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

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A —a Le D “

— JUN 13 2012

No. 10-1491 OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

ESTHER KIOBEL, individually and on behalf of her late

husband, DR. BARINEM KIOBEL, et al.,

Petitioners,

Vv.

ROYAL DUTCH PETROLEUM CO., et al.,

Respondents.

On Writ of Certiorari to the United

States Courts of Appeals for the Second Circuit

BRIEF ON RE-ARGUMENT OF AMICI CURIAE THE

INSTITUTE FOR HUMAN RIGHTS AND BUSINESS,

ERROL P. MENDES, DAVID PETRASEK, JOHN F.

SHERMAN, III, AND THE UNIVERSITY OF MINNESOTA

HUMAN RIGHTS LITIGATION AND INTERNATIONAL

ADVOCACY CLINIC IN SUPPORT OF NEITHER PARTY

JENNIFER GREEN

Counsel of Record

Director, Human Rights Litigation

and International Advocacy Clinic

UNIVERSITY OF MINNESOTA LAW SCHOOL

229 19'> Avenue South

Minneapolis, MN 55455

jmgreen@umn.edu

612-625-7247

Counsel for Amici Curiae

TABLE O N S

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

SUMMARY OF ARGUMENT ....0.0........c cece cceeeeeees

I. PLAC’s Analysis of the Time and Cost of

ATS Litigation Misstates the Facts and

ENTE: ESLER We LAN NT ON: er ee

A. The Majority of ATS Corporate Cases

Have at Least One U.S. Citizen

TSAR NS aoe aT TR TT eee ee RT

B. ATS Cases Account for a Small

Percentage of U.S. District Civil Court

EE ee SE AE OT SOR oS De

C. ATS Cases Do Not Last Significantly

Longer than Other Civil Cases and Do

Not Require More Resources ...................-----+-

Il. PLAC Misrepresents ATS Court Opinions

SS EERE eRe eR ee a ea

A. PLAC Misrepresents ATS Direct

TATE, eae EAE TOD

B. PLAC Misrepresents Cases Charging

Corporations With Secondary Liability for

Human Rights Violations ..................-...2..ee00e:

III. ATS Lawsuits Do Not Unfairly

Cause Reputational Damage to

a seatihcetaltiaade 33

TE iiiieininiciieninicibnniacndinneibiigiiemminnsiemnpnessusitie 40

Appendix Table of Contents

APPENDIX A

Biographical information about Amici............ App. 1

APPENDIX B

Table of ATS Cases Brought Against

U.S. and Foreign Corporate Defendants......... App. 4

ill

CASES

Abecassis v. Wyatt, 785 F. Supp. 2d 614

RR I A aR ABS Pe A a ee OE 17

Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d

ERE Rr eee ee ees RP OR eRe 19

Adhikari v. Daoud & Partners, 697 F. Supp.

re I Ss Be iitiediceniciccandiccncnscnsess 17, 21

Adhikari v. Daoud & Partners, No. 09-

og fe | RE eeneree 20

Aguilar v. Imperial Nurseries, No. 07-193

eS ES , , eee 21

Ahmed v. Dubai Islamic Bank, No. 08-21564

ES eee g

Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702

ll 22

Al-Razzagq v. Xe, No. 09-626 (S.D. Cal. filed

Ti ccicnteiieietapicnciicepiitncsncidcaebitbaipindbuniaaitian 9,14

Al Shimari v. CACI Int'l, Inc., No. 09-1335,

2012 WL 1656773(4th Cir. May 11, 2012)

as aetidnesaiaii 22

Al-Taee v. L-3 Serv., No. 08-12790 (E.D.

SE, SR CIEE SI, MII iencccescsscnenccsncecnnasnncccane 9

Aldana v. Del Monte Fresh Produce N.A.,

Inc., 578 F.3d 1283 (11th Cir. 2009) ................ 10

Almog v. Arab Bank, PLC, 471 F. Supp. 2d

es ee ee ic ST cccetciiccintsiiiisitianennincaninnsene 25

Arndt v. UBS AG, 342 F. Supp. 2d 132

RT SE ciibcietninebinninniemiisiniapnndsameinsen 15, 16

Baloco ex rel. Tapia v. Drummond Co., Inc.,

640 F.3d 1338 (11th Cir. 2011).....................000. 24

Bano v. Union Carbide Corp., 198 F. App’x

I: a canal 10

Bigio v. Coca-Cola Co., 239 F.3d 440

I a ahnngelie 10

Bowoto v. Chevron Corp., 621 F.3d 1116

II: IIT i socisaliialiitcel deaicieleassindnenddeadaainaiadenhieliniaea 10

Cooperhill Inv. Ltd. v. Rep. of Seychelles, No.

11-962 (S.D.N.Y. filed Feb. 14, 2011)................. i]

Deutsch v. Turner Corp., 317 F.3d 1005 (Sth

aris aITITTIT sisi cenltinbciteibiteeiileieasitasiniiidhtaaaiaaiatiait 14, 31

Doe I v. Wal-Mart Stores, Inc., No. 05-7307

(C.D. Cal. Tiled Dee. BB, BOOB) ....ccccecccccccessescsscese 7

Doe v. Exxon Mobil Corp.,

573 F. Supp. 2d 16 (D.D.C. 2008).................... 26

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

Tir, III isissccieisiienbeheiiicaesiaiedindadieanindeniumaneieiaiiaeamenin 7, 26

Doe v. Exxon Mobil Corp., No. 01-01357

(unpublished opinion, filed July 13, 2007) ...... 11

Doe v. Unocal Corp., 963 F. Supp. 880 (C.D.

HI TUTTI c<cssicahichatsin hin sitneipdduetdicdeieaiabaiihlaaainatibattiiahe 27

Doe v. Unocal, Nos. BC 237 980, BC 237 679

(Cad. Semper. Ce. Chet. 6, BBD .ccccrcccceccssecccsesesss 17

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

Flomo v. Firestone Natural Rubber Co., LLC,

643 F.3d 1013 (7th Cir. 201 1).........0...0.000000.- 4,17

Ge v. Shanghai Mun. Branch Comm. of

Chinese Communist Party, No. 10-7964

Gee ec EE PR, Bis SII ccconscscccnescnsenstussesese g

Giraldo v. Drummond Co., Inc., No. 09-1041

(N.D. Ale. Tied Bewt. BO, BO1L1).......ccccccoscsccccscce 30

Gonzalez-Vera v. Kissinger, 449 F.3d 1260

(D.C. Cir. 2006), cert. denied, 549 U.S.

RE SEREAD marn ie rTee OnE One De 16

Guanipa v. Chavez, No. 09-20999 (S.D. Fla.

ES 5 SR ER ee ee iS)

Hamid v. Price Waterhouse, 51 F.3d 1411

I 14

Hassoon v. Xe, No. 09-647 (S.D. Cal. filed

Bik ME iciidanhdidinienneiansdinineiinnebneiitbiaandennneinnteds +S]

Hidalgo v. Siemens AG, No. 11-20107 (S.D.

, & © | Ene ene enn 10

Holocaust Victims of Bank Theft v. Magyar

Nemzeti Bank, 807 F. Supp. 2d 689 (N.D.

EF REE Sr as ae ey ae ee een ENE 30, 31

In re Chiquita Brands Int'l, Inc. Alien Tort

Statute and S‘holder Derivative Litig.,

792 F. Supp. 2d 1301 (S.D. Fla. 2011) ............. 24

In re S. African Apartheid Litig., 617

F.Supp.2d 228 (S.D.N.Y. 2009) ................02000008 31

In re S. African Apartheid Litig., 633

F.Supp.2d 117 (S.D.N.Y. 2009) ................... 13, 14

In re Terrorist Attacks on September 11,

2001, 740 F. Supp. 2d 494 (S.D.N.Y. 2010) ..... 14

In re XE Serv. Alien Tort Litig., 665 F. Supp.

a Us TI cdeicintiniicincinniiensnnianinesanintinne 21

vil

In Re XE Serv. Alien Tort Litig., Nos.

