Amicus Curiae Brief — Nestlé USA, Inc., Petitioner v. John Doe I, et al.

Supreme Court briefSep 8, 2020

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Nos. 19-416 & 19-453

IN THE

Supreme Court of the United States

————

NESTLÉ USA, INC.,

Petitioners,

JOHN DOE I, et al.,

————

Respondents.

CARGILL, INCORPORATED,

Petitioner,

JOHN DOE I, et al.,

————

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF THE CATO INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

————

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Avenue, NW

Washington, DC 20001

ishapiro@cato.org

(202) 842-0200

OWEN C. PELL

Counsel of Record

CLAIRE A. DELELLE

BRYAN A. MERRYMAN

CATHERINE S. SIMONSEN

WHITE & CASE LLP

1221 Avenue of the Americas

New York, NY 10020

(212) 819-8200

opell@whitecase.com

Counsel for Amicus Curiae

September 8, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTIONS PRESENTED

Whether an “aiding and abetting” claim

against a U.S. corporation brought under the Alien

Tort Statute may overcome the bar on liability for

actions taken abroad where the claim is based on

allegations of general corporate activity in the United

States and where the plaintiffs cannot trace the

alleged harms, which occurred abroad at the hands of

unidentified foreign actors, to that activity; and

Whether the judiciary has the authority under

the Alien Tort Statute to impose liability on U.S.

corporations.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

TABLE OF CITED AUTHORITIES ......................... iv

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

I. THERE IS NO BINDING CUSTOMARY

NORM REGARDING CORPORATE

CONDUCT THAT VIOLATES

INTERNATIONAL LAW—

PARTICULARLY AS TO AIDING AND

ABETTING THOSE VIOLATIONS .................4

The Claims Here Implicate Norms of

Corporate and Accessorial Conduct. ........... 5

Nations Diverge Widely on Their

Recognition of Corporate Liability and

the Circumstances Under Which It Will

Arise. ............................................................ 9

Major Jurisdictions Take

Fundamentally Distinct

Approaches to Corporate

Liability. ......................................10

Corporate Conduct Relating to

Aiding and Abetting Liability

Is Even More Fraught and

Unsettled. ....................................18

II. CAUTION REQUIRES CONGRESS TO

GRANT SPECIFIC AUTHORITY FOR

CORPORATE CONDUCT LIABILITY—

PARTICULARLY FOR AIDING AND

LLL

ABETTING CRIMES UNDER

INTERNATIONAL LAW ................................21

The Actions of the First Congress

Confirm that the ATS Does Not Grant

Jurisdiction Over Causes of Action for

Aiding and Abetting Violations of

International Law. ..................................... 22

It Is for Congress to Determine

Whether and When Corporate Conduct

for Aiding and Abetting Torts Under

International Law Should Be

Recognized Under the ATS, Especially

Where the Primary Tortfeasors, Their

Conduct, and Their Victims Are Outside

the United States. ...................................... 25

CONCLUSION ......................................................... 31

TABLE OF CITED AUTHORITIES

CASES

Bundesgerichtshof [BGH] [Federal

Court of Justice] May 13, 1995,

judgment of 13.05.1955, file no. I ZR

137/53 (Ger.) ........................................................... 14

Bundesgerichtshof [BGH] [Federal

Court of Justice] Apr. 20, 1971, file no.

VI ZR 232/69 (Ger.)................................................. 14

Canadian Dredge & Dock Co. v. The

Queen, [1985] 1 S.C.R. 662 (S.C.C.)

(Can.) ................................................................. 12, 13

Cent. Bank, N.A. v. First Interstate

Bank, N.A., 511 U.S. 164 (1994) ................ 19, 23, 25

Cour de cassation [Cass.] [Supreme

Court for Judicial Matters], crim., Apr.

21, 2020, Bull. crim., No. 19-84.506

(Fr.) ......................................................................... 12

Cour de cassation [Cass.] [Supreme

Court for Judicial Matters], crim.,

June 7, 2017, Bull. crim., No. 1587.214 (Fr.) ............................................................. 13

Cour de cassation [Cass.] [Supreme

Court for Judicial Matters], civ.,

September 25, 2012, Bull. civ., No. 1082.938 (Fr.) ............................................................. 15

Cour de cassation [Cass.] [Supreme

Court for Judicial Matters], crim., Dec.

17, 2003, Bull. crim., No. 00-87872

(Fr.) ......................................................................... 12

Doe v. Exxon Mobil Corp., 654 F.3d 11

(D.C. Cir. 2011) ................................................... 6, 26

Doe v. Nestle, S.A., 748 F. Supp. 2d 1057

(C.D. Cal. 2010) ...................................................... 25

Doe I v. Unocal Corp., 395 F.3d 932 (9th

Cir. 2002) .................................................................. 8

Hamer v. Neighborhood Hous. Servs.,

138 S. Ct. 13 (2017) ................................................ 25

In the Case Against Al Jadeed [Co.]

S.A.L./New T.V. S.A.L. (N.T.V.) and al

Khayat, STL-14-05/A/AP, Public

Redacted Version of Judgment on

Appeal (Special Trib. Leb. Mar. 8,

2016) .......................................................................... 5

Jesner v. Arab Bank, PLC, 138 S. Ct.

1386 (2018) ..................................................... passim

Khulumani v. Barclay Nat’l Bank Ltd.,

504 F.3d 254 (2d Cir. 2007) ...................................... 8

Kiobel v. Royal Dutch Petroleum, 569

U.S. 108 (2013) ................................................. 21, 25

Kiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010) ...................................... 6

Lee v. Transamerica Life Canada, [2017]

BCSC 84 (B.C.) (Can.) ............................................ 19

Lennard’s Carrying Co., Ltd. v Asiatic

Petroleum Co., Ltd. [1915] AC 705

(HL) (UK) .......................................................... 12, 15

Me. Cmty. Health Options v. United

States, 140 S. Ct. 1308 (2020) ................................ 22

Piper Aircraft Co. v. Reyno, 454 U.S. 235

(1981) ...................................................................... 27

Sosa v. Alvarez-Machain, 542 U.S. 692

(2004) .............................................................. passim

Standard Investments Ltd. v. Canadian

Imperial Bank of Commerce, [1985] 22

D.L.R. (4th) 410 (Can. Ont. C.A.)........................... 13

Tesco v. Brent London Borough Council

[1994] 2 All ER 99 (HL) (UK) ................................. 12

Tesco Supermarkets, Ltd. v. Nattrass,

[1972] A.C. 153 (UK) ........................................ 12, 16

The Chapman, 5 F. Cas. 471 (N.D. Cal.

1864) ........................................................................ 24

CONSTITUTIONAL PROVISIONS

Costituzione [Cost.], Art. 27 (It.) ............................... 10

Grundgesetz [GG] [Basic Law], Art. 103

par. 2 (Ger.) ............................................................. 10

YLL

Grundgesetz [GG] [Basic Law], Art. 20

par. 3 (Ger.) ............................................................. 10

STATUTES

28 U.S.C. § 1350 ..................................................... 2, 22

28 U.S.C. § 1350 note (TVPA) ............................... 3, 30

28 U.S.C. § 1605(a)(5) ................................................ 28

Accessories and Abettors Act 1861, 24 &

25 Vict. c. 94, § 8 (Eng.) .......................................... 19

Act of April 30, 1790, ch. 9, § 28, 1 Stat.

