# Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A014

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

No. 10-1491

In the Supreme Court of the Anited States

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF
HER UATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,
PETITIONERS

Vv.
ROYAL DUTCH PETROLEUM CoO., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

DONALD B. VERRILLI, JR.

Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MELISSA ARBUS SHERRY
Assistant to the Solicitor
HAROLD HONGJU KOH General
Legal Advisor DOUGLAS N. LETTER
Department of State ROBERT M. LOEB
Washington, D.C. 20520 MELISSA N. PATTERSON
Attorneys
CAMERON F. KERRY Department of Justice
General Counsel Washington, D.C. 20530-0001
Department of Commerce SupremeCtBriefs@usdoj.gov
Washington, D.C. 20230 (202) 514-2217

QUESTIONS PRESENTED

1. Whether the issue of corporate liability under the
Alien Tort Statute (ATS), 28 U.S.C. 1350, is a merits
question or a question of subject-matter jurisdiction.

2. Whether a corporation can be held liable in a
federal common law action brought under the ATS.

(I)

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TABLE OF CONTENTS

Page
Interest of the United States ................. 0. cece eeeee l
PE sav ataeekheeeheeebdeensenwadsauhwanccee ees l
Summary of the argument ..... ccc cccccccscccccccccccnn 5
BE 6a ci dancekunncenssenedsccadevasevacedeteriss 8

I. The issue of corporate liability in a federal common
law action based on the Alien Tort Statute does not
implicate the district court’s subject-matter
I 40d ndcndncetiras eessnebedeeounwees. 8
Il. Acorporation can be held liable in a federal common
law suit based on the Alien Tort Statute for violating
ID vecaisenndenadaéedediveewadecycs 12
A. Whether a corporation may be held liable in
a suit based on the ATS should be determined
as a matter of federal common law ............. 15
B. Courts may recognize corporate liability as
a matter of federal common law in actions

I Is 666-00 0606 bse undeie ddiecencdins 22
CI, oo. 6.46000606050406 06 6h64bas add OTR 32
TABLE OF AUTHORITIES

Cases:
Argentine Republic v. Amerada Hess Shipping
CO Gy See PE, Sosvcucacucediuedtseuken 22

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) .... 11, 13
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

I b-66906086000004080464000RN sere RR eee eweer 19
Beaston v. Farmers’ Bank of Del., 37 U.S. (12 Pet.)

ED 6: 0:0:6-0.65-06- 0508-0000 6065-008040459040046-005 25
Bell v. Hood, 327 U.S. 678 (1946) .... 02.02.00. 0000005. 6,9

(IIT)

Cases—Continued: Page
Castellanos-Contreras v. Decatur Hotels, LLC,
GER F Be SES Gta Clr. BONG) ... ccc ccccccccccceces 10
Chestnut Hill & Spring House Turnpike Co. v.
Rutter, 4 Serg. & Rawle 6 (Pa. 1818) ............... 26
Cook County v. United States ex rel. Chandler,
SEE tbe Godeausdundesedcedee cesses 25
Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir.
EP ETE TT Ter TT eT TT eT eee passim

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) .... 27

Flomo v. Firestone Natural Rubber Co., 643 F.3d
i he 12, 19, 28

Gray v. Portland Bank, 3 Mass. (2 Tyng) 363 (1807) .... 26
Harmony v. United States (The Malek Adhel),

A Ee POD bcc cisccccencsuecucess 25
Kadic v. Karadzié, 70 F.3d 232 (2d Cir. 1995),

cert. denied, 518 U.S. 1005 (1996) ............... 17, 18
Mayor v. Turner, (1774) 98 Eng. Rep. 980 (K.B.) ....... 26
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ........ 13
Morrison v. National Australia Bank Ltd.,

ED cc deneaciveianuaes sauce 8,12
Philadelphia, Wilmington, & Balt. R.R. v. Quigley,

Ge UE, Gee Ft En ccc cece ccccccccvcecs 26
Poresky, Ex parte, 290 U.S. 30 (1933) .............0005. 9

Presbyterian Church of Sudan v. Talisman Energy,
Inc., 582 F.3d 244 (2d Cir. 2009), cert. denied,
131 S. Ct. 79 and 131 S. Ct. 122 (2010) ......... 5, 11,13

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111
Pe eee 14

Cases—Continued: Page
Riddle v. Proprieters of the Locks, 7 Mass. (6 Tyng)
DEE §:+-c56.csGeaGRSKRSRKNOMMAKN SROs e Se eee aK 26
Romero v. Drummond Co., 552 F.3d 1303 (11th Cir.
NE dd wd wkd eRKh ba ben dide chew kieebabecabesas 9,12
Romero v. International Terminal Operating Co.,
EE nb due Ne Giee anes bickeuiea< bees 12
Samantar v. Yousuf, 130 S. Ct. 2278 (2010) ............ 22
Sarei v. Rio Tinto, PLC:

487 F.3d 1193 (9th Cir. 2007), opinion withdrawn
and superceded on reh’g en banc, 550 F.3d 822
pe re eee ene he rere 9
No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25,
2011), petition for cert. pending, No. 11-649
EINE Wkecncavhawecadesdaeadeees 12, 20
Shell Petroleum N.V. v. Kiobel, 132 S. Ct. 248 (2011) .... 13
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .... passim

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774
(D.C. Cir. 1984), cert. denied, 470 U.S. 1003

De panetek sAbSA Koski ns bud hedbentheenes 16, 18, 23
Townsend v. Susquehanna Turnpike Co., 6 Johns. 90

I i 26
United States v. Amedy, 24 U.S. (11 Wheat.) 392

DP iscetecKehecdekuresds eshekekencebick ccs a 25, 26
United States v. Stanley, 483 U.S. 669 (1987) .......... 10

Yamaha Motor Corp., U.S.A. v. Calhoun,
IEEE ecu cout cucudessecanh eedinceas 10

VI

Treaties and statutes: Page

Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
adopted Dec. 10, 1984, S. Treaty Doc. No. 20,
100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85 .... 17, 20

Convention Against Transnational Organized Crime,
Nov. 15, 2000, S. Treaty Doc. No. 16, 108th Cong.,
2d Sess. (2004), 2225 U.N.T.S. 209 ................. 31
Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions,
Dec. 17, 1997, S. Treaty Doc. No. 43, 105th Cong.,
2d Sess. (1998), 37 1.L.M. 1(1998) ................. 31

Convention on the Prevention and Punishment of
the Crime of Genocide, adopted Dec. 9, 1948,
102 Stat. 3045, 78 U.N.T.S. 277 ...............-- 18, 20

Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

EY oak cue nenkd deeds kacexdvsavieos 18, 21
Rome Statute of the International Criminal Court,

DU Wig HE Ee Wee OO occ ccccvccccccses 28, 29
Act of Apr. 30, 1790, ch. 9, 1 Stat. 112:

a ul cee aa dh etek wereren te 24

rr rr rs caccchbncucsetataciseves 24

PME bie losses cn esnscveacs chet dstuse 24
Alien Tort Statute, 28 U.S.C. 1350 ............... 1, 9, 22
Foreign Sovereign Immunities Act of 1976,

ee eee aus cole Siedaws doe nie 22
Torture Victim Protection Act of 1991,

, ee HF ) Fk. rere 3, 13

ee I OE 6A beh Shdspas dash ehsaanewexnt 27

Vil

Statutes—Continued: Page
SED veh. 4550 0600455 den caweann 3, 6, 8, 10, 11
Miscellaneous:
Arrest Warrant of 11 April 2000, Dem. Rep. Congo v.
Belgium, 2002 1.C.J.3 (Feb. 14) ..............2005- 19
M. Cherif Bassiouni, Crimes Against Humanity in
International Criminal Law (2d rev. ed. 1999) ...... 31
1 William Blackstone, Commentaries on the Laws
EE 3. co ncadbuecneeeecebeunenckacas 25

