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

Supreme Court briefOct 21, 2020

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Nos. 19-416, 19-453

IN THE

Supreme Court of the United States

___________

NESTLÉ USA, INC., Petitioner,

JOHN DOE I, et al., Respondents.

___________

CARGILL, INC., Petitioner,

JOHN DOE I, et al., Respondents.

___________

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

DAYNA J. ZOLLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Ste. 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 21, 2020

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

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

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

ARGUMENT .........................................................

THE

ALIEN TORT

STATUTE

BROADLY PERMITS SUITS FOR

VIOLATIONS OF THE LAW OF

NATIONS AND DOES NOT IMMUNIZE

DOMESTIC

CORPORATE

DEFENDANTS .....................................

A. THE TEXT AND HISTORY OF

THE ALIEN TORT STATUTE

DEMONSTRATE THAT DOMESTIC CORPORATIONS MAY BE

SUED UNDER THE STATUTE .....

B. JESNER DOES NOT FORECLOSE DOMESTIC CORPORATE

LIABILITY UNDER THE ALIEN

TORT STATUTE .............................

THE ALIEN TORT STATUTE ALLOWS FOR CORPORATE LIABILITY

CONSISTENT WITH LONGSTANDING PRINCIPLES OF CORPORATE

PERSONHOOD ....................................

THERE IS NO CORPORATE EXCEPTION TO FUNDAMENTAL INTERNATIONAL NORMS ............................

CONCLUSION .....................................................

II.

III.

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Argentine Republic v. Amerada Hess

Shipping Corp.,

488 U.S. 428 (1989) .................................... 2, 5

Bank of U.S. v. Deveaux,

9 U.S. (5 Cranch.) 61 (1809) ......................

Chestnut Hill & Spring House Tpk. Co. v.

Rutter,

4 Serg. & Rawle 6 (Pa. 1818) .................... 14, 18

Cook Cty. v. United States ex rel. Chandler,

538 U.S. 119 (2003) ....................................

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) .......................

Flomo v. Firestone Nat’l Rubber Co.,

643 F.3d 1013 (7th Cir. 2011) ................... 10, 19

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ......................................

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) .......................

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) ............................... passim

Kiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010) ....................... 4, 19

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Lake Shore & Mich. S. Ry. Co. v. Prentice,

147 U.S. 101 (1893) ....................................

Louisville, Cincinnati, & Charleston R.R.

Co. v. Letson,

43 U.S. (2 How.) 497 (1844) .......................

Marshall v. Balt. & Ohio R.R. Co.,

57 U.S. (16 How.) 314 (1854) ..................... 3, 17

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ....................................

Nat’l Bank v. Graham,

100 U.S. 699 (1879) ....................................

Phila., Wilimington, & Balt. R.R. Co. v.

Quigley,

62 U.S. (21 How.) 202 (1858) .................... 14, 16

Providence Bank v. Billings,

29 U.S. (4 Pet.) 514 (1830) .........................

Riddle v. Proprietors of Merrimack River

Locks and Canals,

7 Mass. 169 (1810) .....................................

Salt Lake City v. Hollister,

118 U.S. 256 (1886) ....................................

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ............................... passim

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) ....................

The Malek Adhel,

43 U.S. (2 How.) 210 (1844) ...................... 10, 18

TABLE OF AUTHORITIES – cont’d

Page(s)

The Mariana Flora,

24 U.S. (11 Wheat.) 1 (1825) ......................

The Nereide,

13 U.S. (9 Cranch) 388 (1815) ...................

Trs. of Dartmouth Coll. v. Woodward,

17 U.S. (4 Wheat.) 518 (1819) ....................

United States v. Amedy,

24 U.S. (11 Wheat.) 392 (1826) ..................

Whiteman v. Wilmington &

Susquehanna R.R. Co.,

2 Del. 514 (1839) ........................................

Statutes and Legislative Materials

Alien Tort Statute,

28 U.S.C. § 1350 .....................................

2, 5

Books, Articles, and Other Authorities

1 William Blackstone, Commentaries on

the Laws of England (1765) .......................

4 William Blackstone, Commentaries on

the Laws of England (1765) .......................

2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)..........

The Federalist No. 42 (Clinton Rossiter ed.,

1961) ...........................................................

The Federalist No. 80 (Clinton Rossiter ed.,

1961) ................................................... 3, 8, 9, 12

TABLE OF AUTHORITIES – cont’d

Page(s)

Kent Greenfield, In Defense of

Corporate Persons,

30 Const. Comment. 309 (2015) ................

21 Journals of the Continental Congress

1774-1789 (Gaillard Hunt ed., 1912) .........

