Domestic Corporations and the Alien Tort Statute
This Comment analyzes the history, jurisprudence, and contemporary status of the Alien Tort Statute, which allows foreign citizens to bring suit in US courts for violations of international law. It attempts to answer two unresolved questions relating to the Alien Tort Statute. First, can domestic corporations be sued under the statue? Based on an analysis of the statute’s text, its history, and lower court decisions, this Comment argues that they rightly should be. This Comment will also define what sort of conduct suffices for an Alien Tort Statute lawsuit to be brought against a domestic corporation and concludes that a domestic corporation must have violated international law either within the United States or in territory unclaimed by any nation.
The Alien Tort Statute (ATS) gives federal courts jurisdiction over civil tort actions brought by aliens in violation of the laws of nations or treaties of the United States.1
28 U.S.C. § 1350.
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397–98 (2018).
Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brook. J. Int’l L. 773, 811 (2008) (counting 185 cases between 1980 and 2008 claiming jurisdiction under the ATS in comparison to twenty-one cases from 1789 to 1980).
A succession of Supreme Court cases has dealt with the scope and application of the ATS, holding that federal courts should not recognize private claims for violations of international law less specific than those that were recognized when it was first enacted,4
Sosa v. Alvarez-Machain, 542 U.S. 692, 719, 732 (2004).
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) [hereinafter Kiobel II].
Jesner, 138 S. Ct. at 1408.
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021).
However, the Supreme Court’s ATS jurisprudence has, thus far, left a pair of vital questions unanswered.8
At least one previous article has tread somewhat similar ground to this one. See Amanda A. Humphreville, If the Question Is Chocolate-Related, the Answer Is Always Yes: Why Doe v. Nestle Reopens the Door for Corporate Liability of U.S. Corporations Under the Alien Tort Statute, 65 Am. U. L. Rev. 191 (2015). However, that article is outdated; it preceded both Jesner and Nestlé. It also focuses on policy to a much greater degree than this Comment.
First, it remains unclear whether the ATS can be used to bring claims against domestic corporations.9
Kayla Winarksy Green & Timothy McKenzie, Looking Without and Looking Within: Nestlé v. Doe and the Legacy of the Alien Tort Statute, Am. Soc’y Int’l L. (July 15, 2021), https://perma.cc/7KZ8-EUHP.
For post-Sosa cases, compare Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014), rev’d on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011) (“[C]orporate liability is possible under the Alien Tort Statute . . . .”), and Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (observing that the ATS “grants jurisdiction from complaints of torture against corporate defendants”), with Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010) [hereinafter Kiobel I] (“For now, and for the foreseeable future, the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations.”), aff’d on other grounds, 569 U.S. 108 (2013).
Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 212 (2d Cir. 2016); see also In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015) (affirming dismissal of the plaintiffs’ ATS claims solely on corporate liability grounds under Kiobel I), aff’d sub nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
See Richard Florida, What Is the World’s Most Economically Powerful City?, Atlantic (May 8, 2012), https://perma.cc/JQ25-9MN7(describing New York City as the most economically powerful city in the world).
Stephens, supra note 3, at 811–14.
Id. at 814.
Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1366 (S.D. Fla. 2008) (finding this verdict in case where plaintiffs alleged they had been forced to work for defendant in concert with Cuban government).
Settlement Reached in Human Rights Cases Against Royal Dutch/Shell, Ctr. for Const. Rts. (Jun. 8, 2009), https://perma.cc/ZJY5-WNN5.
It seems that a good number of ATS cases have settled, but it is exceedingly hard to find any concrete information on the terms.
Daphne Eviatar, A Big Win for Human Rights, Nation (Apr. 21, 2005), https://perma.cc/V3EV-3LKE.
See, e.g., Tachiona v. Mugabe, 234 F. Supp. 2d 401, 442 (S.D.N.Y. 2002) (judgment for $70 million); Doe v. Rafael Saravia, 348 F. Supp. 2d 1112, 1159 (E.D. Cal. 2004) (judgment of $10 million ordered by court); Arce v. Garcia, 434 F.3d 1254, 1259 (11th Cir. 2006) (affirming jury verdict of $54 million); Paul v. Avril, 901 F. Supp. 330, 336 (S.D. Fla. 1994) (judgment for $41 million); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1360 (N.D. Ga. 2002) (judgment for $140 million).
Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1253 (S.D. Fla. 1997).
See, e.g., Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1402–03 (2018) (describing the “general reluctance to extend judicially created private rights of action” and noting that “[t]his caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations”).
William S. Dodge, The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights Litigation and Extraterritoriality, Just Sec. (June 18, 2021), https://perma.cc/4TBH-N263.
A further question remains: what is the analysis used to decide whether alleged domestic conduct is sufficient under the ATS? It is clear from Supreme Court precedent that “mere corporate presence”23
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021).
In a recent decision, a federal court stated that “there is no authority in international law that United States national courts must recognize, except insomuch as Congress or the President incorporates some part of it through constitutional channels into national law.”25
United States v. Martinez, 599 F. Supp. 2d 784, 799 (W.D. Tex. 2009).
Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004) (quoting Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796)).
The Paquete Habana, 175 U.S. 677, 700 (1900).
F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004).
Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication, 25 Emory Int’l L. Rev. 197, 198 (2011).
Compare Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998), with Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998).
See Sosa, 542 U.S. at 730–31 (2004) (citations omitted) (“We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. . . . [t]he position we take today has been assumed by some federal courts for 24 years . . . . Congress . . . has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.”).
Of course, customary legislative and executive mechanisms used to incorporate international law exist alongside the judicial processes. The president has the “Power, by and with the Advice and Consent of the Senate, to make Treaties” with foreign nations, and any “treaty ratified by the United States is . . . the law of this land.”32
U.S. Const. art. II, § 2, cl. 2; Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996).
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003).
Am. Soc’y Int’l L., Uses of International Law in U.S. Courts, in Benchbook on International Law § I.C–5 (Diane Marie Amann ed., 2014), https://perma.cc/7UNR-PWNA.
Id.
The ATS is one of those statutes that directly incorporates international law. The ATS is both short and seemingly simple, stating that the “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”36
28 U.S.C. § 1350.
Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
In a famous quotation, Justice Henry Friendly of the Second Circuit referred to “[t]his old but little used section” as “a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came.”38
IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), abrogated on other grounds by Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010). Lohengrin is defined as a “mysterious knight” who refuses to answer questions about his origin. Encyclopedia Britannica, https://perma.cc/CM22-86AW(last visited Feb. 13, 2022)
William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 488–89 (1986) (“Notwithstanding frequent complaints about the obscurity of section 1350’s origins, a thorough study of available historical materials provides a fairly clear understanding of the statute’s purpose.”). But see Sosa v. Alvarez-Machain, 542 U.S. 692, 718–19 (2004) (“But despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.”).
The origins of the ATS are found during the Founding Era, when “the inability of the [Articles of Confederation] government to ensure adequate remedies for foreign citizens caused substantial foreign-relations problems.”40
Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1396 (2018).
Casto, supra note 39, at 490.
Sosa, 542 U.S. at 716.
First to occur was the 1784 “Marbois-Longchamps Affair,” in which one Charles Julian de Longchamps, a Frenchman of ill repute, verbally threatened and then caned M. Marbois, the secretary of the French legation in Philadelphia.43
Alfred Rosenthal, The Marbois-Longchamps Affair, 63 Pa. Mag. Hist. & Bio. 294, 294 (1939) (Longchamps had been involved in a series of previous run-ins with the law.).
Id. at 295, 299.
Id. at 299; Casto, supra note 39, at 492 n.143.
Casto, supra note 39, at 492.
The second incident occurred during the ratification period following the Constitutional Convention. A New York City constable “entered the house of the Dutch Ambassador and arrested one of the Ambassador’s servants.”47
Id. at 494.
Id. at 494, n.152 (citing Report of Secretary for Foreign Affairs on Complaint of Minister of United Netherlands, 34 J. Cont’l. Cong. 109, 111 (1788)).
In response, the Framers used the Constitution to give the Supreme Court original jurisdiction over “all cases affecting Ambassadors, other public ministers and Consuls.”49
Sosa v. Alvarez-Machain, 542 U.S. 692, 717 (2004).
