Blog: Second Circuit
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February 10, 2016
Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid
Posted by Tyler Giannini and Susan Farbstein
The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.
The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the “denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”
Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.
The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.
As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.
July 30, 2015
Second Circuit Decision in Apartheid Appeal Denies Plaintiffs the Opportunity to Proceed with Their Claims
Posted by Susan Farbstein and Tyler Giannini
Earlier this week, the Second Circuit handed down its opinion in In re South African Apartheid Litigation, denying Plaintiffs an opportunity to proceed with their claims against the remaining Defendants Ford and IBM. In doing so, the appellate court affirmed the District Court’s prior decision on the grounds that Plaintiffs’ proposed amended complaints had not alleged sufficient plausible new facts to move forward.
While the outcome was disappointing, so too was the opinion of the Court itself, which failed to fully engage with new, specific, and detailed allegations in the proposed amended complaints — in particular, allegations about how both defendants, in the United States, took purposeful and repeated actions to aid and abet the South African state to commit international law violations. With respect to the allegations against Ford, the Court glanced over important facts about the U.S. parent corporation’s direct involvement in the design and approval of the sale of specialized vehicles to South African security forces, in contravention of international sanctions regimes. Instead, the Court concluded broadly that the allegations were insufficient to link Ford in the United States to the violations in South Africa.
With respect to the allegations against IBM, the Court did find sufficient U.S. domestic conduct by the parent — specifically, that it designed particular technologies that facilitated the denationalization of black South Africans. But while this conduct did “touch and concern” the United States, the standard set by the Supreme Court in Kiobel v. Royal Dutch Petroleum, the Court held that the allegations did not plausibly allege that IBM’s conduct was “purposeful.” Because purpose (rather than knowledge) is the required standard for an aiding and abetting claim in the Second Circuit under Presbyterian Church of Sudan v. Talisman, the Court determined that Plaintiffs’ claims could not proceed.
The Plaintiffs will now seek en banc review of the panel’s decision, requesting that all active judges on the Court rehear the case because it presents questions of exceptional importance and conflicts with prior decisions of the Second Circuit as well as the U.S. Supreme Court.
April 8, 2014
“The Future of Corporate Impact Litigation After Chevron”
A Discussion with Steven Donziger
12:00 – 1:00 p.m.
Please join us for a discussion with Steven Donziger, JD ’91, a New York based lawyer who has advised indigenous and farmer communities for two decades in their struggle to hold Chevron accountable for oil contamination in the Amazon. In 2013, Ecuador’s Supreme Court affirmed a trial court ruling ordering Chevron to pay $9.5 billion in damages. Chevron fought back, recently securing a controversial ruling from a U.S. federal judge in a non-jury trial that Ecuador’s entire judicial system is unworthy of respect and that the case was marred by fraud. That case is currently under appeal to the Second Circuit while enforcement actions based on the Ecuador judgment continue against Chevron in Canada, Brazil, and Argentina. The case raises profound questions that touch on international law, comity, human rights, indigenous rights, freedom of expression, professional ethics, and the limits of litigating against corporate wrongdoers.
December 22, 2011
Brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable
for violations of the law of nations under the Alien Tort Statute
December 21, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted an amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co. Nine eminent legal historians joined the brief as amici: Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, John V. Orth, and Anne-Marie Slaughter.
Associate Clinical Director Susan Farbstein, JD ’04, and Clinical Director Tyler Giannini served as counsel for the amici, who argue that Congress enacted the statute so that plaintiffs would have a meaningful civil remedy in federal court for violations of international law. The brief outlines how creating a special exemption for corporate defendants, as the Court of Appeals did in Kiobel, contradicts the original purpose of the ATS as well as its plain text.
“Excluding corporations from liability for the most egregious violations of international law ignores the Founders’ purpose in enacting the ATS,” said Giannini. “Long before the ATS was passed, courts were holding entities such as the British East India Company accountable for the wrongs they committed.”
Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, served as student leaders on the team that assisting with drafting. Clinical students Yonina Alexander, JD ’12, Catherine Fischl, JD ’12, and Daniel Saver, JD ’12, also contributed to the brief.
