Alien Tort Claims Act - An Expanding List of "Law of Nations" Claims
Submitted by Jeffrey C. Torres, Lathrop & Gage (Chicago) ¹

A wide range of industries - oil companies, fruit growers, beverage producers, automotive companies, tire producers, pharmaceutical companies - have been subject to suits brought in the U.S. in the last decade or so under the ever resilient Alien Tort Claims Act (ATCA). To date, major brands including Unocal, ChevronTexaco, Union Carbide, ExxonMobil, Gap, Coca-Cola, Del Monte, Citigroup, Ford and Nike have been sued under the ATCA and the list is growing.

Enacted in 1789 in response to losses suffered by American sailing vessels at the hands of Barbary pirates, the ATCA gave district courts original jurisdiction of "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 18 U.S.C. 1350. The ATCA remained largely dormant for almost 200 years until the U.S. Court of Appeals for the 2d Circuit held that Paraguayan citizens living in the United States could bring a claim under the ATCA against a Paraguayan police official who allegedly had abducted and tortured their relative in Paraguay. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Despite subsequent U.S. Supreme Court guidance cautioning against a liberal expansion of the ATCA beyond its narrow 18th Century applications (piracy, crimes against ambassadors, and violating "safe conduct" requests), see Sosa v. Alvarez-Machain, 542 U.S. 692, 732-733 (2004), lower courts have entertained ever-expanding interpretations of international law to broaden the ATCA's scope requiring multinational companies to defend against an increasing tide of U.S. suits. Largely beginning with In re Chiquita Brands Int’l Inc. Alien Tort Statute and Shareholders Derivative Litig., 536 F. Supp. 2d 1371 (J.P.M.L. 2008), ATCA plaintiffs have routinely sued corporate defendants, with allegations that the foreign governments, insurgents or other individuals inflicting the harm actually were agents of (or in a conspiracy with) the corporate defendants.

Throughout 2009, plaintiffs have continued to bring a growing variety of ATCA claims culminating with the Second Circuit recent expansion of ATCA jurisdiction to include claims for involving a "violation of the norm of customary international law prohibiting medical experimentation on human subjects without their consent." Abdullahi v.Pfizer Inc., 562 F.3d 163, 187 (2d Cir. 2009), pet. for cert. filed, 78 U.S.L.W. 3049 (July 8, 2009). The Abdullahi court ruling was preceded by a MDL transferee court’s earlier ruling in In re South African Apartheid Litigation, 617 F. Supp. 2d 228, 296 (S.D.N.Y. 2009), that ATCA jurisdiction existed to adjudicate massive class actions alleging claims for aiding and abetting torture, aiding and abetting "extrajudicial killing," aiding and abetting "arbitrary denationalization," "cruel, inhuman, and degrading treatment," and aiding and abetting apartheid.

Corporate defendants scored a few lower court successes in 2009 despite clear trending in favor of expanding "law of nations" types of claims. At least one court refused to certify a class action of ATCA claims citing problems with cohesiveness, predominance, superiority and manageability. See Roe v. Bridgestone Corp., 257 F.R.D. 159, 172-73 (S.D. Ind. 2009). Also, a series of decisions have used American common law or rules-based defenses to defeat ATCA claims including Sinaltrainal v. The Coca Cola Co., 2009 U.S. App. Lexis 17764 (11th Cir. Aug. 11, 2009) in which the court was faced with four consolidated cases in which trade union leaders claimed that Colombian paramilitary forces had committed torture and murder, and that their employers and other corporate defendants were liable under the ATCA through various conspiracy, agency, alter ego, and aiding and abetting theories. The Sinaltrainal court granted the defendants' motion to dismiss for lack of subject matter jurisdiction under the ATCA, citing the U.S. Supreme Court's notice pleading decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) holding that the plaintiffs' allegations that the paramilitary forces acted under color of law and that there was a conspiracy among the defendants were simply insufficient to plead a claim under Rule 8 of the Federal Rules of Civil Procedure. Finally, the 2d Circuit also affirmed a trial court's forum non conveniens dismissal of an ATCA claim. See Turedi v. The Coca-Cola Co., 2009 U.S. App. Lexis 14794 (2d Cir. July 7, 2009).

With no legislative relief in sight, multinational corporations will continue to face ATCA claims in U.S. courts in 2010, although it remains to be determined how much leeway plaintiffs will have to creatively frame their cases after confronting pleading, class action, and evidentiary pleading hurdles.