JOSEPH JESNER et al., Petitioners, v. ARAB BANK, PLC

No. 16-___

IN THE

JOSEPH JESNER et al.,

Petitioners

,

v.

ARAB BANK, PLC,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael E. Elsner

John M. Eubanks

Jodi Westbrook Flowers

MOTLEY RICE LLC

28 Bridgeside Boulevard

Mt. Pleasant, SC 29464

Mark Werbner

SAYLES WERBNER P.C.

4400 Renaissance Tower

1201 Elm Street

Dallas, TX 75270

Jeffrey L. Fisher

Counsel of Record

David T. Goldberg

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

[email protected]

QUESTION PRESENTED

This case presents the question this Court

granted certiorari to resolve, but ultimately left

undecided, in

Kiobel v. Royal Dutch Petroleum Co.

,

133 S. Ct. 1659 (2013): Whether the Alien Tort

Statute, 28 U.S.C. § 1350, categorically forecloses

corporate liability.

ii

PARTIES TO THE PROCEEDING

This petition arises from five separate lawsuits

that were consolidated on appeal:

Jesner v. Arab

Bank, PLC

, No. 06-CV-3869 (E.D.N.Y.);

Almog v.

Arab Bank, PLC

, No. 04-CV-5564 (E.D.N.Y.);

Afriat-

Kurtzer v. Arab Bank, PLC

, No. 05-CV-0388

(E.D.N.Y.);

Lev v. Arab Bank, PLC

, No. 08-CV-3251

(E.D.N.Y.); and

Agurenko v. Arab Bank, PLC

, No. 10-

CV-0626 (E.D.N.Y.). All of the alien plaintiffs in

these lawsuits whose claims arise under the ATS –

rather than the Antiterrorism Act, 18 U.S.C. § 2331

et seq.

– are petitioners here. A complete list of the

petitioners – roughly 6000 in total – has been filed

with the clerk’s office of this Court.

The sole defendant in all five cases, and the

respondent here, is Arab Bank, PLC.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

TABLE OF AUTHORITIES ......................................... v

PETITION FOR A WRIT OF CERTIORARI ............... 1

OPINIONS BELOW ..................................................... 1

JURISDICTION ............................................................ 1

RELEVANT STATUTORY PROVISION .................... 1

INTRODUCTION ......................................................... 2

STATEMENT OF THE CASE ..................................... 3

REASONS FOR GRANTING THE WRIT ................. 14

I. Since

Kiobel

, the Circuit Split over Whether

the ATS Allows Corporate Liability Has

Reconstituted Itself and Solidified ...................... 14

II. The Question Whether the ATS Allows

Corporate Liability Remains Important ............. 16

III. This Case Is an Excellent Vehicle for

Resolving the Issue .............................................. 21

IV. The Second Circuit’s Rule That the ATS

Categorically Precludes Corporate Liability Is

Wrong .................................................................... 24

CONCLUSION ............................................................ 32

APPENDICIES

Appendix A, Opinion of the U.S. Court of

Appeals for the Second Circuit, Dec. 8,

2015 ................................................................ 1a

Appendix B, Order and Accompanying

Opinions of the U.S. Court of Appeals

for the Second Circuit Denying

Rehearing En Banc, May 9, 2016 ............... 34a

iv

Appendix C, Opinion of the U.S. Court of

Appeals for the Second Circuit in

Kiobel

v. Royal Dutch Petroleum Co

., Sep. 17,

2010 ............................................................. 64a

Appendix D, Order of the U.S. Court of

Appeals for the Second Circuit in

Kiobel

v. Royal Dutch Petroleum Co

. Denying

Rehearing En Banc, Feb. 4, 2011 ............. 243a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Al Haramain Islamic Found., Inc. v. U.S.

Dep’t of the Treasury

, 686 F.3d 965

(9th Cir. 2011) ...................................................... 17

Al Shimari v. CACI Premier Tech., Inc.

,

758 F.3d 516 (4th Cir. 2014) ................................ 19

Al Shimari v. CACI Premier Tech., Inc.

,

119 F. Supp. 3d 434 (E.D. Va. 2015) ................... 19

Aldana v. Del Monte Fresh Produce, N.A., Inc.

,

416 F.3d 1242 (11th Cir. 2005) ............................ 15

Argentine Republic v. Amerada Hess Shipping

Corp.

, 488 U.S. 428 (1989) ................................... 26

Astoria Fed. Sav. & Loan Ass’n v. Solimino

,

501 U.S. 104 (1991) .............................................. 25

Balt. & Potomac R.R. v. Fifth Baptist Church

,

108 U.S. 317 (1883) .............................................. 25

Baraket v. Holder

, 632 F.3d 56 (2d Cir. 2011) .......... 12

Boim v. Holy Land Found. for Relief & Dev.

,

549 F.3d 685 (7th Cir. 2008) .................................. 4

Brill v. Chevron Corp

., No. 3:15-cv-04916

(N.D. Cal. Oct. 26, 2015) ...................................... 19

Briscoe v. LaHue

, 460 U.S. 325 (1983) ...................... 25

Chestnut Hill & Spring House Turnpike Co. v.

Rutter

, 4 Serg. & Rawle 6 (Pa. 1818) .................. 25

Doe v. Exxon Mobil Corp.

, No. 01-1357(RCL),

2015 WL 5042118 (D.D.C. July 6, 2015) ....... 16, 19

Doe v. Nestle USA, Inc.

, 766 F.3d 1013

(9th Cir. 2014),

cert. denied

,

136 S. Ct. 798 (2016) ....................................

passim

vi

Doe v. Pure Forest, LLC

, No. 2:14-cv-00879

(E.D. Cal. Apr. 8, 2014) ........................................ 20

Doe VIII v. Exxon Mobil Corp.

, 654 F.3d 11

(D.C. Cir. 2011),

vacated on other grounds

,

527 F. App’x 7 (D.C. Cir. 2013) .......... 12, 15, 16, 29

Flomo v. Firestone Nat. Rubber Co.

,

643 F.3d 1013 (7th Cir. 2011) .................. 12, 15, 27

Global Relief Found., Inc. v. O’Neill

,

315 F.3d 748 (7th Cir. 2002) ................................ 17

Holder v. Humanitarian Law Project

,

561 U.S. 1 (2010) ................................................ 4, 9

Holy Land Found. for Relief and Dev. v.

Ashcroft

, 219 F. Supp. 2d 57 (D.D.C. 2002) ........ 17

Inst. of Cetacean Research v. Sea Shepherd

Conservation Soc’y

, 588 F. App’x 701

(9th Cir. 2014) ...................................................... 19

Isbrandtsen Co. v. Johnson

, 343 U.S. 779

(1952) .................................................................... 25

Kiobel v. Royal Dutch Petroleum Co.

,

133 S. Ct. 1659 (2013) ..................................

passim

Kiobel v. Royal Dutch Petroleum Co.

,

621 F.3d 111 (2d Cir. 2010) .................................. 10

Ladra v. Rubias

, No. 1:15-cv-04231 (S.D.N.Y.

June 2, 2015) ........................................................ 20

Licci v. Lebanese Canadian Bank, SAL

,

___ F.3d ___, 2016 WL 4470977

(2d Cir. Aug. 24, 2016) ................................... 19, 24

Linde v. Arab Bank, PLC

, 97 F. Supp. 3d 287

(E.D.N.Y. 2015) ........................................... 6, 10, 23

Mayor of Lynn v. Turner

(1774) 98 Eng. Rep.

980 (K.B.) .............................................................. 25

vii

Meyer v. Holley

, 537 U.S. 280 (2003) .................. 24, 26

Minneci v. Pollard

, 132 S. Ct. 617 (2012) .................. 20

Nestle USA, Inc. v. Doe

, 136 S. Ct. 798 ............... 15, 21

Phila., Wilmington, & Balt. R.R. v. Quigley

,

62 U.S. (21 How.) 202 (1859) ............................... 25

Romero v. Drummond Co.

, 552 F.3d 1303

(11th Cir. 2008) .............................................. 12, 15

Sarei v. Rio Tinto, PLC

, 671 F.3d 736

(9th Cir. 2011),

vacated on other grounds

,

133 S. Ct. 1995 (2013) .......................................... 14

Sinaltrainal v. Coca-Cola Co.

, 578 F.3d 1252

(11th Cir. 2009) .................................................... 15

Skinner v. East India Co.

(1666) 6 State Trials

710 (H.L.) ........................................................ 26, 27

Smith v. Wade

, 461 U.S. 30 (1983) ............................ 20

Sosa v. Alvarez-Machain

, 542 U.S. 692

(2004) ............................................................

passim

The Malek Adhel

, 43 U.S. (2 How.) 210 (1844) ......... 26

The Marianna Flora

, 24 U.S. (11 Wheat.) 1

(1826) .................................................................... 26

The Rebecca

, 20 F. Cas 373 (D. Me. 1831) ................ 26

United States v. Amedy

, 24 U.S. (11 Wheat.)

392 (1826) ............................................................. 25

Constitutional Provision

U.S. Const., amend. XIII ............................................ 29

Statutes

The Antiterrorism Act, 18 U.S.C. § 2331

et seq

., ............................................................... 8, 22

viii

Antiterrorism and Effective Death Penalty Act

of 1996, Pub L. No. 104-132, 110 Stat. 1214 ....... 22

Bank Secrecy Act, 31 U.S.C. § 5311

et seq

., ................ 7

18 U.S.C. § 2339B(a)(1) ................................................ 9

28 U.S.C. § 1254(1) ....................................................... 1

28 U.S.C. § 1350 ..................................................

passim

Other Authorities

Arab Bank Group, Annual Report (2003) .................... 5

Arab Bank Group, Annual Report (2000) .................... 5

Arab Bank Ltd., 28th Annual Report (1957) ............... 5

Arab Bank Ltd., 39th Annual Report (1968) ............... 5

Arab Bank Ltd., 41st Annual Report (1970) ............... 5

Arab Bank Ltd.,

The Indomitable Arab: The

Life and Times of Abdulhameed Shoman

(1890-1974) Founder of the Arab Bank

(1st ed. 1984) .......................................................... 5

Bassiouni, M. Cherif,

Crimes Against

Humanity in International Criminal Law

(2d rev. ed. 1999) .................................................. 29

Blackstone, William,

Commentaries on the

Laws of England

(1765) ....................................... 25

Dodge, William S.,

Corporate Liability Under

Customary International Law

, 43 Geo. J.

Int’l L. 1045 (2012) ............................................... 27

Doyle, Ursula Tracy,

The Evidence of Things

Not Seen: Divining Balancing Factors from

Kiobel

’s “Touch and Concern” Test

, 66

Hastings L.J. 443 (2015) ...................................... 18

Fletcher, William M.,

Cyclopedia of the Law of

Corporations

(2016 rev. ed.) ................................. 26

ix

Henkin, Louis,

Foreign Affairs and the United

States Constitution

(2d ed. 1996) ....................... 27

International Convention for the Suppression

of the Financing of Terrorism, Dec. 9, 1999,

2178 U.N.T.S. ....................................................... 30

Kyd, Stewart,

A Treatise on the Law of

Corporations

(1793) .............................................. 25

Office of Foreign Assets Control,

Specially

Designated Nationals and Blocked Persons

List

........................................................................ 17

Official Journal of the Eur. Union,

Council

Decision (CFSP) 2015/2430

.................................. 18

Restatement (Second) of Torts § 901 (1979) .............. 26

Restatement (Third) of Agency § 7.03 (2006) ............ 26

The Clearing House,

CHIPS Rules and

Administrative Procedures

(Feb. 5, 2016) ...... 7, 23

United Nations,

The List Established and

Maintained Pursuant to Security Council

Resolution 1267/1989/2253

.................................. 17

PETITION FOR A WRIT OF CERTIORARI

Petitioners Joseph Jesner et al. respectfully

petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Second Circuit in Nos. 13-3605, 13-3620, 13-

3635, 13-4650, and 13-4652.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Second Circuit (Pet. App. 1a) is

published at 808 F.3d 144 (2d Cir. 2015). The order

and accompanying opinions denying en banc review

(Pet. App. 34a) are published at 822 F.3d 34 (2d Cir.

2016). The pertinent order of the district court is

unpublished but reproduced within the Second

Circuit’s opinion at Pet. App. 6a.

JURISDICTION

The judgment of the court of appeals was

entered on December 8, 2015. Pet. App. 1a. A

timely petition for rehearing was denied on May 9,

2016.

Id.

34a. On July 22, 2016, Justice Ginsburg

extended the time within which to file a petition for

a writ of certiorari to and including October 6, 2016.

See

No. 16A82. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

The Alien Tort Statute, 28 U.S.C. § 1350,

provides in full: “The district courts shall have

original jurisdiction of any civil action by an alien

for a tort only, committed in violation of the law of

nations or a treaty of the United States.”

2

INTRODUCTION

Enacted by the First Congress, the Alien Tort

Statute (“ATS”) provides that “[t]he district courts

shall have original jurisdiction of any civil action by

an alien for a tort only, committed in violation of the

law of nations or a treaty of the United States.” 28

U.S.C. § 1350. In

Kiobel v. Royal Dutch Petroleum

Co.

, 133 S. Ct. 1659 (2013), this Court granted

certiorari to consider whether this statute –

consistent with other tort statutes in the U.S. Code

– allows lawsuits against corporations.

See id.

at

1663. But rather than answering that question, this

Court resolved that case based on the presumption

against extraterritoriality. Explaining that “it would

reach too far to say that mere corporate presence” in

the United States “suffices” under the ATS to

subject a business to liability, this Court held in

Kiobel

that the statute did not apply because “all the

relevant conduct” giving rise to the plaintiffs’ claims

took place “outside the United States.”

Id.

at 1669.

This case involves corporate transgressions that

occurred within the United States. Petitioners

allege (and a jury has determined, in parallel

proceedings involving non-alien plaintiffs) that

respondent Arab Bank knowingly used its New York

branch to collect donations, transfer money, and

serve as a “paymaster” for international terrorists.

Indeed, the Bank distributed U.S. dollar payments

in the hundreds of millions to finance suicide

bombings and to make so-called “martyrdom”

payments – payments rewarding families of the

perpetrators for killing innocent civilians.

The Second Circuit acknowledged that this

Court’s opinion in

Kiobel

“suggests that the ATS

3

may allow for corporate liability” and observed that

“there is a growing consensus among [its] sister

circuits to that effect.” Pet. App. 14a;

see id.

25a

(citing cases from the Fourth, Seventh, Ninth,

Eleventh, and D.C. Circuits holding that the ATS

permits corporate liability).

The Second Circuit nevertheless adhered to its

prior position that the ATS forecloses corporate

liability regardless of what activities a corporation

conducts within this country. Pet. App. 2a, 26a.

The panel asserted that “Supreme Court review” is a

more appropriate avenue for securing uniformity on

that question.

Id.

26a. Five judges voted to rehear

the case en banc, arguing “[i]t is a disservice to the

litigants in this case, and every other litigant with a

potentially viable ATS case against corporate

defendants, to rely on the Supreme Court to fix

our

error.”

Id.

58a (Pooler, J., dissenting from the denial

of rehearing en banc). But the majority of Second

Circuit judges agreed with the panel, maintaining

that while they “do not necessarily endorse” the

original panel’s holding barring corporate liability,

this Court is a better forum for resolving the issue.

Pet. App. 37a (Jacobs, J., concurring in the denial of

rehearing in banc);

see also id.

42a.

STATEMENT OF THE CASE

1. Over the past few decades, various terrorist

organizations have sought “to intimidate and coerce

the civilian population of Israel” in furtherance of

those organizations’ sociopolitical aims. CA2 App.

221 (complaint). One such organization is Hamas,

whose aim is to “obliterate” the Jewish State.

Id.

223. Similar organizations – all, like Hamas, listed

for years by the U.S. Department of the Treasury as

4

Specially Designated Global Terrorists and

designated by the Department of State as foreign

terrorist organizations – include the Palestine

Islamic Jihad, the Al-Aqsa Martyrs’ Brigades, and

the Popular Front for the Liberation of Palestine.

These groups’ terrorist activities “rest[] on a

foundation of money.” CA2 App. 145 (quoting

congressional testimony of Joseph A. Morris, former

General Counsel of the U.S. Information Agency).

In fact, “[m]oney is often more important to the

masters of terrorism than are people.”

Id.

Money is

required not only to purchase weapons and to pay

for militant training; it is also used to “compensate”

families of suicide bombers and security detainees.

The promise of “compensation” allows terrorists to

undertake their lethal activities knowing that their

families will receive remuneration (and enhanced

social status) from their killings.

Id.

146;

see also

Boim v. Holy Land Found. for Relief & Dev.

, 549

F.3d 685, 698 (7th Cir. 2008).

It is also vital to bear in mind that “[m]oney is

fungible.”

Holder v. Humanitarian Law Project

, 561

U.S. 1, 37 (2010). Money a terrorist group obtains

under the auspices of charitable donations and the

like can “be redirected to funding the group’s violent

activities.”

Id.

at 37. Terrorist groups such as

Hamas, therefore, often “systematically conceal

their activities behind charitable, social, and

political fronts,”

id.

at 30 (quotation marks and

citation omitted) – sometimes, as here, with the help

of other actors.

2. The founders and top executives of

respondent Arab Bank – a multinational financial

corporation based in Jordan that has long had a

5

branch in New York – have long shared the view

that Israel poses a “threat” to Arab interests. The

founder of the bank “link[ed] the idea of establishing

a bank to the urgent need of protecting their Arab

homeland, of reinforcing their powers of resistance

to colonialism and Zionism, and of assuring the

Arabs of ultimate victory over those enemies.” Arab

Bank Ltd.,

The Indomitable Arab: The Life and

Times of Abdulhameed Shoman (1890-1974)

Founder of the Arab Bank

118 (1st ed. 1984). And

the Bank’s official documents have referred over the

years to Israel as an “enemy” and “common foe,”

exhorting Arabs “to sacrifice their lives and offer the

money needed for their self-defence and for the

liberation of their sacred places and all their

occupied territories.” Arab Bank Ltd., 39th Annual

Report, at 13 (1968);

see also

Arab Bank Group,

Annual Report, at 6 (2003) (Arabic version); Arab

Bank Group, Annual Report, at 4 (2000) (Arabic

version); Arab Bank Ltd., 41st Annual Report, at 4

(1970); Arab Bank Ltd., 28th Annual Report, at 13

(1957).

During the period surrounding the “Second

Intifada” (the second Palestinian uprising against

Israel, which commenced in 2000), the Bank itself

provided a range of financial services to terrorists

and terrorist front groups posing as “charities.” CA2

App. 145. For one thing, the Bank hosted bank

accounts for such individuals and organizations,

fully aware of their terrorist goals. Pet. App. 11a.

The Bank, for example, maintained accounts for

numerous well-known leaders of Hamas – including

several of the group’s founders, a military leader,

and the head of its Gaza operations.

Linde v. Arab

Bank, PLC

, 97 F. Supp. 3d 287, 301-03 (E.D.N.Y.

6

2015). The Bank has further admitted that it

processed 282 funds transfers – a total amount of

$2,563,275 – for individuals the United States

designated at the time as terrorists,

id.

at 304.

The Bank also accepted private donations

directly into these sorts of accounts, knowing they

were solicited by the groups to fund terrorism. Pet.

App. 11a. The Bank, for instance, opened an

account at the request of Hamas leader Osama

Hamdan – a U.S.-designated terrorist – that Hamas

subsequently identified on one of its websites as a

place for making donations to it.

Linde

, 97 F. Supp.

3d at 311, 341. The Bank later reviewed and

approved multiple transfers to the account listing

the beneficiary as “Hamas.”

Id.

at 311, 332.

Finally, the Bank has served as the “paymaster”

for Hamas and other terrorist organizations, helping

them identify and pay the families of suicide

bombers and other terrorists.

Linde

, 97 F. Supp. 3d

at 304. Between 2000 and 2002, the Bank made at

least “24 payments to the families of suicide

bombers from Hamas.”

Id.

And there is no doubt

the Bank knew the purpose of these payments: A

2001 internal document, for instance, “appended

lists of payments to the families of deceased

individuals, whose cause of death was noted as . . .

‘martyrdom operations.’”

Id.

at 304-05.

Nearly all the Bank’s various transactions in aid

of Palestinian terrorists – totaling at least 121

million U.S. dollars – were processed through the

Bank’s New York branch. This contact with the

United States is no fleeting detail. Rather, it was a

key aspect of the scheme. The U.S. dollar is the

preferred currency for transferring money among

7

terrorist front groups and paying the families of

“martyrs” in locations such as the West Bank and

Gaza. CA2 App. 146-47. And in order to process

foreign dollar-denominated payments without

assuming the risk of settlement, a bank must use

the Clearing House Interbank Payments System

(“CHIPS”). That system requires participants to

process payments through “an office located in the

United States of America” that is “subject to

regulation” under U.S. law.

See

The Clearing

House,

CHIPS Rules and Administrative

Procedures

, Rules 6 & 19(a) (Feb. 15, 2016).

Therefore, absent having and using its New York

branch, the Bank could not have conducted the

transfers at issue here in U.S. dollars.

1

In 2004, two of the Bank’s U.S. regulators – the

Financial Crimes Enforcement Network (FinCEN)

and Office of the Comptroller Currency (OCC) –

investigated the Bank on suspicion of violating the

Bank Secrecy Act’s anti-money laundering

regulations. FinCEN determined that the New York

Branch had seemingly transferred money to and

from many individuals on terrorist watch lists and

that the branch’s wire-transfer practices posed an

ongoing risk of “terrorist financing.” CA2 App. 1013-

1

The Clearing House Rules are available at

https://www.theclearinghouse.org/~/media/files/payco%20files/

chips%20rules%20and%20administrative%20procedures%2020

16.pdf?la=en. The only other way a financial institution may

process international U.S. dollar fund transfers without

assuming the risk of settlement is to have an affiliation with

another institution grounded on U.S. soil. Arab Bank has

never had any such relationship.

8

14. The OCC agreed and ordered the branch to

cease offering those and other traditional banking

services. CA2 App. 982.

3. Petitioners are victims of terrorist attacks –

including family members and estate

representatives – that took place between 1995 and

2005 in Israel, the West Bank, and Gaza. In five

separate lawsuits filed between 2004 and 2010 in

the U.S. District Court for the Eastern District of

New York, they alleged that Arab Bank knowingly

and intentionally financed this terrorism through

activities in New York that led to the suicide

bombings and other attacks that caused petitioners’

injuries.

See

Pet. App. 3a-4a (listing cases), 12a.

Petitioners also allege that the Bank, through the

involvement of its New York branch, knowingly

distributed millions of dollars to terrorists and their

families on behalf of terrorist front groups.

Petitioners, as foreign nationals, brought their

claims under the ATS. Specifically, they allege that

Arab Bank violated the law of nations insofar as it

financed terrorism and directly and indirectly

engaged in genocide and crimes against humanity.

2

Other plaintiffs in these and related lawsuits who

are U.S. nationals asserted parallel claims under the

Antiterrorism Act, 18 U.S.C. § 2331

et seq.

, which

allows U.S. citizens to recover for injuries caused by

a corporation’s material support for terrorist

2

Some petitioners also alleged certain common-law

claims. The district court dismissed those claims, and the

Second Circuit affirmed.

See

Pet. App. 29a-33a. Petitioners do

not press those claims here.

9

activities.

See id.

§ 2339B(a)(1);

see generally

Humanitarian Law Project

, 561 U.S. 1 (describing

and construing particulars of material support

statute).

The district court consolidated all five cases,

along with six others advancing basically the same

allegations. Pet. App. 12a & n.12. While discovery

progressed, the district court rebuffed various efforts

by the Bank to get the cases dismissed. The district

court held that all three of petitioners’ ATS claims

satisfy the statute’s requirement that claims rest on

“norm[s] of international character accepted by the

civilized world and defined with” sufficient

“specificity,”

Sosa v. Alvarez-Machain

, 542 U.S. 692,

725 (2004). CA2 App. 543-77. The court also

determined that “the complaint[s] here include[]

claims of actionable conduct by Arab Bank in New

York.” CA2 App. 783.

After further discovery, the district court

bifurcated petitioners’ ATS claims from the U.S.

nationals’ ATA claims, and the latter proceeded to

trial. In 2014, a jury found the Bank liable under

the ATA for providing material support to the

designated foreign terrorist organization Hamas.

Specifically, the plaintiffs proved that respondent

“knowingly provided financial services to Hamas by

providing financial services to its operatives; to 11

charities controlled by Hamas; and to an

organization called the Saudi Committee for the

Support of the Intifada Al-Quds, an entity connected

to the Saudi Arabian government that made

payments to beneficiaries identified by Hamas-

controlled organizations, including the families of

Hamas suicide bombers and prisoners.”

Linde

, 97 F.

10

Supp. 3d at 299. The jury also found that the Bank’s

actions substantially contributed to causing twenty-

two separate terrorist attacks – a majority of which

overlap with and form the basis for certain of

petitioners’ ATS claims. The district court upheld

this verdict “in large part.” Pet. App. 7a n.9.

Meanwhile, a divided panel of the Second

Circuit broke with every other appellate court to

have considered the question whether the ATS

allows corporate liability and held that it does not.

Kiobel v. Royal Dutch Petroleum Co.

, 621 F.3d 111

(2d Cir. 2010) (reproduced at Pet. App. 64a-242a).

Judge Leval described this holding as “illogical,

misguided, and based on misunderstandings of

precedent.” Pet. App. 145a (concurring only in the

judgment). He lamented the consequence that “one

who earns profits by commercial exploitation of

abuse of fundamental human rights can successfully

shield those profits from victims’ claims for

compensation simply by taking the precaution of

conducting the heinous operation in the corporate

form.”

Id.

142a. The majority responded with

“confiden[ce] that if our effort is misguided, higher

judicial authority is available to tell us so.”

Id.

83a.

The Second Circuit then denied rehearing en banc

by an equally divided vote, with four judges

asserting that “the panel majority opinion is very

likely incorrect,”

id.

244a (Lynch, J., dissenting from

the denial of rehearing in banc), and the court’s now-

Chief Judge writing separately to highlight the

“extraordinary importance” of the no-corporate-

liability rule the panel had announced.

Id.

(Katzmann, J., dissenting from the denial of

rehearing in banc).

11

This Court granted certiorari in

Kiobel

to

consider whether the ATS “recognize[s] corporate

liability.” 133 S. Ct. 1659, 1663 (2013). The United

States maintained that it does, explaining that

“[c]ourts may recognize corporate liability in actions

under the ATS as a matter of federal common law.”

Br. for the United States as Amicus Curiae

Supporting Petitioners at 7,

Kiobel

, 133 S. Ct. 1659

(No. 10-1491).

But after ordering supplemental briefing, the

Court resolved the case on alternative grounds. The

Court held that the ATS claims must “touch and

concern the territory of the United States . . . with

sufficient force to displace the presumption against

extraterritorial application.”

Kiobel

, 133 S. Ct. at

1669. The statute thus did not confer jurisdiction in

Kiobel

because “all the relevant conduct took place

outside the United States.”

Id.

The plaintiffs and

defendants were foreign, and the defendant’s only

connection to the United States was a single office in

this country that performed services unrelated to

the lawsuit.

Id.

at 1677 (Breyer, J., concurring in

the judgment).

“Corporations are often present in

many countries,” this Court explained, “and it would

reach too far to say that mere corporate presence

suffices.”

Id.

at 1669.

Once

Kiobel

became final, Arab Bank moved for

dismissal based on the Second Circuit’s bar against

corporate liability. Because this Court’s decision in

Kiobel

had not directly addressed the question of

corporate liability and “[a] decision by a panel of the

Second Circuit ‘is binding unless and until it is

overruled by the Court en banc or by the Supreme

Court,’” the district court deemed itself bound to

12

dismiss the case on the ground that “plaintiffs

cannot bring claims against corporations under the

ATS.” Pet. App. 6a (quoting district court decision,

in turn quoting

Baraket v. Holder

, 632 F.3d 56, 59

(2d Cir. 2011)).

4. The Second Circuit affirmed in an

extraordinary set of opinions. Writing for a

unanimous panel, Judge Sack observed that this

Court’s reasoning in

Kiobel

“appears to suggest that

the ATS may indeed allow for corporate liability – a

reading of the statute that several of our sister

circuits have adopted.” Pet. App. 2a;

id.

25a (citing

Flomo v. Firestone Nat. Rubber Co.

, 643 F.3d 1013,

1021 (7th Cir. 2011);

Doe v. Nestle USA, Inc.

, 766

F.3d 1013, 1022 (9th Cir. 2014),

cert. denied

, 136 S.

Ct. 798 (2016);

Romero v. Drummond Co.

, 552 F.3d

1303, 1315 (11th Cir. 2008);

Doe VIII v. Exxon Mobil

Corp.

, 654 F.3d 11, 57 (D.C. Cir. 2011),

vacated on

other grounds

,

527 F. App’x 7 (D.C. Cir. 2013)). The

panel “nonetheless decline[d] to conclude” that this

Court’s

Kiobel

decision had rejected the court of

appeals’ no-corporate-liability rule.

Id.

26a. Instead,

the panel “le[ft] it to either an en banc sitting of [the

Second Circuit] or an eventual Supreme Court

review to overrule” the holding, expressing hope

that, if necessary, this Court “would decide to grant

certiorari on this issue again – especially in light of

the divergence of federal case law since [

Kiobel

].”

Id.

26a-27a.

The Second Circuit then denied rehearing en

banc, apparently by a vote of eight-to-five.

See

Pet.

App. 37a (Jacobs, J., concurring in the denial of

rehearing in banc) (referencing vote). Two judges

issued dissenting opinions. Judge Pooler explained

13

that the original panel’s flawed holding is

“exceptionally important” because it thwarts

litigation that “has proven to be an essential tool for

victims of egregious human rights abuses

perpetrated by both corporations and natural

persons.”

Id.

50a, 58a. Judge Chin, joined by Judge

Carney, echoed the need to resolve the issue and to

bring the Second Circuit into line with other federal

circuits.

Id.

59a-63a.

Two other judges, each joined by two colleagues,

responded with opinions concurring in the denial of

rehearing en banc. Judge Cabranes, the author of

the original

Kiobel

panel opinion holding that the

ATS precludes corporate liability, disputed that the

“tea leaves” in this Court’s

Kiobel

opinion should be

read as disagreeing with the original panel’s

analysis. Pet. App. 44a. In Judge Cabranes’ view,

this Court’s statement that “mere corporate

presence” is not enough for liability,

Kiobel

, 133 S.

Ct. at 1669, did nothing more than “

assum[e]

”

without deciding

“that corporations could be held

liable under the ATS,” Pet. App. 45a.

Judge Jacobs, for his part, maintained that even

though a majority of the Second Circuit does not

necessarily agree with the no-corporate-liability

rule, en banc review would be unwise because the

“highly charged” issue of corporate liability has

already caused enough “friction, heat and light”

among judges of the court. Pet. App. 42a;

see also

id.

36a. “More to the point,” Judge Jacobs

continued, the Supreme Court already has “two

vigorous Second Circuit opinions to consider” if it

decides to “revisit [this] question.”

Id.

42a.

14

REASONS FOR GRANTING THE WRIT

The federal courts of appeals are divided four-to-

one over whether the ATS allows corporate liability.

This issue – as this Court’s previous decision to

consider it attests – is extraordinarily significant,

and this case is an ideal vehicle for resolving the

question. Finally, the Second Circuit’s rule that the

ATS forecloses corporate liability is mistaken. The

statute leaves remedial questions concerning

violations of the law of nations to federal common

law. And federal common law has made clear ever

since the ATS has been on the books that

corporations may be held liable for torts.

I. Since

Kiobel

, the Circuit Split over

Whether the ATS Allows Corporate

Liability Has Reconstituted Itself and

Solidified.

As the Second Circuit here acknowledged, its

rule categorically precluding corporate liability

under the ATS “swim[s] alone against the tide.” Pet.

App. 14a. Indeed, there are now four federal courts

of appeals that expressly hold, in conflict with the

Second Circuit, that the ATS allows corporate

liability.

Most recently, the Ninth Circuit “reaffirm[ed]”

its pre-

Kiobel

view holding that international-law

norms “that are ‘universal and absolute,’ or

applicable to ‘all actors,’ can provide the basis for an

ATS claim

against a corporation

.”

Doe v. Nestle

USA, Inc.

, 766 F.3d 1013, 1021-22 (9th Cir. 2014)

(emphasis added) (quoting

Sarei v. Rio Tinto, PLC

,

671 F.3d 736, 760 (9th Cir. 2011),

vacated on other

grounds

, 133 S. Ct. 1995 (2013)),

cert. denied

, 136 S.

15

Ct. 798 (2016). The Ninth Circuit thus allowed an

ATS lawsuit to go forward in which the plaintiffs

allege that a U.S.-based corporation aided and

abetted child slavery.

Id.

at 1028-29.

The Seventh Circuit likewise has held that

“corporate liability is possible under the Alien Tort

Statute.”

Flomo v. Firestone Nat. Rubber Co.

, 643

F.3d 1013, 1021 (7th Cir. 2011). As Judge Posner

reasoned for a unanimous panel, the statute

interposes “no objection to corporate civil liability” at

least when human rights violations are “directed,

encouraged, or condoned at the corporate

defendant’s decisionmaking level,”

id.

– a standard

easily met here.

See supra

at 4-5.

The Eleventh Circuit also has repeatedly held

that “corporate defendants are subject to liability

under the ATS.”

Sinaltrainal v. Coca-Cola Co.

, 578

F.3d 1252, 1263 (11th Cir. 2009);

see also

3

After this Court’s decision in

Kiobel

, the D.C. Circuit

vacated its decision to allow the district court to address

questions about extraterritoriality in the first instance.

