Doe I, et al. v. Nestle, USA, Inc., et al.(I)

Ninth Circuit refuses to reconsider Alien Tort Statute ruling, which is inconsistent with U.S. Supreme Court Kiobel decision

U.S. Chamber's Position: 

In its brief, the U.S. Chamber urged the Ninth Circuit to hold that the Alien Tort Statute (ATS) does not permit the exercise of jurisdiction over claims against corporations based on their commercial relationships with foreign companies. Although the Chamber took no position on the factual allegations in this case, the Chamber's brief made it clear that the Chamber unequivocally condemns forced labor practices. However, the question at issue in this case is not whether such wrongs occurred but rather it is whether private plaintiffs can stretch a U.S. statute beyond its explicit and intended scope. According to the Chamber's amicus brief, the plaintiffs' legal theory effectively makes United States companies liable for their mere commercial relationships with foreign partners, which discourages essential investment in developing countries. The Chamber also argued that such liability places United States companies at a competitive disadvantage, and expansive assertions of jurisdiction under the Alien Tort Statute discourages foreign investment in the United States. Moreover, allowing ATS suits directed at corporations based on their lawful commercial activities overseas ensnares them in costly and damaging attacks on their reputations, and can expose U.S. companies to abusive, burdensome and diplomatically sensitive discovery.

Peter B. Rutledge of the University of Georgia represents the U.S. Chamber as co-counsel to the Chamber Litigation Center.

Case Outcome: 

The panel affirmed the decision holding that there is no categorical rule of corporate immunity or liability. Rather, for each ATS claim asserted by the plaintiffs, a court should look to international law and determine whether corporations are subject to the norms underlying that claim. The panel held that determining when a corporation can be held liable requires a court to apply customary international law to determine the nature and scope of the norm underlying the plaintiffs’ claim, and domestic tort law to determine whether recovery from the corporation is permissible.

Previous Stages of Lititgation

The case was held pending Kiobel, et al. v. Royal Dutch Petroleum. The parties filed supplemental briefs in fall 2013 in light of the Supreme Court's decision in Kiobel.

On December 19, 2013 the Ninth Circuit reversed dismissal of this case and granted the plaintiffs leave to file an amended complaint. Defendants' petition for rehearing was denied 5/7/2015.

Procedural History: 

U.S. Chamber amicus brief filed 10/7/2011.

Argued 12/02/13. Dismissal reversed 12/19/2013.

Petition for rehearing filed 1/9/2014.U.S. Chamber amicus brief filed 1/21/2014.

U.S. Chamber amicus brief filed 1/21/2014.

Revised panel opinion issued 9/4/2014. 

U.S. Chamber amicus brief filed 10/27/2014 in support of petition for rehearing and rehearing en banc. Order denying panel rehearing and petition for rehearing en banc issued 5/7/2015.