Jonathan Drimmer, a partner at Steptoe & Johnson LLP in Washington, D.C., discusses Kiobel:

Excerpt:  "Throughout this era, courts repeatedly have concluded, relying on U.S. domestic law, that corporations - like individuals - could be viable defendants under the ATS."  "Without question, Kiobel, breaking with 20 years of federal court decisions on the ATS, is a significant decision. Some 30% of all corporate ATS cases to date have been brought in the Second Circuit, more than any other. Should the decision stand, it is a near certainty that federal courts in addition to Flomo, Viera, and Nestle will follow suit. However, the practical impact of the decision, in the end, may be more limited than some commentators have declared."  "For companies and in-house counsel, that of course necessitates continued care in overseeing, and close scrutiny of, overseas operations to avoid potential ATS and other human rights lawsuits against corporate officers and the company itself. Specifically, that includes meaningful stakeholder engagement, a suite of related corporate policies and controls focusing on human rights-related issues and norms, and an effective corporate compliance programs that at a minimum includes training, reporting mechanisms, due diligence of third parties, and investigatory resources related to human rights principles."

Subscribers can access the complete commentary on lexis.com here. Additional fees may be incurred. (approx. 7 pages)

"It's primarily about justice for the victims, even if they're not going to be compensated in the end."

U.S. [ATS] Suits Against Pakistani Spy Chief Face Hurdles
by The Associated Press

The plaintiffs in two U.S. lawsuits accusing Pakistan's spy chief of nurturing terrorists involved in the 2008 Mumbai attacks are hoping for a historic outcome recalling the Lockerbie settlement, but they would have to overcome serious legal obstacles first, lawyers and experts say.

The civil complaints naming Gen. Ahmed Shuja Pasha and his Inter-Services Intelligence agency as defendants are like past lawsuits filed in federal courts against overseas figures with alleged links to terrorist attacks and other atrocities.  More...

Pakistan Spy Chief to Ignore U.S. Summons
By SALMAN MASOOD (NYT)

Pakistan — Prime Minister Yusuf Raza Gilani of Pakistan said Thursday that there was no possibility that the head of the country’s powerful spy organization, the Inter-Services Intelligence Directorate, would obey a summons requesting his appearance before a court in the United States relating to the 2008 Mumbai terrorist attacks.  More...

New paper by David A. Dana (Northwestern University – School of Law) & Michael Barsa (Northwestern University – School of Law):  Three Obstacles to the Promotion of Corporate Social Responsibility by Means of the Alien Tort Claims Act: the Sosa Court’s Incoherent Conception of the Law of Nations, the ‘Purposive’ Action Requirement for Aiding and Abetting, and the State Action Requirement for Primary Liability

Abstract: “The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court’s ahistorical and incoherent formulation of the law of nations fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts’ confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we argue that the law of nations should not be read so restrictively, that a purposive aiding and abetting standard should be adopted, and that the requirement of state action be minimized or eliminated altogether (oh boy...). These steps would go a long way toward promoting the very CSR considerations that many corporations involved in ATCA litigation have already espoused.”

TODAY - Panel:
Kiobel: The Uncertain Future of Alien Tort Statute Litigation

Presented by the The International Law Section of the Barristers Club: December 17, 2010
12:00 pm - 1:00 pm / MCLE Credits - 1 H (Event flyer)

In September the Second Circuit held that the Alien Tort Statute ("ATS") does not confer jurisdiction over claims against corporations. Plaintiffs sued sued Royal Dutch Petroleum Company, among others, alleging that they aided and abetted the Nigerian dictatorship’s suppression of protests against oil exploration/development in the Niger Delta. Without reaching the merits, the majority of a divided Second Circuit panel dismissed plaintiffs claims, holding that the Court lacked jurisdiction because claims against corporations are not cognizable under the ATS. While concurring in the judgment on other grounds, Judge Leval vigorously dissented from the majority's holding regarding corporate liability. This case has attracted much attention because it has profound implications for the future of ATS litigation. Claims against corporations have been at the center of ATS litigation for the past fifteen years. However, Kiobel was the first Court of Appeals decision to substantively analyze whether such claims are cognizable. If the panel's decision stands, corporations will no longer be subject to suit under the ATS in the Second Circuit, or in any circuit that adopts its reasoning. Thus, the stakes in Kiobel are enormous. The plaintiffs have already filed a petition for rehearing en banc, and whatever the ultimate outcome in the Second Circuit, one party or the other will almost certainly seek Supreme Court review.

Go here for more info.

UPDATE:  Mohamed v. Jeppesen Dataplan, Inc., 08-15693

Mohamed v. Jeppesen Dataplan is undoubtedly heading to the Supreme Court. In a nutshell, this case deals with plaintiffs who were former CIA detainees who were allegedly tortured by various CIA operatives overseas. Jeppesen Dataplan apparently is a subsidiary of Boeing and was responsible for the private jets that were used to transport these prisoners from country to country. At the heart of this controversy was the following issue:  Does the States Secrecy doctrine of the Executive Branch of the Federal Government trump an individual's right to have his day in court?

Three-Judge Panel Opinion: 563 F.3d 992 (9th Cir. 2009)
Order Taking Case En Banc: 586 F.3d 1108 (9th Cir. 2009)
Date of Order Taking Case En Banc: October 27, 2009
En Banc Order: 614 F.3d 1070 (9th Cir. 2010)
Date of En Banc Order: September 8, 2010.
Mandate issued November 2, 2010.

Status: Affirmed district court's dismissal of action brought under the Alien Tort Statute.

Members of En Banc Court: Alex Kozinski, Mary M. Schroeder, William C. Canby, Michael Daly Hawkins, Sidney R. Thomas, Raymond C. Fisher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea

Subject Matter: Appeal of district court's dismissal of Alien Tort Statute action by foreign nationals allegedly transferred in secret to foreign countries for detention and interrogation pursuant to the extraordinary rendition program operated by the Central Intelligence Agency.

Holding: The United States government's valid assertion of the state secrets privilege warranted dismissal of the litigation under United States v. Reynolds, 345 U.S. 1, 11 (1953), because there was no feasible way to litigate defendant's alleged liability without creating an unjustifiable risk of divulging state secrets.