1 Stewart Kyd, Treatise on the Law of Corporations (1793)..........................................

J. Madison, Journal of the Constitutional

Convention (E. Scott ed., 1893) ..................

Mexican Boundary-Diversion of

the Rio Grande,

26 Op. Att’y Gen. 250 (1907)......................

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and with

legal scholars to improve understanding of the Constitution and preserve the rights and freedoms it guarantees. CAC also works to ensure that courts remain

faithful to the text and structure of key federal statutes like the Alien Tort Statute. Accordingly, CAC has

a strong interest in ensuring that the Alien Tort Statute is understood, in accordance with its text and Congress’s plan in passing it, to allow federal district

courts to hear suits against American corporations for

violations of international law.

SUMMARY OF ARGUMENT

This case involves two American corporations, Petitioners Nestlé USA, Inc. and Cargill, Inc., that allegedly aided and abetted in the perpetration of child

slavery by cocoa farmers in the Ivory Coast in violation

of international law. Respondents are former child

slaves who were forced to labor on cocoa plantations.

They brought suit against the U.S. corporations under

the Alien Tort Statute (ATS), which allows federal district courts to hear suits for torts “committed in

1 The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amicus states that no counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

violation of the law of nations,” 28 U.S.C. § 1350. Petitioners argue that the cases against them cannot proceed simply because they are corporations. See Nestlé

Pet’r Br. 4; Cargill Pet’r Br. 40-41. But this argument

cannot be squared with the text of the ATS or with

Congress’s plan in passing the statute, which was to

provide a federal forum to redress violations of international law, ensuring a remedy for the “handful of

heinous actions” that violate “international law norms

that are ‘specific, universal, and obligatory,’” Kiobel v.

Royal Dutch Petroleum Co., 569 U.S. 108, 117 (2013)

(quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732

(2004)). Petitioners’ argument is also contrary to fundamental principles of corporate personhood, which allow corporations to be sued for wrongdoing. Finally,

there are specific, universal, and obligatory norms of

international law forbidding the enslavement of individuals—particularly children—and there is no corporate exemption from these international norms.

First, the ATS confers on federal 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.” 28 U.S.C. § 1350.

Significantly, that language “does not distinguish

among classes of defendants,” Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 438

(1989), and it permits suits against domestic corporations and other artificial entities. To create an exception to the ATS barring all suits against domestic corporations—entities that, like other private actors, are

bound by the international norms held by all civilized

nations, such as prohibitions against piracy, genocide,

and slavery—would require rewriting the ATS.

The ATS was the Framers’ considered response to

the systematic failure of the dysfunctional Articles of

Confederation government to enforce the law of

nations, a failure that, all too often, drew the new nation into international conflicts. The ATS provided a

federal remedy, reflecting that “the peace of the

WHOLE ought not to be left at the disposal of a PART.

The Union will undoubtedly be answerable to foreign

powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied

with the faculty of preventing it.” The Federalist No.

80, at 444 (Alexander Hamilton) (Clinton Rossiter ed.,

1961). “The First Congress, which reflected the understanding of the framing generation and included some

of the Framers, assumed that federal courts could

properly identify some international norms as enforceable in the exercise of § 1350 jurisdiction,” Sosa, 542

U.S. at 730, as “the law of nations . . . is a part of the

law of the land,” The Nereide, 13 U.S. (9 Cranch) 388,

423 (1815).

Second, permitting those victimized by corporations that violate international law to sue under the

ATS is consistent with longstanding principles of corporate personhood, which recognize that “[t]he great

object of an incorporation is to bestow the character

and properties of individuality on a collective and

changing body of men,” Providence Bank v. Billings, 29

U.S. (4 Pet.) 514, 562 (1830). “The necessities and conveniences of trade and business require that such numerous associates and stockholders should act by representation, and have the faculty of contracting, suing,

and being sued in a factitious or collective name. But

these important faculties . . . cannot be wielded to deprive others of acknowledged rights.” Marshall v.

Balt. & Ohio R.R. Co., 57 U.S. (16 How.) 314, 327

(1854).

Since the Founding, it has been well established

that corporations can be brought to account for violating the rights of individuals. See Kent Greenfield, In

Defense of Corporate Persons, 30 Const. Comment.