See

527 F. App’x 7 (D.C. Cir. 2013). But as the district court’s

decision on remand demonstrates, the D.C. Circuit’s corporate

liability holding continues to be circuit law because “the

expressed reasons for the [D.C. Circuit’s] order vacating the

opinion had nothing to do with the issue of corporate liability

under the ATS.”

See Doe v. Exxon Mobil Corp.

, No. 01-

1357(RCL), 2015 WL 5042118, at *2 (D.D.C. July 6, 2015).

17

Kiobel v. Royal Dutch Petroleum Co.

, 133 S. Ct.

1659, 1671, 1674 (2013) (Breyer, J., concurring in

the judgment) (covers violations “of the most

fundamental international norms”).

2. Corporations sometimes engage in acts that

violate the law of nations. For-profit corporations,

as this case demonstrates, have knowingly financed

terrorism in contravention of the universal norm

prohibiting such activity. Furthermore, the United

States Department of the Treasury has designated

certain “501(c)(3) charitable organization[s]” that

raise money in the United States as Specially

Designated Global Terrorists.

Holy Land Found. for

Relief and Dev. v. Ashcroft

, 219 F. Supp. 2d 57, 64

(D.D.C. 2002);

see also

1 Stewart Kyd,

A

Treatise on the Law of Corporations

13 (1793)

(corporations are capable of “suing and being sued”);

1 William Blackstone,

Commentaries on the Laws of

England

463 (1765) (corporations may “sue or be

sued . . . and do all other acts as natural persons

may”). Indeed, “[a]t a very early period, it was

decided in Great Britain, as well as in the United

States, that actions might be maintained against

corporations for torts; and instances may be found,

in the judicial annals of both countries, of suits for

torts arising from the acts of their agents, of nearly

every variety.”

Phila., Wilmington, & Balt. R.R. v.

Quigley

, 62 U.S. (21 How.) 202, 210-11 (1859);

see

also Mayor of Lynn v. Turner

(1774) 98 Eng. Rep.

980 (K.B.);

Chestnut Hill & Spring House Turnpike

Co. v. Rutter

, 4 Serg. & Rawle 6, 17 (Pa. 1818)

(“[F]rom the earliest times to the present,

corporations have been held liable for torts.”).

The common law rule that corporations can be

held liable for torts has remained “well settled,”

Balt. & Potomac R.R. v. Fifth Baptist Church

, 108

U.S. 317, 330 (1883), and is a bedrock principle of

tort law today.

See, e.g.

,

Meyer

, 537 U.S. at 285-86;

Restatement (Third) of Agency § 7.03 (2006); 9A

26

William M. Fletcher,

Cyclopedia of the Law of

Corporations

§ 4521 (2016 rev. ed.). The rule

effectuates deterrence and accountability, ensuring

that entities responsible for misconduct compensate

victims they injure.

See

Restatement (Second) of

Torts § 901 (1979).

b. The ATS expressly allows “tort” claims. 28

U.S.C. § 1350. And it displays no intent to depart

from the common law rule that corporations may be

held liable for torts. To the contrary, the statute

“does not distinguish among classes of defendants,”

Argentine Republic v. Amerada Hess Shipping

Corp.

, 488 U.S. 428, 438 (1989), thus indicating that

default liability rules apply.

Nor is there any other reason the First Congress

would have wanted to exempt corporations from

liability for violations of the law of nations.

Archetypal transgressions against the law of nations

at the time were piracy and assaults against

ambassadors.

Sosa v. Alvarez-Machain

, 542 U.S.

692, 715 (2004). And British courts had long held

companies civilly accountable for violations of the

law of nations,

see Skinner v. East India Co.

, (1666)

6 State Trials 710 (H.L.), and early American courts

held ship companies (or ships themselves,

amounting to the same thing) liable for piracy

specifically,

see, e.g.

,

The Marianna Flora

, 24 U.S.

(11 Wheat.) 1, 40-41 (1826);

The Malek Adhel

, 43

U.S. (2 How.) 210 (1844);

The Rebecca

, 20 F. Cas.

373, 378-79 (D. Me. 1831). Similarly, natural

persons at the time could have assaulted

ambassadors not only on personal whim but also as

agents of corporations, given that incorporated

trading companies played a major role in world

27

affairs. Congress would have expected suit to lie not

just against the potentially judgment-proof

individual actor but also “against the company on

whose behalf he was acting.” Br. for the United

States as Amicus Curiae Supporting Petitioners at

24,

Kiobel v. Royal Dutch Petroleum Co.

, 133 S. Ct.

1659 (2013) (No. 10-1491).

2. The Second Circuit’s panel in

Kiobel

did not

dispute that federal common law has always

recognized corporate liability for committing torts.

But the panel maintained that the question whether

a corporation may be held liable for violating

international law is governed by international, not

domestic, law. Pet. App. 137a-138a. And according

to the panel, international law “does not impose

any

form of liability on corporations.”

Id.

135a. Neither

step in this reasoning withstands scrutiny.

a. International law views the question whether

any given private actor may be held liable for

violating the law of nations as a remedial issue that

turns on the local law of individual countries. Louis

Henkin,

Foreign Affairs and the United States

Constitution

245 (2d ed. 1996);

see also

Sosa

, 542 U.S. at 760 (Breyer, J., concurring in part

and concurring in the judgment) (“The norm must

extend liability to the type of perpetrator (

e.g.

, a

private actor) the plaintiff seeks to sue.”). Torture,

for instance, rises to a universal concern – and thus

violates customary international law – when

perpetrated on behalf of a state, but not ordinarily

when done by a purely private actor.

See

Pet. App.

175a-176a (Leval, J., concurring only in the

judgment in

Kiobel

) (citing cases). Genocide, on the

other hand, violates customary international law

regardless of the perpetrator’s relationship to any

government.

See id

.

7

Similar dichotomies, of course, exist under U.S. law.

The prohibitions in the Bill of Rights, for example, apply to

state actors but not to private entities. By contrast, the

Thirteenth Amendment’s prohibition on slavery applies both to

governmental and private actors.

29

Sosa

does not direct courts to parse among types

of private actors. As the United States has put it,

there is no “international-law norm, accepted by

civilized nations and defined with the degree of

specificity required by

Sosa

, that requires, or

necessarily contemplates, a distinction between

natural and juridical actors.” Br. for the United

States as Amicus Curiae Supporting Petitioners at

20,

Kiobel

,

133 S. Ct. 1659. Misconduct committed

by a private actor either violates the law of nations

or it does not. It does not matter whether the actor

is a natural or juridical person.

b. Even if it were relevant whether sources of

international law recognize corporate liability, there

is abundant evidence that they do. “Legal systems

throughout the world recognize that corporate legal

responsibility is part and parcel of the privilege of

corporate personhood.”

Doe VIII v. Exxon Mobil

Corp.

, 654 F.3d 11, 53-54, 57 (D.C. Cir. 2011),

vacated on other grounds

,

527 F. App’x 7 (D.C. Cir.

2013);

see also

M. Cherif Bassiouni,

Crimes Against

Humanity in International Criminal Law

379 (2d

rev. ed. 1999) (“[A]ll positions now accept in some

form or another the principle that a legal entity,

private or public, can, through its policies or actions,

transgress a norm for which the law, whether

national or international, provides, at the very least

damages.”).

Furthermore, “a number of international

agreements (including some that the United States

has ratified) require states parties to impose liability

on corporations for certain actions.” Br. for the

United States as Amicus Curiae Supporting

Petitioners at 31,

Kiobel

,

133 S. Ct. 1659 (citing

30

various treaties). The International Convention for

the Suppression of the Financing of Terrorism, Dec.

9, 1999, 2178 U.N.T.S. 197, for example, expressly

requires signatory states to ensure that any “legal

entity” may be held liable for violating the terms of

the Convention.

Id.

art. 5(1).

8

The Second Circuit panel in

Kiobel

largely

ignored this authority, fixating instead on the fact

that “customary international law has steadfastly

rejected the notion of corporate liability for

international

crimes

.” Pet. App. 77a (emphasis

added). But as Judge Leval explained at the time,

“[t]he reasons why international tribunals have been

established without jurisdiction to impose

criminal

liability on corporations have to do solely with the

theory and the objectives of

criminal punishment

,

and have no bearing on civil compensatory liability.”

Id.

146a (concurring only in the judgment in

Kiobel

).

8

In the district court, Petitioners submitted declarations

from four experts reinforcing that international law recognizes

corporate liability.

See

Exh’s 1-3 to Pltfs’ Mem. of Law in Opp.

to Dfdt. Arab Bank PLC’s Motion to Dismiss Claims Asserted

by Plfs’ Pursuant to the Alien Tort Statute, Doc. No. 735 (July

8, 2013) (Decl. of Prof. Ralph G. Steinhardt (opining that

“general principles of law” support corporate liability, that

treaties “impose specific legal obligations on corporations,” and

that “customary international law has recognized the

legitimacy of holding non-human entities accountable for

egregious violations of international norms”); Decl. of Ruth

Wedgwood (explaining that “financing of acts of terrorism

constitutes a tort, under applicable treaties and customary

international law” regardless of the corporate status of the

tortfeasor); Decl. of Jennifer M. Green & Michael J. Bazyler

(explaining how Nuremberg-era jurisprudence supports a

finding of corporate liability under the law of nations)).

31

Civil corporate liability is a totally distinct and

uncontroversial concept.

3. This Court’s opinion in

Kiobel

makes the

errors in the Second Circuit’s approach all the more

apparent. As noted above, this Court stated that “it

would reach too far to say that mere corporate

presence” in the United States suffices to subject a

defendant to ATS liability. 133 S. Ct. at 1669. In

the words of the Second Circuit, “if corporate

liability under the ATS were not possible as a

general matter, the Supreme Court’s statement

about ‘mere corporate presence’ would seem

meaningless.” Pet. App. 22a.

This Court in

Kiobel

also explained that the

question

Sosa

requires courts to ask under the ATS

is “whether the court has authority to recognize a

cause of action under U.S. law to enforce a norm of

international law.” 133 S. Ct. at 1666. The

separation in this explanation of “a norm of

international law” from a “U.S. law” enforcement

mechanism tracks the view of the majority of

circuits (and of Judge Leval’s separate opinion in

Kiobel

) that deems corporate liability a remedial

issue controlled by U.S. federal common law.

See,

e.g., Doe v. Nestle USA, Inc.

, 766 F.3d 1013, 1022

(9th Cir. 2014),

cert. denied

, 136 S. Ct. 798 (2016).

At the very least, this passage in

Kiobel

suggests the

Second Circuit’s holding that the ATS categorically

bars corporate liability is now in even more tension

with this Court’s precedent than when this Court

initially deemed it in need of review.

* * *

The circuit split regarding corporate liability

under the ATS is firmly entrenched, and this case

32

presents the issue in as gripping a context as this

Court is likely to see: proven corporate financing of

terrorism, partly from a perch in the United States

that was indispensable to the terrorist scheme. This

Court should grant certiorari.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Michael E. Elsner

John M. Eubanks

Jodi Westbrook Flowers

MOTLEY RICE LLC

28 Bridgeside Boulevard

Mt. Pleasant, SC 29464

Mark Werbner

SAYLES WERBNER P.C.

4400 Renaissance Tower

1201 Elm Street

Dallas, TX 75270

Jeffrey L. Fisher

Counsel of Record

David T. Goldberg

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

[email protected]

October 6, 2016

APPENDIX

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2014

(Argued: December 2, 2014 Decided: December 8, 2015)

Amended: December 17, 2015

Docket No. 13-3605; 13-3620; 13-3635; 13-4650; 13-4652

In Re: Arab Bank, PLC Alien Tort Statute Litigation

1

Before: SACK, CHIN, and CARNEY,

Circuit Judges

.

The plaintiffs seek compensation for damages

allegedly incurred as a result of armed attacks that

took place in Israel, the West Bank, and the Gaza Strip

between January 1995 and July 2005. They appeal

from the dismissal of claims they made under the Alien

Tort Statute (the “ATS”), 28 U.S.C. § 1350, by the

United States District Court for the Eastern District of

New York (Brian M. Cogan,

Judge

). The basis for the

dismissal was this Court’s decision in

Kiobel v. Royal

Dutch Petroleum Co.

, 621 F.3d 111 (2d Cir. 2010)

(“

Kiobel I”

),

aff

ʹ

d on other grounds, Kiobel v. Royal

Dutch Petroleum Co.,

133 S. Ct. 1659 (2013)

(“Kiobel

II”)

, which construed the ATS as not permitting suits

1

The Clerk of Court is respectfully directed to change the

caption as shown above pursuant to this Court’s January 6, 2014

order. This concise caption refers to the five appeals described in

the following notes.

2a

against corporate entities. We conclude that

Kiobel II

did not overrule

Kiobel I

on the issue of corporate

liability under the ATS. We note nonetheless that

Kiobel II

appears to suggest that the ATS may indeed

allow for corporate liability – a reading of the statute

that several of our sister circuits have adopted. Even

were we to agree with that view, however, as a

three!judge panel, we would not be free to overrule the

law established by the previous decision of the

Kiobel I

panel. The order of the district court is therefore:

AFFIRMED.

MICHAEL E. ELSNER (John M.

Eubanks,

on the brief

), Motley Rice

LLC, Mount Pleasant, South

Carolina,

for Plaintiffs-Appellants

.

Mark Werbner and Joel Israel,

Sayles Werbner, PC, Dallas, Texas,

(

on the brief

),

for Plaintiffs-

Appellants

.

KEVIN WALSH (Douglas W.

Mateyaschuk, II, Steven J. Young,

on the brief

), DLA Piper LLP, New

York, New York,

for Defendant-

Appellee

.

Stephen M. Shapiro, Timothy S.

Bishop, Chad M. Clamage, Mayer

Brown LLP, Chicago, Illinois, (

on the

brief

),

for Defendant-Appellee

.

Richard L. Herz, EarthRights

International, Washington, D.C.,

for

3a

Amici Curiae – Human Rights

Organizations

.

Tyler R. Giannini, Harvard Law

School, International Human Rights

Clinic, Cambridge, Massachusetts,

for Amici Curiae – Professors of

Legal History Barbara Aronstein

Black, William R. Casto, Martin S.

Flaherty, Nasser Hussain, Stanley

N. Katz, John V. Orth, and

Anne!Marie Slaughter

.

Neal Kumar Katyal and Jessica L.

Ellsworth, Hogan Lovells US LLP,

Washington, D.C.,

for Amicus Curiae

– The Hashemite Kingdom of

Jordan

.

Douglas Hallward!Driemeier, Ropes

& Gray LLP, Washington, D.C.,

for

Amicus Curiae – Union of Arab

Banks

.

Jeffrey B. Wall, Sullivan & Cromwell

LLP, Washington D.C.,

for Amicus

Curiae – Institute of International

Bankers

.

SACK,

Circuit Judge

:

The plaintiffs in this case filed five separate

lawsuits between 2004 and 2010 in the United States

District Court for the Eastern District of New York

against the defendant., Arab Bank, PLC.

Oran Almog,

et al. v. Arab Bank, PLC

, No. 04-CV-5564 (E.D.N.Y.

4a

filed Dec. 21, 2004)

2

;

Gila Afriat-Kurtzer, et al., v. Arab

Bank, PLC

, No. 05-CV-0388 (E.D.N.Y. filed Jan. 21,

2005)

3

;

Joseph Jesner, et al. v. Arab Bank, PLC

, No.

06-CV-3869 (E.D.N.Y. filed Aug. 9, 2006);

Yaffa Lev, et

al. v. Arab Bank, PLC

, No. 08-CV-3251 (E.D.N.Y. filed

Aug. 11, 2008);

Viktoria Agurenko, et al. v. Arab Bank,

PLC

, No. 10-CV-0626 (E.D.N.Y. filed Feb. 11, 2010).

The plaintiffs are aliens who were injured or

captured by terrorists overseas, or family members and

estate representatives of those who were injured,

captured, or killed. The plaintiffs seek judgments

against Arab Bank, PLC – a bank headquartered in

Jordan with branches in various places around the

world – for allegedly financing and facilitating the

activities of organizations that committed the attacks

that caused the plaintiffs’ injuries. It is undisputed

that, as a PLC,

4

Arab Bank is a corporation for

purposes of this appeal.

2

On appeal, this case has been docketed as

Joseph Zur, et al.

v. Arab Bank, PLC

inasmuch as Zur is an alien who has a claim

arising under the Alien Tort Statute, 28 U.S.C. § 1350 (the

“ATS”), which provides relief exclusively for “aliens.” The lead

plaintiff in the district court, Oran Almog, is an American citizen

and does not make a claim under the ATS. Because Almog has no

claim at issue on this appeal, the case has been docketed under

the name of a plaintiff who does.

3

On appeal, this case has been docketed as

Oded Avrlingi, et

al. v. Arab Bank, PLC

, because the lead plaintiff in the district

court, Gila Afriat-Kurtzer, is an American citizen and does not

make a claim under the ATS. The case has been docketed under

the name of a plaintiff who does bring an ATS claim.

4

“PLC,” sometimes written in the lower-case, “plc,” is the

abbreviation for “public limited company.”

See, e.g.,

Maxwell

Commc’n Corp. plc by Homan v. Societe Generale,

93 F.3d 1036,

1040 (2d Cir. 1996).

5a

The plaintiffs allege violations by Arab Bank of the

Anti-Terrorism Act (the “ATA”), 18 U.S.C. § 2333(a)

(providing that “[a]ny national of the United States

injured in his or her person, property, or business by

reason of an act of international terrorism, or his or

her estate, survivors, or heirs, may sue therefor in any

appropriate district court of the United States”), the

Alien Tort Statute, 28 U.S.C. § 1350 (the “ATS”)

5

(providing that “[t]he district courts shall have original

jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a

treaty of the United States”), and federal common law.

6

The ATS differs from the ATA in that, among other

things, it provides jurisdiction

only

with respect to

suits by “aliens,” while the ATA provides jurisdiction

only

for suits by “national[s] of the United States.”

7

Between 2007 and 2010, the plaintiffs’ federal

common-law claims were dismissed as redundant and

5

The ATS is sometimes referred to as the Alien Tort Claims

Act, or ATCA.

See, e.g., Linde v. Arab Bank, PLC,

706 F.3d 92, 95

(2d Cir. 2013);

Barclays Capital Inc. v. Theflyonthewall.com, Inc.,

650 F.3d 876, 899 n. 32 (2d Cir. 2011) (referring to “the Alien Tort

Claims Act (also commonly called the Alien Tort Statute)”).

6

More precisely:

Almog,

No. 04-CV-5564, Dkt. Nos. 7 ¶ 4,

1250 ¶ 101 (bringing ATA, ATS, and “general federal common

law” claims);

Afriat-Kurtzer,

No. 05-CV-0388, Dkt. No. 3 ¶ 4

(bringing ATA, ATS, and “general federal common law” claims);

Jesner,

No. 06-CV-3869, Dkt. No. 336 ¶ 4 (bringing only ATS

claims);

Lev,

No. 08-CV-3251, Dkt. No. 1 ¶ 4 (bringing ATS claims

and “general federal common law” claims);

Agurenko,

No. 10-CV-

0626, Dkt. No. 1 (bringing only ATS claims).

7

Non-nationals can recover under the ATA only if they are

survivors or heirs of a U.S. national injured by international

terrorism. 18 U.S.C. § 2333(a).

6a

lacking what the district court called a “sound basis.”

8

On May 24, 2013, the defendant also moved to dismiss

the plaintiffs’ ATS claims, arguing that the law of this

Circuit prohibits ATS suits against corporate entities.

In their briefing in the district court, the plaintiffs

responded to the defendant’s arguments on their

merits but also argued, in the alternative, that if the

district court granted the defendant’s motion, it should

also reinstate the plaintiffs’ federal common-law claims

or permit the plaintiffs to plead related non-federal

common-law claims.

On August 23, 2013, the district court issued the

following order:

The law of this Circuit is that plaintiffs cannot

bring claims against corporations under the

ATS.

See Kiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010),

aff’d, Kiobel v.

Royal Dutch Petroleum Co.,

[ ___U.S.___ ] 133

S. Ct. 1659 (2013). A decision by a panel of the

Second Circuit “is binding unless and until it is

overruled by the Court en banc or by the

Supreme Court.”

Baraket v. Holder,

632 F.3d

56, 59 (2d Cir. 2011). Because the Supreme

Court affirmed [this Circuit’s

Kiobel

decision]

on other grounds, the Second Circuit’s holding

8

See Almog v. Arab Bank, PLC,

471 F. Supp. 2d 257, 294

(E.D.N.Y. 2007) (dismissing the plaintiffs’ common law claims in

Almog

(now

Zur

) and

Afriat-Kurtzer

(now

Avrlingi

) because the

“[p]laintiffs have offered no sound basis for these . . . claims,” and

because “plaintiffs agreed that such claims would be ‘redundant’

of the ATS claims”);

see also

generally

Henry J. Friendly,

In Praise of

Erie –

And of the New

Federal Common Law

, 39 N.Y.U. L. Rev. 383, 405-22 (1964).

31a

federal interest in the rules of decision to be applied,”

or a “conflict between a federal policy or interest and

the use of state law”).

As for leave to amend the complaints, “we review

[the district court’s refusal to allow such amendment]

only for abuse of discretion which ordinarily we will

not identify absent an error of law, a clearly erroneous

assessment of the facts, or a decision outside the

available range of permitted choices.”

Knife Rights,

Inc. v. Vance,

802 F.3d 377, 389 (2d Cir. 2015)

(citations omitted). While “[l]eave to amend should be

freely granted, . . . the district court has the discretion

to deny leave if there [was] a good reason for it, such as

futility, bad faith, undue delay, or undue prejudice to

the opposing party.”

Jin v. Metro. Life Ins. Co.,

310

F.3d 84, 101 (2d Cir. 2002)

The plaintiffs have spent more than ten years

litigating the matters before us but have not specified

any particular state or foreign common-law theory on

which they seek to recover. To be sure, they have in

their complaints and in their briefing on appeal

asserted that they may recover under general

principles of joint-venture liability, agency, reckless

disregard, intentional injury of others by a third party,

reckless disregard, wrongful death, survival, and

negligent or intentional infliction of emotional distress.

But their short and conclusory statements to this

effect, untethered to the law of any particular

jurisdiction or any serious attempt at explanation, did

not put the defendant on notice of specific state or

foreign common-law claims that it might be called

32a

upon to defend against in this litigation.

26

The

plaintiffs have had ample time to develop and assert

such theories. The district court did not abuse its

discretion in denying leave to amend because

permitting the plaintiffs to repackage their federal

common-law claims as state or foreign common-law

claims at such a late stage would, we think, do a

disservice both to the courts in which they chose to

litigate their claims, and to the defendant, which must

prepare itself to defend against them.

Permitting the plaintiffs in

Jesner, Lev

, and

Agurenko

to amend their complaints would, moreover,

have been futile. Following the dismissal of the

plaintiffs’ ATS claims, the only basis on which the

district court might exercise jurisdiction over these

actions would be diversity of citizenship. But “diversity

is lacking . . . where the only parties are foreign

entities, or where on one side there are citizens and

aliens and on the opposite side there are only aliens.”

Universal Licensing Corp. v. Paola del Lungo S.p.A.,

293 F.3d 579, 581 (2d Cir. 2002). Here, there are aliens

26

The complaint in

Almog

sets forth five counts for “assisting

in the intentional injury of others by a third party” (Count Six),

“reckless disregard” (Count Seven), “wrongful death” (Count

Eight), “survival” (Count Nine), and “negligent and/or intentional

infliction of emotional distress” (Count Ten).

Almog,

No. 04-CV-

5564, Dkt. Nos. 7 ¶¶ 329-54, 1250 ¶ 101. It is unclear whether

these claims are among the

Almog

plaintiffs’ general federal

common-law claims. Their complaint asserted causes of action

based only on “the laws of nations, United States’ [sic] statutes,

and general federal common law,”

Almog,

No. 04-CV-5564, Dkt.

No. 7 ¶ 4, and the counts do not specify under which jurisdiction’s

law they seek to recover.

33a

on both sides of the litigation – plaintiffs are aliens

(only aliens can bring ATS claims), and so is the

defendant, a citizen of Jordan – and the

Jesner, Lev

,

and

Agurenko

plaintiffs do not seek to assert any other

federal claims that might provide a basis for federal-

question jurisdiction. For these reasons, permitting the

Jesner, Lev

, and

Agurenko

plaintiffs to amend their

complaints to assert non-federal common-law claims

would be fruitless.

The district court therefore acted within its

discretion in declining to permit the plaintiffs to

amend their complaints.

CONCLUSION

For the foregoing reasons, we AFFIRM the

judgments of the district court.

34a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, 40 Foley Square, in the

City of New York, on the 9th day of May, two thousand

sixteen.

PRESENT: ROBERT A. KATZMANN,

Chief Judge

,

DENNIS JACOBS,

JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

REENA RAGGI,

RICHARD C. WESLEY,

PETER W. HALL,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

DENNY CHIN,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

CHRISTOPHER F. DRONEY,

Circuit Judges

.

In Re: Arab Bank, PLC

Alien Tort Statute

Litigation

Nos. 13-3605, 13-3620,

13-3635, 13-4650, 13-

4652

35a

For Plaintiffs-Appellants:

Michael E. Elsner and

John M. Eubanks, Motley

Rice LLC, Mount

Pleasant, South Carolina.

For Defendants-Appellees:

Stephen M. Shapiro,

Timothy S. Bishop, and

Chad M. Clamage, Mayer

Brown LLP, Chicago,

Illinois.

Kevin Walsh, Douglas W.

Mateyaschuk, and Steven

J. Young, DLA Piper LLP

(US), New York, New

York.

For Amicus Curiae – The

Hashemite Kingdom of

Jordan:

Neal Kumar Katyal and

Jessica L. Ellsworth,

Hogan Lovells US LLP,

Washington, District of

Columbia.

ORDER

Following disposition of this appeal, an active

judge of the Court requested a poll on whether to

rehear the case en banc. A poll having been conducted

and there being no majority favoring en banc review,

rehearing en banc is hereby DENIED.

Dennis Jacobs, Circuit Judge, joined by José A.

Cabranes, Reena Raggi, and Debra Ann Livingston,

36a

Circuit Judges, concurs by opinion in the denial of

rehearing en banc.

José A. Cabranes, Circuit Judge, joined by Dennis

Jacobs, Reena Raggi, and Debra Ann Livingston,

Circuit Judges, concurs by opinion in the denial of

rehearing en banc.

Rosemary S. Pooler, Circuit Judge, joined by

Denny Chin and Susan L. Carney, Circuit Judges,

dissents by opinion from the denial of rehearing en

banc.

Denny Chin, Circuit Judge, joined by Susan L.

Carney, Circuit Judge, dissents by opinion from the

denial of rehearing en banc.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

DENNIS JACOBS, joined by JOSÉ A.

CABRANES, REENA RAGGI, and DEBRA ANN

LIVINGSTON, Circuit Judges, concurring in the

denial of rehearing in banc.

I concur in the denial of in banc review of this case;

rehearing would serve no purpose remotely

commensurate with the effort it would entail.

The panel opinion grudgingly rejects plaintiffs’

claim as barred by our decision in

Kiobel v. Royal

Dutch Petroleum Co

., 621 F.3d 111 (2d Cir. 2010)

(“

Kiobel I

”), which held that customary international

law, as enforced by the Alien Tort Statute (“ATS”),

does not regulate corporate conduct. The panel opinion

goes on to attack

Kiobel I

, and says it is constrained

unhappily to follow it. Hence the in banc poll initiated

by the panel itself.

37a

Although the seven other judges who voted against

in banc review do not necessarily endorse

Kiobel I

(or

reach the merits of it), there is consensus that

intervening developments obviate any need to go in

banc.

* * *

Back in 2011, this Court rejected in banc review of

this issue.

See

Kiobel v. Royal Dutch Petroleum Co

.,

642 F.3d 379, 380 (2d Cir. 2011). The Supreme Court

took up the case, but (after oral argument) required

briefing on an alternative ground: whether the ATS

has extraterritorial effect. The Supreme Court then

held that it does not.

Kiobel v. Royal Dutch Petroleum

Co

., 133 S. Ct. 1659, 1669 (2013) (“

Kiobel II

”).

Since the population of cases dismissible under

Kiobel I

is largely coextensive with those dismissible

under

Kiobel II

, several conclusions follow:

• The principle of

Kiobel I

has been largely

overtaken, and its importance for outcomes has

been sharply eroded.

See

Flomo v. Firestone

Nat’l Rubber Co., LLC

, 643 F.3d 1013, 1025

(7th Cir. 2011) (Posner, J.) (“Deny

extraterritorial application, and the statute

would be superfluous . . . .”).

• This present appeal was subject to two easy

(alternative) dispositions: affirm on the basis of

Kiobel I

(without lamentation) or remand for

the district court to consider the case under

Kiobel II

.

See

Kiobel II

, 133 S. Ct. at 1669.

• There is no reason to consider or reconsider

Kiobel I

in banc in this appeal.

38a

* * *

This appeal could have been straightforwardly

decided under

Kiobel II

, which held that the

presumption against extraterritoriality can be

displaced only if the “claims touch[ed] and concern[ed]

the territory of the United States”; that they must do

so with “sufficient force”; and that “mere corporate

presence” (for example) is not enough.

Id

.

Kiobel II

emphasizes that this must be a high hurdle, given the

danger of judicial meddling in the affairs of foreign

countries:

[T]he danger of unwarranted judicial

interference in the conduct of foreign policy is

magnified in the context of the ATS, because

the question is not what Congress has done but

instead what courts may do . . . These

concerns, which are implicated in any case

arising under the ATS, are all the more

pressing when the question is whether a cause

of action under the ATS reaches conduct

within the territory of another sovereign . . .

The principles underlying the presumption

against extraterritoriality thus constrain

courts exercising their power under the ATS.

Id

. at 1664!65.

In this case, the underlying offense against the law

of nations is terrorism against citizens of Israel by four

Palestinian terrorist groups. Arab Bank, PLC, which is

headquartered in Jordan, is named as defendant

because funds allegedly passed through its branches to

other countries for distribution to terrorists.

39a

The only contact with the United States mentioned

in the

Arab Bank

opinion is that terrorist groups used

branches of Arab Bank in a score of countries

(including a single U.S. branch, in Manhattan) for,

among other ordinary transactions, the conversion of

funds from one currency to another.

See

In re Arab

Bank, PLC Alien Tort Statute Litig

., 808 F.3d 144,

149!50 (2d Cir. 2015) (“Arab Bank then created

individual bank accounts . . . often routing the

transfers through its New York branch in order to

convert Saudi currency into Israeli currency.”). The

New York branch is not differentiated in any way from

Arab Bank’s numerous other branches. This is no more

than the “mere corporate presence” that is insufficient

to displace the presumption against extraterritoriality.

Kiobel II

, 133 S. Ct. at 1669.

In the (unlikely) event that plaintiffs could

somehow plead around

Kiobel II

, they would face a

separate formidable barrier: the mens rea

requirement.

See

Presbyterian Church of Sudan v.

Talisman Energy, Inc

., 582 F.3d 244, 259 (2d Cir.

2009). As the panel opinion emphasizes, plaintiffs do

allege knowledge.

See

Arab Bank

, 808 F.3d at 150

(“According to the plaintiffs, Arab Bank

knew

that the

donations were being collected for terrorist attacks . . .

Again, responsible officials at Arab Bank purportedly

knew

that the accounts of these various organizations

and individuals were being used to fund the suicide

bombings and other attacks sponsored by the terrorist

organizations.”) (emphasis added). However, the

standard “for aiding and abetting liability in ATS

actions is purpose rather than knowledge alone.”

Presbyterian Church

, 582 F.3d at 259.

40a

* * *

It is thus evident that the Arab Bank panel

opinion steered deliberately into controversy. That

impression is confirmed by the slender pretexts

advanced by the panel for refusing to consider

extraterritoriality.

The panel considers it “unwise to decide the

difficult and sensitive issue of whether the clearing of

foreign dollar!denominated payments [in simpler

terms, money] through a branch in New York could,

under these circumstances, displace the presumption

against the extraterritorial application of the ATS . . . ”

Arab Bank

, 808 F.3d at 158.

1

But it would have been

simpler to remand for the district court to decide that

easy question (as other circuit courts are doing) than

to go in banc to decide a question that produced

dueling opinions in

Kiobel I

. It is as though Sisyphus,

seeing the hill, elected to push upward instead of just

going around.

The panel decision notes that

Kiobel II

was “not

the focus of either the district court’s decision or the

briefing on appeal.”

Id

. But this need not boggle

judicial ingenuity: the panel could have remanded in

light of

Kiobel II

, or it could have asked for

supplemental briefing. It is not recommended

appellate craft to avoid so easy a disposition and

instead strain to revisit Circuit precedent in banc.

1

This is a kind of transaction that can be done at an

automated airport kiosk.

41a

* * *

The circuit split that so worries the

Arab Bank

panel is illusory. The panel opinion conjures up a

circuit split from these cases:

• Two of the decisions pre!date

Kiobel II

; so those

panels did not have the option of dismissal or

remand on the ground of extraterritoriality.

See

Flomo

, 643 F.3d at 1021 (issued almost two

years before

Kiobel II

);

Romero v. Drummond

Co., Inc

., 552 F.3d 1303, 1315 (11th Cir. 2008)

(issued more than four years before

Kiobel II

).

• The rest were decided on the basis of

Kiobel II

.

See

Doe I v. Nestle USA, Inc

., 766 F.3d 1013,

1027!28 (9th Cir. 2014) (“We decline to resolve

the extraterritoriality issue, and instead

remand to allow the plaintiffs to amend their

complaint in light of

Kiobel II

. . . It is common

practice to allow plaintiffs to amend their

pleadings to accommodate changes in the law . .

. .”);

Doe VIII v. Exxon Mobil Corp

., 527 F.

