A new study concludes the poor are less likely to sue for medical malpractice

Here is a link to a new study that concludes that the poor are less likely to sue for medical malpractice. (Thanks to the TortsProf blog for the link.)

More comments on Supreme Court's decision to expand arguments in Kiobel

The SCotUS blog is providing more links to comments on the Supreme Court's decision to order reargument in Kiobel v. Royal Dutch Petroleum to address whether the Alien Tort Statute allows foreigners to sue in U.S. courts for acts committed abroad. Courthouse News Service reports that some legal observers are puzzled at the “highly unusual move,” while at Law.com’s Corporate Counsel blog, Sue Reisinger discusses two amicus briefs that “clearly helped sway the Justices into postponing a decision while exploring a new issue not raised by the parties.”

Comments on Supreme Court's decision to expand arguments in Kiobel

On Monday I reported that the Supreme Court decided to expand the discussion of Kiobel v Royal Dutch Petroleum beyond the issue originally presented by the case (whether corporations can be sued under the Alien Tort Statute) to include the issue of extraterritoriality (whether the ATS can be applied to conduct that occurs outside the US).  The decision generated some commentary in the past couple of days.  Here is a summary taken from the SCotUS blog:

Greg Stohr of Bloomberg has coverage, as do Nina Totenberg at NPR’s The Two-Way blog, Mike Sacks of the Huffington Post, Robert Barnes of the Washington Post, Adam Liptak of the New York Times, Mark Sherman of the Associated Press, James Vicini of Reuters, Marcia Coyle of the National Law Journal (via the Blog of Legal Times), Nicole Flatow of ACSblog, Jess Bravin of the Wall Street Journal (subscription required), and Jaclyn Belczyk of JURIST. And in a post published at the Huffington Post before the reargument order was issued, Katie Redford responded to post-argument news reports suggesting that the Court was likely to rule in favor of corporations.  Rick Hasen at the Election Law Blog sees the “fingerprints of Justice Alito all over the” reargument order, while at the Volokh Conspiracy Kenneth Anderson lists some of the questions that he wishes were before the Justices.  And in her column at Thomson Thompson Reuters News and Insight, Alison Frankel notes that the “recasting of Kiobel has the potential to devastate U.S. human rights litigation based on overseas conduct.”

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.”