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The NAM filed amicus briefs urging the U.S. Supreme Court to review and reverse a 9th Circuit decision that imposed overbroad civil liability on food producers under the U.S. Alien Tort Statute. The ATS is an 18th century law that allows non-U.S. citizens to file lawsuits in U.S. federal courts for certain violations of international law connected to U.S.-based conduct. In recent years, human rights roups have used the statute as a tool to bring attention to their causes by targeting name brand companies doing business in developing countries who have taken no part in the targeted practices.

In this case, plaintiffs alleged that the food producers violated the Alien Tort Statute by purchasing cocoa from African farmers alleged to have mistreated their workers. The U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs should be allowed to pursue their claims against the food producers for “aiding and abetting” the alleged violations. The Ninth Circuit’s interpretation of the ATS would open the floodgates to potential claims against manufacturers doing business with foreign suppliers in troubled regions of the globe.

The NAM’s amicus briefs—filed in support of certiorari and later on the merits—highlighted how the Ninth Circuit’s decision deepens a circuit split on the scope of the Alien Tort Statute and discourages U.S. business operations and investment in developing countries. The NAM also urged the Court to adopt a bright-line rule that would bar ATS claims unless the conduct that occurred in the U.S. is itself a tort “committed in violation of the law of nations,” not a routine, lawful activity such as operational and financial decision-making. On June 17, 2021, while declining to adopt a bright-line rule, the Court ruled 8-1 that general corporate activity is insufficient to support a domestic application of the ATS.

The NAM filed amicus briefs urging the U.S. Supreme Court to review and reverse a 9th Circuit decision that imposed overbroad civil liability on food producers under the U.S. Alien Tort Statute. The ATS is an 18th century law that allows non-U.S. citizens to file lawsuits in U.S. federal courts for certain violations of international law connected to U.S.-based conduct. In recent years, human rights roups have used the statute as a tool to bring attention to their causes by targeting name brand companies doing business in developing countries who have taken no part in the targeted practices. In this case, plaintiffs alleged that the food producers violated the Alien Tort Statute by purchasing cocoa from African farmers alleged to have mistreated their workers. The U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs should be allowed to pursue their claims against the food producers for “aiding and abetting” the alleged violations. The Ninth Circuit’s interpretation of the ATS would open the floodgates to potential claims against manufacturers doing business with foreign suppliers in troubled regions of the globe. The NAM’s amicus briefs—filed in support of certiorari and later on the merits—highlighted how the Ninth Circuit’s decision deepens a circuit split on the scope of the Alien Tort Statute and discourages U.S. business operations and investment in developing countries. The NAM also urged the Court to adopt a bright-line rule that would bar ATS claims unless the conduct that occurred in the U.S. is itself a tort “committed in violation of the law of nations,” not a routine, lawful activity such as operational and financial decision-making. On June 17, 2021, while declining to adopt a bright-line rule, the Court ruled 8-1 that general corporate activity is insufficient to support a domestic application of the ATS.

The NAM filed an amicus brief to oppose a class action lawsuit that seeks to impose overbroad civil liability on manufacturers under the U.S. Alien Tort Statute. The lawsuit alleges that major food producers violated the Alien Tort Statute by purchasing cocoa from African producers engaged in criminal conduct and human rights violations. The defendant food producers moved to dismiss the complaint. A federal district court granted the motion to dismiss, finding that the complaint seeks an improper extraterritorial application of the Alien Tort Statute because the alleged violations occurred in Africa. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs should be allowed to pursue their claims against the major food producers for "aiding and abetting" the cocoa producers' alleged violations. The Ninth Circuit reasoned that the major business decisions about the cocoa purchases and related payments were made within the United States, and therefore a domestic application of the Alien Tort Statute is appropriate. This interpretation of the Alien Tort Statute would open the floodgates to potential claims against manufacturers for any payments to foreign suppliers whom a plaintiff could allege is involved in any conduct that violates international norms. Over the past two decades, companies have been named as defendants in hundreds of these types of lawsuits. The suits are typically litigated for a decade or more, imposing substantial legal and reputational costs on corporations that operate in developing countries and chilling further investment. A class-action lawsuit on such a basis could impose massive settlement pressure on companies involved in no wrongdoing whatsoever. Such a precedent would enrich opportunistic trial lawyers while harming manufacturers and doing nothing to alleviate violations of international law. The NAM's amicus brief supports en banc review by identifying the harmful consequences this decision would have on all manufacturers. On July 6, 2019, the court denied en banc review.