112, 118 (1790)........................................................ 24

Act of April 30, 1790, ch. 9, §§ 8, 10, 1

Stat. 112, 114 (1790)............................................... 24

Act of April 6, 1869, ch. 11, 16 Stat. 7

(1869) ...................................................................... 24

Act of July 14, 1870, ch. 254, § 2, 16

Stat. 254, 255 (1870)............................................... 24

Act of March 4, 1909, ch. 14, § 332, 35

Stat. 1088, 1152 (1909)........................................... 24

Brottsbalken [BrB] [Penal Code] 36:7

(Swed.)..................................................................... 10

Bürgerliches Gesetzbuch [BGB] [Civil

Code], Sec. 31 (Ger.) ......................................... 14, 15

Bürgerliches Gesetzbuch [BGB] [Civil

Code], Sec. 823 (Ger.) ............................................. 14

YLLL

California Transparency in Supply

Chains Act of 2010, Cal. Civ.

Code § 1714.43 (Deering 2020) .............................. 29

Code civil [C. civ.] [Civil Code] arts.

1240-1241 (Fr.) ....................................................... 16

Code civil [C. civ.] [Civil Code] art. 1242

(Fr.) ......................................................................... 15

Code de commerce [C. com.]

[Commercial Code] art. L. 225-102-5

(Fr.) ......................................................................... 17

Code pénal [C. pén.] [Penal Code] art.

121-2 (Fr.) ......................................................... 12, 19

Code pénal [C. pén.] [Penal Code] art.

121-3 (Fr.) ............................................................... 16

Code pénal [C. pén.] [Penal Code] art.

121-6 (Fr.) ............................................................... 19

Code pénal [C. pén.] [Penal Code] art.

121-7 (Fr.) ............................................................... 19

Companies Act, Act No. 86 of 2005, art.

349 (Japan) ............................................................. 15

Companies Act, Act No. 86 of 2005, art.

350 (Japan) ............................................................. 15

Companies Act, Act No. 86 of 2005, art.

354 (Japan) ............................................................. 15

Companies Act, Act No. 86 of 2005, art.

975 (Japan) ............................................................. 11

Criminal Code (R.S.C., 1985), c. C46, § 2 (Can.) ........................................................... 11

Criminal Code (R.S.C., 1985), c. C46, § 22.2 (Can.) ...................................................... 16

Criminal Code Act 1995, divs 268, 270,

271 (Austl.) ............................................................. 18

Criminal Code Act 1995, pt 2.5, div 12,

s 12.3 (Austl.) .................................................... 14, 16

Criminal Law Act 1977, c. 45, § 65(4),

sch. 12 (UK) ............................................................ 19

Decreto Legislativo 8 giugno 2001, n.

231 [Legislative Decree no. 231], G.U.

Giu. 19, 2001 (It.)........................................ 10, 14, 17

Gesetz über Ordnungswidrigkeiten

[Administrative Offenses Act], Sec. 30

(Ger.) ....................................................................... 10

Interpretation Act 1978, c. 30, § 5, sch. 1

(UK) ......................................................................... 11

Interpretation Act 1978, c. 30, §§ 22-23,

sch. 2(4)(5) (UK)...................................................... 11

Keihż (Penal Code) (Japan) ....................................... 11

Labor Standards Act, Act No. 49 of 1947,

art. 121 (Japan) ...................................................... 14

[

Loi 2004-204 du 9 mars 2004, portant

adaptation de la justice aux évolutions

de la criminalité [Law 2004-204 of 9

March 2004, Adapting Justice to

Developments in Crime] art. 54,

Journal Officiel de la République

Française [J.O.] [Official Gazette of

France], March 10, 2004 (Fr.) ................................ 11

Loi 2017-399 du 27 mars 2017 relative

au devoir de vigilance des sociétés

mères et des entreprises donneuses

d’ordre [Law no. 2017-399 of 27 March

2017, on the Duty of Vigilance for

Parent and Instructing Companies],

Journal Officiel de la République

Française [J.O.] [Official Gazette of

France], Mar. 28, 2017 (Fr.) ................................... 17

Minpż [Civ. C.] [Civil Code] Act No. 89 of

1896, art. 715 (Japan) ............................................ 15

Strafgesetzbuch [StGB] [Penal Code]

§ 27 (Ger.) ............................................................... 19

Ugolovnyᐼ Kodeks Rossiᐼskoᐼ Federatsii

[UK RF] [Criminal Code] art. 19

(Russ.) ..................................................................... 10

Wetboek van Strafrecht [Sr] [Penal Code]

Art. 5:51 (Neth.)...................................................... 11

FEDERAL RULES

Fed. R. Civ. P. 26(b) ................................................... 26

Sup. Ct. R. 24.1(a) ...................................................... 24

OTHER AUTHORITIES

An Act Relating to Transparency in

Agricultural Supply Chains, S.B. 5693,

2020 Reg. Sess. (Wash. 2020)................................. 29

Australian Law Reform Commission,

Final Report: Corporation Criminal

Responsibility (Apr. 2020) ...................................... 29

Brief Amicus Curiae of Nuremburg

Historians and International Lawyers

in Support of Neither Party, Kiobel v.

Royal Dutch Petroleum Co., 569 U.S.

108 (No. 10-1491) ...................................................... 6

Business Supply Chain Transparency on

Trafficking and Slavery Act of 2020,

H.R. 6279, 116th Congress (2020) ................... 29, 30

Corporate Liability for Serious Human

Rights Abuses in Third Countries,

Eur. Parl. (DOC. INI 2015/2315) (2016) ................. 18

European Commission Directorate

General for Justice and Consumers,

Study on Due Diligence Requirements

through the Supply Chain (2020),

https://bit.ly/31VhULA ........................................... 29

[LL

Federal Republic of Germany, Foreign

Office, National Action Plan:

Implementation of the UN Guiding

Principles on Business and Human

Rights (2017)........................................................... 17

FIDH, Italian Legislative Decree No.

231/2001: A Model for Mandatory

Human Rights Due Diligence

Legislation? (2019) ................................................. 18

Jennifer Zerk, Office of the UN High

Commissioner for Human Rights,

Corporate Liability for Gross Human

Rights Abuses: Towards a Fairer and

More Effective System of Domestic

Law Remedies (2013).................................. 13, 20, 21

Leveraging Information on Foreign

Traffickers Act, S. 4478, 116th Cong.

(2020) ...................................................................... 29

Luz & Spagnolo, Leniency, Collusion,

Corruption, and Whistleblowing, 13 J.

of Competition L. & Econ. 729 (2017) .................... 12

Samuel T. Morison, Accepting Sosa’s

Invitation: Did Congress Expand the

Subject Matter Jurisdiction of the

Alien Tort Statute in the Military

Commissions Act?, 43 Geo. J. Int’l L.

1097 (2012) ............................................................. 24

Slave-Free Business Certification Act of

2020, S. 4241, 116th Cong. (2020) ................... 28, 30

[LLL

Thompson, Ramasastry, & Taylor,

Translating Unocal: The Expanding

Web Of Liability For Business Entities

Implicated In International Crimes, 40

Geo. Wash. Int’l L. Rev. 841 (2009) ................. 20, 21

Timothy P. Harkness et al., Fed. Jud.

