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.