US Corporations Sued For Acts in Foreign Jurisdictions Are (Probably) Now Free from ATS Liability

US Corporations Sued For Acts in Foreign Jurisdictions Are (Probably) Now Free from ATS Liability

Here is the bottom line of the Roberts’ opinion, which makes it sound like this whole ATS thing is really a simple application of Morrison v. National Australia Bank.

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

It also makes clear that “mere corporate presence” would not be enough to trigger US territorial jurisdiction under the ATS.  I sense a new litigation front opening up.

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Paul Wolf
Paul Wolf

All of these headlines are about corporations, but the court didn’t address natural vs corporate personhood at all.
Note there have been over 100 ATS cases to date and I think only 1 or 2 were for domestic conduct.  A whole area of jurisprudence has been wiped away.
Clearly there will be a battle over the extent to which conduct must touch and concern the US.  Next up will probably be the Chiquita case, which is a much closer call.  Chiquita is a US corporation and the board of directors in Ohio passed resolutions authorizing the illegal conduct. We are already in the 11th Circuit on a somewhat frivolous issue, but I’m sure the extraterritoriality argument will go upstairs very soon.