Id.
Casto, supra note 39, at 495; see also Sosa, 542 U.S. at 718.
Id. at 719.
Mentions of the ATS in the federal registers are rare before the 1980s. One author counted a total of only twenty-one cases between 1789 and 1980.53
Stephens, supra note 3, at 811.
For an approximately complete list of pre-modern ATS cases, see Susan Simpson, All* Alien Tort Statute Cases Brought Between 1789 and 1990, TheViewFromLL2 Blog (Dec. 18. 2010), https://perma.cc/8XBQ-JFKB;Susan Simpson, Alien Tort Statute Cases Resulting in Plaintiff Victories, TheViewFromLL2 Blog (Nov. 11, 2009), https://perma.cc/J6GA-SD5Y.
The first recorded case involving the ATS, Moxon v. The Fanny, occurred in 1793.55
17 F. Cas. 942 (D. Pa. 1793).
Id.
Id. at 948.
Id. at 947 (“The procedure here is in rem . . . .”).
David James DeMordaunt, Admiralty In Rem and In Personam Procedures: Are They Exempt from Common Law Constitutional Standards?, 29 Santa Clara L. Rev. 331 (1989).
13 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795).
Id. at 358.
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1942 (2021) (Gorsuch, J., concurring).
Id.
If near-contemporaries of the ATS saw no problem with using it to bring a suit against the artificial entity of a ship via an in rem action, it is hard to believe that bringing a case against a corporation, which was seen as “an artificial being, invisible, intangible, and existing only in contemplation of law”64
Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819).
The 1960s contained a series of cases where the ATS was used to bring claims against unions.65
See Khedivial Line, S. A. E. v. Seafarers’ Int’l Union, 278 F.2d 49, 51–52 (2d Cir. 1960); Madison Shipping Corp. v. Nat’l Mar. Union, 282 F.2d 377, 378 (3d Cir. 1960); Upper Lakes Shipping Ltd. v. Int’l Longshoremen’s Ass’n, 33 F.R.D. 348, 350 (S.D.N.Y. 1963).
Damaskinos v. Societa Navigacion Interamericana, S.A., Panama, 255 F. Supp. 919 (S.D.N.Y. 1966) (suit against British and Panamanian corporations); Seth v. Brit. Overseas Airways Corp., 216 F. Supp. 244 (D. Mass. 1963), aff’d, 329 F.2d 302 (1st Cir. 1964) (lawsuit against British corporation); Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324, 328 (E.D. Pa. 1966) (lawsuit against domestic insurance company); Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142, 144 (7th Cir. 1973) (lawsuit against Illinois corporation).
519 F.2d 1001 (2d Cir. 1975), abrogated on other grounds by Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).
There are two important takeaways from this overview of the first 190 years of ATS litigation. First, all these cases take it for granted that the ATS was enacted as a fully formed and immediately operational statute standing on the common law of nations; there is no mention or implication that additional enabling legislation would be required to put it into action.68
See Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004).
The Vrow Christina Magdalena, 13 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795); Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793).
Khedivial Lines, 278 F.2d at 50.
Vencap, 519 F.2d 1001.
The modern era of ATS litigation began in 1980, occasioned by the Second Circuit’s decision in Filartiga v. Pena-Irala.72
630 F.2d 876, 878 (2d Cir. 1980).
Id. at 878–80.
Id. at 880.
Id. at 890 (emphasis added).
The court continued by embracing an interpretation of the ATS that brought it into the modern age, concluding that “it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today” and embraced an expansive view of the “law of nations.”76
Id. at 880–81.
Id. at 885.
It is hard to overstate the impact Filartiga had on human rights actions in the federal court system. One author regarded that case as “opening the epic period of human rights litigation in this country . . . . In a sense, all current human rights litigation owes its fortune to Filartiga. The rediscovery of the Alien Tort Statute was much like finding the Holy Grail.”78
David J. Bederman, Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in U.S. Human Rights Litigation, 25 Ga. J. Int’l & Comp. L. 255, 256 (1996).
William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002).
Stephens, supra note 3, at 811.
The cases that dealt with the ATS in the two decades after Filartiga, while interesting, are of limited precedential use owing to the more recent string of Supreme Court decisions.
The other major event from this period that deserves mentioning is Congress’s passage of the Torture Victim Protection Act of 1991 (TVPA), which provides that individuals who act under the authority or color of law of a foreign nation are liable for damages stemming from acts of torture and extrajudicial killings.81
The Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 (1992).
Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1398 (2018).
Id. at 1403 (citing Mohamad v. Palestinian Authority, 566 U.S. 449, 453–456 (2012)).
In the context of this Comment’s overall focus, it is important to note that the Supreme Court has already ruled that lawsuits against corporations are excluded from being brought under the TVPA. In Mohamad v. Palestinian Authority, the Supreme Court looked to the language and vocabulary of the statute to determine whether the defendant organizations could be held liable for the imprisonment, torture, and killing of a naturalized American citizen.84
566 U.S. 449, 449 (2012).
Id. at 453.
Id. at 454.
Id.
Id. at 456.
Starting in 2004, the Supreme Court has weighed in multiple times on the new era of ATS litigation occasioned by Filartiga, generally narrowing the circumstances under which ATS lawsuits can be brought.89
Sarah E. McMillan, Novel Approaches to Expect in Inevitable U.S. Climate Litigation, ABA SciTech L. 16, 20 (2021).
The Supreme Court first considered the ATS twenty-four years after Filartiga had revolutionized its application in Sosa v. Alvarez-Machain.90
542 U.S. 692 (2004).
Id. at 697–98.
Id.
The Supreme Court used this opportunity to resolve some of the largest outstanding issues relating to the ATS. First, Alvarez argued that the ATS “was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law.”93
Id. at 713.
Id. at 713–14.
Id. at 714.
Id. at 719.
Id. at 720.
Building on that foundation, the Supreme Court then opened the door to the further creation of causes of action under the ATS by federal courts, observing that nothing since the enactment of the ATS “has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.”98
Id. at 725.
Id. at 725-28 (observing a need to be cautious since the common law’s importance had receded since 1789, federal general common law had been discarded, such a decision is normally more suited to the legislature, the non-judicial realm of foreign relations is involved, and the judicial role does not encourage creativity).
Id. at 724–25.
Id. at 732 (2004).
18 U.S. 153 (1820).
Id. at 160.
Id. at 162.
This newly established test was then applied to the case at hand to conclude that illegal detention of less than a day does not violate an international norm that is well-defined enough to create a federal remedy.105
Sosa, 542 U.S. at 738.
The Court characterized the acknowledgment that further causes of action could be recognized as an “understanding that the door is still ajar subject to vigilant doorkeeping.”106
Id. at 729.
In a footnote, the Court noted that, besides the issue of the definitiveness of the norm, “[a] related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”107
Id. at 733 n.20 (emphasis added).
A case dealing with the ATS next reached the Supreme Court in 2013 when the Court heard Kiobel v. Royal Dutch Petroleum Co. (“Kiobel II”). 108
569 U.S. 108 (2013).
Id. at 111–12.
First, the Court decided whether claims brought under the ATS can reach conduct in a foreign country.110
Id. at 115.
Id. at 116 (“But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”).
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)).
Kiobel II, 569 U.S. at 115 (quoting Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247 (2010)).
Id. at 116.
Id. at 124.
The Supreme Court also set out the proper test for claims that involve conduct both within and without the United States: “[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”116
Id. at 124–25.
561 U.S. 247, 266–67 (2010).
Id.
Id.
Id. at 273.
Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 194–195 (5th Cir. 2017) (listing various formulations used by circuit courts to apply Kiobel II).
At the end of its opinion, the Court states that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”122
Kiobel II, 569 U.S. at 125.
This decision represented a major shift for ATS litigation. Numerous cases had been decided based on conduct far removed from the borders of the United States, including Filartiga itself, which involved allegations of torture that occurred entirely in Paraguay.123
Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980); see also In re Est. of Ferdinand Marcos, Hum. Rts. Litig., 25 F.3d 1467, 1469 (9th Cir. 1994) (involving arrests, torture, and executions that occurred entirely within the Philippines).
