*1 268 parties’ law defines the
Massachusetts mortgage under the obligations CO., ROYAL DUTCH PETROLEUM of the limitations (including the duration Company Transport Trading Shell 108(c) Bankruptcy period), section PLC, Defendants-Appellees-Cross- directly enlargement to the speaks Code Appellants, periods. See Jinks v. state limitations 456, 1, 461 & n. Cnty., Richland 538 U.S. Development Company Shell Petroleum (2003). 1667, L.Ed.2d 123 S.Ct. 631 Ltd., Nigeria, Defendant. 108(c) here. Accordingly, section controls 06-4800-cv, Docket Nos. 06-4876-cv. go further. that 11 need no We hold We 108(c) § period tolls the limitations U.S.C. Appeals, United Court of States Mort- set the Massachusetts Obsolete Second Circuit. Statute, enlarging time gages thereby bring judicial which LBM can within Submitted: Oct. 2010. until after foreclosure action the termi- expiration stay.2 nation or of the automatic Feb. Decided: inexorably It follows district court LBM’s ruling mortgage not err
did
remains force.
Affirmed. Hoffman,
Paul L. DeSimone Schonbrun Venice, Hoffman, LLP, Seplow Harris & D’Avino, (Carey Berger CA R. & Mon- brief), P.C., PA, tague, Philadelphia, on Plaintiffs-Appellants-Cross-Appellees. for individually KIOBEL, on be Esther Millson, (Rory Rowan D. Wilson O. husband, half of her Dr. Barinem late brief), Rafferty, on Thomas G. Cra- Kiobel, Bishop Augustine Numene vath, York, LLP, & Moore Swaine New John-Miller, Wiwa, Baridorn Charles NY, Defendants-Appellees-Cross-Ap- Pyakene Nwidor, Israel Kendricks pellants. Anthony B. Nwikpo, Dorle Kote-Wi tah, Wifa, Kunenu, B. Dumle J. Victor JACOBS, Judge, Before: Chief LEVAL Legbara Magnus Ikari, Tony Benson CABRANES, Judges. Circuit Nwinee, Kpobari Idigima, Pius Tusi ma, individually on behalf of his father, Tusima,
late Plain Chief in a Clemente JACOBS concurs tiffs-Appellants-Cross-Appellees, separate opinion. long expiration stay We take no view as to how LBM will notice” of of automatic unless have, stay, longer), lifting period after itself is with In re automatic limitations Morton, judicial (holding at section commence enforcement action. 108(c) 108(c) Compare (extending § time which credi- U.S.C. credi- also extends within period). right days "30 tor limitations tor's to enforce until after renew
269 Judge customary CABRANES concurs international law is enforced in opinion. our separate courts. That proposition can be tested. The Judge separate LEVAL dissents pirate is enemy the of all mankind and
opinion. offends international norms that are uni- among countries; versal civilized so the ORDER United States should have no trouble A petition panel rehearing having for achieving pirate. extradition of a But if by Plaintiffs-Appellants- been made remedy the country this capital entails Cross-Appellees, petition hereby is punishment, one would soon see that DENIED. other nations have a lively interest processes and remedies afforded un- JACOBS, DENNIS Judge, Chief law, der United States an apart interest concurring panel in the denial of from the bare classification of piracy as rehearing: violative of a norm customary interna- I panel concur the denial of rehearing, See, tional law. e.g., Soering v. United following reasons. Having sub- Kingdom, (ser.A) 161 Eur. Ct. H.R. 8 Judge scribed to Cabranes’s sound and (1989) (refusing to extradite a German elegant opinion, I see no reason to revisit national from the United Kingdom to the time, argument. its At the same I ac- United States on charges, murder citing knowledge that Judge opinion Leval’s is the European Convention on Human force, scholarly worked out with a certain Rights, on the ground that the “death and has an academic constituency. By this phenomenon” row is inhumane or de- however, concurring opinion, treatment); grading Agreement on Ex- Judge Leval’s conclusion to some tests of tradition Between the European Union reality. and the United States America art.
