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March 19, 2012 4:00 PM

The Global Lawyer: Human Rights Plaintiffs Can't Even Pick Their Poison

Posted by Michael D. Goldhaber

Could anything be worse for alien tort claimants than arguing before a hostile U.S. Supreme Court on corporate liability, as the plaintiffs in Kiobel v. Royal Dutch Shell did last month? Yes: arguing before a hostile Supreme Court on extraterritoriality, as those plaintiffs will have to do next term, thanks to a surprise procedural order on March 5.

A broad ruling against extraterritoriality is more dangerous to plaintiffs for two reasons. First, it could bar suits against corporate officers and directors. Second, it could bar traditional alien tort suits against individual torturers and genocidaires.

And although I wouldn't bet on it, plaintiffs have a better shot of winning on corporate liability. Legally, the circuit courts laid out three paths to a plaintiffs' victory on the corporate issue.  Politically, a defense ruling on the corporate issue would draw embarrassing comparisons to Citizens United.

Does the Court really want to rule that corporations are people when it comes to buying elections, but not when it comes to accountability for human rights atrocities? Apparently not when there's a subtler and more intellectually attractive way to shut down the corporate alien tort enterprise.

Of the two corporate alien tort cases now queued up for the Court, only Sarei v. Rio Tinto squarely presents extraterritoriality. Cert is still pending in Sarei, but the Rio lawyers had a credible hope to squeeze their case into this term.

In a fascinating tactical maneuver that has gone unremarked, the Sarei plaintiffs waived their right to respond to the Rio Tinto cert petition on December 27, the day before it was due. Since the Court rarely grants cert without a response, it was fairly predictable that the Court would order the plaintiffs to respond nonetheless. The inevitable result was that the Sarei v. Rio conference date slipped so late that it would no longer be possible for the Court to take the extraterritoriality case this term.

Shell's lawyers and amici, led by Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, proceeded to raise the extraterritoriality argument in the Kiobel briefs anyway. The Kiobel plaintiffs refused to engage. At oral argument, plaintiffs' lawyer Paul Hoffman opened by saying that the Court faced "the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute." Narrow, of course, only relative to extraterritoriality.

Seconds later, Justice Anthony Kennedy cut off Hoffman with a question partly about extraterritoriality, and Justice Samuel Alito and Chief Justice John Roberts, Jr., soon jumped in. (Here's a link to the transcript.) Hoffman kept insisting hopefully that the issue hadn't been briefed.

Alas for the plaintiffs, the justices were determined to choose their own rationale, even if it meant pushing the resolution of alien tort law into the October term. On Friday, March 2, three days after the Kiobel argument, the Court finally held its cert conference for Sarei v. Rio. Then on Monday March 5, the Court surprised all by taking no action in Sarei, but ordering new briefing and argument in Kiobel on extraterritoriality. Maybe the Court thought it unnecessary to learn new facts, or maybe Sarei was problematic because Justice Elena Kagan would have been recused. For whatever reason, the Court has chosen Kiobel as the vessel for a ruling on extraterritoriality. Oddly, the Second Circuit earlier chose Kiobel as the vessel for corporate liability even though that issue was briefed only in Presbyterian Church v. Talisman. Kiobel is like an alien tort Rorschach blot; judges see in it what they wish to see.

Court-watchers are now left to ponder the wording of the extraterritoriality question as framed for rebriefing: "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. sec. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."

The key phrase is "under what circumstances." Supreme Court reporter Lyle Denniston at SCOTUSblog has suggested that this phrase invites the defense to raise the issue of aiding and abetting liability. But the Court could have raised that issue directly, or it could have granted cert in Sarei, which squarely presents it.

There are two more obvious implications. One is that the Court had in mind the amicus brief authored by Harvard Law School's Jack Goldsmith, which Justice Kennedy prominently cited for the proposition that: "No other nation in the world permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection" (emphasis added). Goldsmith argues that--outside of a narrow exception for universal criminal jurisdiction--prescriptive jurisdiction needs a link between the activity regulated and the regulating nation.

The other likelihood is that the Court wished to leave open the possibility of sharply restricting alien tort extraterritoriality without overruling Sosa v. Alvarez-Machain, which blessed the torturer and genocidaire alien tort cases anchored by Filartiga v. Pena-Irala. Again, there are hints of this in Justice Kennedy's remarks at oral argument: "I agree that we can assume that Filartiga is a binding and important precedent for the Second Circuit. But in that case the only place they could sue was in the United States. . . . In this case, the corporations have residences and presence in many other countries where they have much--many more contacts than here."

Whatever Justice Kennedy may say, it's not at all clear that Goldsmith's logic would allow a claim to be brought in U.S. court against a Paraguayan policeman as in Filartiga. On the other hand, Goldsmith's logic might permit alien tort suits against U.S. corporations--which ironically includes five of the six signatories of his brief.

Luckily for them, defense lawyers have all year to fashion a coherent limiting principle on extraterritoriality that will appeal to Justice Kennedy. And if that limiting principle leaves an opening for some corporate alien tort claims, the defense can continue to push for a ruling that corporations are immune under international law.

One way or another, the assumption here is that the corporate alien tort has a dim future at best. After Morrison v. National Australia Bank foreclosed global securities class actions in U.S. courts, I examined the potential for work-arounds under state law or in foreign courts. In coming columns I will do the same for human rights claims against corporations.

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