Jonathan A. Bush, The Prehistory of Corporations
and Conspiracy in Criminal Law: What Nurem-
berg Really Said, 109 Colum. L. Rev. 1094 (2009) .... 30
William R. Casto, The Federal Courts’ Protective
Jurisdiction Over Torts Committed In Violation
of the Law of Nations, 18 Conn. L. Rev. 467

Ss aah cca seek adh eudakece red ssareunseevas 22, 23
9A William M. Fletcher, Cyclopedia of the Law of
Corporations (2008 rev. ed.) .........cceccescceees 27
Louis Henkin, Foreign Affairs and the United States
Constitution (2d ed. 1996) .........ccccecceccceess 18
H.R. Rep. No. 367, 102d Cong., Ist Sess. Pt. 1 (1991) .... 27
Diarmuid Jeffreys, Hell’s Cartel (2008) ............... 30
21 Journals of the Continental Congress 1774-1789
I, OED vccvedacchcgpsd-cnaneenswans 23
1 Stewart Kyd, A Treatise on the Law of
NID kc cise cndecioescnce ced sense 25
Be Ee CEE oc cdc vc buneneaseacuoudsopes 25
CS PRE: 0.6 66n-cbeucdccvrpeesesseesen 14

PE A A PCED vio vse cvensdsacvsscccnvene 25

VII

Miscellaneous—Continued: Page

Anita Ramasastry & Robert C. Thompson,
Commerce, Crime and Conflict: Legal Remedies
for Private Sector Liability for Grave Breaches
of International Law—A Survey of Sixteen
Countries—Executive Summary (2006),

http://www. fafo.no/pub/rapp/536/536.pdf............ 29
1 Restatement (Third) of Foreign Relations Law

PN Ci chdes chin eaL ea cakicidas ce ukene ke oanaRes 19
S. Rep. No. 249, 102d Cong., Ist Sess. (1991) ........... 27
18 State Dep’t Annual Hum. Rts. Rep. Submitted to

ES SA Gd seeuvsedsVeusseeedsusduusedescs 2
19 State Dep’t Annual Hum. Rts. Rep. Submitted to

RE er ee er ee reer 2
20 State Dep’t Annual Hum. Rts. Rep. Submitted to

ET 6-664 6b ceehasesedannvatesccedesne 2

The Nuremberg Trial (United States v. Goering),
6 F.R.D. 69 (Int’] Military Trib. at Nuremberg
PE x56 kkbnSeRs hs CR RERROREA EES CO CRNE Car eekrnne 30

In the Supreme Court of the Anited States

No. 10-1491

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER
LATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,
PETITIONERS

v.
ROYAL DUTCH PETROLEUM CO., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a corpora-
tion can be held liable in a federal common law action
brought under the Alien Tort Statute (ATS), 28 U.S.C.
1350. The United States has an interest in the proper
application of the ATS because such actions can have
implications for the Nation’s foreign and commercial
relations and for the enforcement of international law.

STATEMENT

1. Petitioners are former residents of the Ogoni re-
gion in Nigeria. Respondents are Dutch and British
holding corporations that, through a Nigerian subsid-

(1)

2

iary, were engaged in oil exploration and production in
the Ogoni region.’ In 2002, petitioners filed a putative
class action invoking the ATS. Petitioners alleged that
respondents aided and abetted, or were otherwise
complicit in, various human rights abuses by the Nige-
rian government, including torture, cruel, inhuman, and
degrading treatment, arbitrary arrest and detention,
crimes against humanity, proverty destruction, forced
exile, extrajudicial killings, and violations of the rights
to life, liberty, security, and association. Specifically,
petitioners alleged that Nigerian military and police
forces killed, raped, and detained Ogoni residents, and
destroyed their property, and that respondents provided
logistical and financial support in connection with those
actions. See Pet. App. A21-A23, A169-A173.”

2. Respondents moved to dismiss, arguing, inter
alia, that the operative complaint failed to state a viola-
tion of the law of nations with the specificity required by
Sosa v. Alvarez-Machain, 542 U.S. 692, 731-734 (2004).
Pet. App. B1-B3. The district court granted the motion
in part and denied it in part. Jd. at B1-B23. The court
first held that “where a cause of action for violation of an
international norm is viable under the ATS, claims for
aiding and abetting that violation are viable as well.” /d.
at B12. Concluding that customary international law did
not define with sufficient particularity petitioners’
claims for aiding and abetting property destruction,

' The Nigerian subsidiary was dismissed from the suit for lack of
personal jurisdiction. Pet. App. A170.

* State Department reports document a history of violent repression
of Ogoni residents by Nigerian security forces over the relevant time
period. See 18 State Dep’t Annual Hum. Rts. Rep. to Congress 214
(1993); 19 State Dep’t Annual Hum. Rts. Rep. to Congress 190 (1994);
20 State Dep’t Annual Hum. Rts. Rep. to Congress 197-198, 200 (1995).

3

forced exile, extrajudicial killing, or violation of the
rights to life, liberty, security, and association, the court
dismissed those claims. /d. at B13-B15, B20-B21. The
court, however, declined to dismiss petitioners’ claims of
aiding and abetting arbitrary arrest and detention,
crimes against humanity, and torture. /d. at B16-B20.
Respondents did not raise and the court did not decide
whether a corporation may be held liable in a suit under
the ATS. The court certified its order for interlocutory
appeal under 28 U.S.C. 1292(b). Pet. App. B21-B23.

3. The court of appeals granted both parties’ peti-
tions for interlocutory appeal, and affirmed in part and
reversed in part.

a. Petitioners argued that the district court erred in
dismissing their extrajudicial-killing claim; respondents
argued that the court erred in not dismissing the opera-
tive complaint in its entirety. See Br. in Opp. App. 33a-
34a, 38a n.6. Respondents’ primary contentions were
that “[nJo definite and uniformly agreed-upon norm of
the law of nations” (id. at 49a) prohibited any of respon-
dents’ alleged acts, and that respondents could not be
held liable for the acts of their corporate subsidiary.
With respect to torture and extrajudicial killing, respon-
dents also asserted that the claims were displaced by the
Torture Victim Protection Act of 1991 (TVPA), Pub. L.
No. 102-256, 106 Stat. 73, and that respondents were not
state actors. See Br. in Opp. App. 55a-57a, 60a-65a, 70a,
71a-72a. Finally, in arguing that they could not be held
liable for the acts of their corporate subsidiary, respon-
dents briefly asserted that the practices of international
criminal tribunals “suggest[] that the law of nations does
not attach civil liability to corporations under any cir-
cumstance.” Jd. at 59a-60a; see id. at 138a n.31 (petition-

4

ers’ response on corporate liability); see also id. at 167a
n.1, 169a.

b. The panel majority did not address any of the
grounds relied on by the district court and fully briefed
by the parties. Instead, the court chose to decide one of
several “unresolved issues lurking in [its] ATS juris-
prudence”—whether “the jurisdiction granted by the
ATS extend([s] to civil actions brought against corpora-
tions under the law of nations.” Pet. App. A7. The court
noted that it had “decided ATS cases involving corpora-
tions without addressing the issue of corporate liability,”
but concluded that it was not bound by those decisions
because the issue was one of subject-matter jurisdiction.
Id. at A24-A25.

