Amici filed in Second Circuit last week re: In re Apartheid:
BRIEF OF AMICI FEDERATION OF GERMAN INDUSTRIES,
ASSOCIATION OF GERMAN CHAMBERS OF INDUSTRY AND
COMMERCE, AND GERMAN AMERICAN CHAMBERS OF
COMMERCE, IN SUPPORT OF DEFENDANTS-APPELLANTS
BRIEF AMICUS CURIAE FOR LAW PROFESSORS OF
INTERNATIONAL LAW AND U.S. FOREIGN RELATIONS LAW
Tuesday, September 1, 2009
BAUMAN v. DAIMLERCHRYSLER
Argentinian residents filed a lawsuit under the Alien Tort Statute against Daimler-Chrysler AG for human rights violations allegedly committed by Mercedes Benz Argentina in Argentina during the 1970s military regime. Daimler filed a successful Rule 12(b)(2) motion - the case was dismissed for lack of personal jurisdiction, and the 9th Circuit heard the appeal - and affirmed.
Argentinian residents filed a lawsuit under the Alien Tort Statute against Daimler-Chrysler AG for human rights violations allegedly committed by Mercedes Benz Argentina in Argentina during the 1970s military regime. Daimler filed a successful Rule 12(b)(2) motion - the case was dismissed for lack of personal jurisdiction, and the 9th Circuit heard the appeal - and affirmed.
Rights Case Gone Wrong: A Ruling Imperils Firms And U.S. Diplomacy
By Curtis A. Bradley and Jack L. Goldsmith:
As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period... more...
By Curtis A. Bradley and Jack L. Goldsmith:
As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period... more...
Thursday, August 27, 2009
Arcane Law Brings Conflicts From Overseas to U.S. Courts (WSJ)
By NATHAN KOPPEL
Victims of human-rights abuses around the world increasingly are seeking justice American style -- by filing lawsuits against deep-pocketed defendants.
The Alien Tort Statute, a one-sentence law enacted in 1789 authorizing foreign nationals to file U.S. civil actions against those who violate "the law of nations," has been used often in recent years to sue major companies for alleged complicity in crimes overseas, including torture and murder. Defendants need only to have regular business contacts with the U.S. to be vulnerable to lawsuits.
The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs' lawyers have seized on the long-dormant law to enrich themselves. Knotty geopolitical issues, they say, are better left to Congress and the White House, not unelected federal judges. But human-rights lawyers counter that victims of abuses often can't obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas.
"Think of a troubled spot in the world, and it likely has given rise to alien tort litigation," says Curtis Bradley, a Duke University School of Law professor.
In one of the most prominent recent cases, Royal Dutch Shell PLC paid $15.5 million in June to settle a lawsuit claiming it was complicit in the Nigerian government's execution of activists who had protested Shell's oil production in the country. Shell has denied wrongdoing.
The Alien Tort Statute was virtually a dead letter until 1980, when the Second U.S. Circuit Court of Appeals ruled that Paraguayan citizens who resided in the U.S. could sue a Paraguayan police official who allegedly had kidnapped and tortured a family member of the plaintiffs in their home country. A trial judge later awarded the plaintiffs $10 million in damages.
The Second Circuit ruling sparked a surge in alien tort suits, but it wasn't until the 1990s, lawyers say, that plaintiffs started targeting corporations, often under the theory that they aided foreign officials or third parties who committed abuses. In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge. "Is it enough to just read a newspaper or a blog that a particular sovereign is engaged in human-rights violations?" Mr. Cyr says. "Multinationals incur risks anytime they do business with anyone who has been accused of human-rights violations."
Most federal districts now allow suits against corporations for the same types of human-rights violations that can be brought against individuals -- torture, extrajudicial killings, slavery-like practices, war crimes, says Paul Hoffman, a Los Angeles attorney who specializes in filing alien tort suits.
Last month, a Los Angeles federal judge ruled that alien tort claims could be brought alleging that London-based Rio Tinto PLC engaged in mining operations on the island of Bougainville in Papua New Guinea that incited a 10-year civil war, during which thousands of civilians died. Rio Tinto denies the allegations.
And earlier this year, a New York federal judge allowed claims to move forward alleging that several major multinational companies, including General Motors Corp. and Ford Motor Co., aided and abetted human-rights violations by providing goods and services to South Africa's apartheid regime. Ford declined to comment. In a statement, GM said the company "opposed apartheid and became a proactive corporate leader in expressing this stand."
