Victims and courts fight to hold corporations accountable for human rights abuses, challenging Kiobel
by Marco Simons
I've been following the Kiobel case, in which the U.S. Court of Appeals for the Second Circuit decided corporations could not be sued for violating international human rights law, since the decision was issued last fall. (See prior posts here, here, here, here, here, and here.)
Although the first court to consider this question after Kiobel similarly rejected corporate liability, in Flomo v. Firestone, victims have been fighting back--and recently they've been getting some help from the courts.
First, on May 18, a federal court in Illinois declined to follow Kiobel. In a case involving Hungarian Jews who allege theft of their property by Hungarian banks during the Holocaust, the court allowed claims of "[g]enocide by looting and aiding and abetting genocide by looting" to proceed under the Alien Tort Statute (ATS).
Most importantly, the court quotes extensively from Judge Leval's concurring opinion in Kiobel, and "agrees with the concurring opinion in Kiobel that there is a sufficient legal basis to hold corporations liable under the ATS for genocide." (The opinion is at the bottom of this post.)
Second, the corporate liability issue was argued in the appeal in the Flomo v. Firestone case before the Seventh Circuit last Thursday. It's always risky to predict the outcome of a case based on the oral argument, but some of the judges on this panel seemed to be pretty dismissive of the reasoning in Kiobel. (Listen to the argument.)
Last, the plaintiffs in the Kiobel case itself have taken the ultimate step in trying to challenge the Second Circuit's decision--they have filed a petition asking the Supreme Court to take the case. Whether the Supreme Court takes the case or not doesn't necessarily indicate whether the justices agree with the decision, but we'll certainly be watching to see what happens. Unless the Second Circuit reverses itself in a future case, this issue may ultimately need to be decided by the Supreme Court.