Blog: Talisman

  • Page 1 of 1

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.

Share By Email

loading
Close

August 11, 2014

Clinic Files Proposed Amended Complaint in the Apartheid Litigation

Posted by Susan Farbstein and Tyler Giannini

Last Friday, the International Human Rights Clinic filed a proposed amended complaint in the Apartheid Litigation against two defendants, Ford and IBM.

The amended complaint demonstrates how the claims “touch and concern” the United States as required by the Supreme Court’s Kiobel decision, as well as how the Defendants acted with the purpose to aid and abet the South African government’s violations of international law, as required by the Second Circuit’s Talisman decision. In particular, the complaint alleges that, through policies and decisions made in the United States, Defendant Ford directed and controlled the sale of specialized vehicles to the South African security forces to suppress the black population, while Defendant IBM created and maintained an identity card system to denationalize the black population.

Share By Email

loading
Close

September 14, 2011

What the Courts Did Over Our Summer Vacation: Three Days that Redefined the Corporate ATS Landscape

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.

Continue Reading…

  • Page 1 of 1