Kiobel at Two Months: Not Nearly the End of ATS Litigation

By Gillian Stoddard Leatherberry, Boston University School of Law JD candidate, 2015

One of my favorite parts about living in Washington, D.C. is the opportunity to attend informational panels. This summer I had the opportunity to attend two panel discussions in the wake of the Supreme Court’s April 2013 decision in Kiobel v. Royal Dutch Petroleum concerning the future of Alien Tort Statute (ATS) litigation.

The only thing more striking than the possible extent Kiobel’s impact on human rights litigation is the decision’s obscurity. Nonetheless, nine distinguished speakers, including attorneys on both sides of ATS litigation, engaged in a vigorous debate. The debate clearly revealed that Kiobel is unlikely to spell the end of ATS litigation any time soon. Rather, the panelists highlighted a few important issues human rights advocates should consider in the post-Kiobel environment:

Plaintiffs must argue that companies have more than a mere corporate presence in the U.S. AND have directed or conducted the harm alleged from the U.S. Everyone agrees (yes, there are some things that human rights litigators, attorneys representing corporations, scholars, and all nine Supreme Court justices agree on!) that Kiobel bars “foreign-cubed” cases where (1) foreign plaintiffs sue (2) foreign companies for (3) torts occurring in a foreign country, where none of the parties have any connection to the U.S. So what does this mean for current ATS cases? Both IRAdvocates’ own Christian Levesque and Sole Practitioner Sara Kropf (also former defense attorney for Drummond Co., Inc.) agree that to survive a Motion to Dismiss after Kiobel, plaintiffs must argue that U.S. companies directed or conducted the alleged harm from the U.S.

George Washington Law Professor Ralph G. Steinhardt argued that the federal pleading standard, which a majority of states have adopted – known to lawyers as “Twombly-Iqbal” after two cases laying out the modern pleading standard interpretation – may be the greatest challenge for ATS plaintiffs. Under Twombly-Iqbal, ATS plaintiffs, who are often low-wage workers at manufacturing plants or in rural communities in foreign countries, have to plead facts that are often difficult to obtain, such as communications between high-ranking corporate leadership or information about transfers of corporate funds. While Twombly-Iqbal is a challenge, it is not a complete bar, and many ATS cases, including many of our own at IRAdvocates, will likely meet this standard.

More ATS-like cases may end up in state court or foreign jurisdictions, despite the fact that there may be significant barriers to justice in these alternative forums. Most experts also agree that many ATS cases will be litigated in state courts (as opposed to federal courts), post-Kiobel. In state court, these cases will no longer be “ATS cases”, nor will they focus on international law. Instead, extrajudicial killings and torture will be tried as state law crimes of murder, assault, wrongful death, and battery. This change also encompasses a paradigm shift: instead of thinking about the alleged wrongs as human rights violations, extrajudicial killing and torture will become “wrongful death”, “battery”, and “assault.” Both Kropf and Levesque expressed concern about the shift from a human rights framework to litigating these crimes as state-law torts because this shift minimizes the gravity of the allegations involved and downgrades U.S. influence and participation in the development of international law.

Professor Steinhardt argued that state court jurisdiction over these cases is exactly what the First Congress wanted to avoid when it created the ATS in 1789, giving federal courts jurisdiction over cases with international elements. In comparison to statutes today, about which copious legislative history exists, there is little legislative history surrounding the passage of the ATS. Thus, there is always room for debate about what the First Congress actually intended when it passed the ATS.

More practically, state court litigation includes significant barriers to justice for mass human rights cases. One major challenge is state court statutes of limitation (SOLs). While the SOL for both the ATS and the TVPA is ten years, most state court SOLs for crimes such as wrongful death or murder are somewhere around two years – and many times they are even shorter. Human rights plaintiffs or their families are often survivors of civil wars or other domestic conflicts and not in a position to bring a claim until it is too late.

However these claims get into court, commented Levesque, “These cases aren’t going away.” If anything, Levesque predicts, Kiobel will motivate plaintiffs’-side attorneys to engage in more thorough cross-border collaboration about which justice systems will allow for human rights claims to move forward in the most equitable way.

However, plaintiffs’-side human rights practitioners are well aware of the challenges associated with foreign lawsuits. One recent example is illustrative: a group of Ecuadoran plaintiffs filed a case against Chevron in Ecuador, after having been dismissed on forum non conveniens ground in the United States.. Surprising the international community, the Ecuadoran court found for the Plaintiffs, and entered a $19 billion judgment against Chevron in 2011. However, Chevron has yet to comply with the judgment and has instead filed lawsuits against the plaintiffs and their lawyers in New York, looking to have the judgment overturned. What is clear from this case is that bringing lawsuits against U.S. companies in foreign courts, while perhaps a viable solution at some point, will bring with it its own challenges.

While some people are worried about “reciprocity concerns,” if U.S. corporations and individuals cannot be held liable for human rights abuses, the U.S. cannot be a credible leader in international human rights policy and institutions. John Bellinger, attorney at Arnold & Porter, LLP, and formerly of the State Department, along with others on both panels are concerned that U.S. corporations and individuals will be called into foreign or international courts if human rights litigation under the ATS continues. Specifically, Bellinger voiced concern that U.S. political and military officials may be called into a foreign court for complicity in crimes arising from U.S. conflicts abroad (drone strikes in foreign countries, for example). Further, Bellinger argued that foreign governments are opposed to the ATS because the ATS itself is a violation of international law. Fordham Law Professor Catherine Powell responded to these arguments by asserting that foreign government officials are split on the issue, not unlike U.S. government officials. Also, Powell reminded the panel that the ATS enforces customary international law, not U.S. law. Duke Law Professor Laurence R. Helfer commented that the court is probably aware of concerns about U.S. foreign policy, which is why the opinion reads like an invitation to Congress to clarify the ATS through the political process. Under existing human rights norms and laws, most countries in the world have a responsibility to prosecute human rights crimes, but there is currently no check or enforcement of this responsibility.

The ATS is one of the few tools available in the U.S. to litigate human rights crimes. The law surrounding ATS cases is constantly changing, but creativity and commitment to justice was what first brought human rights practitioners to the ATS. While Kiobel limits the scope of the ATS, as long as human rights violations continue to occur, human rights practitioners and activists will make sure that Kiobel does not end ATS or human rights litigation.

The first-in-time panel, hosted by the Washington Foreign Law Society, Arnold & Porter, and the American Bar Association, was held on June 11, 2013 and featured the following panel: John B. Bellinger III (Moderator), Partner, Arnold & Porter LLP; Jonathan Drimmer, Vice President, Deputy General Counsel, Barrick Gold Corp.; Sara Kropf, Law Office of Sara Kropf PLLC; Christian Levesque, Senior Associate, Conrad & Scherer LLP; and David P. Stewart, Visiting Professor, Georgetown University Law Center. Duke Law School hosted a panel entitled, “Has the Supreme Court Sounded the Death Knell for Human Rights Litigation?” on June 13, 2013 and featured this panel: Curtis A. Bradley, Duke Law (moderator); John B. Bellinger, Arnold & Porter and Legal Adviser to the Secretary of State from 2005 to 2009; Laurence R. Helfer, Duke Law; Catherine Powell, Fordham Law and Georgetown Law; and Ralph G. Steinhardt, George Washington University Law.