Wednesday, December 29, 2010

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 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

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.”

Friday, December 17, 2010

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.

Monday, December 13, 2010

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...

Thursday, December 9, 2010

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.

Thursday, December 2, 2010

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."