App’x 7 (D.C. Cir. 2013) (“[I]n light of

intervening changes in governing law regarding

the extraterritorial reach of the Alien Tort

Statute,

see

[

Kiobel II

], . . . the Alien Tort

Statute claims [are] remanded to the District

Court for further consideration.”).

• As to

Al Shimari v. CACI Premier Tech., Inc

.,

758 F.3d 516, 530 (4th Cir. 2014), cited by the

Arab Bank

panel as “see also”: the case was

decided solely on the basis of

Kiobel II

:

“[P]laintiffs’ ATS claims ‘touch and concern’ the

territory of the United States with sufficient

42a

force to displace the presumption against

extraterritorial application . . . .”

All this is by way of saying that this appeal is

insufficiently important or consequential to warrant

review in banc.

* * *

In sum, the panel’s angst in having to follow

Kiobel I

was self!inflicted. The appeal could have been

resolved under

Kiobel II

; if the problem was lack of

briefing, briefing could have been ordered; if finding

the right answer under

Kiobel II

was a strain on the

panel, it could have remanded; if the easiest course

was to follow a precedent that the panel dislikes, it

could have done what appellate judges must

frequently do: swallow hard. The one course that

makes no sense is to force difficulties, reel off dicta

criticizing our precedent, and seek in banc

consideration of a doctrine that now has sharply

reduced application. Going in banc on this would do

nothing but supply catnip for law clerks looking to

teach.

A further consideration:

Kiobel I

was sharply

contested within the panel; there was friction, heat

and light in the

Kiobel I

panel opinions, and over panel

rehearing and the (defeated) 2011 in banc initiative.

There is even less reason now than then to reconsider

in banc an issue so highly charged. More to the point,

the Supreme Court will have two vigorous Second

Circuit opinions to consider if that Court decides one

day to revisit a question that will rarely again be

asked.

43a

In this Circuit, a case may one day arise that

cannot be disposed of under

Kiobel II

, at a time when a

circuit split has opened, and when the prospect looms

of many such cases. If and when that comes to pass, it

may be worth our time to consider the issue in banc.

That time may never come; it has certainly not

arrived.

* * *

JOSÉ A CABRANES

, Circuit Judge,

joined by Judges

JACOBS, RAGGI, and LIVINGSTON, concurring in

the denial of rehearing en banc:

Judge Pooler’s dissent from the denial of rehearing

en banc calls to mind the insight of our esteemed late

colleague, Judge Frank X. Altimari: “if attorneys want

to know what the law is not, then they should read the

dissent.”

1

Indeed, Judge Pooler herself takes the view

that her dissent is an “oddit[y]” that “has as much

force of law as if [her] views were published in a letter

to the editor of [her] favorite local newspaper.”

2

Both sides of the Alien Tort Statute (“ATS”)

3

corporate!liability debate were fully explicated in

1

Frank X. Altimari,

The Practice of Dissenting in the Second

Circuit

, 59 BROOK L. REV. 275, 284 (1993);

see also id.

(Lynch,

J.

, dissenting

from the denial of rehearing en banc) (“[T]his case

presents a significant issue and generates a circuit

split . . . .”), I would rehear this case. I therefore

respectfully dissent.

I

A

The ATS grants U.S. district courts jurisdiction

over “any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty

of the United States.” 28 U.S.C. § 1350. “[B]y its

by the Supreme Court’s decision upholding our panel’s judgment

on entirely different grounds.

See Kiobel v. Royal Dutch

Petroleum Co.

, 133 S. Ct. 1659, 1669 (2013) (“

Kiobel II

”) (holding

that the ATS is subject to the presumption against

extraterritorial application of statutes). This questionable

position not only reflects the weakness of

Kiobel I

’s holding, it

misunderstands

Kiobel II

, and unfairly blocks litigants from

accessing the courts and developing unsettled law.

See infra

Part

II.

51a

terms[,] [the ATS] does not distinguish among classes

of defendants.”

Argentine Republic v. Amerada Hess

Shipping Corp.

, 488 U.S. 428, 438 (1989). And more

than a century ago, even forty years before the

wellspring of human rights litigation of the

International Military Tribunals at Nuremberg, the

U.S. Attorney General opined that the United States

had long recognized that corporations are capable of

violating the law of nations for purposes of the ATS.

See

Mexican Boundary!Diversion of the Rio Grande,

26 U.S. Op. Att’y Gen. 250 (1907) (concluding that

aliens injured by a corporation’s conduct in violation of

a treaty between Mexico and the United States could

maintain an action under the ATS). But in

Kiobel I

,

though the issue had never been briefed or raised by

either party, a panel majority of this court took it upon

themselves to conclude that “[b]ecause corporate

liability is not recognized as a ‘specific, universal, and

obligatory’ norm, it is not a rule of customary

international law that we may apply under the ATS.”

Kiobel I

, 621 F.3d at 145 (citation omitted) (quoting

Sosa v. Alvarez!Machain

, 542 U.S. 692, 732 (2004)).

From the very outset, the panel majority erred by

framing the question in the wrong way: whether there

is a “norm of corporate liability under customary

international law.”

Id.

at 131. “International law does

not work that way.” William S. Dodge,

Corporate

Liability Under Customary International Law,

43 Geo.

J. Int’l L. 1045, 1046 (2012). Customary international

law does not contain general norms of liability or

non!liability applicable to actors.

Id.

As the United

States argued as amicus curiae in

Kiobel II

, the

Kiobel

I

majority erred by “examin[ing] the question of

corporate liability in the abstract;” rather, the court

52a

should have inquired “whether any of the particular

international!law norms [at issue in the case] . . .

exclude corporations from their scope.” Brief for the

United States as Amicus Curiae Supporting

Petitioners at 21,

Kiobel II

, 133 S. Ct. 1659 (2013),

2011 WL 6425363, at *21 [hereinafter U.S. Amicus

Br.,

Kiobel II

]. Other circuits have correctly observed

that the proper mode of inquiry is to apply a

“norm!by!norm analysis of corporate liability,”

Nestle

USA

, 766 F.3d at 1021!22. For each ATS claim, courts

should look to international law and determine

whether corporations are subject to the norms

underlying that claim.

See Sarei

, 671 F.3d at 748

(“

Sosa

expressly frames the relevant international!law

inquiry to be the scope of liability of private actors for

a violation of the ‘given norm,’ i.e. an international-law

inquiry specific to each cause of action asserted.”

(quoting

Sosa

, 542 U.S. at 733 n.20)). Simply put,

there is no categorical rule of corporate immunity

or

liability.

See id

. at 747-48.

B

The

Kiobel I

majority’s errors have long been

traced to the majority’s “misreading of footnote 20 in

the

Sosa

opinion.” U.S. Amicus Br.,

Kiobel II

, at *16;

accord Kiobel I

, 621 F.3d at 163!65 (Leval,

J.

,

concurring in the judgment)

.

In footnote 20, the

Supreme Court explained that the question related to

“the determination whether a norm is sufficiently

definite to support a cause of action” under the ATS “is

whether international law extends the scope of

liability for a violation of a given norm to the

perpetrator being sued, if the defendant is a private

actor such as a corporation or individual.”

Sosa

, 542

53a

U.S. at 732 & n.20. The thrust of the footnote is that

if

the defendant is a private actor, the court must then

determine whether private actors are

capable

of

violating the international norm at issue. U.S. Amicus

Br.,

Kiobel II

, at *17. This simply reflects the

established rule in international law that some

international norms apply only to state actors (

e.g.

,

torture, which requires some involvement of a state

actor or an individual acting in a public capacity),

whereas others, such as genocide, do not require the

involvement of state actors.

Compare

Convention

Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, art. 1, opened

for signature Dec. 10, 1984, 1465 U.N.T.S. 85, 113!14,

available at

www.ohchr.org/EN/ProfessionalInterest/

Pages/Cat.aspx (defining torture as conduct performed

“by or at the instigation of or with the consent or

acquiescence of a public official or other person acting

in an official capacity”),

with

Convention on the

Prevention and Punishment of the Crime of Genocide,

art. II, opened for signature Dec. 9, 1948, 102 Stat.

3045, 78 U.N.T.S. 277, 280,

available at

http://treaties.un.org/doc/Publication/UNTS/Volume%2

078/Volume!78!I!1021!English.pdf (defining “genocide”

to include “any of the following

acts

” committed with

intent to destroy a group (emphasis added)). The

Kiobel I

majority misread this footnote “as a basis for

drawing a distinction between natural and juridical

persons – one that finds no basis in the relevant norms

of international law.” U.S. Amicus Br.,

Kiobel II

, at

*18. As the United States noted, the footnote “groups

all

private actors together, referring to ‘a private actor

such as a corporation

or

individual.’”

Id.

(first

emphasis added) (quoting

Sosa

, 542 U.S. at 732 n.20).

54a

“Both natural persons and corporations can violate

international!law norms that require state action. And

both natural persons and corporations can violate

international!law norms that do not require state

action.”

Id.

at *21. “The majority’s partial quotation

out of context, interpreting the Supreme Court as

distinguishing between individuals and corporations,

misunderstands the meaning of the passage.”

Kiobel I,

621 F.3d at 165 (Leval,

J.

, concurring in the

judgment).

C

The

Kiobel I

majority also justified its conclusion

by noting that “no international tribunal has ever held

a corporation liable for a violation of the law of

nations” and that “no corporation has ever been

subject to

any

form of liability under the customary

international law of human rights.”

Kiobel I

, 621 F.3d

at 120, 121. But as Justice Kagan remarked, simply

because there is no case in international law “about

Norwegians,” that does not mean that a particular

norm “does not apply to Norwegians.” Transcript of

Oral Argument held on Feb. 28, 2012 at 27,

Kiobel II

,

133 S. Ct. 1659 (2013) (No. 10!1491).

Indeed, “[t]here is always a first time for litigation

to enforce a norm; there has to be.”

Flomo

, 643 F.3d at

1017;

accord Sarei

, 671 F.3d at 761 (“We cannot be

bound to find liability only where international fora

have imposed liability.”);

Nestle USA

, 766 F.3d at 1021

(“[A] norm c[an] form the basis for an ATS claim

against a corporation even in the absence of a decision

from an international tribunal enforcing that norm

against a corporation.”);

id.

(stating that “the absence

of decisions finding corporations liable does not imply

55a

that corporate liability is a legal impossibility under

international law . . . and . . . that the lack of decisions

holding corporations liable could be explained by

strategic considerations”).

In any event, “[t]he factual premise of the majority

opinion in [

Kiobel I

] is incorrect.”

Flomo

, 643 F.3d at

1017. Violations of the law of nations have been

brought against juridical entities, including against

ships, throughout history in both domestic and

international tribunals.

See, e.g.

,

The Malek Adhel,

43

U.S. (2 How.) 210, 233 (1844) (“It is not an uncommon

course in the admiralty, acting under the law of

nations, to treat the vessel in which or by which, or by

the master or crew thereof, a wrong or offen[s]e has

been done as the offender, without any regard

whatsoever to the personal misconduct or

responsibility of the owner thereof.”);

Flomo,

643 F.3d

at 1021 (“[I]f precedent for imposing liability for a

violation of customary international law by an entity

that does not breathe is wanted, we point to

in rem

judgments against pirate ships.”);

see also id.

at 1017

(discussing the application of international legal

norms against corporations in the aftermath of World

War II).

D

Finally, the majority’s policy concern, that

recognizing corporate liability under the ATS “would

potentially create friction in our relations with foreign

nations and, therefore, would contravene the

international comity the [ATS] was enacted to

promote,”

Kiobel I

, 621 F.3d at 141;

see also id.

at 1664

(stating that by applying the presumption against

extraterritoriality, the court was construing the ATS

to “protect against unintended clashes” between U.S.

and foreign law and avoid “international discord” and

“the danger of unwarranted judicial interference in the

conduct of foreign policy” (internal quotation marks

omitted)).

II

Even though

Kiobel I

is almost certainly incorrect,

a majority of this court seems to believe that rehearing

in this case would be a fruitless endeavor because, as a

practical matter, the class of cases foreclosed by

Kiobel

I

have been foreclosed by

Kiobel II

. Not only is this

pure speculation, but just because

Kiobel II

erected a

sluice where

Kiobel I

built a dam does not mean we

should not dismantle

Kiobel I

’s barrier to viable cases

under the ATS – even if they amount to just a trickle,

the litigants in those cases should have access to the

courts.

If anything,

Kiobel II

strongly suggests that

corporate liability

does

exist under the ATS. The

Court’s concluding discussion in

Kiobel II

, particularly

its statement that “it would reach too far to say that

mere corporate presence suffices” to displace the

presumption of extraterritoriality, would be utterly

incomprehensible to include if the Court also believed

57a

corporations were

categorically

immune from suit

under the ATS.

See

133 S. Ct. at 1669.

In any event, the insistence by some members of

this court that

Kiobel II

forecloses this case and others

like it seeks to draw far too much guidance from an

opinion as split and abstruse as

Kiobel II

.

2

The Court’s

“touch and concern” test is cryptic and has

understandably divided the circuits.

3

See Tymoshenko

2

For example, Justice Kennedy’s concurrence confirms that

Kiobel II

“leave[s] open a number of significant questions

regarding the reach and interpretation of the Alien Tort Statute.”

133 S. Ct. at 1669 (Kennedy,

J.

, concurring). And it clearly

establishes that the ATS might still apply to “human rights

abuses committed abroad.”

Id.

Additionally, if Justice Kennedy

made certain to note that the door was still ajar to lawsuits

against corporations, or at least certain cases concerning conduct

on foreign soil, so did Justice Alito’s concurrence, which argued

the majority did not go far

enough

.

See Kiobel II

, at 1669!70

(Alito,

J.

, concurring).

3

In this circuit, we have held that “neither the U.S.

citizenship of defendants, nor their presence in the United States,

is of relevance for jurisdictional purposes,”

Mastafa v. Chevron

Corp.

, 770 F.3d 170, 188 (2d Cir. 2014), and that “if all the

relevant conduct occurred abroad, that is simply the end of the

matter under

Kiobel

,”

Balintulo v. Daimler AG

, 727 F.3d 174, 190

(2d Cir. 2013). The Fourth, Ninth, and Eleventh Circuits have

held to the contrary, holding that U.S. nationality of the

defendant is relevant to the “touch and concern” inquiry even if it

is not conclusive.

See Doe v. Drummond Co.

, 782 F.3d 576, 596

(11th Cir. 2015) (“Although the U.S. citizenship of Defendants is

relevant to our inquiry, this factor is insufficient to permit

jurisdiction on its own.”);

Mujica v. AirScan Inc.

, 771 F.3d 580,

594 (9th Cir. 2014) (“[T]he fact that Defendants are both U.S.

corporations . . . , without more, is not enough to establish that

the ATS claims here ‘touch and concern’ the United States with

sufficient force.”);

Al!Shimari,

758 F.3d at 527 (“[C]ourts must

consider all the facts that give rise to ATS claims, including the

58a

v. Firtash

, 2013 WL 4564646, at *4 (S.D.N.Y. Aug. 28,

2013) (“[T]he [Supreme] Court failed to provide

guidance regarding what is necessary to satisfy the

‘touch and concern’ standard.”). My colleagues voting

against rehearing want clarity from an opinion that

does not offer it. What

is

clear is that

Kiobel II

did

not

shut the door to

all

cases against corporations or cases

involving violations of international legal norms

outside the United States. By categorically excluding

corporations as a class of defendants, the

Kiobel I

majority is preventing the natural development of the

law among the circuits as to the implications of the

Kiobel II

“touch and concern” test.

* * *

In short,

Kiobel I

was wrong. Every circuit to

address the matter agrees that it is wrong. It is a

disservice to the litigants in this case, and every other

litigant with a potentially viable ATS case against

corporate defendants, to rely on the Supreme Court to

fix

our

error.

Kiobel I

places an unnecessary roadblock

in front of litigation that can continue to help clarify a

statute that, since

Filartiga v. Pena!" Irala

, 630 F.2d

876 (2d Cir. 1980), has proven to be an essential tool

for victims of egregious human rights abuses

perpetrated by both corporations and natural persons.

parties’ identities and their relationship to the causes of action.”).

Further, the Fourth Circuit has noted that “it is not sufficient

merely to say that because the actual injuries were inflicted

abroad, the

claims

do not touch and concern United States

territory.”

Id.

at 528;

see also

Albin Eser,

Individual Criminal Responsibility,

in

1

The Rome Statute of the International Criminal Court

767,

778-79 (Antonio Cassese et al. eds., 2002).

The United States has not ratified the Rome Statute. Under

the Clinton Administration, the U.S. delegation voted against the

text adopted in Rome in 1998, in part because of concerns that the

treaty “could inhibit the ability of the United States to use its

military to meet alliance obligations and participate in

multinational operations, including humanitarian interventions.”

Diane F. Orentlicher,

Unilateral Multilateralism: United States

Policy Toward the International Criminal Court,

36 Cornell Int’l

L.J. 415, 419 (2004) (quoting the testimony, before the Senate

Foreign Relations Committee, of David J. Scheffer, Ambassador-

at-Large for War Crimes Issues and Head of the U.S. delegation

at the Rome Conference). Despite those concerns, the United

States signed the Rome Statute on December 31, 2000, the last

day it was open for signature, under the outgoing Clinton

Administration.

Id.

at 421.

See generally Flores,

414 F.3d at 256

(explaining the meaning and significance of signing an

international agreement);

United States v. Yousef,

327 F.3d 56,

94 n. 28 (2d Cir. 2003) (same). On May 6, 2002, the Bush

Administration notified the United Nations that the United

States did not intend to become a party, an act popularly referred

to as “un sign[ing].” Orentlicher,

ante,

at 421;

see also

Press

Release, U.S. Dep’t of Def., Secretary Rumsfeld Statement on the

ICC Treaty (May 6, 2002) (noting the United States’ concern

about “the lack of adequate checks and balances on powers of the

ICC prosecutors and judges; the dilution of the U.N. Security

Council’s authority over international criminal prosecutions; and

the lack of an effective mechanism to prevent politicized

prosecutions of American servicemembers and officials”).

77a

In short, because customary international law

imposes individual liability for a limited number of

international crimes – including war crimes, crimes

against humanity (such as genocide), and torture – we

have held that the ATS provides jurisdiction over

claims in tort against individuals who are alleged to

have committed such crimes. As we explain in detail

below, however, customary international law has

steadfastly rejected the notion of corporate liability for

international crimes, and no international tribunal

has ever held a corporation liable for a violation of the

law of nations.

We must conclude, therefore, that insofar as

plaintiffs bring claims under the ATS against

corporations, plaintiffs fail to allege violations of the

law of nations, and plaintiffs’ claims fall outside the

limited jurisdiction provided by the ATS.

We emphasize that the question before us is not

whether corporations are “immune” from suit under

the ATS: That formulation improperly assumes that

there is a norm imposing liability in the first place.

17

Rather, the question before us, as the Supreme Court

has explained, “is whether international law extends

the scope of liability for a violation of a given norm to

However limited the value of the Rome Statute in determining

what customary international law

is,

a demonstrated lack of

consensus amongst its signatories about a particular norm is

valuable evidence of what customary international law

is not. See

Sosa,

542 U.S. at 732 (quoting with approval the statement that

rules of international law must be “specific,

universal,

and

obligatory” (emphasis added) (internal quotation marks omitted)).

17

Thus it is equally misleading to say that we are giving “a

free pass” to corporations. Concurring Op. 155.

78a

the perpetrator being sued, if the defendant is a

private actor such as a corporation or individual.”

18

Looking to international law, we find a jurisprudence,

first set forth in Nuremberg and repeated by every

international tribunal of which we are aware, that

offenses against the law of nations (

i.e.,

customary

international law) for violations of human rights can

be charged against States and against individual men

and women but not against juridical persons such as

corporations. As a result, although customary

international law has sometimes extended the scope of

liability for a violation of a given norm to individuals,

it has

never

extended the scope of liability to a

corporation.

19

We pause briefly to acknowledge and reply to the

separate opinion of our colleague, Judge Leval. As an

initial matter, we are perplexed by Judge Leval’s

repeated insistence that there is no “basis” for our

holding because “[n]o precedent of international law

endorses” it.

See, e.g.,

Concurring Op. 151. In an ATS

suit, we may apply only those international norms that

are “specific, universal, and obligatory.”

20

As a result,

the responsibility of establishing a norm of customary

international law lies with those wishing to invoke it,

and in the absence of sources of international law

endorsing (or refuting) a norm, the norm simply

cannot be applied in a suit grounded on customary

18

Sosa

, 542 U.S. at 732 n. 20.

19

Our use of the term “corporation” – and our holding – is

limited to private juridical entities such as defendants.

20

Sosa,

542 U.S. at 732 (quoting with approval the statement

of a lower court) (internal quotation marks omitted).

See

generally

Part II,

post.

79a

international law under the ATS. Thus, even if there

were, as Judge Leval claims, an absence of sources of

international law addressing corporate liability,

21

that

supposed lack of authority would actually

support

our

holding. By contrast, to support Judge Leval’s

proposed rule, there would need to be not only a few,

but so many sources of international law calling for

corporate liability that the norm could be regarded as

“universal.” As it happens, no corporation has ever

been subject to

any

form of liability under the

customary international law of human rights, and

thus the ATS, the remedy Congress has chosen, simply

does not confer jurisdiction over suits against

corporations.

22

21

In fact, as we discuss below, there are ample sources of

international law explicitly

rejecting

corporate liability.

See

generally

Part II,

post.

22

As we explain in detail below,

see generally

Part II,

post,

every international tribunal to confront the question of whether

the liability of non-state actors for violations of customary

international law should extend to both natural

and

juridical

persons has considered and rejected corporate liability. We do not

rest our analysis of customary international law on the district

court ATS decisions on which Judge Leval relies. Concurring Op.

161-62 n. 14. Indeed, even if we were to accord those district court

cases the merit Judge Leval seems to believe they deserve, the

opinions of domestic courts citing domestic courts alone for

propositions of customary international law do not constitute

evidence of a “specific, universal, and obligatory” norm of the kind

necessary to impose judgment under the ATS.

Sosa,

542 U.S. at

732.

Moreover, contrary to Judge Leval’s claim that the

Nuremberg “tribunals

found

that corporations violated the law of

nations,”

see

Concurring Op. 180 & n. 36 (emphasis added) (citing

6

Trials of War Criminals Before the Nuernberg Military

Tribunals Under Control Council Law No. 10

(“

The Flick Case

”)

80a

Although Judge Leval condemns our holding, he in

fact agrees with much of our opinion. He concedes, for

example, that “[i]t is true that international law, of its

own force, imposes no liabilities on corporations or

other private juridical entities.” Concurring Op. 186;

see also id.

(explaining that it “is entirely accurate”

that “international law imposes no liabilities on

private juridical persons”);

id.

at 185-86 (“[I]t is

absolutely correct that the rules of international law . .

. do not provide for any form of liability of

corporations.”). He similarly has “no quarrel” with the

“premise[ ]” that international law is “the place to

look” to determine whether corporations can be held

liable for violations of international law.

Id.

at 174-

175. He concludes, however, that international law

does not supply an answer to that question. In his

view, the question of corporate liability is merely a

matter of “remedy” that “international law leaves . . .

to the independent determination of each State.”

Id.

at

176.

We agree with Judge Leval that whether to enact a

civil remedy for violations of customary international

law is a matter to be determined by each State; the

(1952); 7, 8

Trials of War Criminals Before the Nuernberg

Military Tribunals Under Control Council Law No. 10

(“

The

Farben Case

”) (1952); 9

Trials of War Criminals Before the

Nuernberg Military Tribunals Under Control Council Law No. 10

(“

The Krupp Case

”) (1950)), no tribunal at Nuremberg had the

jurisdiction to charge – let alone impose judgment on – a

corporation. As Judge Leval correctly points out, this

jurisdictional bar did not inhibit the tribunals’ ability to bring

individual criminal defendants to justice for atrocities committed

in violation of the customary international law of human rights.

Id.

81a

United States has done so in enacting the ATS. But

the ATS does not specify who is liable; it imposes

liability only for a “violation of the law of nations,” 28

U.S.C. § 1350, and thus it leaves the question of the

nature and scope of liability – who is liable for what –

to customary international law. As we explain in detail

below, therefore, whether a defendant is liable under

the ATS depends entirely upon whether that

defendant is subject to liability under customary

international law. It is inconceivable that a defendant

who is

not liable

under customary international law

could be

liable

under the ATS.

We will not embark on a lengthy tangent in

response to Judge Leval’s many “hypothetical cases,”

Concurring Op. 159, in which corporations would not,

under our holding, be liable under the ATS. We note

only that nothing in this opinion limits or forecloses

suits under the ATS against the individual

perpetrators of violations of customary international

law – including the employees, managers, officers, and

directors of a corporation as well as anyone who

purposefully aids and abets a violation of customary

international law. Nor does anything in this opinion

limit or foreclose criminal, administrative, or civil

actions against

any

corporation under a body of law

other than customary international law

– for example,

the domestic laws of any State. And, of course, nothing

in this opinion limits or forecloses legislative action by

Congress.

* * *

Lastly, we wish to note that we do not take lightly

the passion with which Judge Leval disagrees with our

holding. We are keenly aware that he calls our

82a

reasoning “illogical” on nine separate occasions.

See

Concurring Op. 151, 152, 154, 165, 166 n. 18, 168, 164,

174, 185, 186. Nor is it lost on us that he calls our

conclusions “strange,”

id.

at 151, 179-80, 180-81,

23

or

that he repeatedly criticizes our analysis as “internally

23

Although Judge Leval calls our holding “strange” and

“illogical,” Concurring Op. 151, it is, in fact, neither novel nor

eccentric. Rather, it appears to be the same rule adopted by

Congress in enacting the Torture Victim Protection Act of 1991

(“TVPA”), Pub.L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C.

§ 1350 note). The TVPA creates a civil damages remedy against

“[a]n

individual,

who, under actual or apparent authority, or color

of law, of any foreign nation . . . subjects

an individual

to torture .

. . or . . . extrajudicial killing.”

Id.

§ 2(a)(1)-(2) (emphases added);

Bowoto v. Chevron Corp.,

621 F.3d 1116, 1126 (9th Cir. 2010)

(holding that “the TVPA does not apply to corporations”). Indeed,

as Judge Korman observed in his separate opinion in

Khulumani

:

Under the TVPA, the term “individual” describes both

those who can violate its proscriptions against torture,

as well as those who can be victims of torture.... “[B]oth

from context and common sense only natural persons

can be the ‘individual’ victims of acts that inflict ‘severe

pain and suffering.’ Because the TVPA uses the same

term ‘individual’ to identify offenders, the definition of

‘individual’ within the statute appears to refer to a

human being, suggesting that

only natural persons can

violate the Act.

”

504 F.3d at 323-24 (Korman, J., concurring in part and dissenting

in part) (emphasis added) (citation omitted) (quoting

In re Agent

Orange Prod. Liab. Litig.,

373 F.Supp. 2d 7, 56 (E.D.N.Y. 2005));

accord Mujica v. Occidental Petroleum Corp.,

381 F.Supp. 2d

1164, 1176 (C.D. Cal. 2005) (holding that corporations are not

“individuals” under the TVPA);

cf.

1 U.S.C. § 1 (“In determining

the meaning of any Act of Congress,

unless context indicates

otherwise

. . . the word[ ] ‘person’ . . . include[s] corporations . . .

as well as individuals. . . .” (emphasis added)).

83a

inconsistent,”

id.

at 152 – 53, 153, 174.

24

We must,

however, leave it to the reader to decide whether any

of Judge Leval’s charges, individually or in

combination, are a fair reading of our opinion. In so

doing we are confident that if our effort is misguided,

higher judicial authority is available to tell us so.

BACKGROUND

These cross-appeals come to us from the United

States District Court for the Southern District of New

York (Kimba M. Wood,

Judge

). At this stage of the

proceedings, we accept as true all nonconclusory

factual allegations relevant to this decision.

See

Ashcroft v. Iqbal,

556 U.S. 662 (2009).

I. Factual Background

Plaintiffs, who are, or were, residents of the Ogoni

Region of Nigeria, allege that defendants Royal Dutch

24

Suggesting the panel majority is in league with leading

opponents of the modern ATS jurisprudence, Judge Leval even

goes so far as to attempt an increasingly popular rhetorical ploy

among legal scholars of a certain school of thought: what might be

called the “

reductio ad Borkum.” See

Concurring Op. 150-51

(quoting

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774, 805

(D.C. Cir. 1984) (Bork, J., concurring));

cf.

Leo Strauss,

Natural

Right and History

42-43 (1950) (“[W]e must avoid the fallacy that

in the last decades has frequently been used as a substitute for

the

reductio ad absurdum:

the

reductio ad Hitlerum.

A view is not

refuted by the fact that it happens to have been shared by

Hitler.”). We do not adhere to any school of thought on the ATS.

In any event, we have faith that our readers will understand that

a view is not refuted by the fact that it happens to have been

shared by The Honorable Robert H. Bork, sometime Alexander M.

Bickel Professor of Law at Yale Law School, Solicitor General of

the United States, and United States Circuit Judge for the

District of Columbia Circuit.

84a

Petroleum Company (“Royal Dutch”) and Shell

Transport and Trading Company PLC (“Shell”),

through a subsidiary named Shell Petroleum

Development Company of Nigeria, Ltd. (“SPDC”),

aided and abetted the Nigerian government in

committing human rights abuses directed at plaintiffs.

Royal Dutch and Shell are holding companies

incorporated respectively in the Netherlands and the

United Kingdom.

25

SPDC is incorporated in Nigeria.

All defendants are corporate entities – that is,

“juridical” persons, rather than “natural” persons.

SPDC has been engaged in oil exploration and

production in the Ogoni region of Nigeria since 1958.

In response to SPDC’s activities, residents of the Ogoni

region organized a group named the “Movement for

Survival of Ogoni People” to protest the environmental

effects of oil exploration in the region. According to

plaintiffs, in 1993 defendants responded by enlisting

the aid of the Nigerian government to suppress the

Ogoni resistance. Throughout 1993 and 1994, Nigerian

military forces are alleged to have shot and killed

Ogoni residents and attacked Ogoni villages – beating,

raping, and arresting residents and destroying or

looting property – with the assistance of defendants.

Specifically, plaintiffs allege that defendants,

inter

alia,

(1) provided transportation to Nigerian forces, (2)

allowed their property to be utilized as a staging

ground for attacks, (3) provided food for soldiers

involved in the attacks, and (4) provided compensation

to those soldiers.

25

Because of changes in corporate form, Shell Petroleum

N.V. and Shell Transport and Trading Company, Ltd. are the

successors to the named defendants Royal Dutch and Shell.

85a

Plaintiffs brought claims against defendants under

the ATS for aiding and abetting the Nigerian

government in alleged violations of the law of nations.

Specifically, plaintiffs brought claims of aiding and

abetting (1) extrajudicial killing; (2) crimes against

humanity; (3) torture or cruel, inhuman, and

degrading treatment; (4) arbitrary arrest and

detention; (5) violation of the rights to life, liberty,

security, and association; (6) forced exile; and (7)

property destruction.

II. Procedural History

Plaintiffs commenced this lawsuit by filing a

putative class action complaint in September 2002,

which was amended in May 2004. They alleged that

defendants aided and abetted, or were otherwise

complicit in, violations of the law of nations by the

Nigerian government. Relying on the Supreme Court’s

June 2004 decision in

Sosa v. Alvarez-Machain,

542

U.S. 692 (2004), defendants moved to dismiss.

In September 2006, the District Court dismissed

plaintiffs’ claims for aiding and abetting property

destruction; forced exile; extrajudicial killing; and

violations of the rights to life, liberty, security, and

association. The District Court reasoned that

customary international law did not define those

violations with the particularity required by

Sosa. See

Kiobel v. Royal Dutch Petroleum Co.,

456 F.Supp. 2d

457, 464-65, 467 (S.D.N.Y. 2006). The District Court

denied defendants’ motion to dismiss with respect to

the remaining claims of aiding and abetting arbitrary

arrest and detention; crimes against humanity; and

torture or cruel, inhuman, and degrading treatment.

See id.

at 465-67. Recognizing the importance of the

86a

issues presented and the substantial grounds for

difference of opinion, the District Court certified its

entire order for interlocutory appeal pursuant to 28

U.S.C. § 1292(b).

See id.

at 467-68.

DISCUSSION

We review

de novo

a district court’s dismissal for

failure to state a claim,

see

Fed. R. Civ. P. 12(b)(6),

assuming all well-pleaded, nonconclusory factual

allegations in the complaint to be true.

See Iqbal,

129

S. Ct. at 1949-50;

Selevan v. N.Y. Thruway Auth.,

584

F.3d 82, 88 (2d Cir. 2009). We also review questions of

subject matter jurisdiction

de novo. See Bank of N.Y.

v. First Millennium, Inc.,

607 F.3d 905, 920 (2d Cir.

2010);

Flores v. S. Peru Copper Corp.,

414 F.3d 233,

241 (2d Cir. 2003).

As we have explained above, this appeal presents a

question that has been lurking for some time in our

ATS jurisprudence. Since our first case upholding

claims brought under the ATS in 1980,

see Filartiga v.

Pena-Irala,

630 F.2d 876 (2d Cir. 1980), our Court has

never directly addressed whether our jurisdiction

under the ATS extends to civil actions against

corporations,

see Presbyterian Church of Sudan v.

Talisman Energy, Inc.,

582 F.3d 244, 261 n. 12 (2d Cir.

2009) (assuming, without deciding, that corporations

may be liable for violations of customary international

law);

Khulumani v. Barclay Nat’l Bank Ltd.,

504 F.3d

254, 282-83 (2d Cir. 2007) (Katzmann, J., concurring)

(noting that, because defendants did not raise the

issue, the Court need not reach the question of

whether corporations may be liable for violations of

customary international law);

id.

at 321-25 (Korman,

J., concurring in part and dissenting in part)

87a

(expressing the view that corporations cannot be held

liable under the ATS). We have, in the past, decided

ATS cases involving corporations without addressing

the issue of corporate liability.

