Monday, December 14, 2009

Supreme Court Refuses to Hear Suit Seeking Accountability for Guantanamo Torture
NEW YORK - December 14 -

Today, the United States Supreme Court refused to review a lower court's dismissal of a case brought by four British former detainees against Donald Rumsfeld and senior military officers for ordering torture and religious abuse at Guantánamo. The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004.

The Obama administration had asked the court not to hear the case. By refusing to hear the case, the Court let stand an earlier opinion by the D.C. Circuit Court which found that the Religious Freedom Restoration Act, a statute that applies by its terms to all "persons" did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law. The lower court also dismissed the detainees' claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military's detention of suspected enemy combatants." Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.

Eric Lewis, a partner in Washington, D.C.'s Baach Robinson & Lewis, lead attorney for the detainees, said, "It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not. Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days' work for the Secretary of Defense and senior generals. That violates the President's stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss."

The four former detainees - Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith - were held from 2002 to 2004 at Guantánamo before being sent home to England without being charged with any offense. They filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violations of their constitutional rights and of the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person. Their claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as "persons" for purposes of the Religious Freedom Restoration Act.

Last year, the Supreme Court granted the men's first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court's historic decision in Boumediene v. Bush, which held that Guantánamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.

On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not "persons" protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.

A second petition filed with the Court on August 24, 2009 pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court's recent precedent on Guantánamo and attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned.

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, said, "We are disappointed that the Supreme Court has refused to hold Secretary Rumsfeld and the chain of civilian and military command accountable for torture at Guantánamo, and that the Obama administration sought to block torture victims from having their day in court. Where can these men seek justice now for the terrible things that were done to them? The entire world recognizes that torture and religious humiliation are never permissible tools for a government, yet our highest court seems to think otherwise."

CCR has led the legal battle over Guantanamo for the last seven years - sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA "ghost detainee" there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at the base, ensuring that nearly all have the option of legal representation, and is representing detainees at Guantánamo before the Supreme Court for the third time this term. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Friday, December 11, 2009

Liberian torture victims seeking damages to face ex-President Taylor's son in Fla. courtroom
CURT ANDERSON - AP Legal Affairs Writer
10:45 a.m. EST, December 10, 2009 MIAMI

(AP) Five Africans who claim they were tortured and abused in Liberia when former President Charles Taylor ruled will come to a U.S. courtroom next week seeking millions of dollars from the man they say ordered the atrocities: Taylor's son, Charles McArthur Emmanuel.

Emmanuel, also known as Charles "Chuckie" Taylor Jr., was convicted in federal court in Miami last year of violating U.S. anti-torture laws as a high-level enforcer for his father. He is serving a 97-year prison sentence. The five Liberian victims filed a lawsuit against him earlier this year, winning a default judgment in May that leaves only the question of damages for a trial that begins Monday. "No amount of money could ever undo the wrongs Taylor Jr. committed or fully restore the lives he destroyed," said Piper Hendricks, an attorney for Human Rights USA who represents the victims. " More!

Thursday, December 3, 2009

U.S. Statement of Interest in Apartheid Reparation Claims under the Alien Tort Statute
Apartheid class suit going ahead

Thousands in the Eastern Cape have come forward as complainants in a multi-billion dollar class action lawsuit against some of South Africa’s top international firms, writes Asa Sokopo.

The firms, which include Mercedes-Benz (Daimler), IBM, General Motors and Ford, will soon be taken to task for their alleged role in aiding the apartheid regime.

Ten thousand people in the Eastern Cape and thousands more around the country have cleared their final hurdle in one of the biggest lawsuits in the country.

This has been followed by the US government’s call on Tuesday for the dismissal of an appeal by the firms.

Lead attorney John Ngcebetsha of Ngcebetsha Madlanga attorneys told the Daily Dispatch that this was due to a recent letter written by Justice Minister Jeff Radebe for the cases to be settled out of court.

In April, a landmark ruling in a United States court gave advocate Dumisa Ntsebeza and his legal team the right to sue multinational corporations that knowingly “aided and abetted” the apartheid government.

MBSA is accused of supplying apartheid forces with armoured Unimog military vehicles, which were used to suppress public meetings and marches in the country.

GM and Ford are also accused of “aiding and abetting torture … extrajudicial killing and apartheid”.

IBM is accused of providing technology used by the apartheid regime in displacing South Africans to Bantustans.

While Ngcebetsha said that it was impossible to give an exact figure on the lawsuit, it is expected to be worth billions of dollars.

Ngcebetsha also said that the Congress of South African Trade Unions (Cosatu), through its general secretary Zwelinzima Vavi, and the Council of Churches(SACC) have also showed their support.

MBSA spokesperson Madelaine van Wyk said that Daimler never cooperated with the South African security forces for the perpetuation of apartheid.

