As I reported earlier today, the Supreme Court has now officially agreed to review cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act. Kiobel v Royal Dutch Petroleum, decided by the Court of Appeals for the Second Circuit, was the first one to hold that corporations can't be sued under the Alien Tort Statute. Since then at least two other Circuit Courts have rejected its reasoning.
Meanwhile Bowoto v. Chevron reached the same result under the Torture Victim Protection Act. However, the Court has not yet granted review in Bowoto. Instead, it granted review in a case called Mohamad v Rajoub, a decision from the DC Circuit which essentially copies the reasoning in Bowoto. I don't understand why the Court would grant review in Rajoub and not in Bowoto since they hold the same thing, so I would not be surprised if the Court consolidates the cases... but we will have to wait and see.
What I want to point out here is an interesting development that relates to the Rajoub case.
At the time Rajoub was decided by the Court of Appeals for the DC Circuit, the issue of corporate liability under the ATS was pending before that same court in another case called Doe v Exxon. That case has since been decided, in favor of the plaintiffs.
This means that the DC Circuit has decided that corporations can not be sued under the TVPA but can be sued under the ATS.
So what is the scoreboard at the moment? Here it is:
Deciding that corporations can NOT be sued under the Alien Tort Statute:
-- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)
Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone (7th Cir 2011). Judge Posner wrote the opinion in this case. He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.
Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)
Deciding that corporations CAN be sued under the TVPA
-- Aldana v. Del Monte (11th Cir 2005). The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.