Comments on the oral argument in Kiobel on whether corporations can be sued under the Alien Torts Statute

Long time readers of this blog know I have been following the cases granted by the Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  For more details, go here and scroll down to see multiple posts on the subject.

The Alien Torts Statute recognizes the right of foreign nationals to sue in US federal courts to recover for injuries caused by conduct that constitutes a violation of the law of nations. Over the years, plaintiffs have used the statute to support claims against Pfizer, Shell Oil, Chiquita Banana, Nestle and other multinational corporations for aiding and abetting in crimes against humanity and many other types of conduct alleged to violate international law.  Some of these cases have been successful, others have not.

The Torture Victim Protection Act, on the other hand, recognizes causes of action for both foreigners and US nationals who suffer injuries due to the use of torture.  Over time, courts have also recognized this would allow claims against corporations who aided and abetted the use of torture.

Then, after years of litigation against corporations under these statutes, something happened. In  Kiobel v Royal Dutch Petroleum the Court of Appeals for the Second Circuit held for the first time that corporations can't be sued under the Alien Tort Statute.  Likewise, in Mohamad v. Rajoub, the DC Circuit Court held that corporations could not be liable under the TVPA (even though in a different case it held they can be sued under the ATS).

Although some courts have agreed with Rajoub, other Circuit Courts have rejected Kiobel's reasoning and it remains the only case to have decided the issue in favor of the corporate defendants (under the ATS).  Here is a list of the relevant cases and how they were decided.

For recent previews of the cases heard today go here, here and here.  For all the documents related to Kiobel, go here. For all the documents related to Rajoub, go here. For a short debate on some of the policy issues go here.  For an article in favor of the plaintiffs' position go here.

If the Supreme Court were to decide the case in favor of the defendants, the ATS would pretty much become completely irrelevant and the important role that American courts have been playing in providing a remedy for international human rights violations will be history.

The long awaited oral arguments in Kiobel and Rajoub took place today and by all accounts it sounds the days of the usefulness of the ATS are now numbered.  This would be a bad decision in my view, but one can hardly be surprised given the composition of the Court.  Given how they had voted in past cases, the voting in this one clearly was 2-0 in favor of the corporate defendants to begin with (something I pointed out when discussing another case here.)

Lyle Denniston begins his summary of the argument (which he called "Downhill from the start") stating that "When Justice Anthony M. Kennedy, in the opening minute of a Supreme Court argument, tells a lawyer that his entire case is in jeopardy, it is extremely difficult for even an experienced counsel to recover.   And, though he tried, Venice, Calif., attorney Paul L. Hoffman did not appear on Tuesday to have resuscitated his argument that foreign corporations should be held to account in U.S. courts for human rights abuses in foreign lands.  At least a majority of the Justices looked notably unconvinced."  Denniston's detailed assessment of the argument is available here.

The Wall Street Journal law blog likewise concludes that the justices appeared skeptical.

To decide for yourself, take a look at the transcripts here.  My guess the audio will be available on Friday.  I will, of course, post a link then.

UPDATE:  the oral arguments are available here (for Kiobel) and here (for Rajoub).