See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747 (9th Cir. 2011) (en banc), vacated on other grounds, 569 U.S. 945 (2013) (“We therefore conclude that the ATS is not limited to conduct occurring within the United States . . . .”); Doe v. Exxon Mobil Corp., 654 F.3d 11, 20 (D.C. Cir. 2011) (“[W]e hold that there is no extraterritoriality bar . . . .”), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013).
Rachel Chambers & Gerlinde Berger-Walliser, The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison, 58 Am. Bus. L.J. 579, 587–88 (2021).
Five years after Kiobel II, the Supreme Court dealt with the ATS again in Jesner v. Arab Bank, PLC.126
138 S. Ct. 1386, 1386 (2018).
Id. at 1394.
The Supreme Court, surprising some,128
Milena Sterio, Corporate Liability for Human Rights Violations: The Future of the Alien Tort Claims Act, 50 Case W. Res. J. Int’l L. 127, 143 (2018) (“[I]t is this author’s opinion that the Court will likely side with the plaintiffs [in Jesner], but that it will strictly limit corporate liability . . . .”).
Id. at 1403, 1407.
First, ATS litigation against foreign corporations necessarily implicates major foreign-relations concerns. The Court noted that “[t]he principal objective of the statute [ATS], when first enacted, was to avoid foreign entanglements” caused by a lack of a federal forum for injured foreign citizens.130
Id. at 1397.
Id. at 1406.
Id. at 1406–07.
Id.
Id. at 1403.
Id.
The other reason for barring ATS litigation against foreign corporations was the fact that the Court has a “general reluctance to extend judicially created private rights of action.”136
Id. at 1402.
Id. at 1402–03.
Id. at 1402.
Various additional arguments against general corporate liability under the ATS were made by Justice Anthony Kennedy in an opinion joined by two other justices. These include the fact that extending international law to individuals does not imply that artificial entities are similarly covered; the charters of international criminal tribunals often exclude corporations; the TVPA, a statutory analogy to the ATS, restricts liability to individuals, excluding corporations; it has not been shown that corporate liability is needed to serve the goals of the ATS; other remedies for plaintiffs are available, including suits against individual corporate employees; and Congress might think that limiting liability to instances where management was actively complicit would be more advisable.139
Id. at 1400–01, 1403, 1405–06, 1408.
As a result, even though the Court did not directly analyze domestic corporations in Jesner, some did predict that foreclosing domestic corporate liability would be the next step for a future Court.140
Alien Tort Statute—Domestic Corporate Liability—Ninth Circuit Denies Rehearing En Banc of Case Permitting Domestic Corporate Liability Claim, 133 Harv. L. Rev. 2643, 2647 (2020).
Jesner, 138 S. Ct. at 1410 n.* (Alito, J., concurring).
The most recent Supreme Court decision dealing with the ATS (and the one that occasioned this Comment) is Nestlé USA, Inc. v. Doe.142
141 S. Ct. 1931, 1931 (2021).
Id. at 1935.
Id.
Id.
Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014) (citing Sarei v. Rio Tinto, PLC, 671 F.3d 736, 748 (9th Cir. 2011), vacated on other grounds, 569 U.S. 945 (2013)) (reaffirming “the corporate liability analysis reached by the en banc panel of our circuit in Sarei v. Rio Tinto,” which had “rejected the defendants’ argument that corporations can never be sued under the ATS”), rev’d on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
Sarei v. Rio Tinto, PLC, 671 F.3d 736, 748 (9th Cir. 2011) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004)), vacated on other grounds, 569 U.S. 945 (2013).
One might think that this case would the opportunity for the Supreme Court to resolve the issue of ATS domestic corporate liability by either rejecting or accepting the Sosa-based formulation offered by the Ninth Circuit. However, the Supreme Court again did not reach this question. Instead, Justice Clarence Thomas, writing on behalf of eight justices, held that the allegations of “general corporate activity” of the defendants within the United States were not sufficient to support jurisdiction under the ATS.148
Nestlé, 141 S. Ct. at 1937.
579 U.S. 325, 337 (2016).
Nestlé, 141 S. Ct. at 1936 (quoting Nabisco, 579 U.S. at 337).
Id. (citing Kiobel II, 569 U.S. 108, 124 (2013)).
Nestlé, 141 S. Ct. at 1936 (quoting Nabisco, 579 U.S. at 337).
Beyond these holdings, there is a mess of partial concurrences and dissents.153
Id. at 1931.
Compare Nestlé, 141 S. Ct. at 1939 (Thomas, J., concurring), with Nestlé, 141 S. Ct. at 1947 (Sotomayor, J., concurring).
However, a total of five justices expressed a belief that domestic corporations are not immune from lawsuits under the ATS.155
Green & McKenzie, supra note 9.
Nestlé, 141 S. Ct. at 1940 (Gorsuch, J., concurring).
Id. at 1950 (Alito, J., dissenting).
Id. at 1947 n.4 (Sotomayor, J., concurring).
While this messy result provides a guidepost for where the current Court might end up in the future, it is unfortunate that Nestlé did not directly answer the question of whether a domestic corporation could be held liable under the ATS, prolonging the current disagreement among the courts of appeal. The Second Circuit continues to steadfastly maintain that domestic corporate liability is impossible, despite the disagreement of every other circuit court to have made a ruling on this question.159
Compare Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014) (allowing for corporate liability because “there is no categorical rule of corporate immunity or liability”), rev’d on other grounds, 141 S. Ct. 1931 (2021), Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011) (“[C]orporate liability is possible under the Alien Tort Statute . . .”), and Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (observing that the ATS “grants jurisdiction from complaints of torture against corporate defendants”), with Kiobel I, 621 F.3d 111, 149 (2d Cir. 2010) (“For now, and for the foreseeable future, the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations.”), and In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015) (declining to overrule Kiobel I on domestic corporate liability despite the result in Kiobel II), aff’d sub nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
The question of whether domestic corporations should be held liable under the ATS has been only passingly addressed in binding Supreme Court precedent. Sosa’s twentieth footnote mentioned that a “consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”160
Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004) (emphasis added).
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018).
See supra notes 156–58.
It is difficult to shape these scatterings into a coherent whole. At best, one could say that Sosa suggests that domestic corporate liability is possible and offers a framework for determining whether it exists, Jesner suggests that domestic corporate liability is impossible, and Nestlé suggests it is possible, but without offering a coherent framework or explanation. Therefore, it seems advisable to look at other potential sources of guidance before attempting to answer this question.
The modern version of the ATS, as previously mentioned, simply says that the “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”163
28 U.S.C. § 1350.
However, the text of the ATS can be helpful when compared with the Supreme Court’s analysis of the language of the TVPA. In Palestinian Authority, the Supreme Court concluded that the language of that statute, which refers to “individuals,” forecloses TVPA lawsuits from being brought against corporations.164
Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).
United States v. LaBonte, 520 U.S. 751, 757 (1997).
United States v. Johnson, 529 U.S. 53, 58 (2000).
The utility of legislative intent has been heavily criticized,167
See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 32 (Amy Gutmann ed., 1997) (arguing that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent”).
Casto, supra note 39, at 495; see also Sosa v. Alvarez-Machain, 542 U.S. 692, 718 (2004).
See supra Part III.A.
The corporate structure existed in a variety of forms in the immediate post-revolutionary era.170
Shaw Livermore, Unlimited Liability in Early American Corporations, 43 J. Pol. Econ. 674 (1935).
Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations 26 (1917).
1 William Blackstone, Commentaries on the Laws of England 476 (1753).
Phila., W. & B.R. Co. v. Quigley, 62 U.S. 202, 210 (1858).
Chestnut Hill & Springhouse Tpk. Co. v. Rutter, 1818 WL 2109, at *7 (Pa. 1818).
Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
See Moxon v. The Fanny, 17 F. Cas. 942, 948 (D. Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795).
Sterio, supra note 127, at 132; see also Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1942 (2021) (Gorsuch, J., concurring).
However, one must be cautious about putting too much weight on this history. The modern scope of the ATS has been so heavily modified via Supreme Court jurisprudence that it is questionable how much interpretive value the original legislative intent still possesses. Today, for example, a foreign corporation cannot be sued under the ATS,178
See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1408 (2018).
