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
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
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/
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