Passed by the first Congress in 1789 to combat, among others, acts of piracy on the high-seas, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, grants federal district courts jurisdiction over “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.” As threats from Barbary pirates faded in the nineteenth century, this obscure jurisdictional statute lay nearly dormant for 200 years. Indeed, only two ATS cases were adjudicated in the history of the statute until, in 1980, the Second Circuit revived it in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). The seminal decision in Filartiga opened the floodgates for hundreds of lawsuits that would claim ATS jurisdiction over the next 30 years.
Following Filartiga, the initial ATS suits were brought by aliens and nationals against former foreign government officials for alleged human rights abuses committed while in power. See, e.g., In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994). This wave of ATS lawsuits against individuals operating under the color of law continued for more than a decade following Filartiga.
Then, in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996), the Second Circuit held that certain forms of conduct by private actors may violate the law of nations even where the individual in question does not act under color of state law. The Kadic court articulated that the noninclusive list of violations of “universal concern” which may be actionable against a private individual are: piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes and perhaps certain acts of terrorism.
By the mid-to-late 1990s, just a few years after Kadic, corporations had become the primary targets under the ATS. Thus, what was previously the exception for the ATS soon became the norm, and from 1996 to the present, over 100 ATS suits have been brought against American companies in connection with their nondomestic operations for allegedly aiding and abetting state-sponsored violations of international law. Indeed, over half of the companies currently listed on the Dow Jones Industrial Average have been named as defendants in ATS suits.
International Norms for Aiding and Abetting
Almost 215 years after passage of the ATS, the Supreme Court granted certiorari to review its first ATS case. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court instructed that ATS suits are limited to actions alleging wrongful acts defined with specificity comparable to the violations of law of nations as they stood in the eighteenth century (assault against ambassadors, piracy and violations of safe conduct) and other offenses “on a norm of international character accepted by the civilized world.” The Supreme Court cautioned district courts against expanding ATS jurisdiction, declaring that federal courts should act as “vigilant doorkeepers” and must exercise “great caution” in allowing private plaintiffs to bring civil suits for violations of international law. However, the Court’s opinion addressed only primary actor liability, leaving the district and circuit courts to develop the law for accessorial liability under the ATS.
And so they did. The standard for aiding-and-abetting liability in ATS cases was adopted from criminal law, requiring both an “actus reus” and “mens rea.” The first opinion to analyze the issue of mens rea in this context was Judge Katzmann’s concurring opinion in Khulumani v. Barclay Nat. Bank Ltd., 504 F. 3d 254 (2d Cir. 2007). Although the majority in Khulumani remanded the case without much fanfare, the concurring opinion has become the subject of discussions that continue today. In his concurring opinion, Judge Katzmann reasoned that one must look to an authoritative expression of international law to determine the standard for aiding-and-abetting liability under the ATS. Judge Katzmann then determined that the Rome Statute (the treaty that established the International Criminal Court) was the closest expression of a “norm of international character accepted by the civilized world” because it was approved by “139 countries and ratified by 105, including most of the mature democracies of the world.” Adopting the Rome Statute’s standard, Judge Katzmann proffered that an ATS “defendant is guilty of aiding and abetting the commission of a crime only if he does so for the purpose of facilitating the commission of such a crime.” (Emphasis added.)
Less than two years later, the issue of mens reacame before the Second Circuit again in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009). This time, the Second Circuit cemented the Khulumani concurring opinion and, relying on Judge Katzmann’s reasoning, held that “the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone.” Over the next two years, district courts in the Third, Fifth, Ninth and Eleventh Circuits followed and dismissed aiding-and-abetting claims against corporations that had not acted with the mens rea of purpose. See Doe v. Nestlé, S.A., 748 F.Supp.2d 1057, 1082 (C.D. Cal. 2010); Abecassis v. Wyatt, 704 F.Supp.2d 623, 654 (S.D. Tex. 2010); Krishanthi v. Rajaratnam, 2010 WL 3429529, *7 (D.N.J. August 26, 2010); In re Chiquita Brands Intern., Inc. Alien Tort Statute and Shareholder Derivative Litigation, 792 F.Supp.2d 1301 (S.D. Fla. 2011).
But just when it appeared that “purpose” would be the mens rea standard across the country, the D.C. Circuit held otherwise. In Doe v. ExxonMobil Corp., 654 F.3d 11 (D.C. Cir. 2011), the D.C. Circuit held that only knowledge of the underlying crime is required to incur accessorial liability. Like the Presbyterian Church court, the D.C. Circuit determined that one must look to international law to ascertain the standard for aiding-and-abetting liability under the ATS. However, unlike the Second Circuit, the Doe court determined that the Nuremberg Tribunals and two international courts created by the United Nations — the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda — provided a more authoritative expression of international law. Those tribunals used a mens rea of knowledge.
Two months after Doe v. ExxonMobil Corp. apparently created a disagreement among the Circuits, the Fourth Circuit, in Aziz v. Alcolac, 658 F.3d 388 (4th Cir. 2011), adopted the Second Circuit’s reasoning in Presbyterian Church. The Aziz court analyzed and dismissed the D.C. Circuit’s reasoning, and found the Rome Statute to be the most authoritative source on the international law of accessorial liability. Aiding-and-abetting mens rea under the ATS was likewise considered by the Ninth Circuit in Sarei v. Rio Tinto, No. 02-56256, 2011 WL 5041927, *25 (9th Cir. Oct. 25, 2011), but that court declined to decide the issue. However, the Ninth Circuit will soon have another opportunity to address the matter as the mens rea issue has been fully briefed in Doe v. Nestlé, 10-cv-56739 (9th Cir. Nov. 4, 2010), in which three unnamed plaintiffs claim the Nestlé Chocolate Corporation used illegal forms of labor in Cote d’Ivoire to ensure efficient chocolate production.
The Future of Aiding-and-Abetting Liability
The disagreement among the circuits rests on the question of what standard is “accepted by the civilized world.” The Second and Fourth Circuits have looked to the Rome Statute and held that a secondary actor must act with purpose to assist in the furtherance of the crime. The D.C. Circuit has looked to the Nuremberg and U.N. tribunals, holding mere knowledge that a crime may take place is sufficient for aiding-and-abetting liability. All of the appellate courts purport to have followed the Supreme Court’s guidance in Sosa, and yet they have come down with inapposite holdings.
Aiding-and-abetting mens rea may therefore be the next ATS issue that receives Supreme Court review, as that may be the only way to resolve the differing opinions. Whereas it took 215 years for the Supreme Court to hear its first ATS case, and six years for the Court to accept certiorari to hear a second ATS case in Kiobel, it apparently may be less than a year before the Supreme Court gets a third opportunity to review the ATS. Indeed, even if Kiobel is overturned by the Court, not all will be lost for corporations if the Court subsequently reviews Doe v. ExxonMobil.If the Supreme Court reviews Doe v. ExxonMobil and holds that a mens rea of “intent” or “purpose” is the standard, or states as much in dicta in the Kiobel opinion, that heightened standard may be the compromise for both sides on the corporate liability issue.