New York District Court Clarifies the Jurisdictional Scope of the Alien Tort Claims Act and Torture Victim Protection Act

December 2010

In a decision issued in late November, the Eastern District of New York confirmed the limited scope of jurisdiction under the Alien Tort Claims Act (ATCA) and further defined the scope of liability under the Torture Victim Protection Act (TVPA). Velez v. Sanchez, No. 04-CV-4797, 2010 U.S. Dist. LEXIS 126586 (Nov. 30, 2010). Although the decision arises from facts uncommon to multinational companies, the decision nonetheless serves as further clarification on the jurisdictional interrelation between ATCA and TVPA and is an example of how courts continue to interpret ATCA and TVPA claims.
...
Clarifying ATCA and TVPA's Jurisdiction

"Velez pled her claims of human trafficking and forced labor under ATCA. Although the defendants did not challenge the jurisdictional basis of these claims, the court exercised its authority to do so. The court agreed that human trafficking and forced labor violate "specific, universal and obligatory" international norms so as to fall within ATCA's jurisdiction, but ruled that other jurisdictional defects in Velez's ATCA claims mandated dismissal.

Acknowledging that Velez's ATCA claims were a matter of first impression, the court initially noted that all of Velez's allegations involved actions that had occurred within the United States (i.e., domestic actions). Although the court found no case law holding that ATCA claims must only involve actions occurring abroad, the court nonetheless held that Velez's claims of human trafficking and forced labor were not within the Supreme Court's conception of ATCA jurisdiction. Moreover, the court called Velez's foreign national status "pure happenstance," dismissing it as irrelevant to the establishment of ATCA jurisdiction.

Secondly, the court held that although Velez's allegations fell within ATCA's ambit, such jurisdiction has already been 'implicitly withdrawn' by the enactment of TVPA. Finding that TVPA created a cause of action 'for any individual who is a victim of a violation of the federal criminal laws prohibiting human trafficking and forced labor,' the court held (again as a matter of first impression) that Congress intended for TVPA to limit ATCA's jurisdiction in the area of civil remedies for human trafficking and forced labor.

The court declined, however, to decide whether TVPA provides a remedy only for domestic violations of the criminal laws against human trafficking and forced labor, which, if true, would leave the scope of ATCA "undiminished." Noting a lack of guiding authority or consensus among the courts, the Velez court tabled that issue, explaining that it would not resolve the question at this time, especially since all of Velez's claims arose in the United States. The court further reasoned that even if TVPA applied to both domestic and foreign actions, ATCA would still remain viable for those claims by aliens alleging 'any other violation of the law of nations or . . . treaty of the United States.'"
... More...

Colombia’s Álvaro Uribe Faces Scrutiny In Washington Over Lawsuit Alleging Drummond Supported Paramilitaries

The ATS case against Drummond was brought by the heirs to 113 Colombians allegedly murdered by the United Self-Defense Forces of Colombia (AUC). The AUC was Colombia’s largest rightwing paramilitary group, but had been largely demobilized by 2006, lured by government offers of light prison sentences in exchange for testifying about the group’s crimes.  Based largely on the testimony of demobilized paramilitary leaders, the complaint by controversial "human rights" attorney Terry Collingsworth and others (174-page complaint) alleges that by 1999 Drummond began colluding with the AUC after leftist guerrillas targeted the company’s mining and transportation operations. Key witnesses include former paramilitary leaders Salvatore Mancuso, Rodrigo “Jorge 40” Tovar, Jhon Jairo Equivel Cuadrado, as well as Rafael García, a former official of Colombia’s intelligence service, known as the DAS.

Outline of the Al-Aulaqi Opinion for Those in a Rush…
by Robert Chesney

Don’t have time to read the 83-page opinion in Al-Aulaqi?  Click here!  Or here...  And see "Some Thoughts on Judge Bates’ Decision" by Benjamin Wittes.

Corporate Executives: Get Ready for a Billion Dollar Lawsuit [?]

Huffington Post:  "Kiobel does nothing to deter the trend described above. On the contrary, the Second Circuit guides plaintiffs to their new -- yet very old and once familiar -- targets of choice: individual directors, officers, managers, and employees of those same corporations. Corporate executives and general counsel must institute proactive policies based on a detailed understanding of the ATS and relevant precedent in order to keep their companies far from suspicion while doing business abroad -- and thereby keeping themselves from being named as individual defendants in lengthy cases with devastating costs."

More...

Panel:  Kiobel:  The Uncertain Future of Alien Tort Statute Litigation

Presented by the The International Law Section of the Barristers Club: December 17, 2010

12:00 pm - 1:00 pm

MCLE Credits - 1 H  (Event flyer)

In September the Second Circuit held that the Alien Tort Statute ("ATS") does not confer jurisdiction over claims against corporations.  Plaintiffs sued sued Royal Dutch Petroleum Company, among others, alleging that they aided and abetted the Nigerian dictatorship’s suppression of protests against oil exploration/development in the Niger Delta.  Without reaching the merits, the majority of a divided Second Circuit panel dismissed plaintiffs claims, holding that the Court lacked jurisdiction because claims against corporations are not cognizable under the ATS.  While concurring in the judgment on other grounds, Judge Leval vigorously dissented from the majority's holding regarding corporate liability.  This case has attracted much attention because it has profound implications for the future of ATS litigation.  Claims against corporations have been at the center of ATS litigation for the past fifteen years.  However, Kiobel was the first Court of Appeals decision to substantively analyze whether such claims are cognizable.  If the panel's decision stands, corporations will no longer be subject to suit under the ATS in the Second Circuit, or in any circuit that adopts its reasoning.  Thus, the stakes in Kiobel are enormous.  The plaintiffs have already filed a petition for rehearing en banc, and whatever the ultimate outcome in the Second Circuit, one party or the other will almost certainly seek Supreme Court review.  

Speakers:
Chimène Keitner:  Associate Professor of Law, U.C. Hastings

Kristin Linsley Myles:  Munger, Tolles & Olson LLP

David L. Wallach:  Jones Day

Natalie Bridgeman Fields:  Executive Director, Accountability Counsel

Moderator:  Yuval Miller: Chair, Barristers International Practice Section

Topics:
•The reasoning behind the Second Circuit's holding and Judge Leval's dissent;

•The current state of the ATS and the related Torture Victim Protection Act ("TVPA") in the Ninth Circuit

•Alternatives under the ATS and other methods of holding corporations liable for alleged extraterritorial actions

•The likelihood of en banc review by the Second Circuit, Supreme Court review, or Congressional intervention.

Go here for more info.

Supreme Court next?  Courts of appeals rule corporations not liable under alien tort, torture victim statutes
Joseph G. Finnerty III; Anthony Paul Coles; Barbara L. Seniawski

Two US appellate courts have addressed whether corporations may be named as defendants under the Alien Tort Statute and the Torture Victims Protection Act. Each court determined that corporations cannot be held liable under the statutes, a significant narrowing of the scope of claims that plaintiffs can assert both directly and on vicarious liability theories.