See, e.g., Abdullahi v.

Pfizer, Inc.,

562 F.3d 163 (2d Cir. 2009),

cert. denied,

___U.S. ___, 130 S. Ct. 3541(2010);

Flores,

414 F.3d

233;

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88

(2d Cir. 2000). But that fact does not foreclose

consideration of the issue here. As the Supreme Court

has held, “when questions of

jurisdiction

have been

passed on in prior decisions

sub silentio,

” the Court

“has never considered itself bound when a subsequent

case finally brings the jurisdictional issue before [it].”

Hagans v. Lavine,

415 U.S. 528, 533 n. 5 (1974)

(emphasis added);

see also

Restatement

(Third), pt. II, at 70 introductory note (“[I]ndividuals

and private juridical entities can have any status,

91a

capacity, rights, or duties

given them by international

law or agreement

. . . .” (emphasis added)).

28

That the subjects of international law are

determined by international law, and not individual

States, is evident from the decisions of the

International Military Tribunal at Nuremberg

(“Tribunal”) in the aftermath of the Second World

War. The significance of the judgment of the Tribunal

– and of the judgments of the tribunals established by

the Allied Control Council pursuant to Council Control

Law No. 10 (Dec. 20, 1945),

see

Part II.A.1,

post

– was

not simply that it recognized genocide and aggressive

war as violations of international law. The defining

legal achievement of the Nuremberg trials is that they

explicitly recognized

individual liability

for the

violation of specific, universal, and obligatory norms of

the customary international law of human rights. In

its judgment the Tribunal noted that the defendants

had argued that “international law is concerned with

28

The Restatement observes that “[i]ndividuals may be held

liable for offenses against international law, such as piracy, war

crimes, or genocide” and that “[c]orporations frequently are

vehicles through which rights under

international economic law

are asserted.” Restatement (Third), pt. II., at 71 introductory note

(emphasis added);

cf.

1

Oppenheim’s International Law

§ 33, at

120 (“[T]he subjects of law in any legal system are not necessarily

identical in their nature or in the extent of their rights, and their

nature depends upon the needs of the community; an

international person need not possess all the international rights,

duties and powers normally possessed by states.” (footnote

omitted) (internal quotation marks omitted)). It goes without

saying that the question we are dealing with here is whether

corporations are subjects of the customary international law of

human rights, not whether they are subjects of treaty-based

“international economic law.”

See generally

Part II.B,

post.

92a

the actions of sovereign states, and provides no

punishment for individuals.”

The Nurnberg Trial

(United States v. Goering),

6 F.R.D. 69, 110 (Int’l

Military Trib. at Nuremberg 1946). The Tribunal

rejected that view, however, declaring that

“

international law

imposes duties and liabilities upon

individuals as well as upon states” and that

“individuals can be punished for violations of

international law.”

Id.

(emphasis added).

The significance of that aspect of the Tribunal’s

judgment was not lost on observers at the time. Justice

Jackson, who served as chief prosecutor for the United

States for the trial before the Tribunal, explained in

his final report to President Truman that “[the

Nurnberg trials] for the first time made explicit and

unambiguous what was theretofore, as the Tribunal

has declared, implicit in International Law,” namely,

that the conduct of the leaders of Nazi Germany

violated international law, “

and that for the

commission of such crimes individuals are

responsible.

” Robert H. Jackson,

Final Report to the

President Concerning the Nurnberg War Crimes Trial

(1946) (emphasis added),

reprinted in

20 Temp. L.Q.

338, 342 (1946) (emphasis added). General Telford

Taylor, chief prosecutor for the United States for the

trials conducted under Allied Control Council Law No.

10, similarly noted in his final report to the Secretary

of the Army that “the major legal significance of the

Law No. 10 judgments lies . . . in those portions of the

judgments dealing with the

area of personal

responsibility

for international law crimes.” Brigadier

General Telford Taylor, U.S.A., Chief of Counsel for

War Crimes,

Final Report to the Secretary of the Army

on the Nuernberg War Crimes Trials Under Control

93a

Council Law No. 10,

at 109 (1949);

see also

note 36,

post.

29

B.

Sosa

and Our Precedents Require Us to

Look to International Law to Determine

the Scope of Liability

In

Sosa

the Supreme Court instructed the lower

federal courts to consider “whether

international law

extends the scope of liability for a violation of a given

norm to the perpetrator being sued, if the defendant is

a private actor such as a corporation or individual.”

Sosa,

542 U.S. at 732 n. 20 (emphasis added). That

language requires that we look to

international law

to

determine our jurisdiction over ATS claims against a

particular class of defendant, such as corporations.

30

That conclusion is reinforced by Justice Breyer’s

reformulation of the issue in his concurring opinion:

“The norm [of international law] must extend liability

to the

type of perpetrator

(

e.g.,

a private actor) the

plaintiff seeks to sue.”

See id.

at 760 (Breyer, J.,

29

Under Judge Leval’s approach, the extension of the scope

of liability to individuals at Nuremberg was not a detectable

advance of international law. That is because, in his view,

international law merely “establishe[s] . . . norms of prohibited

conduct” and leaves individual States to determine the scope of

liability. Concurring Op. 152. That view finds no support in

international law.

30

Although the text of the ATS limits only the category of

plaintiff

who may bring suit (namely, “aliens”), its requirement

that a claim be predicated on a “violation of the law of nations”

incorporates any limitation arising from customary international

law on who properly can be named a

defendant. See

28 U.S.C. §

1350.

94a

concurring) (emphasis added) (citing

id.

at 732 n. 20

majority opinion).

The Supreme Court’s instruction to look to

international law to determine the scope of liability

under the ATS did not involve a revolutionary

interpretation of the statute – in fact, it had long been

the law of this Circuit. In

Filartiga

, we had looked to

international law to determine our jurisdiction and to

delineate the type of defendant who could be sued.

See

630 F.2d at 889 (“[T]he question of federal jurisdiction

under the Alien Tort Statute . . . requires

consideration of the law of nations.”);

id.

at 880 (“In

light of the universal condemnation of torture in

numerous international agreements, and the

renunciation of torture as an instrument of official

policy by virtually all of the nations of the world (in

principle if not in practice), we find that an act of

torture

committed by a state official

against one held

in detention violates established norms of the

international law of human rights, and hence the law

of nations.” (emphasis added));

see also id.

at 261 n. 12 (noting that

the court “need not reach . . . the question of ‘whether

international law extends the scope of liability’ to

corporations” (quoting

Sosa,

542 U.S. at 732 n. 20)). In

Presbyterian Church,

we looked to

international law

to

determine the circumstances in which aiders and

abettors could be liable for violations of the customary

international law of human rights.

Id.

at 258-59. We

did so because “[r]ecognition of secondary liability is no

less significant a decision than whether to recognize a

whole new tort in the first place.”

Id.

at 259. Thus, our

holding today is consistent with

Presbyterian Church,

where we looked to international law to determine not

only what conduct is cognizable under the ATS, but

96a

also the identity of the persons to whom that conduct

is attributable (in that case, aiders and abettors).

31

Judge Leval’s assertion that we quote

Sosa

out of context

and distort the Supreme Court’s reasoning is unwarranted. We

interpret

Sosa

here exactly the way we did in

Presbyterian

Church,

582 F.3d at 258, 261 n. 12. We acknowledge that the

Court in

Sosa

was not addressing the question of corporate

liability under the ATS. Thus, the Court in footnote 20 had no

occasion to draw a distinction between natural persons and

juridical persons. That fact does not obscure footnote 20’s

fundamental point: courts must look to customary international

law to determine the “scope” of liability under the ATS. That is

true not only when a court is questioning whether the scope of

liability under the ATS includes private actors (as opposed to

state actors), but also when a court is questioning whether the

scope of liability under the ATS includes juridical persons (as

opposed to natural persons). The proposition that we are required

to look to international law to determine whether corporations

can be held liable under the ATS is not only compelled by

Sosa

and consistent with our precedents, it is also a proposition with

which Judge Leval does not disagree. Concurring Op. 173-74

(explaining that he has “no quarrel” with the premise that “[t]o

determine whether a corporation can be held civilly liable for a

violation of international law,

the place to look is to international

law

” (emphasis added));

see also id.

at 174 (“[I]f we found that

international law in fact exempts corporations from liability for

violating its norms, we would be forced to accept that answer

whether it seems reasonable to us or not.”).

Not only does Judge Leval agree that we must look to

customary international law in resolving the question before us,

but he also agrees that the customary international law of human

rights imposes no liability on corporations. Concurring Op. 186

(“It is true that international law, of its own force, imposes no

liabilities on corporations or other private juridical entities.”). Yet

beyond those significant points of agreement our analyses

diverge. We believe that the absence of a norm of corporate

liability in international law ends our inquiry and deprives us of

jurisdiction to consider plaintiffs’ claims against corporate

defendants. Under Judge Leval’s approach, the absence of the

97a

Our interpretation of

Sosa

is also consistent with

Judge Katzmann’s separate opinion in

Khulumani

,

504 F.3d at 264 (Katzmann, J., concurring), which this

same panel (including Judge Leval) adopted as the law

of the Circuit in

Presbyterian Church, see

582 F.3d at

258 (“This opinion draws substantially from Judge

Katzmann’s concurring opinion, and adopts his

proposed rule as the law of this Circuit.”). In

Khulumani,

Judge Katzmann observed that aiding

and abetting liability – much like corporate liability –

“‘does not constitute a discrete criminal offense but

only serves as a more particularized way of identifying

the persons involved’ in the underlying offense.” 504

F.3d at 280 (Katzmann, J., concurring) (quoting

United States v. Smith,

198 F.3d 377, 383 (2d Cir.

1999) (some internal quotation marks omitted)). Judge

Katzmann further explained that “[w]hile [footnote 20

of

Sosa

] specifically concerns the liability of non-state

actors, its general principle is equally applicable to the

question of where to look to determine whether the

scope of liability for a violation of international law

should extend to aiders and abettors.”

Id.

at 269. He

therefore concluded that “to assure itself that it has

jurisdiction to hear a claim under the [ATS], [a court]

should first determine whether the alleged tort was in

fact ‘committed in violation of the law of nations,’ 28

U.S.C. § 1350, and whether

this law would recognize

the defendants’ responsibility for that violation.

”

Id.

at

270 (emphasis added);

see also id.

at 281 (“Because

relevant norm in international law merely permits a court to

proceed a step further, to domestic law, in search of that norm.

We respectfully submit that it is Judge Leval’s approach, and not

our own, that is utterly lacking in support in precedent.

98a

aiding and abetting is a generally applicable means of

identifying

who should be held responsible

for a

particular act, . . . it is . . . reasonable to consider

whether the theory is accepted as a

general principle

of customary international law

. . . . ” (emphases

added)).

32

Significantly, it was only because we looked to

international law that we were able to recognize a

norm of aiding and abetting liability under the ATS. In

Khulumani

, Judge Katzmann declined to rely on the

usual presumption against aiding and abetting

liability that applies in the interpretation of domestic

statutes.

See Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164, 182,

(1994) (“[W]hen Congress enacts a statute under which

a person may sue and recover damages from a private

defendant for the defendant’s violation of some

statutory norm, there is no general presumption that

the plaintiff may also sue aiders and abettors.”).

Instead, Judge Katzmann concluded that

Central

Bank

had no bearing on aiding and abetting liability

32

Judge Leval suggests that Judge Katzmann’s approach in

Khulumani

requires a court to look only to whether a defendant’s

conduct violated customary international law. Concurring Op.

186–88. But that is only the first step of Judge Katzmann’s

approach. As Judge Katzmann carefully explained: “[T]o assure

itself that it has jurisdiction to hear a claim under the [ATS], [a

court] should first determine whether the alleged tort was in fact

‘committed in violation of the law of nations,’ 28 U.S.C. § 1350,

and whether this law would recognize the defendants’

responsibility for that violation.” Khulumani,

504 F.3d at 270

(emphasis added). In asserting that his views are consistent with

his endorsement of Judge Katzmann’s concurring opinion in

Khulumani

, Judge Leval simply ignores the second step of Judge

Katzmann’s approach.

99a

under the ATS because, “[u]nder the [ATS] the

relevant norm

is provided not by domestic statute but

by the law of nations

, and

that law

extends

responsibility for violations of its norms to aiders and

abettors.” 504 F.3d at 282 (Katzmann, J., concurring)

(emphases added).

33

* * *

In sum, we have little difficulty holding that,

under international law,

Sosa,

and our three decades

of precedent, we are required to look to international

law to determine whether corporate liability for a

“violation of the law of nations,” 28 U.S.C. § 1350, is a

norm “accepted by the civilized world and defined with

a specificity” sufficient to provide a basis for

jurisdiction under the ATS,

Sosa,

542 U.S. at 725. We

have looked to international law to determine whether

33

Judge Katzmann declined to reach the question of

corporate liability in his concurring opinion in

Khulumani

because that question was “not raised by the defendants on

appeal and therefore the issue was not briefed by the parties.”

Id.

at 282. Judge Katzmann observed, however, that our Court had

repeatedly assumed that corporations can be liable under the

ATS because private individuals are liable under the statute,

see

id

. (citing

Bigio v. The Coca-Cola,

239 F.3d 440, 447 (2d Cir.

2000);

Flores,

414 F.3d at 244), and he suggested that the

Supreme Court may have done the same,

id.

at 283 (noting that

Sosa

classified both corporations and individuals as private actors

(citing

Sosa,

542 U.S. at 732 n. 20)). Nonetheless, whatever Judge

Katzmann’s view on the ultimate question of corporate liability

under the ATS, his reasoning in

Khulumani

leads to the

inescapable conclusion that customary international law governs

the question. We adopted that reasoning in

Presbyterian Church

in deciding the standards for aiding and abetting liability and we

employ the same reasoning today in deciding whether

corporations can be liable under the ATS.

100a

state officials,

see Filartiga,

630 F.2d at 880, private

individuals,

see Kadic,

70 F.3d at 239-41, and aiders

and abettors,

see Presbyterian Church,

582 F.3d at

258-59, can be held liable under the ATS. There is no

principled basis for treating the question of corporate

liability differently. Like the issue of aiding and

abetting liability, whether corporations can be liable

for alleged violations of the law of nations “is no less

significant a decision than whether to recognize a

whole new tort in the first place.”

Presbyterian

Church,

582 F.3d at 259. It is, therefore, a decision

properly made only by reference to customary

international law.

Having concluded that international law controls

our inquiry, we next consider what the sources of

international law reveal with respect to the existence

of a norm of corporate liability under customary

international law.

II. Corporate Liability Is Not a Norm of

Customary International Law

To attain the status of a rule of customary

international law, a norm must be “specific, universal,

and obligatory.”

Sosa,

542 U.S. at 732 (quoting with

approval the statement of a lower court) (internal

quotation marks omitted);

see also id.

at 251 n. 25

(noting that, under Article 59 of the ICJ statute, a “decision of the

[ICJ] has no binding force except between the parties and in

respect of that particular case”).

103a

Filartiga,

630 F.2d at 880-81 & n. 8 (describing Article

38 as consistent with the Supreme Court’s historical

approach to sources of international law);

see also

J.L.

Brierly,

The Law of Nations

56 (Sir Humphrey

Waldock ed., 6th ed. 1963) (referring to Article 38 as “a

text of the highest authority”); Restatement (Third) §

103 (describing similar sources as evidence of

international law). Article 38 provides in relevant part:

1. The Court, whose function is to decide in

accordance with international law such

disputes as are submitted to it, shall apply:

a. international conventions, whether

general or particular, establishing rules

expressly recognized by the contesting

states;

b. international custom, as evidence of a

general practice accepted as law;

c. the general principles of law recognized

by civilized nations;

d. subject to the provisions of Article 59,

judicial decisions and the teachings of the

most highly qualified publicists [

i.e.,

scholars or “jurists”] of the various nations,

as

subsidiary means for the determination

of rules of law.

ICJ Statute, art. 38, June 26, 1945, 59 Stat. 1055,

1060, 33 U.N.T.S. 993 (emphasis added). With those

principles in mind, we consider whether the sources of

international law reveal that corporate liability has

104a

attained universal acceptance as a rule of customary

international law.

A. International Tribunals

Insofar as international tribunals are established

for the specific purpose of imposing liability on those

who violate the law of nations, the history and conduct

of those tribunals is instructive. We find it particularly

significant, therefore, that no international tribunal of

which we are aware has

ever

held a corporation liable

for a violation of the law of nations.

1. The Nuremberg Tribunals

The Charter of the International Military

Tribunal, commonly known as the “London Charter,”

authorized the punishment of the major war criminals

of the European Axis following the Second World War.

See

Agreement for the Prosecution and Punishment of

the Major War Criminals of the European Axis (the

“London Charter”), Aug. 8, 1945, 59 Stat. 1544, 82

U.N.T.S. 279. The London Charter and the trials at

Nuremberg that followed are collectively the single

most important source of modern customary

international law concerning liability for violations of

fundamental human rights.

36

As Justice Jackson

36

Before the Second World War, international law provided

few protections of the human rights of individuals. Hersch

Lauterpacht,

An International Bill of the Rights of Man

47 (1945).

Such modest recognition of human rights as existed before the

First World War involved assertions of a right of humanitarian

intervention for the protection of oppressed religious groups.

See

Louis B. Sohn & Thomas Buergenthal,

International Protection of

Human Rights

137-211 (1973);

see also

Brierly,

ante,

at 291-92.

In the period after that war the League of Nations undertook for

the first time an international regime to protect racial, religious,

105a

or linguistic minorities.

See

Sohn & Buergenthal,

ante,

at 213-

335; Brierly,

ante,

at 292. As an authoritative work on the

travaux preparatoire,

or “legislative history,” of the 1998 Rome

Statute of the International Criminal Court has observed:

[T]he first instrument providing general requirements for

individual responsibility

in a binding manner was the Charter of

the International Military Tribunal (IMT) in Nuremberg: aside

from establishing individual responsibility for certain crimes

against peace, war crimes, and crimes against humanity (Article

6), it partially covered the early stages of planning and

preparation and certain types of complicity, declared the official

position of defendants, including Heads of State or other

government officials, as not freeing them from responsibility

(Article 7) and recognized superior orders, if at all, as mitigating

circumstances at most (Article 8).

Albin Eser,

Individual Criminal Responsibility, in

1

The

Rome Statute of the International Criminal Court

767, 774-75

(Antonio Cassese et al. eds., 2002) (emphasis added) (footnote

omitted).

We rely here on the “teachings of the most highly qualified

publicists of the various nations.” ICJ Statute,

ante,

art. 38;

see

note 35,

ante;

note 47,

post.

Professor Cassese, co-editor of a

multi-volume work on the history of the Rome Statute, is

Professor of International Law at the University of Florence and

former President of the International Criminal Tribunal for the

former Yugoslavia. Professor Brierly was the Chichele Professor

of International Law in the University of Oxford. Sir Hersch

Lauterpacht was the Whewell Professor of Public International

Law in the University of Cambridge and later would serve as a

Judge of the International Court of Justice.

See

Lauterpacht

Centre for International Law, Sir Hersch Lauterpacht, 1897-

1960, http://www.lcil.cam.ac.uk/about_the_centre/sir_hersch_

lauterpacht.php (last visited Aug. 20, 2010). Louis B. Sohn was

the Bemis Professor of International Law and the John Harvey

Gregory Lecturer in International Organization at the Harvard

Law School. Thomas Buergenthal was a Professor of

International Law at the Law School of the State University of

New York (Buffalo) and the George Washington University and

now serves as a Judge of the International Court of Justice. Sir

106a

explained, the London Charter “is a basic charter in

the International Law of the future,” and the

Nuremberg trials took great strides in “ma[king]

explicit and unambiguous” the human rights norms

that had “theretofore ... [been] implicit in International

Law.” Jackson,

Final Report, ante,

at 342. And as

Judge Katzmann noted in

Khulumani

“[C]ourts,

international bodies, and scholars have recognized

that the principles set out in the London Charter and

applied by the International Military Tribunal are

significant not only because they have garnered broad

acceptance, but also because they were viewed as

reflecting and crystallizing preexisting customary

international law.” 504 F.3d at 271 (Katzmann, J.,

concurring).

It is notable, then, that the London Charter, which

established the International Military Tribunal at

Nuremberg, granted the Tribunal jurisdiction over

natural persons only. See

London Charter,

ante,

art. 6,

59 Stat. at 1547 (granting the tribunal jurisdiction to

“try and punish

persons

. . . whether as

individuals

or

as

members

of organizations” –

i.e.,

natural persons

(emphases added));

see also

Charter of the

International Military Tribunal for the Far East, art.

5, Jan. 19, 1946, amended Apr. 26, 1946, 4 Bevans 20,

22 (granting the tribunal jurisdiction over “war

Humphrey Waldock, editor of the sixth edition of Brierly’s

The

Law of Nations,

was at the time of publication the Chichele

Professor of Public International Law in the University of Oxford

and a member of the International Law Commission.

See

Sir

Humphrey Waldock, 77; Head of International Court, N.Y. Times,

Aug. 18, 1981, at B19. He previously served as president of the

European Commission on Human Rights and later became a

judge and president of the International Court of Justice.

Id.

107a

criminals who as

individuals

or as

members

of

organizations are charged with offenses” (emphases

added)).

The London Charter also granted the

International Military Tribunal the authority to

declare organizations “criminal” – and several German

government and military organizations, such as the SS

and the Gestapo, were, in fact, indicted. London

Charter,

ante,

art. 9, 59 Stat. at 1548 (“At the trial of

any individual member of any group or organization

the Tribunal may declare . . . that the group or

organization of which the individual was a member

was a criminal organization.”); Ann Tusa & John Tusa,

The Nuremberg Trial

425 (1983) (describing the

indictment of six organizations).

See generally The

Nurnberg Trial,

6 F.R.D. at 136-43 (describing the

structure of the SS and the Gestapo and the criminal

activities of their members). Such a declaration

following indictment, however, did not result in the

organization being punished or having liability

assessed against it. Rather, the effect of declaring an

organization criminal was merely to facilitate the

prosecution of

individuals

who were members of the

organization.

See

London Charter,

ante,

art. 10, 59

Stat. at 1548 (“In cases where a group or organization

is declared criminal by the Tribunal, the competent

national authority of any Signatory shall have the

right to bring individuals to trial for membership

therein before national, military or occupation courts.

In any such case the criminal nature of the group or

organization is considered proved and shall not be

questioned.

” (emphasis added)).

108a

Echoing the London Charter’s imposition of

liability on natural persons only, the subsequent

United States Military Tribunals, established under

Control Council Law No. 10, prosecuted

corporate

executives

for their role in violating customary

international law during the Second World War, but

not the corporate entities themselves.

See generally

Control Council Law No. 10, Punishment of Persons

Guilty of War Crimes, Crimes Against Peace and

Against Humanity,

in

1

Enactments and Approved

Papers of the Control Council and Coordinating

Committee, Allied Control Authority Germany

306

(1945),

available at

http://www.loc.gov/rr/frd/Military

_Law/Enactments/Volume-I.pdf.

37

This approach to

liability can be seen most clearly in the tribunal’s

treatment of the notorious I.G. Farben chemical

company (“I.G. Farben”).

The refusal of the military tribunal at Nuremberg

to impose liability on I.G. Farben is not a matter of

happenstance or oversight. This corporation’s

production of, among other things, oil, rubber,

nitrates, and fibers was harnessed to the purposes of

the Nazi state, and it is no exaggeration to assert that

the corporation made possible the war crimes and

crimes against humanity perpetrated by Nazi

Germany, including its infamous programs of looting

37

Control Council Law No. 10 was enacted “[i]n order to give

effect to the terms of . . . the London Agreement of 8 August 1945,

and the Charter issued pursuant thereto [

i.e.,

the London

Charter] and in order to establish a uniform legal basis in

Germany for the prosecution of war criminals and other similar

offenders,

other than those dealt with by the International

Military Tribunal.

” Control Council Law No. 10, preamble,

ante

(emphasis added).

109a

properties of defeated nations, slave labor, and

genocide:

The depth of the partnership [between the

Nazi state and I.G. Farben] was reached at

Auschwitz, the extermination center [in

Poland], where four million human beings

were destroyed in accordance with the “Final

Solution of the Jewish Question,” Hitler’s plan

to destroy an entire people. Drawn by the

almost limitless reservoir of death camp labor,

I.G. [Farben] chose to build a great industrial

complex at Auschwitz for the production of

synthetic rubber and oil.

Joseph Borkin,

The Crime and Punishment of I.G.

Farben

2-3 (1978). Auschwitz was an I.G. Farben slave

camp where millions were exterminated by Zyklon B,

an insecticide knowingly and intentionally

manufactured and provided by I.G. Farben and

affiliated corporate entities for a new and lethal use as

an asphyxiating agent in the gas chambers at

Auschwitz.

Id.

at 122-23.

Twenty-four executives of Farben were charged,

inter alia,

with “Planning, Preparation, Initiation, and

Waging of Wars of Aggression and Invasions of Other

Countries”; “Plunder and Spoliation”; and “Slavery

and Mass Murder.”

See

7

Trials of War Criminals

Before the Nuernberg Military Tribunals Under

Control Council Law No. 10

(“

The Farben Case

”) 11-

60 (1952);

see also

Borkin,

ante,

at 137 (discussing the

indictment of I.G. Farben executives). But the I.G.

Farben corporate entity was not charged, nor was it

named in the indictment as a criminal organization. In

issuing its judgment, the tribunal pointedly observed

110a

that “the corporate defendant, Farben, is not before

the bar of this Tribunal and cannot be subjected to

criminal penalties in these proceedings.” 8

The Farben

Case, ante,

at 1153. The Tribunal emphasized:

We have used the term “Farben” as descriptive

of the instrumentality of cohesion in the name

of which the enumerated acts of spoliation

were committed. But corporations act through

individuals and, under the conception of

personal individual guilt

. . . the prosecution,

to discharge the burden imposed upon it in this

case, must establish by competent proof

beyond a reasonable doubt that an

individual

defendant

was either a participant in the

illegal act or that, being aware thereof, he

authorized or approved it.

Id.

(emphases added).

38

Those statements parallel the

oft-cited passage of the Nuremberg judgment, made in

response to the argument that international law is

concerned only with the actions of sovereign states:

“Crimes against international law are committed by

men, not by abstract entities, and only by punishing

individuals who commit such crimes can the provisions

38

The tribunal also noted that “one may not utilize the

corporate structure to achieve an immunity from criminal

responsibility for illegal acts.”

Id.

Accordingly, “where private

individuals, including juristic persons, proceed to exploit the

military occupancy by acquiring private property against the will

and consent of the former owner, such action . . . is in violation of

international law.”

Id.

at 1132. In other words,

individuals

who

commit violations of customary international law do not

immunize themselves from liability by acting through the

corporate form.

111a

of international law be enforced.”

The

Nurnberg Trial,

6 F.R.D. at 110.

In declining to impose corporate liability under

international law in the case of the most nefarious

corporate enterprise known to the civilized world,

while prosecuting the men who led I.G. Farben, the

military tribunals established under Control Council

Law No. 10 expressly defined liability under the law of

nations as liability that could not be divorced from

individual

moral responsibility. It is thus clear that, at

the time of the Nuremberg trials, corporate liability

was not recognized as a “specific, universal, and

obligatory” norm of customary international law.

See

Sosa,

542 U.S. at 732 (internal quotation marks

omitted).

We turn now to international tribunals convened

since Nuremberg to determine whether there is any

evidence that the concept of corporate liability has

coalesced into a “specific, universal, and obligatory”

norm.

2. International Tribunals Since

Nuremberg

Since Nuremberg, international tribunals have

continually declined to hold corporations liable for

violations of customary international law. For

example, the charters establishing both the

International Criminal Tribunal for the former

Yugoslavia (“ICTY”) and the International Criminal

Tribunal for Rwanda, or (“ICTR”) expressly confined

the tribunals’ jurisdiction to “natural persons.”

See

International Criminal Tribunal for the Former

Yugoslavia Statute, S.C. Res. 827, U.N. Doc.

S/RES/827 (May 25, 1993),

adopting

The Secretary-

112a

General, Report Pursuant to Paragraph 2 of Security

Council Resolution 808 (“Report of the Secretary-

General”), art. 6, U.N. Doc. S/25704 (May 3, 1993)

(“The International Tribunal shall have jurisdiction

over

natural persons

. . . . ”); Statute of the

International Tribunal for Rwanda, art. 5, S.C. Res.

955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (same);

cf.

Khulumani,

504 F.3d at 274 (Katzmann, J.,

concurring) (“[T]he ICTY Statute is particularly

significant because the ‘Individual Criminal

Responsibility’ section of that statute was intended to

codify existing norms of customary international

law.”).

The commentary contained in the Report of the

Secretary-General of the United Nations on the ICTY

reveals that jurisdiction over corporations was

considered but expressly rejected: “[T]he ordinary

meaning of the term ‘persons responsible for serious

violations of international humanitarian law’ would be

natural persons to the exclusion of juridical persons.

”

Report of the Secretary-General,

ante,

¶ 50. Moreover,

unlike the International Military Tribunal at

Nuremberg, the ICTY lacked the authority to declare

organizations “criminal.”

Id.

¶ 51 (“The question arises

. . . whether a juridical person, such as an association

or organization, may be considered criminal as such

and thus its members, for that reason alone, be made

subject to the jurisdiction of the International

Tribunal. The Secretary-General believes that this

concept should not be retained in regard to the

International Tribunal. The criminal acts set out in

this statute are carried out by natural persons . . . . ”);

cf.

London Charter,

ante,

art. 9, 59 Stat. at 1548.

Thus, to the extent that the International Military

113a

Tribunal at Nuremberg possessed some limited

authority to declare corporations criminal – which, as

explained above, operated merely as an evidentiary

rule for later trials imposing liability on

individuals –

subsequent tribunals have not retained that

procedure.

More recently, the Rome Statute of the ICC also

limits that tribunal’s jurisdiction to “natural persons.”

See

The Rome Statute of the International Criminal

Court (“Rome Statute”) art. 25(1),

opened for signature

July 17, 1998, 37 I.L.M. 1002, 1016;

see also

Albin

Eser,

Individual Criminal Responsibility, in

1

The

Rome Statute of the International Criminal Court

767,

778 (Antonio Cassese et al. eds., 2002) (“[W]hen

reading paragraphs (1), (2), and (3) of Article 25 of the

ICC Statute together, there can be no doubt that by

limiting criminal responsibility to individual natural

persons, the Rome Statute implicitly negates – at least

for its own jurisdiction – the punishability of

corporations and other legal entities.”). Significantly, a

proposal to grant the ICC jurisdiction over

corporations and other “juridical” persons was

advanced by the French delegation, but the proposal

was rejected.

See

Eser,

ante,

at 779. As commentators

have explained, the French proposal was rejected in

part because “criminal liability of corporations is still

rejected in many national legal orders” and thus would

pose challenges for the ICC’s principle of

“complementarity.”

39

Id.; see also Draft Report of the

39

“Complementarity” is the principle, embodied in the Rome

Statute, by which the ICC declines to exercise jurisdiction over a

case that is simultaneously being investigated or prosecuted by a

State having jurisdiction over it.

See

Rome Statute,

ante,

art. 17.

114a

Intersessional Meeting from 19 to 30 January 1998

[

Held

]

in Zuthphen, The Netherlands, in The Statute

of the International Criminal Court: A Documentary

History

221, 245 n. 79 (M. Cherif Bassiouni ed., 1998)

(“There is a deep divergence of views as to the

advisability of including criminal responsibility of

legal [

i.e.

, juridical] persons in the statute.”); Andrew

Clapham,

The Question of Jurisdiction Under

International Criminal Law Over Legal Persons:

Lessons from the Rome Conference on an

International Criminal Court,

in

Liability of

Multinational Corporations Under International Law

139, 157 (Menno T. Kamminga & Saman Zia-Zarifi

eds., 2000) (“This proposal was finally withdrawn by

the French delegation when it became clear that there

was no

possibility that a text could be adopted by

consensus

. . . . For some delegations the whole notion

of corporate criminal responsibility was simply ‘alien’,

raising problems of complementarity.” (emphasis

added)). The history of the Rome Statute therefore

confirms the absence of any generally recognized

principle or consensus among States concerning

corporate liability for violations of customary

international law.

In sum, modern international tribunals make it

abundantly clear that, since Nuremberg, the concept of

corporate liability for violations of customary

international law has not even begun to “ripen[ ]” into

a universally accepted norm of international law.

Cf.

The Paquete Habana,

175 U.S. at 686 (explaining that

a practice can “gradually ripen[ ] into a rule of

international law” through “usage among civilized

nations”).

115a

B. International Treaties

Treaties “are proper evidence of customary

international law because, and insofar as, they create

legal obligations

akin to contractual obligations on the

States parties to them.”

Flores,

414 F.3d at 256.

Although all treaties ratified by more than one State

provide

some

evidence of the custom and practice of

nations, “a treaty will only constitute

sufficient proof

of a norm of

customary international law

if an

overwhelming majority of States have ratified the

treaty,

and

those States uniformly and consistently act

in accordance with its principles.”

Id.

(second emphasis

added). Moreover, as one distinguished scholar of

international law has explained:

The ordinary treaty by which two or more

states enter into engagements with one

another for some

special

object can very rarely

be used even as evidence to establish the

existence of a rule of

general law;

it is more

probable that the very reason of the treaty was

to create an obligation which would not have

existed by the general law, or to exclude an

existing rule which would otherwise have

applied.

Brierly,

ante,

at 57 (emphases added). That a provision

appears in one treaty (or more), therefore, is not proof

of a well-established norm of

customary

international

law.

One district court in our Circuit erroneously

overvalued the importance of a number of

international treaties in finding that corporate liability

has attained the status of customary international

law.

