Two recent cases, Abecassis v. Wyatt, 2010 U.S. Dist.
LEXIS 32731, and Lev v. Arab Bank,
PLC, 2010 U.S. Dist. LEXIS 16887, highlight the enduring enigmatic nature of
the "purpose" standard for proving an ATS violation set forth in Presbyterian Church of Sudan v. Talisman
Energ, 582 F.3d 244. This Emerging Issues Analysis, prepared by Jonathan
Drimmer and Michael Lieberman of Steptoe & Johnson, discusses these
decisions and their implications.
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The authors write: The Alien Tort Statute, 28
U.S.C. § 1350 (ATS), which allows aliens to sue in U.S. federal courts for
certain violations of international law, has rapidly grown to become a genuine
threat to multinational corporations in their overseas operations. Courts have
now had the opportunity to address some 150 cases brought against corporate
defendants under the ATS, most of which seek to hold corporations liable based
the acts of third parties - such as government officials - under theories of
secondary liability. Yet courts have offered differing interpretations of these
theories, creating a confusing patchwork of legal standards and, ultimately, an
unpredictable legal landscape.
In an important 2009 decision, Presbyterian Church of Sudan v. Talisman
Energy (enhanced version available to lexis.com subscribers / unenhanced
version available to non-subscribers from LexisONE), 582 F.3d 244
(2d Cir. 2009), the U.S. Court of Appeals for the Second Circuit sought to
clarify some of this confusion in determining the mens rea standard for certain forms of secondary liability,
including aiding and abetting and conspiracy. It held that for a corporation to
be liable under the ATS, plaintiffs must show the defendants purposely acted to
help the principal commit a human rights violation. A corporation's mere
knowledge that its actions contributed to the principal's commission of the
offense, held the court, is insufficient.
Commentators widely have claimed, with some merit, that the purpose standard in
Talisman sets a high bar for
proving accessorial ATS violations. Yet the true practical effect of this
heightened mens rea threshold
remains far from clear. While Talisman
may initially appear to resolve an area of uncertainty in ATS jurisprudence,
two subsequent cases, Abecassis v. Wyatt, 2010 U.S. Dist. LEXIS 32371 (S.D. Tex. Mar. 31, 2010), and Lev v. Arab Bank,
PLC, 2010 U.S. Dist. LEXIS 16887 (E.D.N.Y. Jan 29, 2010), highlight the
enduring enigmatic nature of the purpose standard. Together, even in light of Talisman, they show that corporate
compliance regimes, due diligence, and
strict monitoring of overseas operations in sensitive regions remain as
important as ever.
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Lauren Groth contributed to this article as a summer
associate at Steptoe & Johnson, LLP. She received her B.A. from
Northwestern University and will receive her J.D. from University of
California-Berkeley, School of Law in May 2011.