09-615, 09-616, 09-617, 09-618, 09-645,

09-1017 and 09-1048 (E.D. Va. Jan. 6,

2010) (order of stipulated dismissal) .............. 22

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d

424 (D.N.J. 1999)..................... senadseiainniansiniinie 31

Jarallah v. Xe, No. 09-631 (S.D. Cal. filed

I 9, 14, 22

Kaplan v. Al Jazeera, No. 10-5298 (S.D.N.Y.

RES ee i)

Khulumani v. Barclay Natl Bank Ltd., 509

i bs EE nese meee 14

Kruman v. Christie’s Intl PLC, 129 F. Supp.

Ek Se ee 17

Licea v. Curacao Drydock Co, Inc.,

537 F.Supp.2d 1270 (S.D. Fla. 2008) ................. 5

Linde v. Arab Bank, PLC, 269 F.R.D. 186

I 11, 25, 26

Magnifico v. Villanueva, 783 F. Supp. 2d

I sa daccintiteaaieenmanemniion 21

Mamani v. Berzain, 654 F.3d 1148 (11th Cir.

Margallo-Gans v. Farrell, No. 09-4026

OR 9, 21

vill

Maugein v. Newmont Mining Corp., 298 F.

Supp. 2d 1124 (D. Colo. 2004) ................ ee. 16

Mendonca v. Tidewater, Inc., 159 F. Supp. 2d

SED GERD. Eh. GED ccencsccnceccssentstonesmenminniaia 16, 17

Mujica v. Occidental Petroleum Corp., 381 F.

Supp. 2d 1164 (C.D. Cal. 2005).......00000..... 29

Nat'l Coal. Gov't of Union of Burma v.

Unocal, Inc., 176 F.R.D. 329 (C.D. Cal.

Okpabi v. Royal Dutch Shell, No. 11-14572

(E.D. Mich. filed Oct. 18, 2011)......................2... 9

Orkin v. Swiss Confederation, Nc. 11-1414,

2011 WL 4822343 (2d Cir. Oct. 12, 2011)........ 15

Ponce-Rubio v. North Brevard, Irc., No. 03-

738 (M.D. Fla. filed Oct. 3, 2003) ..................... 21

Prince Hotel, SA v. Blake Marine Grp., 433

A L&D Re } | 15

Roe v. Unocal Corp., 70 F. Supp. 2d 1073

GOT. GA, Bi iacnevessincovsnissniniesniensiaisnainedansandana 27

Sa’adoon v. Xe, No. 09-561 (S.D. Cal. filed

BE. BE, Te coccnsccnsseitocitimbiaamaiiaaaaaiae 9,14

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir.

Sarei v. Rio Tinto, PLC, 487 F. 3d 1193 (9th

EE 17, 28, 29

Shiguango v. Occidental Petroleum Corp.,

No.06-4982 (C.D. Cal. filed Aug. 25,

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252

EE 10

Siswinarti v. Jennifer Shien Ng, No. 05-4171

(D.N.J. filed Aug. 16, 2005) ....................cceeeeeees 21

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

SEES EE 18

Thang Hong Luu v. Intl Inv. Trade & Serv.

Grp., No. 11-182 (S.D. Tex. filed Apr. 13,

Turedi v. Coca-Cola Co., 460 F.Supp.2d 507

ia ceietiononasconns 5

Viet. Ass'n for Victims of Agent Orange v.

Dow Chem. Co., 517 F.3d 104 (2d Cir.

Wang Xiaoning v. Yahoo! Inc., No. 07-02151 (N.D.

Cal. filed Apr. 18, 2007) (unpublished

joint stipulation of dismissal, filed

A 9

Wiwa vu. Royal Dutch Petroleum Co., 226

FP. 3d SB (Bd Cir. S000) ......cccccoccosesccees 5, 10, 27, 28

Wiwa v. Royal Dutch Petroleum Co., No. 96-

8386, 2002 WL 319887

eG ee GIA SUEY SEI ciscodciniinsociciciaenneendinianmioatintinn 20

Wiwa v. Shell Petroleum Dev. Co. of Nigeria

Ltd., 335 F. App’x 81 (2d Cir. 2009)................. 10

STATUTES & RULES

fF MD |g See passim

I GGG TD BCID wvncccntccccesesiecssenencscnpunsecnnns 1

OTHER AUTHORITIES

George J. Annas, Globalized Clinical Trials

and Informed Consent, 360 NEW ENG. J.

MED. 2050 (2009), available at

http://www.nejm.org/doi/full/10.1056/NEJ

I Oiikcdncndionneceninineinniannciisiianiiaaiinnuieis 19

Neela Banerjee, Lawsuit Says Exxon Aided

Rights Abuses, N.Y. TIMES, June 21, 2001 ...... 35

Bano v. Union Carbide Case History,

EARTHRIGHTS INT'L, http://www.earthrig

hts.org/legal/bano-v-union-carbide-case-

history (last visited May 15, 2012)................... 10

Bataween, Coca-Cola is Guilty of Jewish

Persecution Denial’, POINT OF NO RETURN

(Nov. 22, 2009), http://Ajewish refugees.

blogspot.com/2009/1 1/coca-cola-is-guilty-

IE sccrisneuesmasiedscminnntnedcuaienebeanebiadiliiaiinn 36

Michael Blanding, Coke is Death: The

Softdrink Giant’s Abysmal Human Rights

Record is Finally Catching Up With It,

NATION, April 19, 2006, available at

http://www.alternet.org/story/34976/coke_

ni incscccaisitinierd dnniitindeiiinmnainenndanesiiiioks 35

Brief For Joseph F. Stightz As Amicus

Curiae in Support of Plaintiffs-Appellees,

Balintulo v. Daimler (In re South African

Apartheid Litigation), No. 09-2778 (2d

Cir. Nov. 30, 2009), 2009 WL 5177981 ............ 32

Brief For Petitioner, Kiobel v. Royal Dutch

Petroleum Co. (filed Dec. 14, 2011) (No.

TUTTI i ccicsccesunciancnsenntiicesasalenaunsiantaiansetshditeaiuillaiatinialh ai iabieibieains 36

Brief For Product Liability Advisory Counsel,

Inc., As Amicus Curiae In Support of

Respondents, Kiobel v. Royal Dutch

Petroleum Co. (filed Feb. 3, 2012) (No. 10-

Brief For The United States As Amicus

Curiae In Support of Petitioners, Kiobel

v. Royal Dutch Petroleum Co. (filed Dec.

i, I, I neal 18

Business This Week, THE ECONOMIST, May

BG, Ge crcrnececcnsccesessouscasvuccnescossnsevessecsusenspenaness

Danielle Cendrowski, Jnternational Health

Law Violations under the Alien Tort

Statute: Federal Appeals Court Reinstated

Lawsuit under the Alien Tort Statute

against United States Pharmaceutical

Company Pfizer Brought by Nigerian

Children and their Guardians-Abdullahi

v. Pfizer, Inc., 35 AM. J. L. & MED. 233

Se iiecincitdinngcatnnstiiiselldtiliniiecemiinniimanniiailininanedeninimunne

Maureen Chigbo, How Shell Promotes

Criminal Gangs in Niger Delta,

NEWSWATCH (Oct. 27, 2011),

http://www.newswatchngr.com/index.php

?option=com_content&task=view &id=362

EE RE AER EM aD Rs AEN NOR RTO

Colombians Sue Chiquita Over Paramilitary

Payments, CNN, June 1, 2011, available

at http://www.cnn.com/2011/WORLD/am

ericas/05/31/colombia.chiquita.lawsuits/in

ETRE SCART SI ON OTE ROOF Ey DO EC

Complaint, Bano v. Union Carbide Corp.,

2000 WL 1225789 (S.D.N.Y. 1999) (No.

ae UU incisctistcenictieieinieebiaianiaticeiiiiiaiini

Doe v. Unocal Case History, EARTHRIGHTS

INT'L, http://www.earthrights.org/legal/do

e-v-unoca lcase-history (last visited June

Bh SEE cecosnevesroscncnvssscusssssbentsnenensensentdineindscovenes

JONATHAN DRIMMER, U.S. CHAMBER INST.

