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."

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."

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.

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.