Contributed by Melody Akhavan
We’ve been following with great interest developing case law concerning the Alien Tort Statute (ATS) (see here), including Cardona, et al. v. Chiquita Brands Int’l, Inc., et al. The Chiquita case represents a victory for corporate defendants, and reinforces the Supreme Court’s narrowing of the ATS.
By way of background, the ATS allows foreigners to bring civil suits in U.S. courts for torts that are “committed in violation of the law of nations or a treaty of the United States.” In recent years, the ATS has been used primarily as a mechanism for plaintiffs to sue large multinational corporations for alleged human rights abuses that they claim are committed abroad by foreign individuals living in the U.S. at the time of suit. Such corporate ATS cases target companies with significant ties to the U.S. and generally allege that the defendant corporations were involved in either facilitating or implicitly condoning human rights abuses in connection with their business operations abroad.
Last year, the Supreme Court decided Kiobel v. Royal Dutch Petroleum, a case involving the application of the ATS to a suit brought by Nigerian nationals residing in the U.S. who claimed that Dutch, British, and Nigerian oil companies aided the Nigerian government in committing human rights abuses against Nigerian activists. The Court’s decision focused on the presumption against extraterritorial application, finding that the ATS does not apply to actions that occurred outside the U.S
Just this week, the Eleventh Circuit relied on Kiobel in dismissing a case brought against Chiquita Brands International, Inc. under the ATS and the Torture Victims Protection Act. Plaintiffs brought suit against Chiquita alleging that the company engaged in “concert of action with paramilitary forces in Colombia”, and that such action resulted in torture, personal injury, and death. The Eleventh Circuit noted that none of the relevant conduct took place within the U.S. The court referenced the Kiobel decision’s admonishment that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”
The Eleventh Circuit went on to address the plaintiffs’ attempt to distinguish Chiquita from Kiobel on the basis of corporate citizenship in each case. Plaintiffs argued that while the corporate defendants in Kiobel were not U.S. corporations, but were merely present in the U.S., the Chiquita entities are U.S. corporations. The circuit court acknowledged this argument but held that the “distinction between the corporations does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts. As the Supreme Court said in Kiobel, ‘[i]f Congress were to determine otherwise, a statute more specific than the ATS would be required.'” Finding no other applicable statute, the panel found no jurisdiction.
The dissent interpreted Kiobel‘s mandates differently, finding that the Kiobel decision “offers little assistance about what kinds of domestic connections would be necessary to overcome the presumption against territoriality.” The dissent would have held that the U.S. connections present in the Chiquita case would actually overcome the presumption for two reasons. First, because the primary defendant is a corporation incorporated and headquartered in the U.S. Second, because the plaintiffs allege that Chiquita’s participation in reviewing, approving, and concealing a scheme of payments and weapons shipments to a Colombian terrorist organization all took place from its U.S. corporate offices.
Ultimately, Chiquita highlights the disagreement about what conduct would sufficiently “touch and concern” the territory of the U.S., and what level of conduct would be sufficient to subject a corporate defendant to a U.S. court’s jurisdiction for harms committed abroad. We will keep you updated as other courts continue to grapple with the application of the ATS post-Kiobel.