Bowoto v. Chevron UPDATE

Daily Journal
9th Circuit Hears Nigerians' Claims

By Fiona Smith

Nigerian activists who accuse Chevron Corp. of human rights abuses hoped to revive their case Monday by arguing before the 9th U.S. Circuit Court of Appeals that a lower court's admission of prejudicial evidence and flawed jury instructions dealt a fatal blow to their case.

Nineteen Nigerians sued the San Ramon-based oil giant in 1999 alleging the company was liable for protestors' deaths and injuries after it called in the Nigerian Navy to clear the activists from an offshore oil platform belonging to the company's Nigerian subsidiary, Chevron Nigeria Limited. A San Francisco jury cleared Chevron on all the counts in 2008 after a five-week trial before Judge Susan Illston.

During oral arguments on Monday, the plaintiffs focused on their allegation that Illston issued flawed jury instructions for assault and battery claims under California and Nigerian law. Plaintiffs' attorney Theresa Traber of Traber & Voorhees in Pasadena said Illston wrongly placed the burden of proof on the plaintiffs to show beyond a reasonable doubt to the jury that the Nigerian Navy had used unreasonable force. The jury instructions should have forced Chevron to prove the navy's use of force was reasonable and justified in the circumstances, Traber said.

The events on trial date back to 1998 when more than 100 Nigerians took boats out to Chevron's oil platform, boarded an adjacent construction barge and remained there for three days. The Nigerians claimed they were engaging in a peaceful protest of Chevron's economic and environmental policies. But Chevron said the Nigerians were violent invaders who took the company's workers hostage and held them for ransom.

On the morning of the fourth day, Chevron asked for the assistance of the Nigerian Navy, which sent soldiers to the platform. In the resulting chaos, two men were killed and two others were injured.

The plaintiffs brought claims of torture and cruel, inhuman or degrading treatment under the rarely used Alien Tort Claims Act. The law, passed in 1789, allows foreigners to seek damages in U.S. courts for alleged human rights abuses abroad. They also brought claims for wrongful death, assault, battery and negligence under California and Nigeria law, Bowoto v. Chevron Corp., 99-2506.

Circuit Judge Jay Bybee, who served on Monday's panel with Circuit Judge Mary Schroeder as well as Oregon District Court Judge Owen Panner, sitting by designation, asked Traber if the court would have to go back for a whole new trial if it agreed with the plaintiffs on the Nigerian battery claims.

Only the specific claims at issue would go back for a re-trial, Traber replied.

Traber further noted that Illston had supported the plaintiffs' arguments over the burden of proof issue in a summary judgment decision in 2007 but changed her position before trial.

Chevron's attorney Craig Stewart with Jones Day in San Francisco countered that the court did not focus on the issue in great detail at the summary judgment stage, but took a detailed look when a briefing was held over the wording of the jury instructions.

Schroeder asked several questions to clarify how Illston's ruling had changed over time, at one point asking Stewart if Illston had issued any intermediary rulings between her summary judgment and jury instructions rulings. She did not, Stewart said.

Schroeder also asked Stewart what Chevron's position was on Nigerian law in relation to the battery claims.

"Our position is that Nigerian law, like California law, puts the burden on the plaintiff in excessive force claims brought by plaintiffs ... and the jury was properly instructed," Stewart said.

The plaintiffs also argued in briefing that they deserved a whole new trial because Illston allowed evidence to be submitted that unfairly portrayed the protestors as violent and full of bloodlust. The disputed evidence included a photograph of protestors butchering a sea turtle for food with a machete. Chevron attorneys argue the photograph was valid evidence that showed the protestors were armed despite their claims to the contrary.

Bowoto v. Chevron UPDATE

Burden of proof at issue in Chevron-Nigeria appeal

[Audio of today's hearing.]

SAN FRANCISCO, June 14 (Reuters) - An appeal of a major case brought by Nigerians against Chevron Corp (CVX.N) hinges on where the burden of proof lies: with forces that landed on an occupied oil platform or the occupiers harmed by them.

In late 2008, a jury in federal court cleared the company of liability arising from the clash a decade earlier between Nigerian state forces and protesters on Chevron's Parabe oil platform, 9 miles (14 km) off Nigeria's coast.

Theresa Traber, representing the villagers who brought the case against the U.S. oil company, argued before the U.S. Ninth Circuit Court of Appeals on Monday that the federal trial court erred by putting the burden of proof on the plaintiffs.

