Court of Appeals Holds That Corporations May be Sued Under ATS and TVPA

The World in U.S. Courts: Winter 2014 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA) | December.19.2013

Doe v. Nestle USA, Inc., U.S. Court of Appeals for the Ninth Circuit, Dec. 19, 2013

In a decision creating an apparent conflict among the circuit courts of appeals, the U.S. Court of Appeals in California reinstated a suit brought by nationals of Mali against multinationals Nestle, Cargill, and Archer Daniels Midland for "aiding and abetting" alleged trafficking in child labor, torture, and forced labor in connection with the harvesting of cocoa beans in Cote D’Ivoire. The companies were sued in the U.S. under the Alien Tort Statute and the Torture Victims Protection Act.

Most notably, the court of appeals decided that corporations could be sued under the ATS, a decision conflicting with the decision of the Second Circuit Court of Appeals in Balintulou v. Daimler AG, decided last August. Additionally, the court allowed the plaintiffs to amend their complaint to try to demonstrate that the presumption against extraterritoriality articulated in the Supreme Court’s landmark decision in Kiobel v. Royal Dutch Petroleum (discussed in the Summer 2013 issue of The World in U.S. Courts) would not be fatal to their claims, presumably because of conduct relating to the claims that would be alleged to have occurred in the U.S. Finally, the court (over one judge’s dissent) ruled that the plaintiffs would not have to allege that the defendant corporations acted with "specific intent" to violate the norms of international law in order to allege an "aiding and abetting" violation—a violation that would allow the defendants to become liable for acts that they did not specifically commit.

[Editors’ Note: The Ninth Circuit’s decision in Doe v. Nestle confirms that important issues of potential liability and the extraterritorial reach of U.S. law remain unresolved, even after the Supreme Court’s 2013 Kiobel decision.]

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