In this Emerging Issues commentary, Jonathan Drimmer, a partner at Steptoe & Johnson LLP in Washington, D.C., discusses a decision by the US Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). The decision deals with whether the Alien Tort Statute (28 USCS § 1350) is a viable tool to file lawsuits against corporate defendants. He writes:
"Throughout this era, courts repeatedly have concluded, relying on U.S. domestic law, that corporations - like individuals - could be viable defendants under the ATS."
"Without question, Kiobel, breaking with 20 years of federal court decisions on the ATS, is a significant decision. Some 30% of all corporate ATS cases to date have been brought in the Second Circuit, more than any other. Should the decision stand, it is a near certainty that federal courts in addition to Flomo, Viera, and Nestle will follow suit. However, the practical impact of the decision, in the end, may be more limited than some commentators have declared."
"For companies and in-house counsel, that of course necessitates continued care in overseeing, and close scrutiny of, overseas operations to avoid potential ATS and other human rights lawsuits against corporate officers and the company itself. Specifically, that includes meaningful stakeholder engagement, a suite of related corporate policies and controls focusing on human rights-related issues and norms, and an effective corporate compliance programs that at a minimum includes training, reporting mechanisms, due diligence of third parties, and investigatory resources related to human rights principles."
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Jonathan Drimmer (firstname.lastname@example.org) is a partner at Steptoe & Johnson LLP in Washington, D.C. (http://www.steptoe.com/), where he heads the Business and Human Rights practice. Mr. Drimmer also practices international and commercial litigation, including advising corporations on issues related to human rights and Alien Tort Statute compliance, as well as representing corporations and individuals in domestic and international litigation and investigations.