For LEGAL REFORM, THINK GLOBALLY SUE

LOCALLY: OUT-OF-COURT TACTICS

EMPLOYED BY PLAINTIFFS, THEIR

LAWYERS, AND THEIR ADVOCATES _IN

TRANSNATIONAL TORT CASES (2010)...............

Federal Court Management Statistics, U.S.

Courts (June 30, 2011), http://www.usco

urts.gov/viewer.aspx?doc=/cgibin/emsd201

ITED <scctescvcchrsiesinincheuitetneciitinbendhainiahchagviibieneiinbeniiapeabaeitilemaiins

Final Settlement Reached in Doe v. Unocal,

EARTHRIGHTS INT'L (Mar. 21,

2005, http://www.earthrights.org/legal/fin

al-settlement-reached-doe-v-unocal...............

Natalie Fine, The Evil Behind Coca-Cola,

THE WESLEYAN ARGUS (Nov. 9, 2010),

http://wesleyanargus.com/2010/11/09/thee

FULBRIGHT & JAWORSKI, SECOND ANNUAL

LITIGATION TRENDS SURVEY 16 (2005)............

Lisa Girion, Judge Oks Unocal Abuse

Lawsuit, L A. TIMES (June 12, 2002),

http://articles.latimes.com/2002/jun/12/bu

RET eae Oe

Shabtai Gold, US Carmaker GM to

Compensate Apartheid Victims, BUS.

RECORDER, Mar. 3, 2012, available at http

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87:articles/1161195:us-carmaker-gm-to-

compensate-apartheid victims/?date=2012

Thomas Gryza, Pfizer Profit Declines 70%

On Merger, Litigation Costs, WALL ST. J.,

Nov. 3, 2010, available at online.ws)j.

com/article/SB10001424052748704462704

575589960777586130. html) ..........................0..

Karen Gullo, Rio Tinto Genocide Claims

Reinstated by U.S. Appeals Court,

BLOOMBERG, available at http:// mobile.

bloomberg.com/news/2011-10-

25/rio-tinto-genocide-claims-reinstated-

byu-s-appeals-court-1 ................cccccececesceescceceees

Richard L. Herz, The Liberalizing Effects of

Tort: How Corporate Complicity Liability

Under the Alien Tort Statute Advances

Constructive Engagement, 21 HARV. HUM.

NN Se UIE ccinssnnacnecsueodnbicendnninuensenienniaieiids

Indonesia — Exxon Oil Faces Murder

Charges, FACT OVER FICTION (July 9,

2011), http://www.factoverfiction.com/artic

LITE LTRS ARN TR IR RIN SLND SOT

Judicial Business of the U.S. Courts, U.S.

Courts, http://www.uscourts.gov/Statistics

/JudicialBusiness.aspX ............0.:.cceeeeeeeeeeeeeeees

Judicial Business of the U.S. Courts, Table

C-2, U.S. Courts (Sept. 30, 2010),

http://www.uscourts.gov/uscourts/Statisti

cs/Judicial Business/2010/appendices/C0O2

Judicial Business of the U.S. Courts, Table

S-10, U.S. Courts (Sept. 30, 2010),

http://www.uscourts.gov/uscourts/Statisti

cs/JudicialBusiness/2010/tables/S10Sep10

Judicial Business of the U.S. Courts, Table

S-11, U.S. Courts (Sept. 30, 2010),

http://www.uscourts.gov/uscourts/Statisti

cs/JudicialBusiness/2010/tables/S11Sep10

FREESE ERA a PSN AEN eee Le OSE Acs SNES On

Gabriel Katsh, Fueling Genocide: Talisman

Energy and the Sudanese Slaughter,

MULTINATIONAL MONITOR = § (Oct.

2000), http://www.multinationalmonitor.or

g/mm2000/102000/katsh.html........................

Carol Krafka et al., Judge and Attorney

Experiences, Practices, and Concerns

Regarding Expert Testimony in Federal

Civil Trials, 8 PSYCHOL. PUB. POL’y & L.

SPIT icuiniiissclacdeliniddaviniensdnibamsidapiiemadialadelniiinnbiniesal

Kevin M. LaCroix, Why Mergers &

Acquisitions-Related Litigation is a

Serious Problem, 7 OAKBRIDGE INSIGHTS 2

SRE A Ce AEA ee ee a a SR OE

Erik Larson & Joshua Goodman, Murders

May Lead to Damages Tailspin for

Chiquita (Update 2), BLOOMBERG, Apr. 2,

2008, http://www.bloomberg.com/apps/

news’ pid=20601109&sid=aqsoW_J3nbO

SETA. EATEN TS EO

LAWYERS FOR CIVIL JUSTICE ET AL.,

LITIGATION COST SURVEY OF MAJOR

REE EARS PE see eae a 11

Berly Lelievre-Acosta, A Cost-Effective

Alternative World Intellectual Property,

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Feb. 2010, available at http://www.wipo.

int/wipo_magazine/en/2010/01/article_000

8. html

nee eee ee eee eee eee

Donald G. McNeil Jr., Nigerians Receive

First Payments for Children Who Died in

1996 Meningitis Drug Trial, N.Y. TIMEs,

Aug. 11, 2011, available at http://www.

nytimes.com/2011/08/12/world/africa/12ni

asa islsel aie baleaaa etnies id denabeiientaniine

Nicole Perlroth, Pfizer Finalizing Settlement

in Nigerian Drug Suit, FORBES, Apr. 3,

2009, available at http://www.forbes.com

/2009/04/03/pfizer-kano-trovan-business-

healthcare-settlement.html.........................0005-

Mike Pflanz, Shell ‘Played Role in Activist

Executions’, TELEGRAPH, May 25, 2009,

http://www.telegraph.co.uk/finance/newsb

ysector/energy/5383923/Shell-played-role-

inactivist-executions. html .....................2......00 es

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ee Ss, Se icicticccnddininnmntneiicenitnincnnenta 7,8

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ey gs I a scents ecnteniiemepeniabiitanainiena

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reer

xvl1ll

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m/user/journal/108568/coca-colas-use-

EDT ‘deccsnnvscniniinnieticeninisennncineneins 36

Special Representative of the Secretary-

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Further Steps toward the

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and Remedy” Framework, U:N. Doc.

ASTERC/14/27 (Ape. 9, 2O10).......cccccsceccccccssececeess 38

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Remedy” Framework, U.N. Doc.

Pte GE RE) | ee 39

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General, Interim Report of the Special

Representative of the Secretary-General on

the Issue of Human Rights and

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cs/StatisticalTablesForTheFederalJudicia

ne Se INE seiiscnesciisiencetinconseninnaicinesense 8

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Table C-5, U.S. Courts (June 30, 2011),

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cs/StatisticalTablesForTheFederalJudicia

ee NE IIE sccinsccenicnnsccsntinscsininessncsesecine 8

Jonathan Stempel, Indonesia Torture Case

vs ExxonMobil Revived, REUTERS, July 8,

2011, http://www.reuters.com/article/2011

/07/08/us-exxonmobil-indonesiaidUSTR

aia aldladiemieneidel 34

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Compensation Payments in Medical

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Se I TI ssc csnceiseccieehibcsineragichdaeleibibadinlt 9,16

U.S. SENTENCING GUIDELINES MANUAL

SI ti CITI TI ooh ssinideiaeibeehdenaenenineinealioniendbbieeenadiiaigide 39

Weil, Gotshal & Manges LLP, Memorandum:

Corporation Social Responsibility for

Human Rights: Comments on the UN

Special Representative’s Report Entitled,

“Protect, Respect and Remedy: a

Framework for Business and Human

a Pe Be Bb cnetinninnebinosencsansinneninsiininn 33

Kyle Whitmire, Colombian Killings Land

U.S. Company in American Court, WALL

ee tag Ns ME ctiariichincininsshiniemtniidiiesninigsinnniaden 35

INTEREST OF AMICI CURIAE!