Thomas Niles, a former U.S. ambassador to Canada and Greece who is now the vice chairman of the United States Council for International Business, a pro-business group, says corporations are being used unfairly as a surrogate for foreign governments in these cases. "You can't sue the government of Nigeria or South Africa because of sovereign immunity, so who are you going to sue? Companies, and they are sued essentially for being" in countries where human-rights violations occur.
Some legal experts raise a broader concern that alien tort litigation can interfere with American foreign policy. "I regularly heard from legal advisers and ambassadors that they were outraged that our federal courts were judging conduct in their country," says John Bellinger III, the chief legal adviser to the U.S. Department of State from 2005 to early 2009.
But Congress has the authority to rein in alien-tort litigation and hasn't done so, casting doubt that the litigation impinges on diplomatic interests, human-rights lawyers counter. If anything, alien tort suits improve America's standing abroad, says Katherine Gallagher, an attorney with the Center for Constitutional Rights, a New York-based nonprofit that files alien tort suits.
The suits, she says, "give people in foreign countries comfort that U.S. corporations and officials will abide by international standards and not go to different corners of the globe and exploit the local populations."
Write to Nathan Koppel at nathan.koppel@wsj.com
Printed in The Wall Street Journal, page A11
By NATHAN KOPPEL
Victims of human-rights abuses around the world increasingly are seeking justice American style -- by filing lawsuits against deep-pocketed defendants.
The Alien Tort Statute, a one-sentence law enacted in 1789 authorizing foreign nationals to file U.S. civil actions against those who violate "the law of nations," has been used often in recent years to sue major companies for alleged complicity in crimes overseas, including torture and murder. Defendants need only to have regular business contacts with the U.S. to be vulnerable to lawsuits.
The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs' lawyers have seized on the long-dormant law to enrich themselves. Knotty geopolitical issues, they say, are better left to Congress and the White House, not unelected federal judges. But human-rights lawyers counter that victims of abuses often can't obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas.
"Think of a troubled spot in the world, and it likely has given rise to alien tort litigation," says Curtis Bradley, a Duke University School of Law professor.
In one of the most prominent recent cases, Royal Dutch Shell PLC paid $15.5 million in June to settle a lawsuit claiming it was complicit in the Nigerian government's execution of activists who had protested Shell's oil production in the country. Shell has denied wrongdoing.
The Alien Tort Statute was virtually a dead letter until 1980, when the Second U.S. Circuit Court of Appeals ruled that Paraguayan citizens who resided in the U.S. could sue a Paraguayan police official who allegedly had kidnapped and tortured a family member of the plaintiffs in their home country. A trial judge later awarded the plaintiffs $10 million in damages.
The Second Circuit ruling sparked a surge in alien tort suits, but it wasn't until the 1990s, lawyers say, that plaintiffs started targeting corporations, often under the theory that they aided foreign officials or third parties who committed abuses. In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge. "Is it enough to just read a newspaper or a blog that a particular sovereign is engaged in human-rights violations?" Mr. Cyr says. "Multinationals incur risks anytime they do business with anyone who has been accused of human-rights violations."
Most federal districts now allow suits against corporations for the same types of human-rights violations that can be brought against individuals -- torture, extrajudicial killings, slavery-like practices, war crimes, says Paul Hoffman, a Los Angeles attorney who specializes in filing alien tort suits.
Last month, a Los Angeles federal judge ruled that alien tort claims could be brought alleging that London-based Rio Tinto PLC engaged in mining operations on the island of Bougainville in Papua New Guinea that incited a 10-year civil war, during which thousands of civilians died. Rio Tinto denies the allegations.
And earlier this year, a New York federal judge allowed claims to move forward alleging that several major multinational companies, including General Motors Corp. and Ford Motor Co., aided and abetted human-rights violations by providing goods and services to South Africa's apartheid regime. Ford declined to comment. In a statement, GM said the company "opposed apartheid and became a proactive corporate leader in expressing this stand."
Thomas Niles, a former U.S. ambassador to Canada and Greece who is now the vice chairman of the United States Council for International Business, a pro-business group, says corporations are being used unfairly as a surrogate for foreign governments in these cases. "You can't sue the government of Nigeria or South Africa because of sovereign immunity, so who are you going to sue? Companies, and they are sued essentially for being" in countries where human-rights violations occur.
Some legal experts raise a broader concern that alien tort litigation can interfere with American foreign policy. "I regularly heard from legal advisers and ambassadors that they were outraged that our federal courts were judging conduct in their country," says John Bellinger III, the chief legal adviser to the U.S. Department of State from 2005 to early 2009.
