Jonathan Drimmer on the Aiding and Abetting Conundrum Under the Alien Tort Claims Act

Jonathan Drimmer on the Aiding and Abetting Conundrum Under the Alien Tort Claims Act


In consolidated class actions filed against companies doing business in Apartheid South Africa, the district court, exemplifying one trend of cases, rejected the Alien Tort Claims Act (ATCA) claims, ruling that aiding and abetting was not cognizable under the Act. After the Second Circuit reversed and remanded, the case was appealed to the Supreme Court. However, in American Isuzu Motors, Inc. v. Ntsebeza, 2008 U.S. LEXIS 3868 (May 12, 2008), the Supreme Court failed to clarify the circumstances under which corporate ATCA defendants can be liable based on acts of third parties. Consequently, whether aiding and abetting liability exists in corporate ATCA cases and how it is defined remains in a state of utter flux. Jonathan Drimmer, a partner at Steptoe & Johnson, who advises corporations on ATCA compliance, discusses the continuing uncertainty and its implications for doing business abroad. He writes:
 
     In construing the ATCA . . . courts have struggled mightily with two core concepts: (1) the meaning of the term “law of nations,” and (2) the circumstances under which companies can be vicariously liable for the acts of government entities and other third parties. In 2004, in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court sought, with limited success, to provide guidance regarding the first concept. It declared that the “law of nations” provision of the ATCA pertained to “a narrow class” of international harms that are clearly defined and universally accepted by “civilized nations.” Referencing the Apartheid proceedings, it also noted that deference to political considerations in such types of cases might for prudential reasons justify dismissal . . . .
 
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     . . . [S]ome federal courts have refused to recognize aiding and abetting liability under the ATCA at all, relying on the Supreme Court’s decision in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 181-82 (1994), which held that aiding and abetting liability should be permitted in civil cases only where Congress expressly authorizes it. Other courts have disagreed with that conclusion, noting that since the country’s earliest days courts have recognized that private individuals may be held liable for aiding and abetting violations of international law.
 
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     [In the Apartheid Litigation] Judge Katzmann, writing for the [Second Circuit’s] two judge majority, interpreted Sosa to mean that international law governs “scope of liability” questions, in addition to the underlying actionable harms. In recognizing aiding and abetting as a valid theory, however, he looked not to the definitions of the International Criminal Tribunals as other judges had, but to the definition applied by the Rome Statute of the International Criminal Court (“Rome Statute”): rendering aid to someone who commits a crime “[f]or the purpose of facilitating the commission of such a crime.” That standard contains a mens rea of specific intent, one more difficult to satisfy than the knowledge or recklessness standard other federal courts divined from international law.
 
(citations omitted)