Kiobel v. Royal Dutch Petroleum: U.S. Supreme Court Considers Corporate Liability under Alien Tort Statute for Extraterritorial Human Rights Claims

Kiobel v. Royal Dutch Petroleum: U.S. Supreme Court Considers Corporate Liability under Alien Tort Statute for Extraterritorial Human Rights Claims

by Brittany Prelogar, Laura Ardito and Jeanne Cook

Kiobel v. Royal Dutch Petroleum Co. is before the U.S. Supreme Court. At issue is whether corporations can be held liable under the Alien Tort Statute which permits aliens to file suit in U.S. federal courts for violations of customary international law for acts committed outside the U.S. At oral argument the focus was on the law's extraterritorial reach with an another round of briefs on this requested. A decision is anticipated next term.

Excerpt (case and statute links below accessible by lexis.com subscribers):

At issue in Kiobel v. Royal Dutch Petroleum, Co., currently pending before the U.S. Supreme Court, is whether corporations can be held liable under the Alien Tort Statute ("ATS"), a provision that permits aliens to file lawsuits in U.S. federal courts for violations of customary international law. 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). During oral argument on February 28, 2012, several Justices focused their questioning on a separate issue concerning the statute's extraterritorial reach, and the Court has since instructed the parties to submit an additional round of briefing on this issue later this year. The Supreme Court's consideration of these issues is drawing intense interest from corporations, governments, academics, trade associations, and human rights advocates, which have filed more than 35 amicus curiae briefs in Kiobel to date. The Court's decision, now anticipated next term, will be significant for multinational companies, which have been named as defendants in more than 180 ATS cases.

Background on the ATS

The ATS was enacted by the First Congress in 1789. It permits foreign plaintiffs to file civil tort actions in U.S. federal courts for violations of the "law of nations or a treaty of the United States." 28 U.S.C. § 1350 (2006). The ATS was rarely used to bring human rights-related claims before 1980, when Paraguayan citizens successfully used the statute to bring a claim in New York against a Paraguayan police official for torture and murder committed in Paraguay. See Filartiga v. Pena--Irala, 630 F.2d 876 (2d Cir. 1980). Since then, plaintiffs have increasingly used the ATS as a vehicle for asserting claims against foreign officials and multinational companies for alleged human rights violations, with cases producing damage awards in some instances exceeding $100 million. See Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) ($140 million); Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. Apr. 8, 1996) ($103 million).

The Supreme Court previously interpreted the ATS in Sosa v. Alvarez-Machain, in which it limited ATS claims to a narrow set of violations of international law norms that are "specific, universal, and obligatory." 542 U.S. 692, 732, 748 (2004) (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)). In other words, to support a cause of action under the ATS, international law norms must be accepted universally and "defined with a specificity" comparable to the offenses the ATS was designed to redress at the time it was enacted, specifically piracy, violations of safe passage, and assaults on ambassadors. 542 U.S. at 725. In addition, Sosa instructed the lower courts to consider the "practical consequences" of allowing the cause of action to be litigated in federal court. Id. at 732.

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Brittany Prelogar (bprelogar@steptoe.com) is a Partner, and Laura Ardito (lardito@steptoe.com) and Jeanne Cook (jcook@steptoe.com) are associates, in the Washington, DC office of Steptoe & Johnson LLP (www.steptoe.com). All are members of the firm's Business and Human Rights practice, which advises and represents corporations on issues related to Corporate Social Responsibility, Alien Tort Statute compliance, and human rights-related matters. Ms. Prelogar received her J.D. from Harvard Law School. Mss. Ardito and Cook received their J.D.s from American University Washington College of Law.