See Presbyterian Church of Sudan v. Talisman

116a

Energy, Inc.,

244 F.Supp. 2d 289, 316-17 (S.D.N.Y.

2003) (denying defendants’ motion to dismiss).

But see

Presbyterian Church of Sudan v. Talisman Energy,

Inc.,

453 F.Supp. 2d 633 (S.D.N.Y. 2006) (granting

summary judgment to defendants on different

grounds),

aff’d

, 582 F.3d 244 (2d Cir. 2009). None of

the treaties relied upon in the district court’s 2003

Presbyterian Church

opinion have been ratified by the

United States, and most of them have not been ratified

by other States whose interests would be most

profoundly affected by the treaties’ terms.

40

Cf. Flores,

414 F.3d at 256-57 (explaining that a treaty’s

evidentiary value is dependent, in part, on the number

and “relative influence . . . in international affairs” of

40

The district court relied on the following treaties: (1)

Convention Concerning the Application of the Principles of the

Right to Organise and to Bargain Collectively,

adopted

July 1,

1949, 96 U.N.T.S. 257 (not ratified by the United States); (2)

Convention on Third Party Liability in the Field of Nuclear

Energy,

done

July 29, 1960, amended Jan. 28, 1964, 956 U.N.T.S.

263 (not ratified by the United States, China, the Soviet Union, or

Germany); (3) International Convention on Civil Liability for Oil

Pollution Damage,

done

Nov. 29, 1969, 973 U.N.T.S. 3 (not

ratified by the United States, China, or the Soviet Union); (4)

Vienna Convention on Civil Liability for Nuclear Damage,

done

May 21, 1963, 1063 U.N.T.S. 265 (not ratified by the United

States, China, France, Germany, or the United Kingdom); (5)

Convention Relating to Civil Liability in the Field of Maritime

Carriage of Nuclear Material,

done

Dec. 17, 1971, 974 U.N.T.S.

255 (not ratified by the United States, China, the Soviet Union, or

the United Kingdom); and (6) Convention on Civil Liability for Oil

Pollution Damage Resulting from Exploration for and

Exploitation of Seabed Mineral Resources,

done

Dec. 17, 1976,

reprinted at

16 I.L.M. 1450 (signed by six States but ratified by

none).

Presbyterian Church,

244 F.Supp. 2d at 317.

117a

the States that have ratified it). Those treaties are

therefore insufficient – considered either individually

or collectively – to demonstrate that corporate liability

is universally recognized as a norm of customary

international law.

Even if those specialized treaties had been ratified

by an “overwhelming majority” of states,

id.

at 256 –

as some recent treaties providing for corporate liability

have been,

see, e.g.,

Convention Against Transnational

Organized Crime, art. 10(1),

adopted

Nov. 15, 2000, S.

Treaty Doc. 108-16; Convention on Combating Bribery

of Foreign Public Officials in International Business

Transactions, art. 2,

done

Dec. 17, 1997, S. Treaty Doc.

No. 105-43 – the fact that those treaties impose

obligations on corporations in the context of the

treaties’ particular subject matter tells us nothing

about whether corporate liability for, say, violations of

human rights,

which are not a subject of those

treaties, is universally recognized as a norm of

customary international law.

Significantly, to find that

a treaty embodies or creates a rule of customary

international law would mean that the rule applies

beyond the limited subject matter of the treaty and

to

nations that have not ratified it. See

1

Oppenheim’s

International Law

§ 626, at 1261. To construe those

treaties as so-called “law-making” treaties – that is,

treaties that codify existing norms of customary

international law or crystallize an emerging rule of

customary international law – would be wholly

inappropriate and without precedent.

See id.

§ 583, at

1203-04 (discussing “law-making” treaties).

As noted above, there is no historical evidence of

an existing or even nascent norm of customary

118a

international law imposing liability on corporations for

violations of human rights. It cannot be said,

therefore, that those treaties on specialized questions

codify an existing, general rule of customary

international law. Nor can those recent treaties, in

light of their limited number and specialized subject

matter, be viewed as crystallizing an emerging norm of

customary international law.

See id.

§ 583, at 1204

(explaining that “relatively extensive participation in a

treaty, coupled with a

subject matter of general

significance

and stipulations which accord with the

general sense of the international community, do

establish for some treaties an influence far beyond the

limits of formal participation in them” (footnote

omitted)). Furthermore, even if, as a general rule,

treaties on a specialized subject matter could be

viewed as crystallizing a norm of customary

international law (which they generally cannot), it

would be inappropriate to do so in this case in light of

the recent

express rejection

in major multilateral

treaties of a norm of corporate liability in the context

of human rights violations.

See, e.g.,

Rome Statute,

ante,

art. 25.

Finally, the few specialized treaties imposing

liability on corporations have not had such influence

that a general rule of corporate liability has become a

norm of customary international law. The ICJ in 1969

described the process by which that might occur in the

well-known

North Sea Continental Shelf Cases

, [1969]

8 I.L.M. 340. There, Denmark and the Netherlands

had argued that the Federal Republic of Germany was

bound by a particular provision of a treaty, which

Germany had not ratified, because the rule embodied

in the multilateral treaty had become a norm of

119a

customary international law. According to the ICJ,

accepting that view would require

treating [a particular provision of the 1958

Geneva Continental Shelf Convention] as a

norm-creating provision which has constituted

the foundation of, or has generated a rule

which, while only conventional or contractual

in its origin, has since passed into the general

corpus

of international law, and is now

accepted as such by the

opinio juris,

so as to

have become binding even for countries which

have never, and do not, become parties to the

Convention. There is no doubt that this process

is a perfectly possible one and does from time

to time occur: it constitutes indeed one of the

recognized methods by which new rules of

customary international law may be formed.

At the same time this result is not lightly to be

regarded as having been attained.

Id.

at 373-74. For a treaty provision to attain the

status of a norm of customary international law, the

ICJ explained, “[i]t would in the first place be

necessary that the provision concerned should, at all

events potentially, be of a

fundamentally norm-

creating character

such as could be regarded as

forming the basis of a general rule of law.”

Id.

at 374

(emphasis added). Provisions on corporate liability in a

handful of specialized treaties cannot be said to have a

“fundamentally norm-creating character.” Moreover,

as the history of the Rome Statute demonstrates, “still

unresolved controversies as to the exact meaning and

scope of this notion” of corporate liability “raise further

doubts as to the potentially norm-creating character of

120a

the rule.”

Id.

Accordingly, provisions imposing

corporate liability in some recent specialized treaties

have not established corporate liability as a norm of

customary international law.

In reaching the contrary conclusion in

Presbyterian Church,

the judge to whom the case was

originally assigned in the district court acknowledged

that “most treaties

do not

bind corporations” but

reasoned that “[i]f corporations can be liable for

unintentional torts such as oil spills or nuclear

accidents,

logic would suggest

that they can be held

liable for intentional torts such as complicity in

genocide, slave trading, or torture.”

Presbyterian

Church,

244 F.Supp. 2d at 317 (emphases added). In

addition to the reasons discussed above, the district

court’s conclusion was flawed by its use of an improper

methodology for discerning norms of customary

international law: customary international law does

not develop through the “logical” expansion of existing

norms.

Cf. Yousef,

327 F.3d at 103-04 (“The strictly

limited set of crimes subject to universal jurisdiction

cannot be expanded by drawing an analogy between

some new crime . . . and universal jurisdiction’s

traditional subjects.”). Rather, as the Supreme Court

has explained, it develops, if at all, through the custom

and practice “among civilized nations . . . gradually

ripening into a rule of international law.”

Sosa,

542

U.S. at 715 (quoting

The Paquete Habana,

175 U.S. at

686).

41

Another district court in our Circuit has similarly allowed

claims against corporate defendants to proceed under the ATS

despite acknowledging the “strength of authority supporting” the

argument that corporate liability is

not

recognized as a norm of

121a

It bears underscoring that the purpose of the ATS

was not to encourage United States courts to create

new norms of customary international law

unilaterally.

Sosa,

542 U.S. at 728 (explaining that

customary international law.

In re Agent Orange Prod. Liab.

Litig.,

373 F.Supp. 2d 7, 56 (E.D.N.Y. 2005) (Weinstein, J.);

id.

at

57 (noting that “in the Nuremberg trials, this point of lack of

corporate liability appeared to have been explicitly stated”).

Judge Weinstein rejected the argument that corporations cannot

be liable under the ATS because, among other things, “[l]imiting

civil liability to individuals while exonerating the corporation ...

makes little sense

in today’s world,” and “[d]efendants present[ed]

no policy reason

why corporations should be uniquely exempt

from tort liability under the ATS,” and “even if it were not true

that international law recognizes corporations as defendants”

they could still be sued under the ATS because “an ATS claim is a

federal common law claim and it is a bedrock tenet of American

law that corporations can be held liable for their torts.”

Id.

at 58,

59 (emphases added).

Customary international law, however, is developed through

the customs and practices of States, not by what “makes . . .

sense” to a judge, by the “policy reason[s]” recognized by a judge,

or by what a judge regards as “a bedrock tenet of American law.”

See Sosa,

542 U.S. at 738 (refusing to accept plaintiff’s argument

because “in the present, imperfect world, it expresses an

aspiration that exceeds any binding customary rule having the

specificity we require”);

accord Nestle,

No. CV 05-5133, slip op. at

135 (“

Sosa

prohibits courts from substituting abstract aspirations

– or even pragmatic concerns – in place of specific international

rules.”).

Nor is customary international law developed through

“parity of reasoning,” as some scholars have suggested.

See

Harold Hongju Koh,

Separating Myth from Reality About

Corporate Responsibility Litigation,

7 J. Int’l Econ. L. 263, 265

(2004) (suggesting that because corporations may have some

“rights” under international law, “by parity of reasoning, they

must have duties as well”).

122a

federal courts have “no congressional mandate to seek

out and define new and debatable violations of the law

of nations”). Instead, the statute was rooted in the

ancient concept of comity among nations and was

intended to provide a remedy for violations of

customary international law that “threaten[ ] serious

consequences in international affairs.”

Id.

at 715

(noting that this concern “was probably on the minds

of the men who drafted the ATS”). Unilaterally

recognizing new norms of customary international law

– that is, norms that have not been universally

accepted by the rest of the civilized world – would

potentially create friction in our relations with foreign

nations and, therefore, would contravene the

international comity the statute was enacted to

promote.

42

We conclude, therefore, that the relatively few

international treaties that impose particular

obligations on corporations do not establish corporate

liability as a “specific, universal, and obligatory” norm

of customary international law.

Id.

at 732 (internal

quotation marks omitted). Although those treaties

suggest a trend towards imposing corporate liability in

some special

contexts, no trend is detectable outside

42

As the Supreme Court recognized in

Sosa,

some ATS

litigation has already threatened international comity by

prompting objections from foreign governments. 542 U.S. at 733

n. 21 (noting that the government of South Africa had objected to

litigation against “various corporations alleged to have

participated in, or abetted, the regime of apartheid that formerly

controlled South Africa”);

see also

Steven R. Ratner,

Corporations and Human Rights: A Theory of Legal

Responsibility,

111 Yale L.J. 443, 451 (2001) (“[D]omestic legal

principles matter only to the extent they are shared by many

different legal systems and, even then, are

subsidiary to treaties

and customary law.

” (emphasis added)). As one leading authority

on the subject has observed, for much of the twentieth century

corporate criminal liability was a unique feature of American law,

with most European legal systems subscribing to the view that

“guilt is personal, not vicarious, and that penal sanctions should

be directed at culpable corporate people, not the corporate entity.”

See

Leonard Orland,

Corporate Criminal Liability

§ 5.03[A]

(2006) (explaining that the “traditional French model [which was

influential throughout Europe] declared that a corporation is

incapable of committing a crime – a principle derived from

humanitarian concerns of

personal criminal liability

established

during the French Revolution.” (emphasis added)). The fact that

corporate criminal liability has recently obtained greater

acceptance in Europe,

see id.

§ 5.03[C] – although interesting as a

matter of

comparative law

– does not demonstrate that corporate

liability has attained the status of a norm of

customary

international law, see Filartiga,

630 F.2d at 888 (explaining that

customary international law consists of norms that are “of

mutual, and not merely several, concern”);

Vencap,

519 F.2d at

1015 (explaining that international law concerns the dealings of

states “

inter se

” and that “[w]e cannot subscribe to the view that

the Eighth Amendment ‘Thou shalt not steal’ is part of the law of

nations” simply because “every civilized nation doubtless has this

124a

C. Works of Publicists

Although the works of publicists (

i.e.,

scholars or

“jurists”) can be a relevant source of customary

international law, “[s]uch works are resorted to by

judicial tribunals, not for the speculations of their

authors concerning what the law ought to be, but for

trustworthy evidence of what the law really is.”

Sosa,

542 U.S. at 734 (quoting

The Paquete Habana,

175

U.S. at 700);

see also

ICJ Statute,

ante,

art. 38(1)(d),

59 Stat. at 1060 (directing the ICJ to apply “judicial

decisions and the teachings of the most highly

qualified publicists of the various nations, as

as a part of its legal system” (some internal quotation marks

omitted));

see also

Second Declaration of

Christopher Greenwood ¶ 13,

Presbyterian Church of

Sudan v. Talisman Energy, Inc.,

No. 01 Civ. 9882

(S.D.N.Y. July 10, 2002) (“[T]here is not, and never has

been, any assertion of the criminal liability of

corporations in international law.”); Michael Koebele,

Corporate Responsibility Under the Alien Tort Statute

196 (2009) (“[D]espite trends to the contrary, the view

that international law primarily regulates States and

in limited instances such as international criminal

law, individuals, but not [transnational corporations],

is still the prevailing one among international law

scholars.”).

47

Even those who favor using the ATS as a

47

In relying on the affidavits of Professor Crawford and

Professor Greenwood, as well as on treatises or other works of

“publicists,”

see Yousef,

327 F.3d at 100 n. 33, we are mindful

that such works are, in the nature of things, “subsidiary” or

secondary sources of international law, “useful in explicating or

clarifying an established legal principle or body of law,” by

“shed[ding] light on a particular question of international law,”

id.

at 101, or on the primary sources of international law, which are

“the documents or acts proving the consent of States to its rules.”

Clive Parry,

The Sources and Evidences of International Law

2

(1965),

quoted with approval in Flores,

414 F.3d at 252,

and

Yousef,

327 F.3d at 101. It is indisputable that the works of the

publicists on which we have relied accurately describe the

primary sources of the relevant customary international law—the

relevant customs and practices of States. In other words, we have

relied on these sources “for trustworthy evidence of what the law

really is” and “not for the speculations of their authors concerning

what the law ought to be.”

The Paquete Habana,

175 U.S. at 700.

Judge Leval criticizes us for relying on the affidavits of

Professor Crawford and Professor Greenwood because both were

expert witnesses hired by the defendants in another case. Yet we

129a

fail to see how statements made in an affidavit, under penalty of

perjury, are any less reliable than published works whose

accuracy is confirmed only by efforts of the student staff of law

journals.

We note, moreover, that Judge Leval relies on Beth

Stephens, et al.,

International Human Rights Litigation in U.S.

Courts

310 (2d ed. 2008), in support of his contention that

corporations can be liable for violations of customary

international law under the ATS. Concurring Op. 185. The

remaining authors of that text are Judith Chomsky, Jennifer

Green, Paul Hoffman, and Michael Ratner. Paul Hoffman

happens to be lead counsel to plaintiffs in this very appeal. Judith

Chomsky and Jennifer Green have submitted an

amicus

brief on

behalf of plaintiffs in this case and, together with Beth Stephens,

have directly represented different plaintiffs pursuing ATS claims

against Royal Dutch Petroleum (the defendants here) before this

court.

See Wiwa v. Royal Dutch Petroleum,

226 F.3d 88, 91 (2d

Cir. 2000).

Judge Leval also relies on a publication of the International

Commission of Jurists. Concurring Op. 184–85. That, however, is

an

advocacy

organization, in some respects like Amnesty

International or Human Rights Watch.

See

Int’l Comm. of

Jurists,

Corporate Complicity & Legal Accountability,

at ii (2008),

available at

http://icj.org/IMG/Volume_1.pdf (“The International

Commission of Jurists . . . is a non-governmental organization

devoted to promoting the understanding and observance of the

rule of law and the legal protection of human rights throughout

the world.”);

id.

at vii (explaining that members of the “steering

group” for the “Corporate Complicity & Legal Accountability”

project included representatives from, among other organizations,

Amnesty International and Human Rights Watch);

see also

http://www.icj.org (follow “About Us” link) (last visited Aug. 20,

2010) (“Through pioneering activities, including inquiry

commissions, trial observations, fact-finding missions, public

denunciations and quiet diplomacy, the [International

Commission of Jurists] has been a powerful advocate for

justice.”).

In the words of Judge Leval, we think “[i]t is not self-evident”

that the works of such advocates are “what the Supreme Court

130a

means of holding corporations accountable for human

rights violations reluctantly acknowledge that “the

universe of international criminal law does not reveal

any prosecutions of corporations per se.” Ratner, note

43,

ante,

at 477.

48

had in mind in

Paquete Habana

when it gave cautious approval

to consultation of ‘the works of jurists and commentators.’”

Concurring Op. 182 n. 39 (emphasis omitted) (quoting

The

Paquete Habana,

175 U.S. at 700).

In any event, Judge Leval’s criticism of our reliance on the

affidavits of Professor Crawford and Professor Greenwood is

irrelevant because Judge Leval agrees that “international law, of

its own force, imposes no liabilities on corporations or other

private juridical entities.” Concurring Op. 186.

48

Tellingly, most proponents of corporate liability under

customary international law discuss the subject as merely a

possibility or a goal, rather than an established norm of

customary international law.

See, e.g.,

Menno T. Kamminga &

Saman Zia-Zarifi,

Introduction

to

Liability of Multinational

Corporations Under International Law, ante,

at 1, 8

(acknowledging “the unsatisfactory state of international law

regarding the status of [multinational corporations] and their

impact” but asserting that “[i]t now seems possible, indeed highly

probable, that a regime of international legal liability for

[multinational corporations]

can and will be developed

” (emphasis

added)); Ratner, note 43,

ante,

at 449 (“This Article posits

a

theory

of corporate responsibility for human rights protection.

Building upon the traditional paradigm

whereby international

law generally places duties on states and, more recently,

individuals, I consider whether and how the international legal

process

might provide

for human rights obligations directly on

corporations. My thesis is that international law

should

and can

provide for such obligations. . . .” (emphasis added)); Beth

Stephens,

The Amorality of Profit: Transnational Corporations

and Human Rights,

20 Berkeley J. Int’l L. 45, 46 (2002) (“Over

the fifty years since the Holocaust, the international community

has recognized that governments can be held liable for abuses

directed at both their own citizens and foreigners, during war and

131a

Together, those authorities demonstrate that

imposing liability on corporations for violations of

customary international law has not attained a

discernible, much less universal, acceptance among

nations of the world in their relations

inter se.

Because

corporate liability is not recognized as a “specific,

universal, and obligatory” norm,

see Sosa,

542 U.S. at

732 (internal quotation marks omitted), it is not a rule

of customary international law that we may apply

under the ATS. Accordingly, insofar as plaintiffs in

this action seek to hold only corporations liable for

their conduct in Nigeria (as opposed to individuals

within those corporations), and only under the ATS,

their claims must be dismissed for lack of subject

matter jurisdiction.

when at peace – and that individuals can be held accountable as

well. Today, the abuses of the Holocaust are contributing to the

development of new approaches

to human rights accountability,

this time focusing on corporate human rights violations. . . .”

(emphasis added));

id.

at 47 (“Both domestic governments and

international organizations have danced around [the topic of

corporate liability], urging

voluntary codes of conduct rather than

seeking to impose binding rules of law.

” (emphasis added)).

Others rely on improper sources of customary international

law to find a norm of corporate liability.

See e.g.,

Louis Henkin,

The Universal Declaration at 50 and the Challenge of Global

Markets,

25 Brook. J. Int’l L. 17, 25 (1999) (“Every individual and

every organ of society excludes no one, no company, no market, no

cyberspace. The Universal Declaration applies to them all.”);

cf.

Sosa,

542 U.S. at 734 (explaining that the Universal Declaration

of Human Rights “does not of its own force impose obligations as

a matter of international law” and, therefore, is of “little utility”

in discerning norms of customary international law); note 34,

ante.

132a

III. The Concurring Opinion

Judge Leval concedes that “international law, of

its own force, imposes no liabilities on corporations or

other private juridical entities.” Concurring Op. 186.

In other words, despite his perplexing but forceful

contentions otherwise, Judge Leval does not disagree

with Part II of our opinion. What he disputes is our

conclusion in Part I that customary international law

supplies the rule of decision.

Judge Leval admits that international law is “the

place to look” to “determine whether a corporation can

be held civilly liable for a violation of international

law,”

id.

at 173-74, but he maintains that we must

accept corporate liability based on principles of

domestic law unless “the law of nations [has] spoke[n]

on the question [and] provid[ed] that acts of

corporations are not covered by the law of nations,”

id.

at 175. He then contends that the law of nations has

not, in fact, spoken on the question and that corporate

liability is therefore a matter of “remedy” that

“international law leaves . . . to the independent

determination of each State.”

Id.

at 176. In doing so

Judge Leval dismisses as a source of authoritative

guidance the fact that no international tribunal has

ever been accorded jurisdiction over corporations

because those tribunals have been charged only with

the prosecution of crimes.

Id.

at 165-70. Finally, Judge

Leval accuses us of rejecting corporate civil liability

under the ATS merely because there is no norm of

corporate civil liability in customary international law,

and he argues that this reasoning is inconsistent with

our endorsement of individual liability under the ATS.

Id.

at 152-53.

133a

Judge Leval’s criticisms distort our holding and

betray several fundamental misunderstandings of

customary international law. First, Judge Leval

attempts to shift to us the burden of identifying a

norm of customary international law that supports our

“rule.” But it is entirely inappropriate to begin, as

Judge Leval apparently begins, with a presumption

that a violation of customary international law can be

attributed to

any defendant

unless, and until, a norm

of customary international law declares otherwise.

This reasoning turns customary international law on

its head. Customary international law arises from the

customs and practices “among civilized nations . . .

gradually ripening into a rule of international law.”

Sosa,

542 U.S. at 715 (quoting

The Paquete Habana,

175 U.S. at 686). Accordingly, the responsibility lies

with those who seek to demonstrate that

“international law extends the scope of liability for a

violation of a given norm to the perpetrator being

sued.”

Id.

at 732 n. 20. Judge Leval produces no

evidence that international law extends the scope of

liability to corporations, and, in fact, he concedes that

it does not. Concurring Op. 186 (“It is true that

international law, of its own force, imposes no

liabilities on corporations or other private juridical

entities.”). In any event, although it is not our burden,

we have little trouble demonstrating the

absence

of a

norm of corporate liability in customary international

law.

See

Part II,

ante.

Second, Judge Leval dismisses the fact that

international tribunals have consistently declined to

recognize corporate liability as a norm of customary

international law; he does so by inventing a distinction

between civil and criminal liability in customary

134a

international law that is contrary to our ATS

jurisprudence. As Judge Katzmann explained in his

separate opinion in

Khulumani

, “[t]his distinction

finds no support in our case law, which has

consistently relied on criminal law norms in

establishing the content of customary international

law for purposes of the [ATS].” 504 F.3d at 270 n. 5.

Unlike U.S. domestic law, “international law does not

maintain [a] kind of hermetic seal between criminal

and civil law.”

Id.

(citing

Sosa,

542 U.S. at 762-63

(Breyer, J., concurring)). Indeed, Judge Katzmann was

able to conclude that the scope of customary

international law reaches those who aid and abet

violations of international law only by looking to the

charters of – and the law applied by – the very same

international tribunals that Judge Leval ignores.

Id.

at

270 (observing that liability for aiders and abettors

was “applied by the war crimes trials following the

Second World War” and “has been repeatedly

recognized in numerous international treaties, most

notably the Rome Statute of the International

Criminal Court, and in the statutes creating the

International Criminal Tribunal for the Former

Yugoslavia (‘ICTY’) and the International Criminal

Tribunal for Rwanda (‘ICTR’)”);

see also id.

at 173 n. 30 (“The international system requires that a State

meet its international obligations, but ordinarily the law has not

required that a state meet those obligations in a particular way or

through particular institutions or laws.” (emphasis omitted)

(quoting Louis Henkin,

International Law: Politics, Values and

Functions

88 (1990))). We agree, of course, that nothing in

international law prohibits the United States from providing a

civil remedy against corporations for violations of the law of

nations (nor could it). The Congress of the United States has

simply not chosen to do so, opting instead to provide a civil

remedy – by conferring jurisdiction over torts committed in

violation of the law of nations – but leaving the question of who

can be sued to the law of nations.

See

28 U.S.C. § 1350.

50

Even in our domestic law, the question of the scope of

liability – that is,

who

can be held liable for wrongful conduct – is

not a question of remedy. Remedies refer to “precisely

what

the

plaintiff may recover after resorting to the law.” Edward D. Re &

Joseph R. Re,

Remedies

2 (6th ed. 2005) (emphasis added)

(internal quotation marks omitted). Whether a plaintiff is entitled

to money damages, declaratory relief, an injunction, or specific

performance are all questions of remedy.

See generally id.

at xi-

xiii. Whether a particular remedy – money damages, an

injunction, etc. – can be enforced

against

a certain individual or

entity is not a question of

remedy;

it is a question of the scope of

liability.

137a

determining which actions of an employee or agent are

to be imputed to the corporation.

51

In this important

respect, corporate liability is akin to accessorial

liability, which is a subject of international law not left

to individual States.

See Presbyterian Church,

582

F.3d at 259 (holding that “

Sosa

and our precedents

send us to international law to find the standard for

accessorial liability” and rejecting the argument that

international law relies on domestic law to supply the

standard, as a means of enforcement).

The potential for civil damages under the ATS

arises only if

customary international law

recognizes

that a particular class of defendant is a subject of

international law in the first place.

See

28 U.S.C. §

1350 (providing jurisdiction over “torts . . . committed

in violation of the law of nations

” (emphasis added)).

Contrary to Judge Leval’s suggestion, therefore,

individual liability

under the ATS is wholly consistent

51

We note that, even within our federal system, there are a

variety of approaches to determining how the courts are to impute

to a corporation the conduct and intent of its employees or agents.

See, e.g.,

7 U.S.C. § 2(a)(1)(B) (adopting

respondeat superior

principles for regulatory actions brought by the Commodity

Exchange Commission);

Kolstad v. Am. Dental Ass’n,

527 U.S.

526 (1999) (limiting applicability of

respondeat superior

in civil

claims for punitive damages under Title VII);

Faragher v. City of

Boca Raton,

524 U.S. 775 (1998) (limiting applicability of

respondeat superior

in civil actions for sexual harassment);

Burlington Indus., Inc. v. Ellerth,

524 U.S. 742 (1998) (same).

Yet, in arguing that corporate liability exists under the ATS,

Judge Leval does not even explain where that norm of liability

derives from (federal statute, federal common law, state law

perhaps?), much less attempt to specify which among the

different standards of corporate liability courts should apply in

ATS cases.

138a

with our holding today. Congress chose in the ATS to

grant jurisdiction over torts committed “in violation of

the law of nations,”

id.,

and since the Nuremberg

trials, customary international law has recognized

individual liability

for the violation of international

human rights. Thus, the ATS merely permits courts to

recognize a remedy (civil liability) for heinous crimes

universally condemned by the family of nations

against individuals already recognized as subjects of

international law. To permit courts to recognize

corporate liability

under the ATS, however, would

require, at the very least, a different statute – one that

goes beyond providing jurisdiction over torts

committed “in violation of the law of nations” to

authorize suits against entities that

are not

subjects of

customary international law.

CONCLUSION

The ATS provides federal district courts

jurisdiction over a tort, brought by an alien only,

alleging a “violation of the law of nations or a treaty of

the United States.” 28 U.S.C. § 1350. When an ATS

suit is brought under the “law of nations,” also known

as “customary international law,” jurisdiction is

limited to those cases alleging a violation of an

international norm that is “specific, universal, and

obligatory.”

Sosa v. Alvarez-Machain,

542 U.S. 692,

732 (2004) (quoting with approval the statement of a

lower court);

see also Flores v. S. Peru Copper Corp.,

414 F.3d 233, 238 (2d Cir. 2003) (“[C]ustomary

international law is composed only of those rules that

States universally abide by, or accede to, out of a sense

of legal obligation and mutual concern.”).

139a

No corporation has ever been subject to

any

form

of liability (whether civil, criminal, or otherwise) under

the customary international law of human rights.

Rather, sources of customary international law have,

on several occasions, explicitly rejected the idea of

corporate liability. Thus, corporate liability has not

attained a discernable, much less universal,

acceptance among nations of the world in their

relations

inter se,

and it cannot not, as a result, form

the basis of a suit under the ATS.

Acknowledging the absence of corporate liability

under customary international law is not a matter of

conferring “immunity” on corporations. It is, instead, a

recognition that the States of the world, in their

relations with one another,

see IIT v. Vencap, Ltd.,

519

F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.),

abrogated

on other grounds by Morrison v. Nat’l Austl. Bank

Ltd.,

561 U.S. 247 (2010), have determined that moral

and legal responsibility for heinous crimes should rest

on the individual whose conduct makes him or her

“‘

hostis humani generis,

an enemy of all mankind.’”

Sosa

542 U.S. at 732 (quoting

Filartiga v. Pena-Irala,

630 F.2d 876, 890 (2d Cir. 1980)). Nothing in this

opinion limits or forecloses suits under the ATS

against a corporation’s employees, managers, officers,

directors, or any other person who commits, or

purposefully aids and abets, violations of international

law. Moreover, nothing in this opinion limits or

forecloses corporate liability under any body of law

other than the ATS

– including the domestic statutes

of other States – and nothing in this opinion limits or

forecloses Congress from amending the ATS to bring

corporate defendants within our jurisdiction.

Corporate liability, however, is simply not “accepted by

140a

the civilized world and defined with a specificity

comparable to the features of the 18th-century

paradigms” recognized as providing a basis for suit

under the law prescribed by the ATS – that is,

customary international law.

Sosa,

542 U.S. at 725.

We do not know whether the concept of corporate

liability will “gradually ripen[ ] into a rule of

international law.”

Id.

at 715 (quoting

The Paquete

Habana,

175 U.S. 677, 700 (1900)). It can do so,

however, only by achieving universal recognition and

acceptance as a norm in the relations of States

inter

se.

For now, and for the foreseeable future, the Alien

Tort Statute does not provide subject matter

jurisdiction over claims against corporations.

To summarize, we hold as follows:

(1) Since

Filartiga

, which in 1980 marked the

advent of the modern era of litigation for violations of

human rights under the Alien Tort Statute, all of our

precedents – and the Supreme Court’s decision in

Sosa,

542 U.S. at 732 n. 20 – require us to look to

international law to determine whether a particular

class of defendant, such as corporations, can be liable

under the Alien Tort Statute for alleged violations of

the law of nations.

(2) The concept of corporate liability for violations

of customary international law has not achieved

universal recognition or acceptance as a norm in the

relations of States with each other.

See Vencap,

519

F.2d at 1015. Inasmuch as plaintiffs assert claims

against corporations only, their complaint must be

dismissed for lack of subject matter jurisdiction.

141a

Accordingly, the September 29, 2006 order of the

District Court is AFFIRMED insofar as it dismissed

some of plaintiffs’ claims against the corporate

defendants and REVERSED insofar as it declined to

dismiss plaintiffs’ remaining claims against the

corporate defendants.

142a

LEVAL,

Circuit Judge

, concurring only in the

judgment:

The majority opinion deals a substantial blow to

international law and its undertaking to protect

fundamental human rights. According to the rule my

colleagues have created, one who earns profits by

commercial exploitation of abuse of fundamental

human rights can successfully shield those profits

from victims’ claims for compensation simply by taking

the precaution of conducting the heinous operation in

the corporate form. Without any support in either the

precedents or the scholarship of international law, the

majority take the position that corporations, and other

juridical entities, are not subject to international law,

and for that reason such violators of fundamental

human rights are free to retain any profits so earned

without liability to their victims.

Adoption of the corporate form has always offered

important benefits and protections to business –

foremost among them the limitation of liability to the

assets of the business, without recourse to the assets of

its shareholders. The new rule offers to unscrupulous

businesses advantages of incorporation never before

dreamed of. So long as they incorporate (or act in the

form of a trust), businesses will now be free to trade in

or exploit slaves, employ mercenary armies to do dirty

work for despots, perform genocides or operate torture

prisons for a despot’s political opponents, or engage in

piracy – all without civil liability to victims. By

adopting the corporate form, such an enterprise could

have hired itself out to operate Nazi extermination

camps or the torture chambers of Argentina’s dirty

war, immune from civil liability to its victims. By

143a

protecting profits earned through abuse of

fundamental human rights protected by international

law, the rule my colleagues have created operates in

opposition to the objective of international law to

protect those rights.

Since

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir.

1980), was decided in 1980, United States courts,

acting under the Alien Tort Statute (ATS),

1

which was

passed by the First Congress in 1789, have been

awarding compensatory damages to victims of human

rights abuses committed in violation of the law of

nations. Many supporters of the cause of human rights

have celebrated the

Filartiga

line of cases as an

important advance of civilization. Not all, however,

have viewed those cases with favor. Some see them as

unwarranted meddling by U.S. judges in events that

occurred far away, applying a body of law that we did

not make, in circumstances carrying a potential,

furthermore, to interfere with the President’s conduct

of foreign affairs.

See, e.g., Tel-Oren v. Libyan Arab

Republic,

726 F.2d 774, 805 (D.C. Cir. 1984) (Bork, J.,

concurring).

†

In 2004, a substantial minority of the

1

“The district courts shall have original jurisdiction of any

civil action by an alien for a tort only, committed in violation of

the law of nations or a treaty of the United States.” 28 U.S.C. §

1350.

