After Kiobel, What’s happening with Corporate Liability in the Second Circuit?

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Last month, ERI submitted an amicus brief along with the Center for Constitutional Rights (CCR) in Chowdhury v. Worldtel Bangladesh Holding, Ltd. and Khan, arguing that Kiobel doesn’t affect the Alien Tort Statute (ATS) or Torture Victim Protection Act (TVPA) claims in that case. In 2009 a jury found Worldtel and Amjad Khan liable for torturing Nayeem Mehtab Chowdhury in an effort to obtain control of his business.

ERI’s brief explained that the Supreme Court dismissed Kiobel based on the presumption against the extraterritorial application of ATS claims, holding only that the “mere corporate presence” in the United States of a foreign multinational corporation did not overcome the presumption. The Kiobel presumption is displaced, however, where the claims “touch and concern” the United States with “sufficient force.”

What claims sufficiently “touch and concern” the U.S. after Kiobel will be a matter of extensive briefing to come. But the Chowdhury case also raises some other interesting questions about the post-Kiobel landscape in the Second Circuit.

First, what does the Kiobel holding mean for corporate liability in the Second Circuit? Kiobel came out of the Second Circuit, which was the only circuit to find that corporations were immune from ATS liability, creating a circuit split that sent the issue to the Supreme Court. But the Supreme Court ultimately dismissed Kiobel on the grounds that the specific facts of the case against Shell could not overcome the presumption.

So what is the state of the Second Circuit panel decision in Kiobel? As we explained in our brief, its been effectively overruled. Although the court did not specifically rule on the corporate liability question, it at least implicitly acknowledged corporate liability by discussing “mere corporate presence.” The Supreme Court also applied the presumption in a novel way: although traditionally applied to a substantive statute, the Court in Kiobel applied the presumption to claims brought under the ATS. This may sound technical but it’s a fundamental distinction with important implications for the status of corporate liability in the Second Circuit. If extraterritoriality is a question of the scope of the cause of action, as opposed to an issue of subject matter jurisdiction, then the Supreme Court must have determined that it had jurisdiction over the corporate defendant in Kiobel. As ERI’s legal director, Marco Simons, recently explained in a blog post:

This follows from the decision in Steel Co. v. Communities for a Better Environment, in which the Court rejected the notion that it could decide the cause of action before subject matter jurisdiction. (Other threshold issues – such as forum non conveniens – can be decided before jurisdiction in some cases, but not the cause of action.)

But the Second Circuit’s decision was not about the scope of claims brought under the ATS; it was that the ATS “simply does not confer jurisdiction over suits against corporations.” If my analysis of Kiobel is correct, then the Second Circuit’s decision cannot be – because the Supreme Court could not have reached the extraterritoriality issue without assuring itself of its own jurisdiction.

The result is that the Supreme Court implicitly rejected the Second Circuit’s analysis.

The Chowdhury appeal is potentially noteworthy for another reason: Judge Jose Cabranes, who wrote the Kiobel opinion for the Second Circuit, is presiding over the panel. So his fellow judges on the panel – and Cabranes himself – will have to decide whether they will follow a decision that has, by now, been thoroughly repudiated by other courts and undermined by the Supreme Court, or whether they will recognize that corporations, like everyone else, need to respect fundamental human rights.

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