The U.S. Can't Be the World's Court
New York isn't the right venue to sue for apartheid abuses.
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
Recent Alien Tort Statute Case Cautions Against Corporations Doing Business With Foreign Governments
A federal district court in New York recently issued an important decision setting the limits of corporate liability under the Alien Tort Statute (“ATS”) in a case concerning corporate defendants who did business with the South African apartheid government. The ATS allows aliens to sue in U.S. courts for violations of international law. The decision in In re South African Apartheid Litigation, No. 02-MDL-1499 (S.D.N.Y. Apr. 8, 2009), limits liability to situations where a company knowingly provides goods and services that are the actual means by which an international law violation occurred.
The plaintiffs in South African Apartheid are large classes of black South Africans who suffered damages as a result of the country’s apartheid policies from 1960 to 1994. The defendants are several multinational corporations, including Ford Motor Co., Daimler, IBM, Fujitsu and two international banks that did business with the South African government during that time period. The plaintiffs claimed they suffered harms ranging from discriminatory employment practices and arbitrary denationalization to torture and extrajudicial killing. They sued the defendants based largely on the theory that the corporations aided and abetted South Africa’s repressive regime by providing goods and services to the government.
Following Second Circuit precedent, the court first held that corporations may generally be held liable under a theory of aiding and abetting an ATS violation. The court then described the two requirements for stating a claim under this statute.
First, a plaintiff must allege that the corporation’s conduct was wrongful. The court noted that it is “undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law.” Rather, the plaintiff must show that the corporation’s conduct had a “substantial effect on the perpetration of a crime.” The court explained that the “substantial effect” test means that the defendant provided “the means by which a violation of the law is carried out.” For example, merely loaning money or selling raw materials to an entity that violates the law of nations would not meet this standard; providing poison gas used to commit an actual violation would.
Second, a plaintiff must also allege that the corporation had the requisite state of mind to commit the violation. The court rejected the defendants’ argument that plaintiffs must show that the defendants knew and intended that the goods or services would further the primary violation. Rather, it adopted a lower standard: that the defendant must only “know that its actions will substantially assist the perpetrator in the commission of the crime or tort in violation of the law of nations.”
Applying these standards, the court came to different outcomes based on the specific allegations.
The court dismissed claims against the automotive defendants who were alleged to have sold commercially-available cars and trucks to the South African government. However, the court allowed claims to go forward against these defendants for selling armored personnel carriers and military fittings actually used in extrajudicial killings and other international law violations.
The court dismissed claims against the technology companies that were based on the allegation that the computer companies had merely sold computers to the South African Department of Prisons, even though there was “widely held knowledge” of abuse at those prisons. However, the court denied the motion by these companies to dismiss claims based on the allegations that those companies had knowingly provided computers, training and software specifically designed to allow the South African government to track and then denationalize black citizens.
The court dismissed all claims against the banks because the allegations that they had loaned money to the South African government and bought its defense bonds were “not sufficiently connected to the primary violation.” The court also rejected claims based on the allegation that the banks had engaged in racially-discriminatory employment practices because these practices “were more akin to acquiescence to—rather than the provision of essential support for—apartheid.”
While companies may continue to sell goods and services to foreign governments, the South African Apartheid case extends the limited jurisprudence in this area and makes the decision whether to do so more difficult. In a 2005 decision, Corrie v. Caterpillar Inc., a federal district court in Washington State dismissed claims against Caterpillar Inc. for selling bulldozers to the Israeli Defense Forces, which then used them to destroy homes in Palestine, causing personal injury and death. The court concluded that because Caterpillar had sold “a legal, non-defective product” to Israel, the company could not be held liable under the ATS. In contrast to Corrie, the South African Apartheid decision requires courts to look beyond the legality of the product on its face, to its actual use. Under South African Apartheid, provision of a perfectly legal product to a foreign government that then uses it in a wrongful manner can form the basis of ATS liability if the company knew of the intended use. Thus, under South African Apartheid, companies must exercise caution when selling goods and services to foreign governments, particularly when those governments have problematic human rights records, or where the goods are intended for military or security use.
The South African Apartheid case also makes clear the need for certainty on the question whether aiding and abetting liability is even available under the Alien Tort Statute and the precise standard for such liability. The Circuits are deeply divided over these issues. The ATS normally provides a remedy only for action by a state, but ATS plaintiffs have used the aiding and abetting theory to expand the statute’s reach to include multinational corporations. The South African Apartheid case carries that expansion farther than ever before, creating new and greater risks for multinational corporations. Moreover, as the Bush Administration argued in the South African Apartheid case, the theory can also upset diplomatic efforts, particularly with regard to countries—like South Africa—whose policies the United States seeks to change through engagement. Last year, recusals prevented the U.S. Supreme Court from mustering a quorum to hear the South African Apartheid case, but it seems certain that the aiding and abetting theory will eventually be the subject of Supreme Court review.
A federal district court in New York recently issued an important decision setting the limits of corporate liability under the Alien Tort Statute (“ATS”) in a case concerning corporate defendants who did business with the South African apartheid government. The ATS allows aliens to sue in U.S. courts for violations of international law. The decision in In re South African Apartheid Litigation, No. 02-MDL-1499 (S.D.N.Y. Apr. 8, 2009), limits liability to situations where a company knowingly provides goods and services that are the actual means by which an international law violation occurred.
