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Mondaq Business Briefing
October 10, 2011
United States: DC And Seventh Circuits Split From Second Circuit: Allow For
Under Alien Tort Statute
Originally published in Pratt's Journal of Bankruptcy Law
This article describes two recent decisions from appellate courts that allow for
under the Alien Tort
Statute. These decisions conflict with a Second Circuit decision, setting the stage for possible Supreme Court review.
In Kiobel v. Royal Dutch Petroleum Co., the Second Circuit held last year that the jurisdiction granted by the Alien Tort
does not extend to civil actions against corporations.
Two recent decisions from appellate courts out-
side the Second Circuit have reached the opposite conclusion, thus possibly setting up this issue for determination by
the Supreme Court.
On July 8, 2011, a panel of the District of Columbia Circuit ruled 2-1 in Doe VIII v. Exxon Mobil Corp.
that the juris-
diction granted by the ATS extends to corporations and other non-natural person entities. Three days later, on July 11,
2011, the Seventh Circuit similarly held, unanimously, in Flomo v. Firestone Nat. Rubber Co., LLC
that the ATS al-
as a matter of customary international law.
The immediate implication of the Exxon and Flomo decisions is that
defendants may be sued in the Seventh
and District of Columbia Circuits pursuant to the ATS. While Kiobel remains good law in the Second Circuit, the mag-
nitude of the Exxon and Flomo decisions, and their split from the Second Circuit on whether
available as a matter of customary international law under the ATS, make it likely that the Supreme Court will grant
certiorari regarding this issue in the near future.
The Exxon decision also concluded that the mens rea required for
aiding and abetting
under the ATS is a
knowledge standard. This interpretation is at odds with the Second Circuit's decision in Presbyterian Church of Sudan v.
Talisman, which held that
aiding and abetting
is available under the ATS, but only where mens rea meets the
Exxon thus makes the District of Columbia Circuit far more favorable to plaintiffs suing under the
ATS, unless and until the Supreme Court decides the culpability question and harmonizes the standard.
Exxon was filed in 2001 by plaintiffs from the Aceh province of Indonesia, against Exxon Mobil Corporation
("Exxon"). Exxon had operated a natural gas extraction facility in Aceh in 2000 - 2001. The Exxon security detail for
the Aceh facility was comprised of members of the Indonesian military. Plaintiffs alleged that Exxon aided and abetted
these military members in committing atrocities against Aceh residents, including "genocide, extra judicial killing, tor-
ture, crimes against humanity, sexual violence, and kidnapping.
.. as part of a systematic campaign of extermination of