Amici are organizations, experts and

scholars who have an interest in the accurate

analysis of human rights litigation in U.S. courts,

as well as the relationship of Alien Tort litigation to

corporate social responsibility and the deterrence of

human rights violations. Complete descriptions of

Amici are provided in Appendix A. Amici submit

this brief in support of neither party.

SUMMARY OF ARGUMENT

The Alien Tort Statute (ATS), 28 U.S.C.

§1350 was enacted by Congress to provide a federal

forum for tort claims by aliens for violations of the

law of nations or treaties of the United States.

Despite this congressional mandate, respondents’

amicus Products Liability Advisory Council, Inc.

(PLAC) wrongly argues that suits by aliens against

corporations place an unsustainable burden on

corporations and the federal courts. Amici write to

correct PLAC’s misstatements and _ distortions

about ATS litigation.

The majority of ATS corporate cases are

brought against companies headquartered or doing

significant business in the United States and where

1 Pursuant to Rule 37.6, counsel for amici states that no

counsel for a party authored this brief in whole or in part, and

that no person other than amicus, its members, or its counsel

made a monetary contribution to the preparation or

submission of this brief. The parties have filed letters of

consent with the Clerk of the Court.

the complaints allege evidence of corporate

complicity in the human rights violations alleged

against the defendants. PLAC’s own appendix

concedes that 80% of claims “brought substantive

claims alleging a well-established violation of

international law, such as genocide, war crimes,

torture, extrajudicial killing, crimes against

humanity, and others.” Brief For Product Liability

Advisory Counsel (sic), Inc., As Amicus Curiae In

Support of Respondents, Kiobel v. Royal Dutch

Petroleum Co. (filed Feb. 3, 2012) (No. 10-1491),

Appendix (App.) 5. In making their argument

about the supposed burden imposed by ATS cases

on the courts, PLAC cites to figures which are

inaccurate and out of context. ATS claims against

corporations represent a minute fraction of civil

litigation filed against corporations in U.S. federal

courts each year. PLAC’s rhetoric is contradicted by

its own numbers which show that only 245 ATS

cases (with 120 containing a corporate defendant)

have been filed since 1974. See PLAC Br. 5, App. B.

PLAC’s’ assertions about the lack of

connection between the conduct of ATS defendants

and the injuries suffered by plaintiffs are belied by

actual court decisions. Amici do not argue that all

cases asserting ATS claims have merit. Rather, like

other civil litigation, some cases were dismissed for

failure to state a claim under the ATS, for want of

personal jurisdiction, or on forum non conveniens

grounds. Federal courts deal with ATS claims with

the same efficiency that they employ for any other

form of civil adjudication.

PLAC’s claims of reputational damage

caused by ATS cases to corporations are

exaggerated and unreliable. For example, PLAC

suggests that Chiquita was injured by unfair

claims concerning its conduct in Colombia and

ignores that the corporation was criminally

prosecuted, pled guilty, and paid a multi-million

dollar fine for its material support to terrorists.

PLAC errs in its assertions about the adverse effect

of ATS litigation on poor countries in need of

foreign investment; these assertions also are

contradicted by statistical evidence. Further, as

experts acknowledge, the mere possibility of

liability under the ATS has contributed to greater

self-regulation by multinational corporations.

ATS cases intend to compensate victims of

human rights abuses, deter human rights

violations, punish bad behavior, and level the

playing field by removing a competitive advantage

to companies engaged in human rights violations.

Judge Richard Posner recently noted,

One of the amicus curiae briefs

argues, seemingly not tongue in cheek,

that corporations shouldn't be lable

under the Alien Tort Statute because

that would be bad for business. That

may seem both irrelevant and obvious;

it is irrelevant, but not obvious.

Businesses in countries that have and

enforce laws against child labor are

hurt by competition from businesses

that employ child labor in countri« ; in

which employing children is condoned.

Flomo v. Firestone, 643 F.3d 1013, 1021 (7th Cir.

2011).

The cases brought under the ATS involve

the most egregious of human nights abuses, and are

thus rare. With growing corporate efforts to

strengthen their human rights internal compliance

mechanisms, such cases will become even fewer

and far between. The statute offers a narrow

remedy, many hurdles for plaintiffs, and a

comparatively minimal burden on the courts.

-PLAC has not provided a reasonable basis for

removing this potential remedy for corporate

involvement in grievous human rights violations.

ARGUMENT

I. PLAC’S ANALYSIS OF THE TIME AND

COST OF ATS LITIGATION MISSTATES

THE FACTS AND CONTEXT

The case law PLAC cites does not support its

contention that litigating ATS claims is overly

time-consuming and burdensome for corporations

unconnected to the United States. In most

corporate ATS cases, at least one defendant is

headquartered in this country. In the remainder, a

substantial number of corporate defendants have

sufficient U.S. presence to meet due process

requirements. Thus the United States has a clear

interest in their conduct. ATS cases represent a

fraction of U.S. civil litigation and are no more

burdensome than other types of civil action and are

as efficiently adjudicated by U.S. federal! courts.

A. The Majority of ATS Corporate Cases

Have at Least One U.S. Citizen

Defendant.

Throughout its brief, PLAC suggests that

ATS cases have little or no connection to U.S.

corporations. However, examining the _ cases

presented in PLAC’s appendix reveals that over

75% involve at least one corporation headquartered

in the United States.2. Of the remaining 25%, in a

number of the cases, the courts rejected defendants’

motions to dismiss because the lack of U.S.

corporate headquarters was offset by other factors.

See, e.g., Licea v. Curacao Drydock Co, Inc. 537

F.Supp.2d 1270 (S.D. Fla. 2008) (Cuban plaintiffs’

case not transferred to Curacao because plaintiffs

would face physical danger); see also Wiwa v. Royal

Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000)

(finding personal jurisdiction and denying motion

to dismiss on forum non conveniens grounds). In a

handful of cases the courts found insufficient

connections to the United States to proceed, and

dismissed them at the early stages of the case. See,

e.g., Turedi v. Coca-Cola Co., 460 F.Supp.2d 507

(S.D.N.Y. 2006).

2 A chart indicating the locations of corporate headquarters

and cases with connections to the United States is provided in

Appendix B.

B. ATS Cases Account for a Small

Percentage of U.S. District Civil

Court Cases.

Despite PLAC’s arguments that ATS cases

against corporations pose a supposed burden on

courts, the facts PLAC presents prove otherwise.

In terms of an estimated total of cases, PLAC

reperts that only 245 ATS cases have been filed

since 1974. PLAC Br. 5. According to one source

upon which PLAC relies, since 1994, only six to ten

new corporate ATS claims have been filed annually.

JONATHAN DRIMMER, U.S. CHAMBER INST. FOR

LEGAL REFORM, THINK GLOBALLY, SUE LOCALLY:

OUT-OF-COURT TACTICS EMPLOYED BY PLAINTIFFS,

THEIR LAWYERS, AND ‘THEIR ADVOCATES _ IN

TRANSNATIONAL TORT CASES 5 (2010).

