ATS Reversal Watch: M.C. v. Bianchi

I thought I’d drag myself out of blogger purgatory to make a brief comment on a recent decision out of the Eastern District of Pennsylvania that I noticed earlier this evening. In M.C. v. Bianchi, Chief Judge Bartle denied a Motion to Dismiss on the basis that ATS jurisdiction can be conferred over non-state actors based purely on the heinousness of their actions. Assuming there is an appeal, I think it’s a safe bet the Third Circuit will swat this one down once it is reviewed, because the decision’s basis under international law is rather shaky.

My gut feeling is this is just a case of hard facts make bad law, because Defendant Anthony Bianchi, millionaire and convicted serial child rapist, is one of the least sympathetic litigants you could possibly have, and it’s not hard to see how one might be very strongly motivated to extend any assistance available to the unnamed minor plaintiffs.

But being a really horrible person does not magically invoke the jurisdiction of the ATS. Judge Bartle seems to have taken the requirement that only ‘extreme’ violations of international law are sufficient to invoke ATS liability to mean that, the more morally heinous an act is, the greater the likelihood is that there exists a cause of action for a tort in violation of the law of nations:

“Given the young age of his victims and the frequency with which Bianchi engaged in these heinous acts, this case is extreme enough for subject matter jurisdiction to exist under the ATS. What occurred here is a serious transgression of international law that is ‘specific, universal, and obligatory.’ Under all the circumstances, we conclude that Bianchi’s sexual assault of children through sex tourism falls within the ‘very limited category’ of claims cognizable under the ATS as a violation of the law of nations.” Quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732.

To put it charitably, the decision is something of an international law train wreck. Its primary justification seems to be the existence of a international instrument condemning acts like those committed by Bianchi:

“[I]n support of this court’s jurisdiction, plaintiffs point to the Optional Protocol on the Rights of the Child, Sale of Children, Child Prostitution and Child Pornography (“Optional Protocol”).” … The Optional Protocol bans the ‘offering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.’ S. Treaty Doc. No. 106-37 at art. 3(1)(a)(i). It also declares that parties ‘shall ensure that all child victims of the offences described in the present protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.’ Id. at art. 9(4).

Although the U.S. is a signatory to the Optional Protocol, because that treaty is not self-executing, Plaintiffs had to go the law-of-nations route for the ATS suit, rather than relying on the treaty alone. But calling something ‘customary international law,’ even if it were, does not mean that it automatically comes with a cause of action against private parties. Judge Bartle notes that “‘[The Optional Protocol] also provides that ‘each State Party shall take measures, where appropriate, to establish the liability of legal persons’ for these offenses, both criminal and civil,” and then blithely goes on to assume, “[t]hus, the Optional Protocol clearly contemplates the liability of private individuals.” But that’s not what it says at all. The treaty clearly contemplates obligating nations to prohibit child sex crimes as a matter of domestic law, not making child sex crimes in themselves a violation of international law.

Other than the Optional Protocol, the decision’s basis for finding a violation of international law is based on the following:

“[C]ourts across the United States have acknowledged that child sex tourism … is uniformly admonished by the international community as reprehensible.”

“[Bianchi’s] crimes represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities.”

“Courts have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults.” Citing (questionably) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1019-22 (S.D. Ind. 2007).”

But none of this is sufficient to establish that Bianchi’s crimes were “a serious transgression of international law that is ‘specific, universal, and obligatory.'” His actions were evil and illegal, but not a matter of the law of nations.

Judge Bartle’s judicial over-reach in the name of universal jurisdiction is by no means an isolated decision. There is in fact fairly ample, if scattered, support for the idea that jurisdiction over Bianchi would be proper, under the argument that international commercialized child rape (I cannot bring myself to use the monstrously inadequate euphemism of ‘sex tourism’) is a modern crime akin to the traditional offenses of piracy and slavery. Eugene Kontorovich [PDF] has called this claim the “piracy analogy”. The piracy analogy is

the argument that [universal jurisdiction] is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The Bianchi decision is a text-book example of the piracy analogy in action, and of the mistaken belief that the world’s evils are best fought by expanding the nebulous jurisdictional reach of international law to encompass them. However, while states can and do use international law as a means of combating offenses that are universally condemned, as they have with the Option Protocol on the Rights of the Child, the mere fact that an offense can be regulated by international law cannot transform it into a violation of international law.

-Susan

All* Alien Tort Statute Cases Brought Between 1789 and 1990

As an addition to my post on successful cases brought under the Alien Tort Statute, below is a list of failed cases under the ATS from its enactment in 1789 through 1990. These are only the cases that were dismissed outright by the court — the list of ATS suits that were either successful, or which were ultimately unsuccessful but at least made it before a jury, are listed in the above link.

I am reasonably confident that the list is a complete list of all losing ATS cases for that time period. Of course, I’ve probably jinxed myself by saying that, but other than maybe some unreported cases I couldn’t get my hands on, pretty much all of the ATS cases for that time period should be here. … That said, if you know of some I’ve missed, please let me know in the comments!

Of course, given that the ATS’s invocation in federal courts has been expanding at an exponential rate, the overwhelming majority of ATS cases were brought after 2000. So this list has a long way to go yet.

Alien Tort Statute Cases Dismissed by the Courts (Complete Through 1990)

1. Moxon v. The Brigantine Fanny, 5317 F.Cas. 942 (D.C.Pa. 1793). “Neither does this suit for a specific return of the property, appear to be included in the words of the judiciary act of the United States, giving cognizance to this court of ‘all causes where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.’ It cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for.”

2. O’Reilly De Camara v. Brooke, 209 U.S. 45, 28 S. Ct. 439 (1908). This is the first time the ATS went before the Supreme Court. (It is also the first time an ATS claim was subject to a motion to dismiss for failure to state a cause of action.) The case involved an alleged violation of the Treaty of Paris, and “was brought by the Countess of Buena Vista, a subject of the King of Spain, residing in Havana, Cuba, against Maj. Gen. John R. Brooke, to recover damages alleged to have been caused to the plaintiff by an order of Gen. Brooke, made August 10, 1899, when he was military governor of the Island of Cuba, abolishing the right or franchise to slaughter cattle in the city of Havana, owned by the plaintiff.” “Again, if the plaintiff lost her rights once for all by General Brooke’s order, and so was disseised, it would be a question to be considered whether a disseisin was a tort within the meaning of [the ATS]. In any event, the question hardly can be avoided whether the supported tort is ‘a tort only in violation of the law of nations’ or of the Treaty with Spain. In this court the plaintiff seems to place more reliance upon the suggestion that her rights were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the District Court was invoked. ” “[W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a ‘tort only in violation of the law of nations, or of a treaty of the United States,’ it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress and the treaty-making power all have adopted the act. We see no reason to doubt that the ratification extended to the conduct of [the General].”

3. Pauling v. McElroy, 164 F.Supp. 390 (D.D.C. 1958). Suit to enjoin nuclear weapons testing. Request for injunction not a tort, and accordingly no relief available under ATS.

4. Khedivial Line, S. A. E. v. Seafarers’ Union, 278 F.2d 49 (2 Cir. 1960). Right of free access to ports not sufficient to establish jurisdiction.

5. Madison Shipping Corp. v. National Maritime Union, 282 F.2d 377 (3rd Cir. 1960). “[I]njunctive relief was prayed for on the theory that the appellants’ acts were violative of the appellee’s rights under the Treaty of Friendship, Navigation and Commerce made between the United States and the Republic of Liberia on August 8, 1938, 54 Stat. 1739. Jurisdiction of both of these claims was asserted to be pursuant to Sections 1331 and 1350 of Title 28 U.S.C. [I]t was [also] alleged that the appellants tortiously interfered with the appellee’s contractual relations in violation of the law of Pennsylvania. Injunctive relief and damages were prayed for, and jurisdiction was asserted to be pursuant to Sections 1332 and 1350, Title 28 U.S.C.” Except the court was reviewing the case under interlocutory appeal, and none of the questions before it reached the requisite standard, so the case was booted out.

6. Bowater S. S. Co. v. Patterson, 303 F.2d 369 (2nd Cir. 1962) (in dissent). Interesting, although questionable, early analysis of the ATS. Majority dismissed the case for lack of jurisdiction on unrelated grounds. In a dissenting opinion, Judge Lumbard, apparently raising the issue sua sponte, argues that the ATS granted the court a separate basis of federal jurisdiction. the Plaintiff, the Bowater Steamship Company, Ltd., was an English corporation. It “advance[d] a claim under the treaty ‘To regulate the Commerce between the Territories of the United States And of his Britannick Majesty,’ signed and ratified in 1815, 8 Stat. 228, and extended indefinitely on August 6, 1827, 8 Stat. 361.” According to Judge Lumbard, “This is sufficient to give the district court jurisdiction under 28 U.S.C. §§ 1331 and 1350.” However, the relevant treaty did not provide the substantive law, but rather guaranteed a federal form for the litigant. Therefore, the dissent would have, apparently, used the ATS as a means of providing jurisdiction for an alien to assert a claim under New York state tort law.

7. Lopes v. Reederei Richard Schroder, 225 F.Supp. 292 (E.D.Pa.1963). Dismissied; doctrine of unseaworthiness held to be not part of the law of nations.

8. Upper Lakes Shipping Limited v. International Longshoremen’s Ass’n, 33 F.R.D. 348 (S.D.N.Y. 1963). Plaintiff brought claim “arising under the treaty between the United States and Canada concerning the boundary waters between the United States and Canada.” Court found that treaty’s only available remedy was for plaintiff to “seek the espousal of its claim by the Canadian Government and its presentation to the International Joint Commission.”

