Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation

by Roger Alford

The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

http://opiniojuris.org/2013/04/17/kiobel-instthe-death-of-the-ats-and-the-rise-of-transnational-tort-litigation/

8 Responses

  1. Thanks for this really interesting post. I was wondering if you might comment also on the possibility of raising a Sosa-like argument in state court that the common law recognizes causes of action for (certain) violations of the laws of nations. That was certainly the case at Blackstone’s time, and I’m not sure why state courts would not have the power to hear common law claims for violations of at least the three types of violations of the law of nations that were cognizable under Blackstone’s common law. Without diminishing the value of domestic torts and choice of law, which will undoubtedly be of major use going forward, why not also begin to argue in state court that state common law recognizes claims for violation of international law?

  2. Daniel, 

    Great question.  I think it is possible that a state court might find a common law tort based on an international law violation, but I am not aware of any state courts that have actually done so.  Not so with foreign laws.  There is an amicus brief in Kiobel filed by Dutch law professors that references various instances in which Dutch courts have used international law violations to find a legal wrong was committed within the meaning of the Dutch Civil Code.  And of course, any monist country will automatically incorporate international law as part of their own law.  So my sense would be that one could plead the application of international law in state court, but it will be more successful, especially dealing with monist countries, if you argue that international law is part of the foreign law rather than domestic state tort law.

  3. Thanks very much for this, it’s very interesting.  If you’re right, ATS defendants may someday look back on the pre-Kiobel era as the good old days.  But, if I understand you, it doesn’t seem very likely that foreign nationals will be able to pursue actions against foreign corporations for foreign torts.  Or might even foreign-cubed tort cases have a chance in some state courts under choice of law principles?
     

  4. I think foreign-cubed cases are dead.  State courts would allow for cases where there was at least some US nexus.

  5. I think that in at least some cases we are likely to see the parties frame the issues under the law of the forum even if the applicable conflict-of-laws analysis points to the foreign law. This may be so in cases where the foreign law is indeterminate or less well-developed, or in cases where the American lawyers on both sides tacitly agree to “do what they know.” I am involved in a case now with both a customary international law claim and common law claims where no one has suggested that the foreign law should apply for both of these reasons. (The foreign country at issue is Haiti, which may  be a particularly good candidate for such a path.)

  6. John and M. Gross,

    I think foreign-cubed cases are going to be the hardest to pursue in state courts.  There will be Goodyear general jurisdiction issues (discussed in Chris Whytock’s post) and possible forum non issues.  In most cases any foreign-cubed case that does proceed will be pursuant to foreign law, unless there is a false conflict (foreign law and forum law are the same and therefore forum law is applied) or, as Ted Folkman suggests, neither side invokes the foreign law.  I would not rule foreign-cubed state court cases out–there are terrorism cases where they have gone forward.  In addition, sometimes there are forum interests at stake even though it is a foreign-cubed case, such as when the foreign national has moved to the forum, a situation that occasionally has come up, as with Cuban nationals bringing cases in Florida state courts.

  7. Well, there’s not a lot of waking up to do since all the ATS cases I know of also allege state law torts.  One problem is that state wrongful death statutes are full of issues such as territorial limitations and sol’s.  Second, if you’re going to argue that a foreign nation’s law applies, and the tort occurred there, your 90% of the way to losing a forum non conveniens motion.  When I sued a Singaporan private security contractor in DC Superior Court, for murders in Iraq, Judge Josey Henning didn’t spend more than 5 minutes on it before she knew it didnt belong in her court.  If this were as easy as you say, people would already be winning cases, since these torts are always alleged.

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