ATS numbers need to be considered in the

context of civil litigation generally. Since 2000,

approximately 267,000 civil claims have been filed

each year. Thus, corporate ATS claims constitute

roughly between .0023%—.0038% of all civil claims

filed annually in federal courts. According to PLAC

statistics, approximately fourteen corporate-

defendant ATS cases were filed each year from

2008 to 2011.4 While PLAC’s number is higher

3See Judicial Business of the U.S. Courts, U.S. Courts (Sept.

30, 2010), http://www.uscourts.gov/Statistics/JudicialFactsAn

dF igures.aspx.

* PLAC statistics are not reliable because as PLAC admits, its

analysis omits some cases, PLAC app. 13, and this brief notes

additional cases that PLAC failed to discuss.

than the six to ten case estimate provided by

Drimmer, ATS still only comprises a_ small

percentage—.0052%—-of civil cases filed every year.

By way of comparison, in 2010,

approximately 64,000 product liability cases were

filed in U.S. district courts. Judicial Business of the

U.S. Courts, Table S-10, U.S. Courts (Sept. 30,

2010). Product liability cases accounted for just

over 22% of the 282,895 civil cases filed in federal

courts in 2010. Id., Table C-2, U.S. Courts (Sept.

30, 2010).

ATS cases are also a small fraction of cases

filed against any particular company. Public

records indicate that Wal-Mart and its stores have

been named as defendants in over 15,000 civil cases ~

since 2002,5 yet Wal-Mart was named as a

defendant in just one ATS case. Doe I v. Wal-Mart

Stores Inc., No. 05-07307, 2005 WL 4049637 (C.D.

Cal. filed Dec. 23, 2005). Similarly, the same

records suggest that Exxon Mobil has been named

as a defendant in over 6,000 suits in the past ten

years,® but only one ATS suit. Doe v. Exxon Mobil

Corp., 654 F.3d 11 (D.C. Cir. 2011).

5 PUBLIC ACCESS TO COURT ELECTRONIC RECORDS,

http://www.pacer.gov/ (last visited May 27, 2012).

6 Id.

C. ATS Cases Do Not Last Significantly

Longer than Other Civil Cases and

Do Not Require More Resources.

In an attempt to show how

disproportionately lengthy ATS cases are, PLAC

offers misleading comparisons between the average

duration of ATS cases and the median duration of

all civil actions filed in federal courts. PLAC Br. 6

(citing Statistical Tables for the Federal Judiciary,

Table C-5, U.S. Courts (June 30, 2011)). First,

PLAC only provides the median length of time from

filing to disposition for civil litigation. See Federal

Court Management Statistics, U.S. Courts (June 30,

2011). Second, the Statistical Tables released for

the Federal Judiciary include a wide variety of civil

claims such as contract actions, real property cases,

various tort actions, and actions under statutes

(e.g., consumer credit cases, cable/satellite TV

actions, bankruptcy suits, antitrust suits, civil

rights cases, Fair Labor Standards Act cases, labor

litigation, copyright cases, patent cases, trademark

cases, and constitutionality cases). See Statistical

Tables for the Federal Judiciary, Table C-4, U.S.

Courts (June 30, 2011). Comparison with specific

types of civil litigation indicate that ATS litigation

is not unusually long.

Many civil cases last significantly longer

than the 7.3 month average PLAC cites. PLAC Br.

7 Categories of civil cases included in Table C-4, but excluded

in Table C-5 are prisoner petitions, deportation reviews,

recovery of overpayments, and enforcement of judgments.

6. In 2010, available statistics establish that there

were 44,982 civil cases open that had been pending

for three years or longer; in 2009, this number was

35,720. See Judicial Business of the U.S. Courts,

Table S-11, U.S. Courts (Sept. 30, 2010). In 2010,

32,305 of the 44,982 cases lasting over three years

were tort cases. Id. In 2009, 23,570 of the 35,720

were tort civil claims. Jd. A 2006 study found that

medical malpractice cases on average last five

years from the occurrence of the injury to the

closure of the claim. David M. Studdert et al.,

Claims, Errors, and Compensation Payments in

Medical Malpractice Litigation, 354 NEW ENG. J.

MED. 2024, 2026 (2006).

PLAC does not include in its calculation

cases resolved without a_ reported decision,

including fourteen cases resolved in less than one

year, and some as little as two months. See App.

B.8 PLAC lists ten cases to demonstrate how

’ See Wang Xiaoning v. Yahoo! Inc., No. 07-02151 (N.D. Cal.

filed Apr. 18, 2007); Ge v. Shanghai Mun. Branch Comm. of

Chinese Communist Party, No. 10-7964 (S.D.N.Y. filed Oct.

10, 2010); Hassoon v. Xe, No. 09-647 (S.D. Cal. filed Apr. 1,

2009); Jarallah v. Xe, No. 09-631 (S.D. Cal. filed Mar. 27,

2009); Al-Razzag v. Xe, No. 09-626 (S.D. Cal. filed Mar. 26,

2009); Saadoon v. Xe, No. 09-561 (S.D. Cal. filed Mar. 19,

2009); Al-Taee v. L-3 Services, No. 08-12790 (E.D. Mich. filed

June 30, 2008); Margallo-Gans v. Farrell, No. 09-4026 (D.S.D.

filed March 6, 2009); Guanipa v. Chavez, No. 09-20999 (S.D.

Fla. filed Apr. 15, 2009); Ahmed v. Dubai Islamic Bank, No.

08-21564 (S.D. Fla. filed June 2, 2008); Cooperhill Inv. Ltd. v.

Rep. of Seychelles, No. 11-962 (S.D.N.Y. filed Feb. 14, 2011);

Kaplan v. Al Jazeera, No. 10-5298 (S.D.N.Y. filed July 12,

2011); Okpabi v. Royal Dutch Shell, No. 11-14572 (E.D. Mich.

lengthy ATS claims can be, stating that while “the

present case has been in htigation for over nine

years...others have gone on even longer.” PLAC

Br. 6. Again PLAC’s argument is riddled with

errors, as revealed by analysis of the cases it

presents. PLAC mischaracterizes the history of

Bano v. Union Carbide Corp., 198 F.App’x 32 (2d

Cir. 2006), reporting that the case lasted 28 years

(PLAC App. 12) in an attempt to show that ATS

claims are excessively long, although the ATS case

lasted 7 years. See PLAC Br. 7, App. 12. Four of

the cases PLAC lists lasted eight years or less. See

Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir.

2010); Aldana v. Del Monte Fresh Produce N.A.,

Inc., 578 F.3d 1283 (11th Cir. 2009); Sinaltrainal v.

Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009);

Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000);

See also PLAC Br. 7, App. 9-14: Wiwa, 226 F.3d

88 and Wiwa v. Shell Petroleum Dev. Co. of Nigeria,

Ltd., 335 Fed.App’x. 81 (2d Cir. 2009) (in PLAC’s

Appendix B, the years of litigation appears to be

filed Oct. 18, 2011); Hidalgo v. Siemens AG, No. 11-20107

(S.D. Fla. filed Jan. 11, 2011).

* While state law claims relating to the 1984 Union Carbide

gas plant disaster at Bhopal, India were filed in the U.S. as

early as 1985, they were dismissed in favor of litigating in

India. See Bano v. Union Carbide Case History, EARTHRIGHTS

INTL, http://www.earthrights.org/legal/bano-v-union-carbide-

case-history. When Bhopal victims did not get relief in India,

the claims in ATS Bano claims were filed in 1999. Complaint,

Bano v. Union Carbide Corp., 2000 WL 1225789 (S.D.N.Y.

1999) (No. 99-11329). That litigation concluded in 2006. Bano

v. Union Carbide Corp., 198 Fed. App’x. 32 (2d Cir. NLY.

2006).

calculated by treating the latter as if it began when

the first case was filed).