9. Seth v. British Overseas Airways Corp., 216 F.Supp. 244 (D.Mass. 1963). Not an interesting case. “The theory of the third count is that this Court has jurisdiction under 28 U.S.C. § 1350 because this is a ‘civil action by an alien for a tort only, committed in violation of a treaty of the United States. … There being no evidence that BOAC committed a tort or violated any act of Congress, Counts 2 and 3 are dismissed with prejudice.”

10. Damaskinos v. Societa Navigacion Interamericana, S. A., Pan., 255 F.Supp. 923 (S.D.N.Y.1966). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations.”

11. Valanga v. Metropolitan Life Insurance Co., 259 F.Supp. 324 (E.D.Pa. 1966). “[A]ctions to recover funds based upon life insurance contract obligations do not impress this Court as being of the calibre of the cases which have been allowed recourse to § 1350. Plaintiff has failed to indicate the impact of defendant’s conduct as violating the “law of nations.” The mere fact that an individual breaches the contractual duty owed to an alien does not mean that such conduct is so flagrant as to warrant this court to conclude, as a matter of law, that it constitutes a violation of the rules of conduct which govern the affairs of this nation, acting in its national capacity, in its relationships with any other nation.”

12. Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir. 1973). Nigerians’ claims alleging fraudulent employment training contracts failed to state a claim involving an international law violation.

13. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975). Source of the ATS’s famous epitaph:  “[t]his old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came.” Court found that “[t]hou shalt not steal” is not part of the law of nations.

14. Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975). “[T]he illegal seizure, removal and detention of an alien against his will in a foreign country would appear to be a tort . . . and it may well be a tort in violation of the “law of nations’… We are reluctant to decide the applicability of § 1350 to this case without adequate briefing. Moreover, we are reluctant to rest on it in any event. The complaint presently does not join the adoption agencies as defendants.”

15. Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976). Seizure of Jewish plaintiff’s property in Nazi Germany and repudiation of 1948 settlement agreement may have been tortious, but not an international law violation.

16. Papageorgiou v. Lloyds of London, 436 F. Supp. 701 (E.D.Pa. 1977). Dismissed under the doctrine of forum non conveniens.

17. Soultanoglou v. Liberty Trans. Co., 1980 U.S. Dist. LEXIS 9177 (S.D.N.Y.). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations. []. Soultanoglou has failed to provide the Court with contrary authority. … The Court accepts Magistrate Raby’s conclusion that section 1350 is inapplicable here.”

18. Huynh Thi Anh v. Levi, 586 F. 2d 625 (6th Cir. 1978). There is no universally accepted international right that grants grandparents rather than foster parents custody of children.

19. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978). Claims arising out of crashed airplane are a tort, but not one in violation of international law or U.S. treaty.

20. Akbar v. New York Magazine Co., 490 F. Supp. 60 (D.D.C. 1980). Libel not a violation of international law or treaty.

21. Canadian Transport Co. v. U.S., 663 F.2d 1081 (D.C.Cir. 1980). “Appellants’ second cause of action alleged that the exclusion of TROPWAVE violated the Treaty of Commerce and Navigation of 1815 between the United States and Great Britain (the 1815 Treaty), 8 Stat. 228. 33 Appellants argue that the District Court had jurisdiction to award them damages under 28 U.S.C. § 1350 (1976), which provides: ‘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.’ Because nothing in the language of this statute indicates that the United States has waived its sovereign immunity from tort suits for treaty violations, the District Court’s decision dismissing this cause of action must be affirmed unless appellants can show another basis for concluding that sovereign immunity has been waived.”

22. Trans-Continental Inv. Corp. v. Bank of Commonwealth, 500 F. Supp. 565 (C.D. Cal. 1980). “Plaintiffs do not claim that any treaty has been violated nor do they suggest that any such claim can be pleaded. Thus, the invocation of Section 1350 jurisdiction is posited directly on their claim that ‘fraud is a universally recognized tort.’ This is essentially the same argument that was made in IIT v. Vencap, Ltd., and the answer must be the same, while the statement is undoubtedly true, universal recognition does not, per se, make the rule a part of ‘the law of nations,’ construed in accordance with Article III.”

23. Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981). Tortious conversion of funds (embezzlement) is not a violation of the law of nations.

24. Jafari v. Islamic Republic of Iran, 539 F.Supp. 209 (N.D.Ill. 1982). “[T]he ‘law of nations’ does not prohibit a government’s expropriation of the property of its own nationals.”

25. B.T. Shanker Hedge v. British Airways, 1982 U.S. Dist. LEXIS 16469 (N.D. Ill.). “The plaintiff alleges that he suffered physical injuries when he was struck by a luggage cart while he stood at the lost and found area controlled by the defendant at the airport in Geneva, Switzerland.” Yeah, not exactly a tort in violation of the law of nations. Now maybe if he’d sued for tortiously bad airline food… *rim shot*. But a somewhat interesting note: “This case alleges a tort, but not one in violation of the law of nations or any treaty of the United States. If jurisdiction were held to exist under this statute over this cause, the exercise of such jurisdiction would probably be in violation of Article III of the Constitution.”

26. Canadian Overseas Ores Ltd. v. Compania de Acero, 528 F. Supp. 1337 (S.D.N.Y. 1982). Suit to recover “spare parts and related equipment.” “[T]his suit is not one to recover allegedly expropriated property and accordingly 28 U.S.C. § 1350, conferring jurisdiction over suits “by an alien for a tort only, committed in violation of the law of Nations,” does not provide a constitutional jurisdictional predicate for the suit. As the Court of Appeals stated in the footnote relied on by CANOVER, ‘commercial violations … do not constitute violations of international law.'”

27. De Wit v. KLM Royal Dutch Airlines, 570 F. Supp. 613 (S.D.N.Y. 1983). Trade secret and employment action. “The court finds that such extraordinary circumstances are not present here and therefore de Wit’s claim of jurisdiction under this provision is also lacking.”

28. Zapata v. Quinn, 707 F.2d 691, 1983 U.S. App. LEXIS 27589 (2d Cir. N.Y. 1983). “This is an unusually frivolous civil rights action brought under 28 U.S.C. § 1350 and 42 U.S.C. § 1983 by the winner of $273,178 in the New York State Lottery against its director, claiming that New York regulations, which provide that the winnings will be paid partly in cash and the balance by way of an annuity over 10 years instead of in one lump sum, deprived her of property without due process of law.”

29. Ramirez de Arellano v. Weinberger, 724 F.2d 143 (D.C.Cir. 1983). “As for remedies (available to the Honduran corporations alone) under the Alien Tort Statute: Assuming without deciding that that legislation allows suits against the United States, in the case.it nonetheless applies only to so-called transitory causes of action. Neither an action seeking ejectment nor an action seeking money damages for trespass would lie, since they are both local actions.”

30. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984). The ATS gets Borked.

31. Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C.Cir.1984). ATS raised as jurisdictional ground, but court found it unnecessary to address the claim.

32. Munusamy v. McClelland Eng’r, Inc., 579 F. Supp. 149 (E.D. Tex. 1984). This case is something of an accidental invocation of the ATS, and should probably be discarded for purposes of looking at ATS issues:  “[]he Plaintiffs insist the court has jurisdiction by virtue of” the ATS and three other jx statutes, and the causes of action were various, but included “the General Maritime Law of the United States and of Nation.” But the ATS issue is never discussed, and then the case got lost in a FNC procedural quagmire.

33. Tamari v. Bache & Co., 730 F.2d 1103 (7th Cir. 1984). Boring case, not useful: “[t]he alleged violations include excessive trading and churning of the accounts; making false representations, false reports and false statements to the Tamaris; and deceiving the Tamaris as to the true condition of the accounts.” “We note that 28 U.S.C. § 1350 has been narrowly construed and would not supply a basis for federal jurisdiction over the common law claim.”

34. Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985). My favorite part of this case is the dismissive reference to “so-called ‘customary international law.'” Court found that either the acts of the defendants were private acts and not covered by the ATS, or else were the acts of officials and therefore barred by sovereign immunity: “It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity, official actions of the United States.”

35. Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332 (S.D.N.Y. 1984). Plaintiffs, British citizens, sought to enjoin the deployment of ninety-six cruise missiles at Greenham Common, Great Britain. “Based on these alleged consequences of deployment, the Greenham plaintiffs contend that the deployment of cruise missiles contravenes several customary norms of international law, subjecting them to tortious injury actionable under the Alien Tort Claims Act, 28 U.S.C. § 1350.” No surprise that the court found that “[t]he instant case presents a non-justiciable political question.” Besides which, their claim wasn’t for a tort.

36. Jaffe v. Boyles, 616 F. Supp. 1371 (W.D.N.Y. 1985). Interesting case, and not just because it involves bounty hunters. Plaintiff was seized and dragged across the Canadian border into the US, where he was prosecuted. Court found that the US-Canada extradition treaty did not create private right of action, and as ATS is jurisdictional only, there was no tort a private person could sue for: “Any alien torts committed against Jaffe in violation of the law of nations occurred in Toronto with his seizure and continued with the crossing of the border here. The extradition treaty may well have been violated at the moment the border was crossed, but as already discussed, plaintiffs have no private right of action under that treaty.” So in a way, this case could go down into the “jurisdiction under ATS” column — the court did find that there may well have been a tort in violation of a US treaty, but it’s not one that Plaintiff was able to recover for.

37. Guinto v. Marcos, 654 F.Supp. 276 (S.D.Cal. 1986). Plaintiffs brought suit alleging Philippines government and seized and suppressed a film. Court rejected the filmmaker’s ATS claims: “However dearly our country holds First Amendment rights, I must conclude that a violation of the First Amendment right of free speech does not rise to the level of such universally recognized rights and so does not constitute a “law of nations.”

38. Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988). Boring case. ATS claim brought and then smacked down under FSIA.

39. Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988). Plaintiff, a British citizen, was stuck in a Debtor’s Prison in Saudi Arabia, for two years, and brought claims against his creditors for false imprisonment and assault and battery. Plaintiff “allege[d] that the defendant corporations conspired with the Saudi government to have him jailed. He further alleges that, knowing of his incarceration and the type of treatment he was receiving, the defendants purposefully delayed giving their unilateral release of their claims in order to force him to sign mutual releases and covenants not to sue.” The court found it lacked PJx over all all defendants but Price Waterhouse. Those claims were dismissed because Plaintiff “simply cannot demonstrate any causal connection between Price Waterhouse’s conduct and his prolonged imprisonment or torture. In this case, there is no evidence that Price Waterhouse was responsible, directly or indirectly, for Carmichael’s initial incarceration. Second, Price Waterhouse owed no affirmative duty to Carmichael simply to release him from an obligation that he admitted owing. And finally, no evidence was adduced in the 12(b)(1) proceeding that Price Waterhouse in any way conspired with or aided and abetted in the act that we have assumed constituted the violation of international law, that is, the official torture of Carmichael.

40. Jones v. Petty-Ray Geophysical Geosource, Inc., 722 F. Supp. 343 (S.D. Tex. 1989). Complaint did not allege Plaintiff was an alien, nor did it plead any violation of the law of nations. “The plaintiff’s complaint alleges that Sudan was negligent in failing to warn plaintiff’s decedent of imminent political danger and violence and failing to provide adequate police protection and security to decedent. However, the plaintiff has not shown where this cause of action arises under the ‘law of nations’ and has not cited any persuasive source that recognizes a sovereign’s duty to protect foreign nationals from harm.”

41. Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C. 1990). Dismissing default judgment against USSR that was granted for, inter alia, claims under the ATS. Court found FSIA barred judgment.

42. Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). Dismissed, court found “all claims were barred by doctrines of absolute immunity, qualified immunity, and for failure to state a claim, and lack of pendent jurisdiction.”

43. Castillo v. Spiliada Maritime Corp., 732 F.Supp. 50 (E.D.La. 1990). Plaintiffs claimed “retaliatory discharge under the Alien Tort Statute, 28 U.S.C. 1350 et seq.” Unsurprisingly, the case didn’t go anywhere.

————-

Partial, in-progress list of post-1990 cases:

44. Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991). Amlon involved the shipment of allegedly hazardous copper residue to a purchaser in England for metallic reclamation purposes. Among its claims, the purchaser sought recovery in tort under the Alien Tort Statute, and “assert[ed] that the complaint does allege facts that constitute a violation of the law of nations. In particular, plaintiffs argue that FMC’s conduct is violative of the Stockholm Principles, United Nations Conference on the Human Environment (adopted June 16, 1972), to which the U.S. is a signatory.” The court said yeah right, nice try: “reliance on the Stockholm Principles is misplaced, since those Principles do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders.”

45. Koohi v. U.S., 976 F.2d 1328 (9th Cir. 1992). No waiver of sovereign immunity. ATS claim dismissed in a quick footnote.

45. Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995). “The wrongs alleged are in substance fraud, breach of fiduciary duty and misappropriation of funds. Although the conduct was international in scope, no violation of what has traditionally been the subject of international law is claimed. International law includes more than international treaties. But looting of a bank by its insiders, and misrepresentations about the bank’s financial condition, have never been in the traditional classification of international law.”

46. Aquinda v. Texaco, Inc., 945 F. Supp. 625, 627 (S.D.N.Y. 1996). Court in Aquinda referenced the possible application of § 1350 for environmental practices “which might violate international law.” Suit was subsequently dismissed on grounds of comity, forum non-conveniens, and failure to join a necessary party.

47. Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362 (E.D.La. 1997). Court found that plaintiff “failed to articulate a violation of the international law. Plaintiff states that the allegations support a cause of action based on three international environmental law principles: (1) the Polluter Pays Principle; (2) the Precautionary Principle; and (3) the Proximity Principle. None of the three rises to the level an international tort.” Court also suggested that corporation could not violate international environmental law.

48. Jogi v. Piland, 131 F. Supp.2d 1024 (C.D. Ill. 2001). Dismissed, court held that ATS claims require a tort in violation of treaty, not just any treaty violation.

49. Mendonca v. Tidewater, Inc., 159 F.Supp.2d 299 (E.D.La. 2001). Boring case; lots of alleged violations of international law that make no sense. “the plaintiff can cite no solid support for his claim that the conduct complained of rises to the level recognized by the law of nations.”

50. Doe I v. The Gap, Inc., 2001 WL 1842389 (D.N.Mar.I. 2001). Plaintiffs brought claims of forced labor and deprivation of fundamental human rights in violation of international law. Interestingly, the court accepted the idea that a purely private actor could be held liable under the ATS, but that plaintiffs failed to prove their slavery claims, so the ATS claim was dismissed: “Although international law generally governs the relationship between nations, and thus a violation thereof almost always requires state action, it has been recognized that a handful of particularly egregious acts — genocide, war crimes, piracy, and slavery — by purely private actors can violate international law. As of now, however, only the acts mentioned above have been found to result in private individuals being held liable under international law.” “The court has above determined that plaintiffs have failed to make out a claim for the less egregious act of involuntary servitude and thus it need not consider whether the Unocal court’s equation of forced labor with slavery is sustainable on the facts as alleged here. As to plaintiffs’ claims of other alleged human rights violations, no court has yet accepted plaintiffs’ contention that the freedom to associate and the right to be free from discrimination are standards that have as yet evolved into norms of customary international law sufficient to invoke and be actionable under the ATCA.”

51. Tachiona v. Mugabe, 386 F.3d 205 (2d Cir. 2004). Dismissal of ATS claims for sovereign and head of state immunity.

52. Bancoult v. McNamara, 370 F.Supp.2d 1 (D.D.C. 2004). Plaintiffs tried to claim a “violation of the ATS.” Dismissed.

53. Schneider v. Kissinger, 310 F.Supp.2d 251 (D.D.C. 2004). Claims under TVPA and ATS against Kissinger dismissed. ATS claims did no fulfill the requirements of §2679(b)(2)(B), although TVPA claims “arguably did.” But TVPA claims still dismissed, as “[i]n carrying out the direct orders of the President of the United States, Dr. Kissinger was most assuredly acting pursuant to U.S. law, if any, despite the fact that his alleged foreign coconspirators may have been acting under color of Chilean law. In addition, the TVPA claims appear to be barred by Dr. Kissinger’s qualified immunity from suit.”

54. Ganguly v. Charles Schwab & Co., Inc., 2004 WL 213016, (S.D.N.Y. 2004). Foreign investor seeking to hold brokerage firm liable for losses failed to allege any violation of international law.

55. Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164 (C.D.Cal. 2005). Court found act of state doctrine did not apply, and refused to dismiss certain ATS claims. It then, however, dismissed the entire case, under the political question doctrine.

56. Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1 (D.D.C. 2005). TVPA only good against individual defendants.

57. Joo v. Japan, 413 F.3d 45 (2005). “We hold the appellants’ complaint presents a nonjusticiable political question, namely, whether the governments of the appellants’ countries resolved their claims in negotiating peace treaties with Japan. In so doing we defer to “the considered judgment of the Executive on [this] particular question of foreign policy.”

58. In re Iraq and Afghanistan Detainees Litigation, 479 F.Supp.2d 85 (D.D.C. 2007). Defendants were immune under the Westfall Act. Because the Geneva Convention is not a law enacted by Congress, but rather an international agreement, it does not fall within the Westfall Act’s exception for statutes.

59. Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007). Court found parental child abduction does not violate law of nations. Further, “the nexus between Mr. Taveras’s asserted injury and the alleged law of nations violation (that the right of the United States to control who enters its borders was infringed) is highly tenuous, at best. As Sosa definitively established that the underlying tort itself must be in violation of the law of nations to be cognizable under the ATS, we reject Mr. Taveras’s Adra-styled argument that Ms. Taveraz’s fraudulent entry into the United States is sufficient to implicate a law of nations infraction and thereby propel his purely domestic tort action within the jurisdictional ambit of the ATS.”

60. Jama v. Esmor Corr. Serv., 2008 WL 724337 (D.N.J. 2007). “Four of Jama’s claims went to the jury [including] violation of the Alien Tort Claims Act, 28 U.S.C. § 1350.” Ignoring the fact that you cannot violate a jurisdictional statute, the jury found “no liability against any defendant under the Alien Tort Claims Act.” However, it several of the Defendants did settle, so this one can go in both the win column and the loss column.

61. Ruiz v. Fed. Gov’t of the Mexican Republic, 2007 U.S. Dist. LEXIS 74736 (W.D. Tex. 2007). “In his Complaint, Ruiz contends that the defendants’ actions have violated the UN Charter and the UDHR. Neither of these documents create a tort actionable under the ATS.

62. Harbury v. Hayden, 522 F.3d 413 (D.C.C. 2008). Stating that “the ATCA cannot be the subject of ‘a violation’ of a federal statute because the ATCA provides no substantive rights that could be the subject of any claimed violation”.

63. Presbyterian Church of Sudan v. Talisman Energy, Inc. (2d Cir. 2009). Second Circuit found that corporate defendant not liable for assisting others’ alleged violations of the ATS in the absence of evidence it intended that those violations be committed.

65. Hurst v. Socialist People’s Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007): “In their Opposition, Plaintiffs assert for the first time a claim by Mulroy under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, on the grounds that they asserted jurisdiction under the statute in their complaint, and they seek leave to amend if the claim was not sufficiently pleaded. The ATS does not provide jurisdiction over foreign states.”

66. Hoang Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004). 10-year statute of limitations adopted from TVPA to bar claims.

67. Rojas Mamani v. Sanchez Berzain, 636 F.Supp.2d 1326 (S.D.Fla. 2009). TVPA claim — dismissed for failure to exhaust all remedies.

