Chowdhury v. Worldtel Bangladesh Holding, Ltd.
746 F.3d 42
2d Cir.2014Background
- Chowdhury, managing director of WorldTel Bangladesh Ltd. and officer/stockholder of WCII, sues Khan and WBH alleging torture in Bangladesh.
- WBL, controlled by Chowdhury and Khan, had a 25-year telecom license in Bangladesh; in 2005 new shares/debt shifted control away from Khan's WBH.
- Khan allegedly caused torture by Bangladeshi security forces (RAB) during detentions in 2007 to coerce financial concessions and transfer of business interests.
- Chowdhury was confined by the DGFI for 53 days and later detained by the RAB from Nov 5–12, 2007, during which he alleges electric shocks and other torture at Khan’s direction.
- Chowdhury testified RAB torture was to extract control of WBL; Khan denied involvement and contested meetings with Chowdhury’s parents; trial evidence supported agency liability.
- District Court granted judgment for Chowdhury on ATS and TVPA claims; on appeal, Kiobel-generated extraterritoriality issues were raised and reviewed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ATS claims and extraterritoriality | ATS claims touch the territory for relief. | Kiobel bars extraterritorial ATS claims when conduct occurs abroad. | ATS claims barred; Kiobel applies; reversed for ATS portion. |
| General verdict rule as to TVPA | General verdict supports TVPA liability if supported. | If ATS invalid, entire verdict may be vacated. | General verdict did not require vacating TVPA judgment; TVPA findings supported. |
| TVPA extraterritoriality and torture standard | TVPA applies extraterritorially; torture definition satisfied by electric shocks. | Conduct outside U.S. territory and not torture under TVPA; improper agency theory. | TVPA applies extraterritorially; shocks constitute torture; agency liability permissible. |
| Agency liability under TVPA | Khan can be liable for acts of agents under color of foreign law. | Agency theories are improper or unsupported. | Agency theories valid; Khan liable for supervising/ordering; Mohamad precedent supports agency liability. |
| Admission of out-of-court statements | RAB agents’ statements admissible as co-conspirators/agents. | Statements are hearsay and prejudicial. | Admission proper under Rule 801(d)(2) as statements of an agent/co-conspirator. |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (presumption against extraterritoriality applies to ATS; conduct abroad barred.)
- Sosa v. Alvarez-Main, 542 U.S. 692 (2004) (ATS creates jurisdictional framework for codified international-law norms.)
- Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869 (2010) (presumption against extraterritoriality analyzed in context of other statutes.)
- Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) (ATS cannot be brought for violations abroad under Kiobel framework.)
- Kad ic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (agency principles and color-of-law concepts in TVPA context.)
- Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012) (agency-based liability contemplated for non-personally executed torture.)
- Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009) (agency liability under TVPA contexts.)