Blogs

Last week, I finished working on the final brief of ERI’s client, Oxfam America, in the District Court lawsuit that the oil industry has filed to overturn landmark transparency legislation, American Petroleum Institute v. SEC.  In this brief, my  co-counsel and I underlined the lies and misleading references that the American Petroleum Institute (API) has spun in order to turn a common-sense, straightforward disclosure rule into a bug-eyed monster.

API’s argument revolves around three main themes.  First, they say it would violate their First Amendment free speech rights if oil companies were forced to publish information on the payments they make to governments.  In other words, they claim that companies have a constitutional right to make secret payments.  This argument is the legal equivalent of “swinging for the fences,” because if the court agrees with API, it could actually overturn the law instead of just invalidating the regulations that the SEC enacted under the law. 

It’s also the legal equivalent of a Hail Mary pass, because the argument is extremely thin.  In order to get there, API has to get the court to see these disclosures as a form of political coercion so that it can enjoy the same protections that political organizers receive when they seek to keep their supporters confidential.  To get First Amendment protection, you have to show that government is somehow controlling or chilling the expressive speech that you want make; it’s hard to see how these disclosures do that.

Of course, businesses can be required to disclose information all the time in the public interest, and it’s not political speech.  If API’s arguments were taken seriously, then the government couldn’t require companies to tell you what’s in the pesticides farmers use or to report to their . . .

Hardly anyone moved between the villages at night. Fighting in Kachin State was constant and soldiers from the Myanmar military patrolled the jungles, stopping anyone they found for questioning. The Kachin Independence Army and the Myanmar military were in the midst of a civil war that dated back to the 1960’s, but which had intensified since the 17 year long ceasefire broke in 2011. Monitoring groups estimated that upwards of 75,000 people in the region had been displaced by the fighting, with increasing reports of atrocities committed against civilians.

During this time, Chili Lu travelled through Kachin State, meeting with villagers in conflict areas documenting and reporting on the abuses they were suffering at the hands of Myanmar soldiers. Incidences of the military deliberately targeting civilians had been documented, but the fighting made the region extremely dangerous and there were precious few people conducting fact-finding work.

Chili Lu sat with scores of villagers and collected their firsthand accounts of the horrors that had become everyday occurrences in Kachin State. She listened to a woman who fled into the jungle with her 6 month old baby as soldiers swarmed her village, and later received word that her husband had been murdered. She heard stories of neighbors disappeared, carried away by soldiers and never seen again. She met with men who had been forced to work as porters, made to carry heavy loads, facing torture if they refused. Another woman remembered how her whole village watched as her home was burned to the ground. Everyone had seen what had happened, but there was nothing they could do. They were afraid of what retribution would fall on them if they were to talk, and so Chili Lu met with them in secret. By documenting what they told her, she was risking . . .

Over the weekend, the Peruvian Government’s Vice-Minister for Interculturality, Iván Lanegra confirmed that he would resign after he appeared to lose an argument over who is considered “indigenous” and thus protected by a new law in Peru implementing the right to prior consultation.

The dispute emerged over the creation and dissemination of a database (base de datos) which will list all the indigenous communities in Peru covered by the consultation law. The Vice-Minister for Interculturality is the government official responsible for the elaboration of this document.

The Vice-Minister and the entire executive branch have already faced criticism for delays in the publication of the database, for the lack of participation of indigenous communities in the preparation of the document, and for imposing overly-restrictive criteria for what constitutes being “indigenous.”

In retrospect, however, such criticism represents mere brush stroke errors compared to the bucket of paint that the President of the Republic and the Minister for Energy and Mines have just dumped onto the canvas.

According to a recent Reuters article, President Ollanta Humala has adopted the position put forward by Jorge Merino, leader of the Ministry for Energy and Mines, that the only indigenous communities covered by the consultation law should be Amazonian ones, excluding entirely the campesino communities of the Andes. This decision is a thinly veiled effort to facilitate the implementation of resource extraction projects throughout the Andean region, home to vast mineral deposits, without having to go through the inconvenience of consulting the communities whose lives will undoubtedly be hugely affected in the process. Indeed, the Ministry of Energy and Mines has already indicated that 14 projects will be moving forward without prior consultation.

