The U.S. Supreme Court has been having a hard time living down its reputation as the most corporate court in history, and this week’s decision in Kiobel v. Royal Dutch Petroleum certainly won’t help. After two rounds of briefing and argument, the court ruled that the Alien Tort Statute (ATS) does not provide access to justice for Ogoni human rights victims harmed when Shell assisted Nigerian government attacks against them and their family members. This is a devastating outcome for these plaintiffs, who have been seeking a modicum of justice for over 15 years. The message is this: America’s doors are wide open for Shell’s business, but closed to human rights victims like Esther Kiobel when Shell is accused of torture, killing and crimes against humanity abroad. What a shame.
Despite this outcome, the door remains open for future human rights cases against corporations, individuals and other entities. It’s not easy to parse what the splintered opinions by the various blocs of justices mean–there were a total of four, and there’s already considerable chatter on legal blogs about their meaning. The upshot is that there will be a presumption against extraterritorial claims — i.e. cases where the abuses happened outside of the U.S. — in ATS cases. But the Court went on to explain that this presumption can be rebutted when cases “touch and concern” the United States with “sufficient force.” What that will mean, and where the legal lines will be drawn, is anyone’s guess; the various opinions provide scant clarity.
What is clear is that we are in for increased litigation, and human rights lawyers and corporate defense counsel will have to fight it out in the lower courts, which will have to do their best to interpret the Kiobel opinions and draw these lines in specific cases. It is also clear that plaintiffs will have a harder time showing that the cases have a strong enough connection to the U.S., so “foreign cubed” cases like Kiobel–where a foreign plaintiff alleges claims against a foreign defendant that occurred in a foreign country–will face particularly high barriers. That will have the perverse impact of sending more human rights cases into state courts, and prejudicing U.S. corporations who are more likely subject to jurisdiction in the U.S. So Shell and BP get a pass from our federal courts for rape and torture; Chevron and Chiquita are still most likely on the hook.
From my perspective, as a human rights lawyer who has worked on corporate ATS cases for nearly two decades, not a whole lot has changed with this decision. Suing big business for their complicity in human rights abuses has always been a David and Goliath struggle. These cases were never easy, and this new ruling certainly didn’t make it any easier. But the Supreme Court has left the door to federal courts open and has done nothing to our ability to litigate in state court. To corporations and the corporate defense bar, we say this: We’ll see you in court!