Are We Witnessing the Demise of Alien Tort Statute Litigation?
by Trey Childress on January 20, 2010

Over the past few months, various US federal courts have handed down opinions that may presage a more limited role for the Alien Tort Statute in US litigation.

We may be witnessing a subtle sea change in ATS litigation, which is surprisingly being accomplished not by the US Supreme Court but by US lower courts. In the past six months, five decisions in particular have changed the litigating landscape substantially and will make it harder for plaintiffs to plead and prove ATS cases. These decisions span various subject areas, but each contributes to reining in ATS cases. A short summary of these cases follows.

In Sarei v. Rio Tinto, the Ninth Circuit has been willing to consider applying exhaustion of remedies requirements in ATS cases, thus allowing district court judges to dismiss ATS cases unless a plaintiff can show that all local legal remedies have been exhausted or that such remedies are unavailable, ineffective, or futile. In Turedi v. Coca-Cola and Aldana v. Del Monte Fresh Produce, the Second and Eleventh Circuits have been willing to affirm ATS dismissals on grounds on forum non conveniens. In Sinaltrainal v. Coca-Cola, the Eleventh Circuit relied on heightened pleading standards enunciated in the Supreme Court’s Iqbal and Twombly decisions, discussed here, to impose a higher standard of pleading on ATS claimants. Finally, and perhaps most importantly, the Second Circuit in Presbyterian Church of Sudan v. Talisman Energy, Inc., ruled that in order to find aiding and abetting liability under the ATS, a plaintiff must show “that a defendant purposefully aided and abetted a violation of international law.” In changing the standard from mere knowledge to purpose, the Second Circuit has placed a heavier burden on plaintiffs bringing ATS claims.

The upshot of these decisions is that from pleading to proof to discretionary doctrines like forum non conveniens US federal courts are perhaps closing the door on many ATS cases. While this movement will be favorable to defendants, at the level of process it is a surprising outcome for several reasons. Congress has known since Filartiga that there was potential for ATS abuse and has done nothing about it. In the wake of congressional silence, US courts had been hesitant for 28 years to restrict the statute’s use, and rather looked to the US Supreme Court to provide guidance. The Supreme Court’s guidance in Sosa was opaque at best. Faced with such minimal direction, US lower courts have been forced to make a choice regarding the ATS. Momentum appears to be gathering in favor of choosing to limit ATS litigation. As such, US lower courts have been forced to use discretionary judicial doctrines to cabin the reach of a congressional statute.

While it may be too soon to say that the death knell has sounded for ATS litigation, these developments show that we may be witnessing the demise of ATS litigation.

Coke's Quinn Emanuel Lawyers Try to Block Screening of Anti-Coke Documentary
By Alison Frankel
January 19, 2010

Just a few months after Dole's lawyers at Gibson, Dunn & Crutcher sued documentary filmmakers who accused the company of human rights abuses, a similar scenario is playing out for Coca-Cola.

Last week, Coke counsel Faith Gay of Quinn Emanuel Urquhard Oliver & Hedges sent letters to the National Film Board of Canada, the Paris-based film exhibitor Alliance, and Montreal's Cinema Politica (the letters are here, here, and here), advising them not to proceed with planned showings of a new documentary called The Coca-Cola Case.

Unlike Gibson in the Dole flap, Quinn has not filed suit against the filmmakers, who trailed plaintiffs lawyers Terry Collingsworth and Daniel Kovilik as they battled Coke over its alleged role in the fatal clampdown on union organizing efforts at two Coke bottling plants in South America. Instead, Quinn's letter to the three exhibitors warns that the film is defamatory, and alleges that the plaintiffs lawyers violated a confidentiality order in talking to filmmakers about their mediation with Coke, which, Quinn claims, "is wrongfully and inaccurately described in the film."

As we've previously reported, Coke has gotten the suits filed by Collingsworth and his colleagues thrown out in both Florida and New York. Most recently, the U.S. Court of Appeals for the Eleventh Circuit upheld the dismissal of three Alien Tort Statute cases against Coke and its bottlers. "All of these lawsuits were thrown out in toto, and their dismissals were affirmed by the Second and Eleventh Circuits," Quinn partner Gay told the Litigation Daily in an e-mail statement. "There was no evidence of participation or even knowledge by the The Coca Cola Company [of] the alleged anti-union activities."We left messages for plaintiffs lawyer Collingsworth but didn't hear back.

Pat Dillon-More, a spokesperson for the film's producers, declined to comment on the Quinn Emanuel letters. But one of the exhibitors who received a letter, Cinema Politica, said it will continue with plans to show the documentary at college campuses in Canada.Dole ultimately dropped the litigation against the makers of the movie Bananas, which makes allegations similar to those thrown out by a Los Angeles state court judge last year after she found the plaintiffs lawyers had committed fraud.

Litigation litmus test - Washington Times

Litigation litmus test - Washington Times

Why reparations lawsuit should not make it in New York court
by Kader Asmal - Published: 2010/01/15 06:20:45 AM

ALL my life I have fought against racial oppression and I believe wrongdoers must be held accountable. Still, in my capacity as an international law scholar, I recently co-authored an opinion which supports a motion to dismiss claims being brought by South African citizens in US courts against several international corporations in relation to their conduct in SA during the apartheid era. And I would do so again. I have learned during my life-long fight against racial oppression that it is of vital importance to preserve and defend our intellectual honesty.
The plaintiffs in this case are not automatically right because they were oppressed during the apartheid years, and the defendants are not automatically wrong by virtue of the fact that they are international corporations.

We owe ourselves a more rigorous analysis of the questions this litigation poses. Because the plaintiffs here chose to file their claims in a US court, we must also accept that the legal analyses and resulting consequences in this litigation will reflect and rely on US and not South African domestic law.

My colleagues and I, a group of 16 professors of international law from around the world, addressed a question of international customary law in our joint amicus brief. We did not take sides between the parties, nor did we engage in flights of fancy on how any of us would like international customary law to be. It is intellectually dishonest to claim that we did anything but apply straightforward legal analysis to the legal questions at issue.

During the current appeal, the US 2nd Circuit Court of Appeal early last month asked the litigants and any other interested parties to submit to it statements on the status of the following international law point: as international law determines the scope of liability under the Alien Torts Act, does customary international law recognise corporate criminal liability

The Alien Tort Statute is the US statute under which this litigation is brought, and it only allows US courts to hear allegations of conduct that violates “customary international law”. “Customary international law” is defined in relevant US jurisprudence as “rules that states universally abide by, or accede to … out of a sense of legal obligation and mutual concern

Under the US legal rules at issue, customary international law is not created because the domestic law of various individual countries may recognise corporate liability.

It may be desirable one day in the future for companies to be held liable for violations of international customary law. But customary international law is not what one wishes or hopes it to be: there are strict criteria established by US appellate courts that have to be met before a principle becomes part of customary international law. It is not the stuff of dreams . The status of customary international law during the apartheid era — as well as its current status — is that it regulates states and in certain circumstances individuals, but does not apply to corporations.
For example, the Nuremburg trials did not allow for corporations to be held liable. The International Convention on the Suppression and Punishment of the Crime of Apartheid did not include liability for corporations. The Rome Statute — which set up the International Criminal Court — rejected liability for corporations specifically because corporate liability was not yet universally recognised. The jurisdiction of the International Criminal Tribunals for Rwanda and Yugoslavia was limited only to natural persons.

One cannot decide today that a rule must be created that says that actions that occurred in the past and which weren’t illegal then now can suddenly render a company liable today. This violates the principle that laws should not apply retrospectively — a principle of customary international law.

The plaintiffs in this matter seek to rely on domestic law to prove that international law accepts corporate liability. But this is not a legally correct conclusion and puts the cart before the horse. They also rely on treaties which came into force after the end of apartheid to try to prove that actions during apartheid subject corporations to liability. That is not possible, especially as those treaties do not reflect customary international law and do not even necessarily impose liability on corporations (as they leave it to the states to choose what to do).

It seems to me that the plaintiffs and their academic supporters were answering in their court submission a different question: whether international law should allow for liability for corporations. But that was not the question the court was asking.

The Mbeki administration (of which I was a part) considered the matter very carefully in the early 2000s and decided that it is the very pendency of the apartheid litigation in the US that is against SA’s own sovereign interests.

The Zuma administration has now changed that position. I am not sure why, because the statements from the government about the litigation are confusing. Regardless, SA’s sovereign interests have not changed just because we have a new government, and all the well thought-out, convincing arguments remain for why these claims should not be heard in New York.The legacy of apartheid and the questions of who should be held accountable and to whom are questions at the heart of the South African identity. We fought for many years so that we could become the masters of our own destiny as South Africans. So why would we hand that legacy over to a randomly picked group of 12 people in a jury room in New York?

According to recent press reports, the current administration withdrew SA’s opposition to the pendency of the US litigation in September last year because of yet-to-be-disclosed evidence given last year to Justice Minister about a yet-to-be-filed European Union (EU) lawsuit that will supposedly expose sanctions busters.

Not even considering the “ hearsay” nature of these allegations, none of the media reports about this allegedly planned EU lawsuit mention the current corporate defendants as being involved. If true, one would argue that any such case — such as the apartheid litigation — should be heard by the courts of SA, and that the government should have upon learning about it redoubled its efforts to have the apartheid litigation brought back to SA.

If the case were heard in SA under South African domestic law, there would be no question about whether a company could be held liable here, if all the facts were proved, for aiding and abetting crimes. Under South African domestic law, both natural persons and companies could be held to account.

However, the plaintiffs, Khulumani, and their lawyers chose to file these claims in the US and not in SA because their potential compensation amounts will be higher in the US. They chose the US forum, a choice apparently now supported by SA’s government, and they must now accept that under the US Alien Tort Statute it is customary international law — not the domestic law of the US, SA or any other country — that establishes the scope of liability there.
My heart goes out to the ordinary plaintiffs, but their application is misconceived. These important questions require intellectual honesty and an understanding of the law. The applicable rule of law in this litigation is the American interpretation of customary international law. Unfortunately for the plaintiffs, the legal consequence of their choice of forum requires that their US cases against these multinational corporations be dismissed.

*Asmal is honorary professor in law at the University of the Western Cape and the University of Cape Town.

Keep an eye on this:

Pfizer Inc. v. Abdullahi et al. - Docket: 09-34

On Nov. 2, 2009 the Solicitor General is invited to file a brief in this case expressing the views of the United States. That should be out soon!

Issue: Whether Alien Tort Statute (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.

Opinion below (2nd Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of Chamber of Commerce of the United States of America
Brief amici curiae of Washington Legal Foundation et al.

UPDATE: In re SOUTH AFRICAN APARTHEID LITIGATION

The Second Circuit has indicated that it will proceed - on January 11, 2010 - with oral argument on the issues raised by defendants in their appeal. See In re SOUTH AFRICAN APARTHEID LITIGATION, 2009 WL 5177981, at *n.8 (S.D.N.Y. Dec. 31, 2009).

Judge Allows Apartheid Suit Against Corporations
By JONATHAN PERLOW
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(CN) - A federal judge in Manhattan again allowed a lawsuit to proceed against several corporate giants for their alleged role in aiding South Africa's oppressive apartheid regime. Daimler AG, General Motors, Ford Motor Co. and IBM are accused of "aiding and abetting" human rights violations under the apartheid government.

In October, the South African government reversed its position and threw its support behind the class action, brought in 2002 by victims of apartheid crimes, including torture, rape and denationalization.

The class members filed suit on behalf of "themselves and all black South African citizens" for violations of the law of nations.

From 1960 to 1994, blacks in South Africa were deprived of their citizenship and were forced to become citizens of tribally based homelands called "Bantustans."

U.S. District Judge Shira A. Scheindlin gave the suit new life last year when she gave the plaintiff class the opportunity to sue under the Alien Tort Claims Act. The 220-year-old law lets U.S. federal courts hear human rights cases brought by foreigners alleging violations of international law.

The defendants unsuccessfully sought dismissal, saying corporations are exempt under the statute. Judge Scheindlin denied their bid to dismiss the case last spring, and then rejected a motion for "certification of an interlocutory appeal" in the most recent action.

Her 144-page opinion in April stated that Daimler, GM and Ford should be on the hook for claims that they "aided and abetted torture, extrajudicial killing and apartheid."

The automakers are accused of providing armored military vehicles used to suppress marches and worker protests, and of assisting security forces tasked with identifying and torturing anti-apartheid leaders.

The judge also allowed claims against IBM to proceed, for providing the technology that allowed the South African government to carry out "geographic segregation and denationalization," according to the plaintiffs.

Scheindlin said that corporate liability under the Alien Tort Claims Act "is a long-settled question in this Circuit."

"On at least nine separate occasions, the 2nd Circuit has addressed ATCA cases against corporations without ever hinting -- much less holding -- that such cases are barred," the judge wrote. The 2nd Circuit remanded parts of the apartheid cases back to district court. In her most recent ruling, she noted that the 2nd Circuit didn't tackle the issue directly, only stating that it was "assum[ing], without deciding, that corporations ... may be held liable for the violations of customary international law."

The appeals court added that it was not "reach[ing] the question of whether international law extends the scope of liability to corporations."

"The 2nd Circuit has made clear that it has not yet decided the question of corporate liability," Scheindlin wrote. "However, it has not provided any reason to believe that there are substantial grounds for disagreement about the correct result in a case where that question is presented."

In 2008 the U.S. Supreme Court chose not to intervene in the lower court's decision to hear the claims, due to the recusal of four justices.

Nigeria: Shell Faces More Trials Over Oil Spills
Sopuruchi Onwuka - 3 January 2010

After paying out millions of dollars to Ogoni right activist to rest legal actions over its culpability in the execution of host community leaders in Nigeria, Anglo-Dutch oil giant, Shell, is to face another legal battle over environmental degradation in Nigeria.

A Dutch court ruled this weekend that it had the authority to handle a case brought against a unit of Shell for alleged negligence related to oil spills in Nigeria, according to agency sources.

The development follows failed attempts by the oil multinational to block the legal action on technical grounds.

Another case against Shell over its activities in Nigeria is still pending in the United States while activists that have secured the right to sue said they would collaborate to press environmental degradation charges against the firm in its Dutch homeland.

Environmental group Friends of the Earth Netherlands and four Nigerians aim to sue Shell in a Dutch court on the negligence charges related to several incidents of oil spills.

Shell asked for a ruling on whether the Dutch court had jurisdiction over its Nigerian activities, but the court rejected a claim of incompetence.

"The court has decided that it is competent, so we will be handling the case," said a court spokeswoman.

"The facts are connected and for reasons of efficiency the cases against Shell and Shell Nigeria will be handled jointly."

Shell will be able to enter a statement of reply to the claims on 10 February, the court spokeswoman said.

Shell said it was disappointed with the court's ruling.

The National Oil Spill Detection and Response Agency (NOSDRA) had at a media workshop in Lagos declared that Shell and Agip were responsible for over 70 percent of total oil spills in the country.

The spills, according to the agency, constituted severe environmental challenge in the host Niger Delta environment, and posed serious danger to ecological setting of the area.

Friends of the Earth Netherlands and the Nigerian plaintiffs, who are fishermen and farmers from the Niger Delta, welcomed the decision to pursue the cases jointly.

"Now we can start the real lawsuit about whether Shell is responsible and how much they have to do to compensate the damage," a spokeswoman for the environmental group said.

In a similar case that lasted fourteen years, Shell had in June paid a $15.5 million out-of-court settlement to plaintiffs from the Ogoni land of the Niger Delta to end a case of complicity in human rights atrocities committed against the Ogoni people in the 1990s, including the execution of writer and activist Ken Saro-Wiwa.

The legal action was one of the few cases brought under the U.S. Alien Tort Statute that have been resolved in favor of the plaintiffs.

The settlement included establishment of a $5 million trust to benefit local communities in Ogoni.

"We congratulate the plaintiffs on their victory. Let there be no doubt that Shell has emerged guilty. With this settlement, Shell is seeking to keep the overwhelming evidence of its crimes away from the scrutiny of a jury trial," said Ben Amunwa from the UK-based remember saro-wiwa project. "Shell could not stand the damage of bad publicity around this human rights case. Global campaigners have helped to highlight Shell's abuses and we share in this historic victory."
"Shell is guilty. Despite this victory, justice will not be served in Ogoni and throughout the Delta until the gas flares are put out, the spills cleaned up, and the military stops protecting the oil companies and starts serving the people," said Steve Kretzmann, Executive Director of Oil Change International.

"This issue will not be solved until these legitimate grievances of the community are addressed."
"This case should be a wake up call to multinational corporations that they will be held accountable for violations of international law, no matter where they occur," said Han Shan, ShellGuilty Campaign Coordinator for Oil Change International.

The next phase of the struggle continues with another case involving an Ogoni plaintiff pending in the New York District Court, and a further legal action in The Hague, Netherlands, where Royal Dutch Shell is headquartered.

The company faces a legal action in the Netherlands for repeated oil spills, brought by residents of the Niger Delta, with support from Friends of the Earth Netherlands and Friends of the Earth Nigeria.

"Shell will be dragged from the boardroom to the courthouse, time and again, until the company addresses the injustices at the root of the Niger Delta crisis and puts an end to its environmental devastation," said Elizabeth Bast, International Program Director for Friends of the Earth U.S. "Communities, human rights lawyers and activists will continue to demand justice with the same determination and hope shown by Ken Saro-Wiwa and the Ogoni people."

Should a foreign-born plaintiff located outside the U.S. have standing under the ATS?

No:

http://www.columbialawreview.org/assets/pdfs/109/8/Hamburger.pdf

http://www.boalt.org/bjil/docs/BJIL27.2_Berry.pdf