Almost as soon as the U.S. Court of Appeals for the Second Circuit concluded last year in Kiobel v. Royal Dutch Petroleum that corporations are not liable in U.S. courts under the Alien Tort Statute for abetting overseas atrocities, the ruling looked like U.S. Supreme Court bait. As I’ve reported, the D.C. Circuit, the Eleventh Circuit, and the Seventh Circuit have all come to the opposite conclusion about corporate liability under the ATS. The only question was which ATS case the high court would choose as the vehicle for deciding whether corporations can be sued for helping foreign governments violate international human-rights law.
We got the answer Monday: The Court granted the petition for a writ of certiorari by the Nigerian plaintiffs in Kiobel, who accused Shell of working with the Nigerian government in a deadly military crackdown on protests against oil exploration. That’s great news for Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison, who has been the lead appellate counsel for Alien Tort plaintiffs in cases across the federal circuits. “I’m pretty happy about it,” Hoffman told me Monday. On the losing side of the Supreme Court’s cert grant is Rowan Wilson of Cravath, Swaine & Moore, who had asked the Justices to let stand the Second Circuit’s exoneration of Shell. Wilson declined my request for comment.
But there’s more to Monday’s grant than meets the eye. The Court said it would hear Kiobel in connection with a case called Mohamad v. Rajoub, which involves the Torture Victims Prevention Act. Although both the cases pose the question of whether defendants other than individuals (Shell in the Kiobel case; the Palestinian Authority in the Mohamad case) are responsible in U.S. courts for overseas atrocities, there are also some significant differences. The ATS, which dates all the way back to 1789, has a murky legislative history and was almost never invoked until the 1980s, when it became fashionable to use it to claim violations of international law. The TVPA, on the other hand, was passed in 1991 to protect U.S. citizens in an age of global terrorism.
The two laws are often invoked together in cases involving claims of atrocities against both U.S. and foreign victims. And unlike most courts ruling on corporate liability under the ATS, according to Hoffman, judges have, in the main, found corporations are not liable under the TVPA. But Hoffman, who told me he was involved in drafting the Torture Victims law, said that Congress explicitly left intact the scope of the Alien Tort Statute in drafting the newer law. Robert Tolchin of the Berkman Law Office, who represents the victim in the Torture Victim case the Court has accepted, said the TVPA was supposed to extend to U.S. citizens the rights non-U.S. citizens have under the Alien Tort Statute, so it never made sense to absolve corporations (or in his case the Palestinian Authority) from liability under either law.
Hoffman is nevertheless expecting Shell to argue that the same strictures courts have found to apply to corporate liability under the Torture Victims law should also apply to the ATS. Hoffman said he’s ready for that argument: “The D.C. Circuit rejected it. Almost everywhere it’s been considered, it’s been rejected.” For his part, Tolchin told me he’ll argue that Congress never intended to limit the TVPA to individual defendants.
Hoffman said the Supreme Court made a wise decision to take both cases at the same time, to clarify the corporate scope of both laws once and for all. “I feel pretty strongly that Kiobel is just completely off base,” he said. “But the good thing is that we’ll know by June whether Kiobel is an outlier or whether there’s something there [for defendants].”
I left a message with Laura Ferguson of Miller & Chevalier, who represents the defendants in the Mohamad case, but didn’t hear back.
(Reporting by Alison Frankel)
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(Adds comment by Robert Tolchin)