309, 315 (2015) (observing that an “aspect of corporate

personhood is to create a mechanism in law to hold corporations accountable”). Reading domestic corporations out of the class of defendants suable in federal

court under the ATS does violence to these foundational principles. Under the rule Petitioners propose,

“one who earns profits by commercial exploitation of

abuse of fundamental human rights can successfully

shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the

heinous operation in the corporate form.” Kiobel v.

Royal Dutch Petroleum Co., 621 F.3d 111, 149-50 (2d

Cir. 2010) (Leval, J., concurring), aff’d on other

grounds, 569 U.S. 108 (2013).

Finally, there are specific, universal, and obligatory norms of international law forbidding the enslavement of individuals—particularly children. There is

no corporate exemption from these international

norms, and U.S. corporations that violate these norms

must be held accountable in federal court.

To be sure, this Court has set a high bar for suits

under the ATS. See, e.g., Kiobel, 569 U.S. at 124-25

(requiring that ATS suits “touch and concern the territory of the United States . . . with sufficient force to

displace the presumption against extraterritorial application”); Sosa, 542 U.S. at 732 (holding that “federal

courts should not recognize private claims under federal common law for violations of any international

law norm with less definite content and acceptance

among civilized nations than the historical paradigms

familiar when § 1350 was enacted”). And this Court

held in Jesner v. Arab Bank, PLC that “foreign corporations may not be defendants in suits brought under

the ATS.” 138 S. Ct. 1386, 1407 (2018) (emphasis

added). But the Court’s reasoning in Jesner—that

hauling foreign corporations into U.S. courts would

threaten rather than secure peaceful diplomatic relations, see id.—is inapposite here. Indeed, holding

Americans, including American corporations, accountable for violations of international law directly furthers the ATS’s objective: “to avoid foreign entanglements by ensuring the availability of a federal forum

where the failure to provide one might cause another

nation to hold the United States responsible for an injury to a foreign citizen,” id. at 1397. Thus, a case cannot be dismissed under the ATS solely on the ground

that the defendant is a domestic corporation, and the

judgments of the court below should be affirmed.

ARGUMENT

I. THE ALIEN TORT STATUTE BROADLY

PERMITS SUITS FOR VIOLATIONS OF THE

LAW OF NATIONS AND DOES NOT IMMUNIZE DOMESTIC CORPORATE DEFENDANTS.

A. The Text and History of the Alien Tort

Statute Demonstrate That Domestic Corporations May Be Sued Under the Statute.

The ATS confers on federal 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.” 28 U.S.C. § 1350. As its

text makes clear, and as this Court has recognized, the

ATS broadly permits suits for violations of the law of

nations and does not immunize domestic corporations

from suit. Argentine Republic, 488 U.S. at 438 (recognizing that the ATS “does not distinguish among classes of defendants”). Significantly, the statute explicitly identifies the plaintiff who may sue (“an alien”)

and the cause of action that may be brought (“a tort

only, committed in violation of the law of nations or a

treaty of the United States”), but it does not limit the

class of defendants suable under the ATS. “That silence as to defendants cannot be presumed to be inadvertent.” Jesner, 138 S. Ct. at 1426 (Sotomayor, J., dissenting).

Because nothing in the text of the ATS expressly

limits its scope to individuals, artificial entities—including domestic corporations—can be sued for tortious acts that violate “specific, universal, and obligatory” international norms. See Kiobel, 569 U.S. at 117

(quoting Sosa, 542 U.S. at 732); cf. Mohamad v. Palestinian Auth., 566 U.S. 449, 451-52 (2012) (holding that

the Torture Victim Protection Act, which authorizes

suit against an “individual,” “encompasses only natural persons” and “does not impose liability against organizations”). To exclude domestic corporations from

the scope of the ATS would require rewriting its terms.

The ATS’s broad text is consistent with Congress’s

plan in passing the statute. As this Court recognized

in Jesner, “[t]he principal objective of the [ATS], when

first enacted, was to avoid foreign entanglements by

ensuring the availability of a federal forum where the

failure to provide one might cause another nation to

hold the United States responsible for an injury to a

foreign citizen.” 138 S. Ct. at 1397. The Constitution’s

Framers, many of whom served in the First Congress,

wrote the ATS because they were gravely

“[c]oncern[ed] that state courts might deny justice to

aliens, thereby evoking a belligerent response from the

alien’s country of origin,” and they wanted “to assure

aliens access to federal courts to vindicate any incident

which, if mishandled by a state court, might blossom

into an international crisis.” Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 782 (D.C. Cir. 1984) (Edwards,

J., concurring).

