University of Minnesota




Supplement to Chapter 14 (ATS Litigation) of

Weissbrodt, Ni Aolain, Fitzpatrick & Newman,

International Human Rights: Law, Policy, and Process (4th edition)["Weissbrodt"]

Duane W. Krohnke1 --10.26.10


 


Page


Suggested change


933


[In Synopsis D, remove "s" from "Victims"]


934


[Insert after carry-over paragraph regarding alien tort suits in U.S. courts and ending, "There are, though, complex legal and political issues surrounding the litigation."]

 

      Since the major revision of the Federal Rules of Civil Procedure in 1938, pleadings in civil actions in federal court under Rule 8(a)(2) have had to have "a short and plain statement of the claim showing that the pleader is entitled to relief." As a result, federal judges and lawyers have developed a long-standing understanding and practice of what is an acceptable pleading in federal court, usually without major difficulties, beyond the many cases that have interpreted this Rule. (See generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1201, 1215-22 (2009).) Almost all of the cases that are mentioned in this chapter must be understood within this general notion of appropriate pleading in federal court.

 

        Recently, however, the U.S. Supreme Court has been signaling that the pleading requirements are being tightened. (See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (although a complaint need not contain detailed factual allegations, it must contain factual allegations plausibly suggesting the essential elements of a claim, i.e., an allegation has facial plausibility if the allegation allows the court to draw the reasonable inference that the defendant is liable for the conduct); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)(5 to 4: Twombly is not limited to antitrust cases; conclusory allegations are not entitled to be assumed to be true for purposes of determining the sufficiency of the pleading); Editorial: Throwing Out Mr. Iqbal's Case, N.Y. Times, A28, May 20, 2009 (Court's conservative majority is increasingly using legal technicalities to keep people from getting a fair hearing); Liptak, 9/11 Case Could Bring Broad Shift on Civil Suits, N.Y. Times, A10, July 21, 2009 (Iqbal has been cited more than 500 times by federal courts in two months after its issuance; Justice Ruth Bader Ginsburg told a group of federal judges that the case "messed up" the Federal Rules of Civil Procedure).)

         It can be anticipated that Twombly and Iqbal will be in the toolkit of defense counsel, especially in cases against corporations under the Alien Tort Statute and Torture Victim Protection Act, and that the courts will have to decide how those cases affect such complaints when they are attacked by motions to dismiss for failure to state a claim upon which relief can be granted under Rule 12 (b)(6) of the Federal Rules of Civil Procedure. (E.g., Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) (affirmance of dismissal of ATS and TVPA complaint because, as required by Iqbal, allegations that Colombian paramilitaries are permitted to exist, and are assisted, by Colombian government were conclusory allegations that are not entitled to be assumed to be true and are insufficient to allege state-sponsored action);  Abecassis v. Wyatt, 704 F. Supp.2d 623 (S.D. Tex. 2010) (insufficient allegations of connection between defendants and terrorists and of purposeful intent for aiding and abetting); Lev v. Arab Bank, PLC, 2010 WL 623636 (E.D.N.Y. 2010) (under Iqbal, ATS complaint made sufficient, plausible allegations to permit inference that defendant purposefully aided and abetted primary violation); In re XE Services Alien Tort Litigation, 665 F. Supp.2d 569 (E.D. Va. 2009) (under Iqbal,dismissal of some, but not all, ATS claims with leave to replead some, but not all, of dismissed claims); Sarei v. Rio Tinto PLC, 650 F. Supp.2d 1004, 1029 n.44 (C.D. Cal. 2009) (Iqbal does not apply to ATS cases); Jordan Shepherd, Pleading ATS Cases After Iqbal (Oct. 2010) (draft Comment for U. Minn. L. Rev.). Yet another issue to add to the many that will be addressed in this chapter.


937


[Insert at end of footnote # 4 about the case against Chiquita Brands International:]

 

                The just-mentioned lawsuit against Chiquita was preceded in March 2007 by the corporation's agreement to plead guilty to one count of a federal indictment for its former Colombian subsidiary's making payments of $1.7 million to AUC, a Colombian paramilitary group designated under U.S. law as a foreign terrorist organization. (E.g., Chiquita Brands Int'l, Form 10-Q for the Quarter Ended June 30, 2010 (Note 14 to consolidated financial statements) ["Chiquita 10-Q"]; Assoc. Press, Chiquita Settles Case on Payments to Rebel Groups. N.Y. Times, March 15, 2007,   http://www.nytimes.com/2007/03/15/business/worldbusiness/15bananas.html?ref=chiquita-brands-international-inc.) 

                 In addition to the previously mentioned civil suit against Chiquita, through April 2010, six other ATS lawsuits have been filed against the company by Colombian nationals in U.S. federal courts. The plaintiffs in all of these cases claim to be persons injured, or family members or legal heirs of individuals allegedly killed or injured, by the AUC. These cases have been consolidated in the U.S. District Court for the Southern District of Florida. (Chiquita 10-Q; EarthRights International, Doe v. Chiquita Brands International, http://www.earthrights.org/legal/doe-v-chiquita-brands-international; Boies Schiller & Flexner Files Billion Dollar Lawsuit Against Chiquita Brands International, Inc. (April 14, 2010), http://www.bsfllp.com/news/in_the_news/000130).)

                Through April 2010 three additional lawsuits were filed against the company by U.S. citizens who allege that they were kidnapped and held hostage by the AUC or that they are the survivors of U.S. citizens who were kidnapped and/or killed by the AUC. These cases assert claims under the Antiterrorism Act ("ATA"). Two of these lawsuits also have been consolidated in the U.S. District Court for the Southern District of Florida, and the company is seeking to transfer the remaining ATA lawsuit to that court. (Chiquita 10-Q.)

                The company filed a consolidated motion to dismiss the five amended ATS complaints in April 2010. The company also has filed motions to dismiss the two most recently filed ATS lawsuits and to dismiss the three ATA actions. In February 2010, the motion to dismiss one of the ATA actions was granted in part and denied in part. The other dismissal motions are still pending.  (Id.; In re Chiquita Brands International, Inc. Alien Tort Statute and Shareholder Litigation, 690 F. Supp.2d 1296 (S.D. Fla. 2010).)