See Kiobel II, 569 U.S. 108, 125 (2013).
Most of the courts of appeals to rule on this question (five out of six) have concluded that domestic corporations can be held liable under the ATS. Of those finding domestic liability, two of them, those authored by the Fifth and the Eleventh Circuits, preceded Sosa and therefore are only marginally helpful.180
See Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1195 (D.C. Cir. 2004) (finding that the “complaint in this case also stated an arguable claim under the Alien Tort Act” where defendants were corporations); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999) (assuming ATS applies to corporations).
1. The Eleventh Circuit Focuses on the Text
In 2008, the Eleventh Circuit observed in Romero v. Drummond Co. that the ATS “provides no express exception for corporations” and that it “grants jurisdiction from complaints against corporate defendants.”181
552 F.3d 1303, 1315 (11th Cir. 2008).
Id. at 1315 (citing 28 U.S.C. § 1350).
See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).
2. The Second Circuit Rejects Domestic Corporate Liability in Kiobel I
In 2010, however, the Second Circuit rejected domestic corporate liability under the ATS. Despite earlier circuit precedent holding that ATS jurisdiction over multinational corporations was permissible,184
See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 174 (2d Cir. 2009) (citing Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007) (per curiam)) (explaining that the Second Circuit had “held that the ATS conferred jurisdiction over multinational corporations” that helped maintain apartheid).
621 F.3d 111 (2d Cir. 2010), aff’d on other grounds, 569 U.S. 108 (2013).
Id. at 127 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004) (emphasis added)).
Id. at 145.
Id. at 131–45.
See In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 151 (2d Cir. 2015) (“We conclude that Kiobel I is and remains the law of this Circuit, notwithstanding the Supreme Court’s decision in Kiobel II affirming this Court’s judgment on other grounds.”), aff’d sub nom. Jesner v. Arab Bank, PLC on other grounds, 138 S. Ct. 1386 (2018); Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 219 (2d Cir. 2016) (“In Kiobel I, we established that the law of nations . . . immunizes corporations from liability . . . . To the extent Plaintiffs submit that Kiobel I was wrongly decided . . . we are not free to consider that argument.”).
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018).
See Exxon Mobil Corp., 391 F. Supp. 3d at 85–93 (D.D.C. 2019).
3. The Ninth Circuit Focuses on the Text and Rejects Kiobel I
The Ninth Circuit first recognized corporate liability in the 2011 case Sarei v. Rio Tinto, PLC.192
671 F.3d 736, 747–48 (9th Cir. 2011).
Id.
Id. at 747
Id.
Id. at 747–48 (citing Bowoto v. Chevron, 621 F.3d 1116 (9th Cir. 2010)).
Id.
Id. at 748.
Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014) (citing Sarei, 671 F.3d at 760, 765), rev’d on other grounds, 141 S. Ct. 1931 (2021).
The Ninth Circuit reaffirmed this finding after Kiobel II, observing that “for each ATS claim asserted by the plaintiffs, a court should look to international law and determine whether corporations are subject to the norms underlying that claim,”200
Id. at 1022.
Doe v. Nestlé, S.A., 906 F.3d 1120, 1124 (9th Cir. 2018) (“But Jesner did not eliminate all corporate liability under the ATS, and we therefore continue to follow Nestlé I’s holding as applied to domestic corporations.”), opinion amended and superseded on denial of reh’g, 929 F.3d 623 (9th Cir. 2019), rev’d and remanded on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
4. The Seventh Circuit Rejects Kiobel I and Embraces Domestic Corporate Liability
The Seventh Circuit observed in Flomo v. Firestone Natural Rubber Co. (also decided in 2011) that “corporate liability is possible under the Alien Tort Act” in a case involving a domestic corporation.202
643 F.3d 1013, 1021 (7th Cir. 2011).
Id. at 1017–21.
Id. at 1017.
Id.
Id. at 1019.
In Flomo, the Seventh Circuit also made a very interesting distinction between the substance of the law and the means of enforcing the law, stating that “[i]nternational law imposes substantive obligations and the individual nations decide how to enforce them.”207
Id. at 1019–21.
Id.
Id. at 1019.
As a side note, the court observed that in rem actions against pirate ships give an example of a nonliving entity being held liable for violations of international law. Id. at 1021.
Ultimately, domestic corporations can properly be held liable under the ATS. This conclusion is based first on the ATS itself; as the Eleventh and Ninth Circuits noted,211
Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747–48 (9th Cir. 2011).
28 U.S.C. § 1350.
Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).
In addition, the legislative history and historical context clearly demonstrate that corporations were not only common during the period when the ATS was promulgated but also able to be sued in court.214
See supra Part V.C.
See Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793) (in rem action against French-commissioned privateer).
A clear majority of the Courts of Appeal have found that the ATS allows domestic corporate liability. The arguments offered by the Seventh Circuit are additionally particularly persuasive. If the sources of international law must be interrogated to determine whether a corporation can be held liable for certain violations of international law, why should international law not also determine the damages? Moreover, sheer numbers make it far less likely that a corporation has been found to have violated international law; there are far more individuals in the world than corporations. And, as the Seventh Circuit observed, a lack of precedent should not be taken to mean that a corporation cannot be held liable.216
Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1017 (7th Cir. 2011).
While the arguments the Supreme Court used to foreclose foreign corporate liability in Jesner might seem to complicate this situation, neither applies here. For one, there are obviously no foreign policy concerns of the type that the Court worried about in suits against domestic corporations.217
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018).
Id. at 1402.
Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324, 328 (E.D. Pa. 1966) (lawsuit against domestic insurance company, dismissed for other reasons).
Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142, 144 (7th Cir. 1973) (lawsuit against Illinois corporation, dismissed on motion for summary judgment); IIT v. Vencap, Ltd., 519 F.2d 1005, 1008, 1009 n.13 (2d Cir. 1975) (suit against three domestic corporations), abrogated on other grounds by Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).
Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1366 (S.D. Fla. 2008) (case decided against foreign corporation, which means that domestic corporations could also be liable).
Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014).
See The Vrow Christina Magdalena, 13 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795); Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793).
There is a total lack of sources distinguishing between corporate and individual liability prior to Sosa’s footnote twenty,224
Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004).
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 127 (2d Cir. 2010) (emphasis added) (quoting Sosa, 542 U.S. at 733 n.20 (2004)), aff’d on other grounds, 569 U.S. 108 (2013).
Sosa, 542 U.S. at 733 n.20.
Id.
Id.
Kiobel II, 569 U.S. 108 (2013).
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1399–1400 (2018).
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
I acknowledge that the vast majority of my logic could be extended to foreign corporations as well.232
For instance, the text and legislative history contain nothing that would indicate a bar to suits against foreign corporations.
See Jesner, 138 S. Ct. at 1403, 1406–07 (2018).
Id.
The Supreme Court cases described above can be combined into a rough framework to determine whether alleged conduct supports a lawsuit under the ATS.
The foundation was created in Kiobel II, where the Court said that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”235
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–67 (2010).
Kiobel II, 569 U.S. at 125.
Nestlé then modified the extraterritoriality analysis from Kiobel II using the two-part analysis from RJR Nabsico.238
579 U.S. 325, 337 (2016).
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (quoting Nabisco, 579 U.S. at 337).
Id.
Thus, for a domestic corporation to be held liable under the ATS, plaintiffs must show that the conduct relevant to the focus of the statute occurred in the US, and this conduct cannot be either “mere corporate presence” or “general corporate activity” like decision-making.241
Kiobel II, 569 U.S. at 125; Nestlé, 141 S. Ct. at 1937.
Green and McKenzie, supra note 9. The Supreme Court has also not specified the sorts of conduct that would suffice, but that topic is itself quite broad and it is beyond the boundaries of this Comment. It also seems to be an open question whether the original offenses that the ATS applied to (offenses against ambassadors, violations of safe conduct, and piracy, see Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004)), would still suffice.
Kiobel II created a good deal of confusion around the extraterritoriality analysis for ATS claims. While it stated that claims that “touch and concern the territory of the United States . . . must do so with sufficient force to displace the presumption against extraterritorial application,” it also cited to Morrison, which uses an inquiry looking to the “focus” of statutes.243
Kiobel II, 569 U.S. at 124–25 (citing Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–73 (2010)).
See Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014) (holding that “the opinion in Kiobel II did not incorporate Morrison ‘s focus test” because it “chose to use the phrase ‘touch and concern’ rather than the term ‘focus’ when articulating the legal standard” and observing that “since the focus test turns on discerning Congress’s intent when passing a statute, it cannot sensibly be applied to ATS claims, which are common law claims based on international legal norms”); Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 197 (5th Cir. 2017) (following Morrison to “ask what the ‘ “focus” of congressional concern’ is with the ATS”); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th Cir. 2014) (ignoring Morrison and holding that “[t]he ‘touch and concern’ language set forth in the majority opinion [in Kiobel II] contemplates that courts will apply a fact-based analysis to determine whether particular ATS claims displace the presumption against extraterritorial application”); Balintulo v. Daimler AG, 727 F.3d 174, 189 (2d Cir. 2013) (focusing solely on the “touch and concern” language of Kiobel II); Mastafa v. Chevron Corp., 770 F.3d 170, 195 (2d Cir. 2014) (combining the “focus” and “touch and concern” inquiries into a single analysis); Doe v. Drummond Co., 782 F.3d 576, 590 (11th Cir. 2015) (citing Baloco v. Drummond Co., 767 F.3d 1229, 1237 (11th Cir. 2014)) (noting that Baloco’s “dispositive analysis” had “amalgamate[d] Kiobel’s standards with Morrison’s focus test, considering whether ‘the claim’ and ‘relevant conduct’ are sufficiently ‘focused’ in the United States to warrant displacement and permit jurisdiction”).
However, Nestlé resolved much of the confusion in this area by explicitly stating that “where the statute, as here [with the ATS], does not apply extraterritorially, plaintiffs must establish that the ‘conduct relevant to the statute’s focus occurred in the United States.’ “245
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (citing RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 337 (2016)).
Id. at 1936.
Id.
Id. at 1937.
1. Supreme Court Precedent
Of the previous Supreme Court cases, Sosa speaks most clearly to the overall purpose and aims of the ATS. Those who drafted it had in mind the “sphere in which . . . rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships,” which consisted of “narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs.”249
Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004).
Id. at 720.
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397 (2018).
2. Justice Alito’s Concurrence in Kiobel II
Near the end of the Kiobel II opinion, the Court briefly notes that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”252
Kiobel II., 569 U.S. at 125.
Id.
While lacking precedential value, Justice Alito’s concurrence in Kiobel II sheds additional light on this passage, stating that “only conduct that satisfies Sosa ‘s requirements of definiteness and acceptance among civilized nations can be said to have been ‘the “focus” of congressional concern,’ when Congress enacted the ATS.”254
Id. at 126–27 (Alito, J., concurring) (citation omitted) (quoting Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266 (2010)).
Id. at 127 (Alito, J., concurring).
Sosa v. Alvarez-Machain, 542 U.S. 692, 724–25 (2004).
Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–67 (2010).
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013).
Or, as Alito himself put it, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa ‘s requirements of definiteness and acceptance among civilized nations.” Kiobel II, 569 U.S. at 127 (Alito, J. concurring).
3. The Jurisprudence of the Courts of Appeals
While not all of the Courts of Appeals have analyzed the focus inquiry of Morrison in relation to the ATS, those that have done so have created definitions that fit with those suggested above. The Second Circuit defined the focus as “conduct alleged to violate the law of nations (or alleged to aid and abet the violation of the law of nations), and where that conduct occurred.”260
Mastafa v. Chevron Corp., 770 F.3d 170, 195 (2d Cir. 2014).
Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 197 (5th Cir. 2017).
Doe v. Drummond Co., 782 F.3d 576, 590 n.21 (11th Cir. 2015).
Doe v. Nestle, S.A., 906 F.3d 1120, 1125 (9th Cir. 2018) (citing 28 U.S.C. § 1350), opinion amended and superseded on denial of reh’g, 929 F.3d 623 (9th Cir. 2019), rev’d and remanded sub nom. Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 210 L. Ed. 2d 207 (2021).
4. Conclusion
Previous Supreme Court cases, a helpful Supreme Court concurrence, and the rulings of the Courts of Appeals all point in the same direction: that the focus of the ATS is violations of the law of nations. It is likely always implicit in these definitions that such violations of the law of nations must be “defined with a specificity comparable to the features of the 18th-century paradigms” under Sosa.264
Sosa v. Alvarez-Machain, 542 U.S. 602, 725 (2004).
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403, 1407 (2018).
This Comment also seeks to establish that the Supreme Court should revise its precedent to allow ATS lawsuits based on conduct that occurred outside the jurisdiction of any nation (and which, implicitly, violates international norms defined with a specific comparable to those in Sosa). This would accord with both the original understanding of the ATS and the Supreme Court’s interpretations of the ATS’s purpose.
The Supreme Court has itself stated that when Congress originally enacted the ATS, “individual actions arising out of prize captures and piracy may well have also been contemplated,”266
Sosa, 542 U.S. at 720.
See, e.g., Pragya Singh & Shashwat Singh, Stemming the Tide of Crime: Navigating the Piracy Regime on International Waters, 31 U.S.F. Mar. L.J. 19, 28 (2019) (“It is common knowledge that the occurrence of terra nullius (no man’s land) is more frequent on sea and almost negligible on land. This implies that there are jurisdictional concerns over crimes on sea, since no particular state can claim exclusive jurisdiction, rendering the crimes on sea more vulnerable and delicate . . . .”).
Moreover, unlike cases involving conduct in foreign nations, actions that occur outside the jurisdiction of any nation do not always implicate the foreign relations concerns that worried the Court in Jesner.268
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397–1407 (2018).
Id. at 1402.
Sosa, 542 U.S. at 720.
Kiobel II supports this proposition directly, with the Court stating that “[a]pplying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences” and that “[p]irates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”271
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 121 (2013).
Id.
In 1789, the members of the First Congress exercised the powers granted to them by the Constitution by allowing aliens to bring lawsuits in US courts for violations of international law.273
Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
While this might be unwelcome news to domestic corporations, this conclusion is unavoidable. Domestic corporations should be on notice that conduct that violates specific international norms within the United States can be the basis for alien-brought tort suits, no matter what part of the country they happen to be in. The intention of Congress, as expressed in the ATS, is clear, and it should be given force. Given that five votes in Nestlé agreed that domestic corporations could be held liable under the ATS, this should hopefully occur the next time the Supreme Court has opportunity to analyze this question.
The Supreme Court should settle another area of confusion by clarifying the “focus” of the Alien Tort Statute. The text, lower court opinions, and this Comment’s analysis all agree that this should properly be specifically defined violations of international law occurring on American soil or in areas beyond the jurisdiction of any nation. While such a conclusion is not as clearly foreshadowed by the Supreme Court’s jurisprudence, this Comment looks forward to the time when the proper interpretation of ATS jurisdiction has been embraced by the highest court in the land. 274
Perhaps a future scholar will target some of the remaining questions in this space, like whether aiding and abetting suits should be allowed under the ATS, what varieties of conduct in the United States can break a specific international norm, and whether Jesner should be revisited in light of the analysis contained within this Comment.
- 128 U.S.C. § 1350.
- 2Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397–98 (2018).
- 3Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brook. J. Int’l L. 773, 811 (2008) (counting 185 cases between 1980 and 2008 claiming jurisdiction under the ATS in comparison to twenty-one cases from 1789 to 1980).
- 4Sosa v. Alvarez-Machain, 542 U.S. 692, 719, 732 (2004).
- 5Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) [hereinafter Kiobel II].
- 6Jesner, 138 S. Ct. at 1408.
- 7Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021).
- 8At least one previous article has tread somewhat similar ground to this one. See Amanda A. Humphreville, If the Question Is Chocolate-Related, the Answer Is Always Yes: Why Doe v. Nestle Reopens the Door for Corporate Liability of U.S. Corporations Under the Alien Tort Statute, 65 Am. U. L. Rev. 191 (2015). However, that article is outdated; it preceded both Jesner and Nestlé. It also focuses on policy to a much greater degree than this Comment.