A significant factor in the length of cases is

what PLAC characterizes as “vigorous|]" defenses,

PLAC Br. 21, but PLAC disregards the role of

corporate defendants in unnecessarily extending

the litigation period. Indeed, some of these vigorous

defenses resulted in court sanctions imposed upon

the defendants. See, e.g., Linde v. Arab Bank, 269

F.R.D. 186, 191 (E.D.N.Y. 2010) (defendants

sanctioned for delays in discovery); Doe v. Exxon

Mobil Corp., No. 01-01357 (D.D.C. 2007)

(unpublished opinion, filed July 13, 2007)

(defendants’ motion practice led court to require

that all parties certify compliance with F.R.C.P.

Rule 11 before filing motions). Even assuming the

accuracy of PLAC’s calculation that ATS cases last

an average of five years, the time is _ not

inconsistent with tens of thousands of other cases

in our federal system.

PLAC also exaggerates figures about the

costs of litigation in general and offers no

explanation as to how its exaggerated numbers

apply to ATS cases. PLAC argues that, on average,

Fortune 200 companies will pay $2,019,248 per

case (excluding discovery) in “average outside legal

costs” and will pay $2,354,868 to $9,759,9000 on

discovery. PLAC Br. 9 (citing LAWYERS FOR CIVIL

JUSTICE ET AL., LITIGATION COST SURVEY OF MAJOR

COMPANIES 3, app. 1 at 14 (2010)). In fact, the

discovery figures that PLAC cites are for companies

“at the high end,” whereas the average Fortune 200

respondent to the LAWYERS FOR CIVIL JUSTICE ET

AL. survey reperted average discovery costs at

$621,880 to $2,993,567. LAWYERS FOR CIVIL

JUSTICE ET AL., 3, app. 1 at 14. In addition, the

report cited by PLAC includes some methodological

gaps, namely a small sample size for this data,

because “only some of the survey respondents were

able to provide data on a per case basis.” Id. The

report only notes that these costs occurred in

“major” cases and provides no discussion about

what specific claims were addressed in those cases;

PLAC provides no analysis of whether these costs

are actually representative of the costs of ATS

litigation. PLAC Br. 9 (citing LAWYERS FOR CIVIL

JUSTICE ET AL. at 3).

On average, corporations report that the

most expensive categories of litigation are

intellectual property, regulatory matters, contracts

claims, personal injury and unemployment actions.

FULBRIGHT & JAWORSKI, SECOND ANNUAL

LITIGATION TRENDS SURVEY 16 (2005). Alien Tort

claims did not make the list.

Though it is difficult to draw conclusions

about average litigation costs, and many variables

are at stake, PLAC exaggerates the potential costs

of Alen Tort cases when compared to other areas of

civil litigation. For example, patent litigation can

typically cost up to $4,000,000. Berly Lelievre-

Acosta, A _ Cost-Effective Alternative World

Intellectual Property, WORLD INTELLECTUAL PROP.

ORG. MAG., Feb. 2010. From 2009 to 2011, the

median class action settlement for securities

litigation cost $9,670,000, which does not even

factor in associated costs. Kevin M. LaCroix, Why

Mergers & Acquisitions-Related Litigation is a

Serious Problem, 7 OAKBRIDGE INSIGHTS 2 (2012).

Certain large-scale torts can cost hundreds of

millions of dollars to litigate. Thomas Gryza, Pfizer

Profit Declines 70% On Merger, Litigation Costs,

WALL ST. J. (Nov. 3, 2010) (reporting that Pfizer

spent $701 million before tax on _ asbestos

litigation).

Another factor PLAC addresses is the

number of defendants and counsel involved in

corporate ATS cases. PLAC claims that ATS suits

“name numerous corporate defendants and involve

a significant number of counsel,” PLAC Br. 7, but

illustrates this point by using three atypical suits

as examples: Saleh v. Titan Corp., 589 F.3d. 1 (D.C.

Cir. 2009) (involving five corporate defendants and

ten law firms); Viet. Ass’n for Victims of Agent

Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir.

2008) involving thirty-six corporate defendants and

twenty law firms); and In re S. African Apartheid

Litig., 633 F.Supp.2d 117 (S.D.N.Y. 2009)

(involving forty-three corporate defendants and

twenty-seven law firms). PLAC’s own data,

though, highlights that this is a_ gross

overrepresentation of the actual complexity of ATS

claims.!° Nine cases have more than twenty

10 The average number of corporate defendants per ATS case

listed by PLAC is only 6.77. This average was computed

using the number of corporate defendants provided by PLAC

for each case listed in Appendix B.

corporate defendants.!! If these nine anomalies are

removed, the remaining 109 cases (92% of the

cases) on average only have three corporate

defendants. !2

PLAC’s data also reflects that, on average,

only seven law firms were involved in each ATS

case (four plaintiffs and three defendants).!*

Further, when calculating the number of law firms,

PLAC considered “non-profit organizations, non-

governmental organizations, law school clinics, and

other legal service providers.” PLAC App. 6.

Including these organizations undermines PLAC’s

arguments regarding cost since often non-profit

organizations, non-governmental organizations,

11 PLAC Appendix B (citing Viet. Ass'n for Victims of Agent

Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008);

Khulumani v. Barclay Nat? Bank Ltd., 509 F.3d 148 (2d Cir.

2007); Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir. 2003);

Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995); Jn

re Terrorist Attacks on September 11, 2001, 740 F.Supp.2d

494 (S.D.N.Y. 2010); Jn re S. African Apartheid Litig., 633

F.Supp.2d 117 (S.D.N.Y. 2009); Jarallah v. Xe, No. 09-631,

2009 WL 1350958 (S.D. Cal. filed Mar. 27, 2009); Al-Razzag v.

Xe, No. 09-626, 2009 WL 1350956 (S.D. Cal. filed Mar. 26,

2009); Sa‘adoon v. Xe, No. 09-561, 2009 WL 761253 (S.D. Cal.

filed Mar. 19, 2009).

12 The exact average is 3.33.

13 The exact average number is 7.06 law firms. The average

numbers for law firms representing plaintiffs (4.07) and

defendants (3.36) were only computed for the shaded cases as

PLAC does not provide a breakdown of plaintiff and

defendant law firms for non-shaded cases. PLAC App. B.

and law school clinics work on cases without

charging a fee. Thus, the overall number of fee

charging “law firms” is far lower than the number

reported above.

The number of experts in ATS litigation is

another issue PLAC highlights, but again, PLAC

uses only selective examples, analyzing cases

where four to six experts provided reports for

defendants. See PLAC Br. 8. But these numbers

are consistent with the average number of experts

used in civil litigation. A 2002 report found that in

tort cases, an average of 3.11 experts testify at trial

for plaintiffs and 2.28 testify for defendants. Carol

Krafka et al., Judge and Attorney Experiences,

Practices, and Concerns Regarding’ Expert

Testimony in Federal Civil Trials, 8 PSYCHOL. PUB.

PoL’y & L. 309, 319 (2002).

Without explaining its standard, PLAC lists

ATS cases that it deems “lengthy” and “almost

patently defective,” PLAC Br. 10-11. Despite the

availability of Rule 11 sanctions, no cases PLAC

deems “patently defective” were the subject of

sanctions. PLAC’s analysis also contains internal

contradictions. Certain cases are counted both for

the proposition that they allege substantive, well-

established ATS violations, PLAC App. 5, and for

the proposition that they contain “patently

defective” ATS claims. PLAC Br. 10, 11 (citing

Orkin v. Swiss Confederation, No. 11-1414, 2011

WL 4822343 (2d Cir. Oct. 12, 2011); Prince Hotel,

SA v. Blake Marine Grp., 433 F.App’x 706 (11th

Cir. 2011); Arndt v. UBS AG, 342 F.Supp.2d 132

(E.D.N.Y. 2004); and Maugein v. Newmont Mining

Corp., 298 F.Supp.2d 1124 (D. Colo. 2004)).'4

PLAC mischaracterizes the length of selected cases

by omitting or miscalculating their duration. See

Arndt, 342 F.Supp.2d 132 (seven months);

Mendonca v. Tidewater, Inc., 159 F.Supp.2d 299

(E.D. La. 2001) (approximately two years rather

than six years).