The court’s analysis “proceed[ed] in two steps.” Pet.
App. A25. The court first considered “which body of law
governs the question” and concluded that “international
law”—specifically, those “norms that are ‘specific, uni-
versal, and obligatory’”—controls. Jd. at Al6, A25-A39.
The court explained that the ATS “leaves the question
of the nature and scope of liability—who is liable for
what—to customary international law,” id. at A18, and
that the “domestic law of the United States,” or of “any
other country,” is “entirely irrelevant,” id. at A9 & n.11.
The court looked “to international law to determine
whether corporate liability for a ‘violation of the law of
nations’ is a norm ‘accepted by the civilized world and
defined with a specificity’ sufficient to provide a basis
for jurisdiction under the ATS.” /d. at A38 (citations
omitted).

Relying primarily on its assessment that “no corpo-
ration has ever been subject to any form of liability un-
der the customary international law of human rights,”
Pet. App. A16, the court of appeals concluded that “cor-

5

porate liability has not attained a discernable, much less
universal, acceptance among nations of the world in
their relations inter se,” id. at A79-A80. Because peti-
tioners’ claims were all asserted against corporations,
the court ordered dismissal of the complaint “for lack of
subject matter jurisdiction.” Jd. at A81.

c. Judge Leval concurred only in the judgment. Pet.
App. A82-A186. He agreed “that the place to look for
answers whether any set of facts constitutes a violation
of international law is to international law,” id. at A137,
but concluded that international law “leaves the manner
of enforcement * * * almost entirely to individual na-
tions,” id. at A87. Judge Leval nevertheless agreed that
“this Complaint must be dismissed,” because petitioners
had not sufficiently alleged, as required by circuit prece-
dent, that respondents aided and abetted customary
international-law violations “with a purpose to bring
about the Nigerian government’s alleged violations.” Jd.
at A90-A91; see zd. at A168 (citing Presbyterian Church
of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259
(2d Cir. 2009), cert. denied, 131 S. Ct. 79 and 131 S. Ct.
122 (2010) (Talisman)).

4. The court of appeals denied panel rehearing. Pet.
App. D3-D10, D24-D25 (Jacobs and Cabranes, JJ., each
concurring in denial); id. at D11-D23 (Leval, J., dissent-
ing). Rehearing en banc was denied by an equally di-
vided court. See id. at C3-C5 (Lynch and Katzmann,
JJ., each dissenting from denial).

SUMMARY OF THE ARGUMENT

I. The court of appeals erred in characterizing the
question whether a corporation can be held liable in a
federal common law action based on the ATS as one of
subject-matter jurisdiction. “[I]t is well settled that the

6

failure to state a proper cause of action calls for a judg-
ment on the merits and not for a dismissal for want of
jurisdiction.” Bell v. Hood, 327 U.S. 678, 682 (1946).
When an alien plaintiff alleges a nonfrivolous claim of a
tort in violation of the law of nations—as petitioners did
here—a district court has subject-matter jurisdiction
under the ATS.

The court of appeals nonetheless had jurisdiction
under 28 U.S.C. 1292(b) to decide the issue of corporate
liability here. Although that issue was neither raised in
nor decided by the district court, it can be regarded as
fairly included within the court’s certified order. As a
prudential matter, the court should not have decided
that issue on appeal. But because this Court has already
granted certiorari and the issue of corporate liability
will now be fully briefed, it would be appropriate for the
Court to decide that question rather than vacate and
remand.

II. The merits question before this Court is narrow:
whether a corporation can be held liable in a federal
common law action based on the ATS. Although there
are a number of other issues in the background of this
case (e.g., aiding-and-abetting liability, extraterritoria!-
ity, etc.), those issues were not decided by the court of
appeals here. This Court therefore should address only
the corporate-liability issue. On that issue, the court of
appeals’ holding is categorical and applies to all suits
under the ATS, regardless of the theory of liability, the
locus of the acts, the involvement of a foreign sovereign,
or the character of the international-law norm at issue.

A. A corporation’s liability in a suit under the ATS
does not depend on the existence of a generally accepted
and well-defined international law norm of corporate
liability for law-of-nations violations. The particular

7

limitation this Court found dispositive in Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004)—that any claim
under the ATS must at least “rest on a norm of interna-
tional character accepted by the civilized world and de-
fined with” sufficient “specificity,” id. at 725—pertains
to the international-law norm itself and not to whether
(or how) that norm should be enforced in a suit under
the ATS. The latter question is a matter to be deter-
mined by federal courts cautiously exercising their “re-
sidual common law discretion.” /d. at 738. International
law informs, but does not control, the exercise of that
discretion.

At the present time, the United States is not aware
of any international-law norm of the sort identified in
Sosa that distinguishes between natural and juridical
persons. Corporations (or agents acting on their be-
half) can violate those norms just as natural persons
can. Whether corporations should be held accountable
for those violations in private tort suits under the ATS
is a question of federal] common law.

B. Courts may recognize corporate liability in ac-
tions under the ATS as a matter of federal common law.
The text and history of the ATS itself provide no basis
for distinguishing between natural and juridical persons.
Corporations have been subject to suit for centuries, and
the concept of corporate liability is a well-settled part of
our “legal culture.” Pet. App. A8. Sosa’s cautionary
admonitions provide no reason to depart from the com-
mon law on this issue.

International law does not counsel otherwise. Al-
though no international tribunal has been created for
the purpose of holding corporations civilly liable for vio-
lations of international law, the same is true for natural
persons. And while international criminal tribunals

8

have, thus far, been limited to the prosecution of natural
persons, that appears to be because of matters unique to
criminal punishment. Notably, several countries that
have incorporated international criminal offenses into
their domestic law apply those offenses to corporations.

ARGUMENT

I. THE ISSUE OF CORPORATE LIABILITY IN A FEDERAL
COMMON LAW ACTION BASED ON THE ALIEN TORT
STATUTE DOES NOT IMPLICATE THE DISTRICT
COURT'S SUBJECT-MATTER JURISDICTION

The court of appeals accepted the parties’ interlocu-
tory appeal under 28 U.S.C. 1292(b), and ordered dis-
missal of petitioners’ suit based on a legal theory (7.e.,
that a corporation cannot be held liable in a common law
action under the ATS) that was neither raised in nor
decided by the district court. In justifying its decision
to do so, the court of appeals characterized the issue as
one of subject-matter jurisdiction. Pet. App. A24-A25,
A81. That was error, and the court should not have ad-
dressed the corporate-liability question for the first time
on interlocutory appeal. Nonetheless, the appellate
court had jurisdiction to decide the question of corporate
liability and, in the current procedural posture, it would
be appropriate for this Court to decide it as well.

A. “Subject-matter jurisdiction * * * refers toa
tribunal’s power to hear a case.” Morrison v. National
Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (inter-
nal quotation marks and citations omitted). The ques-
tion of subject-matter jurisdiction is “quite separate
from the question whether the allegations the plaintiff
makes entitle him to relief.” Jbid. “[I}t is well settled
that the failure to state a proper cause of action calls for
a judgment on the merits and not for a dismissal for

9

want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 682
(1946). Unless the claim is so “plainly unsubstantial”
that it falls outside the statutory grant of jurisdiction,
failure to state a claim does not affect the court’s power
to hear a case. Ex parte Poresky, 290 U.S. 30, 32 (1933).