The Alien Tort Statute provides alien plaintiffs subject matter jurisdiction in federal courts to sue defendants for violations of the “law of nations” – essentially, egregious human rights abuses – or violations of a treaty of the United States. The Torture Victims Protection Act provides a cause of action for any plaintiff for torture and extrajudicial killing, but does not grant subject matter or personal jurisdiction.

Kiobel v. Royal Dutch Petroleum Co. (2nd Cir. Sept. 17, 2010)

In this case, the Second Circuit limited jurisdiction to suits against individuals, not corporations, under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS). Nigerian residents living in that country’s Ogoni region sued Royal Dutch Petroleum Company, alleging that the company had aided and abetted human rights abuses against them in 1993 and 1994. According to plaintiffs, Royal Dutch enlisted the Nigerian military forces to suppress Ogoni resistance to Royal Dutch’s activities in the region. The military suppression is alleged to have included extrajudicial killings, beatings, rapes and arrests of residents.

The Second Circuit held that “insofar as plaintiffs in this action seek to hold only corporations liable for their conduct in Nigeria (as opposed to individuals within those corporations), and only under the ATS, their claims must be dismissed for lack of subject matter jurisdiction.” However, recourse may be sought against the individual persons who allegedly perpetrated abuses in violation of the law of nations, including corporate employees, managers, officers and directors, each of whom clearly is within the jurisdiction of the ATS.

Bowoto v. Chevron Corp. (9th Cir. Sept. 10, 2010)

In this case, the Ninth Circuit has held that individuals, but not corporations, can be held liable under the Torture Victims Protection Act, 28 U.S.C. § 1350 (TVPA). The case arose from violence inflicted by the Nigerian Government Security Forces (GSF) after a group of Nigerians took over the Parabe oil platform to protest Chevron Nigeria Limited’s alleged destruction of the environment and its refusal to employ the local population. On the fourth day of the protest, Chevron asked the GSF to end the protest. During those efforts, the GSF fired into the group of protestors, killing two.

Nigerian citizens then sued Chevron in California District Court, alleging violations of the TVPA, Nigerian law and California law. Regarding the TVPA claim, the court held that Chevron could not be held liable under the TVPA because it is a corporation. The court affirmed the district court’s holding and stated “[e]ven assuming the TVPA permits some form of vicarious liability, the text limits such liability to individuals, meaning in this statute, natural persons. The language of the statute thus does not permit corporate liability under any theory.” This decision does not impair a plaintiff’s established right to allege a TVPA claim against natural persons, as opposed to juridical entities, including corporate employees, managers, officers and directors.

Contrast among circuits foretells Supreme Court review

In contrast, case law in the Eleventh Circuit (the only other circuit-level court to address the issue of corporate liability) holds that corporations may be held liable under each of the ATS and TVPA. Because the recent decisions conflict with Eleventh Circuit law, the issue of corporate liability under either of the ATS and TVPA is ripe for Supreme Court review.

Nokia Siemens lawsuit dropped by Iranian plaintiffs

Last Wednesday, the attorney for two Iranians who had sued Nokia Siemens Networks in an American federal court withdrew their lawsuit.

In the case, the plantiffs Isa Saharkhiz and Mehdi Saharkhiz had alleged that the sale of Nokia Siemens Networks mobile phone surveillance technology led to the arrest and torture of Isa Saharkhiz in Iran over a year ago.

"This was purely a legal and strategic decision," attorney Ali Herischi told Deutsche Welle. Herischi is representing the plaintiffs and hopes to bring the case again later.

"The only reason we dropped the case at the moment was to keep it alive and viable," Herischi added.

Mehdi Saharkhiz has said previously that his father, a well-known Iranian journalist, remains in custody. The son, Mehdi, now lives in New Jersey in the United States, where he is well-known for being an online Iranian human rights activist.

In late June 2009, in an election widely viewed as fraudulent, Mahmoud Ahmadinejad was re-elected as president of Iran. As protests raged in the election's aftermath, the Iranian government cracked down on communications technologies, shutting down mobile phone access and limiting Internet access.

In the weeks that followed, it was revealed that Nokia Siemens Networks had sold mobile phone surveillance equipment to Iran. Many Iranian dissidents blamed the company for aiding a regime that they said was oppressive.  More...

On googlebooks.

Corporate Responsibility Under the Alien Tort Statute: Enforcement of International Law Through US Torts Law (2009):

In his book, Michael Koebele examines the potential liability of transnational corporations under the Alien Tort Statute for violations of international law in connection with their operations and investments worldwide.

Koebele's practice focuses on antitrust, international trade and regulatory affairs. Based in the Brussels office, he is a member of Crowell & Moring's Antitrust Group as well as International Trade Group.

Andrei Mamolea (Duke University School of Law student) just posted a naïve article, The Future of Corporate Aiding and Abetting Liability Under the Alien Tort Statute: A Roadmap (Santa Clara L. Review, Vol. 51, p. 79, 2011), on SSRN.  Mamolea's article allegedly offers a roadmap for the Supreme Court to follow in resolving the most pressing issues in Alien Tort Statute litigation.  It attempts, but fails, to answer the questions: Are corporations liable under the Alien Tort Statute?  Does corporate liability under the ATS conflict with international law?  What body of substantive law should courts apply, especially when adjudicating alien tort claims arising under the aiding and abetting theory of liability?  What are the policy implications of ATS litigation? (Mamolea and the SCLR eds should read this before final edits.)

In the latest issue of The American Society of International Law Insights (Vol. 14, Issue 30), Chimene Keitner, Kiobel v. Royal Dutch Petroleum: Another Round in the Fight over Corporate Liability Under the Alien Tort Statute.  
 
On September 17, 2010, the Second Circuit dismissed a putative class action brought by Esther Kiobel, the wife of a member of the “Ogoni Nine” who was executed by hanging in 1995 along with Nigerian author and environmentalist Ken Saro-Wiwa.[1] The plaintiffs alleged that Royal Dutch Petroleum Company and Shell Transport and Trading Company, acting through a Nigerian subsidiary, aided and abetted the Nigerian dictatorship’s violent suppression of protests against oil exploration and development activities in the Ogoni region of the Niger Delta. The Kiobel dismissal has garnered attention because of its broad holding that corporations are not subject to suit under the Alien Tort Statute. Absent action by the Second Circuit en banc, the U.S. Supreme Court, or Congress, corporations will no longer be subject to suit under the Alien Tort Statute in the Second Circuit, or in any circuit that adopts the Second Circuit’s reasoning.  More...