As Petitioners have noted, there are

adequate procedural safeguards in place to ensure

that ATS claims with inadequate allegations or

those more properly brought in another court, do

not proceed in U.S. court. Petitioners provided six

cases to demonstrate this point. See Pet’rs Br. 59—

60 n.57—59. PLAC uses four of these cases to

demonstrate “how costly and _ time-consuming

rejected ATS lawsuits are for corporations.” PLAC

Br. 11—12. Yet, two of the four cases cited as undue

burdens on corporations did not even involve

corporate defendants. Gonzalez-Vera v. Kissinger,

449 F.3d 1260 (D.C. Cir. 2006) (plaintiffs sued

United States and Henry Kissinger); Mamani v.

Berzain, 654 F.3d 1148 (11th Cir. 2011) (plaintiffs

'4 The small number of claims that PLAC deemed “patently

defective” contrasts with statistics by critics in other areas of

the law. For example, one article categorized 1/3 of medical

malpractice claims as meritless. David M. Studdert et al.

Claims, Errors, and Compensation Payments in Medical

Malpractice Litigation, 354 NEW ENG. J. MED. 2024, 2029

(2006). Of course, all “defective” or “meritless” litigation is a

burden on the court system and the economy, but even PLAC

is unable to come up with more than a handful of such claims

under the ATS, hardly a sufficient reason to eliminate all

such litigation.

sued the former president of Bolivia and the former

defense minister of Bolivia). Flomo, 643 F.3d 1013,

was at the summary judgment phase when the

Seventh Circuit dismissed the case. In Sarei v. Rio

Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) discussed

below, pending at the Ninth Circuit Court of

Appeals, courts have repeatedly found that the

allegations sufficiently state claims under the ATS.

The PLAC brief inaccurately implies that limits

on the ATS would eliminate or reduce litigation, yet

a number of the cases PLAC lists do not even

contain ATS claims. Mendonca, 159 F.Supp.2d at

301, was a Title VII case, unsuccessfully amended

to include an ATS claim as fifth cause of action.

Abecassis v. Wyatt, 785 F.Supp.2d 614 (S.D. Tex.

2011), continues under the Anti-Terrorism Act

although the Torture Victim Protection Act (TVPA)

and the ATS claims were dismissed. See also,

Kruman v. Christie’s Int] PLC, 129 F.Supp.2d 620

(S.D.N.Y. 2001) (litigated under the Sherman Anti-

Trust Act long after ATS claims were dismissed).

Still other cases have multiple claims under other

statutes besides the ATS. See, e.g., Adhikari v.

Daoud & Partners, 697 F.Supp.2d 674 (S.D. Tex.

2009) (claims pending under the Trafficking

Victims Protection Reauthorization Act, RICO and

the ATS). Further, state law claims arising out of

the same operative facts could have been litigated

in state court or under federal diversity jurisdiction

if the ATS did not have extraterritorial reach. See,

e.g., Doe v. Unocal Corp., Nos. BC 237 980, BC 237

679 (Cal. Super. Ct. Oct. 4, 2000). But this would

not decrease the length or cost of these cases, and

forcing plaintiffs to litigate such cases in state court

would undermine the founders’ intent in creating a

statute directing these cases to the federal courts.

See Sosa v. Alvarez-Machain, 542 U.S. 692, 720

(2004); Brief For The United States As Amicus

Curiae In Support of Petitioners, Kiobel v. Royal

Dutch Petroleum Co. (filed Dec. 21, 2011) (No. 10-

1491).

Il. PLAC MISREPRESENTS ATS COURT

OPINIONS AND ALLEGATIONS

PLAC erroneously asserts that corporate

defendants in ATS cases are “rarely direct or even

indirect actors in the conduct alleged to be in

violation of an international norm.” PLAC Br. 12.

To the contrary, ATS cases involve either direct

participation in the abuses suffered by plaintiffs by

corporate defendants or secondary liability for the

abuses by the corporate defendants. The

allegations of corporate involvement have survived

the careful scrutiny of courts across the country on

motions to dismiss the claims. Moreover, PLAC

concedes (albeit indirectly) that 80% of ATS cases

with reported decisions “brought substantive

claims alleging a _ well-established violation of

international law, such as genocide, war crimes,

torture, extrajudicial killing, crimes against

humanity, and others.” PLAC App. 5. The

following two sections will describe just a sampling

of corporate-defendant ATS cases criticized in the

PLAC brief, to demonstrate the errors and

misrepresentations that pervade the brief.

A. PLAC Misrepresents ATS Direct

Liability Claims.

In its assertion that ATS claims “rarely”

involve direct corporate liability, PLAC overlooks or

mischaracterizes cases that evidence the contrary.

In Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.

2009), plaintiffs alleged direct corporate

involvement in medical experimentation = on

Nigerian children without their parents’ consent

that left eleven children dead and many others

blind, deaf, paralyzed, or brain-damaged. The

Second Circuit held that these acts constituted

violations of customary international law

actionable under the ATS. A scholar in The New

England Journal of Medicine commented that the

Abdullahi ruling ‘should’ help persuade

international corporations and researchers alike to

take informed consent...much more _ seriously.”

George J. Annas, Globalized Clinical Trials and

Informed Consent, 360 NEW ENG. J. MED. 2050

(2009). See also Damielle Cendrowski,

International Health Law Violations under the

Alien Tort Statute: Federal Appeals Court

Reinstated Lawsuit under the Alien Tort Statute

against United States Pharmaceutical Company

Pfizer Brought by Nigerian Children and their

Guardians-Abdullahi v. Pfizer, Inc., 35 AM. J. L. &

MED. 233, 236 (2009) (concluding that as a result of

Abdullahi, “pharmaceutical and health care

companies must be more cognizant of their actions

in foreign countries that may give rise to potential

claims under ATS for violations of other norms of

customary international health law.”)!© In 2009,

Pfizer reached a $75 million settlement with the

state of Kano in Nigeria, Nicole Perlroth, Pfizer

Finalizing Settlement in Nigerian Drug Suit,

FORBES, Apr. 3, 2009, and the civil case resulted in

a confidential settlement in February 2011. Donald

G. McNeil Jr., Nigerians Receive First Payments for

Children Who Died in 1996 Meningitis Drug Trial,

N.Y. TIMES, Aug. 11, 2011.

PLAC also fails to acknowledge that in

Wiwa v. Royal Dutch Petroleum Co., plaintiffs

alleged that corporate employees bribed witnesses

to give false testimony against Shell critic Ken

Saro-Wiwa. Wiwa v. Royal Dutch Petroleum Co.,

No. 96-8386, 2002 WL 319887, at *2, 9, 25

(S.D.N.Y. Feb. 28, 2002). The court rejected

defendants’ motion to dismiss and found sufficient

allegations of defendants’ direct participation in the

human rights violations. Jd. at *12—13.

Cases alleging direct corporate involvement

in trafficking and forced labor and other human

rights abuses are currently pending against U.S.

contractor Kellogg Brown & Root and _ its

subcontractor in Adhikari v. Daoud and Partners.

In that case, the victims were Nepalese men who

were told that they would be working in a

Jordanian hotel, but were sent to work on a U.S.

military base in Iraq, and were later murdered by

insurgents. Adhikari, 697 F.Supp.2d at 679-80.