- 9Kayla Winarksy Green & Timothy McKenzie, Looking Without and Looking Within: Nestlé v. Doe and the Legacy of the Alien Tort Statute, Am. Soc’y Int’l L. (July 15, 2021), https://perma.cc/7KZ8-EUHP.
- 10For post-Sosa cases, compare Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014), rev’d on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011) (“[C]orporate liability is possible under the Alien Tort Statute . . . .”), and Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (observing that the ATS “grants jurisdiction from complaints of torture against corporate defendants”), with Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010) [hereinafter Kiobel I] (“For now, and for the foreseeable future, the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations.”), aff’d on other grounds, 569 U.S. 108 (2013).
- 11Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 212 (2d Cir. 2016); see also In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015) (affirming dismissal of the plaintiffs’ ATS claims solely on corporate liability grounds under Kiobel I), aff’d sub nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
- 12See Richard Florida, What Is the World’s Most Economically Powerful City?, Atlantic (May 8, 2012), https://perma.cc/JQ25-9MN7(describing New York City as the most economically powerful city in the world).
- 13Stephens, supra note 3, at 811–14.
- 14Id. at 814.
- 15Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1366 (S.D. Fla. 2008) (finding this verdict in case where plaintiffs alleged they had been forced to work for defendant in concert with Cuban government).
- 16Settlement Reached in Human Rights Cases Against Royal Dutch/Shell, Ctr. for Const. Rts. (Jun. 8, 2009), https://perma.cc/ZJY5-WNN5.
- 17It seems that a good number of ATS cases have settled, but it is exceedingly hard to find any concrete information on the terms.
- 18Daphne Eviatar, A Big Win for Human Rights, Nation (Apr. 21, 2005), https://perma.cc/V3EV-3LKE.
- 19See, e.g., Tachiona v. Mugabe, 234 F. Supp. 2d 401, 442 (S.D.N.Y. 2002) (judgment for $70 million); Doe v. Rafael Saravia, 348 F. Supp. 2d 1112, 1159 (E.D. Cal. 2004) (judgment of $10 million ordered by court); Arce v. Garcia, 434 F.3d 1254, 1259 (11th Cir. 2006) (affirming jury verdict of $54 million); Paul v. Avril, 901 F. Supp. 330, 336 (S.D. Fla. 1994) (judgment for $41 million); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1360 (N.D. Ga. 2002) (judgment for $140 million).
- 20Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1253 (S.D. Fla. 1997).
- 21See, e.g., Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1402–03 (2018) (describing the “general reluctance to extend judicially created private rights of action” and noting that “[t]his caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations”).
- 22William S. Dodge, The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights Litigation and Extraterritoriality, Just Sec. (June 18, 2021), https://perma.cc/4TBH-N263.
- 23Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
- 24Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021).
- 25United States v. Martinez, 599 F. Supp. 2d 784, 799 (W.D. Tex. 2009).
- 26Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004) (quoting Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796)).
- 27The Paquete Habana, 175 U.S. 677, 700 (1900).
- 28F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004).
- 29Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication, 25 Emory Int’l L. Rev. 197, 198 (2011).
- 30Compare Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998), with Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998).
- 31See Sosa, 542 U.S. at 730–31 (2004) (citations omitted) (“We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. . . . [t]he position we take today has been assumed by some federal courts for 24 years . . . . Congress . . . has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.”).
- 32U.S. Const. art. II, § 2, cl. 2; Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996).
- 33Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003).
- 34Am. Soc’y Int’l L., Uses of International Law in U.S. Courts, in Benchbook on International Law § I.C–5 (Diane Marie Amann ed., 2014), https://perma.cc/7UNR-PWNA.
- 35Id.
- 3628 U.S.C. § 1350.
- 37Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
- 38IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), abrogated on other grounds by Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010). Lohengrin is defined as a “mysterious knight” who refuses to answer questions about his origin. Encyclopedia Britannica, https://perma.cc/CM22-86AW(last visited Feb. 13, 2022)
- 39William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 488–89 (1986) (“Notwithstanding frequent complaints about the obscurity of section 1350’s origins, a thorough study of available historical materials provides a fairly clear understanding of the statute’s purpose.”). But see Sosa v. Alvarez-Machain, 542 U.S. 692, 718–19 (2004) (“But despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.”).
- 40Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1396 (2018).
- 41Casto, supra note 39, at 490.
- 42Sosa, 542 U.S. at 716.
- 43Alfred Rosenthal, The Marbois-Longchamps Affair, 63 Pa. Mag. Hist. & Bio. 294, 294 (1939) (Longchamps had been involved in a series of previous run-ins with the law.).
- 44Id. at 295, 299.
- 45Id. at 299; Casto, supra note 39, at 492 n.143.
- 46Casto, supra note 39, at 492.
- 47Id. at 494.
- 48Id. at 494, n.152 (citing Report of Secretary for Foreign Affairs on Complaint of Minister of United Netherlands, 34 J. Cont’l. Cong. 109, 111 (1788)).
- 49Sosa v. Alvarez-Machain, 542 U.S. 692, 717 (2004).
- 50Id.
- 51Casto, supra note 39, at 495; see also Sosa, 542 U.S. at 718.
- 52Id. at 719.
- 53Stephens, supra note 3, at 811.
- 54For an approximately complete list of pre-modern ATS cases, see Susan Simpson, All* Alien Tort Statute Cases Brought Between 1789 and 1990, TheViewFromLL2 Blog (Dec. 18. 2010), https://perma.cc/8XBQ-JFKB;Susan Simpson, Alien Tort Statute Cases Resulting in Plaintiff Victories, TheViewFromLL2 Blog (Nov. 11, 2009), https://perma.cc/J6GA-SD5Y.
- 5517 F. Cas. 942 (D. Pa. 1793).
- 56Id.
- 57Id. at 948.
- 58Id. at 947 (“The procedure here is in rem . . . .”).
- 59David James DeMordaunt, Admiralty In Rem and In Personam Procedures: Are They Exempt from Common Law Constitutional Standards?, 29 Santa Clara L. Rev. 331 (1989).
- 6013 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795).
- 61Id. at 358.
- 62Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1942 (2021) (Gorsuch, J., concurring).
- 63Id.
- 64Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819).
- 65See Khedivial Line, S. A. E. v. Seafarers’ Int’l Union, 278 F.2d 49, 51–52 (2d Cir. 1960); Madison Shipping Corp. v. Nat’l Mar. Union, 282 F.2d 377, 378 (3d Cir. 1960); Upper Lakes Shipping Ltd. v. Int’l Longshoremen’s Ass’n, 33 F.R.D. 348, 350 (S.D.N.Y. 1963).
- 66Damaskinos v. Societa Navigacion Interamericana, S.A., Panama, 255 F. Supp. 919 (S.D.N.Y. 1966) (suit against British and Panamanian corporations); Seth v. Brit. Overseas Airways Corp., 216 F. Supp. 244 (D. Mass. 1963), aff’d, 329 F.2d 302 (1st Cir. 1964) (lawsuit against British corporation); Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324, 328 (E.D. Pa. 1966) (lawsuit against domestic insurance company); Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142, 144 (7th Cir. 1973) (lawsuit against Illinois corporation).
- 67519 F.2d 1001 (2d Cir. 1975), abrogated on other grounds by Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).
- 68See Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004).
- 69The Vrow Christina Magdalena, 13 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795); Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793).
- 70Khedivial Lines, 278 F.2d at 50.
- 71Vencap, 519 F.2d 1001.
- 72630 F.2d 876, 878 (2d Cir. 1980).
- 73Id. at 878–80.
- 74Id. at 880.
- 75Id. at 890 (emphasis added).
- 76Id. at 880–81.
- 77Id. at 885.
- 78David J. Bederman, Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in U.S. Human Rights Litigation, 25 Ga. J. Int’l & Comp. L. 255, 256 (1996).
- 79William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002).
- 80Stephens, supra note 3, at 811.
- 81The Torture Victim Protection Act of 1991, Pub. L. No. 102–256, 106 Stat. 73 (1992).
- 82Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1398 (2018).
- 83Id. at 1403 (citing Mohamad v. Palestinian Authority, 566 U.S. 449, 453–456 (2012)).