The NAM filed an amicus brief supporting Nestle USA and urging the U.S. Supreme Court to clarify the reach of the Alien Tort Statute. This appeal followed a U.S. Court of Appeals for the Ninth Circuit decision that split with other federal courts of appeals on three legal issues: whether U.S. courts should entertain extraterritorial litigation, whether there is a well-defined consensus that corporations can be sued for violations of the Law of Nations; and the extent of knowledge or intent that a business must have to be liable for the acts of others. The NAM’s brief argued that the decision below 1) ignores a prior Supreme Court ruling; 2) invites international friction by expanding the scope of the Alien Tort Statue; and 3) is inconsistent with generally accepted principles of international law on intentional wrongdoing and corporate liability. Unfortunately, the Court denied the petition for review.

The Alien Tort Statute continues to be a source of substantial concern for manufacturers that do business abroad and that are alleged to assist regimes accused of various human rights violations. The ATS allows federal courts in the U.S. to hear cases by foreign nationals who allege violations of international law. This case involves allegations that various companies assisted the government of the Ivory Coast to force children to work on cocoa plantations.

The NAM and 4 international law professors joined together in an amicus brief urging the Ninth Circuit to reject opening up the statute to broad claims. We argued not only that the Supreme Court has very narrowly interpreted the kind of conduct that violates international law, but also that the plaintiffs' claims in this case are based on a standard for aiding and abetting liability that does not reflect a well-established, specifically defined and universally agreed-upon rule of customary international law. In addition, settled customary international law does not recognize corporate entity liability, and the ATS should not be extended to imply private rights of action that have a significant potential for interference with the conduct of foreign affairs by the political branches of government.

On December 19, 2013, the Ninth Circuit vacated the district court’s opinion and remanded the case to the trial level for further proceedings. The circuit court concluded that corporations can be held liable under the ATS. The court also determined that a corporation does not need to purposefully act to be liable for aiding and abetting. Rather, any assistance that has a substantial effect, even if the corporation did not specifically intend to aid and abet the crime, is grounds for liability.

However, this decision has been appealed to the full Ninth Circuit for further review, and on Oct. 27, 2014, the NAM filed an amicus brief supporting review. The 3-judge panel announced a standard of criminal intent for an accessory to a crime that infers the defendant has a purpose of facilitating a crime if it has a profit-seeking motive. Our amicus brief argued that this ruling conflicts with the decisions of other federal courts and has no support in international law. Unless corrected, this standard “exposes businesses to the risk of liability for any commercial relationship in countries alleged to have engaged in human rights violations, even when that relationship is entirely lawful as a matter of American foreign economic policy.”

We also argued that the recent Supreme Court decision in Kiobel limits the power of U.S. courts to hear cases arising from activities occurring abroad. That decision recognized a presumption against applying U.S. law extraterritorially to claims arising under the Alien Tort Statute, and there must be claims that “touch and concern the territory of the United States” which are of “sufficient force” to displace the presumption. The Ninth Circuit misapprehended this ruling, claiming that the presumption against extraterritoriality does not apply to ATS claims.

Both of these issues are of exceptional importance and affect many companies that have been caught up in ATS allegations. The Ninth Circuit declined to rehear this case on 5/6/15, with 8 judges dissenting.

In the past 30 years, the 220-year old Alien Tort Statute (ATS) has resulted in lawsuits against American manufacturers that have done business with foreign governments with controversial human rights histories. This case involves a lawsuit brought in a U.S. court by South African nationals against various manufacturers. The plaintiffs allege that 85 companies aided and abetted the apartheid regime of South Africa prior to 1994 by supplying it with manufactured goods.

Our amicus brief argued that courts should defer to the trade and foreign policy decisions of the U.S. Government and dismiss this suit. The Executive Branch long ago adopted a policy of commercial engagement with South Africa to promote foreign policy goals, and private companies need to be able to rely on that decision and others like it. Both the U.S and South African governments objected to this litigation, and companies that engage in such trade to help advance our national policy could be exposed to years of litigation and adverse publicity. In many cases, negative publicity is the intended result of the ATS litigation, and the dismissal of such suits years later cannot undo the economic and reputational damage inflicted on manufacturers. Business relationships with China, Colombia, Indonesia, Nigeria and other countries could expose companies to ATS suits in the future, we argued.

On August 21, 2013, a 3-judge panel of the Second Circuit found all the claims plainly barred by the Supreme Court's recent decision in Kiobel that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in the territory of another sovereign. The case was sent back to the trial court to resolve any remaining issues unresolved by Kiobel.