Indeed, under the dysfunctional government of the

Articles of Confederation, the law of nations was a

dead letter in the United States, potentially imperiling

the new nation in conflicts with foreign nations. “The

Continental Congress was hamstrung by its inability

to ‘cause infractions of treaties, or of the law of nations

to be punished.’” Sosa, 542 U.S. at 716 (quoting J.

Madison, Journal of the Constitutional Convention 60

(E. Scott ed., 1893)). James Madison lamented that

the Articles “contain no provision for the case of offenses against the law of nations; and consequently

leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations.” The Federalist No. 42, at 233.

In 1781, the Continental Congress “implored the

States to vindicate rights under the law of nations.”

Sosa, 542 U.S. at 716. Congress urged state legislatures to “provide expeditious, exemplary and adequate

punishment” for (1) “the violation of safe conducts or

passports,” (2) “the commission of acts of hostility

against such as are in amity, league or truce with the

United States,” (3) “the infractions of the immunities

of ambassadors and other public ministers”; and (4)

“infractions of treaties and conventions to which the

United States are a party.” 21 Journals of the Continental Congress 1774-1789, at 1136-37 (Gaillard Hunt

ed., 1912). This list was not designed to be comprehensive, but instead to include “only those offences against

the law of nations which are most obvious.” Id. at

1137. The resolution also recommended that states

authorize “suits to be instituted for damages by the

party injured.” Id. But the states responded by doing

“too little, too late,” Jesner, 138 S. Ct. at 1417 (Gorsuch, J., concurring in part and concurring in the judgment), and “concern over the inadequate vindication of

the law of nations persisted through the time of the

Constitutional Convention,” Sosa, 542 U.S. at 717.

Throughout this period, the failure to enforce international law led to a number of “notorious episodes

involving violations of the law of nations.” Kiobel, 569

U.S. at 120. Incidents, such as the Marbois affair of

1784, in which a Frenchman in the United States assaulted Francis Barbe Marbois, the Secretary of the

French Foreign Legion, leading the French government to demand redress, see id., convinced the Framers that the federal judiciary needed to have the power

to enforce federal treaties as well as the law of nations.

During the debates about whether Pennsylvania

should ratify the Constitution, James Wilson insisted

that we “will show the world that we make the faith of

treaties a constitutional part of the character of the

United States; that we secure its performance no

longer nominally, for the judges of the United States

will be enabled to carry it into effect, let the legislatures of the different states do what they may.” 2 The

Debates in the Several State Conventions on the Adoption of the Federal Constitution 490 (Jonathan Elliot

ed., 1836). Likewise, Alexander Hamilton argued that

“[a]s the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with

reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance

of all causes in which the citizens of other countries are

concerned.” The Federalist No. 80, at 444. “So great a

proportion of the cases in which foreigners are parties

involve national questions that it is by far most safe

and most expedient to refer all those in which they are

concerned to the national tribunals.” Id. at 445.

In 1789, the First Congress made good on the

Framers’ promises to ensure proper enforcement of the

law of nations in federal court. To redress past abuses

and prevent new violations of the law of nations from

arising, the First Congress enacted the ATS, expecting

it to “have practical effect the moment it became

law.” Sosa, 542 U.S. at 724. “The First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the

law of nations,” id., including “‘three principal offenses

against the law of nations’ [that] had been identified

by Blackstone: violation of safe conducts, infringement

of the rights of ambassadors, and piracy.” Kiobel, 569

U.S. at 119 (quoting Sosa, 542 U.S. at 723); id. at 13334 (Breyer, J., concurring) (“[T]he statute’s language,

history, and purposes suggest that the statute was to

be a weapon in the ‘war’ against those modern pirates

who, by their conduct, have ‘declar[ed] war against all

mankind.’” (quoting 4 William Blackstone, Commentaries on the Laws of England *71)).

Significantly, because “the Union [would] undoubtedly be answerable to foreign powers for the conduct of its members,” Federalist No. 80, at 444 (emphasis added), the First Congress made sure the ATS allowed suits against all Americans, including both natural persons and corporate entities. See United States

v. Amedy, 24 U.S. (11 Wheat.) 392, 412 (1826) (“The

mischief intended to be reached by the statute is the

same, whether it respects private or corporate persons.”). After all, a stringent limitation on this federal

remedy—denying suit against domestic corporations

and thus allowing them to violate the law of nations

with impunity, no matter the particular violation of international law alleged—would, as explained further

below, have undercut the ATS’s raison d’être and resulted in the very evils the ATS sought to prevent.