               The payments to AUC have also spawned litigation over whether the company has insurance coverage for some or all of these cases and shareholders' derivative lawsuits alleging that certain Chiquita directors and officers had breached their fiduciary duties by authorizing the payments.  (Chiquita 10-Q.) 

 


946


[Insert after carryover paragraph regarding customary international law and ending with "Schiffer, 836 F. Supp. 1164, 1171 (E.D. Pa. 1993)."]

 

There is a new source for customary international humanitarian law. (Int'l Red Cross, Customary IHL, http://www.icrc.org/customary-ihl/eng/docs/home.


955


[Insert in 10th line of 2d paragraph of note # 5 regarding torture and extrajudicial killings after "participation in torture is actionable under the ATCA."]

 

Another case recognizing torture and extrajudicial killing as viable claims under ATS is Bowoto v. Chevron Corp., 557 F. Supp.2d 1080, 1091-92 (N.D. Cal. 2008), aff'd judgment for defendant after trial, 2010 WL 3516437 (9th Cir. Sept. 10, 2010). See also Doe v. Nestle, S.A., 2010 WL 3969615, *12-13 (C.D. Cal. Sept. 8, 2010) (torture).


955


[Insert in next to last line of 2d paragraph of note # 5 regarding torture and extrajudicial killings after Mujica quotation "prior foreign policy decision." Id. at 1194."]

 

 On appeal, the Ninth Circuit remanded the Mujica case to the district court to determine whether a prudential exhaustion requirement applied so as to bar any of the claims. (Mujica v. Occidental Petroleum Corp., 564 F.3d 1190 (9th Cir. 2009).)


955


[In next to last line of 2d paragraph of note # 5 regarding torture and extrajudicial killings, delete "accord Bowoto v. Chevron Corp. 557 F. Supp.2d 1080, 1091-92 (N.D. Cal. 2008)."


955


[Insert after 2d paragraph of note # 5 regarding torture and extrajudicial killings];

 

      Extrajudicial or summary executions were also held to be torts actionable under the ATS in In re XE Services Alien Tort Litigation, 665 F. Supp.2d at 592-94. But the court added an important qualification. Because, it held, congressional definition of any international norm precludes a court from going outside that definition, extrajudicial execution, as defined in the TVPA, meant for ATS purposes "a deliberated killing [by someone acting "under actual or apparent authority, or color of law, of any foreign nation" that is]not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guaranties which are recognized as indispensible by civilized people" and that "under international law, is [not] lawfully carried out under the authority of a foreign nation." Even though this definition is in the TVPA, it is applicable to ATS claims. (Id. at 593 n.29.) As a result, ATS claims by Iraqis for the killing of their Iraqi relatives by employees of U.S. companies that provided security services to the U.S. State Department in that country were dismissed without leave to replead. (Id. at 593-94.)

 

       Murder. A single act of murder committed by private actors in the course of an armed conflict is not cognizable under the ATS. Estate of Amergi v. Palestinian Authority, 611 F.3d 1350 (11th Cir. 2010).


956


[Insert after last line of carry-over paragraph regarding the impact of the U.S. government's statements of interest in ATS cases and ending with "government."]:

 

     War Crimes. Such crimes were held to be cognizable under the ATS in In re XE Services Alien Tort Litigation, 665 F. Supp.2d at 582-88 (E.D. Va. 2009). Moreover, the court determined that the definition of this norm for ATS purposes already had been set by Congress in 18 U.S.C. § 2441 War Crimes. Thus, for an ATS claim of murder as a war crime, this meant the "act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under [18 U.S.C. § 2441 (d)(1)], one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." (18 U.S.C. § 2441(d)(1)(D).)  Similarly, an ATS claim for infliction of bodily injury as a war crime meant the "act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war." (18 U.S.C. § 2441(d)(1)(F).) Any such war crime claim, however, had to be for acts "perpetrated in the context of, and in association with, the armed conflict." (18 U.S.C. § 2441 (c )(3). See also Al-Quraishi v. Nakhla, 2010 WL 3001986 (D. Md. July 29, 2010) (war crimes are actionable under ATS).)

 

     Terrorism. Terrorism or "organized and systematic suicide bombings and other murderous acts intended to intimidate and coerce a civilian population" was held to be a established norm of international law that was cognizable under the ATS. (Almog v. Arab Bank, PLC, 471 F. Supp.2d 257 (E.D.N.Y. 2007).)


956


[Insert in 17th line of first full paragraph regarding cruel, inhuman and degrading treatment and ending with "ATS. Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080, 1092-95 (N.D. Cal. 2008).")]:

 

Accord Doe v. Nestle, S.A., 2010 WL 3969615, *13 (C.D. Cal. Sept. 8, 2010); Al-Quraishi v. Nakhla, 2010 WL 3001986 (D. Md. 2010); Civil Minutes--General, Shiguago v. Occidental Pet. Corp., No. CV-06-4982, at 7-9 ( C.D. Cal.Aug. 5, 2009).


957


[Insert after carry-over paragraph regarding prolonged arbitrary detention and ending with "treatment, were detained for only a day. Id.")

 

      Nonconsensual medical experimentation on human subjects. Such claims are actionable under the ATS. (Abdullahi v. Pfizer, Inc., 562 F.3d 163, 174-88 (2d Cir. 2009), cert. denied, 130 S. Ct. 3541 (2010) (Pfizer's test of antibiotic "TROVAN" on children without their consent in Nigeria).) Five months after the Second Circuit's decision, Pfizer reached an agreement to settle related charges by a Nigerian state (Kano State) by Pfzer's paying $75 million for health-care initiatives by that state government, valid claims for financial support by participants in the clinical trial and plaintiffs' legal fees. Unaffected by the settlement were the separate claims by Nigeria's federal government and the ATS litigation. (Pfizer, Inc., Press Release: Pfizer, Kano State Reach Settlement of Trovan Cases, July 30, 2009; Stephens, Pfizer to Pay $75 Million to Settle Trovan-Testing Suit, Wash. Post, July 31, 2009.)

 

       Brigandage (plundering and banditry by bands of robbers). They do not constitute violations of the law of nations or of any U.S. treaties. (Alperin v. Franciscan Order, 2009 WL 2969465 (N.D. Cal. 2009).)