The plaintiffs in South African Apartheid are large classes of black South Africans who suffered damages as a result of the country’s apartheid policies from 1960 to 1994. The defendants are several multinational corporations, including Ford Motor Co., Daimler, IBM, Fujitsu and two international banks that did business with the South African government during that time period. The plaintiffs claimed they suffered harms ranging from discriminatory employment practices and arbitrary denationalization to torture and extrajudicial killing. They sued the defendants based largely on the theory that the corporations aided and abetted South Africa’s repressive regime by providing goods and services to the government.
Following Second Circuit precedent, the court first held that corporations may generally be held liable under a theory of aiding and abetting an ATS violation. The court then described the two requirements for stating a claim under this statute.
First, a plaintiff must allege that the corporation’s conduct was wrongful. The court noted that it is “undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law.” Rather, the plaintiff must show that the corporation’s conduct had a “substantial effect on the perpetration of a crime.” The court explained that the “substantial effect” test means that the defendant provided “the means by which a violation of the law is carried out.” For example, merely loaning money or selling raw materials to an entity that violates the law of nations would not meet this standard; providing poison gas used to commit an actual violation would.
Second, a plaintiff must also allege that the corporation had the requisite state of mind to commit the violation. The court rejected the defendants’ argument that plaintiffs must show that the defendants knew and intended that the goods or services would further the primary violation. Rather, it adopted a lower standard: that the defendant must only “know that its actions will substantially assist the perpetrator in the commission of the crime or tort in violation of the law of nations.”
Applying these standards, the court came to different outcomes based on the specific allegations.
The court dismissed claims against the automotive defendants who were alleged to have sold commercially-available cars and trucks to the South African government. However, the court allowed claims to go forward against these defendants for selling armored personnel carriers and military fittings actually used in extrajudicial killings and other international law violations.
The court dismissed claims against the technology companies that were based on the allegation that the computer companies had merely sold computers to the South African Department of Prisons, even though there was “widely held knowledge” of abuse at those prisons. However, the court denied the motion by these companies to dismiss claims based on the allegations that those companies had knowingly provided computers, training and software specifically designed to allow the South African government to track and then denationalize black citizens.
The court dismissed all claims against the banks because the allegations that they had loaned money to the South African government and bought its defense bonds were “not sufficiently connected to the primary violation.” The court also rejected claims based on the allegation that the banks had engaged in racially-discriminatory employment practices because these practices “were more akin to acquiescence to—rather than the provision of essential support for—apartheid.”
While companies may continue to sell goods and services to foreign governments, the South African Apartheid case extends the limited jurisprudence in this area and makes the decision whether to do so more difficult. In a 2005 decision, Corrie v. Caterpillar Inc., a federal district court in Washington State dismissed claims against Caterpillar Inc. for selling bulldozers to the Israeli Defense Forces, which then used them to destroy homes in Palestine, causing personal injury and death. The court concluded that because Caterpillar had sold “a legal, non-defective product” to Israel, the company could not be held liable under the ATS. In contrast to Corrie, the South African Apartheid decision requires courts to look beyond the legality of the product on its face, to its actual use. Under South African Apartheid, provision of a perfectly legal product to a foreign government that then uses it in a wrongful manner can form the basis of ATS liability if the company knew of the intended use. Thus, under South African Apartheid, companies must exercise caution when selling goods and services to foreign governments, particularly when those governments have problematic human rights records, or where the goods are intended for military or security use.
The South African Apartheid case also makes clear the need for certainty on the question whether aiding and abetting liability is even available under the Alien Tort Statute and the precise standard for such liability. The Circuits are deeply divided over these issues. The ATS normally provides a remedy only for action by a state, but ATS plaintiffs have used the aiding and abetting theory to expand the statute’s reach to include multinational corporations. The South African Apartheid case carries that expansion farther than ever before, creating new and greater risks for multinational corporations. Moreover, as the Bush Administration argued in the South African Apartheid case, the theory can also upset diplomatic efforts, particularly with regard to countries—like South Africa—whose policies the United States seeks to change through engagement. Last year, recusals prevented the U.S. Supreme Court from mustering a quorum to hear the South African Apartheid case, but it seems certain that the aiding and abetting theory will eventually be the subject of Supreme Court review.
Friday, January 2, 2009
Ninth Circuit en banc Rio Tinto Decision Finally Available
The Court held that certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.
Link to Opinion: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/34621A54B725188A882575210059A416/$file/0256256.pdf?openelement
Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta.
1. The majority opinion (by Judge McKeown and joined by Judges Schroeder and Silverman): The majority opinion holds that under the ATS there is no "absolute requirement of exhaustion," but that "certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law."
The Court found that exhaustion is a "prudential" principle, rather than a substantive requirement, for several reasons. First, it read Sosa footnote 21 to suggest this result (a very questionable reading, as Judge Bea points out). Second, it avoids having to determine "whether exhaustion is a substantive norm of international law, to which the ‘requirement of clear definition’ applies; or if it is nonsubstantive, what source of law—federal common law or international law—illuminates the content."
To determine whether prudential exhaustion should be applied in ATS cases, the majority directed district courts to examine (1) the degree of "United States ‘nexus’" at issue and (2) the "gravity of the potential violations of international law. On the former issue, the Court noted that the allegations in Sarei involve "a foreign corporation’s complicity in acts on foreign soil that affected aliens," and thus have no significant U.S. nexus. On the latter issue, the Court held that the claims for torture, war crimes and crimes against humanity may implicate matters of universal concern because universal criminal jurisdiction is permitted for such claims. However, the Court noted that "simply because universal jurisdiction might be available does not mean that we should exercise it. Indeed, the basis for exercising universal civil jurisdiction, such as under the ATS, is not as well-settled as the basis for universal criminal jurisdiction."