On April 17, 2013, the Supreme Court issued a ruling that dramatically constrains efforts to expand the application of a 1789 statute, the Alien Tort Statute, beyond our borders. The law merely provides a forum in federal courts in the United States for allegations involving violations of the "law of nations," but often such cases involve foreign plaintiffs alleging acts occurring outside of the United States. This suit was brought by 12 Nigerian nationals claiming human rights violations by three oil companies.

The Court ruled that the presumption against extraterritoriality applies to suits under the Alien Tort Statute. That presumption means that a statute does not apply to activities occuring outside of the United States unless it says it does. The presumption helps prevent conflicts between our laws and those of other nations. The Court found it particularly important to apply in this context because ATS law is determined by the courts, not by Congress.

The NAM filed an amicus brief urging exactly what the Court concluded. Many foreign governments have protested the extraterritorial application of U.S. law by means of the ATS. We argued that properly applying the law of the place where the act occurred avoids the conflict that would otherwise result from applying U.S. law to conduct occurring in other countries, and promotes international harmony.

In addition, we countered an argument by the plaintiffs that relied on the "transitory torts" doctrine, i.e., that purports to allow lawsuits against a person regardless of where the injury occurs, as long as personal jurisdiction is satisfied. Our brief explained that transitory tort cases apply the law of the country where the challenged act occurred, rather than -- as the plaintiffs wanted -- the law of the United States, or international law as interpreted by U.S. courts. Such interpretations are complicated and lead to conflicting results, not only on the precise content of the law but also on jurisdictional issues. The Court rejected the plaintiffs' transitory torts argument.

This is a very important victory for American manufacturers, many of whom have been sued under the ATS for alleged activities that occur entirely in other countries. The NAM has filed amicus briefs in many of these cases to provide guidance on issues such as (1) whether the law of nations recognizes claims for aiding and abetting liability, (2) whether activities encouraged by U.S. foreign policy can lead to liability, and (3) whether the law of nations imposes liability on corporations as well as individuals.

When it was originally argued before the Supreme Court, this case involved whether the ATS applies to corporations, or only to individuals. The Second Circuit ruled that individual corporate executives can be sued, but not corporations. No corporation has ever been subject to any form of liability under the customary international law of human rights. The NAM filed an amicus brief supporting the view that there is no specific and universal view that corporations are subject to liability for the claims in this case, as is required in determining whether the law of nations has been breached. But we spent most of our brief supporting an alternative ground for dismissing this case -- that aiding and abetting liability under international law requires that the defendant acted with a purpose to facilitate the violations, not something less like mere knowledge of the conduct. That "purpose to facilitate" was not alleged by the plaintiffs. The purpose requirement is found in nearly every leading source for determining the content of customary international law, from the Rome Statute of the International Criminal Court, to a United Nations statute and study, to case law from the International Military Tribunal at Nuremberg, to opinions of foreign international-law experts. Moreover, courts should approach any expansion of ATS liability very cautiously to avoid intruding into matters of foreign relations and to respect the ability of foreign judicial systems to address matters like this that arise abroad.

After the first round of arguments in 2012, the Court sought briefing on the extraterritoriality issue and decided the case on that basis. Thus, in a future ATS case that does not have extraterritoriality problems, there still remain open questions about whether the law applies to corporations and whether they can be sued for aiding-and-abetting liability.

This suit by Indonesian villagers against ExxonMobil alleges claims under District of Columbia and Delaware law arising from alleged human rights abuses committed by Indonesian forces in the province of Aceh. The judge dismissed the case, based on the general rule that non-resident aliens have no standing to sue in U.S. courts.

The case was appealed to the D.C. Circuit, and the NAM joined with the National Foreign Trade Council, USA*Engage and the U.S. Council for International Business in an amicus brief supporting this result. We argued that federal suits under the Alien Tort Statute (ATS), and now state suits under state law, cause irreparable economic harm, interfere with U.S. foreign relations, and impede the policies designed to promote the very democratic and human-rights goals that the plaintiffs purport to advance. Allowing this kind of litigation under a patchwork of different state laws -- for injuries perpetrated against foreign nationals by other foreign nationals in a foreign country -- threatens U.S. economic and political relations. The federal government alone is assigned the constitutional responsibility for foreign relations, and federal law displaces state laws that threaten the effective exercise of the nation's foreign policy. In addition, there is no indication that the state laws at issue here were ever intended to apply to the extraterritorial claims at issue.

Unfortunately, the court ruled 7/8/2011 that aiding-and-abetting liability “is well established under the ATS” and that “the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination.” Thus, the case was sent back to the district court for further proceedings.

