Cravath to Defend Shell in Alien Tort Claim Trial

By Andrew Longstreth

May 05, 2009

Alien Tort Claims Act cases go to trial about as often as Tiger Woods misses two-foot putts. So we’re counting the days until May 26, when the trial against Royal Dutch Petroleum and the former managing director of its Nigerian subsidiary, Shell Transport and Trading, is set to begin in New York federal district court. The plaintiffs, who are relatives of victims of a violent crackdown by the Nigerian government in the Ogoniland region of the country (where Royal Dutch Shell had drilling operations), claim that Shell and its Nigerian subsidiary provided logistical and monetary support to the government in its effort to suppress demonstrations.

We don’t envy Shell, nor its lawyers at Cravath, Swaine & Moore. One of the plaintiffs is the son of the late Nigerian playwright Ken Saro-Wiwa, who led protests against multinationals in the Delta region in the mid-1990s and who was subsequently executed–along with eight others–by the Nigerian government after being convicted of charges related to the murder of four political rivals. “In a sense, we already have a victory,” Saro-Wiwa’s son, Ken Saro-Wiwa, Jr., told The Associated Press on Monday, “because one of the things my father said was that Shell would one day have its day in court.”

In a statement to the AP, a Shell spokesman said the company “in no way encouraged or advocated any act of violence against [the activists] or their fellow Ogonis. Shell attempted to persuade the government to grant clemency; to our deep regret, that appeal–and the appeals of many others–went unheard, and we were shocked and saddened when we heard the news.”

The plaintiffs have waited years to make their case against Shell. The suit was first filed back in 1996. Manhattan federal district court judge Kimba Wood initially dismissed it under forum non conveniens, but the Second Circuit reinstated plaintiffs claims in 2000. The defendants recently filed another motion to dismiss claims for lack of subject matter jurisdiction, but Judge Wood denied most of the request.

Shell and Cravath do have reason for hope. Last year a federal jury in San Francisco cleared Chevron in an Alien Tort Claims case that was also related to violence committed against protesters in Nigeria. But Jennie Green of the Center for Constitutional Rights, one of the plaintiffs attorneys in the Shell litigation, told us she believes the facts are different. She also says that the country is more open to these types of case. “I think the mood is changing in terms of holding companies responsible for their actions [abroad],” she said.

Green said the trial is expected to last three to four weeks. According to a pretrial order, the Cravath team will include Rory Millson, Rowan Wilson, and Thomas Rafferty. Millson did not immediately return our call for comment.

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