision in the future, and nothing we are doing here can, in a practical way, detract from whatever persuasive force the decision might be considered by others to have."

Wednesday, January 16, 2008

Late last year...

Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2d Cir. 2007).

(Reuters - 10/12/2007) - The U.S. Court of Appeals for the Second Circuit allowed claims brought by victims of apartheid against dozens of major companies to go forward, saying a lower court erred in ruling it did not have jurisdiction over the matter (The corporations named in the suits include oil companies such as BP Plc and Exxon Mobil Corp, banks such as Citigroup, Deutsche Bank AG and UBS AG, as well as other multinationals like IBM, General Motors and Ford Motor Co.).

The court vacated an order by U.S. District Judge John Sprizzo that had dismissed claims brought under the ATS by the plaintiffs, who argued that the companies collaborated with the government of South Africa in maintaining apartheid.

But, "The district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for [ATS] jurisdiction," the court ruled. "We hold that in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the [ATS]."

Two of the three judges in the appellate panel -- Robert Katzmann and Peter Hall -- filed separate concurring opinions. The third, Edward Korman, concurred in part but disagreed with the judgment reversing the dismissal.

In his dissenting opinion, Judge Korman wrote that the majority allowed the case to go forward "over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, which is justifiably proud of the ability of its legal system to adjudicate legitimate human rights claims."

The appeals court did uphold the dismissal of claims made under the Torture Victim Protection Act. A group of plaintiffs had alleged the defendants aided and abetted the apartheid regime's use of torture and extrajudicial killing against the plaintiffs.
"Absent any link between certain multinational corporations which did business in South Africa during period when apartheid was practiced in that country, and state aid or the conduct of state officials, allegations, in action on behalf of individuals allegedly damaged by the practice of apartheid in South Africa, that those corporations aided and abetted regime which committed torture and extrajudicial killing, failed to state claim under [TVPA]; TVPA did not create liability for private actors not acting under color of law."

Sunday, January 13, 2008

11 January 2008

Rasul v. Myers, --- F.3d ----, 2008 WL 108731 (DC Cir. January 11, 2008).

Appellants Rasul, et al (plaintiffs or detainees) sued former Secretary of Defense Donald Rumsfeld and defendant military officers (defendants) under the ATS, the Geneva Conventions, the Fifth and Eighth Amendments to the US Constitution and the Religious Freedom Restoration Act (RFRA), seeking damages for their alleged illegal detention and torture at Gitmo.

The defendants argued in district court that the ATS and Geneva Conventions claims were barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act (which makes the FTCA remedy “exclusive of any other civil action or proceeding for money damages” for any tort committed by a federal official or employee “while acting within the scope of his office or employment”)) and that they were entitled to qualified immunity on the constitutional and RFRA claims.The district court agreed that the FTCA provided the exclusive remedy for the defendants' allegedly tortious conduct and thus granted the defendants' motion to dismiss the ATS and Geneva Conventions claims. Rasul v. Rumsfeld, 414 F.Supp.2d 26, 30-36 (D.D.C.2006).

For the reasons set forth in the opinion, the circuit court affirmed the district court's dismissal of the ATS, Geneva Conventions and constitutional claims (and reversed its denial of the motion to dismiss the RFRA claim).

10 January 2008

Simpson v. Socialist People's Libyan Arab Jamahiriya, --- F.Supp.2d ----, 2008 WL 90238 (D.D.C. January 10, 2008).

In abandoning plaintiff's reliance on the FSIA, the Flatow Amendment, and D.C. common-law and the D.C. Code, the plaintiff essentially concedes that her second amended complaint fails to identify a specific basis in law for her claims. Her request for leave to file a third amended complaint thus attempts to stave off dismissal by dangling before the court the prospect of her finding and ultimately pleading an appropriate basis under the ATS or Pennsylvania law for her claims.

As regards the ATS, that prospect is vanishingly remote. The defendant rightly points out that the plaintiff has had “ample opportunity to research international causes of action” since the Supreme Court ruled in Sosa that the ATS provides no independent cause of action. The plaintiff's demand that she “will need to review the list of international sources of law with an eye to the reduction to the minimal number necessary to sustain a cognizable claim” strikes the court as a dilatory, vague, and indifferent response to the opportunity given two years ago to file a properly amended complaint. In failing to file a proposed amendment and, thereby, violating Local Civil Rule 15. 1, the plaintiff denied the court any notion of what law she proposes to identify in an amendment. In changing her position in the middle of briefing, the plaintiff reveals a lack of preparation and conscientiousness to legal arguments betokening bad faith. And in squandering her prior chance to amend her complaint, the plaintiff demonstrates that granting an additional opportunity to amend would be futile. Because of these deficiencies, the court denies leave to amend the ATS claims and dismisses them.

Tuesday, January 8, 2008

28 November 2008

Bowoto v. Chevron Corp., 2007 U.S. Dist. LEXIS 90296

On August 13, 2007, District Court Judge Susan Illston issued an order reinstating claims brought by plaintiffs under the ATS against defendants. Order 1636 reconsidered the Court's earlier decision, issued August 22, 2006 (hereinafter "Order 1203"), holding that plaintiffs could not bring ATS claims requiring state action against private actors. Order 1636, by contrast, held that aiders and abettors may be vicariously liable for acts they could not have committed as a principal. Because the Court previously had held that aiding and abetting liability is available under the ATS, see Order 1203, the Court held that plaintiffs could bring ATS claims requiring state action against private actors, such as defendants, even if they could not be liable as principals for the same ATS claims (huh?). The Court relied on, inter alia, various criminal cases discussing aiding and abetting liability, the Restatement (Second) of Torts, policy considerations, cases discussing aiding and abetting in the context of the Torture Victims Protection Act ("TVPA") and 42 U.S.C. § 1983, and the Ninth Circuit's recent decision in Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) (which has been reheard en banc and Federal Courts directed NOT to cite). The Court DENIED defendants' motion for leave to file a motion for reconsideration [Docket No. 1649]., and GRANTED in part and DENIED in part plaintiffs' motion for leave to file a Ninth Amended Complaint [Docket No. 1651].

13 November 2007

Carrizosa v. Chiquita Brands Int'l, Inc., 2007 U.S. Dist. LEXIS 84308

On June 13, 2007, Plaintiffs Carrizosa et al. filed a four-count complaint against Defendants Chiquita Brands International, Inc. alleging two counts under the federal Alien Tort Statute and two counts under Florida tort law.

Defendants asked Judge Ken Marra of the UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA to transfer this case to the District of Columbia. The crux of Defendants' argument was that the "interests of justice" would be served by transfer, because another "substantially similar" action is pending before that court. Because the two cases will raise similar legal and factual questions, Defendants asserted that both cases should be argued before the same court.

Plaintiffs responded that the cases are not sufficiently similar to warrant transfer to another district and that the Plaintiffs' choice of forum should not be disturbed because Defendants have not demonstrated any substantial justification for the change of venue. Judge Marra agreed, and denied D's motion.