The ATS grants district courts “original jurisdiction”
over “any civil action by an alien for a tort only, commit-
ted in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. 1350. A district court would
lack ATS jurisdiction over a claim brought by a U.S.
citizen, or a claim that could not colorably constitute a
cognizable tort, or that was premised on an asserted
law-of-nations violation that was plainly insubstantial.
But so long as an alien plaintiff alleges a nonfrivolous
claim of a tort in violation of the law of nations, the dis-
trict court has subject-matter jurisdiction under the
ATS. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1201
(9th Cir. 2007), opinion withdrawn and superseded on
reh’g en banc, 550 F.3d 822 (2008) (not addressing juris-
dictional issue); cf. Doe v. Exxon Mobil Corp., 654 F.3d
11, 40 (D.C. Cir. 2011) (declining to decide whether pre-
Sosa circuit law settles jurisdictional question). But see
Romero v. Drummond Co., 552 F.3d 1308, 1315 (11th
Cir. 2008) (treating corporate liability as jurisdictional
under ATS).

The argument that a corporation may be subject to
suit under the ATS is, at the very least, nonfrivolous. A
district court therefore does not lack jurisdiction over an
alien’s otherwise colorable tort claim alleging a law-of-
nations violation simply because the defendant is a cor-
poration.

B. Although the court of appeals erred in reaching
the corporate-liability issue on the premise that it went
to the district court’s subject-matter jurisdiction, it

10

nonetheless appears that the court of appeals had juris-
diction to decide that issue in this case.* A district court
may certify for interlocutory appeal an “order
involv[ing] a controlling question of law as to which
there is substantial ground for difference of opinion,” if
“immediate appeal from the order may materially ad-
vance the ultimate termination of the litigation.”
28 U.S.C. 1292(b). Although the court of appeals “may
not reach beyond the certified order to address other
orders made in the case,” it “may address any issue
fairly included within the certified order because ‘it is
the order that is appealable, and not the controlling
question identified by the district court.’” Yamaha Mo-
tor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)
(citation omitted); see United States v. Stanley, 483 U.S.
669, 677 (1987).

Here, the district court certified its order granting in
part and denying in part respondents’ motion to dismiss.
Although the order did not address the issue of corpo-
rate liability (and respondents did not raise that issue),
the denial of the motion to dismiss with respect to cer-
tain claims (crimes against humanity, torture, and arbi-
trary arrest and detention) could be understood as im-
plicitly assuming that at least some law-of-nations viola-
tions are actionable against a corporate defendant in a
suit under the ATS. Because the issue of corporate lia-
bility was to this extent “fairly included” within the cer-
tified order, the court of appeals had jurisdiction to de-
cide it. See Castellanos-Contreras v. Decatur Hotels,
LLC, 622 F.3d 393, 398-399 (5th Cir. 2010) (en banc)
(finding jurisdiction under Section 1292(b) to review

* Petitioners argued to the contrary at the petition stage, Pet. 16 n.7;
Reply Br. 5-6, but they do not renew that argument in their merits
brief.

1]

“threshold question” not expressly decided by district
court, but implicit in its order and “material” to the or-
der’s validity). Permitting a court of appeals to con-
sider, in appropriate circumstances, a legal infirmity
fairly included within the certified order, but unnoticed
or unaddressed by the district court, could “materially
advance the ultimate termination of the litigation,”
28 U.S.C. 1292(b).

C. To be sure, a court of appeals generally should
not consider a question not raised in or addressed by the
district court in the context of a Section 1292(b) interloc-
utory appeal. But that is ultimately a matter of pru-
dence, not jurisdiction. As a prudential matter, the
court of appeals should have declined to decide whether
a corporation can be held liable in a suit under the ATS.
The Second Circuit had stayed its hand on that issue in
several previous cases. See Pet. App. A7 n.10, A24-A25
(citing cases); ef. Aziz v. Alcolac, Inc., 658 F.3d 388, 394
n.6 (4th Cir. 2011) (declining to consider corporate-
liability question on appeal from final judgment when
not raised in district court). And it is not evident that
the panel in this case would have reached out to decide
the issue if the court had appreciated that the issue did
not go to the district court’s subject-matter jurisdiction.
At the very least, the panel should not have done so
without full briefing from the parties in this case. See
pp. 3-4, supra.*

‘ The corporate-liability issue was raised in Talisman, supra, which
was argued in the Second Circuit in tandem with this case, Br. in Opp.
7.4. That issue was the subject of considerable discussion in the oral
argument in this case, and was addressed in a post-argument letter
brief submitted in Talisman by petitioners’ counsel (who represented
the plaintiffs in both cases), Br. in Opp. App. 190a-206a.

12

Although the court of appeals erred in characterizing
the issue of corporate liability as one of subject-matter
jurisdiction under the ATS, and in addressing it in the
first instance and without full briefing by the parties,
those errors do not pose any practical obstacle to this
Court’s review of the court of appeals’ extensive sub-
stantive analysis. Because the Court has granted certio-
rari and the issue will now be fully briefed by the par-
ties, it would be appropriate to decide the corporate-
liability issue rather than vacate and remand to the
court of appeals. See Morrison, 130 S. Ct. at 2877 (de-
clining to remand); Romero v. International Terminal
Operating Co., 358 U.S. 354, 359, 381-384 (1959).°

Ii. A CORPORATION CAN BE HELD LIABLE IN A FED-
ERAL COMMON LAW SUIT BASED ON THE ALIEN
TORT STATUTE FOR VIOLATING THE LAW OF NA-
TIONS

The second question presented is whether a corpora-
tion can be held liable in a suit under the ATS for violat-
ing the law of nations. As the court of appeals recog-
nized (Pet. App. A7), a number of other questions, un-
answered by this Court, are implicated by this case
and other ATS cases. These include: whether or when

* This Court may have granted certiorari in part to resolve a
disagreement among the courts of appeals on the issue of corporate
liability in suits based on the ATS. If the decision below were vacated,
however, the present conflict would no longer exist. The Seventh,
Ninth, Eleventh, and D.C. Circuits have all held that corporations can
be liable in tort for a violation of the law of nations under the ATS. Doe,
654 F.3d at 39-57; Flomo v. Firestone Natural Rubber Co., 643 F.3d
1013, 1017-1021 (7th Cir. 2011); Sarei v. Rio Tinto, PLC, No. 02-56256,
2011 WL 5041927, at *6-*7, *19-*20, *24-*25 (9th Cir. Oct. 25, 2011),
petition for cert. pending, No. 11-649 (filed Nov. 23, 2011); Drummond
Co., 552 F.3d at 1315-1316.

13

a cause of action should be recognized for theories of
secondary liability such as aiding and abetting, see Aziz,
658 F.3d at 395-401 (citing cases); whether or when a
cause of action should be recognized under U.S. common
law based on acts occurring in a foreign country, see
Sosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004);
and whether or when congressional legislation such as
the Torture Victim Protection Act of 1991 (TVPA),
Pub. L. No. 102-256, 106 Stat. 73, should be taken into
account in determining the scope and content of common
law claims to be recognized under the ATS, cf. Miles
v. Apex Marine Corp., 498 U.S. 19, 23-37 (1990). Those
questions are important, but they were not decided
by the court of appeals in this case and should not be
answered by this Court here.*® And the holding on the

* The court of appeals did not decide any of those issues in this case.
See Pet. App. A7-A8 & n.10 (declining to address extraterritoriality);
Br. in Opp. 30-35, 31 n.22 (suggesting respondents would raise alter-
native grounds for affirmance). Although Judge Leval concurred in the
judgment because he believed the operative complaint should be
dismissed for failure to sufficiently plead aiding-and-abetting liability
under Second Circuit precedent (Pet. App. Al68-A185), the majority
did not decide that question. Aiding-and-abetting liability was, how-
ever, addressed by the Second Circuit in the Talisman case, which was
heard in tandem with this case (see note 4, supra). The United States
filed a brief in Talisman addressing both extraterritoriality and aiding-
and-abetting liability, and stating that its arguments were “equally
applicable to the Kiobel district court’s determination that claims for
aiding and abetting liability are available under the ATS.” U.S. Br. at
5 n.1, Talisman, supra (No. 07-0016).

