Insight: Three lawyers ask U.S. Supreme Court: Why here?

That the justices are considering the sweeping question of whether an entire class of lawsuits can be heard in the United States can be traced to briefs filed by three lawyers whose clients aren’t even involved in the case.

How their briefs came to be sheds light on one of the most closely watched cases before the Supreme Court this term and shows how the efforts of private lawyers pursuing a public policy goal can have momentous consequences.

A ruling against Kiobel could wipe out lawsuits pending against companies such as Exxon Mobil Corp, Rio Tinto Plc and Nestle, which are accused by private plaintiffs of helping governments violate human rights in Indonesia, Papua New Guinea and Ivory Coast, respectively.

Esther Kiobel’s husband, Barinem Kiobel, was arrested in 1994 along with Nobel Peace Prize nominee Ken Saro-Wiwa and others. They had spoken out against the government’s violent suppression of environmental activists who opposed Shell’s oil and gas drilling in Nigeria. Kiobel was found guilty of murder by a Nigerian military court in a trial that the U.S. State Department said lacked due process, and he was hanged in Port Harcourt, Nigeria, in 1995.

With no recourse in Nigeria, Esther, who had received asylum in the United States, filed a lawsuit in federal court in New York alleging among other things that Shell cooperated with the Nigerian military, resulting in crimes against humanity. She relied on a 200-year-old U.S. law called the Alien Tort Statute.

While the case was under way, Shell won a ruling in September 2010 from the influential 2nd U.S. Circuit Court of Appeals that said Shell could not be held liable under the statute because it was a corporation. It was a major shock to human rights lawyers, who had brought more than 100 such cases against corporations in the previous two decades.

TEAMING UP AGAIN

The ruling quickly caught the attention of John Bellinger, an attorney at the law firm Arnold & Porter. In a series of interviews with Reuters, Bellinger, 52, discussed his actions over the subsequent 18 months. He stressed that he was speaking in a private capacity rather than as a representative of his clients in the Kiobel case.

Bellinger believed Kiobel’s lawyers were likely to petition the Supreme Court. Sure enough, in October 2011 the court agreed to take the case on the narrow question of whether corporations could be held liable under the statute.

Bellinger, who had been State Department legal adviser in the Bush administration, had bigger ideas. He wanted to present the court with arguments he had heard from foreign governments while he was at the State Department. Back then, Australia, Britain, Canada and others had protested when cases were brought under the Alien Tort Statute. They argued that U.S. courts had no business judging events that took place on foreign soil.

When the Supreme Court accepted the Kiobel case, Bellinger started emailing and calling governments that had opposed previous Alien Tort Statute cases to see whether they wanted to file a brief and whether they already had legal representation. But none of those he contacted were ready to commit, leaving him with no one to represent.

In November last year, Bellinger called Shell’s lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former U.S. Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.

Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation’s top court. In late 2011 he was working on some of the nation’s highest-profile cases, including defending Arizona’s immigration law and a federal law that defines marriage as a union between a man and a woman.

Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. “Paul agreed,” said Bellinger, “we could track a number of the issues we’d argued in government.”

They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement’s job was to look at the big picture.

In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger’s concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit’s Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.

Like Bellinger, Clement agreed to speak only in a private capacity and not as a representative of his clients in the ongoing litigation.

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