On Monday, October 4, the U.S. Supreme Court issued rulings on petitions to hear five different cases that are highly relevant to efforts to hold corporations legally accountable for their participation in human rights abuses.  The Supreme Court receives thousands of these “petitions for certiorari” each term, and the overwhelming majority are denied. A denial of cert does not indicate agreement with the lower court’s ruling, but simply indicates that the Supreme Court will not hear the case.

The Court declined to hear Presbyterian Church of Sudan v. Talisman Energy; ERI had submitted an amicus brief urging the court to take the case. From 1998 until 2003, the Canadian oil company Talisman Energy was a major operator in the oilfields of southern Sudan, which was then in a long-running civil conflict. As part of that conflict, Sudanese government forces and their allies committed well-documented human rights abuses, bombing and strafing villages with gunships, and engaging in raids on civilian populations perceived to be sympathetic to rebel militias. According to this lawsuit, as part of an effort to secure the oilfields, Talisman assisting the Sudanese government forces in their illegal operations, including providing airstrips for government bombers and other forms of support. Talisman is accused of aiding and abetting crimes against humanity, among other things.  The U.S. Court of Appeals for the Second Circuit held that plaintiffs were required to prove that Talisman wanted the abuses to happen—that is, that it was not sufficient for the plaintiffs to prove that Talisman knew it was providing substantial assistance to crimes against humanity.

The Court also ruled on petitions in a trilogy of cases that raise the issue of whether state law claims that potentially implicate foreign relations interfere with the federal government’s constitutional powers to manage foreign affairs.  This is a key issue that is important for the future of transnational litigation as a vehicle for obtaining justice for victims of human rights abuses, since many suits against corporations for human rights abuses involve claims under state law as well as the ATS.  The Court declined to hear Weiss v. Assicurazoni Generali, a case against an Italian insurance company, seeking damages for its refusal to pay benefits to Holocaust policyholders.  The Court also asked the U.S. government for its views on whether to hear von Saher v. Norton Simon Museum, a case in which the plaintiff sought to recover art looted by the Nazis, and Saleh v. Titan, in which plaintiffs allege that a U.S. military contractor tortured and otherwise abused Plaintiffs, who were detained in military prisons in Iraq.  ERI has submitted an amicus brief to the U.S. Court of Appeals for the Ninth Circuit in von Saher and an amicus brief to the Fourth Circuit in L-3 Service v. al-Quraishi, a case raising very similar issues to Saleh.   In addition to the state law claims in Saleh, there are also ATS claims, so if the Court decides to hear Saleh, the case could be particularly important for those seeking to hold corporations accountable for human rights abuses.

Last, the Supreme Court declined to hear Aldana v. Fresh Del Monte Produce. In that case, plaintiffs sued a fruit company over its alleged participation in abuses against workers in Guatemala. The lower court dismissed the case to Guatemala, finding it to be a more convenient forum.