Alien Tort Statute -- 2021



Nestle, USA, Inc. v. Doe   (U.S. Supreme Court)

Scope of Alien Tort Statute

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.


Related Documents:
Opinion  (June 17, 2021)
NAM brief  (September 8, 2020)
NAM brief  (October 31, 2019)

 


Alien Tort Statute -- 2016



Nestle USA, Inc. v. Doe   (U.S. Supreme Court)

Validity of suit under Alien Tort Statute

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.

 


Alien Tort Statute -- 2015



Doe v. Nestle USA, Inc.   (9th Circuit)

Corporate liability for aiding and abetting under Alien Tort Statute

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.


Related Documents:
NAM brief in support of rehearing  (October 27, 2014)
NAM brief  (October 7, 2011)