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As cases against multinational corporations for their involvement in international human rights violations percolate through appeals courts, one company’s recent victory in an Alabama federal court underscores plaintiffs’ uphill battle. An upswing in global corporate operations, and a 2006 9th U.S. Circuit Court of Appeals decision allowing vicarious liability claims for violations of international human rights norms in Alien Tort Claims Act cases have opened the door to more cases. Sarei v Rio Tinto, 456 F.3d 1069 (9th Cir. 2006). New alien tort cases have cropped up in California, Florida and Washington federal courts since April. Also, an eight-year-old California federal case against Chevron Corp. is poised for trial following a judge’s recent order based on the Rio Tinto ruling. Bowoto v. Chevron Corp., No. 99-2506 (N.D. Calif.). Yet an Alabama decision in what is believed to be the first jury trial on alien tort claims should be heartening to corporate defendants, said Washington lawyer William Jeffress of Houston-based Baker Botts, who defended U.S. coal mining company Drummond Co. Inc. in the case. The jury found Drummond not liable for the killing of three trade unionists. In re Juan Aguas Romero v. Drummond Co. Inc., No. 03-575 (N.D. Ala.). Heirs of murdered trade union leaders who worked at a Drummond facilities in Colombia alleged that paramilitaries who murdered the trade unionists were Drummond’s agents. The claims include wrongful death, alien tort and Torture Victim Protection Act violations. “I do think the fact that companies can take a firm position has got to be an encouragement to other companies who are faced with these cases,” Jeffress said. A Drummond case plaintiff’s lawyer, Herman “Rusty” Johnson Jr. of Wiggins, Childs, Quinn & Pantazis of Birmingham, Ala., said procedural issues prevented certain evidence from making it to trial, and that the plaintiffs will appeal. There’s a growing recognition that corporations can be culpable under the Alien Tort Claims Act for supporting human rights abuses, said Morton Sklar, executive director of Washington-based World Organization for Human Rights USA. Sklar is also a plaintiffs’ lawyer in a California case against Yahoo! Inc. for allegedly giving the Chinese government identifying information about people who published political views on the Internet, which led to their torture by government authorities. Wang Xiaoning v. Yahoo! Inc., No. 07-2151 (N.D. Calif.). Claims against Yahoo include torture and violations of the Alien Tort Claims Act and the Torture Victim Protection Act. In an e-mail, Yahoo spokesman Jim Cullinan said Yahoo is “distressed” that Chinese citizens have been imprisoned for expressing political views on the Internet, but companies doing business in China must comply with Chinese law. On Aug. 14, Judge Susan Illston reversed her 2006 ruling in Chevron that private parties could not be held liable for aiding and abetting claims under the alien tort statute. Illston granted summary judgment to the defendants for some of the plaintiffs’ claims, setting the stage for the others to move to trial. The plaintiffs allege that Chevron aided the Nigerian military in 1998 and 1999 attacks on protesters who occupied a Chevron offshore platform and attacked a village. Chevron’s manager of public affairs, Charlie Stewart, called the claim that Chevron intended Nigerian law enforcement personnel to harm anyone “beyond far-fetched.” Stewart also said the company is confident that the jury will “separate fact from fiction.” The scope of ‘Sosa’ As new cases are filed at the district court level, appeals court cases are percolating in the 2d, 9th and 11th circuits over the scope of a 2004 Supreme Court decision about alien tort cases. Sosa v. Alvarez-Machain, 542 U.S. 692. In Sosa, the high court rejected alien tort claims brought by a Mexican national who was abducted by U.S. officials to stand trial in the United States for the torture and killing of a drug enforcement agent in Mexico in 1985. The justices added that the door is “still ajar,” but “subject to vigilant doorkeeping for a narrow class of international law violations.” Companies try to use Sosa‘s cautionary language against expanding the scope of the international law norms that fall under the alien tort act’s jurisdiction, and are asking courts to apply international law instead of federal common law to determine the scope of secondary liability under the Alien Tort law, said Carey R. D’Avino, of counsel to Philadelphia-based Berger & Montague. D’Avino is a plaintiffs’ lawyer in alien tort appeals cases against energy companies, including The Presbyterian Church of Sudan v. Talisman Energy Inc., No. 07-16 (2d Cir.).

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