 

      Human Trafficking and Forced Labor. These acts have been found to be banned by international norms that are cognizable under ATS. (Doe v. Nestle, S.A., 2010 WL 3969615, *10-11 (C.D. Cal. Sept. 8, 2010) (illegal forced labor: cocoa field laborers were locked on farms, monitored at night by armed guards, threatened with severe beatings, forced to drink urine, had feet cut open, unpaid, provided inadequate food and sleeping conditions);  Adhikari v. Daoud & Partners, 697 F. Supp.2d 674 (S.D. Tex. 2009); Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008); In re World War II Era Japanese Forced Labor Litigation, 164 F. Supp.2d 1160 (N.D. Cal. 2001); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).)

 

       Child Labor. Child labor has been recognized as a viable ATS claim. (Flomo v. Firestone Natural Rubber Co., 2010 WL 3938312, *1, 4 (S.D. Ind. Oct. 5, 2010) (forcing children to work on rubber plantation in hazardous, oppressive and injurious conditions ); Doe v. Nestle, S.A., 2010 WL 3969615, *11-12 (C.D. Cal. Sept. 8, 2010) (illegal child labor: employment of children (6-10 years old) in back-breaking work on cocoa plantation exposing them to dangerous chemicals and tools).)

 

      Conspiracy. The only conspiracy tort recognized by international law for ATS purposes is conspiracy to commit genocide or aggressive war. In addition, international law recognizes "joint criminal enterprise" that requires   "criminal intention to participate in a common criminal design" that might be a basis for an ATS claim.  (Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259-60 (2d Cir. 2009), cert. denied (No. 09-1262 & No. 09-1418 Oct. 4, 2010); In re South African Apartheid Litigation,  617 F. Supp. 2d 228, 263 (SDNY 2009), separate judgment for defendant bank, 2009 WL 3364035 (S.D.N.Y. Oct. 19, 2009) (certain defendants appealed to Second Circuit and filed petition for writ of mandamus, and on September 10, 2009 the Circuit Court stayed proceedings in district court pending appeal).)


957


[Insert as new paragraph to start note # 6]:

 

     The Second Circuit has set forth a compelling analysis of how courts should determine what international norms qualified for claims under ATS. (Abdullahi v. Pfizer, Inc., 562 F.3d 163, 176-88 (2d Cir. 2009), cert. denied, 130 S. Ct. 3541 (2010). It said that Sosa required comparison of the specificity of the norm in question with that of late 18th century paradigms (piracy and interference with safe passage and ambassadors), determination of the degree of acceptance of the norm by the world community and determination of whether states universally abide by the norm out of a sense of universal concern. (Id. at 176.) In addition, the court said that international norms are "discerned from myriad decisions made in numerous and varied international and domestic arenas" and "do not stem from any single, definitive, readily identifiable source." (Id. (quoting Flores v. Southern Peru Copper Corp.,  414 F.3d 233, 247-48 (2d Cir. 2003).) Although treaties to which the U.S. is a party and which are self-executing or implemented by federal legislation may be the best evidence of the U.S. custom or practice of recognizing a norm, the court continued, treaties "that are not self-executing or that have not been executed by federal legislation, such as the ICCPR, are appropriately considered evidence of the current state of customary international law," and a formal treaty "is not the lone primary source of customary international law." (562 F.3d at 176.) Even "declarations of  international norms that are not in and of themselves binding may, with time and in conjunction with state practice, provide evidence that a norm has developed the specificity, universality, and obligatory nature required for ATS jurisdiction." (Id. at 177.) Interestingly little time was spent in trying to ascertain how specific the late 18th century paradigms were and comparing them with the norm at issue in the case. (Id. at 184.) Failure to take this overall approach was, said the court, "reactionary and static." (Id. at 188.)

 

                The Second Circuit in Pfizer then used this approach in concluding that there was such an international norm against nonconsensual human medical experimentation that was actionable under ATS.  (Id. at 177-88). It found such a norm in the Nuremberg war crimes proceedings, the International Covenant on Civil and Political Rights, the World Medical Association's 1964 Declaration of Helsinki, an European Union Directive and European Convention on Human Rights and Biomedicine, UNESCO's Universal Declaration on Bioethics and Human Rights and U.S. federal statutes and regulations. (Id.)

 

      As previously noted, the court in In re XE Services Alien Tort Litigation, 665 F. Supp.2d 569 (E.D. Va. 2009), held that congressional definition of any international norm precludes a court from going outside that definition and consulting international sources.

 

 

958

[Insert as footnote at end of discussion of Sarei case in the 23rd line of current note # 7 regarding whether exhaustion in the relevant foreign country's courts is required]:

 

        On remand, the district court in Sarei determined that prudential exhaustion of remedies in Papua New Guinea was not required because ATS claims were matters of universal concern (crimes against humanity, war crimes, racial discrimination) even though there was a weak nexus between the claims and the U.S. (Sarei v. Rio Tinto PLC, 650 F. Supp.2d 1004 (C.D. Cal. 2009)(proviso that if plaintiffs also wanted to pursue claims that the court determined were not matters of universal concern (violation of rights to health, life and security of person, cruel, inhuman and degrading treatment, international environmental violations and consistent pattern of gross human rights violations), then plaintiffs must return to court for consideration as to whether they should be subject to exhaustion).)

 

         There also was no exhaustion requirement for Iraqi ATS plaintiffs when an order of the Coalition Provisional Authority shielded the corporate defendants from liability in Iraq. (In re XE Services Alien Tort Litigation, 665 F. Supp.2d 569 (E.D. Va. 2009).)


958


[Insert  at end of second paragraph of Note 8 regarding foreign government officials as defendants and ending with "Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004).")]

 

; Chavez v. Carranza, 559 F3d 486 (6th Cir.), cert. denied, 130 S. Ct. 110 (U.S. 2009) (affirmance of $6 million judgment of compensatory and punitive damages against former Salvadoran colonel for crimes against humanity, extrajudicial killing and torture).

 

 

 


959


[Replace discussion of Sarei cas in 7th & 8th lines of paragraph captioned "Corporate Defendants" with following.]

 

The Sarei  ATS litigation against a corporation produced many opinions on many issues, and although there was no definitive ruling by the Ninth Circuit as to whether corporations were legitimate defendants in such a case, the district court in 2009 rejected a prudential exhaustion defense and allowed most of the case to proceed against the corporation. (650 F. Supp.2d 1004 (C.D. Cal. 2009).)