In the latest issue of the Stanford Journal of International Law (Vol. 46, no. 1, Summer 2010):  David Wallach, The Alien Tort Statute and the Limits of Individual Accountability in International Law.

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.

Will Federal Court's Kiobel Ruling End Second Wave Of Alien Tort Statute Suits?

By John B. Bellinger III

Human rights lawsuits against multinational corporations in U.S. federal courts under the so-called "Alien Tort Statute" (ATS) may soon be coming to an end. In an important and unexpected decision in late September, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in Kiobel v. Royal Dutch Petroleum that corporations -- in contrast to individuals -- may not be held liable under the ATS for violations of international law. The plaintiffs have sought en banc review by the Second Circuit, and the ruling is likely to be appealed in any event to the Supreme Court. If the Supreme Court ultimately grants certiorari and upholds the Second Circuit's ruling (and there are good reasons to think it might), corporations themselves will no longer face the prospect of costly, protracted, and reputation-damaging ATS lawsuits. Future human rights plaintiffs, however, will continue to bring suits against foreign government officials and may shift their focus from corporations to individual corporate officers and directors.  More...

Ten Years and Counting: Ninth Circuit Refers Sarei v. Rio Tinto to a Mediator

Posted on November 2, 2010 by Sarah A. Altschuller
 
Ten years ago today, plaintiffs filed an Alien Tort Statute (“ATS”) suit against Rio Tinto Plc alleging that they were the victims of numerous violations of international law as the result of Rio Tinto’s mining operations on the island of Bougainville, Papua New Guinea. Almost ten years later, on October 26, an en banc panel of the Ninth Circuit Court of Appeals referred the proposed class action, Sarei v. Rio Tinto, to a mediator “to explore the possibility of mediation.” Sarei v. Rio Tinto, 02-cv-56256 (9th Cir. October 26, 2010) (.pdf).

The selected mediator is scheduled to report before the end of November whether the case will proceed to mediation or whether it should be returned to the en banc panel of the Ninth Circuit for further consideration.  More...

Sarei v. Rio Tinto (9th Cir. en banc) - UPDATE

On October 26, 2010, the en banc panel's order read: "This case is referred to Judge Edward Leavy to explore the possibility of mediation. Judge Leavy is requested to report to the en banc court within twenty-eight (28) days as to whether mediation should proceed or whether this case should be returned to the en banc court."

Judge Kleinfeld's dissent has a great point:  "It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them."  Read it here.

Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Second Circuit in support of a petition for rehearing en banc in a major corporate Alien Tort Statute (“ATS”) case, Kiobel, et al. v. Royal Dutch Petroleum Co., et al.

Kiobel's first victim: Flomo v. Firestone
by Marco Simons (Earthrights)

The recent decision by the Second Circuit Court of Appeals in Kiobel v. Royal Dutch Petroleum, which ruled that corporations cannot be sued for human rights abuses under the Alien Tort Statute (ATS), was adopted today by an Indiana federal court in the Flomo v. Firestone case, which alleges forced child labor on rubber plantations in Liberia.

Interestingly, while she agreed that corporations cannot be sued under the ATS, the judge in Flomo disagreed with Kiobel in one respect: she said that the court does, in fact, have jurisdiction over an ATS case against a corporation. This matters, because a court without jurisdiction usually must dismiss a case without deciding any other issues. In the Flomo decision, the judge stated that she would soon issue a subsequent decision that outlines additional reasons for dismissing the case--something she could not do if the court lacked jurisdiction.

The issue of whether the question of jurisdiction also matters for the Kiobel case itself. Because Kiobel was at the Second Circuit on an "interlocutory" appeal--an appeal in the middle of a case, before a final judgment--the Second Circuit could consider only a limited set of issues in the case. Corporate liability was not considered by the district court judge, was not raised by the defendant, and was not briefed by anyone in Kiobel. So the Second Circuit was only able to decide the issue because they thought it was a jurisdictional issue. If it wasn't a question of jurisdiction, the court could not have considered it.

This may be one of the key questions that the Second Circuit faces as it considers whether to re-hear the Kiobel case in front of the full court.

Bellinger on Kiobel:  Shortening the Long Arm of the Law (NYT)

Excerpt:  "Plaintiffs will still be able to bring suits against foreign government officials and against corporate officers and directors, but it may be difficult to prove that corporate officials personally aided and abetted violations of international law by foreign governments."

Presbyterian Church of Sudan v. Talisman Energy, Inc.; Talisman Energy, Inc. v. Presbyterian Church of Sudan

Last week the Supreme Court dealt the ATS another blow by Denying the Cert Petition in Presbyterian Church.  Justice Sotomayor took no part in the consideration or decision of this petition.

Issues: From 09-1418: (1) Whether, under the Alien Tort Statute, federal courts lack subject matter jurisdiction to impose liability on corporations for torts committed in violation of customary international law; (2) whether federal courts lack subject matter jurisdiction to apply ATS extraterritorially to claims for such torts arising entirely outside the United States; and (3) whether causes of action for violations of customary international law exist when (i) the claims are based on events arising solely outside the United States and had no effect on the United States, (ii) the claims are asserted against a foreign defendant not in the custody of the United States, and (iii) a country providing an adequate alternative forum has a close tie to the dispute.

Tony Arend discusses the recent decision in Kiobel:

"The methodology the court uses for determining the existence of a rule of customary international law is consistent with what I believe to be the correct, positivist understanding of international law. (An approach that I have elaborated upon in more detail here.) In order for a rule of custom to exist there must be both state practice and a belief by states that the practice is obligatory, opinio juris. What the court avoids is assuming the existence of a rule of custom because it might seem logical for such rule to exist. In other words, the court will admit that a rule of custom exists if, and only if, it can demonstrate that state practice created such a rule. I think this is the correct method for evaluating the existence of a rule of custom.

[On the merits,] I find the arguments advanced by Judge Carbranes quite persuasive. That is, the court does seem to demonstrate that states have not created a specific rule of custom establishing corporate liability."

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University. On July 1, 2008, he became the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

It's a Bad Time to be an ATS plaintiff: Goodbye ATS!

John Doe I v. Nestle, CV 05-5133 SVW (C.Cal. Sept. 8, 2010):

"Having thoroughly considered the question of corporate liability under the Alien Tort Statute, the Court concludes that the existing authorities fail to show that corporate liability is sufficiently well-defined and universal to satisfy Sosa."

See also: Koibel, Bowoto.

Goodbye Alien Torts? Second Circuit Blows Hole in 1789 Law

LAW.COM  - Nathan Koppel

Companies in recent years have faced a rising threat from alien-tort suits, which often allege that a company has aided a foreign government in committing human-rights abuses overseas.

