Aliens Among Us: Factors to Determine Whether Corporations Should Face Prosecution in U.S. Courts for their Actions Overseas

• Author: Dustin Cooper
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 513-544

Aliens Among Us: Factors to Determine Whether Corporations Should Face Prosecution in U.S. Courts for their Actions Overseas TABLE OF CONTENTS Introduction .................................................................................. 514 I. History and Scope of the Alien Tort Statute ................................ 517 A. Origins of the ATS ................................................................. 517 B. Scope of the ATS ................................................................... 518 1. Jurisdictional Reach of the ATS According to Sosa v. Alvarez-Machain ................................................. 519 2. Contemporary Crimes Recognized as Violating International Norms ........................................................ 520 3. The Role of Custom ........................................................ 521 II. Corporate Liability Under the Alien Tort Statute ........................ 522 A. Tensions Between the Circuits Prior to the Second Circuit’s Decision in Kiobel .................................................. 522 B. The Second Circuit’s Clear Answer ...................................... 524 1. Facts and Procedural History .......................................... 524 2. Corporate Liability .......................................................... 525 3. Subsequent Decisions ...................................................... 525 C. The Supreme Court’s Decision in Kiobel .............................. 527 1. Presumption Against Extraterritoriality .......................... 527 2. Corporate Liability .......................................................... 528 D. Confusion After the Supreme Court’s Decision in Kiobel .... 529 III. Proposed Factors Courts Should Use to Determine the Meaning of “Touch and Concern” ............................................... 530 A. Citizenship of the Defendant ................................................. 531 B. Location of the Conduct ........................................................ 534 1. Specific Personal Jurisdiction ......................................... 535 2. Sufficient Conduct Under the ATS ................................. 536 C. The Nature of the Alleged Violation ..................................... 539 Conclusion .................................................................................... 543 514 LOUISIANA LAW REVIEW [Vol. 77 INTRODUCTION In the spring of 1960, thousands of people gathered outside a police station in the town of Sharpeville, South Africa. 1 The majority of individuals in the crowd were protesting the government’s mandate that all black South Africans carry a “passbook,” a government issued form of identification. 2 According to the police reports, protestors began to throw stones at officers in an attempt to force their way into the police station. 3 The police opened fire on the protestors in response, and when the firing ceased approximately two minutes later, 69 people were dead. 4 Instances such as the massacre in Sharpeville were not uncommon in apartheid 5 South Africa. 6 In 2002, a number of apartheid victims brought suit in the United States District Court for the Southern District of New York, alleging both direct and secondary tort liability for violations of international law. 7 Interestingly, the claimants did not seek to hold the South African government, policemen, or other perpetrators of violence liable. 8 Instead, the claimants sued, among others, International Business Machines Corporation (“IBM”) and Ford Motor Company—two U.S. corporations conducting business in South Africa. 9 The United States Second Circuit Copyright 2016, by DUSTIN COOPER. 1. See Sharpeville Massacre, 21 March 1960 , S. AFR. HIST. ONLINE, http://www.sahistory.org.za/topic/sharpeville-massacre-21-march-1960 [https://perma.cc/5PBJ-5C3K] (last updated Jun. 21, 2016). 2. Id. 3. Id. 4. Id. 5. In the late 1940s, the South African Government instituted a separation of the races, beginning with classification and anti-miscegenation laws. These actions proceeded to geographic segregation. Subsequently, the Bantu Authorities Act of 1951 created “homelands.” Black South Africans were forcibly removed to the homelands the Act created and were then stripped of their South African citizenship. This system of separation is known as “apartheid.” See generally South Africa Profile – Timeline , BBC, http://www.bbc.com/news/world-africa-14094918 [https://perma.cc/4XQD-YNS9] (last updated Jun. 25, 2015). 6. See States of Emergency in South Africa: The 1960s and 1980s , S. AFR. HIST. ONLINE, http://www.sahistory.org.za/topic/state-emergency-south-africa-1960-and-1980s [https://perma.cc/66RD-PDMT] (last updated Oct. 10, 2013). 7. See In re S. Afr. Apartheid Litig., 617 F. Supp. 2d 228, 243 (S.D.N.Y. 2009). 