But Congress has the authority to rein in alien-tort litigation and hasn't done so, casting doubt that the litigation impinges on diplomatic interests, human-rights lawyers counter. If anything, alien tort suits improve America's standing abroad, says Katherine Gallagher, an attorney with the Center for Constitutional Rights, a New York-based nonprofit that files alien tort suits.
The suits, she says, "give people in foreign countries comfort that U.S. corporations and officials will abide by international standards and not go to different corners of the globe and exploit the local populations."
Write to Nathan Koppel at nathan.koppel@wsj.com
Printed in The Wall Street Journal, page A11
Wednesday, August 19, 2009
Sinaltrainal v. Coca-Cola Co., No. 06-15851
In an action claiming that plaintiffs-trade union leaders' employers, two bottling companies, collaborated with Colombian paramilitary forces to murder and torture plaintiffs, dismissal of the complaint is affirmed where defendants were not vicariously liable under the ATS for the acts of plaintiffs' employers due to lack of day-to-day control over their operations.
In an action claiming that plaintiffs-trade union leaders' employers, two bottling companies, collaborated with Colombian paramilitary forces to murder and torture plaintiffs, dismissal of the complaint is affirmed where defendants were not vicariously liable under the ATS for the acts of plaintiffs' employers due to lack of day-to-day control over their operations.
Tuesday, July 14, 2009
Shell (foolishly) Settles Nigeria Case
Oil Giant to Pay $15.5 Million Over Deaths of Activists
By ISABEL ORDONEZ and RUSSELL GOLD
Royal Dutch Shell PLC agreed Monday to pay $15.5 million to settle a lawsuit over the 1995 deaths of Nigerian author and activist Ken Saro-Wiwa and others.
The Anglo-Dutch oil giant faced a lawsuit in federal court in Manhattan under the Alien Tort Claims Act, on allegations that it was complicit in the 1995 deaths of Mr. Saro-Wiwa and other activists. The lawsuit was brought by family members and surviving activists.
Shell has denied it played any role in the execution of Mr. Saro-Wiwa by the military government. In a statement, Malcolm Brinded, head of the company's exploration and production unit, said: "Shell has always maintained the allegations were false. While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region."
A massive oil spill in Ogoniland in 1970 inspired Mr. Saro-Wiwa, founder of the Movement for the Survival of the Ogoni People to launch two decades later a campaign against Shell's Nigerian onshore unit. The campaign led to the abandoning of oil production in Ogoniland in 1993.
The Ogonis' plight was the focus of global criticism of the oil industry when Mr. Saro-Wiwa and eight other activists were executed by a Nigerian military regime in 1995.
Plaintiffs said $5 million of the settlement amount would go into a trust fund for the Ogoni people and the balance for lawyers fees and to the 10 plaintiffs who brought the case.
"It has been a good case to help set the foundation for allowing human rights plaintiffs to get some degree of accountability from corporations," said Paul Hoffman, the trial counsel for the plaintiffs.
more
Oil Giant to Pay $15.5 Million Over Deaths of Activists
By ISABEL ORDONEZ and RUSSELL GOLD
Royal Dutch Shell PLC agreed Monday to pay $15.5 million to settle a lawsuit over the 1995 deaths of Nigerian author and activist Ken Saro-Wiwa and others.
The Anglo-Dutch oil giant faced a lawsuit in federal court in Manhattan under the Alien Tort Claims Act, on allegations that it was complicit in the 1995 deaths of Mr. Saro-Wiwa and other activists. The lawsuit was brought by family members and surviving activists.
Shell has denied it played any role in the execution of Mr. Saro-Wiwa by the military government. In a statement, Malcolm Brinded, head of the company's exploration and production unit, said: "Shell has always maintained the allegations were false. While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region."
A massive oil spill in Ogoniland in 1970 inspired Mr. Saro-Wiwa, founder of the Movement for the Survival of the Ogoni People to launch two decades later a campaign against Shell's Nigerian onshore unit. The campaign led to the abandoning of oil production in Ogoniland in 1993.
The Ogonis' plight was the focus of global criticism of the oil industry when Mr. Saro-Wiwa and eight other activists were executed by a Nigerian military regime in 1995.
Plaintiffs said $5 million of the settlement amount would go into a trust fund for the Ogoni people and the balance for lawyers fees and to the 10 plaintiffs who brought the case.
"It has been a good case to help set the foundation for allowing human rights plaintiffs to get some degree of accountability from corporations," said Paul Hoffman, the trial counsel for the plaintiffs.
more
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