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."