United States: The Continued Viability Of The Alien Tort Claims Act And The Torture Victim Protection

The U.S. Court of Appeals for the Eleventh Circuit recently endorsed the notion that multinational corporations may be held liable for violations of the Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA). Although the action did not result in a finding against the employer, the decision made clear that multinational employers, and particularly those with operations in politically troubled areas, need to be aware that these claims are no longer a theoretical possibility, but a genuine source of potential liability.

The ATCA is a federal statute that provides federal court jurisdiction for claims by foreign nationals who allege violations of international law and wish to press their claims in American courts. The TVPA is an amendment to the ATCA passed in 1992 that expressly created causes of action for torture or extrajudicial killing.

The case before the Eleventh Circuit, Juan Aquas Romero v Drummond Co., Inc., No. 07-14090 (11th Cir.) ("Drummond"), has a long and interesting history, and was the very first ATCA case to proceed to trial.1 The plaintiffs alleged that Alabama-based mining company Drummond Company, Inc. ("Drummond") was complicit in the murders of three union leaders at a Drummond-owned coal mine in Colombia. After the plaintiffs survived a motion to dismiss, and later a motion for summary judgment, the parties went to trial in July 2007, to determine whether Drummond aided and abetted the murders by Colombian paramilitaries, allegedly in violation of the ATCA. After four hours of deliberation, the jury returned a verdict for Drummond as to all counts, and the parties appealed to the Eleventh Circuit on a variety of legal and evidentiary issues.

The ATCA and the TVPA

The distinction between the ATCA and the TVPA is essential to an understanding of the Drummond decision. The ATCA was enacted by the first Congress in _1789 as part of the Federal Judiciary Act, and provides original jurisdiction to the federal district courts for any civil action: (1) brought by an alien; (2) claiming damages sounding only in tort; and (3) resulting from a violation of international law.2 The ATCA was not utilized until 1980, when two Paraguayan nationals successfully sued a former Paraguayan official for damages under the ATCA arising from the torture and murder of their son in Paraguay.3 Since that time, the ATCA has been utilized with little success as a means of holding multinational corporations liable for alleged human rights abuses related to their international operations.

The TVPA, on the other hand, was enacted to supplement the ATCA by providing express causes of action for torture or extrajudicial killing committed by individuals acting under actual or apparent authority, or under "color of law." The Drummond court succinctly summed up the ATCA and TVPA's relationship as follows:

The two related statutes that pertain to this appeal perform complementary but distinct roles. The [ATCA] is jurisdictional and does not create an independent cause of action. [citations omitted]. In contrast, the [TVPA] provides a cause of action for torture and extrajudicial killing but does not grant jurisdiction. [citations omitted]. Federal courts are empowered to entertain complaints under the [TVPA] when either the [ATCA] or the federal question statute, 28 U.S.C. § 1331, provides jurisdiction.

Although the TVPA expressly created a private right of action for torture and extrajudicial killing, the statute appears to cover a much narrower set of potential claims than those available under the ATCA, due in large part to the U.S. Supreme Court's decision in Sosa v. Alvarez-Machain.4 In Sosa, the Court held that the ATCA, although jurisdictional in nature, provides for private actions for violations of international law. Although the Court cautioned that all claims brought under the ATCA must allege violations of international norms that are "specific, universal and obligatory," this warning has not stopped the plaintiffs' bar from attempting to expand the scope of actionable ATCA claims.5

Further, not only is the universe of potential claims available under the ATCA greater than those available under the TVPA, claims brought under the ATCA need not involve state action. By contrast, the TVPA has an express state-action requirement. Thus, acts such as genocide, war crimes, slavery, and forced labor – the most egregious violations of internationally held norms – may succeed under the ATCA even in the absence of state action.

As discussed below, the Drummond court assessed a variety of issues involving both the TVPA and ATCA, shedding light on both corporate liability and the complicated evidentiary issues involved in this context.

