Author: Chris Gant, Associate Member, University of Cincinnati Law Review
In Ogoniland, Nigeria, environmentally concerned protestors were beaten, raped, and killed for demonstrations opposing aggressive oil development in the Ogoni Niger River Delta. Nigerian nationals brought suit under the Alien Tort Statute (ATS) in the Southern District of New York, alleging that foreign corporations that do business in the United States aided and abetted these atrocities.[1] In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that foreign corporations are not subject to liability in the United States for tortious acts outside of the United States. However, because Kiobel dealt with a foreign corporation, the opinion left open the question of whether a United States corporation could be liable for tortious acts outside of the country, and the open question resulted in a circuit split. The Fourth Circuit has held that American corporations can be sued for acts committed outside of the United States, while the Eleventh Circuit has expanded Kiobel and stated that American courts lack jurisdiction over these claims, thus barring them in that circuit. The Fourth Circuit’s reasoning is a better analysis of claims brought under the Alien Tort Statute (ATS) because the statute was intended to provide a remedy for foreigners injured by Americans. As such, the United States has an obligation to provide a forum for noncitizens to receive compensation for torts committed by Americans in other countries. Furthermore, the ATS was created to regulate an American citizen’s conduct outside of the United States. Without a court enforcing this obligation, corporations have little concrete incentive to monitor employees’ potential tortious activities abroad.
Kiobel v. Royal Dutch Petroleum Co.
In Kiobel, Nigerian citizens alleged that the Royal Dutch Petroleum Company and Shell Transport and Trading Company aided and abetted the Nigerian government in violently suppressing protests against aggressive oil development in Nigeria. The plaintiffs sought to recover in United States court under the ATS for the violent, tortious acts committed in Nigeria.[2] The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3] The plaintiffs alleged that the companies violated Nigerian law.[4] On appeal, the Supreme Court faced the issue of whether an ATS claim could provides damages for actions by non-American corporations operating in a foreign territory. The Court relied on a judicial canon known as the “presumption against extraterritorial application” to determine that the ATS does not cover these claims.[5] The Court held that the presumption against extraterritorial application applies to claims under ATS, but that nothing in the statute rebuts that presumption, so the ATS did not apply to the claims in Kiobel.[6] Further, all relevant conduct in Kiobel took place outside of the U.S.[7] However, the Court stated that if claims “concern the territory of the United States,”[8] they can rebut the presumption against extraterritorial application, but must have sufficient force to do so.[9] Thus, this holding left open the question of whether federal courts have authority to hear claims regarding tortious acts committed outside the United States yet that “touch and concern” the United States by virtue of their American tortfeasors.
The Resulting Split
In Al Shimari v. CACI Premier Tech., Inc., the Fourth Circuit relied on Kiobel to hold that American corporations can be sued in the United States under the ATS for tortious actions in foreign countries.[10] The defendants in Al Shimari, CACI, were hired to conduct interrogations in Abu Ghraib prison.[11] CACI is incorporated and domiciled in the United States and the plaintiffs alleged that the corporation aided and abetted conduct that violated the Geneva Conventions.[12] Based on the broad language in Kiobel, the court ruled that the plaintiffs’ claims adequately “touched and concerned” the United States[13] with sufficient force to displace the presumption against territoriality, and so the court could hear the case pursuant to the ATS.[14]
Conversely, in Cardona v. Chiquita, the Eleventh Circuit held that the ATS barred relief for over 4,000 Colombian plaintiffs with claims involving torture, personal injury, and death that were allegedly committed in Columbia by an American corporation.[15] The plaintiffs argued that the federal courts had jurisdiction over the plaintiffs’ ATS claim because the defendants were American corporations and their claims “touched and concerned” the United States.[16] The Eleventh Circuit disagreed and held that “the distinction between the corporations [American versus foreign] does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts.” Therefore, the “presumption against territorial application” applied and the plaintiffs could not bring suit in federal court under the ATS.[17] Thus, the court held that the ATS does not apply extraterritorially, even to American corporations. This holding starkly contrasted with the decision in Al Shimari, where the court held that the ATS does apply to tortious acts committed by American corporations in a foreign country.
Kiobel: Right and Wrong Interpretations
There is a fatal flaw in the Cardona ruling. When relying on Kiobel to support its holding, the Eleventh Circuit brushed over the major difference between the two cases. In Kiobel, the defendants were foreign corporations. In Cardona, defendant Chiquita was incorporated in New Jersey and headquartered in Ohio.[18] The court depended on Kiobel—which involved a foreign corporation—and held that even if the corporation is American, it “does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts.”[19] The court failed to analyze whether the corporation or its actions adequately “touch[ed] and concern[ed]” the United States in light of Kiobel. In contrast, the Fourth Circuit in Al Shimari correctly stated that the “touches and concerns” language implicates a “fact based analysis” to determine whether an ATS claim overcomes the presumption against territorial application.[20] Because the Eleventh Circuit in Cardona failed to consider the “touches and concerns” analysis created in Kiobel, the decision incorrectly denied the plaintiffs their day in court.
International law and the history of the ATS suggest that the statute was created to provide a remedy for tort victims injured by American citizens.[21] It is a basic principle of international law that a state has authority to regulate its citizens’ conduct, regardless of where the conduct occurs.[22] After Congress passed the ATS, the Attorney General issued an opinion that stated that he had “no doubt” that there was a civil remedy available in the United States for citizens of Sierra Leone who were attacked and plundered by American citizens.[23] This suggests a remedy in the United States for extraterritorial violations of the Act. Kiobel recognized that this did not apply to every tortious act committed outside of the United States, but the Court’s “touches and concerns” language supports the interpretation of the statute as intended to provide a remedy for those injured by American corporations’ tortious acts abroad.