68. Turedi v. Coca-Cola Co., 343 Fed.Appx. 623 (2nd Cir. 2009): Dismissed for forum non conveniens.

-Susan

Second Circuit’s Error in Kiobel

This is kind of petty, and not particularly timely, but the Second Circuit’s decision in Kiobel contained one pretty blatant error I wanted to point out. It’s a minor mistake, and entirely insignificant regarding the outcome of the case, but it is perhaps indicative of a lack of familiarity with the history of the Alien Tort Statute:

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

The Alien Tort Statute Under the Obama Administration: Executive Suggestions vs. Explicit Requests

On December 1st, the United States Government filed a Statement of Interest (SOI) [PDF] in defendants’ appeal from In re S. African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009) to the Second Circuit, seeking reversal of the district court’s denial of the defendants’ motion to dismiss. The U.S. brief, in a turn around from its previously voiced opinions on the case, argues that the Second Circuit should decline to find jurisdiction and allow the litigation to continue in the district court.

Background on the case: The South Africa Apartheid Litigation — a combination of the Khulumani and Ntsebeza cases — has been winding its slowly through the courts for a few years, bouncing its way back and forth between the District Court and the Second Circuit. Plaintiffs have alleged that several major multinational corps are guilty of “aiding and abetting” the apartheid South African government, and eight years ago the plaintiffs brought suit under the Alien Tort Statute. After going back in the district court on remand, the defendants filed for dismissal, inter alia, on comity. They lost, and sought interlocutory appeal of the dismissal, with a hearing in the case set for January 6, 2010.

A major issue, however, is whether the Second Circuit can even hear the appeal of the dismissal. For interlocutory appeals, in addition to two other factors not at issue here, a decision by the district court must be effectively unreviewable on appeal from a final judgment.

The U.S. Government’s SOI asks the court of appeals to find it has no jurisdiction over the case because the U.S. has not explicitly asked for its dismissal. Therefore, according to the U.S., requiring defendants to wait until a final order in the case is given does not impair any of the U.S.’s interests (not the defendants’ interests), and accordingly jurisdiction for interlocutory appeal is not present. As stated in the government’s brief,

when a defendant seeks appellate review of a district court’s order denying a motion to dismiss a suit predicated on the adverse consequences on the Nation’s foreign relations, the court of appeals has jurisdiction under the collateral order doctrine only if the district court denied defendant’s motion despite the fact that the Executive Branch explicitly sought dismissal of the suit on that ground. The requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.

The U.S.’s implicit endorsement of continuing the apartheid litigation was apparently precipitated by a letter recently sent by the South African Justice Minister [PDF]. Previously, South Africa has strenuously objected to having South African apartheid-era torts tried in American courts. However, in September, 2009, Minister Radebe wrote to the district court, unsolicited, stating that “[t]he Government of the Republic of South Africa, having considered carefully the judgement of the United States District Court, Southern District of New York is now of the view that this Court is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law.” Shortly thereafter, the U.S. filed its own SOI in which it evinced no objections to continuing the case. The impression given is that, once South Africa dropped its objections, all of the U.S.’s objections immediately evaporated as well — and that so long as the foreign sovereign involved is happy, the U.S. has no concerns of its own.

But something more is going on here. Despite the SOI’s careful language, which stresses repeatedly that the U.S. never “explicitly request[ed]” a dismissal, and its framing of earlier U.S. involvement as merely an attempt to express “concerns” about procedural scope, this is in reality a radical shift from the U.S.’s previous stance under the Bush Administration. Let’s take a look at what the U.S. had to say back in 2007:

“[i]t would be extraordinary to give U.S. law an extraterritorial effect in [these] circumstances to regulate [the] conduct of a foreign state over its citizens, and all the more so for a federal court to do so as a matter of common law-making power. Yet plaintiffs would have this Court do exactly that by rendering private defendants liable for the sovereign acts of the apartheid government in South Africa.” Brief of the United States of America Amicus Curiae Supporting Defendant-Appellees, at 21, Khulumani v. Barclay Nat. Bank, Ltd., 504 F.3d 245 (2d Cir. 2007).

This is not a statement given by a government that merely has “concerns” that can be easily resolved with a few tweaks. And according to Jack Goldsmith and Curtis Bradley, “This should have been enough for dismissal.”

However, because Obama inherited this case from Bush, he — or rather, his legal people — are trying to impose their new policy stances in a manner that is not blatantly inconsistent with previous government filings. So in the U.S. Government’s Dec. 2009 SOI, they are forced into using rather cagey language: “[t]he requirement of an explicit request for dismissal on foreign policy grounds by the Executive Branch is, in our view, critical.” Because Bush’s legal team forgot to preface its filings with the legal equivalent of ‘mother may I,’ the U.S. Government can now argue that despite all of their earlier protests and disagreements with allowing the litigation to continue, the government never actually wanted the case to be dismissed. A few years back in Sosa, the Supreme Court stated “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” This statement still holds true, save that Obama is clarifying now that “the Executive Branch’s view” means only official requests — in other words, executive suggestions must now be phrased as executive demands.

Essentially, under the legal analysis offered by the government’s SOI, any opinions given by the U.S. Government in an ATS case will be treated as just another voice in the crowd (if perhaps a particularly loud one), unless and until the U.S. tells the Court, “Hey, hold up now, this time we’re actually being serious! We actually want it to be dismissed now! Consider this an explicit request!” If the U.S. opposes an ATS case but merely “reference[s] the adverse foreign policy consequences of recognizing plaintiffs’ claims,” [SOI, p. 10, referring to previous appellate briefs filed by the U.S. in Khulumani], then, according to the government’s filing, the U.S. is just making a legal argument acknowledging that foreign policy concerns exist, it is not actually invoking an Executive Branch smack down.

Unfortunately for Bush, he didn’t know about this new safe word. So instead of making an Official Executive Suggestion That the Court Stop Its Shenanigans, like he thought he was doing, Bush just gave the court a heads up on his personal legal opinion.

As for those wondering why the government’s opinion on the South African apartheid litigation has changed under Obama, well, remember — the State Department’s new legal advisor is Harold Koh, and it seems very likely that the U.S. Government’s brief was partially (or more) a result of his influence. Koh, prior to his current post, had joined a brief in the Khulumani case arguing for a broad aiding-and-abetting standard for corporate liability for complicity in foreign human rights abuses. And, as everyone knows, Koh’s also a Godless, U.N.-worshipping America-hater. With him in charge, the Obama Administration is getting ready to throw an Alien Tort Statute party, and all corporate human rights violators are invited. Until Obama explicitly says they’re not.

-Susan

Alien Tort Statute Cases Resulting in Plaintiff Victories

This post is an attempt to catalog all Alien Tort Statute (28 U.S.C. § 1350) cases that have resulted in something other than complete failure for the plaintiffs who have brought the claims.

Most ATS victories have been default judgments against individual defendants, with a few claims against individual government officials and states being decided on the merits. Collection of judgments awarded under the ATS is a low probability game, although a few lucky plaintiffs have succeeded. Most judgments remain moral victories.

To date, only two judgments have been entered against corporate defendants, with one judgment entered by default and one after a jury trial.

There have been maybe a dozen settlements reached in ATS cases against corporate defendants; many of these settlements are confidential, but of the ones that have been revealed, it appears to be a fairly even split between settlements that appear to have favored the plaintiffs and settlements that appear to have favored the defendants.

In other words, the argument that ATS litigation is financially ruinous for international businesses or a serious impediment to multinational operations is vastly overstated. Tort claims under the ATS make up an infinitesimal fraction of corporate litigation budgets worldwide.

