View
37
Download
0
Category
Preview:
Citation preview
Douglas W. Mateyaschuk, II, Esq.
June 11, 2012
International Litigation 2012
Recent Developments:
Alien Tort Statute
Overview
What is the Alien Tort Statute (“ATS”)?
History of enactment
Differing interpretations
How has the ATS been applied?
History of litigation
Notable post-Filartiga decisions
Recent litigation and trends
What are the unsettled legal issues?
Split of authority
Pending Supreme Court cases
Where do we go from here?
June 11, 2012Alien Tort Statute: Recent Developments 2
What is the ATS?
28 U.S.C. § 1350
The district courts shall have original jurisdiction of any civil action
by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.
June 11, 2012Alien Tort Statute: Recent Developments 3
What is the ATS?
History of Enactment
Enacted by the First Congress as part of the Judiciary Act of 1789, ch. 20,
§ 9, 1 Stat. 73, 77 (1789).
Prior to enactment, the Continental Congress struggled to have violations
of treaties and the law of nations punished by the States.
The “law of nations” encompassed (1) the violation of safe conducts, (2)
infringement of the rights of ambassadors, and (3) piracy. 4 W. Blackstone,
Commentaries on the Laws of England 68 (1769).
“It was this narrow set of violations of the law of nations, admitting of a
judicial remedy and at the same time threatening serious consequences in
international affairs, that was probably on minds of the men who drafted
the ATS with its reference to tort.” Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
June 11, 2012Alien Tort Statute: Recent Developments 4
What is the ATS?
History of Enactment, continued . . .
Two incidents involving foreign diplomats underscored the need to provide
an adequate remedy.
Assault on French Consul General, 1784
Intrusion on Dutch Ambassador‟s residence, 1787
Other considerations
Speak with one voice
Combat perceived hostility of State courts toward alien claimants
Maintain neutrality
June 11, 2012Alien Tort Statute: Recent Developments 5
What is the ATS?
Differing Interpretations
Initial legal challenges to the ATS focused on the failure of Congress to
enact laws pursuant to its authority to “define and punish . . . offenses
against the law of nations.”
ATS opponents argued that the absence of such laws rendered the
ATS stillborn.
Courts universally rejected this argument, holding that the law of
nations has always been part of federal common law.
Opponents of the proliferation of ATS litigation have argued that the
statute should not be applied beyond those few violations of the law of
nations recognized in 1789.
This argument has also been rejected, although the Supreme Court
has stated that judicial efforts to discern new violations of the law of
nations should “be undertaken if at all with great caution.”
Proponents of ATS litigation initially argued that the statute created a new
cause of action.
The Supreme Court has clarified that the ATS is purely jurisdictional.
June 11, 2012Alien Tort Statute: Recent Developments 6
How has the ATS been applied?
History of litigation
The ATS stood largely dormant for nearly two centuries after its
enactment in 1789.
Two early district court cases: Adra v. Clift, 195 F. Supp. 857 (D. Md.
1961); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795).
The “birth of the modern line of [ATS] cases”: Filartiga v. Pena-Irala, 630
F.2d 876 (2d Cir. 1980).
First appellate court to uphold a claim under the ATS.
ATS provided jurisdiction over claims by resident aliens against a
Paraguayan official for the torture and death of Joelito Filartiga.
Deliberate torture perpetrated under color of official authority violated
universally accepted norms of international law.
“[F]or purposes of civil liability, the torturer has become—like the pirate
and slave trader before him—the enemy of all mankind.”
Ground-breaking case for international human rights advocates.
June 11, 2012Alien Tort Statute: Recent Developments 7
How has the ATS been applied?
Notable post-Filartiga decisions
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)
Per curiam decision affirming dismissal of claims arising out of alleged
terrorist attacks in Israel.
Judge Edwards: “This case deals with an area of the law that cries out
for clarification by the Supreme Court.” Refused to extend jurisdiction
to claims arising out of “non-official torture.”
Judge Bork: Absence of an “explicit grant of a cause of action” is fatal.
Following Filartiga and Tel-Oren, a wave of ATS cases were filed against
officials of recognized governments for alleged acts of torture and
extrajudicial killing.
E.g., Martinez-Baca v. Suarez, 1998 U.S. Dist. LEXIS 19470 (N.D. Cal.