Ctr., Discovery in International Civil

Litigation: A Guide for Judges (2015) ................... 27

INTEREST OF AMICUS CURIAE

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books, studies, and the annual Cato

Supreme Court Review, conducts conferences, and

files amicus briefs. This case concerns Cato because it

raises vital questions about the role of federal judges

in defining the scope of federal jurisdiction and the

manner in which they interpret international law to

define that scope.1

SUMMARY OF ARGUMENT

This Court has made clear that the Alien Tort

Statute, 28 U.S.C. § 1350 (“ATS”), must be

interpreted with rigor and care. Under Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004), to recognize a

cause of action under the ATS, courts must find not

only (i) that the norms at issue are specific, universal,

and obligatory under the law of nations, but also (ii)

that proceeding with the case under the ATS is a

1 No counsel for a party authored this brief in whole or in

part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No one other than amicus curiae or its members made

a monetary contribution to the preparation or submission of this

brief. Counsel for the parties have consented to the filing of

amicus briefs through letters filed with the Clerk of the Court.

proper exercise of judicial discretion, as opposed to

deferring to Congress to grant specific authority.

Two types of conduct under international law are

at issue here: (1) corporate conduct and (2) aiding and

abetting conduct. There is no norm under

international law as to either. A survey of major

jurisdictions shows a broad array of state practice

relating to corporate liability (both criminal and

civil), particularly as to whether and how a

corporation takes the requisite actus reus and acts

with the requisite mens rea. Significantly, state

practice then also varies widely with respect to when

and how corporate conduct can give rise to conduct

punished as aiding and abetting.

Beyond the absence of an international normative

consensus, congressional actions both at the time of

the ATS and now confirm that the Court should defer

to Congress to decide whether and according to what

standards of conduct to hold corporations liable under

international law, in general and specifically for

aiding and abetting violations. The First Congress,

which enacted the ATS, knew how to write a statute

covering aiding and abetting a violation of the law of

nations when it wanted to. That same Congress

criminalized not only piracy (and violations of safe

conduct and infringement of the rights of

ambassadors), but also aiding and abetting piracy. If

it had intended for the ATS to grant jurisdiction over

tort suits for aiding and abetting violations of the law

of nations, it knew how to do so. This legislative

distinction drawn by the First Congress parallels the

more recent action by Congress in not extending to

corporate conduct or aiding and abetting conduct the

Torture Victim Protection Act (“TVPA”) (28 U.S.C.

§ 1350 (note)), the only cause of action created by

Congress under the ATS.

Finally, the different ways that countries have

addressed corporate conduct relating to violations of

international law, including global supply chain

legislation pending in Congress, highlights that this

is an area for legislation, not judicial decisionmaking. This is particularly true where the principal

conduct occurred far away, and would require U.S.

courts to seek the cooperation of parties and

governments accused of wrongdoing and yet beyond

the reach of U.S. jurisdiction.

ARGUMENT

The starting point for assessing any ATS claim is

Sosa, 542 U.S. 692. Sosa mandates a two-part test to

determine whether a cause of action is sufficiently

well defined under the law of nations to be within the

jurisdictional grant of the ATS absent further action

by Congress. This case highlights both the absence of

international consensus relating to the conduct at

issue, and the need to defer to the legislature to grant

specific authority before a claim based on that

conduct may proceed under the ATS.

THERE IS NO BINDING CUSTOMARY

NORM REGARDING CORPORATE

CONDUCT THAT VIOLATES

INTERNATIONAL LAW—PARTICULARLY

AS TO AIDING AND ABETTING THOSE

VIOLATIONS

Under Sosa, a claim under international law must

have as “definite content and acceptance among

civilized nations” as the three “historical paradigms

familiar when § 1350 was enacted” in 1789, Sosa, 542

U.S. at 732: “violation of safe conducts, infringement

of the rights of ambassadors, and piracy.” Id. at 724,

737. This first step of the Sosa test must be applied

rigorously because the ATS is “strictly jurisdictional.”

Id. at 713. Every time a court recognizes a new

international law norm under the ATS, it expands

the original jurisdictional mandate. See Jesner v.

Arab Bank, PLC, 138 S. Ct. 1386, 1412 (2018)

(Gorsuch, J., concurring in part and concurring in the

judgment). Accordingly, this Court has cautioned that

ATS claims must be “subject to vigilant doorkeeping.”

Sosa, 542 U.S. at 729.

The required rigor mandates that normative

practice under international law cannot arise from a

handful of decisions drawn from a variety of

international tribunals, the jurisdictions of which are

set forth in an array of charters to which the United

States and other major states may not have been

parties. Sosa, 542 U.S. at 734-35 (concluding “two

well-known international agreements . . . have little

utility under the [Sosa] standard”).2 International

law is not like common law and is not revealed by

examining different international tribunal rulings.

Absent a claim arising specifically under a treaty to

which the United States is party (as explicitly

provided in § 1350, and where, by necessity, there

has been executive and legislative branch action),

“resort must be had to the customs and usages of

civilized nations.” Id. at 734 (emphasis added)

(citation omitted). Here, the variations among those

customs and usages confirms the absence of a

normative consensus. As the Court also has made

clear, a “high level of generality” is not enough. See,

e.g., id. at 736 n.27 (holding no norm as to “arbitrary

detention,” despite survey “show[ing] that many

nations recognize a norm against arbitrary

detention,” because “that consensus is at a high level

of generality”).

The Claims Here Implicate Norms of

Corporate and Accessorial Conduct.

In this case, there are two forms of conduct to be

assessed under international law. First, the conduct

of corporations as artificial persons, and second, the

2 To the extent discrete international tribunals have chosen

to recognize corporate liability, even those tribunals have

acknowledged the lack of international consensus. See In the

Case Against Al Jadeed [Co.] S.A.L./New T.V. S.A.L. (N.T.V.)

and al Khayat, STL-14-05/A/AP, Public Redacted Version of

Judgment on Appeal, ¶ 191 (Special Trib. Leb. Mar. 8, 2016)

(vacated on other grounds) (“‘[T]here is no relevant international

convention with respect to the elements of corporate liability,

nor international custom or general principles of law’ upon

which to rely.”) (internal quotations and citation omitted).

conduct of an artificial person that can give rise to

accessorial liability, as opposed to direct liability.

Liability for corporate conduct is “a substantive

principle that must be supported by a universal and

obligatory norm if it is to be implemented under the

ATS,” Jesner, 138 S. Ct. at 1402—specifically,

“whether international law extends the scope of

liability for a violation of a given norm to the

perpetrator being sued.” Sosa, 542 U.S. at 732 & n.20;

see id. at 760 (Breyer, J., concurring); Jesner, 138 S.

Ct. at 1400; see also Doe v. Exxon Mobil Corp., 654

F.3d 11, 82 (D.C. Cir. 2011) (Kavanaugh, J.,

dissenting). That international law focuses on the

nature of the entity being held answerable is

evidenced by the historical development of

international law itself: Before Nuremberg, it was not

typical for individuals to be tried for violations of

international law committed by their states. But at

no point were companies arraigned for crimes at

Nuremberg. See Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 136 (2d Cir. 2010), aff’d, 569 U.S.

108 (2013); Brief Amicus Curiae of Nuremburg

Historians and International Lawyers in Support of

Neither Party at 7-13, Kiobel, 569 U.S. 108 (No. 101491).

The artificial nature of the corporate person also

highlights why this is an issue of substantive

conduct—what specific conduct, as taken by whom, is

required to support a claim—and not “a remedial

consideration.” Compare Jesner, 138 S. Ct. at 1402

(Kennedy, J.), with id. at 1420-21 (Sotomayor, J.,

dissenting). Unlike an individual, corporate persons

may be owned or controlled by individuals other than

those committing an alleged crime. Moreover, given

the nature of corporate structures, some individuals

may or may not bind a given corporation by their

actions, and as to any given crime multiple

individuals, who may or may not act in concert or

with knowledge of each other, might commit acts

relevant to a claim. Thus, under national laws, how

courts assess and ascribe liability to individual

conduct varies significantly from how they do so as to

corporate conduct.