In an attempt to justify this remarkable position, Merino has argued that the Quechua-speaking Andean campesinos should not be considered indigenous because . . .

As Jonathan mentioned in his recent post, the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum (Shell) left much to be answered as to how courts should handle Alien Tort Statute (ATS) claims arising outside of the United States. In Kiobel the Supreme Court dismissed a case involving foreign plaintiffs, foreign defendants, and foreign conduct. But the Supreme Court didn’t tell lower court judges what to do in cases that do not involve Kiobel’s “foreign cubed” set of facts but do involve claims arising abroad – other than to state that they must “touch and concern” the United States “with sufficient force.”

Friday morning, I attended one of the first hearings in an ATS case since Kiobel and saw firsthand how little guidance the Kiobel decision provides to lower court judges hearing ATS claims that arise outside of the United States—an indication of how little the Supreme Court actually decided in Kiobel. The case was Al Shimari v. CACI Premier Technology and involves ATS and common law claims against a U.S. military contractor (CACI) for alleged torture and other abuses occurring in Iraqi prisons as a part of a conspiracy with the U.S. government, and resulting from decisions made in Virginia.

During the hearing, district court judge Bruce Lee questioned both defense counsel and plaintiffs’ counsel (Baher Azmy, Legal Director of the Center for Constitutional Rights) about what they understood the Supreme Court to mean when it stated that the principles underlying the presumption against extraterritoriality should apply to ATS claims arising abroad. The judge also wanted to know what Kiobel’s “touch and concern” standard should be taken to mean. In a somewhat exasperated fashion, Judge Lee exclaimed to plaintiffs’ counsel at one point, “I am a trial court judge . . . and the Court didn’t tell me what . . .

In all the flurry surrounding last month’s decision in Kiobel v. Royal Dutch Petroleum, perhaps the clearest takeaway has been that the lower courts have their work cut out for them in applying the Supreme Court’s rule to actual cases where people have suffered abuses like torture, war crimes, and crimes against humanity.  The majority opinion, authored by Chief Justice Roberts, created a new presumption that claims arising out of human rights abuses that occurred abroad are not actionable under the Alien Tort Statute – a presumption that can be overcome in cases that “touch and concern the territory of the United States . . . with sufficient force.” 

We know that “mere corporate presence” of a foreign multinational company in the United States is not sufficient to overcome the new Kiobel presumption, but we also know that only Justices Alito and Thomas believed that all the conduct giving rise to a cause of action must take place on U.S. soil.  There is a broad spectrum of scenarios between the two extremes, and many of them are teed up for briefings in the coming weeks and months.

For example, this Friday, a judge in Virginia will hear arguments on how the Kiobel presumption applies in Al Shimari v. CACI Premier Technology, a case involving torture by a U.S. government contractor at the Abu Ghraib prison in Iraq.  According to the plaintiffs:

“Unlike in Kiobel, Plaintiffs’ claims arose out of conduct that occurred in a U.S. occupied territory and detention facility over which the United States had total authority; unlike in Kiobel, Plaintiffs’ claims challenge conduct undertaken by U.S. citizen employees of a U.S. corporation (domiciled in Virginia) in conspiracy with U.S. military personnel in carrying out (unlawfully) interrogations for the United States government and in violation of fundamental U.S. military and legislative prohibitions against torture and

. . .

I have to admit I'm confused and disappointed by the "U.S. Government Approach on Business and Human Rights," which was published recently.  The Government's scattershot "approach" appears to consist of a random collection of public-private partnerships, generally informative and aspirational guides, and legislative initiatives, most of which are years -- if not decades -- old.  Most glaring of all, despite enthusiastic references to the UN Guiding Principles on Business and Human Rights, the document completely ignores the need for victims to have access to justice and glosses over the administration's troubling record on remedies.

