Today, the U.S. Court of Appeals for the D.C. Circuit, often considered one of the most influential courts of appeals, ruled that corporations can be held liable for violations of international human rights law under the Alien Tort Statute (ATS). The D.C. Circuit’s decision in Doe v. Exxon Mobil, in which ERI filed an amicus brief, repudiates the reasoning of the Second Circuit in the Kiobel case.
The Exxon Mobil decision (PDF) is significant because the D.C. Circuit is the first court of appeals to consider corporate liability under the ATS after the Kiobel decision. Three other appeals courts–the Fourth Circuit, the Seventh Circuit, and the Ninth Circuit–are currently considering this question in appeals that have already been fully briefed and argued.
Exxon Mobil may influence the other courts considering corporate liability, and–hopefully–signals a trend to isolate Kiobel as an outlier decision. The decision is well-reasoned and points out numerous holes in Kiobel.
The decision is also significant because the court adopted the knowing, substantial assistance standard for aiding and abetting liability. The Second Circuit rejected this standard in the Talisman case, opting for a higher “purposeful assistance” standard. The D.C. Circuit correctly found that both U.S. law and international law have long held abettor liable when they knowingly assist abuses, regardless of whether they shared the perpetrator’s purpose.
Finally, the Eleventh Circuit Court of Appeals also recently made an important decision on this subject. Before Exxon Mobil, the Eleventh Circuit was the only court that had expressly ruled that corporations could be sued under the ATS. After the Kiobel decision, the Drummond coal company, which is being sued in the Eleventh Circuit, asked that court to reconsider its position.
Yesterday, the Eleventh Circuit rejected Drummond’s petition, which effectively means that that court is standing behind its earlier rulings that corporations can be sued for human rights violations.
Now we just need to wait and see what the other circuits do, but this week, the trend is certainly in the right direction.
Update, July 12: A 7th Circuit ruling came down a few days later and, while the plaintiffs claims were rejected, the ruling echoed those above, finding that corporations can be sued for human rights violations.