In Jesner, a plurality of this Court extensively

examined whether there is a norm under

international law imposing liability for the conduct of

a corporation. See 138 S. Ct. at 1399-1402. It

recognized that no such norm existed as to corporate

conduct, referencing both Nuremberg (which were

proceedings limited to natural persons) and the Rome

Statute, the treaty delineating the International

Criminal Court and limiting that tribunal’s

jurisdiction to natural persons, including by expressly

rejecting a proposal that would have granted the

tribunal jurisdiction over corporate conduct. Id. at

1400-01. Nowhere does the Rome Statute apply

liability under international law to the conduct of an

artificial person.

To be clear, that the conduct of domestic U.S.

companies is routinely subjected to liability under

state and federal law does not bear on the proper

result as to the ATS, because the jurisdictional grant

here relates only to violations of the law of nations—

not U.S. domestic law. As shown in Jesner, Congress

has not routinely ascribed liability under

international law to the conduct of domestic U.S.

companies. There, the plurality considered whether

any analogous statutes supported extending ATS

jurisdiction to companies. Id. at 1403-05. The

plurality found the obvious analog, the TVPA, all but

dispositive. Id. at 1404. The TVPA is the only cause of

action created by Congress under the ATS. In

creating a remedy for torture in violation of

international law, Congress “took care” to exclude

liability for corporate conduct. Id. at 1403-04. A

survey of other major jurisdictions confirms that the

caution shown by the U.S. Congress is not unusual.

Like corporate liability, aiding and abetting

liability relates to specific conduct, and accordingly

cannot be recognized under the ATS absent universal

consensus on its specific contours. Here too, there is

none. Although, under the Rome Statute, individuals

(but not corporations) generally may be prosecuted

for certain forms of accessorial conduct, the treaty

does not delineate the substance of that standard to

anywhere near the level of specificity required by

Sosa. Indeed, different courts of appeals searching for

an international norm as to even a single element of

aiding and abetting—the mens rea element—

including by reference to the Rome Statute, have

reached different conclusions. Compare, e.g.,

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d at

254, 275-77 & n.12 (2d Cir. 2007) (Katzmann, J.,

concurring) (“purpose”), with Doe I v. Unocal Corp.,

395 F.3d 932, 950-53 & nn.26-27 (9th Cir. 2002)

(“knowledge”). A survey of major jurisdictions

confirms that the conduct required to support

accessorial liability is highly varied and unsettled,

including as applied to corporate conduct.

Nations

Diverge

Widely

Their

Recognition of Corporate Liability and the

Circumstances Under Which It Will Arise.

A survey of major jurisdictions confirms that there

is no consensus for ascribing criminal liability to

corporate conduct for offenses under domestic laws—

let alone violations of international law. Rather,

nations vary dramatically and fundamentally on

these issues. The absence of consensus goes beyond

the nature of corporate personality to fundamental

differences relating to corporate conduct and how

corporate culpability is assessed, corporate mens rea

determined, and when the conduct of employees and

agents can bind the corporation.

This survey also shows that there is no universal,

specific, and obligatory norm of corporate aiding and

abetting conduct, which is sufficient to resolve this

case. A number of major jurisdictions have not

extended aiding and abetting liability to corporate

conduct within their domestic systems, and even

those that have done so differ substantially as to how

the elements of an offense are established. Indeed,

again, Congress in the TVPA did not provide for

aiding and abetting liability—after not providing for

corporate liability. Here, Count III of the operative

complaint is for aiding and abetting “torture,”

precisely a cause of action that Congress excluded

from U.S. law. See Pet. J. App. 341-342.

Major Jurisdictions Take

Fundamentally Distinct Approaches to

Corporate Liability.

a. Criminal Liability Generally. Nations differ on

whether corporations may be criminally liable at all.

Germany, Italy, Russia, and Sweden currently do not

ascribe criminal liability to corporate conduct.

Grundgesetz [GG] [Basic Law], Art. 20 par. 3 (Ger.);

id. Art. 103 par. 2 (the principle nulla poena sine

culpa excludes corporations); Costituzione [Cost.]

(It.), Art. 27 (criminal responsibility is personal);

Ugolovny Kodeks RossiVNR Federatsii [UK RF]

[Criminal Code] art. 19 (Russ.) (“Only a sane natural

person . . . shall be subject to criminal liability”).

Instead, countries impose administrative penalties or

fines on corporations for corporate crimes committed

by natural persons associated with companies. See

Gesetz über Ordnungswidrigkeiten [Administrative

Offenses Act], Sec. 30 (Ger.) (corporation may be

fined for criminal offenses committed by directors,

officers, or senior managers that violated the

corporation’s duties or enriched it); Decreto

Legislativo 8 giugno 2001, n. 231 [Legislative Decree

no. 231], G.U. Giu. 19, 2001 (It.) (corporation may be

administratively liable for criminal offenses

committed by directors, executives, and other persons

acting on behalf of the corporation); Brottsbalken

[BrB] [Penal Code] 36:7 (Swed.) (limiting to a fine

corporate liability for a crime committed in the

exercise of business activities).

Even amongst countries that hold corporations

criminally liable, the framework for doing so varies.

The United Kingdom, Canada, and the Netherlands

recognize a general principle of corporate criminal

liability, such that a corporation could potentially be

liable for any crime for which an individual could be

liable. See Interpretation Act 1978, c. 30, § 5, sch. 1

(UK) (“‘Person’ includes a body of persons corporate

or unincorporated.”); id. at §§ 22-23, sch. 2(4)(5) (“The

definition of ‘person’, so far as it includes bodies

corporate, applies to any provision of an Act

whenever passed relating to an offence punishable on

indictment or on summary conviction.”); Criminal

Code (R.S.C., 1985, c. C-46), § 2 (Can.) (businesses

are included within the definition of “every one,

person and owner”); Wetboek van Strafrecht [Sr]

[Penal Code] Art. 5:51 (Neth.) (no distinction between

criminal liability of natural and legal persons). Other

countries, such as Japan, recognize corporate

criminal liability only where a statute explicitly

provides for it. Compare Keihż (Penal Code) (Japan)

(no provisions to punish legal persons), with

Companies Act, Act No. 86 of 2005, art. 975 (Japan)

(imposing criminal penalties on corporations). France

historically held companies liable only for specific

offenses, but since 2004 recognizes general corporate

criminal liability. Loi 2004-204 du 9 mars 2004,

portant adaptation de la justice aux évolutions de la

criminalité [Law 2004-204 of 9 March 2004, Adapting

Justice to Developments in Crime] art. 54, Journal

Officiel de la République Française [J.O.] [Official

Gazette of France], March 10, 2004, p. 4567 (Fr.).

Brazil generally does not hold corporations criminally

liable, except for certain environmental crimes. See

Luz & Spagnolo, Leniency, Collusion, Corruption,

and Whistleblowing, 13 J. of Competition L. & Econ.

729, 745 (2017). Instead, Brazil imposes civil and

administrative liability on corporations, with the

opportunity for leniency if the corporation

implements compliance models. See id. at 744-745 &

nn.70, 75 & 77.

b. Whose Conduct is Ascribed to the Company?