“At numerous times Daimler’s management publicly expressed its opposition to apartheid, including the head of MBSA at that time, Jürgen Schrempp, in the immediate presence of representatives of the apartheid regime.

In 1999, Nelson Mandela awarded Mr Schrempp South Africa’s highest civilian medal, the Order of Good Hope, in recognition of his involvement in South Africa,” she said.

The class action lawsuit was brought in 2001 by Ntsebeza, with University of Cape Town sociology professor Lungisile Ntsebeza as lead plaintiff, under America’s Alien Tort Statute, which allows foreigners to bring human rights claims in American courts.

Claims were initially dismissed in 2004 by US district judge John Sprizzo but the class action suit was reinstated on April 8, by Southern District of New York Judge Shira Scheindlin.

The case will be heard on January 6.

Tuesday, November 24, 2009

Iraq dealings still plaguing oilman Wyatt
By Alexander Besant - Hearst Washington Bureau

WASHINGTON — An attorney for Texas oil mogul Oscar Wyatt said Friday that a pending lawsuit accusing Wyatt of indirectly funding Hamas terrorists could have wide-ranging ramifications for the U.S. oil industry.

Wyatt, who was released from prison last year after serving a year for his role in an oil-for-food scandal that rocked the United Nations, now is facing a lawsuit from more than 50 Israeli citizens. They claim that bribes Wyatt paid to former Iraqi President Saddam Hussein’s government make him liable for the deaths or injuries of their family members who fell victim to Hamas suicide bombings.

“If buying oil from Iraq makes you an accomplice in terrorism, then we’re all in a world of hurt,” said Carl Parker of Port Arthur, Wyatt’s lawyer, who for many years was a state senator.
“If my clients are stuck, then all oil companies in the United States are stuck,” Parker said.
The case was moved this week from U.S. District Court in Washington to Houston, where the transactions took place.

The case is being brought against Wyatt under the Alien Tort Claims Act of 1789, which allows foreign citizens to have their cases heard in U.S. courts.

The plaintiffs are asking for $1 billion in damages from Wyatt and his company, NuCoastal Corp., claiming he was aware such money was used as a “financial reward and incitement program which rewarded the families of martyrs and suicide bombers in an effort to incentivize acts of terrorism.”

Wyatt’s troubles with the law began in 2004, when he was named by the CIA for having been awarded vouchers by the Iraqi government to secure lucrative oil contracts.

In 2007, the Texas businessman pleaded guilty for paying kickbacks to Iraq under the oil-for-food program, which was shut down in 2003 after revelations of collusion between oil companies, U.N. officials and the Iraqi government came to light.

Sunday, November 15, 2009

U.S. Court Allows Human Rights Suit Against former Bolivian President and Defense Minister to Proceed

Washington, D.C. 15 November (
The U.S. District Court in the Southern District of Florida ruled November 9 that the claims for crimes against humanity and extrajudicial killings could move forward in two related U.S. cases against former Bolivian president and former Bolivian defense minister.
The court allowed the case to proceed under the Alien Tort Statute, a U.S. federal legislation.
Judge Adalberto Jordan ruled that Bolivian plaintiffs have viable claims against former president Sánchez de Lozada and former defense minister Sánchez Berzaín. Each of these plaintiffs has brought claims on behalf of a deceased relative who was targeted by forces under the defendants’ command.

“The decision is a great victory for the plaintiffs, whose family members were shot—targeted by Bolivian security forces commanded by the defendants,” said Judith Brown Chomsky, a cooperating attorney for the Center for Constitutional Rights (CCR). “This judgment reaffirms that U.S. courts can hear actions brought against those who abuse human rights.”
The complaints allege that in September and October 2003, Sánchez de Lozada and Sánchez Berzaín ordered Bolivian security forces to use deadly force, including high-powered rifles and machine guns, to suppress popular protests against government policies by targeting unarmed civilians in the indigenous Aymara community.

“This decision is a reminder that foreign heads of state cannot act with impunity,” said James Cavallaro, the Executive Director of the Human Rights Program at Harvard Law School and a Clinical Professor of Law. “It’s a powerful example of how international law is making it harder for those who violate human rights to escape accountability simply by fleeing to another country.”

On October 17, 2003, both Sánchez de Lozada and Sánchez Berzaín fled to the United States. The complaints were filed in September 2007.

There was no explanation if both of them have legal permanent status to reside in the United States or if a U.S. court could exercise jurisdiction over anyone who has alleged to have committed atrocities and human rights violations in their home countries while being on American soil.

The Florida court’s action seems to give a judicial explanation under the Alien Tort Statute that they could be prosecuted for such alleged crimes even if they do not have legal resident status.
The U.S. government agencies such as the Department of Homeland Security, under many federal laws, has direct jurisdiction over naturalized citizens or Green Card Holders for their alleged atrocities and human rights violations committed in their home countries during internal disturbances.