The Alien Tort Statute has been used increasingly in the past 20 years by foreign nationals to sue American companies in federal court alleging complicity in acts of violence by foreign governments abroad. This case was brought by Colombian nationals against Coca-Cola for alleged aiding and abetting Columbia paramilitary personnel with respect to violent acts that those personnel allegedly committed.

The NAM's brief urged the 11th Circuit not to expand the ATS beyond its narrowly limited confines. Expansion of U.S. jurisdiction would discourage investment and trade between U.S. companies and foreign countries, and would interfere with our government's management of foreign economic affairs. ATS suits increase the risks of U.S. investments abroad, place U.S. companies at a competitive disadvantage, expose them to costly and protracted smear campaigns, and subject them to expensive and potentially futile pre-trial discovery. In addition, such litigation undermines principles of comity and second-guesses the ability of foreign authorities to investigate activities taking place on their soil. It puts the U.S. government in the untenable position of being forced to choose sides in sensitive international situations.

Moreover, the ATS is narrowly defined to allow jurisdiction over violations of the "law of Nations," but claims of aiding-and-abetting liability and corporate veil piercing like those in this case have not reached the required level of international acceptance to qualify for ATS jurisdiction.

On 8/11/2009, the 11th Circuit unanimously upheld the dismissal of the case. While the court recognized aiding and abetting liability, it described its scope very narrowly. It also found that state action is an important element in ATS cases, narrowing the circumstances in which manufacturers might be held liable.

The NAM joined with 5 other business groups 2/11/08 urging the Supreme Court to review a Second Circuit decision that allows a lawsuit against dozens of American companies under the Alien Tort Statute (ATS). That statute allows foreign nationals to use U.S. courts to sue for violations of international law, but there is no clear statement of what international law is. It is up to the courts to try to divine the scope of ATS suits. This case arose when individuals from South Africa sued American companies that simply did business with the South African government, contending that such activity constituted "aiding and abetting."

Our brief urged the Supreme Court to step in and rule that this issue should not be decided by U.S. courts. First, the U.S. Government had a policy that encouraged American companies to engage in commerce in South Africa in accord with the Sullivan Principles that promoted racial integration and social justice. Were our courts to impose liability on companies for doing so, that action would directly conflict with the international relations policy of our government. The Executive Branch is responsible for U.S. foreign policy, and litigation under the ATS interferes with that function.

Second, the lower courts have not adopted a consistent position on whether and to what extent international law punishes activity that might be considered "aiding and abetting." Supreme Court review is essential to sort out this potentially wide-ranging inquiry into the international trade activity of domestic companies.

The lower court's ruling in this case seriously threatens the ability of the Executive Branch to carry out foreign relations policies that rely on the cooperation of the private sector. Courts that refuse even to consider the views of the Executive Branch at an early stage of ATS litigation raise the risk of liability for American companies trying to do business in countries approved by the Executive Branch for commerce and trade.

On May 12, four Justices of the Court recused themselves from the case, and since a quorum of 6 was lacking, the lower court decision was affirmed as if by an equally divided court. The case will now go back to the trial court for continued proceedings. The issue of aiding and abetting liability under the Alien Tort Statute remains unresolved.

The NAM filed a joint amicus brief 4/30/03 with USA*Engage, the National Foreign Trade Council, the U.S. Chamber, the U.S. Council for International Business, and the Organization for International Investment. We supported an appeal by Unocal of an adverse judgment holding the company liable for “aiding and abetting” the acts of the Burmese (Myanmar) military in providing security for a pipeline project. We argued that the alien tort provision of the Judiciary Act of 1789 provides jurisdiction to federal courts but does not provide a substantive cause of action. There must be some other statute that defines violations of law that are actionable. Before oral argument could be held in December, 2004, the parties reached a settlement in principle.

The Supreme Court held 6/29/04 that the Federal Tort Claims Act (“FTCA”), which excludes “any claim arising in a foreign country,” 28 U.S.C. § 2680(k), does not authorize a claim against the United States for a false arrest executed in a foreign country just because the arrest was planned in the United States. The Court rejected the so-called “headquarters doctrine,” which allowed FTCA suits for harm alleged to have occurred in a foreign country so long as the harm could be linked to negligent guidance or planning that occurred in the United States. Tort claims are historically regarded as “arising in” the place where the “last act necessary to establish liability occurred,” and there is no evidence that Congress intended “arising in” under the FTCA to have a different meaning.