The Drummond Appeal

The Legal Issues

In its cross-appeal, Drummond made several arguments that, although foreclosed by Eleventh Circuit precedent, were made with the express intention of preserving the issues for Supreme Court review.

Drummond first argued that the TVPA and the ATCA do not provide a cause of action against corporate defendants. Although recognizing the split in the Circuits on the issue of TVPA liability for corporate defendants, the court concluded that it was bound by Eleventh Circuit precedent supporting such liability. Drummond also argued that the TVPA and ATCA do not provide for "aiding and abetting" liability, and finally, that the TVPA provides the sole basis upon which to bring claims for torture or extrajudicial killing – the two claims expressly contained within the TVPA. Again, the Drummond court quickly disposed of these arguments as having been expressly rejected by Eleventh Circuit precedent.

Among other issues, the plaintiffs appealed the district court's ruling that they had failed to prove the existence of state action to support their TVPA claims for extrajudicial killing. In rejecting plaintiffs' argument, the Drummond court explained that state action under the TVPA must involve "a symbiotic relationship between a private actor and the government that involves the torture or killing alleged in the complaint," and added that this relationship may be established through evidence of the active participation of even a single government official. The court held that the state action evidence presented by plaintiffs either did not directly involve the murders at issue, or was otherwise inadmissible.

Evidentiary Issues

Plaintiffs also appealed a host of decisions to exclude the testimony of five witnesses whose testimony they claimed constituted the proverbial "smoking gun" establishing that Drummond had hired paramilitary forces to murder the union leaders. The district court's reasoning for excluding this testimony ranged from the plaintiffs' failure to disclose the witnesses until, in one case, the last day of trial, to refusing a continuance for plaintiffs to complete the letters rogatory process to secure the testimony of a Columbian national. The record suggests strongly that the district court acted reasonably in refusing to admit the testimony of these five witnesses, mostly because it appears the plaintiffs were provided with ample opportunity to present evidence that appeared at best unreliable and at worst inadmissible or irretrievable. Nonetheless, it is very possible that the result could have been different had these individuals testified.

Looking Forward

The significance of the evidentiary issues in this case cannot be understated. First, it appears that the result may have been different had plaintiffs been able to properly marshal their witnesses and evidence. Second, the case highlights the sometimes inherent logistical difficulties of gathering evidence to support ATCA or TVPA claims. The Drummond case is a lesson in litigating a case where the majority of significant evidence and key witnesses exist in places where the rule of law is weak or political and/or ethnic conflict is the norm, and formidable barriers in language and culture exist. Obtaining discovery in these circumstances, often from reluctant or uncooperative witnesses, is difficult at best.

The plaintiffs' bar will undoubtedly learn from this decision, and tailor its strategies in future cases accordingly. The defense bar will use the decision to take plaintiffs to task for any evidentiary irregularities in future ATCA or TVPA cases. Litigating these cases is fundamentally difficult, and with this being the first ATCA case to go to trial, the Drummond decision will serve to educate counsel on both sides in future cases.

Moving beyond the evidentiary issues, the Drummond case should be seen as an indication of the ATCA and TVPA's continued vitality as sources of liability for multinational corporations. Not only did the court endorse the notion that the TVPA applies to corporate defendants, the court held that plaintiffs can bring claims for extrajudicial killing or torture under both the TVPA and ATCA, thus creating the potential that such claims could proceed in the absence of state action under the ATCA. Even more, the Drummond court held that "aiding and abetting" liability – the indirect liability that is often attributed to corporate defendants in this context – is cognizable under both the ATCA and TVPA. Although these conclusions are hardly indisputable, and may be tested by the Supreme Court in the near future, the Drummond decision signifies that corporate defendants with foreign operations must continue to be vigilant about the entities and/or regimes with which they associate.


1. For more information on the issues raised and significance of the Drummond trial on ATCA jurisprudence, see the authors' article on the topic: Corporate Liability for Human Rights Abuses Goes on Trial.

2. 28 U.S.C. § 1350 (2000).

3. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

4. 542 U.S. 692 (2004).

5. Id. at 732.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions