If general counsel wonder whether their companies’ friend-of-the-court briefs ever have any impact, they only need to look at last week’s U.S. Supreme Court action involving the Alien Tort Statute. Two amicus briefs clearly helped sway the justices into postponing a decision while exploring a new issue not raised by the parties.
The case, Kiobel v. Royal Dutch Petroleum, 10-1491, was filed by Esther Kiobel and other Nigerian villagers who accused the defendants—Royal Dutch Petroleum (now Royal Dutch Shell) of the Netherlands and two other Shell subsidiaries—of aiding human rights abuses by Nigeria’s military. The narrow question presented on appeal was whether corporations, as opposed to individuals, may be held liable for violations of international law under the statute.
But during oral arguments on Feb. 28 (NYLJ, Feb. 29), Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito pursued questions about the extraterritorial application of the statute. Then on March 5, the high court announced that it would not rule on the case this current term and asked the parties to submit supplemental briefs on the extraterritorial issue (NYLJ, March 6). Specifically, they asked whether the ATS allows federal courts to hear lawsuits alleging violations of international law that occur outside the United States.
Attorney John Bellinger, of Arnold & Porter in Washington D.C., was not totally surprised by the Court’s decision. He and co-attorney Paul Clement, of the Bancroft law firm also in Washington, had focused their brief on issues of extraterritorial jurisdiction.
Messrs. Bellinger and Clement had filed a joint amicus brief on behalf of U.S. companies in support of the defendants, with Mr. Bellinger representing BP America Inc, Caterpillar Inc., ConocoPhillips, General Electric Company, and Honeywell International Inc. Mr. Clement represented International Business Machines Corporation.
“When the Justices raised the question during oral arguments, I was there and sat straight up,” Mr. Bellinger recalled.
Mr. Bellinger said the Supreme Court’s action “appears to mean that a majority of the justices are sufficiently concerned about the broader question of whether the statute even applies to torts committed in other countries. They would like to consider deciding the case on that ground, rather than on the narrow ground of corporate liability.”
He added, “It does not bode well for the plaintiffs.”
A two-person majority of the U.S. Court of Appeals had backed the defendants in the case, 642 F. 3d 379, but it grounded its opinion on the conclusion that corporate liability was not a “norm of customary international law” (NYLJ, Sept. 20, 2010).
But the Kiobel brief of Messrs. Bellinger and Clement hardly mentions the corporation issue. Rather it argued that ATS does not apply to purely extraterritorial conduct. “Founding-era courts did not even consider cases, like this one, in which a foreign plaintiff sued a foreign defendant based on foreign conduct,” it states.
Their argument repeated one they had written in a brief in 2008, while both served as in-house counsel in the George W. Bush administration. Mr. Clement was U.S. solicitor general from 2005 to mid-2008, and Mr. Bellinger was the legal adviser to the U.S. State Department from 2005 to 2009, under Secretary of State Condoleezza Rice, and previously was legal adviser to the National Security Council at the White House from 2001 to 2005.
They also focused on the diplomatic friction caused by extraterritorial application of the ATS, citing more than 20 diplomatic protests from other countries that believe the U.S. application of the ATS is a violation of international law.
“The issue of extraterritoriality and diplomatic friction caused by having U.S. judges act as a universal civil court really captures the attention of the Justices,” Mr. Bellinger said after the March 6 order.
The point was also evident from amicus briefs filed by the governments of Germany, the Netherlands, and the United Kingdom. They all supported the defendants.
However, the U.S. Department of Justice had filed in support of the Nigerian plaintiffs, arguing that corporations should be held liable for torts under the ATS. It urged the court to address only that narrow question.
Justice Kennedy jumped into the extraterritorial fray, citing another amicus during oral arguments. He said to plaintiffs’ lawyers, “The amicus brief for Chevron [Corporation] says, ‘No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.’ And in reading through your briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say it is irrelevant?”
The brief that caught his attention was written by Jack Goldsmith III, a former Kennedy clerk. Mr. Goldsmith, a Harvard Law School professor and former assistant attorney general for DOJ’s Office of Legal Counsel, represented Chevron; Dole Food Company Inc.; Dow Chemical Company; Ford Motor Company; GlaxoSmithKline; and Procter & Gamble Company.
Others filing briefs in support of defendants included the U.S. Chamber of Commerce; Rio Tinto Group (which has a similar case pending) joined with Occidental Petroleum Corporation; KBR Inc.; Coca-Cola Company; and Archer-Daniels-Midland Company.
Besides the U.S. government, a number of advocacy groups filed briefs supporting the plaintiffs. One was written by Burt Neuborne, a civil liberties professor and legal director of the Brennan Center for Justice at the New York University School of Law.
‘The Harder Question’
Mr. Neuborne said that he “had a hunch” from the oral arguments that the issue of corporations’ liability, on which the Justices granted cert, “didn’t interest them all that much.”
On whether a corporation can be sued under the ATS, Mr. Neuborne said, “The answer is almost certainly yes. The harder question is whether you can sue corporations for things that took place in another country that don’t really have anything to do with the U.S.”
He said he thought once the Justices conferenced, “that they would realize that the [extraterritorial] issue was not before the court, but was raised by amici. It was not considered by the lower court judges. Now it is a procedural mess. And I think the corporation question will recede into the background.”
Mr. Neuborne went on to say that he is not sure if he will offer a new amicus brief on the extraterritorial issue. “It’s a harder question,” he conceded. “But do we really want to say there is no extraterritorial jurisdiction—that is to say the statute can’t be used against great evil, such as a holocaust or genocide, as it emerges in different countries?”
The Supreme Court asked for briefs by June 29, and is expected to rule in the spring of 2013.
The 12 Nigerian plaintiffs are represented by Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman and Harrison in Venice, California. The Shell companies are represented by Kathleen Sullivan of New York’s Quinn Emanuel Urquhart & Sullivan.
@|Sue Reisinger is a reporter for Corporate Counsel, an affiliate of the New York Law Journal. She can be contacted at email@example.com.