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Editor’s Note – This article, co-authored by my colleague Tina Amin, is a joint submission to CAB and the BakerHostetler Class Action Lawsuit Defense Blog.  Please visit our firm’s blog for more riveting class action-related content.

Today is Talk Like a Pirate Day, which is always a reminder of the Alien Tort statute (“ATS”), an arcane law that was originally enacted in 1789 in part to combat piracy.  In recent years, the ATS has been used as a tool for bringing class actions seeking to redress alleged international civil rights abuses arising out of a wide range of conduct including genocide, torture, slavery, apartheid, and environmental contamination.  In a recent ATS case, Kiobel v. Royal Dutch Petroleum, Case Nos. 06-4800-cv and 06-4876-cv, Nigerian plaintiffs alleged that the defendant company collaborated with the Nigerian government to commit extrajudicial killing, torture, crimes against humanity, and arbitrary arrest and detention.  In its September 17, 2010 decision, the Second Circuit became the first appellate court to reject the proposition that a corporation can be liable under the ATS for such alleged complicity.

On October 17, 2011, the Supreme Court originally accepted Kiobel, No. 10-1491, to address the issue whether a corporation can be liable under the ATS for alleged complicity in human rights abuses by a foreign government.  Oral argument in the Supreme Court was held on February 28, 2012.  A week later, the Court requested supplemental briefing on two related issues.  The first is on the broader issue of whether the U.S. courts have extra-territorial jurisdiction to adjudicate disputes about human rights abuses that occurred entirely outside U.S. borders.   The Court also asked “under what circumstances” the ATS “allows courts to recognize a cause of action” for extraterritorial violations.  The supplemental briefs were filed this summer.

Kiobel has broad potential implications for the future of international class actions in the U.S. courts.  The case is the second in the last three years to raise questions of extraterritorial application of U.S. federal law, along with the Morrison v. National Australia Bank, No. 08-1191, June 24, 2010, which limited the jurisdiction of the U.S. courts over certain international securities class actions.  To date, no federal appeals court has decided an ATS case based solely on an analysis of extraterritoriality, and the courts have assumed the extraterritorial reach of the law since it was resurrected from obscurity a few decades ago.  A ruling for the defendant in Kiobel could be a further sign of a trend closing the doors of the U.S. courts to international class actions and other international disputes.  If this occurs, expect to see additional developments in the area of collective multi-party procedure in other countries, as parties begin to seek redress elsewhere.

Oral argument in Kiobel is set for October 1, 2012.

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Ahoy, Maties!    In honour of Talk Like a Pirate Day, I’d lyke to present ye with a bit o’ pirate law trivia.  No, I’m not talking about software or media piracy.  I mean authentic buccaneers of the Blackbeard variety, aaaarrrrr.

Did you know that the Alien Tort Claims Act, which has been used successfully over the past few years to obtain remedies in U.S. courts for the victims of alleged human rights violations in other parts of the world, was originally intended to combat piracy?  ATCA is one of the nation’s oldest statutes, enacted in 1789 as part of the Judiciary Act to give the United States courts jurisdiction to provide a remedy for the victims of pillaging by pirates.  The law has since been used in class actions brought in U.S. courts against former foreign government leaders accused of torture, murder, and other human rights violations during their time in power. 

The possible remedies under ATCA do not appear to include requiring defendants to “walk the plank” or be “keelhauled,” but they do include the opportunity to obtain quite a bit of “booty.”  ATCA class actions led to multi-million dollar judgments in U.S. courts against the estate of former President of the Philippines, Ferdinand Marcos, and against former officials of the Bolivian government.  Even more recently, ATCA class actions have been filed against multinational corporations for their alleged complicity in governmental actions or policies that violated human rights.  A case against several U.S. companies for their alleged complicity in the South African government’s apartheid has been allowed to proceed under ATCA after the Second Circuit Court of Appeals ruling could not be reviewed by the Supreme Court, which lacked a quorum because of recusals necessitated by the financial interests of four Justices.

Some think that ATCA should be limited to the acts of piracy that the statute was originally enacted to combat.  This PBS article has an interesting chart showing arguments for and against an expansive interpretation of ATCA to encompass a wide range of alleged human rights violations.  For more on the history of ATCA as a Pirate Law, see this Time Magazine article.

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