13, Union, 25, 2003, U.S.-Eur. June S. A (“Where Treaty Doc. No. 109-14 the of- fence which extradition sought is opinion argues Leval’s in favor of punishable by death under the laws in corporate liability under the Alien Tort requesting punishable State and not (“ATS”), § Statute 28 U.S.C. for vi- by death under the laws in request- olations the norms of inter- State, ed requested grant State It argued national law. is not this extradition on the condition that remedy is consistent with international penalty death shall imposed not be on practice, any country or even known to person sought, or if for procedural beyond Instead, court our borders. reasons such condition cannot be com- argues Leval that “the law of na- plied State, with the requesting on ... tions it to each leav[es] State to re- condition penalty the death if im- questions solve of civil ...” and out.”). posed shall not be carried that “international law leaves the manner remedy independent determina- B tion of each State.” Kiobel v. Royal Co., 111, 175, Dutch Petroleum 621 “[Cjustomary F.3d law is com- (2d Cir.2010) (Leval, J., concurring). posed only of those rules States uni- opinion to, Leval’s thus rests on versally by, abide or accede out of a idea that no account need be legal obligation taken of how sense of and mutual con- matters de- having these complacent about Corp., Copper Peru Flores S.
cern.” in U.S. courts? cided Cir.2003). (2d system whole characteristic marked elsewhere is well view The dominant aligned commonality of interest is a African Presi- *3 former South expressed by The Mbeki, who, all mankind. prior of to our deci- the enemies Thabo dent Barclay Nat’l Bank not with- liability does sion Khulumani corporate idea of (2d Cir.2007), Ltd., said: “We F.3d 254 scrutiny light. in that stand unacceptable that completely it consider by this class affected of the All the cases future of that are central to the matters corporations, transnational case involve adjudicated in for- country should be our foreign com- foreign. Such them many of responsibility which bear no eign courts They of other states. creatures are panies country....” well-being of our governance and to are Mbeki, Statement President Thabo They at home. regulation government to the National Thabo Mbeki President economies, national engines of their often Nation, on of Parliament and the Houses and pensioners employees, sustaining Tabling Report of the Occasion I cannot taxes. paying creditors —and Truth and Reconciliation Commis- 2003). among Later, consensus President (Apr. that there is some think sion decision as lawyers and decried the Khulumani American courts Mbeki nations that “judicial imperialism,” President a form of transna- bring to to court power have the Mbeki, Response to National As- Thabo countries, to other corporations of tional (Nov. 8, 2007), be- sembly Question Paper in third coun- operations their inquire into that courts are “implfied] cause it U.S. beggar tries, to regulate to them—and degree and judge pace to placed better com- assets into by rendering them their reconciliation.” Africa’s national of South damages, and damages, punitive pensatory Khulumani, (Korman, J., at 295 504 F.3d (American) proceedings legal fees. Such (internal quotation marks and dissenting) in- tendency provoke have the natural omitted). citations interests, com- rivalry, ternational divisive definition, protect any By no one would very opposite grievance and petition, —the mankind, telling it is that enemy of all so consensus that sustains of the universal and every country protect does each and international law. customary that fuel its national companies foster the liability on imposition project its economic economy tions, moreover, questions. vexed raises regulation and interests under such power imputed can be employee What actions These country each deems sufficient. corporation? piercing What about why no inter- explain considerations policy judgments these be corporate veil? Can (or likely has arisen national consensus and, so, bankruptcy, in the discharged arise) liability. supporting corporate Is country? Puni- bankruptcy courts of what plausible feature of Amer- damages peculiar tive is a that would harm supports proceedings law law; exacted? These ican can opposed nations and be other civilized corpo- death of “judicial impe- issues bear on the life and tantamount to them —or be rations, supreme consequence and are rialism”? cor-