Respondents filed a conditional cross-petition for certiorari present-
ing the question whether the TVPA has “displaced” certain claims
brought under the ATS (namely, torture, cruel, inhuman, and degrad-
ing treatment, and extrajudicial killing), but this Court denied that peti-
tion. See Shell Petroleum N.V. v. Kiobel, cert. denied, 132 5. Ct. 248
(2011) (No. 11-63). To the extent the Court wishes to address any of

14

issu the court of appeals did decide—that a corporation
may not be held liable—is categorical and applies to all
suits under the ATS, regardless of the theory of liability,
the locus of the acts, the involvement of a foreign sover-
eign, or the character of the international-law norm at
issue.

To isolate the consideration of the court of appeals’
holding from those other issues, and to tie the corporate-
liability issue to the origins of the ATS, consider (for
example) a civil suit brought by a foreign ambassador
against a U.S. corporation for wrongs committed against
the ambassador by the corporation’s employees in the
United States. Cf. Sosa, 542 U.S. at 716-717 (discussing
assault on foreign ambassador to the United States in
Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa.
Oyer & Terminer 1784)).’ Or consider a suit against a
corporation based on piracy committed by the corpora-
tion’s employees. Cf. id. at 720,724. Whether a federal
court should recognize a cause of action in such circum-
stances is a question of federal common law that, while
informed by international law, is not controlled by it.

those questions, it should do so in a case where the issues have been
decided by the court of appeals—and only after full briefing. The
United States accordingly will address here only the corporate-liability
question presented in this case.

" Cf. 1 Op. Att’y Gen. 71, 73 (1797) (opining on prosecution of
newspaper editor for libel of Spanish Ambassador and noting that “[a}n
affront to an ambassador is just cause for national displeasure, and, if
offered by an individual citizen, satisfaction is demandable of his
nation”).

15

A. Whether A Corporation May Be Held Liable In A Suit
Based On The ATS Should Be Determined As A Matter
Of Federal Common Law

1. This Court explained in Sosa that, although the
ATS “is in terms only jurisdictional,” and does not cre-
ate a statutory cause of action, “at the time of enact-
ment” it “enabled federal courts to hear claims in a very
limited category defined by the law of nations and recog-
nized at common law.” 542 U.S. at 712. At that time,
the category encompassed “three primary offenses:
violation of safe conducts, infringement of the rights of
ambassadors, and piracy.” /d. at 724; see zd. at 715, 720.
Although the Court concluded that the door had not
been closed “to further independent judicial recognition
of actionable international norms” dictated by “the
present-day law of nations,” id. at 725, 729, it identified
certain cautionary factors to be considered in deciding
whether to recognize such a claim under federal common
law, td. at 725-728. The Court made clear, however, that
“(whatever the ultimate criteria for accepting a cause of
action subject to jurisdiction under [Section] 1350,” one
essential criterion is that “federal courts should not rec-
ognize private claims under federal common law for vio-
lations of any international law norm with less definite
content and acceptance among civilized nations than
[those] historical paradigms.” /d. at 732." Accordingly,
“any claim based on the present-day law of nations”
must at least “rest on a norm of international character

* See Sosa, 542 U.S. at 733 n.21 (“This requirement of clear definition
is not meant to be the only principle limiting the availability of relief in
the federal] courts for violations of customary international law.”); id. at
738 n.30 (noting that the “demanding standard of definition” must first
be met “to raise even the possibility of a private cause of action”).

16

accepted by the civilized world and defined with a speci-
ficity comparable to the features of th[ose] 18th-century
paradigms.” /d. at 725.

2. Contrary to the court of appeals’ conclusion, in
determining whether a federal common law cause of
action should be fashioned, courts are not required to
determine whether “corporate liability for a ‘violation of
the law of nations’ is a norm ‘accepted by the civilized
world and defined with a specificity’ sufficient to provide
a basis for jurisdiction under the ATS.” Pet. App. A38
(citation omitted). In so holding, the court of appeals
confused the threshold limitation identified in Sosa
(which does require violation of an accepted and suffi-
ciently defined substantive international-law norm) with
the question of how to enforce that norm in domestic law
(which does not require an accepted and sufficiently de-
fined practice of international law). That confusion
stems in large part from the court’s misreading of foot-
note 20 in the Sosa opinion.

In footnote 20, the Court explained that “[a) related
consideration” —i.e., a consideration related to “the de-
termination whether a norm is sufficiently definite to
support a cause of action”—“is whether international
law extends the scope of liability for a violation of a
given norm to the perpetrator being sued, if the defen-
dant is a private actor such as a corporation or individ-
ual.” Sosa, 542 U.S. at 732 & n.20. The Court then pro-
ceeded to compare two cases exemplifying that “consid-
eration.” The first was Judge Edwards’ concurring
opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 791-795 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003
(1985), in which he found (in this Court’s words) an “in-
sufficient consensus in 1984 that torture by private ac-
tors violates international law.” Sosa, 542 U.S. at 732

17

n.20. The second was Kadic v. KaradZié, 70 F.3d 232,
239-241 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996),
in which the court found (again, in this Court’s words) a
“sufficient consensus in 1995 that genocide by private
actors violates international law.” Sosa, 542 U.S. at 732
n.20. In a concurring opinion, Justice Breyer summa-
rized footnote 20 as requiring that “[t]he norm * * *
extend liability to the type of perpetrator (e.g., a private
actor) the plaintiff seeks to sue.” Jd. at 760.

From Sosa’s footnote 20, it is clear that “if the defen-
dant is a private actor,” Sosa, 542 U.S. at 732 n.20 (em-
phasis added), a court must consider whether private
actors are capable of violating the international-law
norm at issue. The distinction between norms that apply
only to state actors and norms that also apply to non-
state actors is well established in customary interna-
tional law. Pet. App. A143 (explaining that “the distinc-
tion between conduct that does and conduct that does
not violate the law of nations can turn on whether the
conduct is done by or on behalf of a State or by a private
actor independently of a State”).’ For example, the Tor-
ture Convention defines “torture” as certain conduct
done “by or at the instigation or with the consent or ac-
quiescence of a public official or other person acting in
an official capacity.” Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, art. 1, adopted Dec. 10, 1984, S. Treaty Doc.
No. 20, 100th Cong., 2d Sess. 4 (1988), 1465 U.N.T-.S. 85,
113-114 (Torture Convention). In contrast, genocide and
war crimes do not require state involvement. See, e.g.,

* Although the formal distinction in internationa) law is between
norms that require state action and norms that do not, this brief
adheres to the Court’s terminology in Sosa and refers to “state actors”
and “non-state actors” to describe that distinction.

18

Convention on the Prevention and Punishment of the
Crime of Genocide, art. II, adopted Dec. 9, 1948, 102
Stat. 3045, 78 U.N.T.S. 277 (Genocide Convention);
Geneva Convention Relative to the Treatment of Prison-
ers of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 3318, 75
U.N.T.S. 135, 136 (Common Article 3). Because certain
international-law obligations do distinguish between
state actors and non-state actors, to identify an accepted
international-law norm with definite content for Sosa
purposes, a court must conduct a norm-by-norm assess-
ment to determine whether the actor being sued is
within the scope of the identified norm.

