“Your honor, we do not urge a rule of corporate impunity here,” Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan told the U.S. Supreme Court at oral argument in Kiobel v. Royal Dutch Petroleum. Although Shell’s counsel are asking the Court to affirm the Second Circuit’s conclusion in Kiobel that corporations can’t be held liable under the the Alien Tort Statute, they stress that corporations can still be sued under state law. What they don’t stress is that, when those state claims arrive, the defense will try to eviscerate them.
An exquisitely-timed conference was held at UC Irvine School of Law on March 2, three days after U.S. Supreme Court arguments in Kiobel, to assess the prospects of human rights litigation under state law. I began the conference with enthusiasm, because I’ve begun to worry that alien tort litigation will be recalled as an intellectually-fascinating blind alley. Unfortunately for plaintiffs, and for anyone who believes in corporate accountability, I left feeling that the future of state human rights litigation is shaky.
Kiobel got woollier the next business day after the conference, when the Justices ordered new briefing and argument on the extraterritorial reach of the ATS. But it remains a good bet that state law will loom large in a post-Kiobel world. If the Supreme Court rules in Kiobel that corporations are immune under the ATS, plaintiffs will still sue corporate officers, but will struggle to establish intent. If Kiobel holds only that the ATS lacks extraterritorial effect, plaintiffs will still sue corporations, but will struggle to link U.S. conduct to the alleged harm. Either way, alien tort plaintiffs will often be driven to state law.
Human rights plaintiffs in the U.S. have always invoked the federal alien tort statute side by side with state common law claims for tort (for instance, pleading battery alongside torture) and the occasional Gumby-like state statute (the California consumer protection act or Connecticut’s unfair competition act). The 2004 agreement with Unocal, which stands as plaintiffs’ high water mark, settled on the eve of a state trial. Pfizer’s Nigerian case settled last year on the strength of its state claims, even after the Second Circuit ruling in Kiobel blocked its federal claims.
State law has its advantages for plaintiffs. There is no need to plead with specificity, or to show violation of a universal norm. Defendants can’t rely on the doctrine of exhaustion, or question the existence of secondary liability. But the list of obstacles is longer:
