When the Supreme Court decided Kiobel v. Royal Dutch Petroleum yesterday, one of our first tasks was to figure out what the decision meant for our cases. At this point, we're pretty optimistic, even though the Court dismissed the case because the human rights abuses happened outside the US and there wasn't enough of a connection to the United States.
ERI has several kinds of litigation in US courts, but we have three current transnational human rights and environmental lawsuits - cases where injuries happen outside the US, and we bring suit here. The cases illustrate a couple of ways in which transnational litigation will continue after Kiobel, despite the Supreme Court's ruling that limits the ability to bring Alien Tort Statute (ATS) cases for injuries that arise in other countries.
In our cases against Union Carbide and Occidental Petroleum, which both involve environmental contamination in foreign countries, we are proceeding under ordinary claims for "toxic torts" - negligence, trespass, nuisance, that sort of thing. These cases were brought under the "transitory tort" doctrine, which allows lawsuits to be brought in US courts against defendants who are subject to US jurisdiction (including US companies), no matter where the injuries occurred. They are not ATS cases.
The Supreme Court discussed the transitory tort doctrine briefly in Kiobel, but didn't suggest that there was any problem with this rule. The Court just said that the transitory tort rule didn't allow ATS cases, because transitory tort cases typically involve applying claims arising under foreign law - unlike ATS cases where US courts would "enforce a norm of international law."
So right now, we don't have any reason to believe that transitory tort cases will not continue, even against foreign defendants.
Our other transnational case is . . .