to the nations which the defendant C created, make their head- porations were Circuit, underlying question it clear their taxes. Is In this quarters, pay That big consequence. no of law is one of of the earth would be the nations opinion Presbyterian prospect our of success on the is because of ultimate merits. Energy, Sudan v. Talisman discovery Church American in such cases uncovers (2d Inc., Cir.2009), which corporate strategy planning, diverts aiding abetting holds time, provokes resources and executive lie under the ATS unless the does not public boycotts, bad relations or threatens positive is done with the intention conduct exposure practices, of dubious trade bringing about a violation of the Law risks trade secrets. cannot think that So, compa- at 259. Nations. Id. unless rely other nations with confidence on the ny engaged in the busi- purposefully has tender mercies of American courts and the etc., genocide, slavery, piracy, ness of American tort bar. These pres- coercive *4 corporate there can be no sures, pressure combined with to remove that statute in this The incremen- Circuit. contingent corporate reserves from the actually by tal number of cases foreclosed sheet, easily can pay- balance coerce the majority opinion approaches in Kiobel ment of tens of millions of dollars in settle- vanishing point. ment, plaintiffs even where a likelihood of opinion concurring Leval’s success on the merits is zero. Courts judgment posits of the Court the idea that should take care that do not become pirates slavers and will now rush into cor- instruments of abuse and extortion. If Kiobel, porate transactions. 621 F.3d at there is a threshold ground for dismissal— (Leval, J., concurring). 155-56 But that is and Kiobel is it —it should be considered Examples corporations fanciful.1 of in the and used. atrocity history.2 business are few in short, In great this case no practical has Maybe day, pirate corporations one will except effect for the considerable benefit so, however, proliferate; an international avoiding abuse of the courts to extort consensus come to consider the prin- Leval, settlements. liability. passim, reads ciple my giving words as absolution to moral holding The of this case matters never monsters. For the record: even moral because, it, plaintiffs theless without would humans, monsters are I happily and would plead way be able to around Talisman in a hanged. see them (notwithstanding Corp. Bell Atl. 544, 127 1955, 167 Twombly, 550 U.S. S.Ct. (2007) L.Ed.2d 929 v. Iqbal, Ashcroft
—
majority
The
opinion
why
demonstrates
U.S. -,
129 S.Ct.
173 L.Ed.2d
(2009))
corporations
ATS suits
are fore-
delay
would
dismissal of ATS
It
a
great importance
closed.
is matter of
against corporations;
suits
and the inva
so,
say
discovery
promote
sive
could
order to
ensues
coerce
no
comity,
settlements
have
relation to the
to administer efficient handling of
eponymous
Cap-
Roger
Putumayo
concede that the
Report.
I
hero of
Casement’s
That
Blood,
(1935), played by
make,
tain
Warner Bros.
my knowledge,
would
two instances
Flynn,
profit-sharing
did enter into
Errol
with
previous century,
in the
neither of which was
pirate.
another
litigation;
of ATS
so
consider
principle
apprecia-
that the doctrinal
is not of
Aktiengesellschaft
I.G.
Farbenindustrie
(The
importance.
Congo Company,
ble
Abir
example
century
would be one
from the 20th
II,
Belgian Congo
Leopold
which ran the
(though
Nuremberg
Tribunal did
in-
not
Century example, except
th
be
dict).
century,
Earlier
in the
the human
S.)
royal Subchapter
it was a kind of
plantations
in the
abuses
rubber
Company
exposed by
Peruvian Amazon
were
discernible,
universal, norm of
much less
courts to
cases,
to avoid the use of our
law,
customary international
it cannot form
settlements.
extort
the ATS. That is
the basis of
suit under
deny panel rehearing.
I therefore vote to
of the matter. Should
long
and short
legislative
exercise of its
Congress,
CABRANES,
Judge,
A.
Circuit
JOSÉ
discretion,
juris-
scope
to alter the
wish
panel
denial of
concurring
ATS,
will
under the
the courts
diction
rehearing:
direction. But
bound to follow its
my
raised
questions
policy
considerations which would
grave policy
motion for
response
to the
colleagues
decision, should not—
surely underlie that
plainly important.
panel
rehearing are
not—drive our conclusion here.1
and did
definition,
covers, some of the
The ATS
man
disgusting conduct of which
is
most
LEVAL,
Judge, dissenting from
Circuit
unsurprising
It
that concern
capable.
rehearing:
the denial
engen
reach
consequences
of its
fidelity
But
passion in all corners.
ders
by the
Addressing an issue not raised
*5
law,
dictated the
“policy agenda,”
not a
court,
major-
in the district
defendants
majority opinion.
