In re South African Apartheid Litigation
15 F. Supp. 3d 454
S.D.N.Y.2014Background
- AT issue involves apartheid-era violence in South Africa and plaintiffs sue under the Alien Tort Statute (ATS) for violations of the law of nations.
- Ford and IBM are the remaining American defendants alleged to have aided and abetted the South African regime by supplying military vehicles and computers.
- Second Circuit context: Kiobel II held the ATS presumption against extraterritoriality applies to claims, not addressing corporate liability.
- Kiobel I held no corporate liability under the ATS, but Kiobel II did not directly overrule that holding on corporate liability beyond extraterritoriality.
- District court proceedings evolved through mandamus petitions and remands; the court now addresses whether corporations may be liable under the ATS in light of Kiobel II and subsequent decisions.
- Court grants motion finding corporations may be held liable under the ATS and allows amendment to plead facts touching and concerning the United States with sufficient force.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether corporations can be liable under the ATS. | Plaintiffs argue Kiobel II implicitly opens corporate liability. | Defendants contend Kiobel I remains binding and bars corporate liability. | Corporate liability under the ATS is open and may be found. |
| Whether Kiobel II undermines Kiobel I on corporate liability. | Kiobel II suggests corporate liability may exist when extraterritoriality is overcome. | Kiobel II did not decide corporate liability and left Kiobel I intact on that issue. | Kiobel II undermines Kiobel I’s blanket bar and opens the question. |
| What standard governs overcoming the presumption against extraterritoriality for ATS claims against corporations. | Overcoming presumption requires sufficient domestic touch/US connection. | Only strong, limited connections may suffice; corporate presence alone is insufficient. | Presumption is overcome under a stringent, fact-intensive standard. |
| What governing law applies to liability (substantive norm vs. method of enforcement) for corporations under the ATS. | Corporate liability is a valid private tort remedy under federal common law. | Liability should be determined by customary international law or state tort analogies. | Federal common law governs remedies; corporations can be liable for ATS torts. |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (the ATS does not provide subject-matter jurisdiction over corporations (Kiobel I))
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (Supreme Court 2013) (Kiobel II; presumption against extraterritoriality applies to ATS claims)
- Daimler AG v. Bauman, 134 S. Ct. 746 (S. Ct. 2014) (overseas contacts insufficient for general jurisdiction; corporate liability remains open under ATS)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (defines definite and universal international norms necessary for ATS actions)
- Doe I v. Nestle U.S.A., Inc., 732 F.3d 161 (2d Cir. 2013) (corporate liability considerations in ATS context (Nestlé I))
- Exxon Mobil Corp. v. different plaintiff, 654 F.3d 47 (D.C. Cir. 2011) (discusses limits of ATS and Bhopal-like considerations (Exxon))