“Six years after directing security forces to target Bolivian civilians, Sánchez de Lozada and Sánchez Berzaín move one step closer to having to answer for their actions in a court of law,” said Jeremy Bollinger, an attorney with Akin Gump Strauss Hauer & Feld.
The cases, Mamani, et al. v. Sánchez Berzaín, and Mamani, et al. v. Sánchez de Lozada, seek compensatory and punitive damages under the Alien Tort Statute (ATS).

If U.S. authorities intend targeting to prosecute in the judicial system of any alien who in their understanding has committed atrocities and human rights violations in their home countries this Florida court order to proceed with the Bolivian president and defense minister clearly indicates that such an action can only be avoided by keeping away from the American soil.

Wednesday, November 11, 2009

Baker Botts Beats Back Alien Tort Suits Against Drummond (Again)
By Andrew Longstreth

Two years ago Baker Botts partner William Jeffress won a defense verdict for coal mining company Drummond in what was believed to be the first Alien Tort Claims Act case to go to trial. Despite the verdict--which was later upheld by the U.S. Court of Appeals for the Eleventh Circuit--Drummond is still facing litigation over the 2001 murder of three union leaders at a Colombian mine.But the plaintiffs suing Drummond haven't gotten very far. On Monday, Birmingham federal district court judge R. David Proctor dismissed a suit brought by the children of the murdered union leaders, whose complaint included new allegations surrounding the killings. Judge Proctor found that some of the plaintiffs were barred from the new case because their claims were already decided in Drummond's previous Alien Tort Statute trial. And the remaining plaintiffs, he ruled, lacked standing because the ATS does not permit children of victims to seek damages for themselves.The judge did not dismiss a related suit brought by relatives of victims of violence in Columbia. But he didn't let the case proceed, either. Judge Proctor ruled that the plaintiffs' claims were insufficient as pled, but he gave them leave to try again.

Plaintiffs counsel Terry Collingsworth of Conrad & Scherer told The Birmingham News that he would amend the relatives' complaint to satisfy Judge Proctor. "We are going to provide the new level of detail the court requires," he said. He also said he would consider appealing the dismissal of the suit brought by the slain union leaders' children.Collingsworth, who's one of the best-known Alien Tort plaintiffs lawyers in the country, lost an important Eleventh Circuit appeal of ATS claims against Coca-Cola and its bottlers in August. (Here's the report on that ruling.) Drummond defense counsel Jeffress told us the Eleventh Circuit's ruling helped Drummond in the cases before Judge Proctor.

Monday, November 2, 2009

Supreme Court Asks Solicitor General to Opine in Pfizer Alien Torts Case; Pfizer Brings Quinn Emanuel on Board - By Alison Frankel

November 02, 2009

With corporate America itching for the U.S. Supreme Court to reign in use of the Alien Torts Statute for suits alleging overseas wrongdoing, the case that may redefine the parameters of the ATS is shaping up as a battle of ex-Harvard Law professors. On Monday the Court asked U.S. Solicitor General Elena Kagan (the former Harvard dean) to weigh in on Pfizer Inc v. Rabi Abdullahi, in which the U.S. Court of Appeals for the Second Circuit revived the claims of Nigerians who allege they were grievously harmed when they were administered a Pfizer meningitis drug in a government-approved clinical trial. (Here's the Second Circuit ruling)


Wednesday, October 21, 2009

Sarei v. Rio Tinto UPDATE:

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

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

En Banc Order: 550 F.3d 822 (9th Cir. 2008)

Date of En Banc Order: December 16, 2008

Status: Remand for consideration, in the first instance, of whether exhaustion of local remedies was required, in dismissal of Alien Tort Statute ("ATS") action.

On 9/29/09 the en banc court granted defendants' motion to reactivate the appeals, and ordered supplemental briefing. Oral argument to be scheduled by separate order.

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

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.

Holding: Certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.

Petition for rehearing en banc

Friday, October 16, 2009

Not an ATS case - but lesson here for ATS defense counsel... don't get greedy!

Dole withdraws lawsuit against Swedish filmmaker
Associated Press
7:45 AM PDT, October 15, 2009

STOCKHOLM -- Dole Foods is withdrawing a defamation lawsuit against a Swedish filmmaker after complaints in Sweden that it was trying to limit free speech, the company said Thursday.Dole had sued filmmaker Fredrik Gertten for showing the documentary "Bananas!" despite a court ruling that the case on which the film was based had been part of a massive extortion plot against the company.The documentary shows the alleged plight of Nicaraguan workers who say they were made sterile by a pesticide used at Dole banana plantations in the 1970s.

