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The Supreme Court recently determined that the Torture Victim Protection Act of 1991 ("TVPA") extends liability only to natural persons, not corporations or other organizations. On April 18, 2012, the Supreme Court decided Mohamad v. Palestinian Authority et al., holding that the language of the TVPA limits liability to individuals, interpreted by the Court to encompass natural persons. The decision resolves a circuit split as to whether corporations could be held liable under the TVPA.
The TVPA authorizes a cause of action against "[a]n individual" for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. 28 U.S.C. § 1350, note § 2(a). Petitioners in Mohamad sued the Palestinian Authority and the Palestinian Liberation Organization after a relative was arrested by Palestinian Authority intelligence officers, imprisoned, tortured, and ultimately killed. The case was dismissed by the District Court, which concluded that the TVPA only extended liability to natural persons. The United States Court of Appeals for the District of Columbia affirmed, and Petitioners sought review by the Supreme Court.
While the TVPA itself does not define the term "individual," the Supreme Court held that the ordinary meaning of the word, as well as the legislative history of the statute, supported its determination that "individual" applied only to natural persons, not corporations or other organizations like the PLO. The Supreme Court's decision in Mohamad is in accord with decisions of the Fourth and Ninth Circuits limiting liability under the TVPA to natural persons. Only the Eleventh Circuit has held that TVPA liability extends to corporate defendants.
The decision in Mohamad may indicate the Supreme Court's possible willingness to limit corporate liability under another statute with similar application - the Alien Tort Statute ("ATS"). On the same day that the Court heard argument in Mohamad, it heard argument in Kiobel v. Royal Dutch Petroleum Co. Both arguments focused on whether corporations could be sued under the statute at issue. After the Kiobel argument, however, the Court ordered reargument to address the issue of whether the ATS applies to violations of international law occurring outside of the United States. The Court will therefore only reach the issue of corporate liability under the ATS if it determines that the statute applies to extraterritorial conduct. If the Court reaches the issue of corporate liability under the ATS, the Mohamad decision does not resolve the issue as the ATS neither expressly limits liability to an "individual" nor has the legislative history of the TVPA indicating a strong Congressional intent to limit its application to natural persons. A decision in Kiobel is not expected until 2013.
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This article was prepared by Judith A. Archer (firstname.lastname@example.org or 212 318 3342) and Sarah E. O'Connell (email@example.com or 212 318 3093) of the firm's Litigation Practice Group.
--- Justice Breyer filed a concurring opinion emphasizing that the linguistic interpretation of the term "individual" could not decide the case alone. Justice Scalia declined to join a section of the opinion addressing legislative history.
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