Supreme Court Declines Review of Corporate Liability Under the Alien Tort Statute
1. Whether a defendant is subject to suit under the ATS for aiding and abetting another person’s alleged violation of the law of nations based on allegations that the defendant intended to pursue a legitimate business objective while knowing (but not intending) that the objective could be advanced by the other person’s violation of international law.
2. Whether the “focus” test of Morrison v. National Australian Bank, Ltd., 561 U.S. 247, 248 (2010), governs whether a proposed application of the ATS would be impermissibly extraterritorial under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
3. Whether there is a well-defined international-law consensus that corporations are subject to liability for violations of the law of nations.
In its brief, the U.S. Chamber encouraged the Supreme Court to resolve several circuit splits regarding the scope of corporate liability under the Alien Tort Statute (ATS). The brief argued that the Ninth Circuit erred in watering down the mens rea standard required to state an ATS aiding and abetting claim (to the extent such a claim exists), misapplied the standard for determining extraterritorial application of the ATS under Kiobel v. Royal Dutch Petroleum, and improperly held corporations may be subject to liability under the ATS for violations of the law of nations.
When combined, the brief argued, these errors permit ATS lawsuits to proceed against companies for allegedly tortious acts committed outside the United States by foreign governments or persons with whom the company does business, simply because the company intended to turn a profit. That result would make the Ninth Circuit a magnet for ever-more-creative ATS claims and invite diplomatic friction with other nations.
The petition for writ of certiorari was denied.