A. Successful ATS Claims Against Non-Corporate Entities, With Decisions Reached Other than by Default

  1. Jansen v. The Brigantine Vrow Christina Magdalena (D.S.C. 1794),  aff’d by Talbot v. Jansen, 3. U.S. 133 (1795). Ship owned by a Dutch citizen was captured by an American citizen who had attempted to renounce his American citizenship in order to take commission from France as a privateer. After co-capturer Talbot intervened and challenged the district court’s jurisdiction — based, in part, of the inability of a U.S. court to be acting as a prize court over a captor alleging to hold a French commission — the court was required to consider, in the absence of prize jurisdiction, “[w]hether this court has any and what jurisdiction relative to matters arising on the high seas.” The court concluded that it did have jurisdiction, and cited to both its admiralty jurisdiction and the ATS in support of this: “[t]he court shall have exclusive original cognizance in all civil causes of admiralty and maritime jurisdiction; and concurrent jurisdiction with the courts of the several states, or the circuit courts of the United States (as the case may be) where an alien sues for a tort only in violation of the law of nations, or a treaty of the United States.” The district court then found that although the capture was not piracy, it was in violation of both the law of nations and the U.S.’s treaty with Holland, and in doing so the defendants’ acts risked the U.S.’s neutral character in the conflict, and so found for the Dutch plaintiff. On appeal to the Supreme Court, France argued that it was a breach of international law for the U.S. to adjudicate a dispute between Holland and France arising from an act occurring on the high seas. The Supreme Court affirmed the lower court’s decision, and Justice Iredell held that “[t]he general law of nations are enquirable and may be proceeded against in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it[.]” Iredell concluded that “[t]his is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part,…) as well as of the law of nations generally; that I cannot entertain the slightest doubt, but that … the District Court had jurisdiction.”
  2. Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795): Suit against French captain who captured a Spanish slave ship in 1794. Defendant was forced to return slaves or pay restitution. The district court concluded that it had jurisdiction to hear Bolchos’ suit, noting that “as the 9th section of the judiciary act of congress gives this court concurrent jurisdiction with the state courts and circuit court of the United States where an alien sues for a tort, in violation of the law of nations, or a treaty of the United States, I dismiss all doubt upon” the question of jurisdiction.
  3. Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961): Iraqi mother found in violation of law of nations by refusing to return custody of daughter to her father, and for forging passports for her to be admitted to U.S. However, the Lebanese father was denied relief as court found it to be in daughter’s best interest to remain with mother.
  4. In re Estate of Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1993): First ATS case to go to trial. Defendant liable to the class for over $766 million in compensatory damages, and $1.2 billion in exemplary damages.
  5. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996): Bench Trial. Case against Ethiopian guard for torture and CITD, affirmed by the 11th Circuit. Plaintiffs each awarded plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. Also note that one of the attorneys for the plaintiffs was Harold Koh.
  6. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D.Fla. 1997):* (AEDPA/TVPA) Punitive damages assessed in reference to punitives assessed for violations of international human rights law in ATS cases; “[j]udgment entered on behalf of Plaintiffs and against Defendants the Republic of Cuba and the Cuban Air Force for total compensatory damages of $49,927,911. Judgment entered for Plaintiffs and against the Defendant the Cuban Air Force (only) as punitive damages, the sum of One Hundred Thirty Seven Million, Seven Hundred Thousand Dollars ($137,700,000). Total compensatory and punitive damages awarded to Plaintiffs $187,627,911, for which sum execution issued against the Defendants Cuba and the Cuban Air Force and against any of their assets wherever situated.” Collection efforts are ongoing.
  7. Cabello v. Fernández Larios, 205 F.Supp.2d 1325 (S.D.Fla. 2002), aff’d in 402 F.3d 1148 (11th Cir. 2005): Jury verdict on Oct., 2003. Murder of Chilean economist by one of Pinochet’s military commanders, descendants sue for, inter alia, crimes against humanity and CITD. $3 million in compensatory damages ($2 mill. for extrajudicial killing, $1mil. for CAH), plus $1 million in punitive. So far, plaintiffs have recovered $200,000. (Also worth interest — 1th Cir. cited to ICCPR in its decision. It also found Larios could be indirectly liable under either a theory of aiding and abetting or conspiracy.) (Further, defendant in case is noted to have made what is quite possibly the creepiest threat I have ever heard: “I will caress the little pigeons.”)
  8. Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006): “The three plaintiffs in this case are Salvadoran refugees who were allegedly tortured by military personnel in El Salvador during a campaign of human rights violations by the Salvadoran military from 1979 to 1983; the two defendants were leaders in the Salvadoran military. All of the plaintiffs sought compensatory and punitive damages under the Torture Victim Protection Act; two plaintiffs sought the same relief under the Alien Tort Claims Act. A jury awarded the plaintiffs a total of $54,600,000, and the court entered judgments accordingly. The defendants now appeal, contending that the statute of limitations bars the plaintiffs’ claims. We conclude, based on the doctrine of equitable tolling, that the claims are not time-barred.” Although the 11th Circuit reversed its decision initially, after finding the reversal was based on certain factual errors, the jury verdict was upheld in the entirety.
  9. Jean v. Dorelien, No. 03-20161 (S.D.Fla.) (verdict issued Feb. 23, 2007): $4.3 million verdict. ($580,000 recovered to date) (nearly $1mil recovered to date, out of Defendant’s lottery winnings?).
  10. Chavez v. Carranza, W.D. Tenn. No. 03-2932 M1/P (Nov. 18, 2005) (aff’d by 6th Cir., 17 Mar 2009): Jury verdict for $6 million against commander liable for crimes against humanity.
  11. M.C. v. Bianchi (consolidated cases) (E.D.PA 2011): Anthony Mark Bianchi was convicted of several federal felonies under 18 U.S.C. § 2423 for engaging in child sex trafficking/tourism. The plaintiffs in the consolidated cases were Moldovan minors, asserting claims against Bianchi under the ATS for sexual assault in violation of the law of nations. In March 2011, the district court dismissed Bianchi’s Motion to Dismiss the matter, and, at the time, I predicted that a reversal of the decision was inevitable. I underestimated, however, the defendant’s financial and practical interests in settling the cases (Bianchi was in jail, and was a millionaire who had assets that could be collected against). Shortly thereafter, Bianchi settled with the plaintiffs for $725,000.00. Also notable is the fact that the plaintiffs’ attorneys in the matter managed to turn international human rights abuses into a lucrative enterprise, collecting a comfortable 40% contingency fee out of the settlement proceeds.

B. Default Decisions Against Individual Defendants in ATS Cases 

  1. de Letelier v. Republic of Chile, 502 F.Supp. 259 (D.D.C. 1980). Tort claims brought as result of Chilean government’s bombing of diplomat’s car in Washington, DC. Default judgment against Chilean government. Court found that it had subject matter jurisdiction to hear the case “pursuant to 28 U.S.C. §§ 1330, 1331, 1332(a)(3), 1343(1)-(2), 1350,” treating ATS as an uncontroversial and additional jurisdictional grant. There was no discussion of the substantive basis of Plaintiffs’ claim for “tortious actions in violation of international law,” and the court appears to have simply assumed its existence as a federal common law cause of action, with jurisdiction provided via unspecified combination of FSIA, domestic tort law, and federal criminal statutes.
  2. Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). $10.4 million judgment, as yet unenforced, for torture by Paraguayan official.
  3. Martinez-Baca v. Suarez-Mason, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. 1988): Defendant initially contested, but default judgment ultimately awarded in the amount of $21 million. See also related cases, Forti v. Suarez, 694 F.Supp. 707 (N.D.Ca. 1988) ($4 million total damages, on torture, prolonged arbitrary detention, and disappearances, but not CIDT); de Rapaport, et al. v. Suarez-Mason, No. C87-2266-JPV (N.D.Cal. Apr. 11, 1989) ($30 million total damages)
  4. Todd v. Panjaitan, CIV.A. 92-12255-PBS, 1994 WL 827111 (D. Mass. 1994): Default judgment against Indonesian general, for summary execution of New Zealand national in East Timor. The descendant was in a crowd of people watching a funeral procession when troops fired, killing approximately 150-200 persons. General Panjaitan was the regional commander, and was transferred out of Indonesia after incident; he then relocated to the U.S., where he was sued. On default, descendant’s mother received: “(1) An award of compensatory damages to Helen Todd as administratrix of the estate of her son Kamal Bamadhaj for the conscious mental and physical pain and suffering of Kamal Bamadhaj in the amount of two million dollars ($2,000,000), plus interest. (2) An award of compensatory damages to plaintiff Helen Todd for her pain and suffering and loss of companionship of her son in the amount of two million dollars ($2,000,000), plus interest. (3) An award of punitive damages to plaintiff Helen Todd in the amount of ten million dollars ($10,000,000).”
  5. Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994): Default after defendant decline to participate. Defendant Avril, then the elected mayor of Port-au-Prince, Haiti, was found to have “personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule of September 1988 until March 1990. He also bears personal responsibility for the interrogation and torture of each of the plaintiffs in this case. All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of the authority granted by him. Many of the tormentors included members of the Presidential Guard and Avril’s personal security detail.” The court granted $41 million in compensatory and punitive damages to six Haitian victims of torture and false imprisonment.
  6. Xuncax v. Gramajo and Ortiz v. Gramajo*, 886 F. Supp. 162 (D. Ct. Mass. 1995): Suit by Kanjobol Indians against former Guatemalan Defense Minister, with Ortiz brought under the TVPA. Default judgment award, $47.5 million. Court sustained claims for torture, summary execution, disappearance, and arbitrary detention as obvious bases of jurisdiction, but called cruel, inhumane, and degrading treatment as a “closer question,” before ultimately accepting it.
  7. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995): Default decision on the merits — jury determined damage award of $745 million.
  8. Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996): Incitement to genocide, based on Rwanda. $103 million awarded.
  9. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002): Default decision on merits – $140 million. Plaintiffs were four Bosnian Muslims who were tortured by a Serb soldier in Bosnia-Herzegovina.
  10. Doe v. Saravia, 348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004): Case involved the 1980 assassination of Salvadoran Archbishop Oscar Romero (go watch the movie Romero!). ATS liability found for crimes against humanity and extrajudicial killing. Default judgment of $10 million judgment ($5 million compensatory, $5 million punitive). (Note of interest: trial court cited to ICTY cases, as well as to Rome Statute. Court cites credibility of Rome Statute by noting that “four of the five members of the Security Council” have signed it. But irrelevant that U.S. has not.)
  11. Doe v. Liu Qu (N.D. Cal. 2004): Declaratory relief granted.
  12. Reyes v. Grijalba (S.D. Fl. 2006): Case against former Honduran military intelligence chief Juan López Grijalba, on behalf of six torture survivors and families of the disappeared. Default judgment with $47 million in damages awarded.
  13. Doe v. Constant (S.D.N.Y. 2006): Defendant was a leader of a Haitian political police force used to “repress and terrorize” the civilian population. Damages at $4 million total compensatory, $15 million punitive. ($300,000 recovered so far). Point of interest: During a deposition, Constant stated, “I’m not a member of F.R.A.P.H. I’m a leader of F.R.A.P.H.” I am guessing that did not help his case. Also note that the charges in the ATS case were also relevant to his sentencing for a mortgage fraud conviction in People v. Constant, 842 N.Y.S.2d 255, (2007).
  14. Mwani v. Bin Ladin, 244 F.R.D. 20 (D.D.C. 2007): Plaintiff, 523 Kenyan citizens, brought an action under the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, for harm sustained as a result of a truck bomb exploding outside the United States Embassy in Kenya allegedly at the direction of defendants, a terrorist organization and its leader. The citizens filed a motion to set a date for ex parte proof and for entry of default judgment under Fed. R. Civ. P. 55 against defendants. Court later allowed for evidentiary hearing on damages, but found no right to jury trial on the issue.
  15. Lizarbe v. Hurtado, (S.D. Fla. 2008): Default judgment against Peruvian army officer for. Bench trial on damages resulted in award of $12 million dollars in compensatory damages and $25 million in punitive damages.
  16. Aguilar vImperial Nurseries (D.Conn. 2008): Human trafficking case. A default judgment was also reached against non-appearing defendants: “Plaintiff Alexander Aguilar is awarded $679,663.09; Plaintiff Carlos Aguilar is awarded $394,195.17; Plaintiff Leopoldo Santos Catu is awarded $660,000; Plaintiff Santos Chajchaguin is awarded $822,000; Plaintiff Marvin Coto is awarded $827,127.43; Plaintiff Esteban Epinoza is awarded $392,641.40; Plaintiff Walter Hernandez is awarded $824, 796.78; Plaintiff Angel Mendoza is awarded $823,864.52; Plaintiff Hugo Oreno is awarded $679,929.19; Plaintiff Carlos Pinto is awarded $391,553.77; Plaintiff Hector Rodas Lopez is awarded $392,019.90; and Plaintiff Luis Amilcar Rodriguez is awarded $823,234.01.”
  17. Kpadeh, et al. v. Emmanuel, 261 F.R.D. 687 (S.D. Fla. 2009): Damages awarded in February 2010. ATS case brought Chuckie Taylor — American citizen turned commander of the Liberian Anti-Terrorism Unit — for torture, CIDT, arbitrary arrest, and prolonged detention. Taylor defaulted, and liability was entered against him. Plaintiffs then moved “to certify as a class all persons whose human rights were violated by Mr. Taylor and the ATU forces working under his command.” Class certification was denied, but on a jury trial for damages, the five plaintiffs were awarded $22.4 million. As far as could be determined, enforcement of award has not resulted in any collection for plaintiffs.
  18. Yousuf v. Samantar (4th Cir. 2012): Ongoing litigation against Somali official for various human rights abuses. In 2010, case made an appearance before the Supreme Court, where Samantar was denied foreign official immunity. In February 2012, Samantar filed for bankruptcy, and then agreed to an entry of default judgment against him before the district court. Damages were set at $21 million. In November 2012, the Fourth Circuit once again denied Samantar’s claim of immunity.