- 84566 U.S. 449, 449 (2012).
- 85Id. at 453.
- 86Id. at 454.
- 87Id.
- 88Id. at 456.
- 89Sarah E. McMillan, Novel Approaches to Expect in Inevitable U.S. Climate Litigation, ABA SciTech L. 16, 20 (2021).
- 90542 U.S. 692 (2004).
- 91Id. at 697–98.
- 92Id.
- 93Id. at 713.
- 94Id. at 713–14.
- 95Id. at 714.
- 96Id. at 719.
- 97Id. at 720.
- 98Id. at 725.
- 99Id. at 725-28 (observing a need to be cautious since the common law’s importance had receded since 1789, federal general common law had been discarded, such a decision is normally more suited to the legislature, the non-judicial realm of foreign relations is involved, and the judicial role does not encourage creativity).
- 100Id. at 724–25.
- 101Id. at 732 (2004).
- 10218 U.S. 153 (1820).
- 103Id. at 160.
- 104Id. at 162.
- 105Sosa, 542 U.S. at 738.
- 106Id. at 729.
- 107Id. at 733 n.20 (emphasis added).
- 108569 U.S. 108 (2013).
- 109Id. at 111–12.
- 110Id. at 115.
- 111Id. at 116 (“But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”).
- 112EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)).
- 113Kiobel II, 569 U.S. at 115 (quoting Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247 (2010)).
- 114Id. at 116.
- 115Id. at 124.
- 116Id. at 124–25.
- 117561 U.S. 247, 266–67 (2010).
- 118Id.
- 119Id.
- 120Id. at 273.
- 121Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 194–195 (5th Cir. 2017) (listing various formulations used by circuit courts to apply Kiobel II).
- 122Kiobel II, 569 U.S. at 125.
- 123Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980); see also In re Est. of Ferdinand Marcos, Hum. Rts. Litig., 25 F.3d 1467, 1469 (9th Cir. 1994) (involving arrests, torture, and executions that occurred entirely within the Philippines).
- 124See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747 (9th Cir. 2011) (en banc), vacated on other grounds, 569 U.S. 945 (2013) (“We therefore conclude that the ATS is not limited to conduct occurring within the United States . . . .”); Doe v. Exxon Mobil Corp., 654 F.3d 11, 20 (D.C. Cir. 2011) (“[W]e hold that there is no extraterritoriality bar . . . .”), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013).
- 125Rachel Chambers & Gerlinde Berger-Walliser, The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison, 58 Am. Bus. L.J. 579, 587–88 (2021).
- 126138 S. Ct. 1386, 1386 (2018).
- 127Id. at 1394.
- 128Milena Sterio, Corporate Liability for Human Rights Violations: The Future of the Alien Tort Claims Act, 50 Case W. Res. J. Int’l L. 127, 143 (2018) (“[I]t is this author’s opinion that the Court will likely side with the plaintiffs [in Jesner], but that it will strictly limit corporate liability . . . .”).
- 129Id. at 1403, 1407.
- 130Id. at 1397.
- 131Id. at 1406.
- 132Id. at 1406–07.
- 133Id.
- 134Id. at 1403.
- 135Id.
- 136Id. at 1402.
- 137Id. at 1402–03.
- 138Id. at 1402.
- 139Id. at 1400–01, 1403, 1405–06, 1408.
- 140Alien Tort Statute—Domestic Corporate Liability—Ninth Circuit Denies Rehearing En Banc of Case Permitting Domestic Corporate Liability Claim, 133 Harv. L. Rev. 2643, 2647 (2020).
- 141Jesner, 138 S. Ct. at 1410 n.* (Alito, J., concurring).
- 142141 S. Ct. 1931, 1931 (2021).
- 143Id. at 1935.
- 144Id.
- 145Id.
- 146Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014) (citing Sarei v. Rio Tinto, PLC, 671 F.3d 736, 748 (9th Cir. 2011), vacated on other grounds, 569 U.S. 945 (2013)) (reaffirming “the corporate liability analysis reached by the en banc panel of our circuit in Sarei v. Rio Tinto,” which had “rejected the defendants’ argument that corporations can never be sued under the ATS”), rev’d on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
- 147Sarei v. Rio Tinto, PLC, 671 F.3d 736, 748 (9th Cir. 2011) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004)), vacated on other grounds, 569 U.S. 945 (2013).
- 148Nestlé, 141 S. Ct. at 1937.
- 149579 U.S. 325, 337 (2016).
- 150Nestlé, 141 S. Ct. at 1936 (quoting Nabisco, 579 U.S. at 337).
- 151Id. (citing Kiobel II, 569 U.S. 108, 124 (2013)).
- 152Nestlé, 141 S. Ct. at 1936 (quoting Nabisco, 579 U.S. at 337).
- 153Id. at 1931.
- 154Compare Nestlé, 141 S. Ct. at 1939 (Thomas, J., concurring), with Nestlé, 141 S. Ct. at 1947 (Sotomayor, J., concurring).
- 155Green & McKenzie, supra note 9.
- 156Nestlé, 141 S. Ct. at 1940 (Gorsuch, J., concurring).
- 157Id. at 1950 (Alito, J., dissenting).
- 158Id. at 1947 n.4 (Sotomayor, J., concurring).
- 159Compare Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014) (allowing for corporate liability because “there is no categorical rule of corporate immunity or liability”), rev’d on other grounds, 141 S. Ct. 1931 (2021), Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011) (“[C]orporate liability is possible under the Alien Tort Statute . . .”), and Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (observing that the ATS “grants jurisdiction from complaints of torture against corporate defendants”), with Kiobel I, 621 F.3d 111, 149 (2d Cir. 2010) (“For now, and for the foreseeable future, the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations.”), and In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015) (declining to overrule Kiobel I on domestic corporate liability despite the result in Kiobel II), aff’d sub nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
- 160Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004) (emphasis added).
- 161Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018).
- 162See supra notes 156–58.
- 16328 U.S.C. § 1350.
- 164Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).
- 165United States v. LaBonte, 520 U.S. 751, 757 (1997).
- 166United States v. Johnson, 529 U.S. 53, 58 (2000).
- 167See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 32 (Amy Gutmann ed., 1997) (arguing that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent”).
- 168Casto, supra note 39, at 495; see also Sosa v. Alvarez-Machain, 542 U.S. 692, 718 (2004).
- 169See supra Part III.A.
- 170Shaw Livermore, Unlimited Liability in Early American Corporations, 43 J. Pol. Econ. 674 (1935).
- 171Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations 26 (1917).
- 1721 William Blackstone, Commentaries on the Laws of England 476 (1753).
- 173Phila., W. & B.R. Co. v. Quigley, 62 U.S. 202, 210 (1858).
- 174Chestnut Hill & Springhouse Tpk. Co. v. Rutter, 1818 WL 2109, at *7 (Pa. 1818).
- 175Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
- 176See Moxon v. The Fanny, 17 F. Cas. 942, 948 (D. Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795).
- 177Sterio, supra note 127, at 132; see also Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1942 (2021) (Gorsuch, J., concurring).
- 178See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1408 (2018).
- 179See Kiobel II, 569 U.S. 108, 125 (2013).
- 180See Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1195 (D.C. Cir. 2004) (finding that the “complaint in this case also stated an arguable claim under the Alien Tort Act” where defendants were corporations); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999) (assuming ATS applies to corporations).
- 181552 F.3d 1303, 1315 (11th Cir. 2008).
- 182Id. at 1315 (citing 28 U.S.C. § 1350).
- 183See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).
- 184See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 174 (2d Cir. 2009) (citing Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007) (per curiam)) (explaining that the Second Circuit had “held that the ATS conferred jurisdiction over multinational corporations” that helped maintain apartheid).
- 185621 F.3d 111 (2d Cir. 2010), aff’d on other grounds, 569 U.S. 108 (2013).
- 186Id. at 127 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004) (emphasis added)).
- 187Id. at 145.
- 188Id. at 131–45.