1988); Todd v. Panjaitan, 1994 WL 827111 (D. Mass. 1994); In re
Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994); Paul v.
Avril, 901 F. Supp. 330 (S.D. Fl. 1994); Xuncax v. Gramajo, 886 F.
Supp. 162 (D. Mass. 1995); Abebe-Jira v. Negewo, 72 F.3d 844 (11th
Cir. 1996).
June 11, 2012Alien Tort Statute: Recent Developments 8
How has the ATS been applied?
Notable post-Filartiga decisions, continued . . .
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)
Non-state actors acting in their private capacity can be sued under the
ATS for alleged acts of genocide.
Doe I v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997)
One of the first decisions involving a corporate defendant (w/o analysis
of corporate personhood status).
Plaintiffs claimed injuries resulting from alleged human rights abuses
perpetrated by Burmese military forces used to provide security during
the construction of a gas pipeline in Myanmar.
Claims were ultimately settled after the Ninth Circuit overturned the
district court‟s summary judgment decision.
June 11, 2012Alien Tort Statute: Recent Developments 9
How has the ATS been applied?
Notable post-Filartiga decisions, continued . . .
Sosa v. Alvarez-Machain, 552 U.S. 692 (2004)
Resolved dispute between Judges Edwards and Bork in Tel-Oren,
holding that the ATS permits aliens to pursue claims for a limited set of
international law violations.
Rejected argument that the ATS provides jurisdiction with regard to
only those violations of the law of nations recognized at the time of the
statute‟s enactment.
“Federal courts should not recognize private claims under federal
common law for violations of any international law norm with less
definite content and acceptance among civilized nations than the
historical paradigms familiar when [the ATS] was enacted.”
The door is “still ajar subject to vigilant gatekeeping.”
ATS does not provide jurisdiction over alien claims arising from alleged
brief arbitrary detention.
June 11, 2012Alien Tort Statute: Recent Developments 10
How has the ATS been applied?
Recent litigation and trends
Post-Sosa explosion of new lawsuits.
Corporations are preferred defendants.
According to the Chamber of Commerce:
In the past two decades, various plaintiffs have filed more than 150
ATS lawsuits against corporations in more than twenty industry sectors,
including agriculture, financial services, manufacturing and
communications.
These lawsuits involve business activities in over sixty countries.
More than 50% of the companies listed on the Dow Jones Industrial
Average have been named as defendants in ATS actions.
June 11, 2012Alien Tort Statute: Recent Developments 11
How has the ATS been applied?
Recent litigation and trends, continued . . .
Notable ATS cases contested before juries:
In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460 (D.
Haw. 1995) (plaintiff verdict: $1.2 billion exemplary damages; $766
million compensatory damages);
Romero v. Drummond Co., No 03-CV-00575 (N.D. Ala. July 2007)
(defense verdict);
Jama v. Esmor Corr. Servs., No. 97-CV-3093 (D.N.J. Nov. 2007)
(defense verdict);
Chowdhury v. Worldtel Bangladesh Holding, Ltd., No. 08-CV-1659
(E.D.N.Y. Aug. 2009) (plaintiff verdict: $1.5 compensatory damages;
$250,000 punitive damages);
Bowoto v. Chevron, No. 99-CV-2506 (N.D. Cal. Dec. 2008) (defense
verdict).
Settlements have been reached in more than a dozen ATS cases.
June 11, 2012Alien Tort Statute: Recent Developments 12
How has the ATS been applied?
Recent litigation and trends, continued . . .
Recent ATS decisions of note:
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 132 S. Ct. 472 (2011);
Sarie v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (“Rio Tinto IV”),
pet. for cert. filed;
Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011);
Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011);
Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011); and
Shafi v. Palestinian Auth., 642 F.3d 1088 (D.C. Cir. 2011).
June 11, 2012Alien Tort Statute: Recent Developments 13
What are the unsettled legal issues?
Five key questions concerning the application of the ATS that remain
unresolved:
Are corporations proper defendants?
Can claims be asserted for violations of the law of nations occurring within
the territory of a sovereign other than the United States?
Can aiding and abetting claims be asserted? And, if so, what are the
standards?
Under what circumstances, if any, are plaintiffs required to exhaust
remedies in a foreign forum before asserting claims in a U.S. court?
What claims can be asserted against non-state actors?
June 11, 2012Alien Tort Statute: Recent Developments 14
What are the unsettled legal issues?
