Eleventh Circuit Upholds $4 Million Alien Tort Statute Judgment

Although I noted that the U.S. Court of Appeals for the Eleventh Circuit rejected this ATS suit arising out of alleged killings in El Salvador just last week, today the same court (with different judges) upheld a $4 million judgment against ex-Chilean military officers who executed a Chilean doctor (Winston Cabello) in the 1970s (thanks to my colleague Eric Freedman for the heads up). The case may be important for future ATS litigation in two ways.

(1) In contrast to Arce, the Salvadoran case, the Eleventh Circuit here equitably tolled the 10-year statute of limitations here on the grounds that the defendants had been responsible for hiding the body of Cabello until 1990. The grounds for equitably tolling certainly appear strong here largely because they point to specific actions that prevented these particular plaintiffs from filing. In Arce, the plaintiffs alleged generally that the ongoing civil war prevented their bringing claims. As I noted then, the statute of limitations is a key defense for defendants to the ATS litigation and overly aggressive use of the equitable tolling defense (such as was tried for and rejected in Arce) could probably undercut the utility of the whole defense.

(2) The Eleventh Circuit here also endorsed the “indirect” liability theory in order to find the defendants here liable. This is a slightly different version of the “aiding and abetting” theory that has been wielded so effectively against corporate defendants in other ATS lawsuits, most notably in the Ninth Circuit. Now the analysis here is very thin and almost perfunctory, but corporations sued in the Eleventh Circuit for ATS violations should still watch out.