Bill Dodge has provided a succinct summary and analysis of the Supreme Court’s recent ruling on the Alien Tort Statute (ATS) in Nestlé & Cargill v. Doe. (The full docket here and the symposium Just Security convened in advance of the oral arguments is here). But what the Court ultimately did not rule on – the subject of this post – is almost as impactful as what it did decide.
As Bill explains, the Court’s holding (contained in Parts I and II of Justice Clarence Thomas’s opinion) reversed the Ninth Circuit on extraterritoriality and remanded the case to the district court, where the plaintiffs will now have to move for leave to amend their complaint. In so holding, the Court’s majority re-worked the extraterritoriality test (more explicitly abandoning Kiobel v. Royal Dutch Petroleum’s touch-and-concern test and adopting RJR Nabisco, Inc. v. European Community’s focus test), and concluded that the facts alleged as to the companies’ conduct all involved domestic “general corporate activity,” which they held was not actionable under the ATS.
In reading Justice Thomas’s opinion, readers should not be misled by Part III, in which Justice Thomas critiques Sosa v. Alvarez-Machain. In this section of the opinion, Thomas was joined only by Justices Neil Gorsuch and Brett Kavanaugh, who interpret Sosa as inviting courts to “invent” new causes of action (as out of whole cloth), thus running afoul of the separation of powers. However, this perspective fell short of garnering a majority, and so the material (which consumes over half of the opinion) amounts to little more than Justice Thomas’s aspirations to overturn Sosa.
The flaws in Justice Thomas’s logic, historical analysis, and read of the precedent provoke a devastating critique from Justice Sonia Sotomayor. In her concurrence, which was joined by Justices Stephen Breyer and Elena Kagan, Justice Sotomayor insists that in enacting the ATS – which provides for federal jurisdiction over unenumerated “torts committed in violation of the law of nations or a treaty of the United States” – Congress expected the federal courts to identify the existence of torts that breach international law. As such, the judiciary would be evading its responsibilities were it to ignore the mandate of the statute to identify, and provide a remedy for, these torts.
Beyond the discussion between Justices Thomas and Sotomayor on the wisdom of Sosa, the Court declined to issue a ruling on, or is relatively quiet about, three important issues that were either the basis of the grant of certiorari or received significant airtime in oral argument: the amenability of corporations to suit under the ATS, the cognizability and scope of aiding and abetting liability under the ATS, and the strength of anti-slavery/anti-human trafficking norms under the law of nations. The remainder of this article will discuss the significance of the Court avoiding each of these topics in turn.
The Liability of U.S. Corporations under the ATS
The first non-ruling involves the issue on which the Court originally granted certiorari (and which it earlier dodged in both Kiobel and Jesner v. Arab Bank): whether U.S. corporations can be sued under the ATS. In concurrence, Justice Gorsuch, joined by Justice Alito, considered it axiomatic that corporations could be sued for tortious conduct under the law of nations given founding era and comparative precedent as well as contemporary tort law. Said Gorsuch:
Nothing in the ATS supplies corporations with special protections against suit. … Causes of action in tort normally focus on wrongs and injuries, not who is responsible for them. … [T]he law places corporations and individuals on equal footing when it comes to assigning rights and duties” (slip op. 2).
Justice Samuel Alito reaches the same conclusion in his dissent, confirming that “[c]orporate status does not justify special immunity” (slip op. 1). Justice Sotomayor also indicates in her opinion (note 5) that this is not a Sosa question at all because while international law provides the “substantive prohibitions that give rise to actionable torts under the ATS,” it is domestic law that answers subsidiary questions around the scope of liability.
Thus, and by Justice Sotomayor’s count (note 4), at least five justices – Alito, Breyer, Gorsuch, Kagan, and Sotomayor – agree that corporations are amenable to suit under the ATS. This perhaps should not come as a surprise to observers – a collective skepticism of the petitioners’ position on this point emerged among the justices during the oral arguments, as noted in subsequent commentary. As a result, future plaintiffs will be able to proceed against U.S. corporations under the ATS so long as they can show tortious conduct happening in the United States.