The court of appeals, however, read Sosa’s footnote
20 more broadly in two respects. First, it misread the
distinction between state actors and non-state actors—a
distinction well recognized in international law—as a
basis for drawing a distinction between natural and ju-
ridical persons—one that finds no basis in the relevant
norms of international law. In fact, the footnote groups
all private actors together, referring to “a private actor
such as a corporation or individual.” Sosa, 542 U.S. at
732 n.20 (emphasis added). And, notably, the defendant
in Kadic was a natural person, 70 F.3d at 236, whereas
the defendants in Tel-Oren were not, 726 F.2d at 775.

Second, the court of appeals misread footnote 20 to
require not just an international consensus regarding
the content of an international-law norm, but also an
international consensus on how to enforce a violation of
that norm. That reading reflects a misunderstanding of
international law which establishes the substantive stan-
dards of conduct and generally leaves the means of en-
forcing those substantive standards to each state. See
Louis Henkin, Foreign Affairs and the United States
Constitution 245 (2d ed. 1996) (“International law itself

19

* * * does not require any particular reaction to viola-
tions of law.”); Pet. App. A87 (Leval, J., concurring only
in the judgment) (“({I}nternational law says little or
nothing about how those norms should be enforced. It
leaves the manner of enforcement * * * almost en-
tirely to individual nations.”); Flomo v. Firestone Natu-
ral Rubber Co., 643 F.3d 1013, 1020 (7th Cir. 2011)
(same); Doe, 654 F.3d at 41-42 (same). Once it is estab-
lished that the international norm applies to conduct by
an actor, it is largely up to each state to determine for
itself whether and how that norm should be enforced in
its domestic law.

That is not to say that international law is irrelevant
to all questions of enforcement.’ And, as discussed in
Part I1.B.3, infra, international law informs the court’s
exercise of its federal common law authority in deter-
mining whether to recognize a cause of action to remedy
a violation of an international-law norm that otherwise
meets the Sosa threshold—and in deciding what the
contours of that cause of action should be. But that is
a different task from satisfying Sosa’s threshold re-
quirement of demonstrating the existence of an accepted
and well-defined substantive international law norm.
Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
423 (1964) (“Although it is, of course, true that United
States courts apply international law as part of our own

'° There are, for example, internationally accepted rules on jurisdic-
tion and immunities and, in certain contexts, international law may
require certain minimum procedural standards. See, e.g., 1 Restate-
ment (Third) of Foreign Relations Law §§ 421, 423 (1986) (international!
law on jurisdiction to adjudicate); id. §§ 451-456 (international law on
foreign sovereign immunity); Arrest Warrant of 11 April 2000, Dem.
Rep. Congo v. Belgium, 2002 I.C.J. 3, 20-21 (Feb. 14) (head-of-state
immunity).

20

in appropriate circumstances, the public law of nations
can hardly dictate to a country which is in theory
wronged how to treat that wrong within its domestic
borders.”).

To satisfy Sosa, a plaintiff in an ATS suit must allege
conduct that violates a substantive norm of international
law accepted by civilized nations and defined with the
requisite degree of specificity. To the extent that sub-
stantive norm is defined in part by the identity of the
perpetrator, then the defendant must fall within that
definition. Similarly, if the substantive norm is defined
in part by the identity of the victim or the locus of
events, then conduct committed against a different vic-
tim or in a different locale could not violate that norm
and a suit under the ATS could not stand. See Sarei v.
Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *43
(9th Cir. Oct. 25, 2011) (McKeown, J., concurring in part
and dissenting in part) (“(T]Jhe handful of international
law violations that may give rise to an ATS claim are
often restricted by the identity of the perpetrator, the
identity of the victim, or the locus of events.”), petition
for cert. pending, No. 11-649 (filed Nov. 23, 2011).

3. At the present time, the United States is not
aware of any international-law norm, accepted by civi-
lized nations and defined with the degree of specificity
required by Sosa, that requires, or necessarily contem-
plates, a distinction between natural and juridical) ac-
tors. See, e.g., Torture Convention art. 1 (defining “tor-
ture” to include “any act by which severe pain or suffer-
ing * * * is intentionally inflicted on a person” for cer-
tain reasons, “by or at the instigation of or with the con-
sent or acquiescence of a public official or other person
acting in an official capacity”) (emphasis added); Geno-
cide Convention art. 2 (defining genocide to include “any

21

of the following acts” committed with intent to destroy
a group, without regard to the identity of the perpe-
trator); Common Article 3 (prohibiting “the following
acts,” without regard to the identity of the perpetra-
tor). Both natural persons and corporations can violate
international-law norms that require state action. And
both natural persons and corporations can violate
international-law norms that do not require state action.
The court of appeals examined the question of corporate
liability in the abstract, and therefore did not address
whether any of the particular international-law norms
identified by petitioners (or recognized by the district
court as satisfying Sosa’s “demanding” standard, 542
U.S. at 738 n.30) exclude corporations from their scope.
Because corporations (or agents acting on their behalf)
can violate the types of international-law norms identi-
fied in Sosa to the same extent as natural persons, the
question becomes whether or how corporations should
be held accountable as a matter of federal common law
for violations that are otherwise actionable in private
tort suits for damages under the ATS."

" This is plainly true when the theory of corporate liability is
premised on respondeat superior and the responsible agent is a natural
person. As the D.C. Circuit explained, in those circumstances agency
law simply determines who will be held financially responsible for the
injury inflicted by the agent. See Doe, 654 F.3d at 41,51. But it is also
true for a theory of direct corporate liability, because corporations are
themselves capable of violating norms of customary international law
of the sort described in Sosa—or at least the United States may
permissibly recognize them to be capable of doing so. Although peti-
tioners have not yet identified the precise theory of corporate liability
on which they intend to proceed, the court of appeals erroneously
rejected the concept of corporate liability in a suit under the ATS as a
categorical matter. Cf. Pet. App. A77 n.51 (noting different standards
of corporate liability). To the extent different theories of corporate

22

B. Courts May Recognize Corporate Liability As A Matter
Of Federal Common Law In Actions Under The ATS

This Court has instructed courts to act as “vigilant
doorkeep(ers],” Sosa, 542 U.S. at 729, and to exercise
“great caution” before “adapting the law of nations to
private rights,” zd. at 728. Such restraint, however, does
not justify a categorical exclusion of corporations from
civil liability under the ATS.

1. The text of the ATS does not support the court of
appeals’ categorical bar. To the contrary, whereas the
ATS clearly limits the class of plaintiffs to aliens,
28 U.S.C. 1350, it “does not distinguish among classes
of defendants,” Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 438 (1989)."

The historical context supports the different textual
treatment of ATS plaintiffs and defendants. As ex-
plained in Sosa, the ATS was passed by the First Con-
gress in 1789, after the well-documented inability of the
Continental Congress to provide redress for violations
of treaties and the laws of nations for which the United
States might be held accountable. See 542 U.S. at 715-
717. The Continental Congress had “implored the
States to vindicate rights under the law of nations,” but
only one State acted on that recommendation. /d. at
716. Notably, although that resolution “dealt primarily
with criminal sanctions,” William R. Casto, The Federal

liability could raise distinct questions as to how a court should exercise
its “residual common law discretion,” Sosa, 542 U.S. at 738, that is a
matter better addressed on remand.

” The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1330,
would bar a suit against a foreign state, Amerada Hess Shipping Corp.,
488 U.S. at 436-438, and other immunities may apply in suits against
other defendants, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2292-2293
(2010).