959


[Insert at end of paragraph captioned "U.S. Government Officials as Defendants."]

 

; Rasul v. Myers, 563 F.3d 527 (D.C. Cir.), cert. denied, 130 S. Ct. 1013 (2009) (Air Force General Richard Myers entitled to immunity) .)


961


[Insert after carry-over paragraph regarding cases against U.S. government employees and ending with "mail")(quoting 28 U.S.C. § 2675(a))."):

 

       Local governments and their employees, however, have been held not to be liable under the ATS. (Lopez v. Richardson, 647 F. Supp.2d 1356 (N.D. Ga. 2009) (a city and one of its policemen).)


964


[Insert after last line of first full paragraph regarding advantages for plaintiffs in U.S. courts and ending with "in court."]

 

            Another "advantage" for ATS plaintiffs in U.S. courts is the availability of punitive damages. (In re XE Services Alien Tort Litigation, 565 F. Supp.2d at 595-96 (E.D. Va. 2009).)

 


967


[Insert after first paragraph regarding the Anti-Terrorism Act:]

 

        At least one court has held that the ATA does not preempt the ATS. (Lev v. Arab Bank, PLC, 2010 WL 623636 (E.D.N.Y. Jan. 29, 2010); cf. Adhikari v. Daoud & Partners, 697 F. Supp.2d 674 (S.D. Tex. 2009) (Trafficking Victims Protection Reauthorization Act does not preempt ATS).


974


[Insert as footnote at end of Katzmann concurring opinion in Khulumani]:

 

       Given the different opinions in Khulumani, the case itself did not establish a binding precedent on the standard for aiding and abetting a human rights violation, but subsequently the Second Circuit endorsed Judge Katzmann's choice of international law as appropriate for determining the scope of aiding and abetting liability as well as Judge Katzmann's formulation of the requirements for such liability as the law of that Circuit. (Presbyterian Church of Sudan v. Talisman Energy, Inc.,  582 F.3d at 258 (2d Cir. 2009), cert. denied (No. 09-1262 & No. 09-1418 Oct. 4, 2010). See also Doe v. Nestle, S.A., 2010 WL 3969615, *13-45 (C.D. Cal. Sept. 8, 2010) (under Second Circuit formulation, no aiding and abetting by providing financial support to maintain cocoa framers, farming supplies, technical assistance and training and moral support and tacit encouragement and approval; these are ordinary commercial transactions; mere knowledge about general problem of child labor insufficient for mens rea)


978


[Delete line "Judge Katzmann's Concurring Opinion"]


978


[Insert as new note # 1 after the last paragraph of the Second Circuit 's Khulumani decision, which in fact is from the opinion by Judge Korman, and after the heading "NOTES AND QUESTIONS"]:

 

      After the 2007 decision in Khulumani that we just examined in Chapter 14, the Second Circuit has issued at least five opinions in ATS cases involving corporate defendants that will be discussed below. First, however, we will look at subsequent developments in Khulumani (also known as South African Apartheid Litigation), which is awaiting another decision from the Second Circuit.

 

        a.  Khulumani

 

      Further specificity regarding the issues in the Khulumani case was provided by the district court after remand. On April 8, 2009, that court granted in part and denied in part the defendants' new motion to dismiss the complaints for alleged failure to state a claim upon which relief may be granted. (In re South African Apartheid Litigation, 617 F. Supp. 2d 228 (SDNY 2009).)

 

     Acting within the legitimate restraints of Supreme Court and Second Circuit precedents, the district court held that corporations could be sued for aiding and abetting "torts in violation of the law of nations" under the Alien Tort Statute. (Id. at 254-55, 257-62.) After careful analysis, the court upheld the sufficiency of the following such claims and allowed the litigation of such claims to proceed:

  • Alleged aiding and abetting torture and cruel, inhuman or degrading treatment (CIDT) and apartheid by Daimler A.G., General Motors Corporation (GM) and Ford Motor Company's providing information about anti-apartheid activists to the South African Security Forces, facilitating their arrests, providing information for use by interrogators and participating in interrogations. (Id. at 264, 296.)
  •  Alleged aiding and abetting extrajudicial killing and apartheid by Daimler, GM and Ford's selling heavy trucks, armored personnel carriers and other specialized vehicles to the South African Defense Forces and the police unit charged with investigating anti-apartheid groups with defendants' knowledge of the latter's use of the vehicles in attacking protesting civilians and activists. (Id. at 264-65, 266-67, 296.)
  • Alleged aiding and abetting arbitrary denationalization and apartheid by International Business Machines Corporation's  (IBM) and Fujitsu Ltd.'s sale of computer hardware, software and support to the South African government with knowledge of the latter's use of same to register individuals, strip them of their citizenship, segregate them within South Africa, produce identity documents and effectuate denationalization. (Id. at 265, 268, 296.)2
  • Alleged aiding and abetting extrajudicial killing and apartheid by Rheinmetall Group A.G.'s selling armaments and related equipment and expertise to the South African government with knowledge that they would be used for extrajudicial killings to sustain apartheid. (Id. at 269-70, 296.)

         The court, however, rejected many other aiding and abetting claims and dismissed three multinational bank defendants altogether. These legally insufficient claims were the following:

  • The multinational banks' making loans to the South African government and buying its defense forces bonds. (Id. at 269.)
  • Barclays Bank's racially discriminatory employment practices. (Id. at 266.)
  • IBM and Fujitsu's sale of computer hardware, software and support for the government's use in the individual registration system as alleged aiding and abetting of CIDT. (Id. at 265.)
  • IBM's sale of other computer hardware, software and support to the government and armaments manufacturers as alleged aiding and abetting of violations of the law of nations. (Id. at 268-69.)
  • The automotive defendants' sale of general purpose vehicles as alleged aiding and abetting of any violation of the law of nations. (Id. at 267.)
  • The automotive defendants' sale of military vehicles as alleged aiding and abetting of torture, prolonged unlawful detention and CIDT. (Id. at 267.)
  • Rheinmetall Group A.G.'s selling armaments and related equipment and expertise to the South African government as alleged aiding and abetting of torture, prolonged unlawful detention and CIDT. (Id. at 270.)

