In re South African Apartheid Litigation

Since late 2005, the Clinic has been involved in In re South African Apartheid Litigation, a major corporate Alien Tort Statute (ATS) suit, currently pending against Ford and IBM for the support and assistance they provided to the South African apartheid government to commit human rights violations. The Clinic is currently co-counsel in the case for South African plaintiffs, who have brought claims against these corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization.

Faculty and students have conducted more than a dozen trips to South Africa to work on the case. Most recently, on August 8, 2014, the Clinic filed a proposed amended complaint against Ford and IBM in the Southern District of New York. The amended complaint alleges that, through policies and decisions made in the United States, Ford directed and controlled the sale of specialized vehicles to the South African security forces to suppress the black population, while IBM created and maintained an identity card system to denationalize the black population. Previously, in April 2014, the district court ruled that corporate liability does exist under the ATS, a decision that the Defendants have appealed. While the Second Circuit Court of Appeals decides whether to hear the appeal, proceedings continued in the district court and Plaintiffs moved to amend their complaint in light of Kiobel v. Royal Dutch Petroleum, Co., the major Supreme Court ATS ruling from April 2013. On August 28, 2014, the district court denied plaintiffs’ motion for leave to file amended complaints.

Case History

In re South African Apartheid Litigation is comprised of two cases: the Botha (or Ntsebeza) case, in which the Clinic is counsel, and the Balintulo (or Khulumani) case. Originally, numerous complaints were filed in 2002 against dozens of corporate defendants. The cases were consolidated in the Southern District of New York and dismissed by the district court there in 2004. The Clinic began to support the Ntsebeza legal team in 2005 during an appeal to the Second Circuit. On appeal in late 2007, the Circuit Court reversed the district court’s decision, recognizing the viability of aiding and abetting claims under the ATS, and allowing the plaintiffs an opportunity to amend their original complaints. Following the appellate ruling, the Clinic joined the case as co-counsel. In early 2008, the Defendants filed petition for a writ of certiorari with the U.S. Supreme Court. Lacking a quorum, the Supreme Court could not grant the petition and affirmed the Second Circuit’s ruling. In October 2008, Plaintiffs filed an amended complaint and prevailed on the motion to dismiss in April 2009.

Defendants appealed the April 2009 decision, which was fully briefed in late 2009 and argued in January 2010. Proceedings were stayed after the Supreme Court granted cert in Kiobel. In the wake of the Supreme Court decision in Kiobel, the Second Circuit asked for additional briefing on the emergency appeal, and we submitted a letter brief in May 2013. In August 2013, the Second Circuit denied the defendants’ writ for mandamus and lifted the stay before the district court. In lifting the stay, the Circuit opined that the claims should be dismissed based on Kiobel. Plaintiffs sought en banc review of the ruling in September 2013, but the request was denied. However, in proceedings before the district court, plaintiffs argued in a letter that they should have leave to amend their allegations in light of the new Kiobel standard, which requires that claims “touch and concern” the United States.

In December 2013, the district court ruled that before considering whether amendments to meet the Kiobel standard were appropriate, the court first had to consider whether corporate liability existed under the ATS. After full briefing–plaintiffs’ opening brief, defendants’ opposition, and plaintiffs’ reply–the district court ruled, on the one-year anniversary of the Supreme Court’s Kiobel ruling, that corporate liability does exist under the ATS. Defendants sought an immediate emergency appeal with the Second Circuit, which plaintiffs have opposed. Defendants then filed a reply. A decision is pending. At the district court, proceedings continued in parallel, with plaintiffs filing a motion for leave to amend showing why they can plausibly meet the new Kiobel standard, as well as a proposed amended complaint. In late August, the district court denied plaintiffs’ motion for leave to file amended complaints.

On February 10, 2016, the Clinic and co-counsel filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. In late May, the Clinic and co-counsel filed their reply brief with the U.S. Supreme Court, responding to Ford and IBM’s opposition to the petition.

The U.S.-based legal team is led by Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP and includes Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky, and Diane Sammons and Jay Rice of Nagel Rice LLP. The South African-based legal team is led by Advocate Dumisa Ntsebeza and includes attorneys John Ngcebetsha, Gugulethu Madlanga, and Medi Mokuena, and Advocate Michael Osborne.

Contacts for this case: Susan Farbstein and Tyler Giannini

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