Indeed, liability for domestic corporations under

the ATS finds strong support in this Court’s early case

law, which enforced the international prohibition of

piracy—one of the paradigmatic violations that the

ATS aimed to redress—against ships in in rem admiralty proceedings, condemning ships run by companies

that had engaged in piracy. Reasoning that pirates are

“common enemies of all mankind,” this Court held that

a “piratical aggression by an armed vessel sailing . . .

may be justly subjected to the penalty of confiscation

for such a gross breach of the law of nations.” The Mariana Flora, 24 U.S. (11 Wheat.) 1, 40-41 (1825). Liability attached to the ship itself, and thus the shipping

company that operated it, regardless of the owner’s

claim of innocence. As Justice Story explained, “[t]he

vessel which commits the aggression is treated as the

offender, as the guilty instrument or thing to which the

forfeiture attaches, without any reference whatsoever

to the character or conduct of the owner.” The Malek

Adhel, 43 U.S. (2 How.) at 233; see Flomo v. Firestone

Nat’l Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011)

(“And if precedent for imposing liability for a violation

of customary international law by an entity that does

not breathe is wanted, we point to in rem judgments

against pirate ships. Of course the burden of confiscation of a pirate ship falls ultimately on the ship’s owners, but similarly the burden of a fine imposed on a

corporation falls ultimately on the shareholders.” (citations omitted)).

B. Jesner Does Not Foreclose Domestic Corporate Liability Under the Alien Tort

Statute.

To be sure, this Court held in Jesner v. Arab Bank,

PLC that “foreign corporations may not be defendants

in suits brought under the ATS,” 138 S. Ct. at 1407

(emphasis added), but Petitioners are wrong to suggest that Jesner compels a similar conclusion for domestic corporations. See Nestlé Pet’r Br. 4; Cargill

Pet’r Br. 40-41. In fact, in reaching its decision, this

Court emphasized the “unique problems” created by

“foreign corporate defendants.” Jesner, 138 S. Ct. at

1407. First, the Court reasoned that if foreign plaintiffs could haul foreign corporations into U.S. court for

violations of international law, that would create “the

very foreign-relations tensions the First Congress

sought to avoid.” Id. Indeed, the Court noted in Jesner

that “[f]or 13 years, this litigation [against Arab Bank]

has ‘caused significant diplomatic tensions,’” id. at

1406 (citation omitted), as “Jordan considers the instant litigation to be a ‘grave affront’ to its sovereignty,” id. at 1407 (citation omitted). The Court explained that this sort of confrontation of foreign corporations in U.S. court was “the opposite of what the

First Congress had in mind,” id. at 1411 (Alito, J., concurring in part and concurring in the judgment). See

id. at 1406 (“The ATS was intended to promote harmony in international relations by ensuring foreign

plaintiffs a remedy . . . where the absence of such a

remedy might provoke foreign nations to hold the

United States accountable. But here, and in similar

cases, the opposite is occurring.” (internal citation

omitted)).

Second, the Court reasoned that if U.S. courts

could hold foreign corporations liable for international

law violations, then, “conversely, . . . courts in other

countries should be able to hold United States corporations liable.” Id. at 1407. Accordingly, the Court

concluded that “any imposition of corporate liability on

foreign corporations for violations of international law

must be determined in the first instance by the political branches of the Government,” id. at 1408 (emphasis added), and that the ATS itself did not constitute

such a determination. See id. at 1412 (Gorsuch, J.,

concurring in part and concurring in the judgment)

(“[W]e should not meddle in disputes between foreign

citizens over international norms.” (emphasis added)).

The Court’s rationale in Jesner is inapposite in

cases against U.S. corporations. Whereas foreign corporate liability could lead to “diplomatic strife,” id. at

1408 (Alito, J., concurring in part and concurring in

the judgment), because it would involve hauling a foreign corporation into U.S. court, domestic corporate liability serves the very purpose for which the ATS was

enacted. As this Court recognized in Jesner, “[t]he

ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy

for international-law violations in circumstances

where the absence of such a remedy might provoke foreign nations to hold the United States accountable.”