Dole's lawsuit sparked protests in Sweden, where critics said the food company was trying to interfere with the freedom of speech.In a statement, Dole said it decided to withdraw the lawsuit "in light of the free speech concerns being expressed in Sweden, although it continues to believe in the merits of its case.""While the filmmakers continue to show a film that is fundamentally flawed and contains many false statements we look forward to an open discussion with the filmmakers regarding the content of the film," Dole's Executive Vice President and General Counsel, C. Michael Carter said.The film was completed before a California judge dismissed two cases against Dole, saying the workers were recruited by a lawyer to lie.

That ruling has been appealed.The film was shown twice at the Los Angeles Film Festival in June with a lengthy written disclaimer by organizers who said it did not present a fair and accurate account but was worth showing as "a case study" of what happens when a story changes after a documentary is completed. It has been show at cinemas in Sweden since Oct. 9.Gertten told reporters in Stockholm he was very happy about Dole's decision and hoped the film can now continue to be screened in the U.S. and Canada."We have cut a very balanced film, we haven't done a propaganda story," he said.

"Really we did everything right."He was supported by two Swedish lawmakers and the Swedish minister for culture, Lena Adelsohn Liljeroth who said Thursday that Dole made a "wise" decision in withdrawing the lawsuit.Earlier this week Swedish food chain ICA -- a Dole customer -- held a meeting with the company saying it felt the filmmaker had the right to express his side of the story."We met their European division and ... put forward our view on the matter," ICA's fruit and vegetables chief Lars Astrom told The Associated Press. "We said we thought they should withdraw the lawsuit and asked them to get back to us, and now they have done that."

Copyright © 2009, The Los Angeles Times
Fraud by Trial Lawyers Taints Wave of Pesticide Lawsuits:

CHINANDEGA, Nicaragua -- After responding to a radio commercial seeking former banana-plantation workers for a lawsuit against Dole Food Co., Marcos Sergio Medrano thought he might be entitled to some money. He says an American law firm convinced him that a pesticide used on the Dole-operated banana plantation where he had worked years ago had made him sterile.
Lawyers for the 49-year-old peasant produced tests that purported to prove it. But DNA testing by Dole revealed that he had fathered three children -- something Mr. Medrano says was news to him. "I don't feel good about this," he says now. "I feel I was involved in foul play."

Mr. Medrano is part of the sorry fallout from a group of U.S. personal-injury and other lawyers who descended on this small, impoverished city, seeking to recruit thousands of clients and earn up to 40% of any awards. Emboldened by a developing-world legal system that heavily favored plaintiffs, they filed an avalanche of lawsuits here against California-based Dole and eventually won $2.1 billion in local judgments... more...

Wednesday, October 14, 2009

The Supreme has not yet decided whether to grant cert for Pfizer Inc. v. Abdullahi et al. On October 7 the justices received a Supplemental brief of petitioner Pfizer Inc., and on October 13 papers were again DISTRIBUTED for Conference of October 19, 2009. This may have something to do with the Second Circuit's recent decision in Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016.

Sunday, October 4, 2009

Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016
October 2, 2009

In an action alleging that defendant participated in the Sudan government's violations of international law through genocide, war crimes, and crimes against humanity, the dismissal of the complaint is affirmed where plaintiffs failed to establish defendant's purposeful complicity in human rights abuses.

Read Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

Friday, October 2, 2009

ATS Case up for cert in SCOTUS

Pfizer Inc. v. Abdullahi et al.

Issue: Whether ATS jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.


Cert petition...

Sunday, September 27, 2009

The Alien Tort Statute and the Limits of Individual Accountability in International Law

Groundbreaking ATS research by David L. Wallach:

ABSTRACT: Under the original understanding of the ATS, as well as the modern construction set forth by the Supreme Court in Sosa v. Alvarez-Machain, ATS claims can be properly based only on the small number of norms for which international law recognizes personal accountability. Thus, when confronted with a putative ATS claim, courts should analyze whether the international norm on which the claim is based recognizes a potential for personal liability, rather than exclusive State liability.

International human rights law does not carry a potential for personal liability. The language and structure of the major human rights conventions establish that they are intended to impose obligations and liabilities only on sovereign State entities. This is confirmed by the practice and holdings of the international human rights tribunals and committees charged with enforcing these conventions. It is further confirmed by the Restatement (Third) of Foreign Relations and the views of scholars.

Unlike international human rights law, international criminal law imposes individual accountability. However, the history of the development of international criminal law shows that States have been extremely careful in limiting the principle of individual accountability. The concept of crimes against humanity was developed precisely to define the circumstances in which internal human rights violations rise to the level of international crimes, thereby attracting personal accountability under international law. As such, it confirms that human rights violations which do not rise to the level of crimes against humanity remain within the exclusive jurisdiction of municipal law insofar as individual liability is concerned.