The Court also held that the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), is principally jurisdictional, but that “at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Thus, although the ATS does not allow “the creation of a new cause of action for torts in violation of international law,” it does encapsulate the “understanding that the common law would provide a recognized cause of action for the modest number of international law violations with a potential for personal liability [in 1789].” “[A]ny claim based on the present-day law of nations [must] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” The Court’s ruling on the scope of the ATS is particularly significant to transnational corporations and domestic businesses with foreign activities. The NAM's press release welcomes this ruling.

The NAM and others urged the Supreme Court 10/6/03 to review this case. Since 1980, foreign plaintiffs have been filing suits in federal courts for conduct involving activities that occur in foreign countries. The NAM and other organizations, as well as the U.S. Government, began to challenge these suits, arguing that U.S. law only provides a forum, and that there must be a separate statute, such as the Torture Victim Protection Act of 1991, that confers substantive rights that a foreign plaintiff can assert here. In addition, we challenged the Ninth Circuit's ruling that the law of nations can be determined from non-binding international declarations, unratified or non-self-executing treaties, and unreliable commentary. The decision of the Ninth Circuit raises serious separation of powers issues, and highlights the foreign policy concerns that underlie the vast majority of these cases. Clarifying these issues is important both in fighting the war on terrorism and in preventing American companies from being uniquely subjected to liability for the acts of agents of foreign governments. Joint brief filed with the National Foreign Trade Council, USA*Engage, the Chamber of Commerce and the U.S. Council for International Business.

On 1/23/04, the NAM filed a brief on the merits calling for strict limits on the ability of foreign nationals to use U.S. federal courts to allege violations of rights in their countries. We argued that the ATS was never intended and does not create a substantive cause of action; rather, it only allows federal courts to hear claims arising under already recognized international standards of conduct. The brief argued that such suits are not allowed unless an international standard of behavior has the assent of the U.S. government, is obligatory and is specific. Allowing these suits to continue also creates serious substantive and procedural conflicts that Congress never intended when it passed the law in 1789. See also United States v. Alvarez-Machain.

The Supreme Court held 6/29/04 that the Federal Tort Claims Act (“FTCA”), which excludes “any claim arising in a foreign country,” 28 U.S.C. § 2680(k), does not authorize a claim against the United States for a false arrest executed in a foreign country just because the arrest was planned in the United States. The Court rejected the so-called “headquarters doctrine,” which allowed FTCA suits for harm alleged to have occurred in a foreign country so long as the harm could be linked to negligent guidance or planning that occurred in the United States. Tort claims are historically regarded as “arising in” the place where the “last act necessary to establish liability occurred,” and there is no evidence that Congress intended “arising in” under the FTCA to have a different meaning.

The Court also held that the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), is principally jurisdictional, but that “at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Thus, although the ATS does not allow “the creation of a new cause of action for torts in violation of international law,” it does encapsulate the “understanding that the common law would provide a recognized cause of action for the modest number of international law violations with a potential for personal liability [in 1789].” “[A]ny claim based on the present-day law of nations [must] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” The Court’s ruling on the scope of the ATS is particularly significant to transnational corporations and domestic businesses with foreign activities. The NAM's press release welcomes this ruling.

The NAM and others urged the Supreme Court 10/6/03 to review this case. Since 1980, foreign plaintiffs have been filing suits in federal courts for conduct involving activities that occur in foreign countries. The NAM and other organizations, as well as the U.S. Government, began to challenge these suits, arguing that U.S. law only provides a forum, and that there must be a separate statute, such as the Torture Victim Protection Act of 1991, that confers substantive rights that a foreign plaintiff can assert here. In addition, we challenged the Ninth Circuit's ruling that the law of nations can be determined from non-binding international declarations, unratified or non-self-executing treaties, and unreliable commentary. The decision of the Ninth Circuit raises serious separation of powers issues, and highlights the foreign policy concerns that underlie the vast majority of these cases. Clarifying these issues is important both in fighting the war on terrorism and in preventing American companies from being uniquely subjected to liability for the acts of agents of foreign governments. Joint brief filed with the National Foreign Trade Council, USA*Engage, the Chamber of Commerce and the U.S. Council for International Business.

On 1/23/04, the NAM filed a brief on the merits calling for strict limits on the ability of foreign nationals to use U.S. federal courts to allege violations of rights in their countries. We argued that the ATS was never intended and does not create a substantive cause of action; rather, it only allows federal courts to hear claims arising under already recognized international standards of conduct. The brief argued that such suits are not allowed unless an international standard of behavior has the assent of the U.S. government, is obligatory and is specific. Allowing these suits to continue also creates serious substantive and procedural conflicts that Congress never intended when it passed the law in 1789. See also Sosa v. Alvarez-Machain.