              In reaching these conclusions, the district court first made an extensive analysis of the legal issue of aiding and abetting under the authorities relied upon by the Second Circuit: judgments of the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia and the Rome Statute.  (Id. at 257-63.) This analysis had two parts: the defendant's act (actus reus) and state of mind (mens rea).

  • The actus reus analysis was straightforward: this requires "practical assistance, encouragement or moral support which has a substantial effect on the perpetration of the crime."  (Emphasis in original.) The quality of the assistance was critical; money and building materials, for example, were fungible and not the requisite assistance whereas goods specifically designed to kill or cause injury were. Thus, providing the means by which a violation of law is carried out would be sufficient actus reus as stated in Article 25(c ) of the Rome Statute. (Id. at 257-59.)
  • The mens rea requirement, held the court, meant that the defendant has to "know that its actions will substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations." This conclusion, said the court, was supported by Article 25 (c ) of the Rome Statute's saying that the defendant's actions were done "for the purpose of facilitating the commission of such a crime" and Article 30(3)'s definition of knowledge.  These provisions, in the court's opinion, did not require the defendant to share the primary actor's purpose, but rather to be aware that his actions will substantially assist the commission of crimes in violation of the law of nations. Such a construction of the Rome Statute was consistent with its being a codification of existing international law unless a deviation is express. (Id. at 259-62.)

              In addition, the district court relied upon the Rome Statute and ICC decisions in concluding that certain wrongs were not international norms. First, private racial discrimination, held the court, is not a universally accepted international prohibition that would impose direct liability on a non-state actor.  Important in that regard was the ICC's Rome Statute's definition of the crime of apartheid in Article 7(2)(h) without any mention of non-state actors. To construe that Article to cover such a situation would be too strained, said the court. (Id. at 249-52.)  Second, in accordance with ICC decisions, conspiracy was held not to be a tort cognizable under the ATS (id. at 263).

               The court also made other important conclusions of law regarding international norms for ATS claims: (a) events occurring outside the U.S. were cognizable under the ATS (id. at 246-47); (b) apartheid, extrajudicial killing, torture, prolonged unlawful detention and CDIT are all violations of international law cognizable under ATS (id. at 247-48); (c) so too arbitrary denationalization by a state actor was a tort in violation of the law of nations (id. at 252-53); (d) a defendant is liable solely with respect to international norms in effect at the time of the alleged tort (id. at 248); (d) U.S. federal common law principles of piercing the corporate veil and agency to hold a parent corporation responsible for a subsidiary's actions are applicable in a case against corporations under the ATS, but there were insufficient allegations to allow such a claim to go forward except for agency claims against Daimler, GM and Ford (id. at 270-73); (e) ATS claims were subject to a 10-year statute of limitations borrowed from the U.S. Torture Victims Protection Act, but the bar of the statute was subject to the doctrine of equitable and American Pipe tolling, which applied here  (id. at 286-93);  and (f) an organization (Khulumani Support Group) that was formed to counteract the specific harms alleged caused by the defendants did not have standing to sue (id. at 293-96).  Finally the district court rejected the defendants' arguments that the prudential doctrines of political question and comity called for dismissal of the cases. (Id. at 276-86.) This was so even though the governments of the U.S. and South Africa both advised the court that the litigation interfered with their relations. (Id. at 276-78.)3 However, the South African Truth and Reconciliation Commission (TRC) and its Chairman, Archbishop Desmond Tutu, had advised the court that the litigation would not impede or be inconsistent with its process or goals. (Id. at 240, 276, 278-80.) According to the court, the litigation would not contradict U.S. foreign policy or seriously interfere with important U.S. governmental interests or interfere with the TRC process. (Id. at 285.) 4

        Further district court proceedings in the Apartheid cases have been stayed by the Second Circuit while it considers defendants' interlocutory appeal from the district court's refusal to dismiss the cases on the grounds of comity and political question. The circuit court will also consider the issue of whether the ATS allows claims against corporations. Plaintiffs in response asked that the appeal be dismissed on the ground that the appellate court did not have jurisdiction. The Second Circuit heard argument on all of these issues at a hearing on January 11, 2010.5 The decision of this appeal is pending.

         b.  Dow Chemical Company

      In Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008), the court affirmed the dismissal of the ATS claims against a corporation (Dow Chemical) on the ground that there was no applicable international law norm that had been violated. (See Text at 957.) The court did not discuss the issue of whether corporations were potentially liable under the ATS.

          c. Royal Dutch Shell

             On June 3, 2009, the Second Circuit vacated a dismissal of the plaintiffs' case against the Nigerian subsidiary of Royal Dutch Shell and remanded the case to the district court for further proceedings regarding the issue of personal jurisdiction. Five days later, the Wiwa case was settled with Royal Dutch/Shell agreeing to pay $15.5 million.  These funds were to compensate the 10 plaintiffs, who included family members of the deceased victims; to establish a trust intended to benefit the Ogoni people; and to cover a portion of plaintiffs’ legal fees and costs. (Wiwa v. Shell Dev. Co. of Nigeria, Ltd., 335 Fed. Spp. 81 (2d Cir. June 3, 2009); Center for Constitutional Rights, Settlement Reached in Human Rights Cases Against Royal Dutch/Shell (June 8, 2009), http://www.earthrights.org/sites/default/files/documents/Wiwa-v-Shell-Settlement-Press-Release.pdf.)

 

          d. Pfizer, Inc.

         As previously discussed, in Abdullah v. Pfizer, Inc., supra, the Second Circuit upheld the validity of an ATS complaint against a corporation (Pfizer, Inc.) for directly violating a viable international norm against nonconsensual human medical experimentation.

          e. Talisman Energy, Inc.

       In Presbyerian Church of Sudan v. Talisman Energy, Inc., supra, the Second Circuit affirmed the grant of summary judgment for a corporation (Talisman Energy, Inc.) on an ATS aiding and abetting complaint because the corporation had not rendered substantial assistance to the Sudanese government's human rights abuses and because the corporation did not have the requisite bad intent or purpose of facilitating the commission of a crime by that government.

         f. Royal Dutch Petroleum Company

          In September 2010 the Second Circuit in dicta in another case, Kiobel v. Royal Dutch Pet. Co., 2010 WL 3611392 (2d Cir. Sept. 17, 2010), pet. for reh'g & reh'g en banc (2d Cir. Oct. 15, 2010), seemingly endorsed the legitimacy of an aiding and abetting ATS complaint when it stated that its decision in that case did not limit or foreclose ATS suits “against a corporation’s employees, managers, officers, directors, or any other person who commits, or purposefully aids and abets, violations of international law.”