Thus, courts should recognize common law causes of action under the ATS only for claims predicated on violations of international criminal law, not international human rights law. This would go a long way towards bringing ATS litigation in line with international law by limiting the United States’ exercise of extraterritorial prescriptive jurisdiction to the small number of cases in which universal jurisdiction is permitted. It also would bring the modern ATS in line with its original purpose. The ATS was intended to provide tort remedies not for all violations of the law of nations as it existed in 1789, but only for conduct defined as criminal by the law of nations. Further, the ATS was intended to reach such conduct, not because it was particularly egregious, but because it “threaten[ed] serious consequences in international affairs.” Violations of international criminal law such as crimes against humanity and genocide threaten serious consequences for international affairs. Isolated human rights abuses do not.

There is no doubt that many ATS advocates will find it highly objectionable to limit ATS causes of action to violations of international criminal law. It is important to keep in mind, however, that restricting the scope of the ATS does not mean that lesser abuses will not be cognizable in United States courts. It means only that, in general, such claims will be governed by rules of decision derived from municipal law in accordance with normal conflict of law principles. More...

Tuesday, September 1, 2009


Argentinian residents filed a lawsuit under the Alien Tort Statute against Daimler-Chrysler AG for human rights violations allegedly committed by Mercedes Benz Argentina in Argentina during the 1970s military regime. Daimler filed a successful Rule 12(b)(2) motion - the case was dismissed for lack of personal jurisdiction, and the 9th Circuit heard the appeal - and affirmed.
Rights Case Gone Wrong: A Ruling Imperils Firms And U.S. Diplomacy
By Curtis A. Bradley and Jack L. Goldsmith:

As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period... more...

Thursday, August 27, 2009

Arcane Law Brings Conflicts From Overseas to U.S. Courts (WSJ)

Victims of human-rights abuses around the world increasingly are seeking justice American style -- by filing lawsuits against deep-pocketed defendants.

The Alien Tort Statute, a one-sentence law enacted in 1789 authorizing foreign nationals to file U.S. civil actions against those who violate "the law of nations," has been used often in recent years to sue major companies for alleged complicity in crimes overseas, including torture and murder. Defendants need only to have regular business contacts with the U.S. to be vulnerable to lawsuits.

The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs' lawyers have seized on the long-dormant law to enrich themselves. Knotty geopolitical issues, they say, are better left to Congress and the White House, not unelected federal judges. But human-rights lawyers counter that victims of abuses often can't obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas.
"Think of a troubled spot in the world, and it likely has given rise to alien tort litigation," says Curtis Bradley, a Duke University School of Law professor.

In one of the most prominent recent cases, Royal Dutch Shell PLC paid $15.5 million in June to settle a lawsuit claiming it was complicit in the Nigerian government's execution of activists who had protested Shell's oil production in the country. Shell has denied wrongdoing.
The Alien Tort Statute was virtually a dead letter until 1980, when the Second U.S. Circuit Court of Appeals ruled that Paraguayan citizens who resided in the U.S. could sue a Paraguayan police official who allegedly had kidnapped and tortured a family member of the plaintiffs in their home country. A trial judge later awarded the plaintiffs $10 million in damages.
The Second Circuit ruling sparked a surge in alien tort suits, but it wasn't until the 1990s, lawyers say, that plaintiffs started targeting corporations, often under the theory that they aided foreign officials or third parties who committed abuses. In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge. "Is it enough to just read a newspaper or a blog that a particular sovereign is engaged in human-rights violations?" Mr. Cyr says. "Multinationals incur risks anytime they do business with anyone who has been accused of human-rights violations."

Most federal districts now allow suits against corporations for the same types of human-rights violations that can be brought against individuals -- torture, extrajudicial killings, slavery-like practices, war crimes, says Paul Hoffman, a Los Angeles attorney who specializes in filing alien tort suits.

Last month, a Los Angeles federal judge ruled that alien tort claims could be brought alleging that London-based Rio Tinto PLC engaged in mining operations on the island of Bougainville in Papua New Guinea that incited a 10-year civil war, during which thousands of civilians died. Rio Tinto denies the allegations.

And earlier this year, a New York federal judge allowed claims to move forward alleging that several major multinational companies, including General Motors Corp. and Ford Motor Co., aided and abetted human-rights violations by providing goods and services to South Africa's apartheid regime. Ford declined to comment. In a statement, GM said the company "opposed apartheid and became a proactive corporate leader in expressing this stand."
Thomas Niles, a former U.S. ambassador to Canada and Greece who is now the vice chairman of the United States Council for International Business, a pro-business group, says corporations are being used unfairly as a surrogate for foreign governments in these cases. "You can't sue the government of Nigeria or South Africa because of sovereign immunity, so who are you going to sue? Companies, and they are sued essentially for being" in countries where human-rights violations occur.

