Sexual Minorities Uganda v. Lively
960 F. Supp. 2d 304
D. Mass.2013Background
- Sexual Minorities Uganda seeks ATS and state-law relief for persecution of LGBTI persons in Uganda by Defendant Lively and Ugandan collaborators.
- Lively, a U.S. citizen in Massachusetts, allegedly aided and coordinated a decade-long campaign repressing LGBTI rights in Uganda.
- Plaintiff asserts five counts: three ATS-based crimes against humanity and two Massachusetts state-law claims.
- Defendant moves to dismiss on ATS jurisdiction, extraterritoriality under Kiobel, standing, First Amendment, and state-law grounds.
- Court denies motions to dismiss after addressing ATS jurisdiction, extraterritoriality, standing, First Amendment, and choice-of-law issues.
- Court reserves some issues for discovery and possible summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS jurisdiction lies for a crime against humanity claim. | Lively aided a pervasive persecution; crime against humanity under customary international law. | Norm not sufficiently definite or historically rooted for ATS jurisdiction. | Yes; ATS jurisdiction exists for aiding and abetting a crime against humanity. |
| Whether Kiobel extraterritoriality limits apply given domestic conduct. | Domestic conduct provides a sufficient U.S. nexus. | Kiobel presumption defeats extraterritorial ATS claims for conduct abroad. | Kiobel does not bar in this context; substantial U.S. conduct supports ATS claim. |
| Whether Plaintiff has standing to sue as an organization and to represent members. | Organizational and associational standing established for injunctive relief. | Standing lacks due to injury and causation specifics. | Standing adequately pled at this stage. |
| Whether First Amendment protects Defendant from ATS-related liability for alleged wrongdoing. | First Amendment does not shield actions that amount to persecution. | Speech-related conduct could be protected; actions cross into persecution. | Amended Complaint pleads conduct outside First Amendment protection. |
| Whether Massachusetts law governs Counts IV–V and related statute-of-limitations issues. | Massachusetts choice-of-law applies; Ugandan law may be unsuitable. | Ugandan law should govern; limitations apply. | Massachusetts law applies; limitations and claimed-state-law claims require development. |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (establishes two-step ATS viability and definite international norms)
- Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (U.S. 2013) (presumption against extraterritoriality; domestic conduct suffices here)
- Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (aiding and abetting crimes against humanity under ATS noted by circuit court)
- Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (aiding and abetting liability under international law recognized)
- Kad ic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (crimes against humanity under customary international law actionable under ATS)