Thus, the Court held that the nexus test militates in favor of prudential exhaustion and that the gravity of the potential violations militate against exhaustion. It then remanded to the district court without significant guidance on how to resolve this tension.
The Court did not say anything about political question—which was the grounds on which the district court dismissed the case—act of state, international comity or aiding abetting. It appears that the Court wants the district court to reconsider these issues—with no new guidance—if it determines that prudential exhaustion is either not required, or would be futile.
2. Judge Bea’s Concurrence: Judge Bea concurs in the result, but writes separately to argue that exhaustion should not be left to the district court’s prudential discretion, but rather it should be required. He writes that "[t]he plurality’s reasoning seems to be that although the ATS incorporates causes of action recognized by the law of nations, it does not incorporate required limitations on those causes of action also recognized by the law of nations. This doesn’t seem logical to me."
3. Judge Ikuta’s Dissent (joined by Kleinfeld): Judge Ikuta disagrees with the majority on two grounds. First, he finds that the district court has discretion to choose among threshold grounds for denying audience to a case on the merits, and therefore it did not err in dismissing the case on political question and act of state grounds, even though it failed to consider exhaustion.
Second, and most significantly, he finds that the ATS does not extend to disputes not involving United States territory or citizens. He finds that this limitation is (1) required by separation of powers concerns; (2) that it is supported by the history of the ATS because no case prior to Filartiga applied the ATS to extraterritorial matters concerning noncitizens; (3) that it furthers the purpose of the ATS, which is to avoid giving offense to foreign nations.
4. Judge Reinhardt’s Dissent (jointed by Judges Pregerson, Berzon and Rawlinson): Judge Reinhardt argues that this is not an appropriate case to consider exhaustion, because the record shows that exhaustion would be futile. Plaintiffs filed declarations stating that they feared for their safety if they returned to Papua New Guinea to litigate these claims. Reinhardt further argues that if this were an appropriate case to consider the issue, an exhaustion requirement should be rejected. First, he argues that in the human rights context, the requirement is supported only by international conventions, not customary law (but this is because the conventions are the only "custom" in this area). Second, he argues that exhaustion is required under international law only for suits before international tribunals, not domestic courts. Third, he argues that the U.S. has a strong interest in adjudicating claims for "heinous offenses like genocide, crimes against humanity, and war crimes." Fourth, he argues that Courts already have many available abstention doctrines to prevent interference with foreign affairs.
The Court held that certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.
Link to Opinion: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/34621A54B725188A882575210059A416/$file/0256256.pdf?openelement
Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta.
1. The majority opinion (by Judge McKeown and joined by Judges Schroeder and Silverman): The majority opinion holds that under the ATS there is no "absolute requirement of exhaustion," but that "certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law."
The Court found that exhaustion is a "prudential" principle, rather than a substantive requirement, for several reasons. First, it read Sosa footnote 21 to suggest this result (a very questionable reading, as Judge Bea points out). Second, it avoids having to determine "whether exhaustion is a substantive norm of international law, to which the ‘requirement of clear definition’ applies; or if it is nonsubstantive, what source of law—federal common law or international law—illuminates the content."
To determine whether prudential exhaustion should be applied in ATS cases, the majority directed district courts to examine (1) the degree of "United States ‘nexus’" at issue and (2) the "gravity of the potential violations of international law. On the former issue, the Court noted that the allegations in Sarei involve "a foreign corporation’s complicity in acts on foreign soil that affected aliens," and thus have no significant U.S. nexus. On the latter issue, the Court held that the claims for torture, war crimes and crimes against humanity may implicate matters of universal concern because universal criminal jurisdiction is permitted for such claims. However, the Court noted that "simply because universal jurisdiction might be available does not mean that we should exercise it. Indeed, the basis for exercising universal civil jurisdiction, such as under the ATS, is not as well-settled as the basis for universal criminal jurisdiction."
Thus, the Court held that the nexus test militates in favor of prudential exhaustion and that the gravity of the potential violations militate against exhaustion. It then remanded to the district court without significant guidance on how to resolve this tension.
The Court did not say anything about political question—which was the grounds on which the district court dismissed the case—act of state, international comity or aiding abetting. It appears that the Court wants the district court to reconsider these issues—with no new guidance—if it determines that prudential exhaustion is either not required, or would be futile.
2. Judge Bea’s Concurrence: Judge Bea concurs in the result, but writes separately to argue that exhaustion should not be left to the district court’s prudential discretion, but rather it should be required. He writes that "[t]he plurality’s reasoning seems to be that although the ATS incorporates causes of action recognized by the law of nations, it does not incorporate required limitations on those causes of action also recognized by the law of nations. This doesn’t seem logical to me."
3. Judge Ikuta’s Dissent (joined by Kleinfeld): Judge Ikuta disagrees with the majority on two grounds. First, he finds that the district court has discretion to choose among threshold grounds for denying audience to a case on the merits, and therefore it did not err in dismissing the case on political question and act of state grounds, even though it failed to consider exhaustion.
Second, and most significantly, he finds that the ATS does not extend to disputes not involving United States territory or citizens. He finds that this limitation is (1) required by separation of powers concerns; (2) that it is supported by the history of the ATS because no case prior to Filartiga applied the ATS to extraterritorial matters concerning noncitizens; (3) that it furthers the purpose of the ATS, which is to avoid giving offense to foreign nations.