Under the “identification” or “attribution” model,

followed by the United Kingdom, Canada, and

France, the acts of certain corporate officers or senior

managers may be treated as the acts of the

corporation itself, even if not authorized. See

Lennard’s Carrying Co., Ltd. v Asiatic Petroleum Co.,

Ltd. [1915] AC 705 (HL) (UK);3 Code pénal [C. pén]

[Penal Code] art. 121-2 (Fr.);4 Canadian Dredge &

Dock Co. v. The Queen, [1985] 1 S.C.R. 662 (S.C.C.)

The United Kingdom generally imposes criminal

liability based on the acts of senior corporate leaders who form

the “directing mind” of the corporation, but in limited

circumstances may also hold corporations vicariously liable for

acts of lower-level employees. Compare Tesco Supermarkets,

Ltd. v. Nattrass, [1972] A.C. 153 (corporation not liable for acts

of store manager who was not the directing mind of the

company), with Tesco v. Brent London Borough Council [1994] 2

All ER 99 (HL) (corporation liable for the acts of a store clerk

based on vicarious liability).

4 France holds corporations criminally liable only for the

wrongful acts of “organs or representatives,” meaning persons to

whom the articles of incorporation grant powers of direction,

management, or administration, or who act in the name of and

on behalf of the corporation. Code pénal [C. pén.] [Penal Code]

art. 121-2 (Fr.); see Cour de cassation [Cass.] [Supreme Court

for Judicial Matters], crim., Apr. 21, 2020, Bull. crim., No. 1984.506 (Fr.) (discussing identity of representatives whose acts

may give rise to corporate liability); Cour de cassation [Cass.]

[Supreme Court for Judicial Matters], crim., Dec. 17, 2003, Bull.

crim., No. 00-87872 (Fr.) (same).

(Can.) (adopting “directing mind and will” standard

for ascribing the acts of officers to a corporation).

Some, but not all, countries that follow the

identification approach require the act to be

committed in the interests of the corporation for

corporate liability to attach. See, e.g., Canadian

Dredge & Dock Co., [1985] 1 S.C.R. 662 (S.C.C.)

(Can.).

most

countries

following

the

“identification” approach, all elements of an offense

must be proven as to a specific individual or group of

individuals. See, e.g. Cour de cassation [Cass.]

[Supreme Court for Judicial Matters], crim., June 7,

2017, Bull. crim., No. 15-87.214 (Fr.); see also

Jennifer Zerk, Office of the UN High Commissioner

for Human Rights, Corporate Liability for Gross

Human Rights Abuses: Towards a Fairer and More

Effective System of Domestic Law Remedies 33 (2013)

(hereinafter “UNHCHR Report”). Yet in the

Netherlands, a legal person may be criminally liable

based on the collective acts and knowledge of

multiple individuals within the corporation,

UNHCHR Report at 34, and in Canada the

knowledge and acts of multiple principal officers may

be aggregated to determine whether the corporation

behaved negligently, even if those individuals’ acts do

not on their own reach the level of negligence,

Standard Investments Ltd. v. Canadian Imperial

Bank of Commerce, [1985] 22 D.L.R. (4th) 410 at 43031 (Can. Ont. C.A.).

Countries using an “organizational” approach may

find a corporation criminally responsible for a

wrongful act without determining that any natural

person, acting individually or collectively as an agent

for the corporation, has committed the elements of

the offense. Under this approach, the focus often is on

organizational failures, such as lack of control or poor

corporate culture. See Criminal Code Act 1995, pt 2.5,

div 12, s 12.3 (Austl.). Japan and Italy go so far as to

presume a company criminally or administratively

liable, respectively, when their agents commit certain

wrongful acts, though in Italy the presumption

applies only to acts by high-level employees or

officers. In both countries, this shifts the burden to

the corporation to show it instituted adequate

safeguards against wrongdoing, such as by following

certain organizational and management models and

demonstrating efforts at diligence and control. See,

e.g., Labor Standards Act, Act No. 49 of 1947, art. 121

(Japan); Decreto Legislativo 8 giugno 2001, n. 231,

art. 6, G.U. Giu. 19, 2001 (It.).

Still other countries use a combination of

attribution and organizational models. Germany may

attribute intentional misconduct by a senior officer to

a corporation to establish a corporation’s civil

liability, but German case law simultaneously obliges

a corporation to appoint board members to ensure

third parties are not harmed by the corporation’s

activities, and the corporation may be liable for

failing to meet these organizational duties if injury

results. Bürgerliches Gesetzbuch [BGB] [Civil Code],

Secs. 31, 823 (Ger.); Bundesgerichtshof [BGH]

[Federal Court of Justice] Apr. 20, 1971, file no. VI

ZR 232/69 (Ger.); Bundesgerichtshof [BGH] [Federal

Court of Justice] May 13, 1995, judgment of

13.05.1955, file no. I ZR 137/53 (Ger.).

In the civil context, Germany holds corporations

liable only for the acts of directors, corporate officers,

or senior managers. Bürgerliches Gesetzbuch [BGB]

[Civil Code], Sec. 31 (Ger.) (“[T]he association is liable

for the damage to a third party that the board, a

member of the board or another constitutionally

appointed representative causes through an act

committed by it or him in carrying out the

business . . . .”). France and Japan may hold a

corporation civilly liable for the acts of directors and

senior managers, as well as ordinary employees. Cour

de cassation [Cass.] [Supreme Court for Judicial

Matters], civ., September 25, 2012, Bull. civ., No. 1082.938 (Fr.) (corporation civilly liable based on

conduct of representative); Code civil [C. civ.] [Civil

Code] art. 1242 (Fr.) (masters may be liable for

damage caused by their servants in the functions for

which they have employed them); Companies Act, Act

No. 86 of 2005, arts. 349, 350, 354 (Japan) (company

may be liable for torts of a representative director);

Minpż [Civ. C.] [Civil Code] Act No. 89 of 1896, art.

715 (Japan) (company may be civilly liable for

wrongful acts of employees). The United Kingdom

also holds companies liable for the torts of

representatives and employees at varying levels of

seniority, but acts of employees must be authorized

by individuals who form the “directing mind” of the

corporation to give rise to corporate liability. See

Lennard’s Carrying Co., Ltd. v Asiatic Petroleum Co.,

Ltd. [1915] AC 705 (HL) (UK).

c. Corporate Mens Rea. There also is no

consensus on whose mental state is ascribed to

corporate conduct. In the United Kingdom and

Canada, the mental states of top officers or managers

are imputed to the company itself for criminal

liability. See Tesco Supermarkets, Ltd. v. Nattrass,

[1972] A.C. 153, 169-71 (“[The living person] speaks

through the persona of the company, with his

appropriate sphere, and his mind is the mind of the

company. If it is a guilty mind then the guilt is the

guilt of the company.”); Criminal Code (R.S.C., 1985),

c. C-46, § 22.2 (Can.) (mental state of senior officers

who commit criminal acts with the intent to benefit

the corporation may give rise to corporate criminal

liability). In France, corporate criminal liability

depends on establishing mens rea as to an organ or

representative of the corporation who is a natural

person, but this is not treated as the corporation’s

own mental state. See Code pénal [C. pén.] [Penal

Code] art. 121-3 (Fr.). In the civil context, France will

impose liability on corporations for the conduct of

employees, including low-level employees, without

imputing a mental state to the corporation. See Code

civil [C. civ.] [Civil Code] arts. 1240-1241 (Fr.)

(providing for civil liability when fault causes

damage). In Australia, the Criminal Code, in addition

to ascribing the mental states of directors or high

managerial agents to the corporation, determines

“fault” as to criminal liability through an analysis of

the corporation’s organization and culture. See

Criminal Code Act 1995, pt 2.5, div 12, s 12.3 (Austl.)

