June 8, 2011
Kiobel Plaintiffs File Petition for Certiorari
Posted by Susan Farbstein
First, the plaintiffs assert, review is necessary because the Kiobel majority’s decision conflicts with Supreme Court precedent governing subject matter jurisdiction. In short, the issue of whether corporations can be sued under the Alien Tort Statute (ATS) is a merits-based question because it concerns the reach of the statute, not a court’s adjudicatory power.
Second, the plaintiffs note, Kiobel generated a circuit split on the issue of corporate liability under the ATS. The Eleventh Circuit has rejected arguments that corporations are exempt from suit under the ATS in both Romero v. Drummond and Sinaltrainal v. Coca-Cola.
Finally, the plaintiffs urge review because the Kiobel decision conflicts with Sosa: it ignores the text, history, and purpose of the ATS; misinterprets footnote 20 in the Sosa decision; overlooks the fact that international law leaves the choice of how to enforce international obligations to domestic jurisdictions; and ignores general principles of law, which provide for corporate liability for serious human rights violations, as a source of international law.
We’ll obviously be keeping a close eye on this one, and will post supporting amicus briefs, the opposition brief, and the reply brief as they are filed.