This week marks the three-year anniversary of the U.S. Supreme Court’s decision in Kiobel vs. Royal Dutch Petroleum, the ruling that profoundly altered the landscape of Alien Tort Statute (ATS) litigation.  The ATS entitles aliens to seek civil damages for violations of the law of nations, including violations of modern-day international human rights norms.

In Kiobel, presented with the question of whether and under what circumstances U.S. district courts may recognize a cause of action under the ATS for violations occurring outside of U.S. territory, a majority of the Court applied a canon of construction known as the “presumption against extraterritoriality” and constrained federal courts when exercising jurisdiction under the statute.  The Court offered a fresh test to determine when an extraterritorial cause of action may survive:  claims must “touch and concern” the U.S. with “sufficient force” to displace the presumption. 

Since Kiobel, the legal community has debated the decision and the questions it left unanswered.  What U.S. connection is needed to displace the presumption?  Can corporations be held liable under the ATS?  And what intent is needed to establish aiding and abetting liability? 

So, what have we learned three years after Kiobel?

Displacing the presumption

Kiobel shut the door to “foreign cubed” cases (those involving a foreign plaintiff, foreign defendant and foreign conduct).  Courts continue to struggle with “foreign squared” cases (those involving a foreign plaintiff but a defendant and alleged conduct that cannot always be neatly cabined as domestic or foreign).  A circuit split evident a year ago continues to develop with some U.S. circuit courts (the Second and Eleventh) looking for additional guidance from a case the Supreme Court cited in KiobelMorrison v. Australian National Bank — and others disagreeing on, or outright rejecting, whether a tool of statutory construction discussed therein is applicable.

Previously we discussed what domestic conduct has permitted some plaintiffs in some courts to clear Kiobel’s high hurdle.  A new permutation apparent this last year is whether a defendant who commits an abuse and then flees to or relocates in the U.S. constitutes domestic conduct sufficient to sustain a claim under Kiobel’s “touch and concern” language.  Courts come out differently on this issue. 

Corporate liability

So far, the Supreme Court has failed to bring clarity to whether corporations are subject to liability under the ATS.  As a result, courts have reached different conclusions, with the Ninth Circuit being the only circuit to answer definitively that corporations may indeed be held liable.  Several circuits have decided that Kiobel appears to suggest that the ATS contemplates corporate liability.  The Second Circuit arguably does so as well but has so far refused to overrule its earlier decision (in Kiobel), saving for another day, another panel, or the Supreme Court’s review the question of whether ATS claims against corporations may proceed. 

A case to watch is In re South African Apartheid Litigation.  Plaintiffs recently filed a petition for writ of certiorari with the U.S. Supreme Court following the Second Circuit’s dismissal of the decade-long case against companies for allegedly aiding and abetting human rights violations committed by the apartheid-era government of South Africa.  The petition seeks clarity from the Court on the circumstances under which defendants may be held accountable in U.S. courts for human rights violations.

Aiding and abetting liability

Finally, significant attention has focused on determining if and when liability under the ATS attaches for aiding and abetting crimes proscribed under international law—and more specifically the applicable mens rea element.  The Supreme Court recently declined to review a Ninth Circuit decision allowing a lawsuit against companies for allegedly aiding and abetting child labour to proceed (Doe v. Nestle).  A panel of the Ninth Circuit had earlier declined to decide whether a purpose or knowledge standard applied upon finding that the defendants’ conduct met the more exacting purpose standard.  Which standard is ultimately used is critical, as it impacts the plaintiffs’ evidentiary burden and will have significant ramifications in the realm of human rights litigation.  We will continue to watch this space.