Id. at 1406. Those are the exact circumstances that

exist here: foreign plaintiffs are seeking to hold American corporations accountable for their alleged violations of the law of nations. If these corporations cannot be held accountable in U.S. court, there is a real

risk that foreign nations or individuals will try to hold

the United States accountable instead. See Federalist

No. 80, at 444 (“[T]he Union will undoubtedly be answerable to foreign powers for the conduct of its members.”). In other words, such a decision would disregard the broad text of the ATS, and it would also likely

produce “the very foreign-relations tensions the First

Congress sought to avoid” in passing the ATS, Jesner,

138 S. Ct. at 1407.

As Justice Gorsuch explained in Jesner, it would

have been “one thing . . . for courts to punish foreign

parties for conduct that could not be attributed to the

United States and thereby risk reprisals against this

country,” id. at 1419 (Gorsuch, J., concurring in part

and concurring in the judgment). The Court thus concluded that the ATS did not provide for foreign

corporate liability. Id. at 1412 (Alito, J., concurring in

part and concurring in the judgment) (“Foreign corporate liability would not only fail to meaningfully advance the objectives of the ATS, but it would also lead

to precisely those ‘serious consequences in international affairs’ that the ATS was enacted to avoid.”

(quoting Sosa, 542 U.S. at 715)). But “[i]t is altogether

another thing” to recognize that the ATS creates a

cause of action “to ensure our citizens abide by the law

of nations and avoid reprisals against this country.”

Id. at 1419 (Gorsuch, J., concurring in part and concurring in the judgment). Indeed, the First Congress

passed the ATS to ensure, at a minimum, that Americans, including U.S. corporations, may be held accountable for violations of international law. Id. at

1406. Petitioners are therefore wrong to suggest that

Jesner’s reasoning compels the conclusion that domestic corporations are not amenable to ATS suits. See

Nestlé Pet’r Br. 4; Cargill Pet’r Br. 40-41.

Moreover, the reciprocity concerns that influenced

the Court’s decision in Jesner are not present here. A

U.S. corporation need not fear being hauled into court

in a foreign country in retaliation for the United

States’ imposition of domestic corporate liability under

the ATS. In fact, far from risking such negative consequences, the likely reciprocal effect of imposing domestic corporate liability under the ATS would be to

prompt other countries to hold their own corporations

and citizens accountable for violations of international

law, a development that would benefit the global community.

Thus, domestic corporate liability under the ATS

is consistent with both the text and history of the Act,

as well as with this Court’s decision in Jesner. It is

also compelled by longstanding principles of corporate

personhood, which permit corporations to be sued for

tortious conduct.

principles.

The next Section discusses these

II. THE ALIEN TORT STATUTE ALLOWS FOR

CORPORATE LIABILITY CONSISTENT

WITH LONGSTANDING PRINCIPLES OF

CORPORATE PERSONHOOD.

Reading the ATS as written is also consistent with

basic principles of corporate personhood that ensure

corporate accountability. When Congress enacted the

ATS, it was understood that corporations could sue to

vindicate their legal rights and that they could be sued

and held accountable for violating the rights of others.

“[F]rom the earliest times to the present, corporations

have been held liable for torts.” Chestnut Hill &

Spring House Tpk. Co. v. Rutter, 4 Serg. & Rawle 6, 17

(Pa. 1818). This was not an American invention, but a

reflection of English common law principles that the

Founders brought with them to the United States. See,

e.g., 1 William Blackstone, Commentaries on the Laws

of England *463 (1765) (explaining that corporations

may “sue or be sued . . . and do all other acts as natural

persons may”); see Phila., Wilimington, & Balt. R.R.

Co. v. Quigley, 62 U.S. (21 How.) 202, 210 (1858) (“At

a very early period, it was decided in Great Britain, as

well as in the United States, that actions might be

maintained against corporations for torts; and instances may be found, in the judicial annals of both

countries, of suits for torts arising from the acts of

their agents, of nearly every variety.”). Relying on

these principles, courts refused to permit corporations

to “do wrong without being amenable to justice,” relying on the corporate form “to hold them responsible.”

Chestnut Hill, 4 Serg. & Rawle at 16. Courts considered it “unjust to society, as well as unreasonable in

itself, to suffer [corporations] to escape the consequences of direct injuries inflicted upon citizens by

their agents in the prosecution of their business.”

Whiteman v. Wilmington & Susquehanna R.R. Co., 2

Del. 514, 521 (1839).

At the Founding, as Chief Justice John Marshall

recognized, a corporation was considered “an artificial

being, invisible, intangible, and existing only in the

contemplation of the law” endowed with “immortality

and . . . individuality; properties, by which a perpetual

succession of many persons are considered as the

same, and may act as a single individual.” Trs. of

Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518,

636 (1819). The capacity to sue and be sued was

viewed as a critical part of corporate personhood, as

treatise writers and courts recognized. Id. at 667

(Story, J.) (“[I]t possesses the capacity of perpetual

succession, and of acting by the collected vote or will of

its component members, and of suing and being sued

in all things touching its corporate rights and duties.”);

Riddle v. Proprietors of Merrimack River Locks and

Canals, 7 Mass. 169, 187 (1810) (“It is one of these

maxims, that a man specially injured by the breach of

duty in another, shall have his remedy by action. . . .