But Corporate America can breath a whole lot easier today, following a potentially landmark Second Circuit ruling that US courts have jurisdiction only over alien-tort suits against individuals, not companies.

Click here for a Bloomberg report on the ruling, which involved a suit against Royal Dutch Petroleum and Shell Transport alleging that they aided the Nigerian government in torturing and murdering Nigerian dissidents in the 1990s.

A 2-1 panel of the court dismissed the suit, brought by a group of Nigerians.

“The principle of individual liability for violations of international law has been limited to natural persons — not ‘juridical’ persons such as corporations — because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it,” Judge Jose Cabranes wrote on behalf of the majority.

Judge Pierre Leval concurred in the dismissal of the case, but expressed concern about the scope of the ruling. “The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights,” he wrote. “According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form.”

The case is Kiobel v. Royal Dutch Petroleum, Docket Nos. 06-4800-cv, 06-4876-cv (2d. Cir. Sept. 17, 2010)

[NOTE: The 9th Circuit ruling in Bowoto (below) held that corps cannot be liable under the TVPA]

Courthouse News Service

Nigerian Protesters [Pirates] Lose Round in Chevron Case

By ELIZABETH BANICKI

LINK TO OPINION

(CN) - Nigerian ["]protesters["] lost their bid in the 9th Circuit to revive wrongful death and battery claims against Chevron over a 1998 protest on an oil platform that turned deadly.
...
A jury ruled for Chevron on the claims brought under federal, California and Nigerian law.

On appeal, the protesters and their families argued that a jury instruction on Chevron's evidence had been unfair, and that the company should be held responsible for its violent reaction to a peaceful protest.

However, the 9th Circuit upheld the trial judge's finding that the Death on the High Seas Act pre-empts survival claims under the Alien Tort Statute. It also backed the lower court's ruling that Congress did not intend the Torture Victim Protection Act to apply to corporations.

"We find no error with any of the jury instructions," Judge Mary Schroeder wrote for the three-judge panel in San Francisco. She said the court "cannot accept Plaintiffs' argument that the experienced trial judge in this case overlooked the Federal Rules of Evidence."

In a brief concurring opinion, U.S. District Judge Owen Panner patted Schroeder on the back for her "excellent, well-reasoned opinion."

Courthouse News Service

Chevron Prevails on Nigerian Appeal (9th Circuit)

Bowoto v. Chevron, 09-15641.

SAN FRANCISCO (Reuters) - Chevron Corp successfully beat back an attempt by Nigerian villagers to hold it liable for a deadly clash on an oil platform in Nigeria, a federal appeals court ruled on Friday.  In 2008 a Northern California jury decided Chevron did not have to pay compensation to a group of plaintiffs for a clash a decade earlier between Nigerian state forces and protesters on Chevron's Parabe oil platform, 9 miles (14 km) off Nigeria's coast. The 9th Circuit U.S. Court of Appeals refused on Friday to disturb that verdict, according to its ruling. The appeals court also found that the Torture Victim Protection Act, passed by Congress in 1992, does not apply to corporations. The case in the 9th Circuit is Bowoto v. Chevron Corp, 09-15641.

NOTE: Corporate Liability under the TVPA:  The Court found that corporations cannot be held liable under the TVPA.  It found that the plain language imposes liability only on "individuals" and the ordinary meaning of this term excludes corporations.  Nothing in the legislative history rebuts this presumption.  On the contrary, "the legislative history demonstrates that Congress rejected the notion of corporate liability."  The Court also rejected plaintiffs' "alternative argument that they may sue Chevron under the TVPA upon a theory of 'aiding and abetting.' . . .  The TVPA, however, does not contemplate such liability.  It limits liability to '[a] individual' who subjects another to torture.  Even assuming the TVPA permits some form of vicarious liability, the text limits such liability to individuals."

DOHSA Preemption of ATS Claims: The Court declined to decide whether DOHSA preempts wrongful death claims under the ATS ("We do not necessarily agree with the district court's determination that [Supreme Court decisions] foreclose the possibility of there ever being a cognizable ATS claim . . . to recover for a death on the high seas"), finding that the issue was moot because the jury "squarely rejected a wrongful death claim brought under Nigerian law that was nearly identical."  "[A]ny difference in the burden of proof between the ATS, preponderance, and Nigerian law, beyond a reasonable doubt standards, is immaterial under the circumstances of this case. The jury rejected a total of 20 common law claims brought by Plaintiffs under a variety of burdens of proof. There is no reason to believe the jury would have found a summary execution claim meritorious under any standard."

Challenges to Jury Instructions: The Court found that the Nigerian law battery instruction was correct in placing the burden on plaintiffs to prove that force was unreasonable.  It rejected plaintiffs' reliance on Ashley because English cases have only persuasive value in Nigeria.  It found the cited Nigerian cases "more authoritative" - which hold that the burden of proof for a civil battery claim is the same as under Nigerian criminal law, and the criminal law requires the prosecution to prove unreasonable force.

The Court found that the affirmative defenses instructions were correct, and refused to consider plaintiffs' challenge to the California law battery instruction on the merits because plaintiffs failed to preserve it in the district court.

Evidentiary Challenges: The Court found that (1) plaintiffs' waived their challenge to the tug boat kidnapping evidence by referring to the incident in their opening argument; (2) the machete photograph was relevant to counter plaintiffs claim that they were peaceful and did not have weapons; (3) Stapleton and Hervey's testimony about what they were told about the violence of the ongoing takeover was relevant because it was conveyed to and considered by the Crisis Management Team; (4) the evidence of prior kidnappings by the Ilaje was relevant to establish the reasonableness of Chevron employee's view that negotiations had failed; and (5) Judge Illston's Rule 403 balancing was properly documented.

Nokia Siemens, meet the Alien Tort Statute -- a U.S. detour for justice.

Suing Repression's Service Provider

by KAVEH SHAHROOZ in New York

On the phone, Ali Herischi, a lawyer in Maryland, is talking tough: "Nokia's decision to give surveillance technology to Iran is like giving a gun to a person that you know wants to shoot somebody." His law partner, Edward Moawad, thinks about it for a moment and tries to firm up the analogy: "It's more like giving a bullet to someone that already has a gun." The two men have been so busy planning the case that they haven't yet had time to figure out how to most dramatically analogize the defendant's action. 