Lawyers for the villagers said Judge Susan Illston set the bar too high in requiring the plaintiffs to prove beyond a reasonable doubt that the Nigerian soldiers acted improperly.

The occupation of Parabe, by about 100 local villagers who were protesting environmental damage and demanding compensation and jobs, ended in a violent clash in May 1998.  [The villagers had threatened Chevron that they would commit "sea piracy" if their demands were not met, and subsequently took hostages back to the mainland.]

Traber said it should be the defense -- including Chevron since it fed and housed the soldiers -- that should demonstrate the troops acted reasonably when firing on the protesters.

But Craig Stewart, representing Chevron, argued it was a "police" action that broke up the three-day occupation, so it was up to the other side to show "excessive force" was used.

"The burden rests on plaintiffs in that case," he told the court in San Francisco.

More...

See also.

Abdullahi: Pfizer Response to SG

Pfizer filed its response to the Solicitor General's recent brief suggesting to the Supreme Court that a lawsuit filed against Pfizer by several Nigerians over the 1996 Trovan scandal should not proceed: Pfizer Response

Pfizer and SCOTUS: SG does not express any substantive views on the ATS

Should A Nigerian Lawsuit Against Pfizer Proceed?
pharmalot.com

The US Solicitor General has filed a brief suggesting to the US Supreme Court that a lawsuit filed against Pfizer by several Nigerians over the 1996 Trovan scandal should not proceed. Essentially, some blogs report that this means the Solicitor General disagrees with Pfizer’s interpretation of a law that has been relied upon to claim US companies committed eggregious behavior overseas, and that the Supreme Court should not bother to hear the case (see the brief). More...http://www.pharmalot.com/2010/06/should-a-nigerian-lawsuit-against-pfizer-proceed/

But this is not the case...  The SG brief argues that Pfizer's petition is not cert worthy because there is no circuit split, and that the procedural posture counsel against cert because there are many potential grounds on which the district court could dismiss the case (which would moot the need for Supreme Court review) and a decision by the Supreme Court on the issues raised in the cert petition likely would not be dispositive. The SG did not express any substantive views on the ATS or imply that Pfizer's interpretations were wrong.

Ex-Somali official Mohamed Ali Samantar may be sued in U.S., Supreme Court rules
By Robert Barnes
Washington Post Staff Writer - Wednesday, June 2, 2010

[UPDATE: June 28, 2010: Ruling burdens State Dept. Samantar held foreign officials are not immune from human rights suits, so State will have to decide whether to assert immunity and will be subject to lobbying; by John B. Bellinger III]

A group of Somalis who allege torture and killings by the former government of their homeland may pursue their lawsuit against a former prime minister now living in Fairfax County, the Supreme Court ruled Tuesday.

The justices ruled unanimously that a federal law that protects foreign governments from lawsuits filed in the United States does not cover individuals such as Mohamed Ali Samantar, who was defense minister and prime minister in the 1980s and early 1990s in the now-ousted government of Mohamed Siad Barre.

While Samantar's interpretation of the Foreign Sovereign Immunities Act is "literally possible," Justice John Paul Stevens wrote for the court, a close reading "supports the view of respondents and the United States that the Act does not address an official's claim to immunity."

The court warned that its decision was narrow and that Samantar might have other legal claims of immunity when a district court reconsiders the suit. "Whether petitioner [Samantar] may be entitled to immunity under common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed" by lower courts, Stevens wrote.

More... (also see this previous ATS Today post)

SCOTUS and the ATS: June 1, 2010

Samantar v. Yousuf, No. 08–1555. Argued March 3, 2010—Decided June 1, 2010

Held: The FSIA does not govern petitioner’s claim of immunity.  (See UPI story)
Respondents, who were persecuted by the Somali government during the 1980’s, filed a damages action alleging that petitioner, who then held high level government positions, exercised command and control over the military forces committing the abuses; that he knew orshould have known of these acts; and that he aided and abetted in their commission. The District Court concluded that it lacked sub-ject-matter jurisdiction and granted petitioner’s motion to dismiss the suit, resting its decision on the Foreign Sovereign Immunities Act of1976 (FSIA or Act), which provides that a “foreign state shall be im-mune from the jurisdiction” of both federal and state courts except asprovided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed, holding that the FSIA does not apply to officials of a foreign state.  More...

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opin-ion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment.

Defendants in Presbyterian Church recently filed a conditional cross-motion for certiorari asking that, if the court grants plaintiffs' motion for cert, it should also grant cert on the issue of whether the ATS applies to corporations and whether it applies extraterritorially.  See it here.