Rather than decide the weighty issues of law that were before it, the U.S. Court of Appeals for the Ninth Circuit recently sidestepped an important opportunity to clarify the territorial scope of the 1789 Alien Tort Statute (ATS). Instead, the court suggested that parties engaged in a ten-year-old lawsuit over a copper mining company’s role in inciting a civil war in Papua New Guinea attempt to mediate their dispute. We’re all for mediation as a way of settling disputes out of court, but the Ninth Circuit should have followed the fine example of the Second Circuit in ruling that corporations are immune from liability under the ATS.
Further, Congress has given no indication that the ATS should apply to violations that occur outside the United States. In the absence of any such indication, it is inappropriate for federal courts to allow such suits to go forward. An overly expansive interpretation of the ATS threatens to undermine America’s foreign and domestic policy interests. Continue reading
Buried on page 72 of the Supreme Court’s 108-page orders list today was a denial of certiorari in cross-petitions by both parties involved in a U.S. Court of Appeals for the Second Circuit decision involving the Alien Tort Statute (ATS), Presbyterian Church of Sudan v. Talisman Energy, Inc. The plaintiffs were unsuccessful in both the trial and appellate courts, and had asked the Court to hear their appeal. Talisman Energy cross-petitioned, asking the Court if it did decide to grant the Sudanese group’s petition to focus on the issue of whether corporations can be sued under the ATS. For more on Talisman Energy, read WLF’s amicus brief in the Second Circuit or a WLF Legal Backgrounder by Johnathan C. Drimmer.
Interestingly, the Court’s decision to decline review in Talisman Energy comes soon after another ATS decision by the Second Circuit on the very issue Talisman Energy asked the Court to grant cert: whether corporations can be haled into court by ATS-wielding plaintiffs. In Kiobel v. Royal Dutch Petroleum, a Second Circuit panel unanimously held on September 17 that the ATS does not provide plaintiffs subject matter jurisdiction over corporate entities. Konrad Cailteux and Jeremy Grabill analyzed the Kiobel ruling in a Guest Commentary for The Legal Pulse. Granted, the decision is only binding in the Second Circuit, but because a great deal of ATS law has emanated from that circuit, Kiobel will be seen as very persuasive in other circuits.