- 189See In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 151 (2d Cir. 2015) (“We conclude that Kiobel I is and remains the law of this Circuit, notwithstanding the Supreme Court’s decision in Kiobel II affirming this Court’s judgment on other grounds.”), aff’d sub nom. Jesner v. Arab Bank, PLC on other grounds, 138 S. Ct. 1386 (2018); Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 219 (2d Cir. 2016) (“In Kiobel I, we established that the law of nations . . . immunizes corporations from liability . . . . To the extent Plaintiffs submit that Kiobel I was wrongly decided . . . we are not free to consider that argument.”).
- 190Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018).
- 191See Exxon Mobil Corp., 391 F. Supp. 3d at 85–93 (D.D.C. 2019).
- 192671 F.3d 736, 747–48 (9th Cir. 2011).
- 193Id.
- 194Id. at 747
- 195Id.
- 196Id. at 747–48 (citing Bowoto v. Chevron, 621 F.3d 1116 (9th Cir. 2010)).
- 197Id.
- 198Id. at 748.
- 199Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014) (citing Sarei, 671 F.3d at 760, 765), rev’d on other grounds, 141 S. Ct. 1931 (2021).
- 200Id. at 1022.
- 201Doe v. Nestlé, S.A., 906 F.3d 1120, 1124 (9th Cir. 2018) (“But Jesner did not eliminate all corporate liability under the ATS, and we therefore continue to follow Nestlé I’s holding as applied to domestic corporations.”), opinion amended and superseded on denial of reh’g, 929 F.3d 623 (9th Cir. 2019), rev’d and remanded on other grounds sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
- 202643 F.3d 1013, 1021 (7th Cir. 2011).
- 203Id. at 1017–21.
- 204Id. at 1017.
- 205Id.
- 206Id. at 1019.
- 207Id. at 1019–21.
- 208Id.
- 209Id. at 1019.
- 210As a side note, the court observed that in rem actions against pirate ships give an example of a nonliving entity being held liable for violations of international law. Id. at 1021.
- 211Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747–48 (9th Cir. 2011).
- 21228 U.S.C. § 1350.
- 213Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).
- 214See supra Part V.C.
- 215See Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793) (in rem action against French-commissioned privateer).
- 216Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1017 (7th Cir. 2011).
- 217Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018).
- 218Id. at 1402.
- 219Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324, 328 (E.D. Pa. 1966) (lawsuit against domestic insurance company, dismissed for other reasons).
- 220Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142, 144 (7th Cir. 1973) (lawsuit against Illinois corporation, dismissed on motion for summary judgment); IIT v. Vencap, Ltd., 519 F.2d 1005, 1008, 1009 n.13 (2d Cir. 1975) (suit against three domestic corporations), abrogated on other grounds by Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).
- 221Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1366 (S.D. Fla. 2008) (case decided against foreign corporation, which means that domestic corporations could also be liable).
- 222Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1021 (9th Cir. 2014).
- 223See The Vrow Christina Magdalena, 13 F. Cas. 356 (D.S.C. 1794), aff’d sub nom. Talbot v. Jansen, 3 U.S. 133 (1795); Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793).
- 224Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004).
- 225Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 127 (2d Cir. 2010) (emphasis added) (quoting Sosa, 542 U.S. at 733 n.20 (2004)), aff’d on other grounds, 569 U.S. 108 (2013).
- 226Sosa, 542 U.S. at 733 n.20.
- 227Id.
- 228Id.
- 229Kiobel II, 569 U.S. 108 (2013).
- 230Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1399–1400 (2018).
- 231Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
- 232For instance, the text and legislative history contain nothing that would indicate a bar to suits against foreign corporations.
- 233See Jesner, 138 S. Ct. at 1403, 1406–07 (2018).
- 234Id.
- 235Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
- 236Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–67 (2010).
- 237Kiobel II, 569 U.S. at 125.
- 238579 U.S. 325, 337 (2016).
- 239Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (quoting Nabisco, 579 U.S. at 337).
- 240Id.
- 241Kiobel II, 569 U.S. at 125; Nestlé, 141 S. Ct. at 1937.
- 242Green and McKenzie, supra note 9. The Supreme Court has also not specified the sorts of conduct that would suffice, but that topic is itself quite broad and it is beyond the boundaries of this Comment. It also seems to be an open question whether the original offenses that the ATS applied to (offenses against ambassadors, violations of safe conduct, and piracy, see Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004)), would still suffice.
- 243Kiobel II, 569 U.S. at 124–25 (citing Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–73 (2010)).
- 244See Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014) (holding that “the opinion in Kiobel II did not incorporate Morrison ‘s focus test” because it “chose to use the phrase ‘touch and concern’ rather than the term ‘focus’ when articulating the legal standard” and observing that “since the focus test turns on discerning Congress’s intent when passing a statute, it cannot sensibly be applied to ATS claims, which are common law claims based on international legal norms”); Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 197 (5th Cir. 2017) (following Morrison to “ask what the ‘ “focus” of congressional concern’ is with the ATS”); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th Cir. 2014) (ignoring Morrison and holding that “[t]he ‘touch and concern’ language set forth in the majority opinion [in Kiobel II] contemplates that courts will apply a fact-based analysis to determine whether particular ATS claims displace the presumption against extraterritorial application”); Balintulo v. Daimler AG, 727 F.3d 174, 189 (2d Cir. 2013) (focusing solely on the “touch and concern” language of Kiobel II); Mastafa v. Chevron Corp., 770 F.3d 170, 195 (2d Cir. 2014) (combining the “focus” and “touch and concern” inquiries into a single analysis); Doe v. Drummond Co., 782 F.3d 576, 590 (11th Cir. 2015) (citing Baloco v. Drummond Co., 767 F.3d 1229, 1237 (11th Cir. 2014)) (noting that Baloco’s “dispositive analysis” had “amalgamate[d] Kiobel’s standards with Morrison’s focus test, considering whether ‘the claim’ and ‘relevant conduct’ are sufficiently ‘focused’ in the United States to warrant displacement and permit jurisdiction”).
- 245Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (citing RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 337 (2016)).
- 246Id. at 1936.
- 247Id.
- 248Id. at 1937.
- 249Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004).
- 250Id. at 720.
- 251Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397 (2018).
- 252Kiobel II., 569 U.S. at 125.
- 253Id.
- 254Id. at 126–27 (Alito, J., concurring) (citation omitted) (quoting Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266 (2010)).
- 255Id. at 127 (Alito, J., concurring).
- 256Sosa v. Alvarez-Machain, 542 U.S. 692, 724–25 (2004).
- 257Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 266–67 (2010).
- 258Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013).
- 259Or, as Alito himself put it, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa ‘s requirements of definiteness and acceptance among civilized nations.” Kiobel II, 569 U.S. at 127 (Alito, J. concurring).
- 260Mastafa v. Chevron Corp., 770 F.3d 170, 195 (2d Cir. 2014).
- 261Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 197 (5th Cir. 2017).
- 262Doe v. Drummond Co., 782 F.3d 576, 590 n.21 (11th Cir. 2015).
- 263Doe v. Nestle, S.A., 906 F.3d 1120, 1125 (9th Cir. 2018) (citing 28 U.S.C. § 1350), opinion amended and superseded on denial of reh’g, 929 F.3d 623 (9th Cir. 2019), rev’d and remanded sub nom. Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 210 L. Ed. 2d 207 (2021).
- 264Sosa v. Alvarez-Machain, 542 U.S. 602, 725 (2004).
- 265Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403, 1407 (2018).
- 266Sosa, 542 U.S. at 720.
- 267See, e.g., Pragya Singh & Shashwat Singh, Stemming the Tide of Crime: Navigating the Piracy Regime on International Waters, 31 U.S.F. Mar. L.J. 19, 28 (2019) (“It is common knowledge that the occurrence of terra nullius (no man’s land) is more frequent on sea and almost negligible on land. This implies that there are jurisdictional concerns over crimes on sea, since no particular state can claim exclusive jurisdiction, rendering the crimes on sea more vulnerable and delicate . . . .”).
- 268Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397–1407 (2018).
- 269Id. at 1402.
- 270Sosa, 542 U.S. at 720.
- 271Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 121 (2013).
- 272Id.
- 273Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.
- 274Perhaps a future scholar will target some of the remaining questions in this space, like whether aiding and abetting suits should be allowed under the ATS, what varieties of conduct in the United States can break a specific international norm, and whether Jesner should be revisited in light of the analysis contained within this Comment.