Some legal experts raise a broader concern that alien tort litigation can interfere with American foreign policy. "I regularly heard from legal advisers and ambassadors that they were outraged that our federal courts were judging conduct in their country," says John Bellinger III, the chief legal adviser to the U.S. Department of State from 2005 to early 2009.
But Congress has the authority to rein in alien-tort litigation and hasn't done so, casting doubt that the litigation impinges on diplomatic interests, human-rights lawyers counter. If anything, alien tort suits improve America's standing abroad, says Katherine Gallagher, an attorney with the Center for Constitutional Rights, a New York-based nonprofit that files alien tort suits.
The suits, she says, "give people in foreign countries comfort that U.S. corporations and officials will abide by international standards and not go to different corners of the globe and exploit the local populations."

Write to Nathan Koppel at
Printed in The Wall Street Journal, page A11

Wednesday, August 19, 2009

Sinaltrainal v. Coca-Cola Co., No. 06-15851
In an action claiming that plaintiffs-trade union leaders' employers, two bottling companies, collaborated with Colombian paramilitary forces to murder and torture plaintiffs, dismissal of the complaint is affirmed where defendants were not vicariously liable under the ATS for the acts of plaintiffs' employers due to lack of day-to-day control over their operations.

Tuesday, July 14, 2009

The U.S. Can't Be the World's Court
New York isn't the right venue to sue for apartheid abuses.
Shell (foolishly) Settles Nigeria Case
Oil Giant to Pay $15.5 Million Over Deaths of Activists


Royal Dutch Shell PLC agreed Monday to pay $15.5 million to settle a lawsuit over the 1995 deaths of Nigerian author and activist Ken Saro-Wiwa and others.

The Anglo-Dutch oil giant faced a lawsuit in federal court in Manhattan under the Alien Tort Claims Act, on allegations that it was complicit in the 1995 deaths of Mr. Saro-Wiwa and other activists. The lawsuit was brought by family members and surviving activists.

Shell has denied it played any role in the execution of Mr. Saro-Wiwa by the military government. In a statement, Malcolm Brinded, head of the company's exploration and production unit, said: "Shell has always maintained the allegations were false. While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region."

A massive oil spill in Ogoniland in 1970 inspired Mr. Saro-Wiwa, founder of the Movement for the Survival of the Ogoni People to launch two decades later a campaign against Shell's Nigerian onshore unit. The campaign led to the abandoning of oil production in Ogoniland in 1993.
The Ogonis' plight was the focus of global criticism of the oil industry when Mr. Saro-Wiwa and eight other activists were executed by a Nigerian military regime in 1995.

Plaintiffs said $5 million of the settlement amount would go into a trust fund for the Ogoni people and the balance for lawyers fees and to the 10 plaintiffs who brought the case.

"It has been a good case to help set the foundation for allowing human rights plaintiffs to get some degree of accountability from corporations," said Paul Hoffman, the trial counsel for the plaintiffs.

Recent Alien Tort Statute Case Cautions Against Corporations Doing Business With Foreign Governments

A federal district court in New York recently issued an important decision setting the limits of corporate liability under the Alien Tort Statute (“ATS”) in a case concerning corporate defendants who did business with the South African apartheid government. The ATS allows aliens to sue in U.S. courts for violations of international law. The decision in In re South African Apartheid Litigation, No. 02-MDL-1499 (S.D.N.Y. Apr. 8, 2009), limits liability to situations where a company knowingly provides goods and services that are the actual means by which an international law violation occurred.

The plaintiffs in South African Apartheid are large classes of black South Africans who suffered damages as a result of the country’s apartheid policies from 1960 to 1994. The defendants are several multinational corporations, including Ford Motor Co., Daimler, IBM, Fujitsu and two international banks that did business with the South African government during that time period. The plaintiffs claimed they suffered harms ranging from discriminatory employment practices and arbitrary denationalization to torture and extrajudicial killing. They sued the defendants based largely on the theory that the corporations aided and abetted South Africa’s repressive regime by providing goods and services to the government.

Following Second Circuit precedent, the court first held that corporations may generally be held liable under a theory of aiding and abetting an ATS violation. The court then described the two requirements for stating a claim under this statute.

First, a plaintiff must allege that the corporation’s conduct was wrongful. The court noted that it is “undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law.” Rather, the plaintiff must show that the corporation’s conduct had a “substantial effect on the perpetration of a crime.” The court explained that the “substantial effect” test means that the defendant provided “the means by which a violation of the law is carried out.” For example, merely loaning money or selling raw materials to an entity that violates the law of nations would not meet this standard; providing poison gas used to commit an actual violation would.