C. Successful ATS Claims Against A Corporation

  1. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D.Fla. 2008): (Bench) Defendant did make an appearance but refused to defend. Plaintiffs were awarded $80 million in damages total. “The Defendant in this case, one of the largest drydock companies in the Western Hemisphere, with tens of millions if not hundreds of millions of dollars in annual revenues, conspired with the Republic of Cuba to force Cuban citizens to travel to facilities the Defendant owns in Curacao, to hold them in captivity there, and to force them to work repairing ships and oil platforms.” The court also found that an ATS claim was sustainable as, “Forced labor constitutes a violation of a well-established, universally-recognized norm of international law. It is widely recognized as one of the handful of serious claims for which the ATS provides jurisdiction in U.S. district courts regardless of where it occurred. It is a brutal offense condemned by the civilized world. This Court is compelled to act strongly to punish and deter it.” In January 2010, Plaintiffs moved to commence proceedings supplementary to implead the Governments of Island Territory of Curaçao and the Government of the Netherlands Antilles and add them as Judgment Debtors, but motion was denied. See Licea v. Curacao Drydock Co., Inc., 06-22128-CIV, 2011 WL 2118716 (S.D.Fla. 2011). The plaintiffs are now trying to collect the judgment from the corporate defendants, by, in part, garnishing the Church of Scientology.
  2. Chowdhury v. Worldtel Bangladesh Holding, Ltd., et al., 588 F. Supp.2d 375 (E.D.N.Y. 2008) (Aug. 2009): (Jury) Plaintiff brought suit for torture that was motivated by desire to have plaintiff give up control of his company; Defendant hired Bangladeshi police unit to carry out the torture. Verdict after jury trial for $1.5 million in compensatory damages against both corporate and individual defendant, and $250,000 in punitive damages against individual defendant alone. Jury did not find that punitives were warranted against the corporate defendant. Notice of appeal was filed by defendants, but does not appear to have been acted on — presumably, payment of the judgment was made and the matter is done with, but need confirmation on this point. [Edit: After Kiobel, the Second Circuit, on appeal, reversed the plaintiff’s verdict, finding that the ATS did not confer jurisdiction.]

D. Ongoing Claims (Very Partial List)

  1. Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834, 838 (4th Cir. 2010): Case currently stayed. Claims arise out of defendant’s participation in the Peruvian “Accomarca Massacre.” Fourth Circuit affirmed the district court’s denial of immunity to Rondon under the FSIA. As of October 2012, another six month stay was entered, due to Peruvian criminal proceedings against the Defendant that are ongoing.
  2. Ahmed v. Magan, No. 2:10-cv-342 (S.D. Ohio): Ongoing claims against Somali official that now resides in Ohio. U.S. has filed statement of interest in the matter, recommending that the U.S. exercise jurisdiction over him, and recognizing “(1) that Magan is a former official of a state with no currently recognized government to request immunity on his behalf, including by expressing a position on whether the acts in question were taken in an official capacity, and (2) the Executive’s assessment that it is appropriate in the circumstances here to give effect to the proposition that U.S. residents like Magan who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts.” (Statement of Interest of the United States of America.) Although Defendant initially participated in litigation, he went AWOL midway through proceedings, and in November 2012 the court granted plaintiff’s unopposed motion for partial summary judgment. A hearing on damages has been set for May 2013.

E. Plaintiffs Receiving Out of Court Settlements for ATS Claims Against Corporations or State Actors

  1. Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992). Settled Sept. 13, 1996, in the Central District Court of California. Siderman had a complicated procedural path, most of it focusing on FSIA jurisdiction and not ATS jurisdiction, but it started off as a default judgment for a claim brought under the ATS. Eventually, after winding its way up to and then being bounced back from the 9th Circuit, Argentina settled the case with the plaintiff. This was the first time in a U.S. case that a foreign state had settled for claims of human rights violations. The settlement terms were confidential, but sources place the total at around $6 million.
  2. Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078 (S.D.Fla. 1997). American corporation and its employee brought action against Bolivian distributor and distributor’s officer, alleging that employee was wrongfully imprisoned in Bolivia. Claim survived dismissal: “With deep reservations, the Court holds that Carballo has stated a claim under the ATCA. As egregious as Casa Kavlin’s conduct may be if plaintiff’s allegations stand true, it pales in comparison to the usual fare under the ATCA-hideous torture, gang rape, genocidal murder, and the like. Nonetheless, the Court finds that the law of nations does prohibit the state to use its coercive power to detain an individual in inhumane conditions for a substantial period of time solely for the purpose of extorting from him a favorable economic settlement. The Court also finds that the Alien Tort Claims Act makes responsible anyone who conspires with state actors to achieve such an unlawful arbitrary detention. Accordingly, defendants’ motion will be denied on this ground.” Afterward, the parties settled.
  3. Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J. 1998). Court granted motion to dismiss of ATS claims against INS, but denied motion to dismiss against INS agents in their personal capacity. Later, United States settled some of the claims including ATS claims. The settlement agreement provided: “In this Settlement Agreement, plaintiffs and the government defendants settle any and all claims filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997, in Jama, et al. v. INS, et al., Civ. No. 97-3093 (DRD) (D.N.J.) (the “lawsuit”), alleging, inter alia, tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA).” No word on how much the settlement was for.
  4. Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001): Undisclosed sum, various sources cite “millions.”
  5. Doe v. Reddy, et al, C 02-05570 WHA, 2003 WL 23893010 (N.D. Cal. Aug. 4, 2003): Claims brought by Indian women trafficked into the U.S. for forced labor and debt bondage. All claims other than ATS claims dismissed. The primary wrongdoer was Lakireddy Bali Reddy, who personally was involved in the abuse and slave trafficking, but his involved family members and associated network of corporations were also defendants. Claims were eventually settled for approximately $11 million.
  6. Doe I v. The Gap, Inc., No. CV-01-0031, 2001 WL 1842389, at *1 (D. N. Mar. I. Nov. 26, 2001); Does I v. The Gap, Inc., No. CV-01-0031, 2002 WL 1000068, at *1 (D. N. Mar. I. May 10, 2002): Claims brought arising from allegations of sweatshop abuse in Saipan, including claims under ATS. “The case settled in two “pacts,” with nineteen defendants (“Group I”) participating in the settlement that was preliminarily approved on May 10, 2002,112 and the remaining seven retailers and twenty-three manufacturers (“Group II”) announcing an agreement on September 26, 2002…. The settlements for Group I and Group II both contain the same basic stipulations regarding monetary payments and injunctive relief. A twenty-million dollar settlement fund from Groups I and II is designated to pay back wages for workers (as compensation for “volunteer work”) and to establish and administer a monitoring agreement.” Smith, Erin Geiger, Case Study: Does I v. the Gap, Inc.: Can A Sweatshop Suit Settlement Save Saipan?, 23 Rev. Litig. 737, 752-53 (2004). However, it is worth noting that the Court didn’t believe this to be a ‘win’ for the plaintiffs: “The court finds that there was minimal success in the outcome of this litigation as originally contemplated by the plaintiffs. The defendants settled without admitting any liability or fault1 and the plaintiffs received only 2% or less of what they originally stated they were seeking.” Does I v. The Gap, Inc., CV-01-0031, 2003 WL 22997250 (D. N. Mar. I. Sept. 11, 2003). Still, in all, “Plaintiffs [we]re awarded attorneys’ fees of $3,150,000.00 and expenses in the amount of $4,687,651.97.”
  7. Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000): Holocaust litigation asserting ATS claims, eventually settled. “The putative class of Benisti plaintiffs is composed completely of aliens suing for torts in violation of international law, including allegedly aiding and abetting the Vichy and Nazi regimes to plunder plaintiffs’ private property, depriving members of the Jewish community in France the means to finance their escape, facilitating Nazi genocide, and other claims. Such deeds were allegedly achieved by methods including blocking and confiscating the deposit accounts and the safety deposit boxes of the members of the putative class in advance of any official compulsion to do so, requiring depositors to fill out detailed, anti-semitic, geneological questionnaires, and distributing a circular of the French Banking Association detailing a common plan to seize Jewish assets. Plaintiffs refer to United Nations resolutions and the work of the Nuremberg tribunals as further evidence of the content of customary international law and the Court finds that such analogies have merit.”
  8. Wang Xiaoning vs. Yahoo!: Undisclosed, but did cover Plaintiff’s legal fees.
  9. Wiwa v. Shell, 2009 U.S. App. LEXIS 11873 (2d Cir.) (June 3, 2009): $15.5 million settlement.
  10. Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (N.D. Ill., Jan. 15, 2008): “Based on discussions with the parties, it appears that the settlement in the case, the amount of which is evidently confidential, is being funded by the government of Nigeria, which is not a party to the lawsuit. It further appears that the government of Nigeria is the driving force behind the request to vacate the June 27, 2006 decision. The parties have adopted the request because it appears to be important, and perhaps necessary, to finalize the settlement.”
  11. Aguilar vImperial Nurseries (D.Conn. 2008): Human trafficking case. Default judgment entered against non-appearing defendants; confidential settlement reached with defendants Imperial Nurseries, Griffin Land & Nurseries, Gregory M. Schaan, Jim Wells, Frederick M. Danziger, and Anthony J. Galici.
  12. Mainawal Rahman Building & Construction Co., Ltd. et al v. Dyncorp International, LLC (E.D.Va. 2009): Claims brought against defense contractor for torts in Afghanistan. Settlement occurred on unknown terms.
  13. Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009): Following the 2d Circuit’s decision in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), the Pfizer plaintiffs accepted a settlement in February 2011. Terms of the settlement are confidential, but “Pfizer spokesman Christopher Loder said the trust fund can pay a maximum of $175,000 per child to those able to prove death or permanent disability due to the 1996 trial of Trovan.” It seems like the payments will be made out of a $35 million trust fund established under a previous settlement with the Nigerian state of Kano.
  14. In re XE Services Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009): Five consolidated cases. Plaintiffs were 45 Iraqi citizens and the estates of 19 deceased Iraqi citizens. Defendants were 11 corporations providing contract military services — a group of companies more that were more commonly known as Blackwater — along with two individuals, including Erik Prince, who owned and operated the companies. Settlement with the other individual defendant, a Blackwater employee, was reached first. Subsequently, following dismissal of parallel criminal charges, Xe settled the claims. Terms of the settlement were not disclosed, but from reports, it appears that plaintiffs averaged between $20,000 and $30,000 for claims for injuries, and $100,000 for the deceased plaintiffs. Many of the plaintiffs appear to be dissatisfied with the result; Blackwater, on the other hand, was reportedly “pleased” with the outcome.
  15. Shiguago et al. v. Occidental Petroleum Co. (C.D. Cal. 2010): Possible settlement. Case was dismissed with prejudice by stipulation; it appears that it could have been pursuant to a confidential settlement, but unconfirmed.
  16. Estate of Marani Manook v. Unity Resources Group (4th Cir. 2011): Suit by family of Iraqi woman against an Australian defense contractor. Marani Manook and another woman were shot by defendant’s contractors while the women were driving down a Baghdad street; claims were brought for war crimes and for the aiding and abetting of war crimes under the ATS, as well as for several additional domestic tortious causes of action. Plaintiff’s estate received a confidential out of court settlement.
  17. Al-Quraishi et al v. Nakhla et al. (4th Cir. 2012): ATS suit brought against L-3 Services, Inc., f/k/a Titan Corporatioan, for claims arising out of torture and CID treatment at Abu Ghraib. Confidential settlement reached in October 2012.