[W]hy should a corporation, receiving its corporate

powers and obliged by its corporate duties with its own

consent, be an exception, when it has, or must be supposed to have, an equivalent for its consent?”); 1 Stewart Kyd, Treatise on the Law of Corporations 13 (1793)

(discussing capacity of corporations to “su[e] and be[]

sued”).

As these cases and early treatises reflect, from the

Founding on, the “common understanding” was that

“corporations were ‘persons’ in the general enjoyment

of the capacity to sue and be sued.” Cook Cty. v. United

States ex rel. Chandler, 538 U.S. 119, 125 (2003). Accordingly, “for acts done by the agents of a corporation,

in the course of its business and of their employment,

the corporation is responsible in the same manner and

to the same extent as an individual is responsible under similar circumstances.” Lake Shore & Mich. S. Ry.

Co. v. Prentice, 147 U.S. 101, 109 (1893). “As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives,

is the recognition of a corporate responsibility for the

acts of those representatives.” Phila., Wilmington, &

Balt. R.R. Co., 62 U.S. (21 How.) at 210. Under these

principles, “[c]orporations are liable for every wrong

they commit.” Nat’l Bank v. Graham, 100 U.S. 699,

702 (1879).

In a trio of important cases, this Court considered

whether corporations were citizens entitled to sue or

be sued under the diversity jurisdiction conferred on

federal courts by the Judiciary Act of 1789. See Hertz

Corp. v. Friend, 559 U.S. 77, 84-85 (2010) (surveying

the line of cases). The upshot of these cases was that

“for diversity purposes, the federal courts considered a

corporation to be a citizen of the State of its incorporation” and hence could sue or be sued in federal court

consistent with basic principles of corporate personhood. Id. at 85.

Initially, in Bank of United States v. Deveaux, 9

U.S. (5 Cranch.) 61 (1809), this Court held that a corporation, being an “invisible, intangible, and artificial

being,” is “certainly not a citizen.” Id. at 86. But it

held that corporations could sue or be sued in diversity

cases based on “the character of the individuals who

compose the corporation,” id. at 92, reasoning that “the

term citizen ought to be understood . . . to describe the

real persons who come into court . . . under the corporate name.” Id. at 91. Deveaux’s rule, which recognized that corporations could sue or be sued in diversity but required courts to engage in time-consuming

inquiries into the citizenship of the shareholders of the

corporation, was widely criticized and proved shortlived.

In Louisville, Cincinnati, & Charleston Railroad

Co. v. Letson, 43 U.S. (2 How.) 497 (1844), this Court

overruled Deveaux, holding that “a corporation created

by and doing business in a particular state” is “a person, although an artificial person, an inhabitant of the

same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much

as a natural person.” Id. at 558. Drawing heavily on

Dartmouth College’s discussion of corporate personhood, Letson made clear that a corporation was a “citizen of the state which created it, and where its business is done, for all the purposes of suing and being

sued.” Id.

In Marshall v. Baltimore & Ohio Railroad Co., this

Court reaffirmed Letson’s rule that corporations

should be treated as citizens of the state of their incorporation, permitting them to sue or be sued in diversity cases consistent with basic principles of corporate

personhood. “The necessities and conveniences of

trade and business require that such numerous associates and stockholders should act by representation,

and have the faculty of contracting, suing, and being

sued in a factitious or collective name.” Marshall, 57

(16 How.) at 327. This rule, the Court explained, was

necessary to ensure that individuals could go to federal

court to hold out-of-state corporations accountable for

legal wrongs they commit. “If it were otherwise it

would be in the power of every corporation, by electing

a single director residing in a different State, to deprive citizens of other States with whom they have

controversies, of this constitutional privilege, and compel them to resort to State tribunals in cases in which,

of all others, such privilege may be considered most

valuable.” Id. at 328.

In short, it has been the law for centuries that corporations are liable for the torts committed by corporate actors. Under these long-established principles,

corporations are liable under the ATS for torts committed in violation of the law of nations to the same

extent individuals are. Corporate liability ensures

that entities that flout the law can be held to account;

as this Court recognized in its piracy cases, such liability is the “only adequate means of suppressing the

offence or wrong, or insuring an indemnity to the injured party.” The Malek Adhel, 43 U.S. (2 How.) at

233. It has never been the law that an injured plaintiff

may only proceed against an individual corporate actor, as that would be “mischievous in its consequences”

for a “company may do great injury,” by means of those

“who have no property to answer the damages recovered against them.” Chestnut Hill, 4 Serg. & Rawle at

17. When corporate actors commit “arbitrary exercises

of power in the nature of torts, . . . the corporation may

be held to a pecuniary responsibility for them to the

party injured.” Salt Lake City v. Hollister, 118 U.S.