Second, a plaintiff must also allege that the corporation had the requisite state of mind to commit the violation. The court rejected the defendants’ argument that plaintiffs must show that the defendants knew and intended that the goods or services would further the primary violation. Rather, it adopted a lower standard: that the defendant must only “know that its actions will substantially assist the perpetrator in the commission of the crime or tort in violation of the law of nations.”

Applying these standards, the court came to different outcomes based on the specific allegations.
The court dismissed claims against the automotive defendants who were alleged to have sold commercially-available cars and trucks to the South African government. However, the court allowed claims to go forward against these defendants for selling armored personnel carriers and military fittings actually used in extrajudicial killings and other international law violations.
The court dismissed claims against the technology companies that were based on the allegation that the computer companies had merely sold computers to the South African Department of Prisons, even though there was “widely held knowledge” of abuse at those prisons. However, the court denied the motion by these companies to dismiss claims based on the allegations that those companies had knowingly provided computers, training and software specifically designed to allow the South African government to track and then denationalize black citizens.

The court dismissed all claims against the banks because the allegations that they had loaned money to the South African government and bought its defense bonds were “not sufficiently connected to the primary violation.” The court also rejected claims based on the allegation that the banks had engaged in racially-discriminatory employment practices because these practices “were more akin to acquiescence to—rather than the provision of essential support for—apartheid.”

While companies may continue to sell goods and services to foreign governments, the South African Apartheid case extends the limited jurisprudence in this area and makes the decision whether to do so more difficult. In a 2005 decision, Corrie v. Caterpillar Inc., a federal district court in Washington State dismissed claims against Caterpillar Inc. for selling bulldozers to the Israeli Defense Forces, which then used them to destroy homes in Palestine, causing personal injury and death. The court concluded that because Caterpillar had sold “a legal, non-defective product” to Israel, the company could not be held liable under the ATS. In contrast to Corrie, the South African Apartheid decision requires courts to look beyond the legality of the product on its face, to its actual use. Under South African Apartheid, provision of a perfectly legal product to a foreign government that then uses it in a wrongful manner can form the basis of ATS liability if the company knew of the intended use. Thus, under South African Apartheid, companies must exercise caution when selling goods and services to foreign governments, particularly when those governments have problematic human rights records, or where the goods are intended for military or security use.

The South African Apartheid case also makes clear the need for certainty on the question whether aiding and abetting liability is even available under the Alien Tort Statute and the precise standard for such liability. The Circuits are deeply divided over these issues. The ATS normally provides a remedy only for action by a state, but ATS plaintiffs have used the aiding and abetting theory to expand the statute’s reach to include multinational corporations. The South African Apartheid case carries that expansion farther than ever before, creating new and greater risks for multinational corporations. Moreover, as the Bush Administration argued in the South African Apartheid case, the theory can also upset diplomatic efforts, particularly with regard to countries—like South Africa—whose policies the United States seeks to change through engagement. Last year, recusals prevented the U.S. Supreme Court from mustering a quorum to hear the South African Apartheid case, but it seems certain that the aiding and abetting theory will eventually be the subject of Supreme Court review.

Friday, January 2, 2009

Ninth Circuit en banc Rio Tinto Decision Finally Available

The Court held that certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.

Link to Opinion:$file/0256256.pdf?openelement

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.

1. The majority opinion (by Judge McKeown and joined by Judges Schroeder and Silverman): The majority opinion holds that under the ATS there is no "absolute requirement of exhaustion," but that "certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law."

The Court found that exhaustion is a "prudential" principle, rather than a substantive requirement, for several reasons. First, it read Sosa footnote 21 to suggest this result (a very questionable reading, as Judge Bea points out). Second, it avoids having to determine "whether exhaustion is a substantive norm of international law, to which the ‘requirement of clear definition’ applies; or if it is nonsubstantive, what source of law—federal common law or international law—illuminates the content."

To determine whether prudential exhaustion should be applied in ATS cases, the majority directed district courts to examine (1) the degree of "United States ‘nexus’" at issue and (2) the "gravity of the potential violations of international law. On the former issue, the Court noted that the allegations in Sarei involve "a foreign corporation’s complicity in acts on foreign soil that affected aliens," and thus have no significant U.S. nexus. On the latter issue, the Court held that the claims for torture, war crimes and crimes against humanity may implicate matters of universal concern because universal criminal jurisdiction is permitted for such claims. However, the Court noted that "simply because universal jurisdiction might be available does not mean that we should exercise it. Indeed, the basis for exercising universal civil jurisdiction, such as under the ATS, is not as well-settled as the basis for universal criminal jurisdiction."
Thus, the Court held that the nexus test militates in favor of prudential exhaustion and that the gravity of the potential violations militate against exhaustion. It then remanded to the district court without significant guidance on how to resolve this tension.