4. Judge Reinhardt’s Dissent (jointed by Judges Pregerson, Berzon and Rawlinson): Judge Reinhardt argues that this is not an appropriate case to consider exhaustion, because the record shows that exhaustion would be futile. Plaintiffs filed declarations stating that they feared for their safety if they returned to Papua New Guinea to litigate these claims. Reinhardt further argues that if this were an appropriate case to consider the issue, an exhaustion requirement should be rejected. First, he argues that in the human rights context, the requirement is supported only by international conventions, not customary law (but this is because the conventions are the only "custom" in this area). Second, he argues that exhaustion is required under international law only for suits before international tribunals, not domestic courts. Third, he argues that the U.S. has a strong interest in adjudicating claims for "heinous offenses like genocide, crimes against humanity, and war crimes." Fourth, he argues that Courts already have many available abstention doctrines to prevent interference with foreign affairs.
December 2008
Jones Day Leads Chevron to Landmark Trial Victory in Alien Tort Statute Case
Jones Day's San Francisco office won a jury verdict on all counts for client Chevron Corporation and two of its subsidiaries in an Alien Tort Statute ("ATS") case that had been pending in the Northern District of California since 1999. The case was one of the first ATS cases to go to a jury and has great significance for multinational corporations operating in foreign countries.
The case arose from the takeover of an offshore platform, barge, and tugboat by a group of Nigerian villagers. After three days of negotiations, Chevron Nigeria Ltd. ("CNL") called upon the Nigerian Navy to rescue the 150+ workers who had been held hostage for three days. In the course of the rescue, two of the villagers were shot and killed and one other was seriously injured. Another Nigerian villager was arrested and allegedly tortured while he was detained by the military and police.
In 1999, a coalition of law firms and public interest groups sued Chevron on behalf of four Nigerians, alleging violations of the ATS--which under some circumstances allows foreign citizens to bring claims for violations of international law in U.S. courts--including assault, battery, negligence, and wrongful death. Plaintiffs sued Chevron Corporation and two of its U.S. subsidiaries, not CNL.
The case raised complex issues relating to choice-of-law, vicarious liability, the Death on the High Seas Act, and questions of first impression about the contours of international law claims under the ATS. Jones Day succeeded in dismissing a number of claims before the case reached the jury, including all allegations of direct and alter ego liability, RICO, Crimes Against Humanity, and Summary Execution under the ATS, and all claims under the Torture Victim Protection Act.
The trial started on October 27, 2008, and featured testimony from CNL's chief negotiator, the CNL employee who led the team that decided to call the Navy for the rescue, and the barge workers who were held hostage by the Nigerian villagers. The jury also heard--often through an interpreter--from some of the Nigerians present on the barge and during the subsequent detention.
Plaintiffs' trial theme was to portray themselves as "peaceful environmental protestors" engaged in no wrongdoing; defendants' theme was that CNL's actions were reasonable because it is the right and duty of a company to call law enforcement for help when its workers are held hostage and negotiations have broken down. Key defense evidence, including a photo taken on the tugboat showing that the villagers had access to weapons and a letter, signed by the plaintiffs, threatening violence and sea piracy, belied the plaintiffs' claims to "peacefulness" and bolstered the reasonableness of CNL's actions. On December 1, the jury returned a verdict for each Chevron defendant on every count after less than two days of deliberations.
Interesting article on ramifications: http://writ.news.findlaw.com/sebok/20081202.html
Plaintiff-leaning (but informative) blog of the trial: http://bowotovchevron.wordpress.com/
Jones Day's San Francisco office won a jury verdict on all counts for client Chevron Corporation and two of its subsidiaries in an Alien Tort Statute ("ATS") case that had been pending in the Northern District of California since 1999. The case was one of the first ATS cases to go to a jury and has great significance for multinational corporations operating in foreign countries.
The case arose from the takeover of an offshore platform, barge, and tugboat by a group of Nigerian villagers. After three days of negotiations, Chevron Nigeria Ltd. ("CNL") called upon the Nigerian Navy to rescue the 150+ workers who had been held hostage for three days. In the course of the rescue, two of the villagers were shot and killed and one other was seriously injured. Another Nigerian villager was arrested and allegedly tortured while he was detained by the military and police.
In 1999, a coalition of law firms and public interest groups sued Chevron on behalf of four Nigerians, alleging violations of the ATS--which under some circumstances allows foreign citizens to bring claims for violations of international law in U.S. courts--including assault, battery, negligence, and wrongful death. Plaintiffs sued Chevron Corporation and two of its U.S. subsidiaries, not CNL.
The case raised complex issues relating to choice-of-law, vicarious liability, the Death on the High Seas Act, and questions of first impression about the contours of international law claims under the ATS. Jones Day succeeded in dismissing a number of claims before the case reached the jury, including all allegations of direct and alter ego liability, RICO, Crimes Against Humanity, and Summary Execution under the ATS, and all claims under the Torture Victim Protection Act.
The trial started on October 27, 2008, and featured testimony from CNL's chief negotiator, the CNL employee who led the team that decided to call the Navy for the rescue, and the barge workers who were held hostage by the Nigerian villagers. The jury also heard--often through an interpreter--from some of the Nigerians present on the barge and during the subsequent detention.
Plaintiffs' trial theme was to portray themselves as "peaceful environmental protestors" engaged in no wrongdoing; defendants' theme was that CNL's actions were reasonable because it is the right and duty of a company to call law enforcement for help when its workers are held hostage and negotiations have broken down. Key defense evidence, including a photo taken on the tugboat showing that the villagers had access to weapons and a letter, signed by the plaintiffs, threatening violence and sea piracy, belied the plaintiffs' claims to "peacefulness" and bolstered the reasonableness of CNL's actions. On December 1, the jury returned a verdict for each Chevron defendant on every count after less than two days of deliberations.