Herischi and Moawad are the two lawyers behind an unusual and potentially devastating lawsuit against Nokia Siemens, the Finnish-German telecom giant. As featured in Tehran Bureau last week, the suit has been brought by Mehdi Saharkhiz on behalf of his father, Isa (pictured). The elder Saharkhiz, an outspoken reformist journalist in Iran, was arrested shortly after the start of the post-election uprising in the summer of 2009. Since that time, authorities in Iran have reportedly subjected the 56-year-old former member of the Khatami administration to repeated torture. He has been charged with spreading propaganda against the state and offending the government's senior officials, including the Supreme Leader. Saharkhiz denies the charges.

The new lawsuit alleges that Nokia Siemens knowingly provided the Iranian government with the surveillance technology which it employed to track and arrest dissidents like Saharkhiz; hence, the lawyers' struggle to find an analogy about providing guns to known criminals. 

The new lawsuit alleges that Nokia Siemens knowingly provided the Iranian government with the surveillance technology which it employed to track and arrest dissidents like Saharkhiz; hence, the lawyers' struggle to find an analogy about providing guns to known criminals.

This isn't the first time that Saharkhiz's case has been heard abroad. Earlier this year, the United Nations Working Group on Arbitrary Detention found the journalist's incarceration to be "arbitrary" and asked Iran for his "immediate and unconditional release" and guarantee of a "fair trial according to international standards." The U.N. body also asked Iran to pay reparations to Mr. Saharkhiz for his arrest and detention.

Since the launch of Herischi and Moawad's action, the web has been abuzz with stories about the suit. Nokia has hit back, claiming that the service they sold was "lawful interception technology." The company has also stated its belief that the lawsuit has been "brought in the wrong place, against the wrong party and on the wrong premise."  More...

Estate of Marani Awanis Manook v. RTI, Case 5:10-cv-00072-D, United States District Court, E.D. North Carolina, Western Division, August 12, 2010: Order

Plaintiffs contended that state action was present and alternatively that state action is not required under the ATS.  The court, however, disagreed, and GRANTED defendants' motion to dismiss for lack of subject-matter jurisdiction.

(See June 28, 2010 Order)

Morrison v. Nat’l Australia Bank Ltd.: The Supreme Court Rejects Extraterritoriality
By Paul B. Stephan
For more than forty years, U.S. courts have applied the antifraud provisions of federal securities law to actors and transactions operating outside the United States. In Morrison v. Nat’l Australia Bank Ltd.,[1] decided on June 24, 2010, the Supreme Court gave a firm and unambiguous rebuke to this practice. It is not enough, the Court stated, that international law may permit such regulation. Rather, Congress must clearly indicate that it wants U.S. law to apply to securities transactions in foreign markets. Shortly thereafter, Congress effectively confirmed this result. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on June 21,[2] Congress authorized only the U.S. government and the Securities and Exchange Commission, and not private investors, to bring suit with respect to foreign transactions.

Since 1991, the Court has applied a strong presumption against extraterritoriality to force Congress, rather than the judiciary, to manage the risk that U.S.-prescribed rules might conflict with those of other sovereigns. None of its previous cases, however, have overturned such longstanding and extensive lower-court precedent. A petition for certiorari currently before the Court may give it the opportunity to decide next year whether its approach in Morrison applies to the Alien Tort Statute, which the lower courts have embraced as a means for addressing human rights violations.  More...

Federal judge allows Iraqis' suit against military contractors to proceed

A judge for the US District Court for the District of Maryland has denied a motion to dismiss a lawsuit filed by a group of former Iraqi detainees against US military contractors. The lawsuit, Al-Quraishi v. Nakhla filed in June 2008, alleges that L-3 Services, Inc. violated US and international law by directing and participating in abuses at Abu Ghraib and other Iraqi prisons. The defendants in the case had moved for dismissal in November 2008, claiming immunity under the laws of war and sovereign immunity. Additionally, they claimed that the Alien Torts Claims Act [28 USC § 1350], under which the plaintiffs were suing, was not applicable because they did not violate the law of nations. The defendants also argued that they were immune from the claims made under state law because of government contractor immunity and because Iraqi law should be applied. Judge Peter Messitte rejected these claims, explaining:


"Defendants' actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense[.] ... The Court declines to dismiss the Alien Tort Statute claims since, in the Court's judgment, Plaintiffs' claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs' state law claims, the Court finds that they are governed by Iraqi law. ... [T]he Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law."

The court held that the case must continue to discovery to answer the issues that it was unable to resolve at this point in the litigation.

In October 2008, lawyers for private US military contractor CACI International, Inc., which was named as a defendant along with L-3 in the original complaint, filed a motion to dismiss the charges against the company based on a claim of immunity. This motion was granted in January 2009. The lawsuit was filed in 2008, alleging that L-3 and CACI subjected them to torture, cruel and inhuman treatment, committed war crimes, assault and battery, sexual assault and battery and infliction of emotional distress, in addition to conspiracy to commit those acts.

Amergi v. PLO

The 11th Circuit affirms decision involving the Alien Tort Statute in a case brought against the Palestinian Authority and the PLO.

"The [lower] court ruled that acts of terrorism were not cognizable under the ATS and, therefore, it had no subject matter jurisdiction pursuant to a terrorism theory. [Amergi] at *6, 7. Moving next to the Amergis’ theory that the killing violated the Geneva Conventions on the law of war and was cognizable under the Alien Tort Statute as a war crime, the court observed that not every violation of the Geneva Conventions supports ATS jurisdiction. Id. at *8. Moreover, the district court concluded, extending the ATS to cover this act, or any violation of the Geneva Conventions, would dramatically expand federal jurisdiction, in violation of the Supreme Court’s direction in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See Saperstein, 2006 WL 3804718, at *8. It therefore dismissed the ATS count."
...
"The federal courts of the United States are permitted to recognize a limited set of causes of action for international wrongs under the ATS. Their ability to do so, however, is sharply circumscribed, both by precedent and by prudence. The Amergis urge this Court to recognize their claim under the ATS, but because the act they allege -- a single killing by non-state actors purportedly in the course of an armed conflict -- fails to meet the Alien Tort Statute’s high bar, we hold that the district court properly dismissed their ATS claim for lack of subject matter jurisdiction. We also hold that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over a common law wrongful death claim, or in severing the Amergis’ claims from that of Moshe Saperstein, a coplaintiff proceeding under the Federal Terrorism Act, 18 U.S.C. § 2333 (“FTA”).  Accordingly, we affirm."  More...