†

My colleagues call my identification of Judge Robert Bork

as the author of this opinion a “stratagem” or “rhetorical ploy.” It

is not. In

Tel-Oren

, the three judges of the District of Columbia

Circuit panel each wrote separate concurring opinions. By

identifying the authors in citing to

Tel-Oren

concurrences, I

simply follow the conventional method of distinguishing between

separate opinions in the same case. The Supreme Court did the

same,

see

Sosa v. Alvarez-Machain

, 542 U.S. 692, 728, 732 & n.20

(2004), and so does the majority opinion here.

144a

Supreme Court, in

Sosa v. Alvarez-Machain,

542 U.S.

692, would have essentially nullified the ATS and

overturned the

Filartiga

line, by ruling that the ATS

did no more than give courts jurisdiction, and that,

absent further legislation establishing a legal claim,

courts acting under ATS had no authority to grant any

substantive relief. The majority of the Supreme Court,

however, rejected that argument. The Court ruled that

under the ATS, federal courts could award damages

for violations of the law of nations. For those who

believe the

Filartiga

-

Sosa

line represents a meaningful

advance in the protection of human rights, the

majority’s decision here marks a very bad day.

To understand this controversy, it is important to

understand exactly what is the majority’s rule, how it

functions, and in what circumstances. To begin, their

rule relates to the most abhorrent conduct – those acts

that violate norms of the international law of human

rights. The ATS gives U.S. courts jurisdiction to award

tort damages to aliens who are victims of such

atrocities. According to the majority, in cases where

the norms of the law of nations were violated by a

corporation (or other juridical entity), compensatory

damages

may be awarded under the ATS against the

corporation’s employees,

natural persons who acted in

the corporation’s behalf,

but not against the

corporation

that commanded the atrocities and earned

profits by committing them. The corporation, according

to my colleagues, has not violated international law,

and is indeed incapable of doing so because

international law does not apply to the conduct of

corporations. Accordingly, a corporation which has

earned profits by abuse of fundamental human rights

145a

– as by slave trading – is free to retain those profits

without liability.

While my colleagues see nothing strange or

problematic in this conclusion, their position is that in

any event they have no responsibility for it. They

invoke the rule simply because, in their contention, it

is commanded by the law of nations.

But there is no basis for this contention. No

precedent of international law endorses this rule. No

court has ever approved it,

*

nor is any international

tribunal structured with a jurisdiction that reflects it.

(Those courts that have ruled on the question have

explicitly rejected it.) No treaty or international

convention adopts this principle. And no work of

scholarship on international law endorses the

majority’s rule. Until today, their concept had no

existence in international law.

The majority contends, nevertheless, that

unambiguous jurisprudence “lead[s] inescapably” to

their conclusion. Maj. Op. 125. However, the reasoning

that supports the majority’s argument is, in my view,

illogical, misguided, and based on misunderstandings

of precedent.

*

Since the writing of this opinion, in the few days before

filing, a California district court dismissed an ATS action in part

on the basis of its acceptance of the majority’s view that

customary international law does not apply to corporations.

Doe

v. Nestle, S.A.,

No. CV 05-5133 SVW (JTLx), slip op. at 120 (C.D.

Cal. Sept. 8, 2010). To the extent I note in various places

throughout this opinion that no court has ever spoken favorably

of the majority’s proposition that corporations are exempt from

the rules of international law, I modify that statement to except

the opinion filed last week in California.

146a

The argument depends on its observation that

international

criminal

tribunals have been established

without jurisdiction to impose

criminal punishments

on corporations for their violations of international

law. From this fact the majority contend an

inescapable inference arises that international law

does not govern corporations, which are therefore free

to engage in conduct prohibited by the rules of

international law with impunity.

There is no logic to the argument. The reasons why

international tribunals have been established without

jurisdiction to impose

criminal

liability on corporations

have to do solely with the theory and the objectives of

criminal punishment,

and have no bearing on civil

compensatory liability. The view is widely held among

the nations of the world that criminal punishments

(under domestic law, as well as international law) are

inappropriate for corporations. This view derives from

two perceptions: First, that criminal punishment can

be theoretically justified only where the defendant has

acted with criminal intent – a condition that cannot

exist when the defendant is a juridical construct which

is incapable of having an intent; and second, that

criminal punishments are pointless and

counterproductive when imposed on a fictitious

juridical entity because they fail to achieve the

punitive objectives of criminal punishment. For these

reasons many nations in their domestic laws impose

criminal punishments only on natural persons, and

not on juridical ones. In contrast, the imposition of

civil liability on corporations serves perfectly the

objective of civil liability to compensate victims for the

wrongs inflicted on them and is practiced everywhere

in the world. The fact that international tribunals do

147a

not impose

criminal punishment

on corporations in no

way supports the inference that corporations are

outside the scope of international law and therefore

can incur no

civil compensatory liability

to victims

when they engage in conduct prohibited by the norms

of international law.

The majority next contend that international law

does not distinguish between criminal and civil

liability. This is simply incorrect. International law

distinguishes clearly between them and provides

differently for the different objectives of criminal

punishment and civil compensatory liability.

The majority then argue that the absence of a

universal practice among nations of imposing civil

damages on corporations for violations of international

law means that under international law corporations

are not liable for violations of the law of nations. This

argument is as illogical as the first and is based on a

misunderstanding of the structure of international

law. The position of international law on whether civil

liability should be imposed for violations of its norms

is that international law takes no position and leaves

that question to each nation to resolve. International

law, at least as it pertains to human rights, consists

primarily of a sparse body of norms, adopting widely

agreed principles prohibiting conduct universally

agreed to be heinous and inhumane. Having

established these norms of prohibited conduct,

international law says little or nothing about how

those norms should be enforced. It leaves the manner

of enforcement, including the question of whether

there should be private civil remedies for violations of

international law, almost entirely to individual

148a

nations. While most nations have not recognized tort

liability for violations of international law, the United

States, through the ATS, has opted to impose civil

compensatory liability on violators and draws no

distinction in its laws between violators who are

natural persons and corporations. The majority’s

argument that national courts are at liberty to award

civil damages for violations of international law solely

against natural persons and not against corporations

has no basis in international law and, furthermore,

nullifies the intention of international law to leave the

question of civil liability to be decided separately by

each nation.

The majority’s asserted rule is, furthermore, at

once internally inconsistent and incompatible with

Supreme Court authority and with our prior cases that

awarded damages for violations of international law.

The absence of a universally accepted rule of

international law on tort damages is true as to

defendants who are natural persons, as well as to

corporations. Because international law generally

leaves all aspects of the issue of civil liability to

individual nations, there is no rule or custom of

international law to award civil damages in any form

or context, either as to natural persons or as to

juridical ones. If the absence of a universally accepted

rule for the award of civil damages against

corporations means that U.S. courts may not award

damages against a corporation, then the same absence

of a universally accepted rule for the award of civil

damages against natural persons must mean that U.S.

courts may not award damages against a natural

person. But the majority opinion concedes (as it must)

that U.S. courts may award damages against the

149a

corporation’s employees when a corporation violates

the rule of nations. Furthermore, our circuit and

others have for decades awarded damages, and the

Supreme Court in

Sosa

made clear that a damage

remedy does lie under the ATS. The majority opinion

is thus internally inconsistent and is logically

incompatible with both Second Circuit and Supreme

Court authority.

If past judges had followed the majority’s

reasoning, we would have had no Nuremberg trials,

which for the first time imposed criminal liability on

natural persons complicit in war crimes; no

subsequent international tribunals to impose criminal

liability for violation of international law norms; and

no judgments in U.S. courts under the ATS,

compensating victims for the violation of fundamental

human rights.

The rule in cases under the ATS is quite simple.

The law of nations sets worldwide norms of conduct,

prohibiting certain universally condemned heinous

acts. That body of law, however, takes no position on

whether its norms may be enforced by civil actions for

compensatory damages. It leaves that decision to be

separately decided by each nation.

See infra

Part III.B.

The ATS confers on the U.S. courts jurisdiction to

entertain civil suits for violations of the law of nations.

In the United States, if a plaintiff in a suit under the

ATS shows that she is the victim of a tort committed

in violation of the norms of the law of nations,

2

the

2

The majority concede that “federal courts may recognize

claims ‘based on the present-day law of nations.’” Maj. Op. 125.

Where their opinion departs from precedent is its contention that

courts may not recognize a claim against “a particular class of

150a

court has jurisdiction to hear the case and to award

compensatory damages against the tortfeasor. That is

what the Supreme Court explained in

Sosa.

No

principle of domestic or international law supports the

majority’s conclusion that the norms enforceable

through the ATS – such as the prohibition by

international law of genocide, slavery, war crimes,

piracy, etc. – apply only to natural persons and not to

corporations, leaving corporations immune from suit

and free to retain profits earned through such acts.

3

* * * * *

I am in full agreement that

this

Complaint must

be dismissed. It fails to state a proper legal claim of

entitlement to relief. The Complaint alleges that the

Appellants – the parent holding companies at the apex

of the huge Royal Dutch Shell international,

integrated oil enterprise – are liable under the ATS on

the theory that their actions aided the government of

Nigeria in inflicting human rights abuses on the Ogoni

peoples in the jungles of Nigeria. The allegations fall

defendant” unless international tribunals regularly impose

liability on that type of defendant. Maj. Op. 127-28, 148, 149. As I

explain below, there is no legal basis for this novel requirement.

3

The majority protest that their rule is not one of

“immunity” but rather one of absence of liability. Maj. Op. 149.

Because their rule provides that, when a corporation is sued, it

can have the suit dismissed on the ground that it is a corporation,

it seems to me to be indistinguishable from an immunity. But

nothing turns on whether we call it an immunity, an exemption, a

protection, an absence of liability, or any other name. My reasons

for rejecting the rule are that there is no support or justification

for it in precedent, scholarship, reason, experience, or morality.

None of this would change if the rule were called by a different

name.

151a

short of mandatory pleading standards. We recently

held in

Presbyterian Church of Sudan v. Talisman

Energy, Inc.,

582 F.3d 244 (2d Cir. 2009), that liability

under the ATS for

aiding and abetting

in a violation of

international human rights lies only where the aider

and abettor acts

with a purpose

to bring about the

abuse of human rights. Furthermore, the Supreme

Court ruled in

Ashcroft v. Iqbal,

556 U.S. 662 (2009),

that a complaint is insufficient as a matter of law

unless it pleads specific facts supporting a plausible

inference that the defendant violated the plaintiff’s

legal rights. Putting together these two rules, the

complaint in this action would need to plead specific

facts that support a plausible inference that the

Appellants aided the government of Nigeria

with a

purpose

to bring about the Nigerian government’s

alleged violations of the human rights of the plaintiffs.

As explained in greater detail below,

see infra

Part

VII, the allegations of the Complaint do not succeed in

meeting that test. I therefore agree with the majority

that the claims against the Appellants must be

dismissed, but not on the basis of the supposed rule of

international law the majority have fashioned.

152a

I. The improbability that the humanitarian

law of nations, which is based in moral

judgments reflected in legal systems

throughout world and seeks to protect

fundamental human rights, would espouse

a rule which undermines that objective and

lacks any logical justification

A. The opposition of the majority’s rule to the

objectives of international law.

Rules of international

law are not, like rocks, mountains, and oceans,

unexplained natural phenomena found on the surface

of the earth. The rules of international law have been

created by a collective human agency representing the

nations of the world

with a purpose to serve desired

objectives.

Those rules express the consensus of

nations on goals that are shared with virtual

unanimity throughout the world.

4

Prior to World War

II, the enforcement of international law focused

primarily on relations among States and problems

relating to the sovereign interests of States. It

involved, for example, the inviolability of ambassadors

in foreign lands, safe conducts, and the outlawing of

piracy, which threatened the shared interest of all

nations in trade on the high seas.

See Sosa,

542 U.S.

at 715, 720. Worldwide revulsion at the Nazi atrocities

in the period of World War II, however, focused

4

See The Amy Warwick,

67 U.S. (2 Black) 635, 670, 17 L.Ed.

459 (1862) (“The law of nations is also called the law of nature; it

is founded on the common consent as well as the common sense of

the world. It contains no . . . anomalous doctrine.”); Oscar

Schachter,

International Law in Theory and Practice

2 (1991)

(“[I]nternational law . . . is more than a given body of rules and

obligations. It involves purposive activities undertaken by

governments, directed to a variety of social ends.”).

153a

attention on humanitarian values – values so

fundamental that they were seen as shared by the

“civilized nations” of the world.

Filartiga,

630 F.2d at

881. Beginning with the Nuremberg trials, the focus of

international law thus broadened beyond practical

concerns of sovereign nations toward universally

shared moral objectives. Acts so repugnant that they

violated the morality shared by the civilized world

were recognized as violations of international law. The

law of nations thus came to focus on humanitarian,

moral concerns, addressing a small category of

particularly “heinous actions – each of which violates

definable, universal and obligatory norms” – conduct

so heinous that he who commits it is rendered “

hostis

humani generis,

an enemy of all mankind.”

Sosa,

542

U.S. at 732 (quoting

Filartiga,

630 F.2d at 890, and

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774, 781

(D.C. Cir. 1984) (Edwards, J., concurring)). These acts

are generally understood to include such extreme,

universally condemned conduct as genocide,

exploitation of slaves, war crimes, and, in certain

circumstances, imprisonment without cause and

torture.

5

The law of nations undertakes an emphatic

stance of opposition to such acts.

5

See, e.g., Sosa,

542 U.S. at 732, 737 (torture, slave trade,

prolonged arbitrary detention committed as a matter of state

policy, and piracy);

Kadic v. Karadzic,

70 F.3d 232, 240, 243 (2d

Cir. 1995) (genocide, war crimes, and torture and summary

execution committed in the course of genocide or war crimes);

In

re Ferdinand Marcos, Human Rights Litig.,

25 F.3d 1467, 1475

(9th Cir. 1994) (torture);

see also

Restatement (Third) of the

Foreign Relations Law of the United States § 404 (1987)

(genocide, war crimes, piracy, slave trade, and attacks on or

hijacking of aircraft).

154a

The majority’s interpretation of international law,

which accords to corporations a free pass to act in

contravention of international law’s norms, conflicts

with the humanitarian objectives of that body of law.

In order to understand the majority’s rule, I explore a

handful of concrete examples of how it would operate.

Because the liability, if any, of a corporation for

violations of international law is likely to arise in two

somewhat different contexts – that in which the

corporation

itself

inflicts humanitarian abuses, and

that in which the corporation

aids and abets

a local

government’s infliction of the abuses – and because the

pertinent considerations in these two circumstances

are somewhat different, I discuss them separately.

1) Direct commission of heinous offenses by

corporations

a) Slave trading and exploitation of slaves.

Among

the focuses of the Nuremberg trials was the

exploitation of slave labor by the I.G. Farbenindustrie

Aktiengesellschaft (“Farben”) and other German

companies. The Farben corporation itself was not on

trial, as the proceeding was brought solely against its

executives for their complicity in the offenses

committed by the corporation. Nevertheless, the

tribunal found that Farben’s program of exploitation of

slave labor violated the standards of international

law.

6

Because the Nuremberg tribunal was established

6

VIII

Trials of War Criminals Before the Nuernberg Military

Tribunals

1173-74 (1952) (the “Farben Trial”) (“Charged with the

responsibility of meeting fixed production quotas, Farben yielded

to the pressure of the Reich Labor Office and utilized involuntary

foreign workers in many of its plants. It is enough to say here

that the utilization of forced labor, unless done under such

155a

with only criminal, and not civil, jurisdiction, it never

contemplated imposing civil liability on offenders. No

civil proceedings of any kind were brought in that

tribunal by the victims of Farben’s violations against

either natural or juridical persons.

7

The question thus

did not arise at Nuremberg whether international law

countenances the imposition of civil liability on a

corporation or on any other type of actor for

exploitation of slave labor.

circumstances as to relieve the employer [the Farben company] of

responsibility, constitutes a violation of [international law].”);

see

also

IX

Trials of War Criminals Before the Nuernberg Military

Tribunals

1375-76 (1950) (the “Krupp Trial”) (“[T]hroughout

German industry in general, and the firm of Krupp and its

subsidiaries in particular, prisoners of war of several nations

including French, Belgian, Dutch, Polish, Yugoslav, Russian, and

Italian military internees were employed in armament production

in violation of the laws and customs of war.”).

7

The majority contend that the failure of the Nuremberg

tribunal to impose civil damages on Farben shows that

international law does not impose damages on corporations. Maj.

Op. 135-36. This argument demonstrates the illogic and internal

inconsistency of the majority’s position. The Nuremberg tribunal

also did not impose liability for civil damages on Farben’s

executives whom it convicted criminally. If the fact that

Nuremberg did not impose civil liability on the Farben

corporation means that international law does not allow for civil

liability of corporations, then the fact that Nuremberg did not

impose civil liability on Farben’s guilty personnel must mean that

international law does not allow for civil liability of natural

persons. Yet the majority concede that such natural persons are

liable for civil damages. The Nuremberg tribunal simply did not

contemplate questions of civil liability, nor has any subsequent

international tribunal. As I explain below, the law of nations has

simply not ventured into determinations with respect to civil

liability. It has left that question to individual nations.

156a

Perhaps more pertinent today is commercial

exploitation of sex-slavery. Entrepreneurs in child

prostitution kidnap unprotected children in poverty

stricken areas and hold them in captivity to satisfy sex

cravings of customers. Young women, seeking to

escape from places where they are oppressed, incur

debts to facilitators, who promise to help them, but,

when they are unable to pay the entire fee, consign

them into sex-slavery, compelling them to perform acts

of prostitution a hundred times a day for the profit of

their captors until either the debt is considered paid,

or, more likely, the woman is so wasted by the abuse

she has suffered that she ceases to be a marketable sex

object.

8

According to the majority’s rule, an

incorporated entity does not violate international law

when it conducts such operations, and is free to retain

any profit earned through its conduct.

b) Piracy.

Once thought to have faded into a past

remembered only in romanticized children’s fables and

Gilbert & Sullivan whimsy, piracy now reemerges as a

threat to international trade.

9

In Somalia, pirates seize

8

See

Trafficking Victims Protection Reauthorization Act of

2005, Pub.L. 109-164, § 2, 119 Stat. 3558, 3558 (Jan. 10, 2006)

(noting that an estimated 600,000 to 800,000 individuals are

trafficked across international borders each year and exploited

through forced labor and commercial sex exploitation, of which

80% are women and girls); United Nations Office on Drugs and

Crime, Global Report on Trafficking in Persons 48–50 (Feb. 2009),

available at

http://www.unodc.org/documents/Global_

Report_on_TIP.pdf (noting approximately 14,900 incidents of

human trafficking were reported in 2006, 79% of which involved

sexual exploitation).

9

See generally

Lauren Ploch et al., Cong. Research Serv.,

Piracy Off the Horn of Africa

(Sept. 28, 2009); Peter Chalk,

The

157a

vessels in the Indian Ocean and exact large ransom

payments from the owners and insurers. In the port of

Lagos, Nigeria, armed pirates board anchored vessels

waiting for access to the harbor and steal their cargo.

My colleagues’ new rule offers secure protection for the

profits of piracy so long as the perpetrators take the

precaution to incorporate the business.

10

The majority opinion goes still further. Because it

claims that juridical entities are not “subjects” of

international law and have neither rights nor

obligations under it, they can neither sue nor be sued

for violations of international law. Accordingly, the

seizure by pirates of a vessel

owned by a corporation

(as virtually all commercial vessels are) would not

violate international law’s prohibition of piracy, and

the vessel’s corporate owner, from which a ransom had

been extorted as the price of freeing its ship, would

have no remedy under the ATS or any other

comparable provision in any other nation.

Maritime Dimension of International Security: Terrorism, Piracy,

and Challenges for the United States

6 (RAND 2008).

10

The possibility of pirates operating through the corporate

form is not far-fetched. According to a recent United Nations

report, Somali pirates essentially operate as limited partnerships,

in which investors make investments of money, weaponry, and

equipment in exchange for “Class A” and “Class B” participations

in the profits of piracy operations. Rep. of the Monitoring Group

on Somalia Pursuant to Security Council Resolution 1853 (2008),

U.N. Doc. No. S/2010/91, at 99 (Mar. 10, 2010). The profits of such

an operation can be substantial, as in the case of the MV Faina,

which was released in February 2009 for $3.2 million ransom.

See

Piracy Off the Horn of Africa, supra,

at 10-11.

158a

c) Genocide.

A number of the cases brought before

our courts under the ATS, including this one, are

brought against business corporations engaged in

extraction of precious resources from mines, wells, or

forests in remote, sparsely populated areas. At times,

local tribesmen harass and hinder the corporation’s

operations, resenting the despoliation of their habitat

and the failure to share with them the wealth taken

from what they see as their land. The corporation

solicits the protection of that nation’s police or military

forces. Most of the suits we have seen, like this one,

have accused the defendant corporations of aiding and

abetting the local government in the latter’s abuse of

the rights of those indigenous persons.

Such a company, however, failing to receive

adequate protection from the local authorities, might

mount its own protective security force and proceed,

either independently or working together with forces

of the local government, to exterminate the

troublemaking tribes. The complaint under ATS in

such a case would charge that the corporation

itself

committed genocide in order to protect its business

operations from harassment and increase its profits.

Under the majority’s rule, such a corporation

would never need to test in court whether it in fact

exterminated a tribe, as alleged. It could simply move

for the dismissal of the suit, asserting that it is a

corporation and therefore by definition could not have

violated international law’s prohibition of genocide.

The plaintiffs could bring a successful ATS suit

against the hirelings who carried out the genocide for

the corporation (in the unlikely event they could be

sued in a court that provided for civil liability). But as

159a

for the corporation itself, which committed a genocide

to increase its profits, the suit will be dismissed on the

ground that the defendant is a corporation.

2) Aiding and abetting

As just noted, a number of suits, like this one,

charge corporations engaged in the extraction of

precious resources in remote places with having

aided

and abetted

abuses committed by a foreign

government’s police or military forces against local

populations. In all likelihood, corporations like the

defendants in this case, when they ask a relatively

impecunious local government to render protection to

the corporation’s operations, will contribute money

and resources to the local government to help it render

the protection the corporation needs for its operations.

If the government troops then commit atrocities, the

victims might sue the corporation on the theory that it

aided and abetted the government’s brutalities by its

contribution of money and resources. Similarly,

business corporations engaged in finance or in the sale

of food or military supplies might raise funds for, or

sell supplies to, a government that is known to violate

the law of nations. Victims of that government’s

abuses might sue the corporation, alleging that the

corporation’s profit-motivated provision of finance or

supplies, done with awareness of the purchasing

government’s record of atrocities, constitutes aiding

and abetting of those atrocities.

Many argue with considerable force that

imposition of liability in such circumstances would go

too far in impeding legitimate business, by making a

business corporation responsible for the illegal conduct

of local government authorities that is beyond the

160a

corporation’s control, and which the corporation may

even deplore. The shoemaker who makes Hitler’s

shoes should not be held responsible for Hitler’s

atrocities, even if the shoemaker knows that a pair of

shoes will help Hitler accomplish his horrendous

agenda. Concerns of this nature might well give pause

to a court contemplating the imposition of liability on a

business corporation for aiding and abetting in a

government’s infliction of human rights abuses, where

the corporation did not promote, solicit, or desire the

violation of human rights.

At least in this circuit, however, there is no cause

for such concern. In

Khulumani v. Barclay National

Bank Ltd.,

504 F.3d 254 (2d Cir. 2007), Judge

Katzmann in his concurring opinion expressed the

view that international law does not deem it aiding

and abetting in violation of that law to act in a manner

that assists a violator unless the assistance is given

with a purpose to cause or facilitate the violation.

Id.

at 277 (Katzmann, J., concurring). Then, in

Talisman,

we ruled on whether a corporation could be held liable

for aiding and abetting under the standards of

international law merely because it knew that supplies

it furnished to a local government would be used in the

commission of human rights abuses. Although

confronted with evidence of shocking human rights

violations committed by the government of Sudan, we

found that there is no such aiding and abetting

liability. Following Judge Katzmann’s analysis, we

concluded that the standards of international law

admit of aiding and abetting liability only when the

accused aider acts

with a purpose

to bring about the

violations of international law. 582 F.3d at 259. In this

circuit, supplying financing or military equipment to a

161a

local government will not support the imposition of

aiding and abetting liability on the corporation for that

government’s abuses unless the corporation acted

with

a purpose

to promote or advance those violations. (For

that reason, and as explained in Part VII below, this

Complaint must be dismissed for failure to state a

proper claim for aiding and abetting liability.)

A true question of tort liability for corporate aiding

and abetting in government atrocities would be raised

where such a defendant

purposely

procures the

commission of genocide by local government forces.

Assume the hypothetical oil exploration company first

seeks protection from the local host government from

interference with its operations by indigenous tribes.

For a period of time, the government forces provide

ineffectual protection, but harassment, interference,

and sabotage by the tribes continue. Eventually, the

frustrated corporate managers say to the local police

chief or military commander: “We have been slipping

you very handsome sums, but you have done nothing

for us. These protestors continue to cut our pipelines,

and sabotage our machinery. The time has come for

you to bring this harassment to an end. Wipe them

out! There will be a generous bonus for you when it is

done.” The local government officials comply. Those

are facts that

would

raise an issue of corporate

liability for aiding and abetting because the alleged

aider and abetter intended, solicited, and deliberately

procured the primary actor’s violations of international

law. The rule my colleagues have adopted, however,

holds that the corporation has committed no violation

and its profits are protected from liability,

notwithstanding that it purposely solicited, procured,

162a

and caused the genocide in order to render its

operations more profitable.

* * * * *

Consideration of such examples demonstrates

beyond possibility of reasonable disagreement that the

rule my colleagues attribute to the law of nations

operates to the detriment of the objective of

international law to protect fundamental human

rights. My colleagues’ only response to these examples

is that they do not choose to respond to them. Maj. Op.

122. Defenders of the majority opinion might argue

that I have chosen extreme and unrepresentative

examples to cast the majority’s rule in an

unreasonably pejorative light. It is true that the

hypothetical cases I present for examination involve

extraordinarily abhorrent conduct. But the reason I

raise such abhorrent conduct is because the law of

nations, at least in its humanitarian branch, concerns

itself only with extreme abhorrent conduct – conduct

that draws the unanimous opprobrium of the entire

civilized world. The Supreme Court made clear in

Sosa

that liability is imposed under the ATS for conduct

that is condemned throughout the civilized world and

that renders one the “enemy of all mankind.”

Sosa,

542

U.S. at 732. Suits alleging ordinary, less repugnant,

less universally condemned torts (including the

allegations in

Sosa

itself of a temporary abduction of

an alleged criminal to bring him to answer criminal

charges) will be dismissed whether brought against a

natural person or a corporation because of failure to

plead a violation of the law of nations. The effect of the

majority’s rule is to immunize the profits earned from

the most heinous acts known to mankind.

163a

I recognize that pointing out the incompatibility of

the majority’s rule with the objectives of international

law does not conclude the argument. If the supposed

rule the majority relies on in fact reflects the law of

nations and international law indeed does not apply to

corporate conduct (as the majority claim), then we

must apply that rule in a case brought under the ATS

regardless of whether we find it illogical or

incompatible with the objectives of international law.

Law is not always logical.

But neither is the observation irrelevant.

Recognition of the humanitarian objectives of the law

of nations makes it unlikely that this body of law

intends to exempt corporations from its prohibitions or

to provide a substantial financial incentive to violate

the most fundamental of human rights.

Cf. The Amy

Warwick,

67 U.S. (2 Black) 635, 670 (1862) (“The law

of nations is . . . founded on the common consent as

well as the common sense of the world. It contains no .

. . anomalous doctrine.”). The incompatibility of the

majority’s rule with the objective of the law of nations

to protect fundamental human rights warrants

skepticism as to whether international law in fact has

such a rule. Before reaching a conclusion whether the

majority’s “rule” has indeed been adopted by the

nations of the world as a rule of international law, we

would want to examine whether the rule has any

purported justification that might explain its adoption

in spite of its apparent incompatibility with the

principles and objectives of the law of nations.

B. The absence of any reason, purpose, or objective

for which international law might have adopted such a

rule.

In asserting that international law exempts

164a

corporations from any obligation to comply with its

rules, the majority implicitly contend that the nations

of the world have some kind of reason, or some shared

objective, that might justify the rule. The question

then arises what objective the rule would serve. Where

a corporation earns profits by exploiting slave labor, or

by causing or soliciting a genocide in order to reduce

its operating costs, what objective would the nations of

the world seek by a rule that subjects the foot soldiers

of the enterprise to compensatory liability to the

victims but holds that the corporation has committed

no offense and is free to retain its profits, shielded

from the claims of those it has abused?

Where the legal systems of the world encourage

the establishment of juridical entities, endowing them

with legal status by giving them authorization to own

property, make contracts, employ labor, and bring

suits, treating them as exempt from the law’s

commands and immune from suit would serve no

rational purpose. In fact, nowhere are they so

immunized.

E.g.,

Doug Cassel,

Corporate Aiding and

Abetting of Human Rights Violations: Confusion in the

Courts,

6 Nw. J. Int’l Human Rights 304, 322 (2008)

(“I am not aware of any legal system in which

corporations cannot be sued for damages when they

commit legal wrongs that would be actionable if

committed by an individual.”).

My colleagues do not even suggest any purpose or

goal the nations of the world might hope to derive from

such a rule, and I can think of none. Before accepting

my colleagues’ suggestion that a rule so incompatible

with the objectives of international law and so lacking

in logical justification is in fact a rule of international

165a

law, we should demand at least a reasonably

persuasive showing based on the precedents of

international law. The majority, however, have no

such precedents to offer.

II. The absence of precedent for the majority’s

rule

No authoritative source document of international

law adopts or in any way approves the majority’s view

that international law authorizes imposing civil

awards of compensatory damages on natural persons

but leaves corporations free to violate its rules without

legal consequences.

11

The majority’s characterization of the facts upon which

their theory rests is occasionally subject to dispute. For example,

the opinion asserts that “customary international law has

steadfastly rejected the notion of corporate liability for

international crimes.” Maj. Op. 120. The opinion refers to “a

jurisprudence, first set forth in Nuremberg and repeated by every

international tribunal of which we are aware, that offenses

against the law of nations . . . can be enforced against States and

individual men and women but not against juridical persons such

as corporations.” Id. It maintains, “there are ample sources of

international law explicitly rejecting corporate liability.” Maj. Op.

121 n. 21. However, the most that can be asserted as fact, as

opposed to argument, is that international tribunals have not

been empowered to exercise criminal jurisdiction over

corporations or civil jurisdiction over any sort of private actor.

The majority opinion further asserts that “no international

tribunal has ever held a corporation liable for a violation of the

law of nations,” Maj. Op. 120, and that “no corporation has ever

been subject to any form of liability under the customary

international law of human rights,” Maj. Op. 121. The fact is,

however, that no international tribunal has ever considered

whether a corporation or a natural person can be held civilly

liable in damages for violation of the customary law of nations,

166a

A. No court decisions or other legal precedents

espouse the majority’s rule.

No court has ever

dismissed a civil suit against a corporation, which

alleged a violation of the laws of nations, on the

ground that juridical entities have no legal

responsibility or liability under that law. No court has

ever discussed such a rule with even vaguely implied

approval. Quite to the contrary, on many occasions

courts have ruled in cases involving corporate

defendants in a manner that assumed without

discussion that corporations could be held liable.

12

To

because no international tribunal has ever exercised civil

jurisdiction over private actors.

The majority describe their ruling as answering a “question

that has been lurking for some time in our ATS jurisprudence.”

Maj. Op. 124. It is not the case, however, that judges have

struggled uncomfortably with this problem for decades. While the

ATS has been in our law for over 200 years and was held to apply

in actions both by and against corporations as early as 1795, 1

Op. Att’y Gen. 57, 59 (1795), and 1907, 26 Op. Att’y Gen. 250, 253

(1907), it was only four years ago that corporate immunity was

first argued to our court and only eight years ago that it was first

argued to a district court.

See

Khulumani v. Barclay Nat’l Bank

Ltd.,

504 F.3d 254, 282 (2d Cir. 2007);

Presbyterian Church of

Sudan v. Talisman Energy, Inc

., 244 F.Supp. 2d 289, 319

(S.D.N.Y. 2003).

12

See, e.g., Abdullahi v. Pfizer, Inc.,

562 F.3d 163 (2d Cir.

2009) (holding that allegation that a

corporate

defendant engaged

in non-consensual medical experimentation on human subjects

stated a claim under the ATS for violations of law of nations),

cert. denied,

___ U.S. ___, 130 S. Ct. 3541;

Sarei v. Rio Tinto,

PLC,

487 F.3d 1193 (9th Cir. 2007) (concluding that nonfrivolous

claims against international mining corporation for vicarious

liability for violations of

jus cogens

norms were sufficient to

warrant exercise of federal jurisdiction under the ATS),

vacated

in part on other grounds,

550 F.3d 822 (9th Cir. 2008) (en banc);

Doe I v. Unocal Corp.,

395 F.3d 932 (9th Cir. 2002) (concluding

167a

my knowledge there is only one opinion by a judge

which has spoken favorably of such a principle, and

that was a single judge’s dissenting opinion.