Interesting article on ramifications: http://writ.news.findlaw.com/sebok/20081202.html
Plaintiff-leaning (but informative) blog of the trial: http://bowotovchevron.wordpress.com/
Saturday, October 25, 2008
Chevron Fights Lawsuit Filed by Nigerian Hostage Takers
SAN FRANCISCO, Calif., Oct. 24, 2008 – A lawsuit brought on behalf of Nigerian hostage takers against Chevron (Bowoto v. Chevron) is scheduled to begin trial on Oct. 27 in a San Francisco federal court before Judge Susan Illston. This is only the second ATS case to make it to the trial stage. Chevron's lawyers, Jones Day, will present evidence that shows the hostage takers put Chevron Nigeria Limited (CNL) employees and contractors in danger by holding them hostage on an oil platform.
http://www.chevron.com/bowoto/mediarelease.aspx?view=2
http://www.chevron.com/bowoto/mediarelease.aspx?view=2
Wednesday, October 1, 2008
01 October 2008: THE GLOBAL ISSUE: The Nine
"The American Lawyer"
Michael D. Goldhaber and Daphne Eviatar
Talisman in Sudan
Presbyterian Church of Sudan v. Talisman Energy Inc.
The presbyterian church filed a class action in 2001 on behalf of all Christian and non-Muslim residents of southern Sudan. It alleges that the Canadian oil company, Talisman, assisted Sudan in a campaign of genocide, crimes against humanity, and war crimes. These efforts included the displacement, torture, rape, and killing of civilians, and the burning of their churches and villages, in part to make way for oil exploration. A Talisman subsidiary owned a one-quarter interest in the Greater Nile Petroleum Operating Company between 1998 and 2003. It eventually sold that stake to India's Oil and Natural Gas Corporation Ltd.-Videsh Limited (ONGC). A federal district court judge in New York denied Talisman's motion to dismiss, concluding that the U.S. Supreme Court in Sosa v. Alvarez-Machain had contemplated the existence of corporate liability under international law; the U.S. Court of Appeals for the Second Circuit affirmed. But in September 2006, following discovery, district court judge Denise Cote granted summary judgment for Talisman-concluding that plaintiffs had failed to "locate admissible evidence that Talisman has violated international law." Plaintiffs have appealed to the Second Circuit. As the only alien tort appeal in a summary judgment posture, Talisman might be well-positioned for Supreme Court review.
Plaintiffs counsel: Berger & Montague; Lieff Cabraser Heimann & Bernstein. Defense counsel: Lovells; Clifford Chance.
Chevron in Nigeria
Bowoto v. Chevron Corporation
Four nigerian villagers and their families claim that in May 1998, Chevron aided the Nigerian military in an attack on an offshore oil platform that killed two protesters and injured several others. According to the plaintiffs, unarmed protesters were peacefully negotiating when they were shot and beaten by Nigerian soldiers. The federal case seeks compensation for the victims and their families. A parallel state case seeks injunctive relief to prevent future abuses.
After rejecting motions for dismissal and summary judgment, federal district court judge Susan Illston scheduled the case for trial in San Francisco on October 27.
In an August 2007 ruling, Judge Illston found evidence that Chevron's personnel "were directly involved" in the attack; they transported soldiers to the platform despite knowing that the soldiers were "prone to use excessive force." Illston dropped a claim of "crimes against humanity" but left in the case claims for torture and cruel, inhuman, or degrading treatment under international human rights law, as well as claims under California and Nigerian law for wrongful death and assault and battery. "Nearly everything is in dispute," says Robert Mittelstaedt of Jones Day, who is lead trial counsel.
Plaintiffs counsel: Center for Constitutional Rights; EarthRights International; Hadsell Stormer Keeny Richardson & Renick; Traber & Voorhees; Siegel & Yee; Schonbrun DeSimone Seplow Harris & Hoffman; Law Offices of Judith Brown Chomsky.
Defense counsel: Jones Day.
Occidental in South America
Mujica v. Occidental Petroleum Corporation; Shiguago v. Occidental Petroleum Corporation
Luis alberto galvis mujica, a Colombian villager, alleges that Occidental instigated and guided a 1998 Colombian military bombing on the village of Santo Domingo. The attack killed 17 civilians, including three of his relatives. He argues that the raid was designed to protect the company's nearby oil pipeline from attacks by FARC guerillas thought to be hiding in the village. A federal district court judge in Los Angeles dismissed the case in 2005, after the U.S. Department of State said that it would interfere with U.S. foreign relations. An appeal to the U.S. Court of Appeals for the Ninth Circuit has been frozen pending the outcome of the Ninth Circuit appeals in the parallel alien tort case of Sarei v. Rio Tinto. In its first Sarei ruling, the Ninth Circuit held that the State Department's view should not govern. That ruling-which the plaintiffs believe should revive Mujica-is now on review en banc. Esther Mamallacta Shiguago and other Ecuadorean villagers allege that Occidental is complicit in human rights violations inflicted by paramilitaries that guard the company's oil pipeline in Ecuador. By far the youngest case on this list, it had little chance to develop before being stayed pending the en banc appeal in Sarei.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Schonbrun DeSimone Seplow Harris & Hoffman (for Mujica).