(corporate mens rea may be established by showing a

corporation “expressly, tacitly or impliedly authorised

or permitted the commission” of an offense, including

through “a corporate culture . . . that directed,

encouraged, tolerated or led to non-compliance”).

d. Further evidencing the absence of international

consensus

are

nations’

differing

legislative

approaches to holding corporations liable for

violations of international human rights law. In

France, companies are required to implement due

diligence plans to prevent human rights abuses

resulting from their activities, and the activities of

companies they directly or indirectly control and

subcontractors or suppliers with whom they have

relationships. Failing to implement a plan can lead to

civil liability. Loi 2017-399 du 27 mars 2017 relative

au devoir de vigilance des sociétés mères et des

entreprises donneuses d’ordre [Law no. 2017-399 of

27 March 2017, on the Duty of Vigilance for Parent

and Instructing Companies], Journal Officiel de la

République Française [J.O.] [Official Gazette of

France], Mar. 28, 2017 (Fr.); Code de commerce [C.

com.] [Commercial Code] art. L. 225-102-5 (Fr.).

Germany, by contrast, has announced that

corporations are “expected” to implement a corporate

due diligence plan, but currently does not impose

legally enforceable obligations to do so. Federal

Republic of Germany, Foreign Office, National Action

Plan: Implementation of the UN Guiding Principles

on Business and Human Rights (2017). Italy subjects

companies to administrative liability for offenses

listed in Legislative Decree No. 231/2001, including

human rights violations, committed in the company’s

interest and related to an “organizational fault”

within the company. But rather than imposing a legal

obligation to conduct diligence, Italian law offers

corporations immunity from administrative liability

in exchange for adopting organizational “models” that

identify and protect against the listed offenses. See

FIDH, Italian Legislative Decree No. 231/2001: A

Model for Mandatory Human Rights Due Diligence

Legislation? 5 (2019). Countries such as Australia

have given effect to international human rights

agreements broadly through their domestic criminal

codes (see, e.g., Criminal Code Act 1995, divs 268,

270, 271 (Austl.)), while other countries, including

Canada and Japan, prohibit certain human rights

violations as a matter of domestic law, but have not

developed frameworks imposing obligations on

corporations directly.

The absence of a consensus approach to corporate

conduct relating to international law crimes is well

recognized. For example, in 2016, the European

Parliament passed a motion on corporate liability for

serious human rights abuses in third countries

precisely because “a global holistic approach to

corporate liability for human rights abuses is still

lacking.” Corporate Liability for Serious Human

Rights Abuses in Third Countries, Eur. Parl. (DOC.

INI 2015/2315) (2016).

Corporate Conduct Relating to Aiding

and Abetting Liability Is Even More

Fraught and Unsettled.

a. Generally. Aiding and abetting liability as a

general matter, whether for natural persons or

corporations, is even more unsettled.5 Jurisdictions

5 Indeed, civil aiding and abetting liability is “at best

uncertain in application” even within the United States itself.

Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164,

181-82 (1994) (noting that state courts, legislatures, treatises,

and the Restatement (Second) of Torts take different

approaches). If the jurisdictions of a single country cannot reach

“definite content and acceptance” on civil accessorial liability,

then, a fortiori, respondents cannot reach the showing

take varied approaches to whether, and how, to

regulate conduct relating to aiding and abetting

activity, such as through “blanket” aiding and

abetting statutes or instead a situational approach.

The United Kingdom, for example, takes the blanket

approach to criminal offenses. See Accessories and

Abettors Act 1861, 24 & 25 Vict. c. 94, § 8 (Eng.) (as

amended by Criminal Law Act 1977, c. 45, § 65(4),

sch. 12 (UK)). French law expressly provides a

similar, universal aiding and abetting approach,

though with separate provisions expressly tailored to

corporations. See Code pénal [C. pén.] [Penal Code]

arts. 121-2, 121-6, and 121-7 (Fr.)). Germany’s

blanket approach, by contrast, covers only natural

persons and not corporations. See Strafgesetzbuch

[StGB] [Penal Code] § 27 (Ger.)). As to civil liability,

some nations, like Canada, do not recognize civil

aiding and abetting liability at all. See Lee v.

Transamerica Life Canada, [2017] BCSC 84 (B.C.).

b. Actus Reus and Causation. Even when nations

do ascribe aiding and abetting liability to corporate

conduct, they vary as to the required actus reus and

its causal connection to the principal harm. See

UNHCHR Report at 37. Some nations require the

actus reus to be “indispensable” to the commission of

the crime. See Thompson, Ramasastry, & Taylor,

Translating Unocal: The Expanding Web Of Liability

For Business Entities Implicated In International

Crimes, 40 Geo. Wash. Int’l L. Rev. 841, 864 & n.108

(2009) (hereinafter, “Translating Unocal”); UNHCHR

demanded by Sosa under international law. See Sosa, 542 U.S.

at 732.

Report at 36-37. Others provide for liability where

the acts “merely contribute in some manner to the

crime,” id., and still others require a showing of

“substantial” assistance. See id. at 860, 864 & n.108.

Countries further disagree as to whether affirmative

acts are necessary or failure to act will suffice. Id. at

863 & nn.105-107; UNHCHR Report at 38.

c. Mens Rea. The approaches to mens rea also

substantially differ among nations. Countries broadly

adopt one or more of three standards: “intent,” or

providing assistance with the intent to complete the

principal crime; “knowledge,” or providing assistance

with the knowledge that the assistance could aid in

completing the principal crime; and/or “dolus

eventualis,” or providing assistance with awareness

of the risk that the perpetrator will complete the

principal crime. See Translating Unocal, 40 Geo.

Wash. Int’l L. Rev. at 860-61 & nn.87-92, 864-65 &

nn.113-116; UNHCHR Report at 38 (comparing 11

countries’ approaches to mens rea; summarizing

three primary formulations). A single jurisdiction will

even apply different standards in different contexts.

See id. at 864-65 & n.116; UNHCHR Report at 38.

Under Sosa, these varied approaches to how

corporate conduct is assessed, and when and how

certain conduct supports aiding and abetting, ends

the analysis in this case because it establishes that

there is no universal and obligatory approach. See

also UNHCHR Report 108-09 (observing that

“[a]chieving a high level of convergence” in practice

across states “would either mean, for many States,

creating separate rules for aiding and abetting in

relation to gross human rights abuses specifically, or

making reforms to the general law to bring this in

line with the consensus concerning liability for gross

human rights abuses”).

II.

CAUTION REQUIRES CONGRESS TO

GRANT

SPECIFIC

AUTHORITY

FOR

CORPORATE

CONDUCT

LIABILITY—

PARTICULARLY

FOR

AIDING

AND

ABETTING

CRIMES

UNDER

INTERNATIONAL LAW

Under Sosa, identifying “international law norms

that are ‘specific, universal, and obligatory’ . . . is only

the beginning of defining a cause of action” under the

ATS. Kiobel, 569 U.S. at 117. Even if corporate aiding

and abetting liability for crimes under international

law were sufficiently normative, “it must be

determined further whether allowing th[e] case to

proceed under the ATS is a proper exercise of judicial

discretion, or instead whether caution requires the

political branches to grant specific authority” before

corporate conduct liability—and at a minimum,

corporate conduct for aiding and abetting liability—

“can be imposed.” Jesner, 138 S. Ct. at 1399.