256, 261 (1886). Rewriting the ATS to afford domestic

corporations an absolute immunity from suit for violating the law of nations—even where, as alleged here,

the corporations have flouted long-established, obligatory, and definite international norms held by all civilized nations—would imperil this fundamental principle.

III. THERE IS NO CORPORATE EXCEPTION

FUNDAMENTAL

INTERNATIONAL

NORMS.

Rather than follow the text and history of the ATS

and fundamental principles of corporate liability, Petitioners seek to establish a general corporate exception

to the federal remedy provided by the ATS. See Nestlé

Pet’r Br. 4; Cargill Pet’r Br. 40-41. They argue that

there “is no ‘specific, universal, and obligatory’ norm of

imposing corporate liability in international law” and

that domestic corporations therefore cannot be held liable for international law violations under the ATS.

Cargill Pet’r Br. 43 (quoting Jesner, 138 S. Ct. at 1399

(plurality op.)); see also Nestlé Pet’r Br. 36 (“There is

at best ‘weak support’ for corporate liability in international law.” (quoting Jesner, 138 S. Ct. at 1400-01)).

These arguments are wrong.

To start, international law establishes legal rules,

but it leaves implementation of those rules to each nation. “International law . . . consists primarily of a

sparse body of norms, adopting widely agreed principles prohibiting conduct universally agreed to be heinous and inhumane. Having established these norms

of prohibited conduct, international law says little or

nothing about how those norms should be enforced.”

Kiobel, 621 F.3d at 152 (Leval, J., concurring); Flomo,

643 F.3d at 1019 (“If a plaintiff had to show that civil

liability for such violations was itself a norm of international law, no claims under the Alien Tort Statute

could ever be successful, even claims against individuals.”).

While some nations do not provide for civil liability

to redress violations of international law, ours does.

By adopting the ATS, our law provides a federal forum

to hold civilly liable those, including domestic corporations, whose tortious acts violate specific, universal,

and obligatory international norms. See Mexican

Boundary-Diversion of the Rio Grande, 26 Op. Att’y

Gen. 250, 252 (1907) (explaining that statutes, including the ATS, “provide[d] a right of action and a forum”

after citizens of Mexico had been injured by a corporation’s violation of a treaty between the United States

and Mexico). As this Court’s decision in Kiobel made

clear, the question in ATS cases “is not whether a

federal court has jurisdiction to entertain a cause of

action provided by foreign or even international law.

The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” Kiobel, 569 U.S. at

119; see id. at 115 (observing that federal courts, under

the ATS, “may ‘recognize private claims . . . under federal common law’” (quoting Sosa, 542 U.S. at 732));

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254,

265 (2d Cir. 2007) (Katzmann, J., concurring) (“[A]ll

[ATS] litigation is in fact based on federal common law

. . . .”). Consistent with longstanding principles of corporate liability, domestic corporations may be held liable to the same extent as individuals under the ATS.

To be sure, under the first step in Sosa, an alleged

violation under the ATS must be of a norm that is “specific, universal, and obligatory,” Kiobel, 569 U.S. at 117

(quoting Sosa, 542 U.S. at 732), and a plurality of this

Court in Jesner suggested that the international community’s “decision to limit the authority of . . . international tribunals to natural persons counsels against a

broad holding that there is a specific, universal, and

obligatory norm of corporate liability under currently

prevailing international law,” 138 S. Ct. at 1401.

But “Sosa’s norm-specific first step is inapposite to

the categorical question whether corporations may be

sued under the ATS as a general matter.” Id. at 1420

(Sotomayor, J., dissenting). There is no rule of international law that exempts corporations from liability

in a particular country’s courts for violations of the law

of nations. And there are specific, universal, and obligatory norms of international law forbidding the enslavement of individuals—especially children. Thus, a

corporation that aids and abets the violation of that

norm—no less than an individual who does—is an “enemy of all mankind.” Sosa, 542 U.S. at 732 (quoting

Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir.

1980)).

CONCLUSION

For the foregoing reasons, the judgments of the

court below should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

DAYNA J. ZOLLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

October 21, 2020

* Counsel of Record

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.