See

Khulumani v. Barclay Nat’l Bank Ltd.,

504 F.3d 254,

292 (2d Cir. 2007) (Korman, J., concurring in part and

that a private party – such as Unocal, a corporation – may be

subject to suit under the ATS for aiding and abetting violations of

customary international law and for violations of certain

jus

cogens

norms without any showing of state action),

reh’g en banc

granted,

395 F.3d 978 (9th Cir. 2003),

appeal dismissed,

403 F.3d

708 (9th Cir. 2005);

Aguinda v. Texaco, Inc.,

303 F.3d 470 (2d Cir.

2002) (dismissing ATS case against corporate defendant on forum

non conveniens grounds, because courts of Ecuador provided

adequate alternative forum);

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000) (reversing district court’s dismissal of

ATS complaint against corporations on forum non conveniens

grounds, and affirming district court’s ruling that corporations

were subject to personal jurisdiction in New York);

Jota v. Texaco,

Inc., 157 F.3d 153 (2d Cir. 1998) (vacating district court’s

dismissal of ATS case against corporation on forum non

conveniens grounds and remanding for further proceedings);

Bowoto v. Chevron Corp.,

557 F.Supp. 2d 1080 (N.D. Cal. 2008)

(denying oil company defendants’ motion for summary judgment

on claims that U.S. corporation, acting through its Nigerian

subsidiary, aided and abetted violations of laws of nations; case

proceeded to trial before jury, which found in favor of defendants);

Licea v. Curacao Drydock Co.,

584 F.Supp. 2d 1355 (S.D. Fla.

2008) ($80 million ATS judgment against defendant corporation

for human trafficking and forced labor);

Chowdhury v. WorldTel

Bangladesh Holding,

Ltd., No. 08 Civ. 1659(BMC) (E.D.N.Y. Aug.

6, 2009), ECF No. 48 ($1.5 million ATS jury verdict entered

against defendant holding company for torture),

appeal filed,

No.

09-4483-cv (2d Cir.);

see also

United States Diplomatic and Consular

Staff in Tehran (Judgment) (United States of America v. Iran),

1980 I.C.J. 3, 41-42 (May 24) (“Iran, by committing successive and

continuing breaches of [treaty obligations]

and the applicable

rules of general international law,

has incurred responsibility

towards the United States. [I]t clearly entails an obligation on the

part of the Iranian State to make reparation for the injury

thereby caused to the United States.” (emphasis added)); Corfu

Channel Case (Merits), 1949 I.C.J. 4, 23 (April 9) (“The Court

therefore reaches the conclusion that Albania is responsible

under international law for the explosions which occurred on

October 22nd, 1946, in Albanian waters, and for the damage and

loss of human life which resulted from them, and that there is a

duty upon Albania to pay compensation to the United Kingdom.”);

1

Oppenheim’s International Law

¶ 155, at 528 n. 3 (Sir Robert

Jennings & Sir Arthur Watts eds., 9th ed. 1996) (noting an

“‘international engagement’ includes any duty under

international law”).

188a

Charter established the International Military

Tribunal at Nuremberg “for the just and prompt

trial

and punishment

of the major war criminals of the

European Axis.” Agreement for the Prosecution and

Punishment of the Major War Criminals of the

European Axis (the “London Charter”), § I, art. 1, Aug.

8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Control

Council Law No. 10 established the U.S. Military

Tribunal for the “prosecution” and “punishment” of

“war criminals and other similar offenders.” Control

Council Law 10, preamble,

reprinted in

I

Trials of War

Criminals Before the Nuernberg Military Tribunals

under Control Council Law No. 10,

at xvi (1950). The

International Criminal Tribunal for the Former

Yugoslavia and the International Criminal Tribunal

for Rwanda were established to prosecute and punish

war criminals.

25

The parties to the Rome Statute of the

International Criminal Court “[a]ffirm that the most

serious crimes of concern to the international

25

See Prosecutor v. Kayishema & Ruzindana,

Case No.

ICTR-95-1-T, Sentence, ¶ 1 (May 21, 1999) (stating that the

International Criminal Tribunal for Rwanda was established “to

ensure the effective redress of violations of international

humanitarian law in Rwanda in 1994. The objective was to

prosecute and punish

the perpetrators of the atrocities in Rwanda

in such a way as to put an end to impunity and promote national

reconciliation and the restoration of peace.” (emphasis added));

Prosecutor v. Blagojevic & Jokic,

Case No. IT-02-60-T,

Judgement, ¶ 814 (Jan. 17, 2005) (stating that the International

Tribunal for the Former Yugoslavia seeks to impose punishment

that “reflect[s] both the calls for justice from the persons who

have – directly or indirectly – been victims of the crimes, as well

as respond to the call from the international community as a

whole to end impunity for massive human rights violations and

crimes committed during armed conflicts”).

189a

community as a whole must not go unpunished.” Rome

Statute, preamble, ¶ 4.

Consistent with their constituting charters,

international criminal tribunals have exercised only

criminal jurisdiction to punish offenders. None has

ever exercised a power to make compensatory civil

awards to victims.

26

These tribunals have on occasion

made clear that the criminal violations they found may

give rise to a claim for civil compensatory liability, and

at times, have explicitly said that conduct which does

not

justify criminal punishment may nonetheless

support a claim for compensatory damages.

27

26

The distinction between criminal and civil enforcement of

international law is also recognized in many multilateral

agreements. Most prominently, the Torture Convention requires

each State party to criminally prosecute acts of torture or to

extradite the alleged torturers to other States for prosecution.

Then, on the subject of compensatory civil liability, it obligates

each State party to “ensure in its legal system that the victim of

an act of torture . . . has an enforceable right to

fair and adequate

compensation

including the means for as full rehabilitation as

possible.” Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, art. 14, Dec. 10, 1984, S.

Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

27

See, e.g., Prosecutor v. Furundzija,

Case No. IT-95-17/1,

Trial Chamber Judgment, ¶ 155 (Dec. 10, 1998) (explaining that

victims of officially sanctioned torture “could bring a civil suit for

damage in a foreign court”); VI

Trials of War Criminals Before

the Nuernberg Military Tribunals

1207-08 (1952) (“[T]here may

be both civil and criminal liability growing out of the same

transaction. In this case Flick’s acts and conduct contributed to a

violation of Hague Regulation 46[,] that is, that private property

must be respected . . . . But his acts were not within his

knowledge intended to contribute to a program of ‘systematic

plunder’ [and therefore cannot be punished criminally].”).

190a

International law not only recognizes differences

between criminal and civil liability, but treats them

differently. While international institutions have

occasionally been established to impose criminal

punishments for egregious violations of international

law, and treaties often impose on nations the

obligation to punish criminal violations,

28

the basic

position of international law with respect to civil

liability is that States may impose civil compensatory

liability on offenders, or not, as they see fit. As

Professor Oscar Schachter explains,

29

international

law does not ordinarily speak to “the opportunities for

private persons to seek redress in domestic courts for

breaches of international law by States. There is no

general requirement in international law that States

provide such remedies. By and large, international law

leaves it to them to meet their obligations in such

ways as the State determines.”

30

Oscar Schachter,

International Law in Theory and Practice

240 (1991).

28

See, e.g.,

Rome Statute, art. 5 (vesting ICC with

jurisdiction over the crime of genocide, crimes against humanity,

war crimes, and the crime of aggression); Convention on the

Prevention and Punishment of the Crime of Genocide, art. V, Dec.

9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 (obligating

state parties “to enact, in accordance with their respective

Constitutions, the necessary legislation to give effect to the

provisions of the present Convention, and, in particular, to

provide effective penalties for persons guilty of genocide”).

29

Upon his death in 2003, former Secretary General Kofi

Annan described Professor Schachter as the “architect of the legal

framework which has guided United Nations peacekeeping for

more than 50 years.” Wolfgang Saxon,

Oscar Schachter, 88, Law

Professor and U.N. Aide,

N.Y. Times, Dec. 17, 2003, at C15.

30

See, e.g., Banco Nacional de Cuba v. Sabbatino,

376 U.S.

398, 422-23 (1964) (“The traditional view of international law is

191a

that it establishes substantive principles for determining whether

one country has wronged another. Because of its peculiar nation-

to-nation character the usual method for an individual to seek

relief is to exhaust local remedies and then repair to the executive

authorities of his own state to persuade them to champion his

claim in diplomacy or before an international tribunal. Although

it is, of course, true that United States courts apply international

law as a part of our own in appropriate circumstances, the public

law of nations can hardly dictate to a country which is in theory

wronged how to treat that wrong within its domestic borders.”

(citations omitted)); Restatement (Third) of the Foreign Relations

Law of the United States § 111, cmt. h (1987) (“In the absence of

special agreement, it is ordinarily for the United States to decide

how it will carry out its international obligations.”); Eileen Denza,

The Relationship Between International Law and National Law,

in International Law,

423, 423 (Malcolm Evans ed., 2d ed. 2006)

(“[The law of nations] permeates and radically conditions national

legal orders, its rules are applied and enforced by national

authorities, and national courts are often asked to resolve its

most fundamental uncertainties.

Yet international law does not

itself prescribe how it should be applied or enforced at the

national level.

It asserts its own primacy over national laws, but

without invalidating those laws or intruding into national legal

systems. National constitutions are therefore free to choose how

they give effect to treaties and to customary international law.

Their choice of methods is extremely varied.

” (emphases added));

Louis Henkin, Richard Crawford Pugh, Oscar Schachter & Hans

Smit,

International Law: Cases and Materials

153 (3d ed. 1993)

(“Since a state’s responsibility to give effect to international

obligations does not fall upon any particular institution of its

government,

international law does not require that domestic

courts apply and give effect to international obligations

.... States

differ as to whether international law is incorporated into

domestic law and forms a part of the ‘law of the land,’ and

whether the executive or the courts will give effect to norms of

international law or to treaty provisions in the absence of their

implementation by domestic legislation.” (emphasis added));

Louis Henkin,

International Law: Politics, Values and Functions

88 (1990) (“The international system requires that a State meet

its international obligations,

but ordinarily the law has not

192a

This feature of international law is largely

explained by the diversity of legal systems throughout

the world. Because the legal systems of the world

differ so drastically from one another, any attempt to

dictate the manner in which States implement the

obligation to protect human rights would be

impractical. “[G]iven the existing array of legal

systems within the world, a consensus would be

virtually impossible to reach – particularly on the

technical accouterments to an action – and it is hard

even to imagine that harmony ever would characterize

this issue.”

Tel-Oren,

726 F.2d at 778 (Edwards, J.,

concurring).

The ceding to States of the fashioning of

appropriate remedies to enforce the norms of the law

required that a State meet those obligations in a particular way

or through particular institutions or laws.

” (emphasis added));

id.

at 251 (“Compliance with international law as to civil and

political rights . . . takes place within a State and depends on its

legal system, on its courts and other official bodies.”); Louis

Henkin,

Foreign Affairs and the Constitution

224 (1972)

(“International law itself, finally, does not require any particular

reaction to violations of law . . . .”); Michael Koebele,

Corporate

Responsibility under the Alien Tort Statute: Enforcement of

International Law Through U.S. Torts Law

208 (2009)

(“[I]nternational law leaves individual liability . . . , be it of a

natural or legal person, largely to domestic law.”); Eric

Mongelard,

Corporate Civil Liability for Violations of

International Humanitarian Law,

88 Int’l Rev. Red Cross 665,

671 (2006) (“Legal persons can . . . have obligations under

international law, or at least there is a strong tendency to that

effect. However, virtually none of the above [human rights]

instruments provides for a mechanism for the enforcement of any

liability that may arise or lays down any obligation for non-state

entities to make reparation; they leave it to the states party to the

treaties to choose how to apply the rules.”).

193a

of nations is readily apparent in the source documents.

Characteristically, multilateral treaties protecting

human rights include few details. They generally

define the rights and duties in question, and direct

contracting States to protect such rights under their

local laws by appropriate means, sometimes, as noted

above, commanding criminal punishment, but rarely

dictating any aspects of civil liability. For example, in

the Genocide Convention, the “crime of genocide” is

defined as a number of “

acts

” committed with “intent

to destroy, in whole or in part, a national, ethnical,

racial or religious group.” Convention on the

Prevention and Punishment of the Crime of Genocide,

arts. I, II, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78

U.N.T.S. 277. The Convention then provides in Article

V that the State parties “undertake to enact, in

accordance with their respective Constitutions, the

necessary legislation to give effect to the provisions of

the present Convention, and, in particular, to provide

effective penalties for persons guilty of genocide.” The

Convention leaves the details for realizing its

objectives to each nation. It says nothing about the

nature or form of “effective penalties” to be imposed. It

says nothing about civil and administrative remedies.

In short, the Convention defines the illegal act of

genocide, obligates State parties to enforce its

prohibition, and leaves it to each State to devise its

own system for giving effect to the Convention’s

norms.

In this respect, the Convention is typical. The

major instruments that codify the humanitarian law of

nations define forms of conduct that are illegal under

international law, and obligate States to take

194a

appropriate steps to prevent the conduct.

31

They do not

instruct on whether, how, or under what

circumstances a State may impose civil compensatory

liability. They leave those questions to be resolved by

each individual nation.

C. The majority’s next argument – that the

absence of widespread agreement among the nations of

the world to impose civil liability on corporations

31

See, e.g.,

International Covenant on Civil and Political

Rights, art. 2(3), Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999

U.N.T.S. 171 (“Each State Party to the present Covenant

undertakes . . . To ensure that any person whose rights or

freedoms as herein recognized are violated shall have an effective

remedy . . . .”); Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, art. 2(1), Dec.

10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85 (“Each

State Party shall take effective

legislative, administrative,

judicial or other measures

to prevent acts of torture in any

territory under its jurisdiction.” (emphasis added)); International

Convention to Suppress the Slave Trade and Slavery, art. 6, Sept.

25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253 (providing that the State

parties undertake “to adopt the necessary measures in order that

severe penalties may be imposed in respect of such infractions”);

United Nations Convention on the Law of the Sea, art. 105,

opened for signature

Dec. 10, 1982, 21 I.L.M. 1261 (providing that

upon seizure of vessel or persons engaged in piracy,

“[t]he courts

of the State which carried out the seizure may decide upon the

penalties to be imposed, and may also determine the action to be

taken with regard to the ships, aircraft or property,

subject to the

rights of third parties acting in good faith” (emphasis added));

International Convention on the Suppression and Punishment of

the Crime of Apartheid,

opened for signature

Nov. 30, 1973, art.

IV(b), 1015 U.N.T.S. 243 (obligating State parties “to adopt

legislative, judicial and administrative measures

to prosecute,

bring to trial and punish

in accordance with their jurisdiction

persons responsible for” that offense (emphasis added)).

195a

means that they can have no liability under

international law – misunderstands international law

and is furthermore inconsistent with the rulings of the

Supreme Court and of this circuit.

For their next

argument, the majority construct the following

syllogism. 1) To determine whether a corporation can

be held civilly liable for violation of international law,

the place to look is to international law. 2) Principles

of local law, even those accepted throughout the world,

are not rules of international law, unless they are

generally accepted throughout the civilized world

as

obligatory rules of international law.

3) There is no

general acceptance in the world of a rule of

international law imposing civil liability on corporate

defendants for violations of international law.

Ergo,

international law does not allow for imposition of civil

liability on corporations.

I have no quarrel with any of the three premises. If

properly understood and applied, each is correct. The

problem lies in how they are used in the majority

opinion and, in particular, the spurious leap from

these propositions to the majority’s conclusion. Despite

the surface plausibility of the majority’s argument as

it is stated, when one scratches below the surface, the

majority’s argument is illogical, internally

inconsistent, contrary to international law, and

incompatible with rulings of both the Supreme Court

and this circuit.

I have no disagreement with the first proposition,

that the place to look for answers whether any set of

facts constitutes a violation of international law is to

international law. As improbable as it may seem that

international law would give a free pass to

196a

corporations to abuse fundamental human rights, one

cannot assume the answers to questions of

international law without first exploring its provisions.

And if we found that international law in fact exempts

corporations from liability for violating its norms, we

would be forced to accept that answer whether it

seemed reasonable to us or not.

However, when one looks to international law to

learn whether it imposes civil compensatory liability

on those who violate its norms and whether it

distinguishes between natural and juridical persons,

the answer international law furnishes is that it takes

no position on the question. What international law

does is it prescribes norms of conduct. It identifies acts

(genocide, slavery, war crimes, piracy, etc.) that it

prohibits. At times, it calls for the imposition of

criminal liability for violation of the law, whether by

vesting a tribunal such as the ICC with jurisdiction to

prosecute such crimes or by imposing on States a duty

to make the crimes punishable under national law.

The majority’s proposition that one looks to the law of

nations to determine whether there is civil liability for

violation of its norms thus proves far less than the

majority opinion claims. Yes – the question whether

acts of any type violate the law of nations and give rise

to civil damages is referable to the law of nations. And

if the law of nations spoke on the question, providing

that acts of corporations are not covered by the law of

nations, I would agree that such a limitation would

preclude suits under the ATS to impose liability on

corporations.

But international law does not provide that

juridical entities are exempt. And as for civil liability

197a

of both natural and juridical persons, the answer given

by the law of nations (as discussed above) is that each

State is free to decide that question for itself. While

most nations of the world have not empowered their

courts to impose civil liability for violations of the law

of nations,

32

the United States, by enacting the ATS,

has authorized civil suits for violation of the law of

nations.

33

In short, the majority’s contention that there can

be no civil remedy for a violation of the law of nations

unless that particular form of civil remedy has been

adopted throughout the world misunderstands how

the law of nations functions. Civil liability

under the

ATS

for violation of the law of nations is not awarded

because of a perception that international law

commands civil liability throughout the world. It is

awarded in U.S. courts because the law of nations has

outlawed certain conduct, leaving it to each State to

resolve questions of civil liability, and the United

States has chosen through the ATS to impose civil

liability. The majority’s ruling defeats the objective of

international law to allow each nation to formulate its

own approach to the enforcement of international law.

32

Beth Stephens,

Translating

Filártiga:

A Comparative and

International Law Analysis of Domestic Remedies for

International Human Rights Violations,

27 Yale J. Int’l L. 1, 17-

34 (2002) (reviewing reasons foreign countries have not exercised

universal tort jurisdiction over human rights violations).

33

The majority mischaracterize my position when they

attribute to me the view that corporate liability is “merely a

question of remedy.” Maj. Op. 147;

see also

Maj. Op. 121-22, 145-

46. As explained throughout this opinion, international law

outlaws certain forms of abhorrent conduct and in general leaves

to individual nations how to enforce the proscription.

198a

I turn to the majority’s second and third

propositions in support of its syllogism – that

principles of local law, even if accepted throughout the

world, are not rules of international law unless they

are generally accepted throughout the civilized world

as obligatory rules of international law and that there

is no widespread practice in the world of imposing civil

liability for violation of the rules of international law.

These propositions are also true, but they are

irrelevant to this controversy. If a damage award

under the ATS were premised on the theory that

international law commands that violators of its

norms be liable for compensatory damages, then we

would need to determine whether there is general

agreement among the nations of the world to such a

rule of international law. But the award of damages

under the ATS is not based on a belief that

international law commands civil liability. The claim

that a tort has been committed is premised on a

violation of the law of nations. This follows from a

determination that an actor has done what

international law prohibits. But international law

leaves the manner of remedy to the independent

determination of each State.

See supra

notes 29-30

and accompanying text;

cf. Sosa,

542 U.S. at 730 (“The

First Congress, which reflected the understanding of

the framing generation and included some of the

Framers, assumed that federal courts

could properly

identify some international norms as enforceable

in

the exercise of § 1350 jurisdiction.” (emphasis added)).

The fact that other nations have not chosen to exercise

the discretion left to them by international law in

favor of civil liability does not change the fact that

199a

international law has left the choice as to civil liability

with each individual nation.

A further flaw in the majority’s reasoning is its

identification of

corporate

civil liability as the principle

that has failed to achieve universal approval as a part

of the law of nations. The majority’s thesis is that

when a corporation commits a violation of the law of

nations, the victims may sue the natural persons who

acted for the corporation, but may not sue the

corporation. In the majority’s view, that is because

there is no widespread acceptance in the world of

corporate

civil liability as a rule of international law.

See

Maj. Op. 120-21 (“[T]here would need to be not

only a few, but so many sources of international law

calling for corporate liability that the norm could be

regarded as ‘universal.’”).

But this is a mistaken description of international

law. While it is true that there is no rule of

international law making corporations civilly liable,

that is merely the inevitable consequence of the fact

that there is no rule of international law making any

private person civilly liable – regardless of whether the

person is natural or juridical – and that international

tribunals, which have been established to criminally

prosecute violations of international law, have never

been vested with authority to impose civil,

compensatory liability. If the absence of widespread

agreement in the world as to civil liability bars

imposing liability on corporations, it bars imposing

liability on natural persons as well.

The majority’s argument thus conflicts with the

authority of this court and the Supreme Court. The

point of the ATS is to provide a civil remedy to victims

200a

of torts committed in violation of the law of nations. In

spite of the clear absence of a rule of international law

providing for civil liability, we have repeatedly

imposed civil liability under the ATS, and the

Supreme Court expressly stated in

Sosa,

rejecting the

views of the Court minority, that civil tort liability

does lie under the ATS. The absence of a wide

consensus imposing civil liability has never been

construed as barring civil liability. The majority’s

argument that such absence of wide consensus bars

imposition of liability on a corporation places the

majority in irreconcilable conflict with the holdings of

this court and the teachings of the Supreme Court.

D. Taking out of context Sosa’s reference to a

“norm,” which must command virtually universal

acceptance as a rule of international law to qualify as

a rule of international law, the majority opinion

attributes to that concept a meaning the Supreme

Court could not possibly have intended.

The majority

claim to find support for their argument in a passage

of the Supreme Court’s

Sosa

opinion. The Court

cautioned in

Sosa

that, in order to qualify as a rule of

international law, a “norm” must command virtually

universal acceptance among the civilized nations as a

rule of international law. 542 U.S. at 732. The

majority opinion, disregarding the context of the

Court’s discussion, construes the “norm” under

discussion as a convention concerning the type of

violator of international law upon whom civil tort

liability may be imposed. It postulates that, where a

corporation has committed a tort prescribed by the law

of nations, liability may not be imposed on it unless

there is a “norm” generally accepted throughout the

world for the imposition of tort liability on such a

201a

corporate violator of the law of nations, as opposed to

the natural person tortfeasors who acted on the

corporations’ behalf.

This is not what the Supreme Court meant. What

the Court was addressing in its reference to “norms”

was standards of conduct. Some norms (or standards)

– those prescribing the most egregious and universally

condemned forms of conduct, including genocide, war

crimes, and slavery – express rules of the law of

nations. Other norms of conduct, even though widely

accepted and enforced in the world

as rules of local

law,

are not rules of the law of nations and are

therefore not obligatory on States. What was required

was that the particular standard of conduct violated by

the defendant be generally accepted

as a mandatory

rule of international law.

A reading of

Sosa,

and of the cases it describes in

this discussion as “generally consistent” with its view,

makes clear that all of them are discussing the

distinctions between

conduct that does, and conduct

that does not, violate the law of nations.

Reinforcing

this limitation, the

Sosa

opinion quoted with approval

this court’s reference in

Filartiga

to conduct that

renders one “

hostis humani generis,

an enemy of all

mankind,” 630 F.2d at 890, Judge Edwards’

formulation – “a handful of heinous actions – each of

which violates definable, universal, obligatory norms,”

Tel-Oren,

726 F.2d at 781 (Edwards, J., concurring),

and the Ninth Circuit’s similar observation that

“[a]ctionable violations of international law must be of

a norm that is specific, universal, and obligatory,”

In

re Estate of Marcos Human Rights Litig.,

25 F.3d

202a

1467, 1475 (9th Cir. 1994). The discussion in

Sosa

used

the word “norms” to refer to standards of conduct.

To be sure, the distinction between conduct that

does and conduct that does not violate the law of

nations can turn on whether the conduct is done by or

on behalf of a State or by a private actor independently

of a State.

Sosa

and

Tel-Oren

both spoke of forms of

conduct – arbitrary detention and torture – that might

violate the law of nations only if done by or on behalf

of a State and not if done by a private actor acting

independently of the State. But that is a completely

different issue from the majority’s proposition. The

majority are not speaking of conduct which, because

done by an actor of specified character, does

not

violate

the law of nations. By definition, when conduct does

not violate the law of nations, it cannot be the basis of

tort liability under the ATS for violation of the law of

nations. The majority’s rule encompasses conduct that

indisputably

does

violate the law of nations, including

for example slavery, genocide, piracy, and official

torture (done under color of State law) – conduct for

which the natural person tortfeasors will be held liable

under ATS, but for which, the majority insist, a

corporation that caused the conduct to be done and

that profited from it, cannot be held liable. Nothing in

Sosa

inferentially supports or even discusses this

question.

The Supreme Court, furthermore, could not have

meant what the majority opinion attributes to it. The

disagreement in

Sosa

that divided the Court was on

the question whether the ATS

in any circumstance

authorizes an award of compensatory tort damages.

The minority of the Court argued vigorously that no

203a

such damages could be awarded without further

authorizing legislation by the Congress.

Sosa,

542 U.S.

at 746-47 (Scalia, J., concurring in the judgment). The

majority of the Supreme Court disagreed and found

that the ATS authorized awards of tort damages for

violations of the norms of the law of nations without

need for any further legislation.

Id.

at 730 (Maj. op.).

Had the Supreme Court meant what my colleagues

assume it did in this passage, it could not have

maintained its disagreement with the minority. There

was no wide adherence among the nations of the world

to a rule of civil liability for violation of the law of

nations. Had the Supreme Court meant, as my

colleagues attribute to it, that no damages may be

awarded under ATS absent a universally shared view

among the civilized nations that international law

provides such a remedy, the Supreme Court would

have been forced to conclude, in

agreement

with the

minority, that the

Filartiga

line of cases, which

awarded damages, was wrongly decided and that there

could be no awards of damages under ATS. The

majority of the Court, however, spoke with approval of

Filartiga

and the subsequent cases which had awarded

damages and unmistakably concluded that damages

were awardable under the ATS upon a showing of

violation of the norms of conduct constituting part of

the law of nations.

The majority’s claim to find support for their

position in the Supreme Court’s reference to the need

for a norm to enjoy universal acceptance to qualify as a

204a

rule of international law is simply a misunderstanding

of the Supreme Court’s discussion.

34

The majority’s position is also inconsistent with our court’s

understanding in prior cases of the norms dictated by

international law. In prior opinions, we have looked to

international law to determine whether the defendant’s conduct

violated

norms of conduct

universally accepted by the nations of

the world as rules of international law. Three of our opinions

contain extensive discussion of whether particular forms of

conduct contravene customary international law. In

Flores v.

Southern Peru Copper Corp.,

414 F.3d 233 (2d Cir. 2003), a civil

suit brought under the ATS

against a corporate defendant,

we

surveyed the sources on international law and concluded that acts

of intranational pollution did not violate any norm of

international law capable of supporting liability under the ATS.

In reaching this conclusion, our opinion speaks repeatedly of the

“offenses” or “conduct” the corporation allegedly engaged in, and

whether such acts violate customary international law.

See, e.g.,

id.

at 247 (“The determination of what

offenses

violate customary

international law . . . is no simple task.” (emphasis added));

id.

at

249 (“

[O]ffenses

that may be purely intra-national in their

execution, such as official torture, extrajudicial killings, and

genocide, do violate customary international law because the

‘nations of the world’ have demonstrated that such wrongs are of

‘mutual . . . concern,’ and capable of impairing international peace

and security.” (citations omitted and emphasis added));

id.

at 255

(“The precept that ‘[h]uman beings are . . . entitled to a healthy

and productive life in harmony with nature,’ . . . utterly fails to

specify what

conduct

would fall within or outside of the law.”

(emphasis added));

id.

at 266 (“Because plaintiffs have failed to

submit evidence sufficient to establish that

intranational

pollution

violates customary international law, the District Court

properly granted defendant’s motion to dismiss.” (emphasis

added)). Nothing in the opinion even discussed whether the

defendant might be exempt from liability because of its corporate

character or whether liability was foreclosed because of the

absence of a widely accepted convention among nations for

awarding civil damages.

205a

IV. The majority’s mistaken claim that

corporations are not “subjects” of

international law

The majority attempt to bolster their argument by

employing the arcane terminology of international law.

They assert that a corporation is not a “subject” of

international law. Maj. Op. 125-26. The majority

explain the significance of this term to be that only

subjects of international law have “rights, duties, and

liabilities” under international law. Maj. Op. 118.

Because, according to the majority, a corporation is not

Again in

United States v. Yousef,

327 F.3d 56 (2d Cir. 2003),

we concluded that the act of placing a bomb on an airplane

operated by a foreign carrier did not support the exercise of

universal criminal jurisdiction, because the nations of the world

disagree over which

forms of conduct

constitute “terrorism.”

Again, our opinion contains an extensive discussion of the forms

of conduct

that are proscribed by international law.

See, e.g., id.

at 104 (“In modern times, the

class of crimes

over which States

can exercise universal jurisdiction has been extended to include

war crimes and acts identified after the Second World War as

‘crimes against humanity.’ ” (emphasis added));

id.

at 106

(“Unlike those

offenses

supporting universal jurisdiction under

customary international law – that is, piracy, war crimes, and

crimes against humanity– that now have fairly precise definitions

and that have achieved universal condemnation, ‘terrorism’ is a

term as loosely deployed as it is powerfully charged.” (emphasis

added));

id.

at 107 (“[T]here continues to be strenuous

disagreement among States

about what actions

do or do not

constitute terrorism . . . .” (emphasis added)).

And in

Abdullahi v. Pfizer, Inc.,

562 F.3d 163, 183-84 (2d Cir.

2009),

cert. denied,

___ U.S. ___, 130 S. Ct. 3541, we wrote, “[T]he

norm prohibiting nonconsensual medical experimentation on

human subjects has become firmly embedded and has secured

universal acceptance in the community of nations.”

206a

a subject of the law of nations, it may neither bring

suit for violations of the law of nations nor be sued for

offenses under the law of nations.

The majority, however, cite no authority in support

of their assertion that a corporation is not a subject of

international law and is therefore incapable of being a

plaintiff or a defendant in an action based on a

violation of the law of nations. And there is strong

authority to the contrary.

The idea that an entity was or was not a “subject”

of international had greatest prominence when the

rules of international law focused on the sovereign

interests of States in their relations with one another.

To the extent that a particular rule of international

law pertains only to the relationship among States, it

can be correct to say that only States are subjects.

However, as the law of nations evolved to recognize

that “individuals and private juridical entities can

have any status, capacity, rights, or duties given them

by international law or agreement,” Restatement

(Third) of the Foreign Relations Law of the United

States, pt. II, introductory note,

35

that terminology has

35

See, e.g., Kadic v. Karadzi

ć

,

70 F.3d 232, 242 (2d Cir. 1995)

(“[F]rom its incorporation into international law, the proscription

of genocide has applied equally to state and non-state actors.”);

Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International

Human Rights Law and Serious Violations of International

Humanitarian Law, art. 15, G.A. Res. 60/147, U.N. Doc.

A/RES/60/147 (Dec. 16, 2005) (“In cases where

a person, a legal

person, or other entity is found liable for reparation to a victim,

such party should provide reparation to the victim or compensate

the State if the State has already provided reparation to the

victim” (emphasis added)).

207a

come to mean nothing more than asking whether the

particular norm applies to the type of individual or

entity charged with violating it, as some norms apply

only to States and others apply to private non-state

actors.

As early as the Nurenberg trials, which

represented the dawn of the modern enforcement of

the humanitarian component of the law of nations,

courts recognized that corporations had obligations

under international law (and were therefore subjects

of international law). In at least three of those trials,

tribunals found that corporations violated the law of

nations and imposed judgment on individual criminal

defendants based on their complicity in the

corporations’ violations.

36

For example, in the Farben case, the Farben

personnel were charged in five counts with wide-

ranging violations of international law, including

plunder of occupied properties. VIII

Farben Trial,

at

1129. Nine defendants were found guilty on this count.

The tribunal’s judgment makes clear that the Farben

company itself committed violations of international

law. Describing the applicable law, the tribunal stated:

Where private individuals,

including juristic

persons,

proceed to exploit the military

occupancy by acquiring private property

against the will and consent of the former

36

See

VI

Trials of War Criminals Before the Nuernberg

Military Tribunals

(1952) (the “Flick Trial”); VII, VIII

Trials of

War Criminals Before the Nuernberg Military Tribunals

(1952)

(the “Farben Trial”); IX

Trials of War Criminals Before the

Nuernberg Military Tribunals

(1950) (the “Krupp Trial”).

208a

owner, such action, not being expressly

justified . . . , is in violation of international

law . . . . Similarly

where a private individual

or a juristic person

becomes a party to

unlawful confiscation of public or private

property by planning and executing a well-

defined design to acquire such property

permanently, acquisition under such

circumstances subsequent to the confiscation

constitutes conduct in violation of

[international law].

Id.

at 1132-33 (emphasis added). Describing Farben’s

activities, the tribunal wrote:

[W]e find that the proof establishes beyond a

reasonable doubt that offenses against

property as defined in Control Council Law No.

10 were committed by Farben, and that these

offenses were connected with, and an

inextricable part of the German policy for

occupied countries as above described . . . . The

action of Farben and its representatives, under

these circumstances, cannot be differentiated

from acts of plunder or pillage committed by

officers, soldiers, or public officials of the

German Reich.

Id.

at 1140. Then – after concluding that Farben

violated international law – the tribunal imposed

criminal liability on Farben’s employees because of

their complicity in violations committed by Farben.

As discussed above in Part II.A, two opinions of

the Attorney General of the United States further

refute the majority’s view that corporations have

neither rights nor obligations under international law.

209a

In 1907, the Attorney General rendered an opinion

that an American corporation could be held liable

under the ATS to Mexican nationals if the defendant’s

“diversion of the water [of the Rio Grande] was an

injury to substantial rights of citizens of Mexico under

the principles of international law or by treaty.” 26 Op.

Att’y Gen. 252, 253 (1907). And in 1795, shortly after

the enactment of the ATS, the Attorney General

opined that a British corporation could pursue a civil

action under the ATS for injury caused to it in

violation of international law by American citizens

who, in concert with a French fleet, had attacked a

settlement managed by the corporation in Sierra

Leone in violation of international law.