Here, it is the latter for two reasons: (i) the nature

of aiding and abetting liability generally has required

legislative action, even within the confines of U.S.

law, and particularly for corporate aiding and

abetting; and (ii) given the significant disparities in

how corporate conduct is assessed under the laws of

major nations and the remote nature of the claims

being asserted, this is particularly an area where

Congressional action is required.

The Actions of the First Congress Confirm

that the ATS Does Not Grant Jurisdiction

Over Causes of Action for Aiding and

Abetting Violations of International Law.

Caution is warranted before establishing

jurisdiction by judicial fiat for aiding and abetting an

international law violation because Congress has

expressly demonstrated that it knows how to

authorize such claims but did not do so under the

ATS. “[S]tatutory interpretation begins with the

text.” Me. Cmty. Health Options v. United States,

140 S. Ct. 1308, 1320 (2020) (citation and internal

quotation marks omitted). The 33 words of the ATS

make no mention of aiding and abetting, or anything

that might include accessorial liability. Rather, for

ATS jurisdiction to exist, the defendant must have

“committed” a “tort” “in violation of the law of nations

or a treaty of the United States.” 28 U.S.C. § 1350. An

aiding and abetting claim is not within the ambit of

the jurisdictional grant made by Congress.

“[A]iding and abetting liability reaches persons

who do not engage in the proscribed activities at all,

but who give a degree of aid to those who do.” Cent.

Bank, 511 U.S. at 176 (emphasis added). In the

context of the ATS, the jurisdictional grant applies

only to an alien’s suit against the perpetrators of a

tort under international law—not persons who only

assist the perpetrators. The issue “is not whether

imposing private civil liability on aiders and abettors

is good policy but whether aiding and abetting is

covered by the statute.” Id. at 177. By the statute’s

plain text, it is not. The Court “cannot amend the

statute to create [jurisdiction of] acts that are not

themselves within the meaning of the statute.” Id. at

177-78.6

Significantly, the First Congress, which enacted

the ATS, expressly showed that it “knew how to

i[nvoke] aiding and abetting liability when it chose to

do so” (Cent. Bank, 511 U.S. at 176)—and specifically

understood this as to claims based on international

law. That same Congress also passed the Act for the

Punishment of Certain Crimes Against the United

States, making piracy a federal felony punishable by

death. But that Act then separately criminalized

acting as an “accessory to such piracies” by

“knowingly and wittingly aid[ing] and assist[ing],

procur[ing], command[ing], counsel[ing] or advis[ing]

any person or persons, to do or commit any . . . piracy

aforesaid.” Act of April 30, 1790, ch. 9, §§ 8, 10, 1

Stat. 112, 114 (1790). By contrast, with respect to the

other two crimes then recognized under international

law and covered by the ATS (safe conduct and the

safety of ministers or ambassadors), Congress did not

act as broadly. The Act made it a federal crime to

“violate any safe conduct” or “assault, strike, wound,

imprison, or in any other manner infract the law of

nations, by offering violence to the person of an

ambassador or other public minister.” But, unlike

6 That some treaties and international tribunals may

generally recognize (individual) liability for aiding and abetting

violations of the law of nations, does not mean there is an

international consensus that—or when—such conduct (much

less corporate aiding and abetting conduct) is itself a violation of

the law of nations.

piracy, the Act did not then outlaw aiding and

abetting those violations. Id., § 28, 1 Stat. 112, 118.7

This shows that the First Congress expressly

understood how to include aiding and abetting a

crime under international law within the ambit of a

statute when it intended to do so—and when it did

not. Under these circumstances, it must be presumed

that Congress did not intend to include aiding and

abetting violations of the law of nations generally

within the ambit of the ATS. Cent. Bank, 511 U.S. at

177; cf. Sosa, 542 U.S. at 711 n.9 (2004) (rejecting

“[t]he Government’s request that we read that phrase

[‘act or omission’] into the foreign country exception

7 In criminalizing aiding and abetting piracy, the First

Congress went beyond “the widely accepted definition of the

international crime of ‘general piracy,” which at the time

covered only “‘any person’ who committed robbery ‘upon the high

seas, or in any river, haven, basin or bay, out of the jurisdiction

of any particular state.’” Samuel T. Morison, Accepting Sosa’s

Invitation: Did Congress Expand the Subject Matter

Jurisdiction of the Alien Tort Statute in the Military

Commissions Act?, 43 Geo. J. Int’l L. 1097, 1116 (2012); see The

Chapman, 5 F. Cas. 471, 474 (N.D. Cal. 1864) (quoting then-to-

be Chief Justice Marshall cautioning against “confounding

general piracy,” “under the law of nations,” “with piracy by

statute”). Further highlighting the need to allow Congress to

determine the nature and scope of aiding and abetting liability

is that it then took over 80 more years for Congress to extend

aiding and abetting beyond a few individual offenses like piracy.

See, e.g., Act of July 14, 1870, ch. 254, § 2, 16 Stat. 254, 255

(1870) (accessories to false documentation in immigration cases);

Act of April 6, 1869, ch. 11, 16 Stat. 7 (1869) (aiding or abetting

embezzlement); Act of March 4, 1909, ch. 14, § 332, 35 Stat.

1088, 1152 (1909) (codified as amended at 18 U.S.C. § 2(a)

(providing criminal accessorial liability for aiding any “offense

defined in any law of the United States” ).

[to the waiver of immunity provided in the Federal

Tort Claims Act], when it is clear Congress knew how

to specify ‘act or omission’ when it wanted to”). The

rule recognized in Central Bank should apply with

greater force here, where the Court has emphasized

the need for extreme “judicial caution when

considering the kinds of individual claims that might

implement the jurisdiction conferred by the early

statute.” Sosa, 542 U.S. at 725.8 On this ground alone

the Court should reverse the decision below and

remand for dismissal.9

It Is for Congress to Determine Whether

and When Corporate Conduct for Aiding

and Abetting Torts Under International

Law Should Be Recognized Under the ATS,

Especially Where the Primary Tortfeasors,

That the ATS is “strictly jurisdictional” should not limit

application of Central Bank. As in Kiobel—where this Court

applied the presumption against extraterritoriality, typically

applied to statutes regulating conduct, to the ATS—“the

principles underlying the canon of interpretation” announced in

Central Bank should “similarly constrain courts considering

causes of action that may be brought under the ATS.” 569 U.S.

at 108-09.

9 Because, based on the nature of the ATS, this issue is

jurisdictional, it may be raised and resolved whether or not it is

encompassed within the granted questions presented. See

Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17 (2017);

see also Sup. Ct. R. 24.1(a). The operative complaint relies solely

on the ATS for jurisdiction. See Pet. J.A. 305. While respondents

had alleged “vicarious liability” in addition to aiding and

abetting, the district court found the former allegations

inadequate, Doe v. Nestle, S.A., 748 F. Supp. 2d 1057, 11111113 (C.D. Cal. 2010), and respondents did not appeal that

ruling.

Their Conduct, and Their Victims Are

Outside the United States.

This Court has cautioned that any judicially

created cause of action under the ATS “inevitably

must” examine “the practical consequences of making

that cause available to litigants in the federal courts.”

Sosa, 542 U.S. at 732-33; see Jesner, 138 S. Ct. at

1399 (“[I]t must be determined further whether

allowing this case to proceed under the ATS is a

proper

exercise

judicial

discretion . . . .”).

Significant practical considerations counsel against a

judge-made transformation of the ATS into an aidingand-abetting jurisdictional hook for principal

international law offenses in far-away places

committed by persons (and/or governments) not party

to the litigation. Moreover, pending legislation shows

that Congress today is focused on the policy issues of

corporate conduct and potential liability vis-à-vis

international human rights law. It is for Congress to

determine the scope and reach of U.S. law in this

area.