Are corporations proper defendants?
Kiobel:
Second Circuit cited footnote 20 of Sosa:
“A related consideration is 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.” Compare Tel-Oren (Edwards, J., concurring)
(insufficient consensus in 1984 that torture by private actors violates international law)
with Kadic (sufficient consensus in 1995 that genocide by private actors violates
international law).
The Court then concluded that “[c]orporate liability is not discernable”
under the ATS because “no corporation has ever been subject to any
form of liability (whether civil or criminal) under the customary
international law of human rights.”
“Nothing in this opinion limits or forecloses suits under the ATS against
a corporation‟s employees, managers, officers, directors, or any other
person who commits, or purposefully aids and abets, violations of
international law.”
June 11, 2012Alien Tort Statute: Recent Developments 15
What are the unsettled legal issues?
Are corporations proper defendants?
Flomo, Rio Tinto IV & Exxon Mobil Corp.:
The Seventh, Ninth and D.C. Circuits have rejected and criticized
Kiobel.
E.g., Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011):
The threshold question that needs to be answered by consulting
international law is whether the conduct at issue violates the law of
nations.
If answered in the affirmative, the natural or juridical status of the
perpetrator of the crime is of no consequence.
The Kiobel Court misread footnote 20 of Sosa.
The Kiobel Court also misstated the history of corporate liability for
violations of the law of nations.
June 11, 2012Alien Tort Statute: Recent Developments 16
What are the unsettled legal issues?
Are corporations proper defendants?
Supreme Court heard oral argument in Kiobel on February 28, 2012.
Fourteen (14) amicus briefs were filed on behalf of Petitioners,
including by the United States, AFL-CIO, Rutherford Institute, Yale Law
School Center for Global Legal Challenges, and the Brennan Center for
Justice at NYU School of Law.
Seventeen (17) amicus briefs were filed on behalf of Respondents,
including by the Governments of the United Kingdom and the
Netherlands, Federal Republic of Germany, Chevron Corporation,
Chamber of Commerce, CATO Institute, Coca-Cola Company, and
Archer Daniels Midland Company.
On March 5, 2012, the Court issued an order restoring Kiobel to the
calendar for reargument and directing the parties to file supplemental
briefs addressing the following question: “Whether and under what
circumstances the [ATS] allows courts to recognize a cause of action for
violations of the law of nations occurring within the territory of a sovereign
other than the United States.”
June 11, 2012Alien Tort Statute: Recent Developments 17
What are the unsettled legal issues?
Can claims be asserted for violations of the law of nations occurring within
the territory of a sovereign other than the United States?
During the last Bush Administration, the United States argued in nine
separate briefs that the ATS was never intended to apply extraterritorially.
From Filartiga forward, courts have repeatedly entertained ATS cases
involving extraterritorial conduct without much analysis of this issue.
Most recently, in Rio Tinto IV, the Ninth Circuit held that because Sosa
endorsed the Filartiga line of cases, and because piracy was a recognized
violation of the law of nations at the time of the enactment of the ATS, the
ATS properly applies to extraterritorial conduct.
Judge Kleinfeld‟s dissent in Rio Tinto IV argues that the ATS was
“promulgated to enable foreigners to sue for violations in America of a
narrow set of norms, where failure to vindicate the wrongs might embroil
our weak, new nation in diplomatic or military disputes.” To apply the ATS
to conduct occurring in the territory of a sovereign other than the U.S. is to
“assert[ ] [an] entitlement to make law for all the peoples of the entire
planet.”
June 11, 2012Alien Tort Statute: Recent Developments 18
What are the unsettled legal issues?
Can aiding and abetting claims be asserted? And, if so, what are the
standards?
During the last Bush Administration, the United States argued in multiple
briefs that permitting aiding and abetting claims to proceed under the ATS
would imperil U.S. foreign policy interests.
In Khulumani v. Barclay Int’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (per
curiam) Judges Katzmann and Hall agreed that a plaintiff may plead a
theory of aiding and abetting liability under the ATS, but disagreed on the
proper standard to apply to such claims. Arguing in dissent, Judge
Korman found no justification in international law for imposing general
aiding and abetting liability under the ATS.
This case was appealed to the Supreme Court, and extensive briefs and
amicus submissions were filed. The Court subsequently announced that it
lacked a quorum to consider the petition.
