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.