1. Contrary to respondents’ assertion that

“allegations against a private corporation assisting in

private wrongs do not entangle foreign governments

at all” (see Resp’ts Br. in Opp’n to Pet. for Writ of

Cert. 21 (emphasis added)), the United States has

repeatedly stressed exactly the opposite in other ATS

litigation. See Exxon, 654 F.3d at 89-90 (Kavanaugh,

J., dissenting) (summarizing repeated statements by

the Departments of State and Justice in 2002, 2003,

and 2008 that decade-long ATS litigation against

U.S. corporation concerning conduct in Indonesia

harmed, inter alia, national security interests and

foreign relations with Indonesia).

2. These foreign relations concerns then merge

with significant extraterritorial and practical

concerns: For example, much or all of the necessary

evidence relevant to the parties’ primary claims,

defenses,

and

potential

damages

(including

witnesses, physical evidence, and even documents)

will be outside the subpoena power of federal district

courts. See Fed. R. Civ. P. 26(b). Having admitted

that their aiding and abetting claims necessarily

would require this very evidence of principal offenses

by principal actors—indeed, in some cases, as alleged

here, principal offenses that are “endemic” and

“continu[ing]” (see Resp’ts Br. in Opp’n 21),

respondents ignore that the tools for managing this

type of mass, class action discovery are widely

acknowledged to be “unpredictable,” “notoriously

slow,” and “cumbersome.”10 See, e.g., Timothy P.

Harkness et al., Fed. Jud. Ctr., Discovery in

International Civil Litigation: A Guide for Judges 22

(2015). More importantly, given the inherently

extraterritorial nature of the primary claims, foreign

policy implications would routinely adhere to U.S.

courts issuing discovery requests to the very foreign

10 Even in typical tort cases in which subject-matter

jurisdiction unquestionably exists, this Court has recognized

that federal courts may decline to exercise jurisdiction where

these types of practical difficulties are present. See, e.g., Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981) (“[F]ewer

evidentiary problems would be posed if the trial were held in

Scotland” because “[a] large proportion of the relevant evidence

is located in Great Britain.”).

governments allegedly allowing violations of

international law by their own citizens, within their

own borders, and under their own national laws—

especially discovery intended to secure a final

judgment, by a U.S. court, that the other nation’s

citizens had committed serious international crimes.

These are “the very foreign-relations tensions the

First Congress sought to avoid” with the ATS. See

Jesner, 138 S. Ct. at 1406.

3. To address precisely these kinds of concerns,

Congress conferred sovereign immunity from civil

tort suits on foreign states and their agencies and

instrumentalities unless the entire tort is completed

in the United States. 28 U.S.C. § 1605(a)(5) (the

“FSIA”) (abrogating immunity only for torts

“occurring in the United States”). The FSIA counsels

caution with regard to non-U.S. tort claims that

necessarily implicate foreign governments. It should

take an express act of Congress before U.S. courts

may be used to burden non-U.S. legal systems with

compelling cooperation from either the private

parties who are allegedly violating international law,

or the government ostensibly allowing those

violations to occur and continue (and whose judicial

system also would be asked to enforce any judgment).

4. Sosa teaches that the better approach is to let

the expertise and considered judgment of the political

branches fashion tailored solutions to violations of

international law like the scourge of modern slavery.

In addition to the TVPA, discussed above, Congress is

already considering relevant legislation. See, e.g.,

Slave-Free Business Certification Act of 2020, S.

4241, 116th Cong. (2020) (“S. 4241”) (proposing

mandatory supply chain audits to prohibit domestic

companies from indirectly purchasing from sellers

using forced labor; providing civil damages, punitive

damages, and injunctive remedies); Leveraging

Information on Foreign Traffickers Act, S. 4478,

116th Cong. (2020) (“S. 4478”) (proposing mandatory

State Department reports to Congress to address

human trafficking and “modern slavery”); Business

Supply Chain Transparency on Trafficking and

Slavery Act of 2020, H.R. 6279, 116th Congress

(2020) (“H.R. 6279”) (proposing securities law

amendments to require publicly traded companies to

“disclose information describing any measures the

company has taken to identify and address conditions

of forced labor, slavery, human trafficking, and the

worst forms of child labor within the company’s

supply chains”). U.S. states also have enacted and are

considering additional supply chain regulations. See,

e.g., California Transparency in Supply Chains Act of

2010, Cal. Civ. Code § 1714.43 (Deering 2020)

(enacting audit and disclosure requirements and

public enforcement); An Act Relating to Transparency

in Agricultural Supply Chains, S.B. 5693, 2020 Reg.

Sess. (Wash. 2020) (proposing private right of action

to enforce disclosure requirements regarding supply

chains).11

11 Policymakers in the United States are not alone in these

projects. For example, the European Commission is currently

considering proposing a new EU law that would require

corporations to carry out due diligence into supply chains

extraterritorially—highlighting

again

that

this

legal

responsibility is not currently universally recognized. European

Commission Directorate General for Justice and Consumers,

5. Further counseling caution by the courts, these

proposed legislative responses—all directed at the

harms for which respondents are suing—evidence a

range of approaches. For example:

x What corporations or corporate activity should

be covered. See H.R. 6279 (determining

applicability with reference to securities laws);

S. 4241 (determining applicability by, inter

alia, worldwide gross receipts).

x Whether to enforce by public action or a

private right of action. Compare, e.g., S. 4241

(providing public enforcement by the Attorney

General or the Secretary of Labor), with TVPA

§ 2, 28 U.S.C. § 1350 (note) (providing private

right of action).

x Whether to impose an exhaustion requirement

regarding the jurisdiction where the primary

wrongdoing occurred. See TVPA § 2(b).

x Whether to allow for punitive damages and

injunctive or other remedies. See S. 4241

(permitting

punitive

damages

$500,000,000 and declaratory and injunctive

relief).

Study on Due Diligence Requirements through the Supply

Chain (2020), https://bit.ly/31VhULA; see also Australian Law

Reform Commission, Final Report: Corporation Criminal

Responsibility, 461-62 & nn.72-77, 477 & nn.132-134 (Apr. 2020)

(noting mandatory due diligence regimes adopted or proposed in

France, the Netherlands, Switzerland, Finland, Norway,

Denmark, Austria, Germany, and Canada).

x Whether to provide a statute of limitations,

and if so, how long. See TVPA § 2(c) (providing

10-year statute of limitations).

These variations highlight why the Court

should decline to fashion an omnibus approach to

corporate aiding and abetting liability for alleged

violations of international law. Rather, it should defer

to Congress and the Executive in deciding how the

United States should address the complex crossborder issues presented by certain violations of

international law. Given the limited jurisdictional

grant of the ATS, and the teachings of Sosa, this

Court should not mandate a single approach as to

how U.S. companies should confront these types of

issues as they buy goods from abroad.

CONCLUSION

For the foregoing reasons, the Court should

reverse the holding below with respect to corporate

liability—or at a minimum, corporate aiding and

abetting liability—under the ATS.

Respectfully submitted,

Owen C. Pell

Counsel of Record

Claire A. DeLelle

Bryan A. Merryman

Catherine S. Simonsen

White & Case LLP

1221 Ave. of the Americas

New York, NY 10020

(212) 819-8200

opell@whitecase.com

Ilya Shapiro

Cato Institute

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Counsel for Amicus Curiae

September 8, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.