“The project presented a unique opportunity to work closely with a talented team of students and professors, who were all dedicated and focused on the same end goal,” Poppy Alexander said. Kornblith added, “I feel incredibly privileged to have been a part of this team whose work spanned three countries and four centuries.”
Since the U.S. Supreme Court granted certiorari in the case, more than a dozen other HLS students and alumni around the world have contributed to an international research effort supporting for the brief: Bradford Adams, JD ’12, Sam Birnbaum, JD ’14, Tess Borden, JD ’14, Nikolas Bowie, JD ’14, Carly Cohen, JD ’13, Elizabeth Floyd, JD ’14, Josh Frieman, JD ’13, Meghan Heesch, JD ’12, Julian Hill, JD ’14, Clara Long, JD ‘12, Meg McDermott, JD ’13, Julien Savoye, LLM ’12, and Sarah Wheaton, JD ’14. In addition, Deval Desai, LLM ’09, supervised a team of students at the School of Oriental and African Studies who contributed research assistance: Mary Johnson, LLM ’12, Catherine Lancaster, MA ’12, Allison Lindner, LLM ’11, Whitney Purdum, MA ’12, Luke Smitham, MA ’12, Anjana Varma, MA ’12, and Jessica Whelligan, LLM ’12.
“Kiobel should be reversed because it departs from more than a decade of jurisprudence holding corporations liable under the statute,” said Farbstein. “If left to stand, the decision would deprive survivors of corporate misconduct of a valuable tool for seeking justice, contrary to the intent of the Founders.”
In Kiobel, Nigerian plaintiffs filed claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that Royal Dutch Petroleum collaborated with the Nigerian government to commit these violations in order to suppress their lawful protests against oil exploration. In a September 2010, ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable under the ATS for torts in violation of international law.
Kornblith noted that, “Courts have held corporations responsible for their actions for centuries, and the lessons of the past cannot become the mistakes of tomorrow.” Alexander continued, “We cannot forget that in spite of the work we did, there are a lot of people with a lot more riding on this. It has been a privilege to work for justice for them.”
Oral argument before the Supreme Court has been scheduled for February 28, 2012, and a decision is expected by June 2012.
- Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, firstname.lastname@example.org.
- Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, email@example.com.
- Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, firstname.lastname@example.org
September 14, 2011
Posted by Susan Farbstein
It’s still 80 degrees and sunny in Cambridge, but I know summer is over because the students are back, roaming the halls and knocking on my office door. Many are asking the same question: what happened in the corporate Alien Tort Statute (ATS) world over the summer? The short answer is: a lot. Here’s a quick summary to get folks up to speed.
The plaintiffs in Kiobel v. Royal Dutch Petroleum Co. filed their petition for certiorari in early June, asking the Supreme Court to reverse the Second Circuit’s decision that corporations cannot be held liable under the ATS. Amicus briefs from international human rights organizations, international law scholars, former ambassador David Scheffer, and professors of legal history—the last submitted by our own International Human Rights Clinic—supported the petition.
Then something interesting happened: in a matter of three days, two opinions were issued that transformed the Second Circuit’s Kiobel decision from defining the landscape to becoming an outlier.
February 18, 2011
Posted by Susan Farbstein and Tyler Giannini
The renewed petition is based on a procedural argument. Under the Second Circuit’s Internal Operating Procedure 35.1(b), all active judges are entitled to vote on whether a case should be heard en banc, and the determination of “active” is made on the date of entry of the en banc order. The newest member of the court, Judge Raymond Lohier, was sworn in before the February 4 order was issued. But his name is not listed on the order, indicating that he may not have been polled.
Given that the court split 5-5 on the question of rehearing en banc, Judge Lohier could provide the deciding vote.
February 4, 2011
Posted by Susan Farbstein and Tyler Giannini
In a 5-5 split, the Second Circuit today denied the plaintiffs’ petition for rehearing en banc in Kiobel v. Royal Dutch Petroleum Co. We’ll be posting more soon on this crucially important case, in which the panel previously decided that corporations cannot be held liable for human rights violations under the Alien Tort Statute. In the meantime, we’re posting today’s orders here and here; they make for fascinating reading.
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