In Kiobel, however, the court in a lengthy opinion by Judge Cabranes, held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations.  Important for the latter conclusion was the Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.6

The Second Circuit in Kiobel also said it was not prevented from so holding by its own precedents. Although at least five prior such precedents had not rejected ATS cases against corporations on that ground, according to Kiobel, they merely had assumed the viability of such suits for various reasons.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even  lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. But Judge Leval concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability. Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

               The plaintiffs in Kiobel have requested rehearing, and their Petition and its five supporting amici curiae briefs raise serious issues regarding the panel's majority opinion's rejection of corporate liability under ATS.7 The defendants-appellants have not yet responded to these papers, and we await the circuit court's ruling on the petition and any subsequent rehearing.

                  The Petition and four of the amici briefs set forth the following arguments as to why corporations should be liable under the ATS:

  • The text of the ATS, as adopted in 1789, provided jurisdiction over "all causes" for certain torts against aliens and did not exempt corporations. (Emphasis added.) The statute specified the identity of the plaintiff ("an alien"), but did not specify the identity of the defendant. Moreover, the ATS did not require criminal conduct as a precondition for such a lawsuit. Finally, the weight of the textural and historical evidence suggests that the First Congress in 1789 would have considered corporations to be proper defendants under the ATS.8

  • The Supreme Court in the Sosa case held that there must be a violation of international law for a proper claim under the ATS. But Sosa also held that federal common law provides the cause of action and thereby implicitly recognized that international law did not define all aspects of an action under the ATS. In dictum and in a footnote, Sosa stated that lower federal courts should consider "whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." (542 U.S. at 732 n.20.) This footnote made the uncontroversial point that some, but not all, international norms require state action and that private actors (whether natural persons or corporations) were potentially liable only for those norms that did not require state action. The majority opinion in Kiobel misread this footnote as calling for international law, not domestic law, to provide the specifics on a private cause of action.9

  • The Second Circuit itself had consistently entertained ATS actions against corporations.10

  • Other circuit courts also have regularly considered ATS cases against corporations without objection. And the Eleventh Circuit expressly has held that corporations are subject to suit under the ATS.11
  • International law leaves the question of private civil liability to domestic law and enforcement. Indeed, the Second Circuit itself has recognized this point. In Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the court said, "The law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations."12

  • International law also leaves the question of criminal liability primarily to domestic law and enforcement. The relatively new ad hoc international criminal tribunals and the even newer International Criminal Court provide additional and extraordinary means of criminal enforcement when domestic legal systems are unable to do so. Kiobel's majority opinion's reliance on the fact that these international criminal tribunals' jurisdiction is limited to natural persons is misplaced. Indeed, the ICC's Rome Statute in Article 10 provides that its definition of crimes should not be read "as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." Likewise, that Statute's Article 22(3) states that the limitations on its jurisdiction (including the limit to natural persons) "shall not affect the characterization of any conduct as criminal under international law independently of this Statute." Finally, Article 25(4) of that Statute provides that "[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law," meaning that States' responsibility to enforce international law through their own domestic legal systems is unaffected.13

  • Moreover, international law requires states to provide domestic law civil remedies.14

  • International law in all its forms allows the imposition of civil liability on corporations. This is so in a diverse array of treaties, in general comments by treaty bodies and in a special report to the U.N. Secretary-General on the subject of businesses' human rights obligations. Another source of this principle is the uniform recognition of corporate liability in legal systems around the world.15

  • In Nuremberg-era jurisprudence and the international trials that took place in occupied Germany after World War II, certain non-natural persons (the Reich Cabinet, the SA, the German High Command, the Leadership Corps of the Nazi Party, the SS with the SD as an integral part and the SS) were indicted with the first three being acquitted and the last three being convicted.  In addition, severe sanctions were imposed on some corporations. For example, by directive of the Control Council, I.G. Farben and several insurance companies were dissolved and their assets were liquidated.  These facts show how the Kiobel majority erred in concluding that Nuremberg-era jurisprudence did not recognize the liability of corporations for violations of international law.16

                  In addition, the Kiobel Petition asserts that the corporate liability issue was "never raised, briefed, or argued in this case at any point, including this appeal" and that the resulting decision on this issue "subverts accepted standards of appellate process." This procedural argument was supported by an amici curiae brief by nine professors of federal jurisdiction that stated that the panel's majority opinion erroneously treated the corporate liability issue as part of subject matter jurisdiction and that this issue was a merits issue that should not have been resolved sua sponte by the court itself, but only after full briefing and argument by the parties.17

 

 


979


[Delete last line of Note # 2 regarding Ninth Circuit precedents and insert ]

 

Sarei v. Rio Tinto,PLC, 550 F.3d 822 (9th Cir. 2008), on remand, 650 F. Supp.2d 1004(C.D. Cal. 2009).


980


[Insert after discussion of Jama case in 2d paragraph of note # 4]

 

     In another case, the foreign plaintiffs' ATS claims were based on allegations that they were tortured by U.S. federal government contractors' employees during interrogation at Abu Ghraib prison in Iraq. In one of the cases, the district court dismissed these claims because civil claims against government contractors are "fairly modern" and not sufficiently definite among the community of nations. However, similar tort claims under state law were viable, and the contractor was not entitled to derivative government immunity. (Al Shimari v. CACI Premier Technology, Inc., 657 F. Supp.2d 700 (E.D. Va. 2009).) 

 

         Foreigners sued another U.S. corporation under the ATS and TVPA for allegedly aiding and abetting the CIA's extraordinary rendition of five foreign nationals to other countries for torture and interrogation when the corporation provided flight training and logistical and support services to the aircraft and crew. Before the defendant answered the complaint, the U.S. Government intervened and moved to dismiss the complaint under the state secrets doctrine. The district court granted the motion, which the Ninth Circuit, en banc, ultimately affirmed, 6 to 5. The court held that the state secret privilege established by United States v. Reynolds, 348 U.S. 1 (1953), required dismissal because "there is no feasible way to litigate [the defendant's] alleged liability without creating un unjustifiable risk of divulging state secrets." (Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).)


982


[Insert at the end of Note # 5]:

 

             After the previously mentioned district court denial of judgment on the pleadings in the Presbyterian Church of Sudan case, that court granted summary judgment to the defendant oil company, and the Second Circuit affirmed. (Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633 (S.D.N.Y. 2006), aff'd, 582 F.3d 244 (2d Cir. 2009), cert. denied (No. 09-1262 & No. 09-1418 Oct. 4, 2010).) The latter opinion is instructive on what constitutes "practical assistance [with a] . . .  substantial effect" or "substantial assistance" and doing so with "the purpose of facilitating the commission of a crime" for purposes of ATS aiding and abetting liability. First, the appellate court concluded that the following actions were not "substantial assistance" because there were obvious "benign and constructive" purposes for these activities and because the company had a legitimate need to rely upon the military for defense of its facilities and personnel: upgrading airstrips, designating certain areas for oil exploration, providing financial assistance to the government by paying oil royalties and giving general logistical support to the Sudanese military. (Id. at 15.) Second, the Second Circuit concluded that there was no direct evidence of any corporate intent or purpose to facilitate the commission of any crimes and that any such intent or purpose could not be inferred from the company's actions because of the just mentioned legitimate purposes for its actions. (Id. at 16-17.) "[I]f ATS liability could be established by [corporate] knowledge of those abuses [by the Sudanese government] coupled only with such commercial activities as resource development, the statute would act as a vehicle for private parties to impose embargos or international sanctions through civil actions in United States courts. Such measures are not the province of private parties but are, instead, properly reserved to governments and multilateral organizations." (Id. at 17.)

 


983


[Insert at end of note # 6]:

 

        Other courts have held that corporations are subject to liability under ATS for aiding and abetting violations of recognized international norms. (Al-Quraishi V. Nakhla, 2010 WL 3001986 (D. Md. 2010); Civil Minutes--General, Shiguago v. Occidental Pet. Corp., No. CV 05-4982, at 4-7 ( C.D. Cal. Aug.10 , 2009); In re XE Services Alien Tort Litigation, 665 F. Supp.2d 569 (E.D. Va. 2009).)


986


[Insert at end of Note # 2 regarding "color of law" requirement under TVPA]:

 

    In Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), cert. denied, 130 S. Ct. 3409 (2010), the plaintiff was a Canadian citizen who had been detained at JFK Airport in New York for days and then transferred to Syria where he was interrogated and tortured. Various U.S. officials, including former Attorney General Ashcroft, were sued for conspiracy to commit torture under the TVPA and other laws. The en banc court, 7 to 4, held that there was no such TVPA claim as the defendants had to be acting under color of foreign law. The four dissenters disagreed at length. (Id. at 582-637.)


986


[Insert after line 3 in note # 3 regarding corporate liability under TVPA and ending with "corporations. Sinaltrainal v. Coca-Cola Co., 256 F.  Supp. 2d 1345 (S.D. Fla. 2003);"):

 

aff'd, 578 F.3d 1252, 1264 n.13 (11th Cir. 2009).)


986


[Insert at end of 1st paragraph of Note # 3 regarding corporate liability under TVPA ]:

 

See also Al-Quraishi V. Nakhla, 2010 WL 3001986 (D. Md. 2010) (corporations are included in "individuals" in TVPA).


987


[Insert in last line of note # 3 regarding corporate liability under TVPA and ending with "141."):

 

; accord Bowoto v. Chevron Corp., 2010 WL 3516437 (9th Cir. Sept, 10, 2010); Flomo v. Firestone Natural Rubber Co., 2010 WL 3938312, *6 (S.D. Ind. Oct. 5, 2010); Civil Minutes--General, Shiguago v. Occidental Pet. Corp., No. CV 06-4982, at 10-11(C.D. Cal. Aug.10, 2009).

 

 

 


989


[Insert at the end of last paragraph of note # 7 regarding adequacy of foreign remedies]:

 

; Lizarbe v. Rondon, 642 F. Supp.2d 473 (D. Md. 2009)(civil remedy in Peru inadequate because it is contingent on conclusion of criminal charges that can take years and because civil damages are ineffective); Mamani v. Sanchez, 636 F. Supp. 2d 1326 (S.D. Fla. 2009) (dismissal of TVPA claims without prejudice for failure to exhaust adequate and available remedies in Bolivia).)


999


[Delete Note # 1 and insert the table at the end of this list of corrections and additions to Chapter 14.]


1010


[Delete the second and third paragraphs of Note # 10 regarding whether a foreign government official is covered by the Foreign Sovereign Immunities Act and insert the following:]

 

       In Samatar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court decided that the FSIA did not apply to government officials. The case was remanded to the district court for its determination in the first instance as to whether the defendant, a former high-level official of the Government of Somalia, was entitled to any common law immunity.


1031


[Insert new final paragraph]

 

      Two more ATS cases were dismissed on the forum non conveniens ground. (Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283 (11th Cir. 2009), cert.denied (No. 09-1376 Oct. 4, 2010) (litigation in Guatemala, but with the proviso that the motion would be reconsidered if plaintiffs had to return to Guatemala where they feared for their safety); Turedi v. Coca-Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009) (litigation in Turkey).) But such a dismissal was rejected in Almog v. Arab Bank, PLC, 471 F. Supp.2d 257 (E.D.N.Y. 2007)(defendant failed to establish that Jordan was adequate alternative forum for claims against an Arab bank for allegedly aiding and abetting terrorist attacks in Israel).

 

      Analogous to forum non conveniens is the argument that ATS does not empower U.S. courts to hear and resolve disputes between foreign nationals concerning conduct outside the U.S., i.e., the ATS does not have extraterritorial effect. (Cf. Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010) (U.S. securities regulations do not apply extraterritorially to wholly foreign transactions).) This argument was rejected by one court as "meritless" for ATS suits. (Lev v. Arab Bank,PLC, 2010 WL 623636 (E.D.N.Y. 2010).)