The Cardona decision is problematic because it actually creates incentives for corporations to act in a morally reprehensible way. If a corporation is categorically immune from ATS claims for its actions abroad—as Cardona holds—then no legal impediment exists to prevent American corporations from traveling “to foreign shores [to] commit violations of the law of nations with impunity.”[24] Conversely, the Al Shimari court’s interpretation of the ATS means the law provides a means to punish corporations that aid and abet tortious activities by foreign actors. These punishments will likely deter corporations from committing torts abroad. The Fourth Circuit’s approach is preferable because it provides corporations with incentives to avoid committing torts and other morally condemnable actions. Although some argue that the Fourth Circuit’s interpretation of the ATS will open the proverbial “floodgates of litigation” for foreign claims in American court, the gravity of the acts in question ultimately prove the necessity of providing a remedy for their victims.
Conclusion
Kiobel left uncertain the ATS’s applicability to American corporations. The Fourth Circuit’s decision in Al Shimari, which opens United States courts to foreign victims of an American corporation’s tortious actions, is a preferable application of the law because it creates incentives for American corporations to monitor their conduct more closely and could prevent atrocities like the ones seen in Nigeria. Further, Cardona incorrectly interpreted Kiobel—which involved a foreign corporation—and extended its holding to cover corporations located in the United States. The ATS was designed to provide a remedy for those injured by Americans outside of the United States and to regulate the conduct of American citizens—including corporations—extraterritorially.[25] The United States should hold companies incorporated in the United States liable for their conduct, regardless of where it occurs, and the Fourth Circuit’s interpretation of the ATC more properly advances that interest.
[1] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2011).
[2] 28 U.S.C. § 1350; Kiobel, 133 S.Ct. at 1663.
[3] 28 U.S.C. § 1350.
[4] Kiobel, 133 S.Ct. at 1663. For a summary of cases discussing what violations of “law of nations” see Spinning Sosa: Federal Common Law, The Alien Tort Statute, And Judicial Restraint, Pamela J. Stephens, 25 B.U. Int’l L.J. 1, 5 (2007) (citing Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (ATS provides a cause of action for violations of international norms that are as “specific, universal, and obligatory”); Abebe-Jira v. Negewo, 72 F.3d 844, 847-48 (11th Cir. 1996) (torture violates law of nations); Kadic v. Karadzic, 70 F.3d 232, 242-44 (2d Cir. 1995) (torture and genocide); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 5-6 (D.C. 1998) (torture, summary execution, and other crimes against humanity); Xuncax v. Gramajo, 886 F. Supp.162, 183-84) (D. Mass. 1995) (torture, summary execution, disappearance, and arbitrary detention); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1535, 1552 (N.D. Cal. 1987) (torture, summary execution and prolonged arbitrary detention)).
[5] The “presumption against territorial application” means that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none . . . .” Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 2878 (2010).
[6] Kiobel, 133 S.Ct. at 1663.
[7] Kiobel, 133 S.Ct. at 1669.
[8] Claims, rather than the tortious conduct, must touch and concern with sufficient force. Id.
[9] Id.
[10] Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014).
[11] Id. at 520.
[12] Conducted included but was not limited to: “repeatedly beaten,” “shot in the leg,” “repeatedly shot in the head with a taser gun,” “subjected to mock execution,” “threatened with unleashed dogs,” “stripped naked,” “kept in a cage,” “beaten on [the] genitals with a stick,” “forcibly subjected to sexual acts,” and “forced to watch” the “rape[] [of] a female detainee.” Id. at 521.
[13] The factors the court weighed in reaching this determination were: (1) CACI’s status as a United States corporation; (2) the United States citizenship of CACI’s employees, upon whose conduct the ATS claims are based; (3) the facts in the record showing that CACI’s contract to perform interrogation services in Iraq was issued in the United States by the United States Department of the Interior, and that the contract required CACI’s employees to obtain security clearances from the United States Department of Defense; (4) the allegations that CACI’s managers in the United States gave tacit approval to the acts of torture committed by CACI employees at the Abu Ghraib prison, attempted to “cover up” the misconduct, and “implicitly, if not expressly, encouraged” it; and (5) the expressed intent of Congress, through enactment of the TVPA and 18 U.S.C. § 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad.
[14] Al Shimari, 758 F.3d 516, 529.
[15] Cardona v. Chiquita Brands Intern., Inc., 760 F.3d 1185 (11th Cir. 2014).
[16] Id. at 1189.
[17] Id.
[18] This has since changed as Chiquita merged with another company and is now headquartered in Ireland. Charlotte Loses Corporate HQ In Chiquita Merger, WCNC.com (Mar. 11, 2014, 4:25 AM), http://www.wcnc.com/story/money/business/2014/07/04/11109514/.
[19] Cardona, 760 F.3d at 1189.
[20] Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th Cir. 2014).
[21] Cardona, 760 F.3d at 1192.
[22] Id. at 1193 (citing Rest. (Third) of The Foreign Relations Law of the United States § 402(2) (1987)).
[23] Id. at 1194 (citing Breach of Neutrality, 1 Op. Att’y Gen. 57 (1795)).
[24] Id. at 1193.
[25] Corporations are considered citizens for legal purposes. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (holding that corporations have a right to Free Speech protections under the First Amendment.
