The U.S. Supreme Court on Monday ordered reargument in a major challenge involving lawsuits against corporations for human rights violations under the Alien Tort Statute.
Kiobel v. Royal Dutch Petroleum originally asked the justices whether corporations could be sued under the 1798 federal law. That question was argued on Feb. 28. In Monday’s order, the justices directed the parties to file supplemental briefs on whether the statute allows federal courts to hear lawsuits alleging international law violations that occur outside of the territory of the United States.
The Alien Tort Statute (ATS) authorizes federal district courts to hear civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States.
The extraterritoriality issue was not considered by the U.S. Court of Appeals for the 2nd Circuit in the Kiobel case. The federal appellate court held that corporations could not be sued under the statute.
But the extraterritoriality question did figure prominently in questions during the Supreme Court arguments, questions primarily by justices Anthony Kennedy and Samuel Alito Jr. Noting the foreign plaintiffs, the foreign defendants and the foreign conduct in Kiobel, Alito asked, “What business does a case like that have in the courts of the United States?”
“It’s clear [the justices] had concerns about the extraterritorial application of the ATS, but it was also clear everyone seemed to think it wasn’t briefed,” said human rights scholar John Knox of Wake Forest School of Law. “It’s not surprising they would ask for additional briefing if they decided to focus on that issue. It is a little surprising only in that you would expect them to pass on the issue that was before them, which is a pretty important issue: whether corporations are subject at all.”
The stakes for human rights groups and litigators are “pretty high” regardless of which question the justices answer, he added.
“If Kiobel as briefed was decided in favor of the 2nd Circuit, that would have massive ramifications in that you could never bring an action against a corporation,” Knox explained. “If they say the ATS doesn’t apply at all to actions taking place under the jurisdiction of another government, that obviously would have ramifications for all kinds of cases, not just against corporations but even individuals who clearly would be covered under existing ATS jurisprudence, individuals accused of committing war crimes or genocide. It would cast doubt on fundamental precedents of the ATS.”
The Court’s order sets out a briefing schedule for the parties that runs to June 29. The Kiobel plaintiffs—12 Nigerians—are represented by Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman and Harrison in Venice, Calif. Royal Dutch Petroleum and two other oil companies are represented by Kathleen Sullivan of New York’s Quinn Emanuel Urquhart & Sullivan.