Speaking Hypothetically: What to Do When a PMC Tortures
by David Isenberg on July 27, 2010

Let's just suppose for a moment, speaking hypothetically, that a private military contractor engaged in acts of torture. I write "hypothetically" because PMCs mentioned in the past (think CACI and Titan at Abu Ghraib) in this regard fiercely object to the idea that they did any such thing. And even if they did something that was not perhaps one hundred percent kosher, even if it wasn't torture, (think of John Yoo's infamous memo on permissible interrogation techniques back when he was in the Bush Administration's Department of Justice's Office of Legal Counsel (OLC) during 2001 to 2003) a PMC could argue they were just doing what their U.S. government client wanted or ordered.

One wonders if a PMC really wants to use the same defense that Nazi war criminals used back at the Nuremberg tribunal, i.e., I was just following orders, but that is the subject of another post. 

Anyway, the question remains; what can be done about it if such a thing happens? That sounds like a legal question, and there are very few legal issues that, sooner or later, don't get written about in a law journal. And, serendipitously a recent issue of the Santa Clara Law Review addresses this very question (50 Santa Clara L. Rev. 1277). The modest (for a law journal), 18,789 word article, titled "SUING PRIVATE MILITARY CONTRACTORS FOR TORTURE: HOW TO USE THE ALIEN TORT STATUTE WITHOUT GRANTING SOVEREIGN IMMUNITY-RELATED DEFENSES" is by law student Efrain Staino.  More...

Read: IN RE: CHIQUITA BRANDS INTERNATIONAL, INC. ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION

Judge Marra ruled against Chiquita, finding that allegations of substantial payments over a long period of time preceding kidnappings and murders are sufficient if proven to make Chiquita liable, without more in terms of actual knowledge of these specific acts of violence.  Legal observers and the parties hotly debate whether this standard of “causation” is too loose.

Supreme Court UPDATE

Presbyterian Church of Sudan v. Talisman Energy, Inc.; Talisman Energy, Inc. v. Presbyterian Church of Sudan

[Note: The petition and cross-petition were distributed for the Justices' conference on Sept. 27, 2010.]
Docket: 09-1262; 09-1418

Issues: From 09-1418: (1) Whether, under the Alien Tort Statute, federal courts lack subject matter jurisdiction to impose liability on corporations for torts committed in violation of customary international law; (2) whether federal courts lack subject matter jurisdiction to apply ATS extraterritorially to claims for such torts arising entirely outside the United States; and (3) whether causes of action for violations of customary international law exist when (i) the claims are based on events arising solely outside the United States and had no effect on the United States, (ii) the claims are asserted against a foreign defendant not in the custody of the United States, and (iii) a country providing an adequate alternative forum has a close tie to the dispute.

Journal of International Criminal Justice Advance Access - published online on June 30, 2010: Civil Litigation and Transnational Business: An Alien Tort Statute Primer, by Katherine Gallagher.   Defense attorneys beware? See Abstract.

Supreme Court UPDATE: Finally Pfizer

Supreme Court rejects Pfizer appeal of Nigerians' lawsuits

Pfizer v. Abdullahi, 09-34.
The Supreme Court is staying out of a dispute between Nigerian families and Pfizer, Inc., over the drug maker's use of a new antibiotic on children during a deadly outbreak of meningitis in the mid-1990s.  Today the justices rejected the pharmaceutical giant's appeal of a court ruling that allowed the lawsuits filed by the Nigerians in U.S. courts to go forward. More...

Supreme Court UPDATE: Extraterritoriality

Today the Supreme Court came down with a significant decision re: extraterritoriality - applicable to ATS cases.
Morrison v. Nat’l Australia Bank Ltd., 561 U.S. ___ (2010)

Plaintiffs are Australian citizens who bought securities in Australia in defendant, an Australian Bank. Plaintiffs alleged that employees of defendant in the United States misrepresented the value of a United States subsidiary of defendant’s, thus falsely inflating defendant’s stock price.

The questions: (1) whether §10b-5 applies extraterritorially pursuant to the conducts and effects test and (2) if not, whether application of §10b-5 in this case is extraterritorial, given that some of the conduct at issue occurred in the United States.

The answers: (1) “It is a ‘longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Slip O. at 5. This principle “rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Id. at 5-6. “Thus, unless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, we must presume it is primarily concerned with domestic conditions.” Id. at 6. This canon of construction applies regardless of whether applying a law extraterritorially will conflict with the regulations of a foreign nation. Id.

The Second Circuit believed that the silence of §10b with regards to extraterritoriality left it to the court to discern what Congress would have intended had it considered the issue. Id. “[R]ather than courts’ ‘divining what Congress would have wished if it had addressed the problem, [a] more natural inquiry might be what jurisdiction Congress in fact though about and conferred.” Id. at 10 (quoting Zoelsch v. Arthur Andersen & Co., 824 F.2d 27, 32 (D.C. Cir. 1987). “[U]sing congressional silence as a justification for judge-made rules violates the traditional principle that silence means no extraterritorial application.” Id. at 11. “In short, there is no affirmative indication in the Exchange Act that § 10b-5 applies extraterritorially, and we therefore conclude that it does not.” Id. at 16.

(2) That the suit involves some domestic conduct does not defeat the presumption against extraterritoriality. “[T]he presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” Id at 17. The question is whether the conduct which is the “focus” of Congressional concern occurred within the United States. Id. The focus of the securities laws is on the purchase and sale of securities, not on the making of misleading statements. Id. Therefore, the fact that misleading statements were purportedly made in the US about a US subsidiary is irrelevant.

Vatican's appeal for immunity over sex abuse case rejected
By Craig McMurtrie

The United States Supreme Court has rejected a Vatican bid for legal immunity over the sexual abuse of children by a priest in the US. [Holy See v. John Doe, 09-1.]
America's highest court refused to hear a Vatican appeal for sovereign immunity over a case involving a priest accused of sexually abusing children.
Father Andrew Ronan, who transferred from Northern Ireland to Chicago and then Portland, Oregon, died in 1992 and left behind a trail of abuse cases in the parishes he was assigned to.
A man identified only as John Doe says he was abused in 1965.
His lawsuit holds the Roman Catholic Church responsible as Father Ronan's employer.
The US Supreme Court rejection of the Vatican appeal means the lawsuit, first filed eight years ago, can now proceed.

See this also.

Pope Lashes Out at Belgium After Raid on Church
NYT
by RACHEL DONADIO

ROME — In a sign of sharply rising tensions between the Vatican and Belgium, Pope Benedict XVI on Sunday criticized as “surprising and deplorable” a raid on church property last week by Belgian police investigating sex abuse by clerics.

In an exceedingly rare personal message and rebuke of a sovereign country, the pontiff also stressed the church’s “autonomy” to conduct its own investigations and criticized the “deplorable methods” of Belgian police who last week detained bishops, confiscated files and even drilled into the tombs of at least one cardinal in the Brussels cathedral in a search for documents.  More...

