On May 17, 2013, EarthRights International and the Center for Constitutional Rights (CCR) filed a friend of the court brief in the U.S. Court of Appeals for the Second Circuit to address the impact of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum on a case called Chowdhury, which involves the first jury verdict against a corporation for torture, as well as a similar verdict against the corporation’s representative.
In 2009, a jury found Worldtel Bangladesh Holdting, LTD and Amjad Khan liable for torturing Nayeem Mehtab Chowdhury in an effort to obtain control of his business. Evidence produced at trial demonstrated that in 2007, at the behest of defendants, Mr. Chowdhury was detained for 5 months and subjected to torture by the Rapid Action Battalion (RAB), a unit of the Bangladeshi Police known for committing torture. Mr. Khan, the agent and representative at Worldtel, filed false criminal charges against Mr. Chowdhury and contacted the RAB for the express purpose of having the RAB take action against him. He made it clear to Mr. Chowdhury’s family that the torture would stop only if he turned over control of his company to defendants and left Bangladesh. Worldtel Holding is a Mauritaus corporation operating exclusively in Bangladesh. Mr. Khan was the corporation’s authorized representative and agent and has been a legal permanent resident of the U.S. for more than 25 years. Mr. Chowdhury is now also a resident of the U.S.
The case included claims of torture under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). The jury found both that both defendants were liable for torture and awarded compensatory damages of $1.5 million and an additional $250,000 in punitive damages against Mr. Khan. The decision was one of the first TVPA cases to go to a jury and the first jury verdict against a corporation for ATS claims. Defendants appealed to the Court of Appeals of the Second Circuit. The issue was fully briefed and argued when the Supreme Court decided to hear Kiobel.
After Kiobel, the parties filed letter briefs to inform the court of the effect, if any, of the decision of the Supreme Court in Kiobel on the defendants’ appeal. EarthRights amicus letter brief demonstrates that the Supreme Court’s holding in Kiobel is narrow, and does not affect the claims at issue in Chowdhury. The Supreme Court dismissed Kiobel based on a 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. However, the Kiobel presumption is displaced where the claims “touch and concern” the United States with “sufficient force.”
First, EarthRights and CCR’s brief argues that the Court’s holding did not address, let alone limit, claims against individuals residing in the United States. Such claims are unlikely to provoke the type of “international discord” that concerned the Kiobel Court. This is particularly true in this case, where the jury verdict was rendered more than 4 years ago and no negative foreign policy consequences have occurred since that time. Furthermore, as recognized in the landmark case Filártiga v. PeñaIrala, which allowed ATS claims for torture committed abroad against a defendant living in the United States, the U.S. has an important foreign policy interest in not being a safe haven for torturers and genocidaires. Given this important U.S. interest, ATS claims against U.S. residents sufficiently touch and concern the United States.
Second, EarthRights and CCR argued that the verdict against the corporate defendant should also stand since the case could not have been brought elsewhere. Kiobel implied that courts should not hear claims against defendants with no connection to the forum where other fora are available and more appropriately suited to hear the claims. But this reasoning doesn’t apply where there is no other possible forum. Similarly, if claims based on the same facts will proceed irrespective of the ATS claims, the ATS claims “touch and concern” the U.S. because the dispute will be adjudicated in US courts.
Third, EarthRights and CCR demonstrated that the Supreme Court’s decision in Kiobel has implicitly overruled the Second Circuit’s panel decision, which held that the ATS did not afford jurisdiction over claims against corporations. The Supreme Court was clear that whether the ATS reaches any particular extraterritorial conduct is not a matter of subject matter jurisdiction. Because the Court reached that question, it necessarily did not accept the panel’s conclusion that courts lack jurisdiction over corporate defendants.
And finally, Earthrights showed that the Defendants were incorrect in suggesting that Kiobel gives this Court license to dismiss the claim under the TVPA. Kiobel applies only to the ATS and the presumption could not apply to the TVPA, which expressly applies extraterritorially.