United States: Alien Tort Case Developments: Fourth And Eleventh Circuits Apply Kiobel’s "Touch And Concern" Standard

Last Updated: August 1 2014
Article by Sarah A. Altschuller

In the last month, two federal appellate courts have issued decisions in cases filed against U.S.-based corporations pursuant to the Alien Tort Statute ("ATS"). Both courts applied the "touch and concern" standard established by the Supreme Court in its 2012 decision in Kiobel v. Royal Dutch Petroleum with one court finding that jurisdiction was proper and the other court finding that "there is no jurisdiction" because all relevant conduct took place outside the United States.

As previously discussed, in Kiobel, the Supreme Court held that the presumption against extraterritoriality applies to all cases filed pursuant to the ATS. This presumption may be overcome when "claims touch and concern the territory of the United States" with "sufficient force." The Supreme Court held that more than a "mere corporate presence" in the United States was necessary to displace the presumption.

The Fourth Circuit's Decision in Al Shimari v. CACI

In a decision issued in late June, the Fourth Circuit Court of Appeals held that the presumption against extraterritoriality did not apply to claims brought by Iraqi plaintiffs against a U.S. government contractor that provided certain interrogation-related services to the U.S. military in Iraq. The plaintiffs had filed suit under ATS alleging that they had been subject to torture and other mistreatment while held at Abu Ghraib prison.

The Fourth Circuit's decision represents the first time since the Supreme Court's decision that a federal appellate court has found that claims in an ATS case sufficiently "touch and concern" the United States so as to overcome the presumption against extraterritoriality. With this finding, the court held that the district court had erred in concluding that it lacked subject matter jurisdiction over the plaintiffs' ATS claims.

In its decision, the Fourth Circuit stated that "a fact-based analysis is required...to determine whether courts may exercise jurisdiction over certain ATS claims." The court observed that the Supreme Court had held that "claims" must touch and concern the United States, not the "alleged tortious conduct." Based on this observation, the court then stated that it must "consider a broader range of facts than the location where the plaintiffs actually sustained their injuries" including "the parties' identities and their relationship to the causes of action" in evaluating whether jurisdiction is appropriate.

Ultimately, in finding that the Al Shimari plaintiffs had pled sufficient facts to as to overcome the presumption, the court relied on the following factors concerning the defendant contractor, CACI Premier Technology, Inc.:

  • Contractor is a U.S. corporation;
  • The employees of contractor whose conduct is at issue in the case are U.S. citizens;
  • Contractor's contract was issued in the United States by the U.S. Department of Interior;
  • Contractor's employees were required to obtain security clearances from the U.S. Department of Defense; and
  • Plaintiffs alleged that managers of the contractor based in the United States approved, encouraged, and/or attempted to cover up the alleged misconduct in Iraq.

Notably, the Court also relied upon "the express intent of Congress, through the enactment of the Torture Victims Protection Act and 18 U.S.C. 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad."

The Eleventh Circuit's Decision in In re Chiquita Brands International, Inc.

In a decision issued in late July, the Eleventh Circuit held that jurisdiction was not proper in a ATS case brought by Colombian plaintiffs against Chiquita Brands International ("Chiquita") alleging that the company knew, or should have known, that its material support for the United Self-Defense Forces of Colombia ("AUC"), a paramilitary organization, would lead to the death or torture of their family members.

Notably, in March 2007, Chiquita admitted that it had provided payments to the AUC, stating that it had done so in order to ensure the protection of Chiquita employees and banana plantations in Colombia. At the time of its admission, the company agreed to pay a $25 million fine for providing funds to an organization on the United States' list of terrorist organizations and to cooperate in an investigation by the U.S. Department of Justice. Since the company's admission, more than 4,000 Colombian plaintiffs have filed suit against the company pursuant to the ATS and the Torture Victim Protection Act.

In contrast to the Fourth Circuit's fact-based analysis, the Eleventh Circuit observed that "our ultimate disposition is not dependent on specificity of fact." Noting that the defendants in Kiobel were not U.S. corporations and that Chiquita is U.S.-based, the court stated that "the distinction between the corporations does not lead us to any indication of a congressional intent to make the [ATS] apply to extraterritorial torts." After stating that all relevant conduct at issue in the case took place outside the United States, the court stated simply "[t]here is no jurisdiction."

The court noted that past decisions have found that extraterritorial torture falls within the category of claims violating international law that are properly heard pursuant to the ATS, citing both Filartiga v. Pena-Irala (2d Cir. 1980) and the Fourth Circuit's decision in Al Shimari. The court found, however, that "this is by no means a unanimous conclusion of the circuits", citing the D.C. Circuit's pre-Kiobel decision in Saleh v. Titan Corp. (D.C. Cir. 2010). Ultimately, the Court stated that

we reiterate that the ATS does not apply extraterritorially... There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.

Notably, the Eleventh Circuit's decision prompted a vigorous dissent from Judge Martin in which she stated that plaintiffs had alleged facts sufficient to overcome the presumption against extraterritoriality. Specifically, she cited the fact that Chiquita is headquartered and incorporated within the territory of the United States. She also observed that plaintiffs

allege that Chiquita participated in a campaign of torture and murder in Colombia by reviewing, approving, and concealing a scheme of payments and weapons shipments to Colombian terrorist organizations, all from within their corporate offices in the territory of the United States. (emphasis added)

In so stating, she found that "plaintiffs seek relief in a United States court for violations of international law committed by United States citizens while on United States soil. Certainly, these extraterritorial claims 'touch and concern the territory of the United States' with great force."

Judge Martin's reliance on an allegation that key decisions regarding corporate conduct outside the United States were made in the United States adopts similar reasoning to the Fourth Circuit's decision in Al Shimari. In citing Al Shimari, Judge Martin sought to distinguish the allegations at issue in In re Chiquita from a situation in which plaintiffs are seeking to hold "an American company vicariously liable for the unauthorized actions of its subsidiaries overseas", citing the Second Circuit's post-Kiobel decision in Balintulo v. Daimler AG (2d Cir. 2013) in which the court found that plaintiffs had not displaced the presumption against extraterritoriality.

In reviewing these opinions, it is clear that Judge Martin is correct in observing that "[t]he Kiobel opinion offers little assistance about what kinds of domestic connections would be necessary to overcome the presumption against extraterritoriality." It is striking that the majority in In re Chiquita did not address Judge Martin's emphasis on the issue of where key decisions were made regarding extraterritorial conduct. That said, looking ahead, it would not be surprising if future courts look to Judge Martin's dissent in trying to address the uncertainties left by the Kiobel opinion. While some hoped that Kiobel would resolve many of the key jurisdictional questions raised by ATS claims, it seems likely that there will be much more litigation to come before greater clarity emerges as to the appropriate parameters of these cases.

To view Foley Hoag's Corporate Social Responsibility Blog please click here

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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.

Disclaimer

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.

General

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