As readers of this blog are aware, the United States Supreme Court in the recent case of Kiobel v. Royal Dutch Petroleum applied the presumption against extraterritoriality to limit the reach of the Alien Tort Statute. In short, the Court held that the ATS did not apply to violations of the law of nations occurring within the territory of a foreign sovereign.
Today, the United States Court of Appeals for the Second Circuit issued an opinion in the case of Balintulo v. Daimler AG holding that the Kiobel decision barred a class action against Daimler AG, Ford Motor Company, and IBM Corporation for alleged violations of the law of nations in selling cars and computers to the South African government during the Apartheid era. Rather than dismiss the case itself, the Second Circuit remanded the case to the district court to entertain a motion for judgment on the pleadings. This case is important because it rejected the plaintiffs’ theory that “the ATS still reaches extraterritorial conduct when the defendant is an American national.” Slip op. at 20. It is also important because it explains that “[b]ecause the defendants’ putative agents did not commit any relevant conduct within the United States giving rise to a violation of customary international law . . . the defendants cannot be vicariously liable for that conduct under the ATS.” Slip op. at 24.
This case as well as the Ninth Circuit’s recent decision in Sarei v. Rio Tinto (similarly dismissing an ATS suit) would seem to point to substantial contraction in ATS litigation. But, not so fast.
A federal disctrict court in Massachussettes recently let an ATS case go forward notwithstanding Kiobel where it was alleged that a U.S. citizen in concert with other defendants took actions in the United States and Uganda to foment “an atmosphere of harsh frighenting repression against LGBTI people in Uganda.” Sexual Minorities Uganda v. Lively, 2013 WL 4130756 (D. Mass. Aug. 14, 2013). According to the district court, “Kiobel makes clear that its restrictions on extraterritorial application of American law do not apply where a defendant and his or her conduct are based in this country.” This statement is plainly at odds with the Second Circuit decision.
Similarly, a federal district court in D.C. recently held that an ATS case could go forward that involved an attack on the United States Embassy in Nairobi.. Mwani v. Bin Laden, 2013 WL 2325166 (D.D.C. May 29, 2013). This was so because, according to the district court, “[i]t is obvious that a case involving an attack on the United States Embassy in Nairobi is tied much more closely to our national interests than a case whose only tie to our nation is a corporate presence here. . . . Surely, if any circumstances were to fit the Court’s framework of “touching and concerning the United States with sufficient force,” it would be a terrorist attack that 1) was plotted in part within the United States, and 2) was directed at a United States Embassy and its employees.” This case is now on appeal.
To be clear, these cases are in the minority of the post-Kiobel decisions. By my count, it appears that 12 courts have dismissed ATS cases on extraterritoriality grounds and that the two cases higlighted above are the only courts to push the boundaries of the “touch and concern” language in Kiobel.
As always with ATS litigation, it will be interesting to see how the case law develops.