The ExxonMobil case, originally filed in 2001, has a complex
history. In 2005, the District Court for the District of Columbia
dismissed plaintiffs' claims under the ATS and the Torture
Victim Protection Act, and held that aiding and abetting was not a
proper theory of liability under the ATS. Plaintiffs were
subsequently allowed to amend their original complaint and proceed
under D.C. tort law. In 2009, the District Court dismissed
plaintiffs' remaining claims in an unusual decision relying on
the "prudential standing" doctrine. Plaintiffs appealed
the dismissal, and ExxonMobil raised the question of corporate
liability on cross-appeal.
In reinstating plaintiffs' claims, the D.C. Circuit stated
"neither the text, history, nor purpose of the ATS supports
corporate immunity for torts based on heinous conduct allegedly
committed by its agents in violation of the law of nations."
The Court stated that the Kiobel decision "overlooks
the key distinction between norms of conduct and remedies" and
found that while international law provides the norms of conduct
applicable in ATS cases, citing to Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), federal common law
governs the available remedies.
The Court also agreed with plaintiffs that aiding and abetting
is a proper theory of liability under the ATS. Notably, the Court
found that the proper standard for aiding and abetting liability is
"knowing assistance that has a substantial effect on the
commission of the human rights violation." In stating that a
"knowledge" standard is proper for aiding and abetting
claims, the Court disagreed with the Second Circuit's holding
in Presbyterian Church of Sudan v. Talisman,
582 F.3d 244 (2d Cir. 2009). In that case, the Second
Circuit held that defendants may only be found liable for
violations of customary international law under an aiding and
abetting theory of liability if they provide substantial assistance
to the primary violator with the intent of furthering the human
In its decision, the D.C. Circuit observed that the Eleventh
Circuit has also upheld corporate liability for ATS claims, citing
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir.
2009), Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th
Cir. 2008), and Aldana v. Del Monte Fresh Produce N.A.,
416 F.3d 1242 (11th Cir. 2005). Unlike the D.C. Circuit's
decision, the Eleventh Circuit cases do not include much analysis
of the question of whether corporations are proper defendants. The
D.C. Circuit's opinion establishes a clear split with the
Second Circuit's analysis in Kiobel. In June,
plaintiffs in the Kiobel case have filed a petition for a writ of certiorari with the Supreme
Court. Some commentators believe that the
clear split between the Circuits may lead the Supreme Court to take
up the question of corporate liability under the ATS, an issue
which was left unanswered in Sosa.
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