Judge
Contra
Leval’s
of nations
ity opinion rules that
the law
Dissenting from Denial of Panel
Opinion
apply
not
to the conduct of
does
history
272. The text and
Rehearing
entities)
(and
juridical
tions
other
and that
Statute,
precedent—
Tort
under our
Aien
jurisdiction
therefore lack
to hear this
we
Supreme
requires
that of the
Court —
brought against
corporation
case
a
nations,”
of the law of
“violations
a
Judge
Chief
Jacobs has filed
ATS.1
by
§
defined
reference to
U.S.C.
opinion concurring in the denial
separate
uni
“specific,
international norms that are
rehearing,
light
of
which sheds new
on the
versal,
obligatory.”
v. Alvarez-
Sosa
majority’s ruling.
that underlie the
motives
Machain,
692, 732, 124
542 U.S.
S.Ct.
call
comment.
His observations
(2004).
is,
2739,
274 suits, wrong in Judge Jacobs is not ob- Judge Jacobs
In the context of ATS jury burdens, risks, that defendants in trials pres- serving finds pressure can be under to set- justify U.S. courts they place on defendants sures that nothing have done all tle—even where exemption of categorical great latitude we tions, trusts, jurid- wrong and other partnerships, —because juries, especially damages over for give of the laws of from the rules ical entities intangible, nonquantifiable injuries. Our iden- problems Jacobs nations. The ruled, however, juries has however, court tifies, in suits under U.S. arise liberty any not at to award sum without law, in those under international well as limit, for even the most serious of non- by arbitrarily problem To avoid the law. quantifiable injuries, and that courts entities is no more exonerating juridical supervise care to unrea- should exercise invoking for suits appropriate See, sonably jury e.g., inflated verdicts. invoking those domestic law law than for Indus., Inc., Armstrong Consorti World justified corporate defen- and no more for (2d Cir.1995), 1003, judg- 1009-12 F.3d are natural dants than for defendants who by, grounds ment vacated on other persons. 116 S.Ct. 135 L.Ed.2d U.S. remedy 2. The is substantial (1996). By authority exercising To the extent Jacobs airs overkill. verdicts, inflated courts can and to control grievances, these can be ame- reasonable jury In protect against should excesses. measures, liorated less drastic which do event, problem of the risk of ex- juridical entities free to conduct not leave jury putting verdicts unreasonable cessive businesses based on the abuse of human to settle nonmeri- pressure on defendants liability. exposure without to civil no more to ATS applies torious claims potentially expense excessive As corporations than to ATS against suits discovery, our recent hold- and intrusion of natural as well as to persons, suits (which ing in Talisman limits nearly every litiga- of domestic tort branch the law of aiding abetting violations of tion. nations to circumstances the defen- where *7 Jacobs, According exempt- 4. to affirmatively sought dant to advance the ing corporations from under the violation) significant protection; provides has no serious con- law of nations adverse can at the outset cases in courts dismiss (1) sequences Corporations because: do plaintiffs’ pleadings allege which fail to the badly in except not behave the rarest of purposive violation. 582 F.3d at such See instances, or amounting per to one two says can ir- plaintiffs 259. Jacobs (2) century;3 persons natural who do be- plead around this obstacle. If responsibly badly adopt corporate have do not the do, initially discovery courts can limit they form; (3) holding and under our Talis- issue, ready grant to that and be to sum- man, liability may imposed only be unable, mary judgment plaintiffs if the cases of the most serious abuses. targeted discovery, after reasonable to I the produce purpose evidence of that would have no idea what is basis Judge’s can also Chief confidence satisfy the standard. Courts badly, overpleading tions do not behave busi- guard against irresponsible the by enterprises ness based on abuse sanctions under Rule Farben, of law of nations in two I.G. the Peruvian Amazon violations He cites centuries, Judge my Congo Company. concern Company, and the Abir Be- Jacobs believes only non-suiting "fanciful.” of victims is cause he considers these the instances exemption provided by benefits of the do not utilize business rights human by corporate Furthermore, and advantages provided majority. learn in we I do not share juridical forms.4 other that more press and more of the functions that, corpo- Judge Jacobs’s confidence previously performed throughout Farben, than the Peru- rations other I.G. by military world official forces are now Company, Amazon and the Abir vian being private outsourced to contractors. during Congo rights had violated human reported A recent New York Times article centuries, have last two would nearly that contractors comprise 60% of informed of seen to it that the world be in Afghanistan, the United States forces purport I do not their abuses. While performing protective armed services information on the sub- have better Glanz, among other functions. James Judge, my it is im- ject than the Chief Troops Contractors Outnumber U.S. pression that those who conduct heinous Times, 1, 