Defense counsel: Munger, Tolles & Olson.
Shell in Nigeria
Wiwa v. Royal Dutch Petroleum Company; Kiobel v. Royal Dutch Petroleum Company
Wiwa centers on Nigeria's 1995 execution of activist/poet/Nobel Peace Prize nominee Ken Saro-Wiwa and eight others who campaigned against environmental damage caused by Royal Dutch Shell plc's drilling in the Niger Delta region of Ogoniland. According to plaintiffs, Shell and its Nigerian subsidiary provided monetary and logistical support to the Nigerian crackdown on Ogoni demonstrations, and bribed witnesses to produce false testimony. The case was initially dismissed by New York federal district court judge Kimba Wood under forum non conveniens. It was reinstated by the U.S. Court of Appeals for the Second Circuit in 2000-on the rationale that the strong federal interest in adjudicating the law of nations trumped considerations of convenience. This March, Judge Wood dismissed the claim against Shell's subsidiary for lack of jurisdiction; the plaintiffs' appeal is now being briefed. Kiobel is a separate, broader case arising out of Shell's activities in Nigeria. It alleges that Shell supplied ammunition, transit, and logistical support for the Nigerian military's "Operation Restore Order in Ogoniland." Judge Wood dismissed claims for summary execution by military tribunals-while allowing claims for torture; cruel, inhuman, degrading treatment; crimes against humanity; aiding and abetting; and arbitrary arrest. Both sides have appealed. Kiobel and Talisman will each give the Second Circuit a new opportunity to clarify the confused doctrine of aiding and abetting liability.
Plaintiffs counsel: Center for Constitutional Rights (Wiwa); EarthRights International (Wiwa); Law Offices of Judith Brown Chomsky (Wiwa); Berger & Montague (Kiobel); Schonbrun DeSimone Seplow Harris & Hoffman (Kiobel).
Defense counsel: Cravath, Swaine & Moore.
Exxon in Indonesia
Doe v. Exxon Mobil Corporation
Eleven villagers from the separatist Indonesian province of Aceh allege that, to protect its natural gas operations there, Exxon knowingly employed brutal military groups who beat, shot, and tortured them. These crimes violated both the alien tort statute and Washington, D.C., tort law. As in several other alien tort cases, the U.S. Department of State argued that the suit undermined U.S. foreign policy. In 2005 federal district court judge Louis Oberdorfer in Washington, D.C., dismissed the alien tort claims on a narrow reading of aiding and abetting liability-but declined to dismiss the whole case under the political question doctrine. Last year, the U.S. Court of Appeals for the D.C. Circuit refused to immediately review the question of justiciability. In June the U.S. Supreme Court denied certiorari. In August, Judge Oberdorfer rejected Exxon's motion for summary judgment, finding trialworthy evidence that Exxon's Indonesian subsidiary helped to manage military security, and that the parent exerted control over its subsidiary in such matters. The case is potentially cleared for trial next year on state tort law claims.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Public Citizen Litigation Group; Cohen, Milstein, Hausfeld & Toll.
Defense counsel: Willkie Farr & Gallagher; O'Melveny & Myers; Paul, Weiss, Rifkind, Wharton & Garrison.
Rio in Papua New Guinea
Sarei v. Rio Tinto plc
Plaintiffs allege that Rio Tinto despoiled the pristine rain forest environment of Bougainville, Papua New Guinea, while operating the world's largest copper mine during the 1980s. After the islanders revolted against the central government in Papua New Guinea in 1990, forcing the mine to close, plaintiffs allege that Rio supported a ten-year military blockade of food and medicine. These actions caused the deaths of more than 10,000 Bouganvilleans. The complaint cites crimes against humanity, war crimes, racial discrimination, torture, and violations of the United Nations Convention on the Law of the Sea. Rio Tinto has stated that the allegations are wholly false, malicious, and defamatory. In 2002 federal district court judge Margaret Morrow in Los Angeles dismissed the case under the political question doctrine. In 2006, an initial panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the case. The majority found that the district court judge had deferred unduly to the U.S. Department of State. The judges also rejected the need for a heightened pleading standard and, bucking precedent, contemplated recognition of certain environmental claims under the alien tort statute. Rio argued for reconsideration before an en banc panel of 11 Ninth Circuit justices in October 2007.
The political question may now be moot, because a new party came to power in Papua New Guinea, and withdrew its predecessor's objection to the litigation. The main remaining question is whether alien tort plaintiffs must exhaust all available legal options in their home forum before suing in the United States. Expect a close vote, a fractured opinion, and a certiorari petition by the loser.
Plaintiffs counsel: Hagens Berman Sobol Shapiro; Luvera, Barnett, Brindley, Beninger & Cunningham.
Defense counsel: Morrison & Foerster.
Drummond in Colombia
Romero v. Drummond Company, Inc.
A colombian labor union, and the families of three former union leaders, allege that Drummond hired paramilitaries to murder the three men in 2001, in order to intimidate the union. (Drummond is a family-owned Alabama company that operates coal mines in Colombia.)
