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.