8. See id. 9. Id . The plaintiffs alleged that IBM trained South African government employees to use IBM hardware and software to create identity materials, such as 2016] COMMENT 515 Court of Appeals heard the plaintiffs’ plea for relief almost 15 years after suit was originally filed. 10 The court was tasked with determining whether United States federal courts have jurisdiction over international matters under 28 U.S.C. § 1350, commonly referred to as the Alien Tort Statute (“ATS”). 11 The ATS is a jurisdictional provision, providing 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.” 12 The First Congress in 1789 enacted this statute, not long after the ratification of the Constitution, but the ATS has largely lain dormant for almost two centuries. 13 Beginning in the 1980s, however, the Supreme Court breathed new life into the ATS, 14 eventually waking the proverbial sleeping giant. Courts have subsequently used this 33-word, one-sentence statute to hold individuals and corporations liable for their actions overseas that concern issues such as the apartheid in South Africa, 15 child slavery in the Ivory Coast, 16 and the torture of individuals in Iraq. 17 The implications of the statute as applied to international business activities were likely unimaginable to the members of the First Congress who enacted the statute in the 18th century. Courts and corporations need clear guidance for when such matters can be adjudicated in the United States. U.S. corporations are increasingly conducting business overseas, 18 which could mean that U.S. corporate activity affects more non-citizens and that the ATS will be increasingly utilized as a form of redress for foreign nationals. This potential increase those that were the subject of protest in Sharpeville. The allegations against Ford were that it assisted the South African government in obtaining vehicles that were used to aid in the persecution of the plaintiffs. See id . 10. See Balintulo v. Ford Motor Co., 796 F.3d 160 (2d Cir. 2015). 11. 28 U.S.C. § 1350 (2012). 12. Id. 13. 14A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE JURISDICTION AND RELATED MATTERS § 3661.1 (4th ed. 2016). 14. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980). 15. See, e.g. , Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013). 16. See, e.g. , Doe I v. Nestlé USA, Inc., 766 F.3d 1013 (9th Cir. 2014). 17. See, e.g. , Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th Cir. 2014). 18. See U.S. Companies Using International Expansion to Drive Growth and Profitability , BUS. WIRE (Aug. 13, 2013, 11:42 AM), http://www.businesswire.com /news/home/20130813006035/en/U.S.-Companies-International-Expansion-Drive -Growth-Profitability#.Vg1DpXpViko [https://perma.cc/AWN4-8M6P] (stating that in a recent survey of 161 company executives, two-thirds expect international markets to be among their company’s top priorities over the next three years). 516 LOUISIANA LAW REVIEW [Vol. 77 in ATS litigation magnifies the need for the courts to have a uniform and identified approach for when the ATS can be used as a means for jurisdiction. Not only do potential plaintiffs need to be informed about whether and when they may seek the benefit of U.S. courts as a venue for redress, but potential defendants also need to be informed about when they might be forced to defend against liability actions in the United States. Non-citizen plaintiffs might have several reasons for bringing a claim in federal district court under the ATS as opposed to another tribunal. Foreign claimants might view the federal courts as being more fair than the courts in their home countries because of the independent judiciary and favorable procedural rules found in the U.S. 19 Furthermore, access to any court in a particular claimant’s home country might be extremely difficult. 20 Additionally, ATS defendant corporations, without clear guidelines as to when they might face liability for actions taken abroad, are forced to conduct their business with uncertainty. Unfortunately, neither the United States Congress nor the Supreme Court has given definitive direction as to when a claim is justiciable under the ATS, and more importantly, as to when a corporation can be sued in the U.S. for actions committed in a foreign nation. In a recent landmark case, Kiobel v. Royal Dutch Petroleum Co. , the Supreme Court held that the federal district courts do not have jurisdiction to hear claims against corporations for actions occurring wholly outside the United States. 21 Nevertheless, the Court issued a perplexing statement in dicta: “[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” 22 Although indirectly stated, this language suggests that actions that “touch and concern” the United States with sufficient force are justiciable before the federal courts. However, the 19. See, e.g. , Joseph T. McLaughlin & Justin H. Bell, New Limitations on the...