F. Defeated ATS claims after jury trial

  1. Ford v. Garcia*, aff’d in 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147, (2003): Jury trial held October, 2000, verdict to Defendants due to apparent constraints in jury instructions. (TVPA). First jury verdict in a contested trial under the TVPA only.
  2. Romero v. Drummond Co., 552 F.3d 1303, 2008 U.S. App. LEXIS 25861 (11th Cir. Ala., 2008): Verdict given July, 2007, finding Drummond not liable for deaths of the three union representatives.
  3. Bowoto v. Chevron, 621 F. 3d 1116 (9th Cir. 2010): In December 2008, a jury unanimously found for Chevron. Chevron then, somewhat ridiculously, requested attorney’s fees, which the court denied, noting allowing the Defendant to recover fees would have a “chilling effect” on future human rights litigation. The court was not particularly impressed with the request that Nigerian villagers should pay a billionaire corporation for its attorneys fees, as seen from the following discussion:

    Defendants argue that plaintiffs have not provided sufficient evidence to establish that plaintiffs are indigent. According to defendants, plaintiffs should also have provided the court with evidence of their assets. Defendants’ objection is not well taken. It can reasonably be assumed that plaintiffs do not earn pensions or accrue other significant assets through their work as, for instance, fish sellers in a Nigerian village. Defendants also argue that, because of the low cost of living in Nigeria, plaintiffs’ incomes “place them well above the average.” [FN2: Defendants cite a World Bank resource that lists the gross national product of Nigeria as amounting to $ 930 per capita in 2007]. While the Court accepts that the cost of living is lower in Nigeria than in the United States, defendants’ bill of costs seeks reimbursement for witness per diems, service of subpoenas, court reporters, videotaping, transcription, and photocopying in this county. The lower cost of living — and correspondingly lower incomes — in Nigeria would therefore suggest that plaintiffs are less able, not more able, to pay these fees, which are calculated according to U.S. standards. The Court finds that the declarations filed in conjunction with the instant motion, as well as evidence at trial about the abject poverty of villagers in Nigeria’s Ondo State, is sufficient to establish that plaintiffs are indigent. Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 38174 (N.D. Cal. 2009).

  4. Hawa Abdi Jama v. Esmor Corr. Servs., 2009 U.S. App. LEXIS 17950 (3d Cir. 2009): Jury trial, jury found for Defendants on ATS claims. Decision reached on 11/07, trial ct. docket No. 2:97-cv-03093.

Updated, December 18 2010: Added a compilation of defendant victories under the ATS, for ATS cases from 1789-1990.

Updated, March 2013: Updates added on a few recent pending ATS matters that have now concluded.

-Susan

Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute

Continuing with the discussion from a previous post, there are currently a number of companies, many of them based in the UK, selling fraudulent bomb and narcotic testing devices to nations such as Iraq, Mexico, and Thailand. These “bomb detectors” are worthless, although the governments who purchase them believe they can do all sorts of miraculous feats, based upon the manufacturers’ claims. As a result of the sniffer devices’ failure to detect the presence of bombs, and the subsequent failure of authorities to identify and prevent the detonation of car bombs and other explosive devices, documented human deaths have resulted.

Potentially, then, fraudulent sniffers such as the ADE651 and the GT200 provide the basis for a civil claim in U.S. courts against the devices’ manufacturers, based upon the Alien Tort Statute (ATS).

Under Sosa v. Alvarez-Machain, the ATS provides a jurisdictional basis for causes of action that are “specific, universal, and obligatory.” This means, roughly, violations of international law such as torture, genocide, slavery, crimes against humanity, and other acts of a similar level of “badness” can be targeted (“subject to vigilant gatekeeping,” etc.).

While fraud on its own, with only commercial damages, clearly won’t qualify as the sort of international norm violation that creates ATS jurisdiction, fraud on the scale of the GT200 or ADE651 that leads, directly or indirectly, to human deaths is more in line with previous international law violations that U.S. courts have recognized as valid ATS causes of action. But showing that the sale of fraudulent bomb detectors is a tort in violation of international law isn’t the only obstacle — any would-be ATS plaintiff would also have to contend with the fact that Global Technical and other producers of the dowsing rods are private corporations run by private individuals. Although corporate liability under the ATS been the subject of intense scrutiny over the past few years, and gallons of academic ink have been spilled in debating the validity of corporate responsibility for human rights violations, almost all previous ATS cases have been based upon some sort of joint venture theory, alleging that a corporation bears secondary liability as a result of the corporation’s joint action with or aiding and abetting of a state actor.

Although ATS jurisprudence is currently in the midst of Circuit disarray, if the Supreme Court accepts the cert petition pending before them for Pfizer v. Abdullahi, we should get a much better idea on how the issues in a hypothetical ADE651 case would play out.

The two major legal hurdles in Pfizer v. Abdullahi would be similar to the two predominant issues in an ADE651 case, although the facts between the two differ significantly. First, did the companies that produced the dowsing rods violate an international norm capable of violation by a private party, or, if not, did they act sufficiently in concert with foreign states so as to be considered a “state actor”? Second, is the selling of fraudulent and potentially deadly ‘bomb detectors’ a violation of international law which is actionable under the Alien Tort Statute?

Can selling fraudulent bomb detectors result in private actor liability?

Starting with Kadic, ATS suits against a private actor must show either (1) the tort does not require state action to be a violation of international law, or (2) if state action is required, whether the private actor can be hooked for joint action or aiding and abetting with a state actor. From Unocal, the best precedent we have to date, we have a rough guide that although most violations of international law can only be conducted by states and not individuals, certain “egregious” acts are a violation of CIL even if conducted by a private party. Such acts include slavery, genocide, and war crimes, or, to a limited extent, other bad acts (like rape) that are committed in furtherance of the primary egregious crimes, like genocide.

Whether or not international law violations by private actors will always be limited to that category is uncertain; at any rate, not-completely-ludicrous arguments could be made that the act of knowingly procuring dangerous military equipment for foreign states that results in needless civilian deaths is a violation of international law even absent state complicity.