The Cognizability of Aiding & Abetting Liability under the ATS
The second non-ruling relates to whether plaintiffs can sue defendants for aiding and abetting tortious conduct under the ATS. Although Justice Thomas acknowledged this issue in Part II of his opinion (as does Justice Alito in dissent), there is no ruling on whether aiding and abetting is actionable under the ATS or on whether standards for aiding and abetting should come from domestic or international law. Only Justice Sotomayor is clear that it would not be “tenable to argue that, at the time respondents were enslaved on Ivorian cocoa farms, international law permitted the aiding and abetting of forced labor” (slip op. 11). Nor do the Justices address the elements of complicity liability, although Justice Alito in his dissent acknowledges a number of questions that would need to be resolved if the Court were to take up this issue, including the split over whether the operative mens rea standard should be purpose or knowledge (slip op. 2).
The Court’s restraint on this point is appropriate. The issue was not addressed in the parties’ briefs at either the certiorari or merits phases. Rather, the Solicitor General attempted to inject this topic into the proceedings in the government’s two filings, which argued that the Court should overturn consistent circuit court precedent and rule that the ATS does not support any claims – against natural or legal persons – based upon doctrines of secondary liability, including aiding and abetting.
Stanford Law human rights students (under the supervision of yours truly) and Withers Bergman LLP authored an amicus curiae brief on behalf of international law scholars, diplomats, and practitioners arguing that the Court should decline the Solicitor General’s invitation to address forms of responsibility without a full briefing on the merits but, if it were inclined to consider the question, it should conclude that such claims are actionable because secondary liability is well established under international and domestic law, including at the time of the founding. The Court took the former route, declining to address the overall question of secondary liability under the ATS. Accordingly, claims premised on forms of secondary liability (which would include complicity, conspiracy, and superior responsibility allegations among others) remain actionable under the ATS post Nestlé.
The Anti-Slavery Norm
Finally, the Court’s ruling does not raise any doubt about the global norms against human trafficking, child enslavement, forced labor, or other modern forms of slavery. Because the majority opinion concerns extraterritoriality only, the Court did not evaluate the causes of action advanced by the plaintiffs, child slaves who were trafficked from their homes in Mali and forced to work in the chocolate industry in Côte d’Ivoire. Indeed, as the Yale Law School Center for Global Legal Challenges argued in its amicus brief, these norms are among the most well established under international law when it comes to treaty and customary international law.
That said, there is some dicta in Justice Thomas’s opinion suggesting that the Trafficking Victims Protection Act (TVPRA) (which was enacted after the events underlying the Nestlé suit transpired but would support the suit if it were filed today) established a “new standard” in prohibiting human trafficking and forced labor. In his reading, Congress deliberately declined to make the anti-trafficking cause of action under the TVPRA retroactive; as such, the existence of a modern cause of action is inapplicable to the Nestlé case. In her concurrence, Justice Sotomayor refutes Justice Thomas’s claim that the norms against child slavery, aiding and abetting forced labor, etc. were innovations of the TVPRA. She further notes that there is no support for reading the TVPRA to foreclose or preclude suits by trafficking victims under the ATS. It is true that the Nestlé case is in this respect a bit of a historical relic: given the existence of a civil cause of action dedicated to trafficking offenses (the TVPRA), it is unlikely that the ATS will be needed in similar cases moving forward. Indeed, plaintiffs’ counsel have already filed additional cases against these same corporate defendants under the TVPRA for their continued reliance upon child labor in their cocoa supply chains. As such, it is only for historical claims that predate the passage of the trafficking legislation that plaintiffs must rely on the ATS.
All told, this is clearly a defeat for these particular plaintiffs and for other plaintiffs who suffer extraterritorial harm from conduct with no discernable U.S. nexus. In order to protect the proud legacy of Filártiga v. Pena-Irala, the first modern case under the ATS, it now behooves Congress to eliminate any doubt about the presumption against extraterritoriality by amending the ATS to make clear that it applies to extraterritorial conduct. This is an easy fix – Congress need only indicate (in legislative text or perhaps even a resolution announcing the sense of Congress) that the ATS applies to torts committed anywhere in violation of the law of nations.