In July 2007-in the first corporate alien tort case to be tried to completion-a federal jury in Birmingham exonerated Drummond of liability for war crimes under international customary law. An appeal to the U.S. Court of Appeals for the Eleventh Circuit has been filed by plaintiffs lawyer Terry Collingsworth. He is a partner in the Washington, D.C., office of Florida-based Conrad & Scherer and executive director of the nonprofit International Rights Advocates. Collingsworth says that the district court judge did not give him enough time, under international evidence-gathering rules, to obtain testimony from a witness in a Colombian prison who, according to Collingsworth, witnessed a senior Drummond executive pay a paramilitary representative for two of the murders. Collingsworth will also ask the court to note that a second key witness is newly available as a result of being extradited to the U.S. Plaintiffs think that a new trial is in order. Lead defense counsel William Jeffress, Jr., of Baker Botts responds that these witnesses' testimony is not credible, and that a trial cannot be postponed indefinitely until a witness becomes available. Jeffress argues that the difficulty of gathering foreign evidence is but another reason for not trying these cases in U.S. court. Oral argument is set for October 9.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Wiggins, Childs, Quinn & Pantazis.
Defense counsel: Baker Botts.
Michael D. Goldhaber and Daphne Eviatar
Talisman in Sudan
Presbyterian Church of Sudan v. Talisman Energy Inc.
The presbyterian church filed a class action in 2001 on behalf of all Christian and non-Muslim residents of southern Sudan. It alleges that the Canadian oil company, Talisman, assisted Sudan in a campaign of genocide, crimes against humanity, and war crimes. These efforts included the displacement, torture, rape, and killing of civilians, and the burning of their churches and villages, in part to make way for oil exploration. A Talisman subsidiary owned a one-quarter interest in the Greater Nile Petroleum Operating Company between 1998 and 2003. It eventually sold that stake to India's Oil and Natural Gas Corporation Ltd.-Videsh Limited (ONGC). A federal district court judge in New York denied Talisman's motion to dismiss, concluding that the U.S. Supreme Court in Sosa v. Alvarez-Machain had contemplated the existence of corporate liability under international law; the U.S. Court of Appeals for the Second Circuit affirmed. But in September 2006, following discovery, district court judge Denise Cote granted summary judgment for Talisman-concluding that plaintiffs had failed to "locate admissible evidence that Talisman has violated international law." Plaintiffs have appealed to the Second Circuit. As the only alien tort appeal in a summary judgment posture, Talisman might be well-positioned for Supreme Court review.
Plaintiffs counsel: Berger & Montague; Lieff Cabraser Heimann & Bernstein. Defense counsel: Lovells; Clifford Chance.
Chevron in Nigeria
Bowoto v. Chevron Corporation
Four nigerian villagers and their families claim that in May 1998, Chevron aided the Nigerian military in an attack on an offshore oil platform that killed two protesters and injured several others. According to the plaintiffs, unarmed protesters were peacefully negotiating when they were shot and beaten by Nigerian soldiers. The federal case seeks compensation for the victims and their families. A parallel state case seeks injunctive relief to prevent future abuses.
After rejecting motions for dismissal and summary judgment, federal district court judge Susan Illston scheduled the case for trial in San Francisco on October 27.
In an August 2007 ruling, Judge Illston found evidence that Chevron's personnel "were directly involved" in the attack; they transported soldiers to the platform despite knowing that the soldiers were "prone to use excessive force." Illston dropped a claim of "crimes against humanity" but left in the case claims for torture and cruel, inhuman, or degrading treatment under international human rights law, as well as claims under California and Nigerian law for wrongful death and assault and battery. "Nearly everything is in dispute," says Robert Mittelstaedt of Jones Day, who is lead trial counsel.
Plaintiffs counsel: Center for Constitutional Rights; EarthRights International; Hadsell Stormer Keeny Richardson & Renick; Traber & Voorhees; Siegel & Yee; Schonbrun DeSimone Seplow Harris & Hoffman; Law Offices of Judith Brown Chomsky.
Defense counsel: Jones Day.
Occidental in South America
Mujica v. Occidental Petroleum Corporation; Shiguago v. Occidental Petroleum Corporation
Luis alberto galvis mujica, a Colombian villager, alleges that Occidental instigated and guided a 1998 Colombian military bombing on the village of Santo Domingo. The attack killed 17 civilians, including three of his relatives. He argues that the raid was designed to protect the company's nearby oil pipeline from attacks by FARC guerillas thought to be hiding in the village. A federal district court judge in Los Angeles dismissed the case in 2005, after the U.S. Department of State said that it would interfere with U.S. foreign relations. An appeal to the U.S. Court of Appeals for the Ninth Circuit has been frozen pending the outcome of the Ninth Circuit appeals in the parallel alien tort case of Sarei v. Rio Tinto. In its first Sarei ruling, the Ninth Circuit held that the State Department's view should not govern. That ruling-which the plaintiffs believe should revive Mujica-is now on review en banc. Esther Mamallacta Shiguago and other Ecuadorean villagers allege that Occidental is complicit in human rights violations inflicted by paramilitaries that guard the company's oil pipeline in Ecuador. By far the youngest case on this list, it had little chance to develop before being stayed pending the en banc appeal in Sarei.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Schonbrun DeSimone Seplow Harris & Hoffman (for Mujica).
Defense counsel: Munger, Tolles & Olson.