The Court did not say anything about political question—which was the grounds on which the district court dismissed the case—act of state, international comity or aiding abetting. It appears that the Court wants the district court to reconsider these issues—with no new guidance—if it determines that prudential exhaustion is either not required, or would be futile.

2. Judge Bea’s Concurrence: Judge Bea concurs in the result, but writes separately to argue that exhaustion should not be left to the district court’s prudential discretion, but rather it should be required. He writes that "[t]he plurality’s reasoning seems to be that although the ATS incorporates causes of action recognized by the law of nations, it does not incorporate required limitations on those causes of action also recognized by the law of nations. This doesn’t seem logical to me."

3. Judge Ikuta’s Dissent (joined by Kleinfeld): Judge Ikuta disagrees with the majority on two grounds. First, he finds that the district court has discretion to choose among threshold grounds for denying audience to a case on the merits, and therefore it did not err in dismissing the case on political question and act of state grounds, even though it failed to consider exhaustion.
Second, and most significantly, he finds that the ATS does not extend to disputes not involving United States territory or citizens. He finds that this limitation is (1) required by separation of powers concerns; (2) that it is supported by the history of the ATS because no case prior to Filartiga applied the ATS to extraterritorial matters concerning noncitizens; (3) that it furthers the purpose of the ATS, which is to avoid giving offense to foreign nations.

4. Judge Reinhardt’s Dissent (jointed by Judges Pregerson, Berzon and Rawlinson): Judge Reinhardt argues that this is not an appropriate case to consider exhaustion, because the record shows that exhaustion would be futile. Plaintiffs filed declarations stating that they feared for their safety if they returned to Papua New Guinea to litigate these claims. Reinhardt further argues that if this were an appropriate case to consider the issue, an exhaustion requirement should be rejected. First, he argues that in the human rights context, the requirement is supported only by international conventions, not customary law (but this is because the conventions are the only "custom" in this area). Second, he argues that exhaustion is required under international law only for suits before international tribunals, not domestic courts. Third, he argues that the U.S. has a strong interest in adjudicating claims for "heinous offenses like genocide, crimes against humanity, and war crimes." Fourth, he argues that Courts already have many available abstention doctrines to prevent interference with foreign affairs.

December 2008

Jones Day Leads Chevron to Landmark Trial Victory in Alien Tort Statute Case

Jones Day's San Francisco office won a jury verdict on all counts for client Chevron Corporation and two of its subsidiaries in an Alien Tort Statute ("ATS") case that had been pending in the Northern District of California since 1999. The case was one of the first ATS cases to go to a jury and has great significance for multinational corporations operating in foreign countries.

The case arose from the takeover of an offshore platform, barge, and tugboat by a group of Nigerian villagers. After three days of negotiations, Chevron Nigeria Ltd. ("CNL") called upon the Nigerian Navy to rescue the 150+ workers who had been held hostage for three days. In the course of the rescue, two of the villagers were shot and killed and one other was seriously injured. Another Nigerian villager was arrested and allegedly tortured while he was detained by the military and police.

In 1999, a coalition of law firms and public interest groups sued Chevron on behalf of four Nigerians, alleging violations of the ATS--which under some circumstances allows foreign citizens to bring claims for violations of international law in U.S. courts--including assault, battery, negligence, and wrongful death. Plaintiffs sued Chevron Corporation and two of its U.S. subsidiaries, not CNL.

The case raised complex issues relating to choice-of-law, vicarious liability, the Death on the High Seas Act, and questions of first impression about the contours of international law claims under the ATS. Jones Day succeeded in dismissing a number of claims before the case reached the jury, including all allegations of direct and alter ego liability, RICO, Crimes Against Humanity, and Summary Execution under the ATS, and all claims under the Torture Victim Protection Act.

The trial started on October 27, 2008, and featured testimony from CNL's chief negotiator, the CNL employee who led the team that decided to call the Navy for the rescue, and the barge workers who were held hostage by the Nigerian villagers. The jury also heard--often through an interpreter--from some of the Nigerians present on the barge and during the subsequent detention.

Plaintiffs' trial theme was to portray themselves as "peaceful environmental protestors" engaged in no wrongdoing; defendants' theme was that CNL's actions were reasonable because it is the right and duty of a company to call law enforcement for help when its workers are held hostage and negotiations have broken down. Key defense evidence, including a photo taken on the tugboat showing that the villagers had access to weapons and a letter, signed by the plaintiffs, threatening violence and sea piracy, belied the plaintiffs' claims to "peacefulness" and bolstered the reasonableness of CNL's actions. On December 1, the jury returned a verdict for each Chevron defendant on every count after less than two days of deliberations.

Interesting article on ramifications:

Plaintiff-leaning (but informative) blog of the trial: