Defendants in Presbyterian Church recently filed a conditional cross-motion for certiorari asking that, if the court grants plaintiffs' motion for cert, it should also grant cert on the issue of whether the ATS applies to corporations and whether it applies extraterritorially.  See it here.

Excerpt from interesting blogpost:

Another aspect of Sinaltrainal is the Eleventh Circuit's reliance on the U.S. Supreme Court's recent decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which extends the heightened pleading standards laid out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to all cases. To maintain their ATS claims, the plaintiffs in Sinaltrainal had to sufficiently plead that "the paramilitaries were state actors or were sufficiently connected to the Columbian government so they were acting under color of law." Slip op. at 22-23. Accordingly, the plaintiffs alleged in their complaint that it is "universally acknowledged that the regular military and the civil government authorities in Columbia tolerate the paramilitaries, allow them to operate, and often cooperate, protect and/or work in concert with them." Id. at 23. The court, however, found this allegation lacking under Iqbal and held that the plaintiffs' "conclusory allegation that the paramilitary security forces acted under color of law is not entitled to be assumed true and is insufficient to allege state-sponsored action." Id. at 23. This holding suggests that Iqbal may put the brakes on the growing trend of allowing cases based on dubious theories of vicarious corporate ATS liability to proceed to trial.

New Essay: D.H. Moore, Medellín, the Alien Tort Statute, and the Domestic Status of International Law, Virginia J. Int'l L. (2010)

The Supreme Court’s landmark decision in Medellín has predictably generated debate regarding its significance for the domestic role of treaties.  Medellín’s import, however, reaches farther than the literature has acknowledged. The decision diminishes prospects for ATS litigation based on violations of treaties by undercutting the number of treaties that may be judicially enforced at the behest of private individuals. The decision also limits ATS litigation based on breaches of CIL by reducing the number of treaties that may provide evidence of actionable CIL norms.  More...

See Moore's blog post at: http://opiniojuris.org/2010/02/03/medellin-the-alien-tort-statute-and-the-domestic-status-of-international-law/

ATS: Attempts to sue the pope or the Holy See will run into a wall of legal immunity
ATS plaintiffs will eventually set their sights on the pope and the Holy See, whether to demand a higher level of accountability, to seek deeper pockets, to elicit publicity and exert additional pressure on the Church to settle, or for other reasons.

Attempts to sue the pope and the Holy See will run into a wall of legal immunity. The pope himself likely will be protected by head-of-state immunity, even for actions he may have taken before he was Pope. Unlike sovereign and diplomatic immunity, head-of-state immunity is a creature not of statute, but of common law. This immunity is accorded, at the request of the Executive Branch, to any leader of a foreign State. See Ex Parte Peru, 318 U.S. 578, 588 (1943). Although it may be doubted whether the Holy See is a “State” for all purposes, courts have held that it is for purposes of head-of-state immunity. Therefore, claims against the pope will be barred in any case in which the President files a suggestion of head-of-state immunity. These suggestions are not reviewable by any federal court, and are not rare. The Bush Administration filed one in 2005 for the current Pope in a case based on clergy sexual abuse. While the Obama Administration has not addressed the matter, there is no reason to believe that it will be any less receptive than its predecessor to requests from the Pope for immunity.

While head-of-state immunity applies only to the Pope personally, the Holy See can claim immunity under the Foreign Sovereign Immunities Act (FSIA). Courts have held that the Holy See is a foreign state within the meaning of FSIA. However, there are exceptions to FSIA immunity, most notably the exception for “tortious acts.” But this exception applies only to torts committed in the United States. It is not available to claims of abuse in foreign countries. Given that ATS claims can be brought only by “aliens,” the tortious act exception will be useful only in the small class of cases, if any, in which the abuse occurred exclusively within the United States.

Keitner Takes on Bradley/Goldsmith on Government Official Immunity
by Julian Ku

Harvard Law School’s International Human Rights Clinic submitted an amicus brief (PDF) to the Supreme Court in support of a petition for certiorari in Presbyterian Church of Sudan v. Talisman Energy, Inc.

UPDATE

Sarei v. Rio Tinto, Case No. 09-56381 (9th Cir.): On March 29, the federal government filed a letter stating that it would not submit an amicus brief. The case is fully briefed, but a hearing date has not been set.

Presbyterian Church of Sudan v. Talisman Energy Co.: The plaintiffs filed a cert petition on April 15, 2010. The opposition should be filed today. The questions presented: (1) whether, in ATS cases, the standards of aiding and abetting and conspiracy liability are provided by international law or federal common law; (2) whether aiding and abetting liability can be imposed based on proof that the defendant acted with knowledge, or if intent it required; (3) whether conspiracy liability is available under the ATS.

Abdullahi v. Pfizer: The petition for certiorari is still pending. On November 2, 2009, the court invited an amicus from SG, but the SG has not yet responded.

Arar v. Ashcroft: The petition for certiorari was filed February 1 and is still pending. Respondents oppositions were filed on May 12.

Paul Hoffman admits that no "good" lawfirms represent ATS plaintiffs.

Q: What common obstacles do you face when litigating human rights cases against corporations?

A: One of the difficulties is that they are represented by huge law firms that have unlimited resources and we don’t have a lot of resources; we don’t have good law firms coming in on our side....

Hmm...

READ: The "Define & Punish" Clause and the Limits of Universal Jurisdiction by Eugene Kontorovich; and see Prof. Kontorovich on youtube.

The Alien Tort Statute: An Overview of the Current Issues
David D. Caron & Dick Buxbaum, 28 Berk. J. Int'l L. 513 (2010).

Bauman, et al v. DaimlerChrysler Corp.

United States Court of Appeals for the Ninth Circuit - Docket Activity

Appellants’ Petition for Rehearing is GRANTED. The opinion filed on August 28, 2009 is vacated. This case shall be reheard by the 3-judge panel (Schroeder, Nelson and Reinhardt) the week of June 21, 2010.

The parties are ordered to submit supplemental briefs addressing the following questions (which are lifted right out of Reinhardt's August 2009 Dissent):

1. Is “control” an element of this court’s agency test for personal jurisdiction? If so, how much control is required? If our precedent is unclear, how much control should be required?

2. If the panel concludes that an agency relationship exists, would an exercise of general jurisdiction over defendants be reasonable in this case?

[UPDATE (05/20/10): Papers due today.]