Contributed by Keith Gibson
Several months ago, we discussed an argument in Bowoto v. Chevron Corp. in the Ninth Circuit, where Nigerian plaintiffs injured in a clash with government forces sought to obtain a new trial following a jury verdict for Chevron Corp. in one of the numerous pending corporate Alien Tort Statute (ATS) cases. The primary issue argued on appeal was whether District Judge Susan Illiston erred by placing the burden on the plaintiffs to show that the government forces acted improperly in responding to a protest on one of Chevron’s oil platforms off the Nigerian coast. The plaintiffs also argued that the district court erred in ruling that their ATS claims were preempted by the federal Death on the High Seas Act (DOHSA), and that the Torture Victim Protection Act (TVPA) does not apply to corporations. On September 10, 2010, the Ninth Circuit affirmed the district court’s decision and denied the plaintiffs’ request for a new trial.
Perhaps the most significant outcome from this case is unrelated to the ATS, but rather the Ninth Circuit’s holding with respect to the TVPA. It is common for plaintiffs in corporate ATS cases to include claims brought under the TVPA. However, the Ninth Circuit held that corporations cannot be held liable under the TVPA because the statute imposes liability on “individuals” and therefore, “does not permit corporate liability under any theory.” The Ninth Circuit did not reach the issue of whether the TVPA supported theories of secondary liability such as “aiding and abetting.” While the limitation placed on the TVPA by the Ninth Circuit does not apply to ATS claims, it gives corporate defendants a weapon to prevent cases from staying alive where the ATS claims are dismissed on other grounds.
As we reported in June, the focus of the oral argument before the Ninth Circuit centered around where the burden of proof should lie in situations such as the one presented by this case. The Ninth Circuit held that the district court was correct in placing the burden on the plaintiffs to show that the government forces acted unreasonably rather than forcing the defendants to establish that reasonable force was used to quell the protests. While this case focused on Nigerian and California law, given that the elements of the tort of battery are fairly universal, the reasoning adopted by the Ninth Circuit could be applied in most other jurisdictions. Where the burden of proof lies could prove to be a critical aspect of any corporate ATS case given that the cases almost always involve witnesses who often speak little or no English and events that took place entirely on foreign soil. Requiring the plaintiffs to bear the burden of proving their cases with these factors should significantly aid the defense of these cases.
The impact of the Ninth Circuit’s decision that the DOHSA preempts the ATS is negligible. Very few corporate ATS cases include events that occur on “the high seas.” Rather, most of the cases relate to human rights abuses that occur in resource-rich areas of the world with questionable human rights records. However, to the extent a corporate ATS defendant is faced with allegations of wrongdoing at sea, the Bowoto case provides another arrow in their defense quiver.
Given the Ninth Circuit’s ruling, it appears unlikely that the Bowoto case warrants Supreme Court review. However, it is almost certain that the Supreme Court will choose to review a corporate ATS case at some point in the future. At that point, perhaps some more concrete ground rules will be set as to the viability of these cases. Until then, we will continue to monitor these cases and report on developments that companies should be aware of.