Judge Kimba Wood Dismisses Defendant from Alien Tort Statute Class Action for Lack of Personal Jurisdiction
Posted on June 25, 2010 by Russell Jackson

Today's featured opinion has a somewhat tortured procedural history, but its ultimate holding -- that U.S. courts lacked personal jurisdiction over a foreign Alien Tort Statute defendant -- provides some encouragement for defendants who become mired in ATS litigation in the U.S. See Kiobel v. Royal Dutch Petroleum Co., 02 Civ. 7618 (KMW) (HBP), Slip op. (S.D.N.Y. June 21, 2010) (Law360 subscription required). Opinion and Order.
 
The dispute in Kiobel and some related litigation centered around allegations that certain oil companies cooperated with agents of the Nigerian government to use violence to suppress protests of oil exploration and development. The district court previously had granted a motion to dismiss brought by a Nigeria company, finding that America lacked personal jurisdiction over the company. Plaintiffs in a related suit appealed an identical decision, and the Second Circuit reversed, ordering the district court to allow discovery into the facts surrounding the jurisdictional issues. After having done so in this case, the court once again considered the defendant's motion to dismiss. Judge Wood held that plaintiffs failed to assert jurisdictional facts sufficient to establish "continuous and systematic general business contacts" with the United States, which is required for the assertion of general jurisdiction. See Slip op. at 2.
 
The Shell Petroleum Development Company of Nigeria ("SPDC") is a Nigerian corporation with its headquarters in Nigeria. It has no office, place of business, address or phone in the U.S., and it is not licensed to business here. Plaintiffs offered three reasons why SPDC should be subject to U.S. jurisdiction.
 
More...

Think Globally, Sue Locally
The plaintiffs bar goes international and focuses on trashing a corporation's image.
 
By JONATHAN DRIMMER

It was no coincidence that a lawsuit filed against Coca Cola this February in New York City's federal court coincided with the release of a documentary called "The Coca Cola Case." The documentary featured the plaintiffs lawyers in the case—concerning allegations of violence against workers at a Guatemala bottling facility—and five others like it in Turkey and Colombia.

It didn't seem to matter that federal appellate courts in New York and Atlanta had already dismissed all five of the earlier lawsuits, or that the alleged violence in Guatemala was perpetrated by individuals not affiliated with Coke. It also didn't seem to matter that a judge had sanctioned the plaintiffs lawyers for violating a confidentiality order involving settlement discussions. The documentary continues to play in North America, Europe, New Zealand and elsewhere, bringing additional publicity and pressure against the company.

Welcome to the Wild West of transnational tort cases, where what happens inside the courtroom is often overshadowed by what happens outside. Old-fashioned motions and pleadings are now accompanied by public-relations campaigns complete with documentaries, community organizing, political lobbying and efforts to drive down stock prices of companies and multinationals with a U.S. presence. It's all part of an effort to inflict maximum punishment on companies that choose to fight, trying to force them into lucrative settlements for alleged conduct overseas, and to pressure foreign courts in cases filed abroad.

Plaintiffs lawyers are filing scores of cases in U.S. and foreign courts against companies in connection with their foreign operations, particularly in emerging markets. The cases filed here often rely on the Alien Tort Statute, an 18th century artifact that allows non-U.S. nationals to file lawsuits in federal courts for certain claimed violations of international law.

One current lawsuit in Indianapolis against Bridgestone/Firestone involves claims of alleged forced labor on a rubber plantation in Liberia. Plaintiffs lawyers have pursued a vigorous campaign that includes video clips, graphic allegations of abuse by nongovernmental organizations (NGOs), lobbying for city resolutions, and calls for the National Football League to cease airing company commercials during games.

Lawsuits have been filed in California against Occidental Petroleum for violence by the Colombian military (allegedly directed by Occidental) near an oil pipeline, for the company's alleged complicity in human-rights violations by paramilitary units guarding a pipeline in Ecuador, and for alleged environmental harms in Peru. Accompanying the suits have been calls for boycotts, staged protests and in the Peru lawsuit a documentary narrated by actress Daryl Hannah.

Some of these transnational tort cases are tainted by fraud. Three separate U.S. courts have now found fraud and unfairness in proceedings against Dole, the Dow Chemical Company and others, arising from the alleged exposure of workers to pesticides on banana plantations in Nicaragua. This fraud includes fabricating injuries, submitting false evidence, conspiring with corrupt foreign laboratories to bolster false claims, suborning perjury, and helping create foreign litigation regimes so overtly hostile to U.S. companies that they violate the most basic notions of due process. Some of the cases are still pending.

A new study I have overseen on behalf of the U.S. Chamber of Commerce's Institute for Legal Reform, "Think Globally, Sue Locally," shows that these transnational lawsuits frequently involve tactics that fall into four categories. There is the media campaign, including full-length films and mini-documentaries, and heavy reliance on print, radio, television and the Internet, including social media websites and shared video sites. There are also investment-related activities, such as stock divestment drives, pressuring institutional investors, feeding harmful information to Wall Street analysts, and attending and participating in shareholder meetings.

There are also political efforts. These include advocating for and testifying at Congressional hearings (increasingly being held as a trial date approaches), soliciting politicians to advocate for the plaintiffs, lobbying for the passage of local city resolutions, and in overseas litigation using political pressure to influence susceptible foreign courts.

Finally, community organizing in the form of protests, boycotts, letter writing, on-campus efforts and other techniques are undertaken to bring pressure on companies.

There is evidence these tactics are effective. In one well-known Alien Tort case, Talisman Energy, listed on the New York Stock Exchange, spent millions of dollars in local development programs in Sudan, assisted in the efforts to bring peace to the civil war ravaged nation, and prevailed in a lawsuit in New York arising from its investment in an oil consortium there. (The case involved allegations the company was complicit in human-rights violations committed by the government.) Yet Talisman succumbed to the political and litigation pressure, selling its interest to an Indian state-controlled oil and gas company rather than continuing to operate.

Companies with U.S. ties considering even relatively small overseas investments must be conscious that a perceived failure to adhere to certain social expectations can lead to high-profile, multimillion dollar lawsuits, and with them an accompanying set of highly aggressive tactics aimed at decimating the company's image.

Mr. Drimmer is an attorney in Washington, D.C., and a former deputy director of the Office of Special Investigations Division at the Justice Department. This op-ed is based on a paper being delivered in New York City today at a conference hosted by the Manhattan Institute. He is not personally involved in any cases discussed here.