Though the Supreme Court’s April 17, 2013 decision in Kiobel v. Royal Dutch Petroleum, 2013 WL 1628935, is just three weeks old (for a full discussion of the case, see here), the judicial universe has already applied it to cases brought under the Alien Tort Statute (“ATS”).
In fact, just two days after the Supreme Court decided Kiobel, the Southern District of Texas dismissed a case brought under the ATS, the Torture Victim Protection Act (“TVPA”), and other legal theories, that involved alleged actions taken by the Honduran army. Murillo v. Bain, 2013 WL 1718915 (S.D. Tex. Apr. 19, 2013). In holding that “American Laws like the [ATS and TVPA] are presumed not [to] apply beyond the borders of the United States,” the District Court naturally cited to Kiobel.
In other district courts, litigants are avidly briefing the issue of Kiobel’s application. In one such case in the District of Massachusetts, the plaintiff, who resides in the Republic of Moldova, brought suit against the defendant, a United States resident, under the ATS and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Prostitution, and Child Pornography of the United Nations General Assembly. V.D. v. Nikolayev (No. 10673). On May 1, 2013, the defendant filed a motion to dismiss, based almost entirely on the premise that, per the Supreme Court’s decision in Kiobel, the District Court lacks jurisdiction under the ATS.
Indeed, the Supreme Court itself has addressed the impact of Kiobel in two cases. In the first—Rio Tinto PLC, et al. v. Sarei, et al. (No. 11-649), also a corporate ATS case—the Supreme Court on April 22, 2013, granted the petition, vacated the judgment, and remanded the case to the Ninth Circuit for further consideration in light of Kiobel. In the second, also decided on April 22, 2013, the Supreme Court granted certiorari in yet another corporate ATS case involving claims brought by Argentinian residents against a German Corporation for alleged human rights abuses by the corporation’s Argentinian subsidiary. DaimlerChrysler Corp. v. Bauman (No. 11-965). The Supreme Court granted certiorari to decide whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state. Interestingly, the case could allow the Supreme Court to further clarify one of the key issues it left open in Kiobel—that is, the exact extent to which claims brought under the ATS must “touch and concern” the United States in order to displace the presumption against extraterritoriality.
We will continue to keep an eye on these cases, as well as any future cases further clarifying the new reach of the ATS after Kiobel.