United States: ATS Case Developments Post-Kiobel: Interpreting the "Touch and Concern" Standard

Last Updated: September 21 2013
Article by Elizabeth Holland

The past few months have seen a few interesting developments in cases in which Alien Tort Statute ("ATS") claims factor prominently. This judicial activity, much of which focuses on the significance of the presumption against extraterritoriality as applied to the ATS, is illustrative of some of the key questions that will inevitably arise as courts work to interpret and apply the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum, Co.

In Kiobel,  the Supreme Court considered "whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law," and ultimately held (relying significantly on Morrison v. National Australia Bank Ltd.) that the presumption against extraterritoriality applies to the ATS.  Some uncertainty has resulted, however.  First, the ATS is described as a "jurisdictional statute," but the presumption articulated in Morrison and applied to the ATS in Kiobel appears to apply to a different type of statute — that regulating conduct, not jurisdiction (for more discussion on this, see here).  Second, the Court in Kiobel, once it established that the presumption against extraterritoriality applies to the ATS, added to the last paragraph of the decision the statement that

[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.

What "touch and concern" and "sufficient force" may be such that the presumption is displaced is unclear.

In May, the U.S. District Court for the Eastern District of Virginia dismissed plaintiffs' claims in Al Shimari, et al. v. CACI, International.  The court held that in accordance with the Supreme Court's decision in Kiobel,  plaintiffs' claims under the ATS were barred by the presumption against extraterritorial application of the statute.   The court declined to adopt plaintiffs' argument, described as "permit[ting] displacement of the presumption against extraterritoriality by judicial decision rather than legislative act."  Instead, the court applied stringently the presumption against extraterritoriality.  The court, in fact, made note of the confusion that has resulted from the "touch and concern" language stating "it is unclear whether and to what extent the 'touch and concern' analysis as explained in Morrison should be applied to the ATS, a jurisdictional statute with a potentially unlimited cope in a manner that would not eviscerate the presumption."

Also in May, a magistrate judge of the U.S. District Court for the District of Columbia held that the court had jurisdiction under the ATS to hear plaintiffs' claims.  In Mwani, et al. v. Bin Laden and Al Qaeda, the judge considered whether the claims in the case satisfied the "touch and concern" standard such that the presumption against extraterritoriality was displaced.  The court noted that the events at issue (the attack on the U.S. Embassy in Nairobi in 1998) "were directed at the United States government, with the intention of harming this country and its citizens."  The court also noted evidence that the "attackers were involved in an ongoing conspiracy to attack the United States, and overt acts in furtherance of that conspiracy took place within the United States."  Though the magistrate judge found that the circumstances in the case displaced the presumption due to their relation to the United States, he nonetheless directed plaintiffs to appeal the issue to the D.C. Court of Appeals.  Plaintiffs' response to an order to show cause for the appeal is currently before the Court of Appeals.

In August, the Second Circuit Court of Appeals, in hearing a petition for a writ of mandamus, held that the claims of the plaintiffs in Balintulo, et al. v. Daimler, et al. were barred by Kiobel because the violations alleged were solely on conduct that occurred abroad.  The court stated that because the causes of action asserted by plaintiffs against Daimler, Ford and IBM (stemming from their engagement with the apartheid government in South Africa) were not based on conduct that occurred in the United States, they could not properly be brought under the ATS.  The court described the argument of the plaintiffs this way:

Reaching a conclusion similar to that of Justice Breyer and the minority of the Supreme Court in Kiobel, the plaintiffs argue that whether the relevant conduct occurred abroad is simply one prong of a multi-factor test, and the ATS still reaches extraterritorial conduct when the defendant is an American national.

The court disagreed with plaintiffs' argument, stating

The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The court noted, in a footnote, that its reliance on the location of the conduct was in line with the binding precedent of Kiobel, stating that

[N]othing in the Court's reasoning in Kiobel suggests that the rule of law it applied somehow depends on a defendant's citizenship.

The court did not dig into the "touch and concern" language, as it noted that none of the relevant conduct occurred within the United States, thus suggesting it was a clear case of the presumption against extraterritoriality serving as a bar.

Also in August, the U.S. District Court for the District of Massachusetts recently allowed an ATS case to go forward where the plaintiff alleged that a U.S. citizen (residing in Massachusetts), along with a number of other individuals, took actions in both the United States and Uganda to create "an atmosphere of harsh and frightening repression against LGBTI people in Uganda."  Sexual Minorities Uganda v. Lively.  As with the Second Circuit, the District Court looked to the location in which the actions in question took place, noting that

[A]n exercise of jurisdiction under the ATS over claims against an American citizen who has allegedly violated the law of nations in large part through actions committed within this country fits comfortably within the limits described by Kiobel.

Thus, notwithstanding that some of the actions at issue took place in Uganda, the court concluded that enough of the relevant conduct took place in the United States (over a period of years) such that the "touch and concern" standard was satisfied.

Again in August, the U.S. District Court for the Eastern District of New York issued a very succinct order in Jesner et al v. Arab Bank, PLC (no link available) granting defendant's motion to dismiss plaintiffs' claims under the ATS.  In granting defendant's motion the court noted that the law of the Second Circuit prohibits plaintiffs from bringing claims against corporations under the ATS.  [Though this issue was originally briefed and argued, the Supreme Court did not address directly this question in Kiobel v. Royal Dutch Petroleum Co.]  Interestingly, the court did not raise the question as to whether a U.S. federal court may exercise jurisdiction over claims based on extraterritorial activity.

In Jesner, plaintiff's amended complaint described activity undertaken by defendant Arab Bank in the Middle East.  The bank is headquartered in Amman, Jordan and the actions that served as the basis for the claim (e.g., distributing financial services in the form of rewards to families of suicide bombers) took place in the Middle East.  The order on the docket provides no background as to whether the court even considered the "touch and concern" standard articulated in Kiobel.  It would be interesting to see how a court in a district that has recognized corporate liability under the ATS would have assessed the motion.

As courts consider claims under the ATS it will be important to watch whether, and how, the courts apply the "touch and concern" standard such that the presumption against extraterritoriality is overcome.  Based on the language of Kiobel ("where the claims touch and concern the territory of the United States") it appears that it is the location of the conduct in question, rather than the legal personality and/or citizenship of an entity that would be determinative.

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