Treaty


Number of States Parties (as of 8.16.10)


Percent of UN Members (192) That Are Parties


United States as State Party
(as of 8.16.10)


Colombia as State Party
(as of 8.16.10)


Slavery Convention of 1926 as amended by Protocol of 1953

 
99

 
  51.6%


YES

(March 21,1929)


NO


Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery


123


  64.1%


YES

(December 6, 1967)


NO


Convention concerning Forced or Compulsory Labour


180

  
93.8%


NO


YES

(March 4, 1969)


Abolition of Forced Labour Convention


185


  96.4%


YES

(September 25,1991)


YES

(June 7, 1963)


International Covenant on Civil and Political Rights


166


  86.5%


YES  (June 8, 1992)


YES

(October 29, 1969)


Geneva Convention IV


194


100.0%


YES

(August 2, 1955)


YES

(November 8, 1961)

 

 


Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims on Non-International Armed Conflicts


165


  85.9%


NO


YES

 (August 14, 1995)


Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment


147

 
 76.6%


YES

 (October 21, 1994)


YES

 (December 8, 1987)

 

 

 Notes____________________________

 

1 Adjunct Professor, University of Minnesota Law School. Thanks for assistance in preparing this supplement to Associate Professor Jennie Green, University of Minnesota Law School, and to  Jordan Shepherd, University of Minnesota Law School, J.D. candidate, 2011.

2  Fujitsu subsequently was dismissed for insufficient allegations of an agency relationship with a subsidiary. (In re South African Apartheid Litigation,  633 F. Supp.2d 117 (S.D.N.Y. 2009).

3  On September 1, 2009, the South African Government advised the district court that after the court's narrowing of the complaints in its previously discussed April 8, 2009, decision, the Government "is now of the view that this Court is an appropriate forum to hear the remaining claims." The Government also indicated its willingness to assist the parties in settling the cases. (Hausfeld LLP, Press Release: South African Government Withdraws Opposition To Apartheid Lawsuits Pending in U.S. Federal Court , Sept. 3, 2009, http://www.hausfeldllp.com/pages/press_releases/272/south-african-government-withdraws-opposition-to-apartheid-lawsuits-pending-in-u.s.-federal-court; letter from Minister, Justice and Constitutional Development, Republic of South Africa to The Honorable Judge Shira A. Scheindlin, http://www.hausfeldllp.com/content_images/file/09_01_09%20SA%20Ministry%20of%20Justice%20Ltr%20to%20Judge%20Scheindlin.PDF.

4  On May 27, 2009, the district court denied defendants' motion for rehearing on the dismissal motion.  (In re South African Apartheid Litigation, 617 F. Supp. 2d 228, 297-302 (SDNY 2009).) That same day the district court also denied defendants' petition for permission to take an interlocutory appeal (before final judgment in the district court) on three issues in the April 9th partial denial of the dismissal motion: case-specific deference, the mens rea requirement for aiding and abetting and the vicarious liability standard for a parent company to be liable for its subsidiary's actions (In re South African Apartheid Litigation, 624 F. Supp. 2d 336 (SDNY 2009).)  Regarding case-specific deference, the court said there was no conflict between the case and the South African Truth and Reconciliation Commission because the remaining corporate defendants had not participated in the TRC proceedings, as its Commissioners had advised the court. (Id. at 341 n.19.) In addition, the court said its partial grant of the dismissal motion resulted in no conflict between the case and U.S. foreign policy. (Id. at 342 n.27.)

5 The Apartheid or Khulumani case is now pending in the Second Circuit as Balintulo v. Daimler A.G. (Nos. 09-2778-cv). The circumstances of the corporate liability issue's being before the Second Circuit are strange. Although the defendants originally had not asked the district court to certify that issue for interlocutory appeal, they did raise the issue in their initial submission to the circuit court, which then ordered briefing on the issue while remanding the case for the district court to consider a defendants' motion to certify that issue for such an appeal. The district court, however, denied the subsequent motion for such certification on the ground that there were not substantial grounds for disputing the liability of corporations under the ATS. (In re South African Apartheid Litigation, 2009 WL  5177981 (S.D.N.Y. Dec. 31, 2009).)

6 Kiobel was followed in Flomo v. Firestone Natural Rubber Co., 2010 WL 3938312, *2-5 (S.D. Ind. Oct. 5, 2010) (summary judgment for defendant corporation).

7  Petition for Rehearing & Rehearing En Banc for Plaintffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 15, 2010) ["Petition"]; Brief of Amici Curiae Human Rights and Labor Organizations in Support of Plaintiffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 15, 2010) ["Human Rights Brief"]; Brief of Amici Curiae International Law Scholars in Support of Plaintiffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 15, 2010) ["International Law Brief"]; Brief of Amici Curiae Professors of Federal Jurisdiction and Legal History in Support of Plaintiffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 15, 2010) ["History Brief"]; Brief of Amici Curiae Nuremberg Scholars in Support of Plaintiffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 15, 2010) ["Nuremberg Brief"]; Brief of Amici Curiae Professors of Federal Jurisdiction in Support of Plaintiffs-Appellants-Cross-Appellees, Kiobel v. Royal Dutch Pet. Co.  (Nos. 06-4800-cv & 06-4876-cv 2d Cir. Oct. 14, 2010) ["Federal Jurisdiction Brief"]. All of these papers are available at EarthRights International, Amicus Briefs in Kiobel v. Royal Dutch Petroleum/Shell, http://www.earthrights.org/publication/amicus-briefs-kiobel-v-royal-dutch-petroleumshell.

8 Petition at 10-12; History Brief.

9 Petition at 6-8; Human Rights Brief at 3-7; International Law Brief at 4-5.

10 Petition at 1, 3-4, 9; Human Rights Brief at 1-2.

11 Petition at 9-10 (citations of10 other ATS cases against corporations and other juridical entities from other circuits that did not hold that such entities were not covered by ATS); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009); Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).

12 Petition at 13-15; Human Rights Brief at 7-24; International Law Brief.

13 Human Rights Brief at 8-10.

14 Human Rights Brief at 12-13; International Law Brief at 13-15.

15 Human Rights Brief at 13-14; International Law Brief at 7-13.

16 Nuremberg Brief.

17 Petition at 2-4; Federal Jurisdiction Brief; Kiobel v. Royal Dutch Pet. Co., 456 F. Supp.2d 457 (S.D.N.Y. 2006)(issue of corporate liability assumed and not addressed in decision that was the subject of the appeal).

 

 



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