23

Courts’ Protective Jurisdiction Over Torts Committed
In Violation of the Law of Nations, 18 Conn. L. Rev.
467, 491 (1986) (Casto), the Continental Congress took
the further step of recommending that the States also
make available suits for damages, 21 Journals of the
Continental Congress 1774-1789, at 1136-1137 (Gillard
Hunt ed. 1912) (Continental Congress). And, indeed, the
resolution provided that while it might at times be nec-
essary “to repair out of the public treasury” to compen-
sate for injuries caused by individuals, “the author of
those injuries” should ultimately “compensate the dam-
age out of his private fortune.” Continental Congress
1136.

Events like the “so-called Marbois incident of May
1784”—“in which a French adventurer, De Longchamps,
verbally and physically assaulted the Secretary of the
French [Legation] in Philadelphia”—exposed the inabil-
ity of the national government to redress law-of-nations
violations. Sosa, 542 U.S. at 716-717; Casto 491-492 &
n.138. A “reprise of the Marbois affair,” Sosa, 542 U.S.
at 717, occurred in 1787, during the Constitutional Con-
vention, when a New York City constable entered the
residence of a Dutch diplomat with a warrant for the
arrest of one of his domestic servants. Casto 494. And,
again, the “national government was powerless to act.”
Ibid.

From this history, the Sosa Court concluded that the
First Congress intended the ATS to afford aliens a fed-
eral forum in which to obtain redress for the “relatively
modest set of actions alleging violations of the law of
nations” at the time. 542 U.S. at 720; see id. at 724 (not-
ing importance of “private remedy”); see Tel-Oren, 726
F.2d at 782 (Edwards, J., concurring) (detailing evi-
dence that the intent of the ATS “was to assure aliens

24

access to federal courts to vindicate any incident which,
if mishandled by a state court, might blossom into an
international crisis”). Consistent with the recommenda-
tions of the Continental Congress, the First Congress
both criminalized certain law-of-nations violations (pi-
racy, violation of safe conducts, and infringements on
the rights of ambassadors), see Act of Apr. 30, 1970,
ch. 9, § 8, 1 Stat. 113-114 (1790 Act); id. § 28, 1 Stat. 118,
and in the ATS provided jurisdiction over actions by
aliens seeking civil remedies.

As the D.C. Circuit recently explained, there is no
good “reason to conclude that the First Congress was
supremely concerned with the risk that natural persons
would cause the United States to be drawn into foreign
entanglements, but was content to allow formal legal
associations of individuals, i.e., corporations, to do so.”
Doe, 654 F.3d at 47. Given the apparent intent to pro-
vide compensation to the injured party through a civil
damages remedy in a federal forum (rather than simply
address the international affront through criminal pros-
ecution or diplomatic channels), there is also no good
reason to conclude that the First Congress would have
wanted to allow the suit to proceed only against the po-
tentially judgment-proof individual actor, and to bar
recovery against the company on whose behalf he was
acting. Take, for example, the 1787 incident involving
the Dutch diplomat. If entry were made into his resi-
dence by the agent of a private process service company
for the purpose of serving a summons on the diplomat,
the international affront might equally call for vindica-
tion (and compensation) through a private suit against
that company. Cf. 1790 Act, §§ 25-26, 1 Stat. 117-118
(providing that “any writ or process” that is “sued forth
or prosecuted by any person” against an ambassador or

25

“domestic servant” of an ambassador shall be punished
criminally and would constitute a violation of “the laws
of nations”)."* And later, in opining on a boundary dis-
pute over the diversion of waters from the Rio Grande,
Attorney General Bonaparte stated that citizens of Mex-
ico would have a right of action under the ATS against
the “Irrigation Company.” 26 Op. Att’y Gen. 250, 251
(1907)."*

2. More generally, the proposition that corporations
are “deemed persons” for “civil purposes,” and can be
held civilly liable, has long been recognized as “unques-
tionable.” United States v. Amedy, 24 U.S. (11 Wheat.)
392, 412 (1826); see Beaston v. Farmers’ Bank of Del. , 37
U.S. (12 Pet.) 102, 134 (1838). Corporations are capable
of “suing and being sued.” 1 Stewart Kyd, A Treatise on
the Law of Corporations 13 (1793); see 1 William
Blackstone, Commentaries on the Laws of England 463
(1765) (corporations may “sue or be sued * * * and do
all other acts as natural persons may”); Cook County v.
United States ex rel. Chandler, 538 U.S. 119, 125 (2003)

'® The incident discussed by Attorney General Bradford in his 1795
opinion, in which U.S. citizens had “taken part in the French plunder of
a British slave colony in Sierra Leone,” Sosa, 542 U.S. at 721, provides
another useful analogue. See 1 Op. Att’y. Gen. 57, 59. The Attorney
General there opined that, although the federal government could not
criminally prosecute the Americans, there was “no doubt that the
company or individuals” injured could sue under the ATS. /bid. It
seems unlikely that Congress would have intended federal courts to be

categorically barred from considering a suit against a U.S. corporation
on whose behalf the individuals acted.

* In cases of piracy, legal responsibility was not limited to natural
persons. “The vessel which committed] the aggression [wa]s treated
as the offender,” and was subject to forfeiture. Harmony v. United
States (The Malek Adhel), 43 U.S. (2 How.) 210, 233 (1844).

26

(detailing “common understanding” that corporations
have long had the “capacity to sue and be sued”).”°

As particularly relevant here, corporations were ca-
pable of being sued in tort. This Court has explained
that, “[a]t 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.” Philadelphia, Wil-
mington, & Balt. R.R. v. Quigley, 62 U.S. (21 How.) 202,
210-211 (1859); see Chestnut Hill & Spring House Turn-
pike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818)
(“[F]Jrom the earliest times to the present, corpora-
tions have been held liable for torts.”). In 1774, for ex-
ample, Lord Mansfield’s opinion for the Court of King’s
Bench held that a corporation could be held liable in
damages for failing to repair a creek that its actions had
rendered unnavigable. See Mayor v. Turner, (1774)
98 Eng. Rep. 980. Early American courts followed suit.
See, e.g., Chestnut Hill, 4 Serg. & Rawle at 17; Gray v.
Portland Bank, 3 Mass. (2 Tyng) 363 (1807); Riddle v.
Proprieters of the Locks, 7 Mass. (6 Tyng) 168 (1810);
Townsend v. Susquehanna Turnpike Co., 6 Johns. 90
(N.Y. Sup. Ct. 1809).

Holding corporations liable in tort for violations of
the law of nations of the sort otherwise actionable in a
federal common law action based on the ATS is thus
consistent with the common law backdrop against which
the ATS was enacted and subsequently amended. As
even the Second Circuit recognized, this Nation’s “legal

* See also Amedy, 24 U.S. (11 Wheat.) at 412 (interpreting “person”
in 1801 criminal statute to inclide corporations).

27

culture” has “long” grown “accustomed” to imposing
tort liability on corporations. Pet. App. A8-A9; see Doe,
654 F.3d at 48 (“The general rule of substantive law is
that corporations, like individuals, are liable for their
torts.”) (citation omitted); 9A William M. Fletcher,
Cyclopedia of the Law of Corporations § 4521 (2008 rev.
ed.) (discussing tort suits against corporations). And the
Sosa Court’s cautionary admonitions provide no reason
to depart from the common law on this issue.”

