With corporate America itching for the U.S. Supreme Court to rein in use of the Alien Torts Statute for suits alleging overseas wrongdoing, the case that may redefine the parameters of the ATS is shaping up as a battle of ex-Harvard law professors. On Monday the Court asked U.S. Solicitor General Elena Kagan (the former Harvard dean) to weigh in on Pfizer Inc. v. Rabi Abdullahi, in which the 2nd U.S. Circuit Court of Appeals revived the claims of Nigerians who allege they were grievously harmed when they were administered a Pfizer meningitis drug in a government-approved clinical trial. (Here’s the 2nd Circuit ruling, and here’s our previous coverage of it.)
Kaye Scholer represented Pfizer in the lower courts, but for the Supreme Court case, the pharmaceutical company has brought in Kathleen Sullivan of Quinn Emanuel Urquhart Oliver & Hedges, a Harvard prof before she moved to Stanford. The Nigerian plaintiffs, meanwhile, have added to their team Arthur Miller, who recently moved from Harvard to New York University Law School — and a special counsel gig at Milberg. Jack Goldsmith, who retreated to his Harvard professorship after a tumultuous stint in the George W. Bush Justice Department, is representing the U.S. Chamber of Commerce as an amicus in the case.
Sullivan told the Litigation Daily that Pfizer v. Abdullahi could be the case in which the Justices establish whether corporations can be held liable under the Alien Tort Statute for actions that involved only cursory involvement by a foreign government — a limit, she said, that would severely curtail use of the statute. Here’s how Quinn Emanuel framed the issue in its petition for cert: “Whether ATS jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law.”
The plaintiffs, represented at the Court by Miller and Altschuler & Altschuler, counter in their brief in opposition to the cert petition that Pfizer’s failure to obtain informed consent from the Nigerian test subjects was “a gross violation” of international law and that this case would not contribute to ATS precedent, which they maintain the 2nd Circuit correctly applied.
It’s worth telling the story of how Quinn Emanuel, a firm with a well-deserved reputation for brashness, persuaded Pfizer to use Sullivan at the Supreme Court. Quinn’s Faith Gay has a good record in disposing of ATS suits against Coca-Cola. (Here’s our story on a recent 11th Circuit win in one such case.) When Gay heard of the 2nd Circuit ruling against Pfizer in the Nigeria case, she contacted Pfizer, even though Quinn Emanuel hadn’t done work for the pharmaceutical company before. “They said, ‘Come in and make a pitch,’” Gay told us. Kaye Scholer filed Pfizer’s unsuccessful motion for rehearing at the 2nd Circuit. But then Quinn came aboard for Pfizer’s successful motion for a stay at the 2nd Circuit and for the cert petition, which the Justices won’t decide until after the solicitor general submits a brief.
Both Gay and Sullivan told us that they regard the Supreme Court’s request for input from the SG as a hopeful signal for Pfizer. “It means at least four Justices are interested in the case,” Gay said. “They’re looking for the right vehicle [to clarify ATS standards]. We think this is a highly perfect vehicle.”
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.