By: Mark E. Nagle , Julie Mendoza , Donald B. Cameron, Jr. ,
Jeff M. Cohen
The ruling by the U.S. Court of
Appeals for the D.C. Circuit in Doe v. Exxon Mobil Corporation [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] allows non-U.S. citizens to bring
suit in U.S. courts for wrongful acts or omissions that allegedly violate
established rules of the law of nations and/or a treaty of the United States.
The decision expands the jurisdiction of federal courts over suits against U.S.
companies for events occurring abroad.
The case arises under a U.S. Code
provision called the Alien Tort Statute. First adopted in 1790, the statute has
been seldom invoked until recent years. The Doe plaintiffs, a group of
Indonesian nationals, claimed that U.S. security personnel assigned to an Exxon
gas production facility in Aceh province caused extensive damage to property
and injuries to persons living in villages near the plant. The
plaintiffs alleged knowledge on the part of Exxon officials in the United
States, but all relevant events occurred in Indonesia.
The District Court dismissed
plaintiffs' claims on jurisdictional and other grounds. On appeal, the D.C.
Circuit Court reversed the District Court's decision. The Circuit Court found
that the complaint alleged acts that, if proven, would constitute aiding and
abetting the violation of human rights, liability for which has been
established with sufficient clarity under the law of nations to subject Exxon
to suit in the United States. The Court's analysis of the current state of
international law, and its process for discerning established norms of the law
of nations, leave the door open to recognition of other forms of tortious
conduct that may be deemed violative of international law.
The Exxon decision conflicts with rulings from the Second and Seventh
Circuits, which may enhance the prospects for further review. Unless and until
the full D.C. Circuit Court or the U.S. Supreme Court overturns this decision,
however, U.S. or foreign companies having sufficient contacts with the District
of Columbia may be sued in D.C. federal court for acts, omissions or events
occurring abroad that may be described as "aiding or abetting" violations of
human rights. Not every routine tort rises to a matter of international law,
but plaintiff's lawyers and advocacy groups now have greater flexibility in
framing their allegations to take advantage of the Court's opinion. And any
case filed in the federal courts requires compliance with the Federal Rules of
Civil Procedure and Evidence, including document retention obligations and all
the other requirements of modern federal court litigation.
What you can do to protect your
Prudent monitoring of overseas operations can go far to avoid the risk of a
lawsuit under the Alien Tort Statute. Rigorous standards for personnel
recruitment and selection, careful screening of contractors and monitoring of
their performance, and sound record maintenance policies are just a few
examples of cost-effective practices that can limit the danger that actionable
misconduct may occur. Training programs can be tailored to instill appropriate
sensitivity to local political and cultural concerns, and reporting systems
devised so that any potentially actionable conduct is rapidly identified and
corrected. Troutman Sanders attorneys can assist in designing and implementing
such compliance measures.
lawsuit is filed, Troutman's clients will benefit from our litigators'
extensive experience in defending claims under the Alien Tort Statute, as well
as other complex tort actions. We aggressively litigate the case in the
courtroom and, when appropriate, engage the appropriate Executive Branch
agencies and officers to secure the best possible resolution.
Read more by Troutman
Sanders LLP .
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