Even if the above can’t be shown, a joint act or aiding and abetting theory of liability would still be a possible option. From the facts know, there does appear to be substantial evidence that state governments have been acting in concert with dowsing rod suppliers to carry out the scheme. From the original article,

Aqeel al-Turaihi, the inspector general for the Ministry of the Interior, reported that the ministry bought 800 of the devices from a company called ATSC (UK) Ltd. for $32 million in 2008, and an unspecified larger quantity for $53 million. Mr. Turaihi said Iraqi officials paid up to $60,000 apiece, when the wands could be purchased for as little as $18,500. He said he had begun an investigation into the no-bid contracts with ATSC.

Essentially, there is a conspiracy going on here between ATSC, Ltd. and the Iraqi government to sell useless plastic objects at a grossly inflated price. From here, it isn’t too far a leap to reach the conclusion that ATSC knowingly sold dangerously defunct equipment to corrupt government officials, therefore placing civilians in imminent danger due to their faulty belief that they will be able to know when explosives are present.

Recently in The Presbyterian Church of Sudan v. Talisman Energy, Inc., the Second Circuit announced that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” In contrast to most other ATS cases, showing that an ADE651 defendant possessed the requisite mental state will not be a particularly tricky proposition. I think it’s a more than fair assumption that ATSC and Global Techniques’ owners know damned well that the products they are selling are worthless snake oil, and that it wouldn’t be all that difficult to convince a jury of that fact.

Granted, dowsing rod producers could argue that their “purpose” was simply to sell a product, not commit human rights violations. The Talisman case was dismissed “because plaintiffs presented no evidence that the company acted with the purpose of harming civilians.” However, this is not the case of a corporation engaging in a legitimate business in a region where its partners conduct human rights abuses as a means of carrying out that business enterprise. As with the Zyklon B Case , you can’t argue you aren’t guilty of genocide because you “only intended to sell lice-remover,” when you know damned well your customers ain’t concerned with delousing.

A bigger concern would be that it appears the governments that are buying ADE651 sensors genuinely believe the devices work as advertised. Therefore, the States do not have the necessary intent of purposefully or knowingly endangering their population. So in essence, ATSC is only assisting governments to engage in corrupt acts — they are not aiding and abetting a state’s intentional endangerment of its citizens. At the very least, that would rule out Conspiracy liability, which requires furtherance of a “joint purpose.” However, although it’d take a lot more space to discuss the issue than I have here, I’m going to assume for now that courts are not going to accept the “it’s not a violation of international law because we were tricking states into killing their own citizens” defense. (And anyway, if the Court takes cert on Pfizer, we’ll shortly have an authoritative answer on the question of whether there can be corporate liability when there’s only cursory state involvement.)

Was there a violation of a norm of international law with the requisite specific, universal and obligatory character?

I’ve been jumping the gun a bit by asking whether or not ATSC or Global Techniques can be held up on a theory of primary or secondary liability. That’s all meaningless until it’s also shown that the tort they are alleged to have committed is also a violation of a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features” of such founding-era international crimes of piracy and beating up diplomats for sport.

Courts have held that the specificity and ease of definition of the international norm alleged to be violated are the “meat and potatoes” of ATS claims. Courts don’t really like plaintiffs with harebrained theories alleging that a corporation’s random activities violated a nebulous “right to health” or “right to not have their environment destroyed,” or other similar claims.

In Pfizer, the tort that plaintiffs alleged was committed in violation of international law is “the norm against nonconsensual medical experimentation.” Thanks to Nuremberg and the general legacy of the Holocaust, for the Pfizer plaintiffs, it will be slightly easier to prove that international law prohibits experimenting upon humans without their consent, and possibly that this norm is so firmly entrenched as to be capable of violation by private actors alone. Throw around the word “Mengele” a few times, and heck, you might even cause Scalia to at least pause for a couple seconds before he goes ahead and rejects the claim.

In contrast, there is not really any similar international condemnation of “selling bomb detecting devices that don’t work.” So the norm used as the basis of the tort will necessarily be of a more generalized character, based either in humanitarian or human rights law. Although humanitarian law might offer some possibilities, at least in Iraq or for other cases where the dowsing rods are bought for use in quasi-combat zones, that would still be pretty tricky to pull off. Though not completely analogous, the problems of applying war crimes to private military contractors shows the sort of international legal morass that results in. Or, if you wanted to get even more creative, you might borrow provisions from the Rome Statute, such as Art. 8(2)(b)(xx), which prohibits “employing… materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.” Selling and using phony bomb detectors is, if you squint at it funny, employing materials that cause unnecessary suffering to civilians who are killed or maimed in resulting bomb blasts.

As for human rights violations, they are probably just as unsatisfactory. Although a “right to security” appears in seven international and regional human rights treaties, such as Art. 9(1) of the ICCPR, these norms are “universal but not obligatory,” and thus do not provide a firm enough basis for ATS claims.

Still, many ATS claims have been brought alleging violations of international norms far stranger than the ADE651 hypo. Like the suit against UAE officials for abuses of underage camel jockeys, Mother Doe ex rel. R.M. v. Al Maktoum, (S.D. Fla., July 30, 2007)(and no, “underage camel jockeys” is NOT a euphemism), and claims against companies selling bulldozers that were used to mow down Palestinian buildings, Corrie v. Caterpillar, Inc., (9th Cir. 2007). So it wouldn’t be the most objectionable ATS claim ever brought, at least, and if Pfizer does go before the Supreme Court, and an expansive opinion is returned (highly unlikely), then there would be plenty of wiggle room available for an ADE651 case to be brought forward. However, as things currently stand, the odds of such an ATS suit succeeding are not particularly good.

-Susan

The ADE651 Bomb Detector Fraud and the Potential for an Alien Tort Statute Claim

This article in the New York Times,* on the worthless bomb-detective divining rods currently being used by Iraqi forces to deter terrorists, might provide the basis for an extremely interesting lawsuit under the alien tort statute. Assuming you could get personal jurisdiction, and ignoring the fact that practically speaking there are much better alternatives out there, could an alien suffering some kind of legal injury bring suit in the U.S. against the manufacturer of the device?

The bomb-sniffing rod at issue in the NYT article is the “ADE651® device,” produced by ATSC, Ltd., a UK company. The device is essentially a divining rod or ouija board; it has no external power source, no apparent means of explosives detection, and is only operable by those who have been “carefully trained” in its use. Oh, and Iraq has apparently spent $85 million on them.

The Lebanon distributor of the ADE651, Prosec, provides this handy picture of the device, along with the accompanying description:

“The range of detection is around 50 meters with obstacles and up to 600 meters in outdoor areas, the unit can also detect explosives submerged in water or buried underground. Detection from a hovering helicopter is also possible.”

The Prosec spokesperson then added, “It can also receive free cable, make perfectly popped popcorn every time, and roast a 9 lb. turkey in under an hour.”ade651 snakeoil

The principle behind ADE651’s ability to detect explosives has been variously described as “electrochemical (Thermo-Redox) detection,” “nuclear quadrupole resonance,” “electrostatic ion attraction,” or, as Jim McCormick, the owner of ATSC, explained it, “The principal is Electrostatics. It is more akin to Coulomb’s Law than Gauss’.”

Now, where would the Alien Tort Statute (ATS) claim lie in all of this? Clearly in a purely US-domestic matter this would be grounds for a pretty heavy fraud action, but the ATS is not an open ended jurisdictional grant. It provides only 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.”

So in the hypothetical of a case brought by an Iraqi against ATSC, Ltd., the “by an alien” requirement is clearly met, as is the “for a tort only” requirement, as fraud can be the basis of a tort claim. However, given current ATS jurisprudence, fraud is not the kind of tort that is “committed in violation of the law of nations or a treaty of the United States.”

So rather than the ADE651, a better test case would be provided by the GT-200, which is by produced by Global Technical, a UK corporation. (Global Technical, by the way, alleges on its website to be a “United Nations Registered Supplier.” Anyone out there know what the hell this means? I’m assuming it’s fraudulently made up by Global Technical, in which case the UN needs to do something about it now.) The GT-200 is a dowsing rod device much like the ADE651. It needs no external power source and runs off of the “electro-static electricity” created by the human holding it.

The FAQ of the product contains the following gems:

Q: Can GT200 detect all types of narcotics and explosives?
A: Yes.

Q: Is there anything that can stop or block the GT200 from detecting substances?
A: To date, we have not found anything that will totally block or stop the substance signal being detected.

Q: What is the maximum distance that the GT200 can detect?
A: The detection distance for general search is up to 700 meters. It can detect substances in water (fresh or salt) up to a depth of 850 meter. In the case of buried substance it can detect up to 60 meter deep. For aerial reconnaissance, the distance extends to 4 kilometers.

While fraud is clearly at work with the GT-200, there’s something else important about it as well: the deaths of three policeman in Thailand have been attributed to the ‘malfunction’ of a GT-200:

As for an explosive-detection device, called the GT-200, that malfunctioned in detecting bombs and preventing an attack, the police chief said he would discuss with technicians, but needed more information before commenting.

A fourth death caused by the device occurred last month, also in Thailand:

Recently, the GT200 showed false negative results on 6 October 2009 at a bombing near Merlin Hotel, Sungai-Kolok district, Narathiwat province which caused one death and several injuries, as well as on 19 October 2009 during a bombing at the Pimonchai market, Muang district, Yala. During these two incidents, officials were called beforehand to check a car and motorcycle under suspicion. The device was not able to detect any dangerous substances. The bombs exploded a few minutes after the examinations.

Unlike the hypothetical case alleging mere commercial fraud, if the GT-200 can be attributed to human deaths, whether in the course of war or in police actions, the jurisdictional basis for a claim under the alien tort statute just got a whole lot stronger.

Next up: Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute.

Update: Jim McCormick, chief director of the company that makes the ADE651, has finally been arrested.

-Susan

*This is completely unrelated to anything above, but while writing this post I was amused to find that the author of the NYT piece apparently did some of his own research on web message boards, as you can see from his post here, asking one of the forum contributors (“DubiousDick”) to contact him. Isn’t contacting random internet commenters for a story something blogs do, rather than major national newspapers?