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.