D.C. Circuit Holds that the Alien Tort Statute Applies to Corporations, Confirming Circuit Split with Second Circuit’s Kiobel Decision

D.C. Circuit Holds that the Alien Tort Statute Applies to Corporations, Confirming Circuit Split with Second Circuit’s Kiobel Decision

By  Louis M. Solomon

John Doe VIII, et al. v. Exxon Mobil Corp., et al., No. 09-7125 (consolidated) (D.C. Cir. July 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law],  is a 112 page 2-1 majority decision analyzing the scope of claims under the Alien Tort Statute, 28 U.S.C. sec. 1350.  The decision confirms the Circuit split over whether the ATS applies to corporations, siding with the Eleventh Circuit in Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009) [enhanced version  / unenhanced version ],  and Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir. 2008) [enhanced version  / unenhanced version ],   (discussed in our posting here) and disagreeing with the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. , 621 F.3d 111, 142 n.44 (2d Cir. 2010) [enhanced version  / unenhanced version ],    (discussed in our posting here).

Plaintiffs here are Indonesian citizens who allege that they (or their family members) were imprisoned, beaten, abused, and in some cases killed in Indonesia by Indonesian soldiers. Plaintiffs claim that the Indonesian soldiers violated customary international norms against torture, extrajudicial killing, and prolonged detention. The Indonesian soldiers provided security for Exxon. As Judge Kavanaugh's 39-page dissent puts it,"plaintiffs did not sue Indonesia or Indonesian officials. Rather, they sued Exxon under the . . . ATS, for aiding and abetting the Indonesian officials' tortious conduct." 

Using principals applicable to other areas of dispute resolution, the D.C. Circuit held:

 First, the D.C. Circuit disagrees with the Second Circuit in Kiobel on the basic proposition whether "the definition of customary international law is synonymous with the law of nations".  Reading the Supreme Court's decision in Sosa v. Alvarez-Machain , 542 U.S. 692 (2004), holds the D.C. Circuit:

aiding and abetting liability is available under the ATS because it involves a norm established by customary international law and that the mens rea and actus reus requirements are those established by the ICTY [the International Criminal Tribunal for the Former Yugoslavia] and the ICTR [the International Criminal Tribunal for Rwanda], and the Nuremberg tribunals, whose opinions constitute expressions of customary international law.

Second, the D.C. Circuit permitted Exxon to raise the issue of corporate liability under the ATS for the first time on appeal given the "uncertainty in the state of the law", the fact that the issue was a "novel, important, and recurring question of federal law," and "does not depend on any additional facts not considered by the district court".

Third, in deciding the issue, the D.C. Circuit held that the Supreme Court in Sosa "set forth the standard by which federal courts derive common law causes of action for violations of international law norms" and recognized Sosa's admonition that 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 § 1350 was enacted".  The D.C. Circuit found aiding and abetting liability by a corporate actor to satisfy those requirements.

The dissent, among other things, agreed with the Second Circuit's decision in Kiobel and also would have held that, "under the presumption against extraterritoriality, the ATS does not apply to conduct that occurred in foreign nations - such as this suit, which concerns conduct that occurred in Indonesia".

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