See

1 Op. Att’y

Gen. 57 (1795).

This court similarly recognized claims on behalf of

juridical entities (a corporation, a trust, and a

partnership) against Cuba, premised on Cuba’s

expropriation of their property in violation of

international law.

37

These decisions cannot be

reconciled with the majority’s contention that

corporations are not subjects of under international

law.

37

See, e.g., Banco Nacional de Cuba v. Chem. Bank N.Y.

Trust Co.,

822 F.2d 230, 236-37 (2d Cir. 1987);

Banco Nacional de

Cuba v. Chase Manhattan Bank,

658 F.2d 875, 894 (2d Cir. 1981);

Banco Nacional de Cuba v. First Nat’l City Bank of N.Y.,

478 F.2d

191, 193 (2d Cir. 1973);

Banco Nacional de Cuba v. Farr,

383 F.2d

166, 170, 185 (2d Cir. 1967);

Banco Nacional de Cuba v.

Sabbatino,

307 F.2d 845, 864 (2d Cir. 1962),

rev’d on other

grounds,

376 U.S. 398 (1964),

superseded by statute,

22 U.S.C. §

2370(e)(2).

210a

V. The absence of scholarly support for the

majority’s rule

The majority contend that the “teachings of the

most highly qualified publicists of the various nations”

support their strange view of international law. Maj.

Op. 133 n. 36. The opinion seems to suggest that all

those works of scholarship that discuss the actual

state of the law, as opposed to those which advocate for

the scholars’ aspirational preferences, agree with the

majority’s view. I have discovered no published work of

scholarship that supports the majority’s rule. While

they cite eminent works of scholarship for many other

propositions that I do not dispute, none of those works

supports, or even addresses, the majority’s claim that

corporations are exempted by international law from

the obligation to comply with its rules.

The majority open their discussion by quoting the

Supreme Court’s well known observation in

The

Paquete Habana,

175 U.S. 677 (1900), that “

the works

of

jurists and commentators who by years of labor,

research, and experience have made themselves

peculiarly well acquainted with the subjects of which

they treat” can furnish valuable “evidence” of

customary international law.

Id.

at 700 (emphasis

added). The Supreme Court relied on the leading

treatises in the field, such as Wharton’s

Digest of the

International Law of the United States

and Wheaton’s

treatise on international law, as well as on “leading

French treatises on international law,” such as De

Cussy’s

Phases et Causes Celebres du Droit Maritime

des Nations,

Ortolan’s

Regles Internationales et

Diplomatie de la Mer,

and De Boeck’s

de la Propriete

Privee Ennemie sous Pavillon Ennemi.

211a

The majority opinion, in contrast, does not cite a

single published work of scholarship – no treatise on

the law of nations, no published book on the subject,

and no article in a scholarly journal – in support of its

position.

38

If the prescriptions of international law

against inhumane acts do not apply to corporations,

which are therefore free to disregard them without

liability, one would think this would be sufficiently

interesting to warrant comment, or at least

acknowledgment, in some published work of

scholarship. The majority cite none. No reference to

this strange view is found for example in

Oppenheim’s

International Law,

Brierley’s

The Law of Nations

or

38

The majority do cite one published book, Michael Koebele,

Corporate Responsibility Under the Alien Tort Statute:

Enforcement of International Law Through U.S. Torts Law

(Nijhoff 2009), in a manner suggesting that it supports the

majority’s analysis, but once again the quotation is out of context.

The majority quote this work to the effect that it remains the

“prevailing view” among scholars that international law

“primarily regulates States and in limited instances such as

international criminal law, individuals, but not [transnational

corporations].” Maj. Op. 143. This quotation appears to support

the majority’s position, but when one places it in context, the

appearance of support disappears. Koebele’s book later explains

that “the ATS, although incorporating international law, is still

governed by and forms part of torts law which applies equally to

natural and legal persons unless the text of a statute provides

otherwise,” and that international law does not prevent a State

“from raising its standards by holding [transnational

corporations] which are involved [in] or contribute to violations of

international law liable as long as the cause of international law

is served because international law leaves individual liability (as

opposed to State liability), be it of a natural or a legal person,

largely to domestic law.” Koebele,

supra,

at 208. Koebele thus

recognizes that the imposition of tort liability on a corporation

under the ATS is entirely consistent with international law.

212a

the American Law Institute’s Restatements of the

Foreign Relations Law of the United States, or in any

of the numerous learned works the majority cite.

The majority opinion claims that its view is

supported in two unpublished documents – affidavits

by law professors submitted in another litigation by

corporate defendants in an effort to get the case

against them dismissed.

39

(The majority opinion

ignores opposing affidavits filed in the same litigation.)

My colleagues assert that those affidavits by two

renowned professors of international law, Professors

James Crawford and Christopher Greenwood, “have

forcefully declared . . . that customary international

law does not recognize liability for corporations that

violate its norms.” Maj. Op. 143. This characterization

is not strictly speaking false but any implication that

the professors’ affidavits support the majority’s view –

that corporate violations of international law can give

rise to civil liability of the natural persons who acted

for the corporation but not of the corporation itself – is

completely unwarranted.

Professor Crawford’s affidavit, which was filed by

the corporate defendant in

Presbyterian Church of the

Sudan v. Talisman Energy, Inc.,

Dkt. No. 07-0016,

does not discuss, much less espouse, the majority’s

theory. Its subject matter is very limited. The affidavit

was prepared in response to a question put to the

litigants during argument of the appeal by Judge

39

It is not self-evident that unpublished expert affidavits

submitted in a different litigation are what the Supreme Court

had in mind in

Paquete Habana

when it approved consultation of

“

the works of

jurists and commentators” and, under that rubric,

cited leading works of published scholarship.

213a

Cabranes. Judge Cabranes requested further briefing

on the question:

What country or international judicial tribunal

has recognized corporate liability, as opposed

to individual liability, in a civil or criminal

context on the basis of a violation of the law of

nations or customary international law?

Professor Crawford makes clear in his affidavit

that he limits himself to answering that question –

whether any international or foreign judicial decision

has imposed liability on a corporation “under

international law as such.” Crawford Decl. ¶ 5. The

Professor answers that he knows of no such decision.

40

I have no quarrel with Professor Crawford’s

statement that no national court outside the United

States or international judicial tribunal has as yet

imposed civil liability on a corporation on the basis of a

violation of the law of nations. It adds nothing to our

debate. To begin with, his observation is particularly

40

Professor Crawford’s affidavit does not take the position

that there is any obstacle to a national court holding a

corporation civilly liable – only that no such decision has yet has

been rendered. The affidavit notes that a study by the

International Commission of Jurists on corporate complicity in

human rights violations states that corporations are in a “zone of

legal risk,” Crawford Decl. ¶ 7, but cites no examples of decisions

actually holding them liable. In speaking of the experience of the

United Kingdom, Professor Crawford characterizes the question

of corporate liability as “largely untested.”

Id.

¶ 8. And as far as

international tribunals are concerned, the Professor explains that

the reason for the absence of judgments against corporations is

that the international tribunals do not have jurisdiction to award

such judgments. “None have jurisdiction over corporations as

respondents.”

Id.

¶ 9.

214a

without significance as justification of the majority’s

distinction between liability of natural persons and

liability of corporations because Professor Crawford

does not state that any nation outside the United

States awards civil damages against any category of

defendant for violations of the law of nations. If there

are no civil judgments outside the United States

against natural persons, the fact that there are no civil

judgments against corporations either in no way

supports the distinction the majority are making.

Professor Crawford’s affidavit furthermore does

not address the rule the majority attribute to

international law. International tribunals do not have

jurisdiction to impose civil liability on private actors,

and the fact that other nations’ courts have not

awarded civil damages against corporations does not

support the majority’s theory that the absence of

judgments imposing civil liability somehow

bars

a

national court, such as a U.S. court acting under the

ATS, from imposing civil liability on a corporation for

its violation of international law.

I do not contend that the law of nations imposes

civil damages, either on corporations or on natural

persons. Quite to the contrary, the law of nations does

not take a position on civil liability of either natural

persons or corporations. It leaves the question of civil

liability to each nation to resolve for itself. By passing

the ATS, Congress resolved that question for the

United States, unlike the great majority of nations, in

favor of civil liability. Nothing in Professor Crawford’s

affidavit is to the contrary.

In fact, Professor Crawford’s affidavit seems rather

to express oblique support for my view. In noting that

215a

no national tribunal outside the United States has

imposed civil liability on a corporation on the basis of a

violation of the law of nations, the Professor notes the

need for a “clarification.” He then explains,

When the terms of an international treaty become

part of the law of a given state – whether (as in most

common law jurisdictions) by being enacted by

parliament or (as in many civil law jurisdictions) by

virtue of constitutional approval and promulgation

which give a self-executing treaty the force of law –

corporations may be civilly liable for wrongful conduct

contrary to the enacted terms of the treaty

just as they

may be liable for any other conduct recognized as

unlawful by that legal system.

Id.

¶ 4 (emphasis added). That is more or less the

circumstance when a plaintiff sues in U.S. courts

under the ATS to impose civil compensatory liability

for a violation international law. The ATS provides

jurisdiction over “a tort only, committed in violation of

the law of nations or a treaty of the United States.” 28

U.S.C. § 1350. Norms of international law, such as the

outlawing of genocide by the Genocide Convention,

have the force of law in the United States and may be

the subject of a suit under the ATS. Because the law of

nations leaves each nation free to determine for itself

whether to impose civil liability for such violations of

the norms of the law of nations, and because the

United States by enacting the ATS has opted for civil

tort liability, U.S. courts, as a matter of U.S. law,

entertain suits for compensatory damages under the

ATS for violations of the law of nations. The ATS

confers jurisdiction by virtue of the defendant’s

violation of the law of nations. Damages are properly

216a

awarded under the ATS not because any rule of

international law imposes damages, but because the

United States has exercised the option left to it by

international law to allow civil suits. Nothing in

international law bars such an award, and nothing in

Professor Crawford’s affidavit suggests the contrary.

41

Another aspect of the majority’s citation of Professor

Crawford’s declaration requires clarification. The majority

opinion quotes the declaration as saying, “[n]o national court

[outside the United States] and no international judicial tribunal

has so far recognized corporate liability,

as opposed to individual

liability, in a civil or criminal context

on the basis of a violation of

the law of nations.” Maj. Op. 143 (first emphasis added). The

manner of presenting the quotation could lead the reader to

understand that the Professor, like the majority, is saying that

when a corporation violates the law of nations, that law

recognizes civil liability

of natural persons who acted for the

corporation,

but

not of the corporations.

That is not what the

Professor was saying. When Professor Crawford responded that

no national court outside the United States or international

judicial tribunal had imposed corporate liability, “as opposed to

individual liability,” he was merely adhering to the precise

question asked. He was not suggesting, as the majority opinion

does, that civil liability of natural persons is judged differently

from civil liability of corporations. His affidavit contains no

discussion whatsoever of whether any national court or

international judicial tribunal has recognized civil liability of

natural persons, and he makes no statement one way or the other

on the question of such liability.

One of the main problems with the majority’s theory is its

incoherence resulting from the fact that it treats the absence of

any international law precedent for imposition of damages on

corporations as barring such an award under the ATS, while

acknowledging that damages are properly awarded against

natural persons notwithstanding the very same absence of

international law precedent for such awards. The quotation from

Professor Crawford’s affidavit in the majority opinion sounds as if

the Professor is saying that international law distinguishes

217a

The majority also quote from an affidavit of

Professor Christopher Greenwood, filed in the district

court in the

Talisman

case. The majority’s quotation

from the Greenwood affidavit contributes nothing to

this dispute. According to the majority, the Professor’s

affidavit states, “[T]here is not, and never has been,

any assertion of the criminal liability of corporations

in international law.” Maj. Op. 143. As I have

explained above, I have no quarrel with that assertion,

but it has no bearing on whether corporations may be

held civilly liable under ATS for violations of

international law. The reasons international tribunals

do not impose

criminal

liability on corporations have to

do only with the nature of

criminal

liability and a

widespread perception that

criminal liability

is neither

theoretically sound nor practically efficacious when

imposed on a juridical entity. This says nothing about

the imposition of compensatory civil liability.

42

between civil liability of natural persons, which it allows, and

civil liability of corporations, which it does not allow. But the

Professor was not saying that. His affidavit does not discuss,

much less support, the majority’s theory that, when a corporation

violates the law of nations, civil liability under the ATS

may be

imposed on the natural persons who acted for the corporation

but

not on the corporation. The ambiguity in Professor Crawford’s

sentence does not indicate adoption of the majority’s incoherent

and inconsistent proposition.

42

The majority contend that I criticize them for citing

affidavits. They assert that affidavits, because they are made

under penalty of perjury, are as reliable a source as law review

articles “whose accuracy is confirmed only by efforts of the

student staff of law journals.” Maj. Op. 144 n. 47. I do not criticize

the majority for citing the affidavits of learned professors. I have

only questioned whether unpublished litigating affidavits are

what the Supreme Court had in mind in

Paquete Habana

as the

218a

The majority cite no work of scholarship that

supports their position, and fail to acknowledge

scholarship that rejects their view. Professor

Schachter and other scholars assert that international

law leaves the question of civil liability to be

determined by individual nations.

See supra

note 29

and accompanying text. A three-volume report of the

International Commission of Jurists on the subject of

“Corporate Complicity and Legal Accountability”

43

distinguishes between criminal and civil liability and

provides as to civil liability that “

the law of civil

remedies will always have the ability to deal with the

conduct of companies, individuals and state

authorities.

” 3 Int’l Comm. of Jurists,

Corporate

Complicity & Legal Accountability

5 (2008). The report

maintains that this is the case notwithstanding that

“significant opposition to the imposition of

criminal

sanctions on companies as legal entities remains,” for

“reasons [that] appear to be broadly conceptual, and at

times political.”

44

2 Int’l Comm. of Jurists,

Corporate

Complicity & Legal Accountability

57 (2008) (emphasis

added). Michael Koebele’s work asserts that liability

under the ATS “applies equally to natural and legal

persons” and that international law does not bar

States from imposing liability on a corporation, as

international law leaves civil liability to domestic law.

“teachings” of publicists. Regardless, I have no criticism of the

affidavits of Professors Crawford and Greenwood. The problem

with the majority’s citation of those affidavits is that the

affidavits do not support the majority’s thesis.

43

Int’l Comm. of Jurists,

Corporate Complicity & Legal

Accountability

(2008),

available at

http: //www.icj.org/default.asp?

node ID=350&langage=1&myPage=Publications.

44

See infra

note 46.

219a

Michael Koebele,

Corporate Responsibility Under the

Alien Tort Statute: Enforcement of International Law

Through U.S. Torts Law

208 (2009).

45

Two treatises on

the ATS maintain that a corporation may be held

civilly liable for engaging in conduct that violates the

law of nations. Beth Stephens et al.,

International

Human Rights Litigation in U.S. Courts

310 (2d ed.

2008) (“Nothing in the

Sosa

decision demands more of

plaintiffs seeking to hold corporations accountable for

human rights violations than the strict evidentiary

requirements imposed generally . . . .”); Peter Henner,

Human Rights and the Alien Tort Statute: Law,

History, and Analysis

215 (2009) (“Alleged

perpetrators of crimes under international law that do

not require any showing of state action, including

piracy, genocide, crimes against humanity,

enslavement, and slave trading, can be sued under the

ATS. Generally,

the prospective private defendants

can be individuals, corporations, or other entities.

”

(emphasis added)).

46

45

While the majority dismiss Professor Steven R. Ratner’s

discussion as merely aspirational, they do not acknowledge his

assertion, based on a report of the International Council on

Human Rights, judgments of the Nuremberg Tribunals,

multilateral instruments imposing obligations on corporations,

the multimillion dollar settlements agreed to by German

companies alleged to have been complicit in the wartime human

rights violations of the Third Reich, and the practice of the

European Union, that “international law has

already effectively

recognized

duties of corporations.” Steven R. Ratner,

Corporations and Human Rights: A Theory of Legal

Responsibility,

111 Yale L.J. 443, 475 (2001) (emphasis added).

46

The majority criticize the report of the International

Commission of Jurists and the Stephens treatise as biased

sources. Maj. Op. 143-44 n.47. They point out that certain authors

220a

To be sure, the scholarship of international law

includes statements of scholars to the effect that

international law imposes no liabilities on private

juridical persons. This is entirely accurate, but it does

not mean what the majority contend. It is true that

international law, of its own force, imposes no

liabilities on corporations or other private juridical

entities.

47

International criminal tribunals, for reasons

that relate solely to the nature of criminal liability and

punishment, do not exercise jurisdiction over

corporations. And as for civil liability of private

persons, international law leaves individual nations

free to decide whether to implement its norms of

conduct by providing civil compensatory liability to

victims.

See supra

notes 29-30 and accompanying text.

Accordingly, it is absolutely correct that the rules of

international law do not provide civil liability against

of the Stephens treatise serve as counsel for the Plaintiffs in this

case. That is indeed a reason to view the conclusions of the

treatise with skepticism. The majority’s condemnation of the

International Commission of Jurists, on the ground that it

“promot[es] the understanding and observance of the rule of law

and the legal protection of human rights throughout the world,” is

less convincing. I do not understand why an organization’s

commitment to upholding the law justifies the view that the

organization is biased as to the content of the law. But in any

event, the views expressed in those scholarly works are consistent

with the views of scholars the majority have not questioned. In

contrast, no work of scholarship, whether interested or not

interested, has supported the majority’s view.

47

Because I agree that international law does not of its own

force impose liability on corporations, the majority assert that

“Judge Leval does not disagree with Part II” of their opinion. Maj.

Op. 145. To the contrary, while certain facts mentioned there are

entirely accurate, I disagree with numerous unwarranted

inferences and conclusions the majority draw from them.

221a

any private actor and do not provide for any form of

liability of corporations. In no way, however, does it

follow that international law’s rules do not apply to

corporations.

No work of scholarship cited in the majority

opinion supports the majority’s rule, and many works

of scholarship assert the contrary.

VI. Response to the majority’s criticism of my

arguments

There is no inconsistency between my present

position and my prior endorsement in Talisman of the

reasoning set forth by Judge Katzmann in Khulumani

.

The majority assert that the position I now take

contradicts the position I took in

Talisman

when I

approved the reasoning Judge Katzmann set forth in

Khulumani

. They say I now “ignore” the international

tribunals whose rulings I and Judge Katzmann

previously found controlling, that I ignore “the second

step” of Judge Katzmann’s approach, and that I “look

to international tribunals only when they supply a

norm with which [I agree].” Maj. Op. 146-47. These

criticisms misunderstand both Judge Katzmann’s

arguments and mine. There is no inconsistency

between my prior endorsement of the views Judge

Katzmann expressed in

Khulumani

and those I

express here. I do not ignore the judgments of

international tribunals. I merely decline to draw

illogical and unwarranted conclusions from them.

In

Khulumani

, one of the main issues in dispute

was whether civil liability for violations of

international law may be imposed on an actor who

participated in the violation of an international law

norm as an aider and abetter. The district court had

222a

dismissed claims against alleged aiders and abetters

on the ground that international law recognized no

civil liability for aiding and abetting.

See Ntsebeza v.

Citigroup, Inc.,

346 F.Supp. 2d 538, 554 (S.D.N.Y.

2004). Although numerous judgments in criminal

proceedings had imposed criminal liability for aiding

and abetting, the district court accorded them no

significance, because they were

criminal

judgments

which the district court believed were inapplicable to

civil liability. Judge Katzmann found this reasoning

erroneous and pointed out that we have “consistently

relied on criminal law norms in establishing the

content of customary international law for purposes of

the AT[S].”

Khulumani,

504 F.3d at 270 n. 5. He

concluded that if international criminal tribunals had

ruled that aiding and abetting a violation of the law of

nations was itself a violation of the law of nations, this

answered the question posed in a civil suit under the

ATS whether aiding and abetting violated the law of

nations. He explained, “Once a court determines that

the defendants’ alleged conduct falls within one of ‘the

modest number of international law violations with a

potential for personal liability’ on the defendant’s part

. . . [t]he common law . . . permits the ‘independent

judicial recognition of actionable international norms.’

”

Id.

at 269-70 (citations omitted). Judge Katzmann, in

other words, looked at the norms of conduct

established by international courts as violations of

international law and concluded that conduct which

constitutes a criminal violation of international law

also violates international law for purposes of civil

liability under the ATS.

I agree completely with Judge Katzmann’s

reasoning. It does not follow, however, that if

223a

international tribunals withhold criminal liability

from juridical entities for reasons that have nothing to

do with whether they violated the conduct norms of

international law, but result only from a perceived

inappropriateness of imposing

criminal

judgments on

artificial entities, there has been no violation of the

norms of international law. Nothing in Judge

Katzmann’s opinion suggests that he would adopt the

majority’s position or that he would disagree with

mine.

As I have made clear, I do not oppose looking to

the instruments of international law to determine

whether there has been a violation of international

law. That is exactly where one should look. And if they

answer the question, that answer is determinative.

What I oppose is drawing illogical and unwarranted

inferences from the judgments of international

tribunals, especially when those inferences are used to

support rules that undermine the objectives of

international law.

The majority likewise attribute to Judge

Katzmann the proposition that there is no distinction

in international law between criminal and civil

liability. Maj. Op. 147. Once again quoting out of

context, the majority misunderstand Judge

Katzmann’s opinion. As noted above, the district court

in

Khulumani

had disregarded the opinions of

international tribunals which found violations based

on aiding and abetting on the ground that those

sources imposed criminal, and not civil, responsibility.

Judge Katzmann’s observation meant nothing more

than that the district court was wrong to consider

criminal judgments irrelevant to whether conduct

224a

constituted a violation of international law for

purposes of civil liability. Judge Katzmann did not

endorse, or even comment on, the majority’s new

proposition that withholding of criminal liability for a

reason having nothing to do with whether the conduct

norms of international law have been violated requires

the conclusion that there has been no violation of

international law. Nothing in Judge Katzmann’s

opinion suggests that, in considering the norms that

may be violated by a private actor without State

involvement, international law distinguishes between

the liability of natural and juridical persons.

Cf.

Khulumani,

504 F.3d at 282 (Katzmann, J.,

concurring) (“We have repeatedly treated the issue of

whether corporations may be held liable under the

AT[S] as indistinguishable from the question of

whether private individuals may be.”).

To be sure, if international criminal tribunals

followed a rule that the acts of juridical persons cannot

violate international law because international law

does not cover them, I, and presumably Judge

Katzmann as well, would regard such rulings as

determinative for ATS purposes. But international

tribunals have made no such rulings. There is no

inconsistency between my earlier endorsement of

Judge Katzmann’s reasoning and the reasoning I

follow here.

The majority’s other criticisms of my opinion

merely restate their arguments. I have answered these

above.

225a

VII. The Complaint must be dismissed because

its factual allegations fail to plead a

violation of the law of nations.

Although I do not share my colleagues’

understanding of international law, I am in complete

agreement that the claims against Appellants must be

dismissed.

48

That is because the pertinent allegations

of the Complaint fall short of mandatory standards

established by decisions of this court and the Supreme

Court. We recently held in

Presbyterian Church of

Sudan v. Talisman Energy, Inc.,

582 F.3d 244 (2d Cir.

2009), that liability under the ATS for

aiding and

abetting

in a violation of international human rights

lies only where the aider and abettor acts

with a

purpose

to bring about the abuse of human rights.

Id.

at 259. Furthermore, the Supreme Court ruled in

Ashcroft v. Iqbal,

556 U.S. 662 (2009), that a complaint

is insufficient as a matter of law unless it pleads

specific facts that “allow[ ] the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.”

Id.

at 678. When read

together,

Talisman

and

Iqbal

establish a requirement

that, for a complaint to properly allege a defendant’s

complicity in human rights abuses perpetrated by

officials of a foreign government, it must plead specific

facts supporting a reasonable inference that the

defendant acted with a purpose of bringing about the

abuses. The allegations against Appellants in these

appeals do not satisfy this standard. While the

Complaint plausibly alleges that Appellants knew of

human rights abuses committed by officials of the

48

By “Complaint,” I refer to the amended complaint filed in

May 2004.

See infra

Part VII.A.3.

226a

government of Nigeria and took actions which

contributed indirectly to the commission of those

offenses, it does not contain allegations supporting a

reasonable inference that Appellants acted with a

purpose of bringing about the alleged abuses.

A. Factual and procedural background

Because the majority opinion focuses on the legal

issue of whether international law allows a U.S. court

to impose liability on a corporation, it is necessary to

set out the allegations of the Complaint and the

history of prior proceedings in detail.

1) Parties.

As the majority note, Plaintiffs are, or

were, residents of the Ogoni region of Nigeria.

Plaintiffs allege that they (and others similarly

situated whom they undertake to represent as a class)

were victims of human rights abuses committed by the

government of Nigeria, through its military and police

forces, with the aid of Shell. “Shell,” as the designation

is used in the Complaint and this opinion, refers

collectively to the Royal Dutch Petroleum Company

and Shell Transport and Trading Company PLC.

49

According to the allegations of the Complaint, those

two entities are holding companies organized

respectively in the Netherlands and the United

Kingdom. They conduct petroleum exploration and

production operations in Nigeria through a Nigerian

subsidiary named Shell Petroleum Development

49

Because of changes in corporate form unrelated to this

lawsuit, Shell Petroleum N.V. and Shell Transport and Trading

Company, Ltd. are the successors to the named defendants Royal

Dutch Petroleum Company and Shell Transport and Trading

Company PLC, respectively.

227a

Company of Nigeria, Ltd. (hereinafter “SPDC”). SPDC

was named as a defendant, and is not a party to this

appeal. The district court dismissed the suit against

SPDC for lack of personal jurisdiction on June 21,

2010.

2) Allegations of the complaint.

Plaintiffs’ suit

asserts the liability of Shell on the ground that Shell

aided and abetted Nigerian government forces in the

commission of various human rights abuses, directed

against Plaintiffs. The Complaint alleges the following:

Since 1958, SPDC, has been engaged in oil

exploration and production in Nigeria, conducting

extensive operations in the Ogoni region.

50

Ogoni

residents initiated the Movement for Survival of Ogoni

People (MOSOP) to protest environmental damage

caused by SPDC’s operations. Beginning in 1993, the

Nigerian military engaged in a campaign of violence

against MOSOP and the Ogoni, which was “instigated,

planned, facilitated, conspired, and cooperated in” by

Shell and SPDC.

In February 1993, following a demand by MOSOP

for royalties for the Ogoni people, Shell and SPDC

officials met in the Netherlands and England in

February 1993 to “formulate a strategy to suppress

MOSOP and to return to Ogoniland.” In April 1993,

SPDC called for assistance from government troops.

The Nigerian government troops fired on Ogoni

50

The designation “Shell,” as noted above, represents holding

companies in England and Holland, which wholly own The Shell

Petroleum Company Ltd., a holding company, which in turn owns

SPDC. SPDC is the sole operator and 30% owner of a joint

venture engaged in oil exploration, refinement, and extraction in

Nigeria.

228a

residents protesting a new pipeline, killing eleven.

Later, SPDC’s divisional manager wrote to the

Governor of Rivers State (in which Ogoni is located)

and requested “the usual assistance” to protect the

progress of SPDC’s further work on the pipeline. In

August through October 1993, the Nigerian military

attacked Ogoni villages, killing large numbers of

civilians. SPDC provided a helicopter and boats for

reconnaissance, provided transportation to the

Nigerian forces involved, provided SPDC property as a

staging area for the attacks, and provided food and

compensation to the soldiers involved in the attacks.

In an operation in October 1993, SPDC employees

accompanied Nigerian military personnel in an SPDC

charter bus to a village where the military personnel

fired on unarmed villagers.

In December 1993, SPDC’s managing director,

with the approval of Shell, asked the Nigerian Police

Inspector General to increase security in exchange for

providing Nigerian forces with salary, housing,

equipment, and vehicles. Shortly thereafter, the

Nigerian government created the Rivers State Internal

Security Task Force (ISTF). Shell and SPDC provided

financial support for the ISTF’s operations, as well as

transportation, food, and ammunition for its

personnel. In April 1994, the Rivers State Military

Administrator ordered the ISTF to “‘sanitize’

Ogoniland, in order to ensure that those ‘carrying out

ventures . . . within Ogoniland are not molested.’” The

head of the ISTF responded in May that “Shell

operations still impossible unless ruthless military

operations are undertaken for smooth economic

activities to commence.”

229a

From May to August 1994, the ISTF engaged in

numerous nighttime raids on Ogoni towns and

villages. During these raids, the ISTF “broke into

homes, shooting or beating anyone in their path,

including the elderly, women and children, raping,

forcing villagers to pay ‘settlement fees,’ bribes and

ransoms to secure their release, forcing villagers to

flee and abandon their homes, and burning, destroying

or looting property,” and killed at least fifty Ogoni

residents. Plaintiffs and others were arrested and

detained without formal charges and without access to

a civilian court system, some for more than four

weeks. In the detention facility, Plaintiffs and others

were beaten and were provided inadequate medical

care, food, and sanitary facilities. SPDC officials

“frequently visited the . . . detention facility” and

“regularly provided food and logistical support for the

soldiers” who worked there.

In 1994, the Nigerian military created a “Special

Tribunal” to try leaders of MOSOP, including Dr.

Barinem Kiobel, a Rivers State politician who objected

to the tactics of the ISTF and supported MOSOP.

Counsel to those brought before the Special Tribunal

were “subjected to actual or threatened beatings or

other physical harm.” The Complaint alleges also that,

with Shell’s complicity, witnesses were bribed to give

false testimony before the Special Tribunal. In

January 1995, the Nigerian military violently put

down a protest against Shell’s operations and the

Special Tribunal, and the protesters who were

detained were subjected to “floggings, beatings and

other torture [,] and money was extorted to obtain

releases.” Dr. Kiobel and others were condemned to

230a

death by the Special Tribunal and executed in

November 1995.

3) Prior proceedings.

In September 2002, Plaintiffs

filed a putative class action in the United States

District Court for the Southern District of New York

alleging torts in violation of the law of nations,

pursuant to the ATS. The amended complaint filed in

May 2004 (“the Complaint”) charged seven counts of

violations of the law of nations against Shell and

SPDC. With respect to each count, the Complaint

alleged that Shell and SPDC “aided and abetted,”

“facilitated,” “participated in,” “conspired with,” and/or

“cooperated with” the Nigerian military in its

violations of the law of nations. Shell moved to dismiss

on several grounds, including that the Complaint

failed to state a violation of the law of nations with the

specificity required by the Supreme Court’s ruling in

Sosa.

Kiobel v. Royal Dutch Petroleum Co.,

456

F.Supp. 2d 457, 459 (S.D.N.Y. 2006).

51

The district

court granted the motion in part and denied it in part.

The court first determined that “where a cause of

action for violation of an international norm is viable

under the ATS, claims for aiding and abetting that

violation are viable as well.”

Id.

at 463-64. Turning to

the substantive counts, the district court dismissed the

claims of aiding and abetting property destruction,

forced exile, extrajudicial killing, and violation of the

rights to life, liberty, security, and association, on the

ground that international law did not define those

51

Shell also moved to dismiss on the grounds that Plaintiffs’

claims are barred by the act of state doctrine and by the doctrine

of international comity. All of these motions were denied and

were not appealed.

Kiobel,

456 F.Supp. 2d at 459.

231a

violations, as alleged, with the particularity required

by

Sosa.

By contrast, the court denied the motion to

dismiss the claims that Shell aided and abetted the

Nigerian government’s commission of torture,

arbitrary arrest and detention, and crimes against

humanity, concluding that such acts are clear

violations of the law of nations.

Id.

at 464-67.

The district court certified its order for

interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Id.

at 468. On December 27, 2006, we granted

Plaintiffs’ petition and Shell’s cross-petition to

entertain the interlocutory appeal.

See Kiobel v. Royal

Dutch Petroleum Co.,

Nos. 06-4800-cv, 06-4876-cv (2d

Cir. Dec. 27, 2006).

B. Adequacy of the pleadings against Shell

Shell contends the Complaint does not sufficiently

plead facts that would render it liable for aiding and

abetting Nigeria’s violations of the law of nations.

52

In

my view, this argument is dispositive.

52

Plaintiffs contend we should not consider this question

because the district court did not consider it and Shell did not

raise the issue in its petition for permission to appeal. On

interlocutory appeal pursuant to § 1292(b), however, “our Court

‘may address any issue fairly included within the certified order,’

as ‘it is the order that is appealable, and not the controlling

question identified by the district court.’”

Cal. Pub. Employees’

Ret. Sys. v. WorldCom, Inc.,

368 F.3d 86, 95 (2d Cir. 2004)

(quoting

Yamaha Motor Corp. v. Calhoun,

516 U.S. 199, 205

(1996));

see also Merican, Inc. v. Caterpillar Tractor Co.,

713 F.2d

958, 962 n. 7 (3d Cir. 1983) (“On a § 1292(b) appeal we consider

all grounds which might require a reversal of the order appealed

from.”). The issue has been fully briefed and I see no reason not to

consider it.

232a

1) Standard of review.

Whether a complaint

asserts a claim upon which relief may be granted is a

question of law. This court reviews a district court’s

ruling on a such a question

de novo. See Chapman v.

New York State Div. for Youth,

546 F.3d 230, 235 (2d

Cir. 2008). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is

plausible on its face.’

”

Iqbal,

129 S. Ct. at 1949

(emphasis added) (quoting

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “Facial plausibility” means

that the plaintiff’s factual pleadings “allow[ ] the court

to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”

Id.

A complaint that

pleads facts that are “merely consistent with” a

defendant’s liability is not plausible.

Id.

Conclusory allegations that the defendant violated

the standards of law do not satisfy the need for

plausible factual allegations.

Twombly,

550 U.S. at 555

(1955) (holding that “courts are not bound to accept as

true a legal conclusion couched as a factual allegation”

(internal quotation marks omitted));