U.S. Supreme Court Takes Up Issue of Corporate Liability for Human Rights Violations

On October 17, 2011, the U.S. Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). and Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S. L.W. 3059 (U.S. Oct. 17, 2011)(No. 11-88). The cases are to be argued in tandem.



Kiobel v. Royal Dutch Petroleum presents two questions. No. 10-1491. First, "[w]hether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time." No. 10-1491. Second, "[w]hether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held." No. 10-1491.

Mohamad v. Rajoub presents the question of "[w]hether the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons." No. 11-88.

Update: Ninth Circuit Decision Adds to Circuit Split
"In Sarei v. Rio Tinto, PLC, decided on Oct. 25, 2011, the Ninth Circuit held that "a violation of a sufficiently established international norm" could give rise to a cause of action for corporate liability under the Alien Tort Statute. Rio Tinto V, slip op. at 19341, __ F.3d at *7." Rachel Anderson, Corporate Liability Under the ATCA: Rio Tinto Revisited, Oct. 26, 2011. As is noted in the opinion itself, "this holding puts [the Ninth Circuit majority] at odds with the Second Circuit majority in Kiobel." Rio Tinto V, slip op. at 19363, __ F.3d at *20 (citing 621 F.3d at 120). For more information about the circuit split go to Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011. The Ninth Circuit decision adds on to the list of circuits (Fifth, Seventh, Eleventh, and District of Columbia) that have upheld corporate liability under the Alien Tort Statute.

Note: With the goal of making this information accessible to both the public and the legal community, this post cites to the slip opinion, which is publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf, and the Westlaw cite for this case.