Recent decisions (e.g., Rio Tinto IV, Exxon Mobil) continue to permit
aiding and abetting claims to proceed under the ATS.
Courts remain split with regard to the applicable mens rea standard.
June 11, 2012Alien Tort Statute: Recent Developments 19
What are the unsettled legal issues?
Can aiding and abetting claims be asserted? And, if so, what is the mens
rea standard?
Although courts have permitted aiding and abetting claims to proceed
under the ATS, they remain divided with regard to what mens rea
standard to apply.
In Presbyterian Church of Sudan v. Talisman Energy Inc., 582 F.3d 244
(2d Cir. 2009), cert. denied, 131 S. Ct. 79 (2010), the Second Circuit held
that, in order to establish an aiding and abetting claim pursuant to the
ATS, plaintiffs must prove that the alleged aider and abettor acted with
“the purpose of facilitating the commission” of the alleged crime.
Most recently, the Fourth Circuit adopted the Talisman Energy standard in
Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011).
Other courts (e.g., Exxon Mobil) have rejected this standard, holding
instead that plaintiffs need only prove that the alleged aider and abettor
had knowledge that his acts assisted in the commission of the alleged
crime.
June 11, 2012Alien Tort Statute: Recent Developments 20
What are the unsettled legal issues?
Under what circumstances, if any, are ATS plaintiffs required to exhaust
remedies in a foreign forum before asserting their claims in a U.S. court?
Exhaustion of remedies in international law requires that a claimant seek
relief first in the forum where the harm occurred.
In Sosa, the Supreme Court stated that it would consider requiring an ATS
plaintiff to demonstrate that he “exhausted any remedies available” in the
foreign domestic legal system where his injuries occurred, “and perhaps in
other forums such as international claims tribunals” in “an appropriate
case.”
In Sarie v. Rio Tinto PLC, 550 F.3d 822 (9th Cir. 2008) (Rio Tinto III), in a
controlling plurality opinion, the Ninth Circuit remanded the case to the
district court with guidance for the limited purpose of determining whether
to impose an exhaustion requirement on the facts of that case.
In Rio Tinto IV, Judge Bea, concurring in part and dissenting in part,
joined by Judges Keinfeld and Callahan, argues that “exhaustion of local
remedies is mandatorily required by „the law of nations.‟”
June 11, 2012This is a sample presentation title in footer 21
What are the unsettled legal issues?
What ATS claims can be asserted against non-state actors?
In Shafi v. Palestinian Auth., 642 F.3d 1088 (D.C. Cir. 2011), the D.C.
Circuit held that the ATS does not provide jurisdiction over a civil action by
an alien for torture committed by non-state actors.
The Shafi Court acknowledged that its decision may conflict with the
Second Circuit‟s decision in Kadic, which held that non-state actors can
be held liable under the ATS for acts of genocide.
June 11, 2012Alien Tort Statute: Recent Developments 22
What are the unsettled legal issues?
Pending Supreme Court petition
The Rio Tinto IV defendants have filed a petition for certiorari seeking
review of the following questions:
Whether U.S. courts should recognize a federal common law claim under the ATS arising
from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially
where the claim addresses the foreign sovereign‟s own conduct on its own soil toward its
own citizens.
Whether U.S. courts should recognize a federal common law claim under the ATS based on
aiding-and-abetting liability, even absent concrete factual allegations establishing that the
purpose of the defendant‟s conduct was to advance the principal actor‟s violations of
international law.
Whether a plaintiff asserting a federal common law claim under the ATS addressed to
conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust
available remedies in the courts of that sovereign before filing suit in the United States, as
international and domestic law require.
Whether federal common law claims asserted under the ATS for violations of international
human rights law norms may be brought against corporate entities.
The Court considered this petition at its March 2, 2012 conference but
rendered no decision.
June 11, 2012Alien Tort Statute: Recent Developments 23
Where do we go from here?
Many key legal questions remain unanswered.
The pace of ATS filings has not slowed.
If the Supreme Court upholds the Second Circuit‟s „corporate immunity‟
decision in Kiobel, ATS proponents are promising to re-file claims against
individual corporate representatives.
All eyes will be on the Supreme Court‟s consideration of whether the ATS
can apply to violations of the law of nations occurring within the territory of a
sovereign other than the United States.
June 11, 2012Alien Tort Statute: Recent Developments 24
Recommended