3. International law does not counsel otherwise. As
discussed (see Part II.A, supra), international law does
not dictate a court’s decision whether to recognize, and
how to define, a federal common law cause of action to
enforce a law-of-nations violation of the sort deemed

© In Mohamad v. Palestinian Authority, No. 11-88 (oral argument
scheduled for Feb. 28, 2012), the Court has granted certiorari to decide
whether the TVPA permits actions against organizations as well as
natural persons, and ordered the case to be heard in tandem with this
case. If the Court concludes that acts of torture and extrajudicial kill-
ing can be brought under the TVPA only against natural persons, that
would not support a categorical rejection of corporate liability under the
ATS. The TVPA was enacted to furnish a clear statutory cause of
action for torture and extrajudicial killing under color of law of a foreign
nation, in light of uncertainty concerning application of the ATS as a
result of Judge Bork’s opinion in Tel-Oren, which disagreed with the
Second Circuit’s decision in Filartiga v. Pena-Irala, 630 F.2d 876
(1980). See H.R. Rep. No. 367, 102d Cong., Ist Sess. Pt. 1, at 2-4 (1991);
S. Rep. No. 249, 102d Cong., Ist Sess. 3-5 (1991); see also Sosa, 542 U.S.
at 728, 731. The TVPA is distinct from the ATS in several respects.
Most significantly, whereas the text of the ATS is silent as to the
identity of the defendant, the TVPA confers a private right of action
against an “individual.” § 2(a), 106 Stat. 73. Moreover, whereas the
TVPA itself provides a statutory cause of action only for certain acts
under color of law of a “foreign nation,” ibid., the ATS was enacted to
confer federa)] court jurisdiction and does not specify the law-of-nations
violations that may be actionable.

28

potentially actionable under Sosa. But to the extent
international law does speak to an issue, it should inform
the court’s exercise of its residual common law discre-
tion. Here, nothing in international law counsels in fa-
vor of the Second Circuit’s categorical bar to corporate
liability.

The court of appeals relied heavily on its understand-
ing that “no corporation has ever been subject to any
form of liability under the customary international law
of human rights.” Pet. App. Al6. But, even if correct,
the court of appeals drew the wrong conclusion from
that observation.

First, each international tribunal is speciaily negoti-
ated, and limitations are placed on the jurisdiction of
such tribunals that may be unrelated to the reach of sub-
stantive international law. See, e.g., Rome Statute of
the International Criminal Court, July 17, 1998, 2187
U.N.T.S. 90, art. 10 (Rome Statute) (“Nothing in this
Part shall be interpreted as limiting or prejudicing in
any way existing or developing rules of international law
for purposes other than this Statute.”). Thus, the fact
that no international tribunal has been created for the
purpose of holding corporations civilly liable for viola-
tions of international law does not contribute to the anal-
ysis, because the same is true for natural persons.” Cf.
Pet. App. Al4l (“If the absence of widespread agree-
ment in the world as to civil liability bars imposing lia-
bility on corporations, it bars imposing liability on natu-
ral persons as well.”); 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

'7 Some international criminal tribunals authorize reparations to
victims. See, e.g., Rome Statute art. 75.

29

the [ATS] could ever be successful, even claims against
individuals.”).

Second, the reason why the jurisdiction of interna-
tional criminal tribunals has thus far been limited to
natural persons (see Pet. App. A51-A54) appears to be
because of certain features unique to criminal punish-
ment. That limitation is not indicative of a general pro-
hibition against holding corporations (as compared to
natural persons) accountable for violations of interna-
tional law. See Pet. App. A165-A166 (Leval, J., concur-
ring only in the judgment) (“[I]nternational tribunals
withhold criminal liability from juridical entities for rea-
sons that have nothing to do with whether they violated
the conduct norms of international law.”); id. at A119-
A127. For example, the Rome Statute, which estab-
lished the International Criminal Court (ICC), was
based on the principle of complementarity. Rome Stat-
ute preamble 1 10. The ICC was to assume criminal
jurisdiction only when national courts were unable (or
unwilling) to genuinely investigate or prosecute certain
international crimes. See Rome Statute art. 17. Be-
cause many foreign states do not criminally prosecute
corporations under their domestic law for any offense,
see Pet. App. A123-A124, extending the ICC’s criminal]
jurisdiction to include corporations would have rendered
complementarity unworkable. Notably, however, sev-
eral countries (including the United Kingdom and the
Netherlands) that have incorporated the Rome Statute’s
three crimes (genocide, crimes against humanity, and
war crimes) into their domestic jurisprudence them-
selves impose criminal liability on corporations and
other legal persons for such offenses. See Anita Rama-
sastry & Robert C. Thompson, Commerce, Crime and
Conflict: Legal Remedies for Private Sector Liability

30

for Grave Breaches of International Law—A Survey of
Sixteen Countries—Executive Summary 13-16, 30
(2006), http://www. fafo.no/pub/rapp/536/536.pdf.

With respect to Nuremberg in particular, while it is
true that no private organization or corporation was
criminally charged or convicted, it is equally true that
nothing in the history of the Nuremberg proceedings
suggests that juridical persons could never be held ac-
countable (through criminal prosecution or otherwise)
for violating international law. See Jonathan A. Bush,
The Prehistory of Corporations and Conspiracy in
Criminal Law: What Nuremberg Really Said, 109
Colum. L. Rev. 1094, 1239 (2009) (noting that corporate
liability was “explored, and was never rejected as legally
unsound,” and that corporations were not prosecuted at
Nuremberg “not because of any legal determination that
it was impermissible under international law”); cf.
Diarmuid Jeffreys, Hell’s Cartel 405-406 (2008) (noting
that German court in subsequent suit, apparently
brought under German law, held that “[tJhe fundamental
principles of equality, justice, and humanity must have
been known to all civilized persons, and the [I.G. Farben
chemical company in its current liquidated form] cannot
evade its responsibility any more than can an individ-
u on) =

'* The International Military Tribunal’s statement that “(c}rimes
against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced,” see Pet. App. Al2, A50
(quoting The Nuremberg Trial (U/nited States v. Goering), 6 F.R.D. 69,
110 (Int'l Military Trib. at Nuremberg 1946)), has been taken out of
context. The Tribunal clearly was rejecting the defendant’s argument
that only a state could be held liable for violations of international law;
it was not making any distinction among actors other than the state.

31

Third, international tribunals are not the sole (or
even the primary) means of enforcing international-law
norms. Until the twentieth century, domestic law and
domestic courts were the primary means of implement-
ing customary international law. And holding corpora-
tions accountable if they violate the law of nations is con-
sistent with international law. Today, a number of inter-
national agreements (including some that the United
States has ratified) require states parties to impose
liability on corporations for certain actions. See, e.g.,
Convention Against Transnational Organized Crime,
art. 10(1), Nov. 15, 2000, S. Treaty Doc. No. 16, 108th
Cong., 2d Sess. (2004), 2225 U.N.T.S. 209; Convention on
Combating Bribery of Foreign Public Officials in Inter-
national Business Transactions, art. 2, Dec. 17, 1997,
S. Treaty Doc. No. 43, 105th Cong., 2d Sess. (1998),
37 I.L.M. 1 (1998); see also, e.g., Doe, 654 F.3d at 48-49
& n.35. As the Chairman of the Rome Statute’s Drafting
Committee explained, “all positions now accept in some
form or another the principle that a legal entity, private
or public, can, through its policies or actions, transgress
a norm for which the law, whether national or interna-
tional, provides, at the very least damages * * * and
other remedies such as seizure and forfeiture of assets.”
M. Cherif Bassiouni, Crimes Against Humanity in In-
ternational Criminal Law 379 (2d rev. ed. 1999).

CONCLUSION
The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

HAROLD HONGJU KOH
Legal Advisor
Department of State

CAMERON F. KERRY

General Counsel
Department of Commerce

DECEMBER 2011

DONALD B. VERRILLI, JR.
Solicitor General

TONY WEST
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

MELISSA ARBUS SHERRY
Assistant to the Solicitor
General
DOUGLAS N. LETTER
ROBERT M. LOEB
MELISSA N. PATTERSON
Attorneys

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A014. Public record. Not legal advice.