2009, Afghanistan, Sept. N.Y. businesses, such as slave trad- illegal http://www.nytimes.com/2009/09/02/world/ Indeed, that fact. ing, publicize do not asia/02contractors.html; see also Mark many why they might one of the reasons Schmitt, Mazzetti & Eric Blackwater behind wish to conduct such businesses Mercenaries, Founder to Back Said N.Y. juridical entity is to the veil of a secure Times, 20, 2011, Jan. http://www.nytimes. greater anonymity. com/201l/01/21/world/africa/21intel.html. secrecy only why pi- Nor is reason can justifying see no reason the Chief rates, traders, slave and other commercial Judge’s private confidence that military human prefer abusers of operated forces for profit do not and will juridical use business forms. There are not contract their despots services to substantial additional reasons —the same dirty others for the conduct of business. reasons that lead lawful businesses to use argues Jacobs further trust, corporate, such forms. The majority’s ruling can have no more than partnership designed provide forms are because, trivial detrimental effect advantages numerous and conveniences to Talisman, holding liability may our trading, and commerce. investment Slave imposed aiding abetting only in the piracy, mercenary warfare can be lu- most serious cases—those in which the expensive They crative but businesses. defendant acted with a to violate purpose require and therefore need to soli- capital words, the law of nations. In other cit investments. Investors turn demand defendants who secure exoneration afforded such protections operation rule are the organization, including forms of limitation *8 heinously, ones who acted most such as liability. pirates of We are told that now traders, pirates, slave and mercenaries organize in the form operating Somalia carry ge- who contract to torture and out limited, profit-sharing partnerships of so remainder, The nocides. whose assistance opera- as to secure investments in their government merely to the of a was tions, abuses Royal see Kiobel v. Dutch Petroleum (2d Co., Cir.2010), proper purpose, incidental to a business 156 n. 10 may already qualify any therefore are exonerated in event without need prostitution eventually that he abhors moral for obtains her free- Jacobs tells us happily sues, monsters see them profits would dom and she can recover the the hanged. monsters should be Whether moral body. earned from the sale of her business hanged dispute is not what our is about. The majority’s unhesitating answer is an No. whether, question is when a child enslaved definition, “by protect cause no one would rely exemption corporations. on the of to view, enemy reasoning mankind.” The Because, corpo- an of all Judge’s in the Chief But in altogether convincing. not badly, the cases rations do not behave event, explain why it fails to the majority opin- the “actually foreclosed corporations— all vanishing point.” the solution is to exonerate approach! ] ion ... judgment from the of courts of na- even exempts rule that certain justify To a greater litigation. tions with a stake the liability ground on the defendants from very only rule the worst protects that the for Jacobs’s reliance on his As strange logic. offenders is foreign policy of the perception States, inappropriate I think it United point next is that Judge’s 5. The Chief far- justify States courts to so United “judicial imperialism” cases represent ATS rulings scope that the of reaching narrow judges, which affronts by United States any guidance the law of nations without the defendant is a foreign nations. Where government of that departments from foreign person or where the conduct oc- charged formulating foreign are with nation, such curred another suits Depart- If the policy of the United States. judged in the courts of appropriately more ment of that it is in the State advised us a foreign nation.5 This well be foreign policy of the nation’s interest reasonable concern—at least where liability corporations exempted from expected of that nation can be to courts ATS, particular or that a suits under cases, In proceeding. conduct a fair such under non conve- suit be dismissed arguments forum there are indeed reasonable niens or in the interests of international in favor of why U.S. courts should abstain comity, give we courts should of course tribunals, foreign which would substantial- And if great deference such advice. ly alleviate Jacobs’s concerns. Congress passed exempting a statute cor- hand, the other if the de- On ATS, porations from “engine fendant is indeed the of na- [that binding would establish law. economy,” nation particular tion’s] statute, adjudicate my whose courts would But there is no such sponsored very colleagues guidance atrocities that are the did not seek from the State, suit, inmay Department some circumstances be as courts convention- ally that a judges judgment doubted whether the of that nation do when concerned (many pleasure of whom serve at the interfere with the executive branch’s executive) plaintiffs foreign policy. will afford the conduct of Whether the proceeding. Judge policy put ruling fair Jacobs finds it en- into effect this serves adjudication tirely acceptable consign foreign policy of the United