Oral argument on whether corporations can be sued under the Alien Torts Statute

As you probably know by now, I have been following the developments in the two cases before the US Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute (Kiobel v Royal Dutch Petroleum) and the Torture Victim Protection Act (Mohamad v Rajoub).  For more details, go here and scroll down to see multiple posts on the subject.

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.

Both cases were heard last week and here are the links to the oral arguments: for Kiobel go here and for Rajoub, go here.

Supreme Court puts off decision in Kiobel and orders re-argument

I did not see this coming!  The Supreme Court just announced that it will put over Kiobel to its next term and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas.  Go here and here for more details.  The order states, in part, as follows:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). . . .

What is interesting about this is that the issue of extraterritoriality of the law was not one raised by Kiobel but by another case which I have discussed in some detail here.  The case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years. In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it.

The issue of extraterritoriality is not new and last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that there is no basis for the argument that the statute has no extraterritorial application. As Judge Posner points out, "Courts have been applying the statute extraterritorially . . . since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

In the end, however, as I have stated before, I think it is likely that the Supreme Court will decide in favor of those arguing against corporate liability under the ATS.

NYT Editorial about Kiobel and the notion of corporate liability under the Alien Tort Statute

 Today's New York Times Sunday Review includes an editorial on the issue of whether courts should recognize a cause of action against corporations under the Alien Tort Statute.  In part it states:

In a world where multinational corporations are primary actors, the need for a way to hold them accountable for extreme abuses is more urgent than ever. . . .
. . . .
There is no good justification for a categorical rule against corporate liability. As the economist Joseph Stiglitz said in an amicus brief, these lawsuits can be an efficient way to enforce human rights in countries where court systems and other means of policing violations are ineffective. Potential civil liability gives corporations an incentive to improve their conduct. If a multinational company commits an offense like torture, the fact that it is a corporation and not an individual is immaterial in the pursuit of justice.

You can read the full text here.

More coverage of Kiobel

At the Originalism Blog, Michael Ramsey offers his analysis of Tuesday’s oral argument in Kiobel v. Dutch Royal Petroleum Co., a case about corporate liability under the Alien Tort Statute.  The editorial board of the Los Angeles Times also weighs in on the case, arguing that, “as long as U.S. courts are open to such suits, there should be no distinction between individual and corporate defendants.”

Thanks to the SCotUS blog for the links

Supreme Court decides asbestos preemption case

Because I was paying so much attention to the oral arguments before the Supreme Court, I initially missed the fact that the Court issued an opinion in a torts related case called Kurns v. Railroad Friction Products,in which the Court found that a widow’s state-law claims against the manufacturers and distributors of locomotive products containing the asbestos that caused her husband’s death were preempted by federal law.  For more information on the case go here, here and here. For all the documents related to the case go here.

Regulation imposing new cigarette warnings declared unconstitutional - UPDATED

Back in June of last year, I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.” (See here) Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevented the FDA from enforcing the new rule. See here and here.  Go here and scroll down for all the posts on this issue.

Today, it is being reported that U.S. District Judge Richard Leon has declared the regulations unconstitutional.  According to the Wall Street Journal, the judge said the Obama administration failed “to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images.” The rule, he said, violates companies’ First Amendment protections against government-compelled speech.  Go here for the story in the Wall Street Journal law blog and here for the story in the Blog of the Legal Times.

The court's decision is available here.

UPDATE 3-1-12: The First Amendment Center has a comment here.

UPDATE 3-2-12:  The FDA law blog has a comment here.

One more comment on Kiobel and the fate of corporate accountability under the ATS

At the Huffington Post, Valerie Brender contends that whatever the outcome of Kiobel, the decision “will be a watershed moment for corporate accountability.”

Alabama Supreme Court recognizes wrongful death claim for stillborn starts at conception

About two weeks ago, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb reaffirming an earlier decision in which the court reasoned that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability."

Illinois also takes this approach, but it is probably still the minority view.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.

Press coverage of yesterday's oral arguments in Kiobel and Rajoub

Here are the links to articles on yesterday's oral arguments, as collected by the SCotUS blog:

Writing for this blog, Lyle Denniston reports that “a majority of the Justices looked notably unconvinced” that corporations could be sued in U.S. courts for human rights violations perpetrated abroad; similar observations were made by Mike Sacks at the Huffington Post, Robert Barnes at the Washington Post, Marcia Coyle at the National Law Journal, David G. Savage at the Los Angeles Times, James Vicini at Reuters, Jess Bravin at the Wall Street Journal Law Blog, and Bill Mears of CNN.  Additional coverage comes from Bob Van Voris at Bloomberg, Adam Liptak at the New York Times, Dahlia Lithwick at Slate, Mark Sherman at the Associated Press, Kenneth Anderson at the Volokh Conspiracy, Warren Richey at the Christian Science Monitor, Ariane de Vogue of ABC News, Nico Colombant at the Voice of America, and Lawrence Hurley at Greenwire.  (Thanks to Howard Bashman for the last two links.)  The New York Times’s Room for Debate page also features a discussion of the case, while at Balkinization Marco Simons discusses the arguments advanced by a group of scholars who contend that the Alien Tort Statute should only cover suits “between aliens and citizens.”

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).