Shell in Nigeria
Wiwa v. Royal Dutch Petroleum Company; Kiobel v. Royal Dutch Petroleum Company
Wiwa centers on Nigeria's 1995 execution of activist/poet/Nobel Peace Prize nominee Ken Saro-Wiwa and eight others who campaigned against environmental damage caused by Royal Dutch Shell plc's drilling in the Niger Delta region of Ogoniland. According to plaintiffs, Shell and its Nigerian subsidiary provided monetary and logistical support to the Nigerian crackdown on Ogoni demonstrations, and bribed witnesses to produce false testimony. The case was initially dismissed by New York federal district court judge Kimba Wood under forum non conveniens. It was reinstated by the U.S. Court of Appeals for the Second Circuit in 2000-on the rationale that the strong federal interest in adjudicating the law of nations trumped considerations of convenience. This March, Judge Wood dismissed the claim against Shell's subsidiary for lack of jurisdiction; the plaintiffs' appeal is now being briefed. Kiobel is a separate, broader case arising out of Shell's activities in Nigeria. It alleges that Shell supplied ammunition, transit, and logistical support for the Nigerian military's "Operation Restore Order in Ogoniland." Judge Wood dismissed claims for summary execution by military tribunals-while allowing claims for torture; cruel, inhuman, degrading treatment; crimes against humanity; aiding and abetting; and arbitrary arrest. Both sides have appealed. Kiobel and Talisman will each give the Second Circuit a new opportunity to clarify the confused doctrine of aiding and abetting liability.
Plaintiffs counsel: Center for Constitutional Rights (Wiwa); EarthRights International (Wiwa); Law Offices of Judith Brown Chomsky (Wiwa); Berger & Montague (Kiobel); Schonbrun DeSimone Seplow Harris & Hoffman (Kiobel).
Defense counsel: Cravath, Swaine & Moore.
Exxon in Indonesia
Doe v. Exxon Mobil Corporation
Eleven villagers from the separatist Indonesian province of Aceh allege that, to protect its natural gas operations there, Exxon knowingly employed brutal military groups who beat, shot, and tortured them. These crimes violated both the alien tort statute and Washington, D.C., tort law. As in several other alien tort cases, the U.S. Department of State argued that the suit undermined U.S. foreign policy. In 2005 federal district court judge Louis Oberdorfer in Washington, D.C., dismissed the alien tort claims on a narrow reading of aiding and abetting liability-but declined to dismiss the whole case under the political question doctrine. Last year, the U.S. Court of Appeals for the D.C. Circuit refused to immediately review the question of justiciability. In June the U.S. Supreme Court denied certiorari. In August, Judge Oberdorfer rejected Exxon's motion for summary judgment, finding trialworthy evidence that Exxon's Indonesian subsidiary helped to manage military security, and that the parent exerted control over its subsidiary in such matters. The case is potentially cleared for trial next year on state tort law claims.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Public Citizen Litigation Group; Cohen, Milstein, Hausfeld & Toll.
Defense counsel: Willkie Farr & Gallagher; O'Melveny & Myers; Paul, Weiss, Rifkind, Wharton & Garrison.
Rio in Papua New Guinea
Sarei v. Rio Tinto plc
Plaintiffs allege that Rio Tinto despoiled the pristine rain forest environment of Bougainville, Papua New Guinea, while operating the world's largest copper mine during the 1980s. After the islanders revolted against the central government in Papua New Guinea in 1990, forcing the mine to close, plaintiffs allege that Rio supported a ten-year military blockade of food and medicine. These actions caused the deaths of more than 10,000 Bouganvilleans. The complaint cites crimes against humanity, war crimes, racial discrimination, torture, and violations of the United Nations Convention on the Law of the Sea. Rio Tinto has stated that the allegations are wholly false, malicious, and defamatory. In 2002 federal district court judge Margaret Morrow in Los Angeles dismissed the case under the political question doctrine. In 2006, an initial panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the case. The majority found that the district court judge had deferred unduly to the U.S. Department of State. The judges also rejected the need for a heightened pleading standard and, bucking precedent, contemplated recognition of certain environmental claims under the alien tort statute. Rio argued for reconsideration before an en banc panel of 11 Ninth Circuit justices in October 2007.
The political question may now be moot, because a new party came to power in Papua New Guinea, and withdrew its predecessor's objection to the litigation. The main remaining question is whether alien tort plaintiffs must exhaust all available legal options in their home forum before suing in the United States. Expect a close vote, a fractured opinion, and a certiorari petition by the loser.
Plaintiffs counsel: Hagens Berman Sobol Shapiro; Luvera, Barnett, Brindley, Beninger & Cunningham.
Defense counsel: Morrison & Foerster.
Drummond in Colombia
Romero v. Drummond Company, Inc.
A colombian labor union, and the families of three former union leaders, allege that Drummond hired paramilitaries to murder the three men in 2001, in order to intimidate the union. (Drummond is a family-owned Alabama company that operates coal mines in Colombia.)
In July 2007-in the first corporate alien tort case to be tried to completion-a federal jury in Birmingham exonerated Drummond of liability for war crimes under international customary law. An appeal to the U.S. Court of Appeals for the Eleventh Circuit has been filed by plaintiffs lawyer Terry Collingsworth. He is a partner in the Washington, D.C., office of Florida-based Conrad & Scherer and executive director of the nonprofit International Rights Advocates. Collingsworth says that the district court judge did not give him enough time, under international evidence-gathering rules, to obtain testimony from a witness in a Colombian prison who, according to Collingsworth, witnessed a senior Drummond executive pay a paramilitary representative for two of the murders. Collingsworth will also ask the court to note that a second key witness is newly available as a result of being extradited to the U.S. Plaintiffs think that a new trial is in order. Lead defense counsel William Jeffress, Jr., of Baker Botts responds that these witnesses' testimony is not credible, and that a trial cannot be postponed indefinitely until a witness becomes available. Jeffress argues that the difficulty of gathering foreign evidence is but another reason for not trying these cases in U.S. court. Oral argument is set for October 9.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Wiggins, Childs, Quinn & Pantazis.
Defense counsel: Baker Botts.
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