ERI filed two friend of the court briefs today in separate cases before the U.S. Supreme Court, urging the Court to find that corporations and other entities can be sued when they are responsible for violations of fundamental human rights, just as they can be for everyday injuries.
In Kiobel v. Royal Dutch Petroleum Co., the Court is considering whether corporations are immune from suit under the Alien Tort Statute (ATS). The U.S. Court of Appeals for the Second Circuit held in Kiobel that corporations cannot be sued, but four other Courts of Appeals have heard that they can. ATS litigation is perhaps the most effective remedy that victims of atrocity have in the United States against a corporation that is involved in the abuse.
ERI and our co-counsel have pioneered this kind of litigation with our ATS suit against Unocal for its complicity in abuses in Burma, which successfully settled; and we achieved a similarly successful settlement in Wiwa v. Royal Dutch Petroleum, Co., a case like Kiobel arising out of Shell's complicity in egregious abuses in the Ogoni region of Nigeria. ERI's brief argues that the question of whether corporations can be sued is a question of U.S. domestic law, not international law, as the Second Circuit concluded, and that under ordinary domestic law principles, corporations can be held liable.
The United States government also submitted an amicus brief in support of the plaintiffs, making essentially the same argument. The Court may be particularly interested in the government’s views regarding the ATS because the statute potentially touches on U.S. foreign relations. The defendants and others supporting corporate immunity will be hard pressed to raise their spurious refrain that corporate liability interferes with U.S. foreign policy when the Administration supports such liability. This is the first time that the Obama Administration has weighed in on the substance of an ATS issue; the Bush Administration had previously opposed the plaintiffs in a number of cases.
The second case, Mohamad v. Palestinian Authority, presents the question of whether a legal entity can be sued for its involvement in torture or summary execution under the Torture Victim Protection Act. The lower courts are split on whether the term individual in the statute covers legal entities as well as natural persons. This issue also arose in Bowoto v. ChevronTexaco, in which ERI serves as co-counsel for the plaintiffs. In that case, the U.S. Court of Appeals for the Ninth Circuit held that corporations may not be sued under the TVPA. The plaintiffs asked the Supreme Court to review that decision, but the Court has not ruled on the petition, presumably because it expects that its decision in Mohamad is likely to resolve the issue in Bowoto. ERI filed an amicus brief in Mohamad on behalf of the Bowoto plaintiffs arguing that the TVPA allows claims against legal entities, including corporations, for torture and extrajudicial killing. The TVPA s use of the term individual to describe defendants was intended only to exclude foreign states, not corporations or organizations.
In addition to the briefs from ERI, and the U.S. government in Kiobel, the Court has received a number of other amicus briefs supporting the plaintiffs in these cases from a wide array of human rights organizations, legal scholars, victims, and United Nations officials. The Court is expected to decide these cases by the end of June.