To be clear, it's not that the U.S. Government hasn't done anything on business and human rights -- undeniably, it has.  Congress has passed laws requiring transparency in the payments extractive companies make to governments and the due diligence companies undertake when sourcing metals from conflict-affected areas of Eastern Congo, and strengthening anti-human trafficking protections in government procurement.  Under President Obama, the U.S. has developed human rights reporting requirements for companies investing in Burma, pledged to implement the Extractive Industries Transparency Initiative, and put money and manpower into the Voluntary Principles on Security and Human Rights.

It's just that it galls me to see the government patting itself on the back for this smorgasbord of mostly voluntary initiatives at a time when it has actively worked to undermine access to justice for victims of human rights abuses connected to both U.S. and foreign companies.  Why doesn't this document mention the U.S. brief in Kiobel v. Royal Dutch Petroleum, in which it argued (successfully, as it turned out) to narrow the ability of U.S. federal courts to hear the claims of victims of human rights abuses abroad?  How can the U.S. trumpet the National Contact Point for the OECD Guidelines for Multinational . . .

That’s what Judge Kaplan in New York told Chevron today when he refused to allow the company to serve another subpoena on Amazon Watch. The original subpoenas relate to Chevron’s lawsuit in New York against the Ecuadorian plaintiffs and their counsel who won a $19 billion judgment against the oil company in Ecuador in 2011.   

Earlier this month, a judge in California had quashed two sweeping subpoenas issued by Chevron to Amazon Watch, concluding they were “egregiously overbroad” and sought “the heart of Amazon Watch’s expressive activity.” ERI had argued that the subpoenas were a violation of Amazon Watch’s First Amendment rights and an obvious effort by Chevron to harass and intimidate one of its most vocal critics. Although Chevron had urged the court to make a finding that Amazon Watch had engaged in fraudulent conduct, the court found that “all evidence before this Court suggests otherwise[.]”  Rather, “[a]ll that Chevron has shown … is that Amazon Watch has been very critical of Chevron’s operations in Ecuador.”  

Unsatisfied, Chevron went back to Judge Kaplan seeking another bite at the apple. But he wasn’t buying it either. “The essence of Chevron’s problem is of its own making,” he wrote in his order. The law was clear when Chevron served the first subpoena, Judge Kaplan said, and “by framing the subpoena as broadly as it did, it took its chances” that the court would throw out the subpoenas. “Nor did [Chevron] seek to modify its first subpoena … despite the approach and then expiration of the deadline for the service of documents requests in this action and despite earlier litigation in this Court concerning the timeliness of the service of the first subpoena on Amazon Watch.” 

Chevron has played dirty, manipulating the discovery . . .

After the Supreme Court’s decision in Kiobel this week, there is a lot to feel angry about, and yes, there are ambiguities.  The legal blogosphere has been buzzing, and while there are many different takes on what it all means, most people agree on a few things—the decision overall was a blow to human rights, and more generally, the Supreme Court has raised more questions than answers.  We’ll be litigating the details for quite a while.  

SCOTUSblog has a good collection of legal analysis, including ERI’s initial reaction, and the Business & Human Rights Resource Centre has compiled a number of responses as well.

The range of opinions there and elsewhere is wide—however, perhaps none are more offensive or ridiculous than corporate defense counsel Kristin Linsley Myles’s characterization of the ATS in her post on SCOTUSblog (emphasis added):

The ATS was a largely neglected jurisdictional statute until the Second Circuit’s decision in 1980 in Filartiga v. Peńa-Irala, but since then, increasingly has been used to target deep-pocket corporate defendants with allegations that they aided and abetted human rights violations by foreign governments. The Court’s decision is likely to put a stop to these cases, particularly where, as in Kiobel, neither the events at issue nor the parties to the case have any connection to the United States.

In the interest of full disclosure, Kristin Linsley Myles was one of the lawyers who represented Unocal in ERI’s case Doe v. Unocal, so there’s some history between us.  She and her co-counsel had no problem lining their own pockets defending the oil company against allegations of forced labor, torture, rape and extrajudicial killing in connection with their gas pipeline in Myanmar (Burma).  Our clients suffered unspeakable violence at the hands of her clients, and then risked . . .

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 . . .