States is nations, place sponsor- pure conjecture. abuses that took The law of in its with ship government objective protect rights, human approval basic Statute, power objective Tort in its remains to the courts of the Alien nations, government. fair to enforce the Such suits will be be- law have been *9 Assuming justification, judgment Judge that the of a court Jacobs's is correct U.S. appropriately judged such suits are more altogether appropriate when would be the nation, foreign way the courts of the this is no violating defendant accused of international explains ruling majority’s corpora- Nevertheless, corporation. law a U.S. exempt tions are the rules of interna- from majority’s ruling immunizes U.S. tional law no matter where the suit is to be foreign corporations. tions as well as Further, following judged. Judge Jacobs's of of how international law substantially weakened—in service is en- judges. position, in our courts.” This foreign policy of two forced he asserts, by is contradicted the fact that a Furthermore, foreign to the extent objects nation to the which death sentence counsel ad policy concerns if may pirate refuse to extradite a it ob- judication compliance in the courts of U.S. jects requesting to the nation’s criminal nations, by foreign actors with the law punishment. so, equally, or more apply those concerns per are natural where the defendants (and Judge my Jacobs reads into words foreign govern as officials of sons—such Schachter) message those of Professor a humanitarian abuses. ments accused of say that isn’t there. To that international Peña-Irala, See, Filarbiga v. 630 F.2d e.g., generally specify law does not the reme- (2d Cir.1980). majority’s dis norms, dies for leaving violations its and nat persons tinction between question remedy nation, to the enforcing logical justification. has no persons ural not that each imply does nation has license justifies logic precedent Neither nor to enforce norms of international law profits proposition that those who earned any chose, it If way wishes. a nation rights may human be liable to by abusing example, punish to a violation of inter- they persons, if are natural but not victims by inflicting national law another violation corporations. by of international law—such as torture— punishment would of course be forbid- Finally, Judge purports Jacobs den the norms of international law. my by pointing to a arguments demolish Furthermore, indeed, there are Judge and the treaty between the United States out, variety a points Jacobs of reasons that a permits signatory Union which European justify can a to comply nation’s refusal a to refuse to extradite defendant state request. with an extradition penalty in the request- who faces the death ing state. Jacobs’s belief that this None of this contradicts Professor my arguments depends rebuts on misun- Schachter’s observation that the interna- (or derstanding my arguments perhaps rights tional law of human is not- a com- non-sequitur). on simple system plete, self-sufficient of rules. The explained my opinion, quoting law of nations a few norms of specifies
As Schachter, conduct, asserting prohibition of a nar- Professor Oscar ordinarily oppor- range law does not dictate “the row of heinous acts that command virtually disapproval, private persons tunities for to seek redress world-wide in domestic courts for breaches of interna- most instances leaves to individual nations general prohibitions. There is no how to enforce those tional law States. On the requirement question impose in international law that whether nations should civil, provide By liability States such remedies. for violation of compensatory norms, provides guidance. leaves it to them those it little large, international law that, obligations ways proposition meet their in such as And as for Kiobel, civilly at held determines.” while individuals liable State J.) added) (Leval, victims, corporations their are free to (emphasis (quoting Schachter, profits earn from the violation of human Oscar International Law in (1991)). sort, nothing Theory and Practice 240 On without basis, scholarship of the law my precedents concludes in the Jacobs Schachter’s) (and any support whatsoever. Professor of nations lends “rest[] views justifies taken Jacobs the rule on on the idea that no account need be Chief *10 protect large the basis of his desire from the ex- corporations
transnational damage discovery and awards
penses of “judicial imperialism” from the discharging their re- judges States
United Congress. an act of
sponsibilities under concerns have va-
Regardless whether his juridical
lidity, proposition entities exempt from the rules of international only a rule of international law
law became decision to virtue Neither the law of nations nor
make so.
the Alien Tort Statute furnishes basis leaving and other to violate fundamental human
entities free
rights without to victims.
Darryl WHITLEY, Petitioner-Appellee, ERCOLE, Capaci
Robert in his Official
ty Superintendent, Green Haven Facility, Respondent-App
Correctional
ellant.1 10-3119-pr.
Docket No. Appeals,
United States Court
Second Circuit.
Argued: Dec.
Decided: June caption
1. The Clerk of is directed amend the Court read as shown above.