The Court held, “Plaintiffs allege that they were

deceived and coerced to... work for KBR, thereby

making them victims of human trafficking and

forced labor.” Jd. at 687. That case is now in

discovery in the Southern District of Texas.'®

Other ATS cases involving migrant farmworkers

trafficked from other countries and forced to work

in the United States have successfully alleged

direct violations oof international law by

corporations. !‘

Of the cases against U.S. contractors

criticized by PLAC as litigation “during conflict

scenarios,” PLAC Br. 15 n.11, a number have

survived defendants’ motions to dismiss and have

settled. See, e.g., In re XE Serv. Alien Tort Litig.,

665 F.Supp.2d 569 (E.D. Va. 2009 ) (denying

motion to dismiss in a series of cases against

Blackwater for beatings and shootings, including

launching a grenade into a girls’ school and a

6 A separate ruling found that the court had personal

jurisdiction over Jordanian subcontractor Daoud. Adhikari v.

Daoud & Partners, No. 09-1237 (S.D. Tex. Dec. 12, 2011).

17 While PLAC mentions several of these cases in a footnote,

there is a misleading preface implying that there is a

distinction between cases which allege violations on U.S. soil

and others which allege conduct on foreign territory. In fact,

all the cases cited involve both. See Magnifico v. Villanueva,

783 F. Supp. 2d 1217 (S.P. Fla. 2011); Thang Hong Luu uv.

Intl Inv. Trade & Serv. Grp, No. 11-182 (S.D. Tex. filed Apr.

13, 2011); Margallo-Gans, No. 09-4026; Aguilar v. Imperial

Nurseries, No. 07-193 (D. Conn. filed Feb. 8, 2007); Siswinarti

v. Jennifer Shien Ng, No. 05-4171 (D.N.J. filed Aug. 16, 2005);

Ponce-Rubio v. North Brevard, Inc., No. 03-738 (M.D. Fila.

filed Oct. 3, 2003).

massacre in Nisoor Square which left seventeen

Iraqi civilians dead and more than twenty injured);

the case settled in 2010. See In re XE Serv. Alien

Tort Litig., Nos. 09-615, 09-616, 09-617, 09-618, 09-

645, 09-1017 and 09-1048 (E.D. Va. Jan. 6,

2010)(order of stipulated dismissal); Jarallah v.

Xe, No. 09-631, 2009 WL 1350958 (S.D. Cal. filed

Mar. 27, 2009) (schoolteacher was killed by Xe-

Blackwater shooters in Iraq; case transferred and

consolidated with Jn re XE Serv.); see also Al-

Quraishi v. Nakhla, 728 F.Supp.2d 702 (D. Md.

2010) (allowed to proceed by the Fourth Circuit in

Al Shimari v. CACI Int, Inc., No. 09-1335, 2012

WL 1656773, at *4 (4th Cir. May 11, 2012)

(rehearing en banc)).

The cases described above make clear that a

significant number of ATS cases allege defendant

corporations’ direct involvement in human rights

violations meeting the Sosa standard.

B. PLAC Misrepresents Cases Charging

Corporations with Secondary

Liability for Human Rights

Violations.

PLAC’s analysis of cases alleging secondary

liability by corporations mischaracterizes the ATS

cases that it cites and fails to mention other cases

that would further contradict their assertions. In

support of the erroneous claim that the corporate

defendants in ATS are “rarely...even indirect actors

in the conduct alleged,” PLAC casts a wide net over

all cases arising in areas of domestic. or

international conflict, PLAC Br. 12—13, and their

factual assertions about the conduct and motives of

the corporate defendants are largely unrelated to

the allegations of the complaints and findings of

any court.

PLAC cites to Jn re Chiquita as an example

of “litigation over...civil conflict in Colombia,”

PLAC Br. 16 n.11, and “arising from efforts by local

security forces to protect the company’s personnel

from violence committed by local populations.”

PLAC Br. 17—18. As noted above, PLAC ignores

the origin of the ATS claims in Chiquita’s payments

to a terrorist organization, which were also the

subject of criminal charges by the U.S. government.

In March 2007, Chiquita Brands

International pled guilty to the felony of knowingly

providing material support to the Autodefensas

Unidas de Colombia (AUC), a _ paramilitary

organization that it knew to be responsible for

killings and other crimes against Colombian

civilians and designated a “Foreign Terrorist

Organization” and a “Specially Designated Global

Terrorist” by the U.S. Government. The U.S.

described Chiquita’s support for seven years of over

100 payments to the AUC as “prolonged, steady,

and substantial” in the Sentencing Memorandum

submitted to the District Court and found, after a

full investigation, that “Chiquita’s money helped

buy weapons and ammunition used to kill innocent

victims.” Sentencing Memorandum By The United

States, United States v. Chiquita Brands Int'l, Inc.,

No. 07-055 (D.D.C. 2007) (filed Sept. 17, 2007)

lhereinafter Sentencing Memorandum]. After

pleading guilty, Chiquita was fined $25 million for

violating U.S. antiterrorism laws. See Colombians

Sue Chiquita Over Paramilitary Payments, CNN,

June 1, 2011.

In the civil ATS case, each of the several

thousand plaintiffs in Jn re Chiquita Brands alleges

that the Chiquita-supported AUC _ terrorist

organization attacked his or her relative in

Colombia. Jn re Chiquita Brands Inti, Inc. Alien

Tort Statute and S‘holder Derivative Litig., 792

F.Supp.2d 1301, 1307-8 (S.D. Fla. 2011). One

decedent was reported to have been kidnapped

when he was asleep at home, and then beaten, shot

twice, and left for dead. Jd. at 1308. The Court

found that the facts alleged by plaintiffs in this

case were sufficient to make plausible ATS claims

for torture, extrajudicial killing, war crimes, and

crimes against humanity. /d. at 1359.

In another case that PLAC argues was

merely “litigation over... civil conflict in Colombia,”

PLAC Br. 16 n.11, Baloco ex rel. Tapia uv.

Drummond Co., Inc., 640 F.3d 1338 (1th Cir.

2011), the plaintiffs alleged that the Drummond

Corporation hired AUC terrorists to kill Colombian

union leaders. PLAC’s contention that this was

related to “civil conflict” rather than the

corporation's attempt to repress labor organizing is

simply baseless. The suit was brought by the

children of the murdered union leaders. Reversing

a dismissal by the district court, the Eleventh

Circuit held, “the complaint alleges an intricate

and vindictive plot, orchestrated by the defendants,

that ultimately led to the assassinations of the

children’s fathers. If true, such conduct establishes

a violation of international law sufficient for

purposes of triggering ATS hability.” Jd. at 13435.

PLAC barely mentions other pending cases

in which the courts have found credible allegations

of corporate complicity in terrorism, describing

Linde, 269 F.R.D. 186, as “litigation over

the...Arab-Israeli conflict.” PLAC Br. 15 n.11. In

fact, in this case, among a series of cases,'® citizens

of countries including the United States,

Afghanistan, Argentina, France, Israel, Poland,

Romania, Russia, Ukraine, and Uzbekistan

brought claims against Arab Bank for aiding and

abetting genocide and crimes against humanity

committed together with Hamas, the Palestinian

Islamic Jihad, the Al-Aqsa Martyrs’ Brigade and

the Popular Front for the Liberation of Palestine.

The plaintiffs alleged that the international bank

channeled more than $100 millionto terrorist

groups and the families of suicide bombers. The

District Court found, "the inference is

unmistakable that Arab Bank knew it was

administering a financial benefit to designated

families of Palestinian ‘martyrs’ and those wounded

or imprisoned in perpetrating terrorist attacks, i.e.,

those who perpetrated the primary violations of the

law of nations.” Almog v. Arab Bank, PLC, 471

18 For the purposes of pre-trial discovery and proceedings, this

case was consolidated with a series of similar cases. Linde vu.

Arab Bank, PLC, 269 F.R.D. 186, n.1 (E.D.N.Y. 2010).

F.Supp.2d 257, 291 (E.D.N.Y. 2007). In a later

opinion, the court wrote that Arab Bank “admits

that it maintained accounts for eleven people or

organizations that had already been designated as

Terrorists.” Linde, 269 F.R.D. at 201 (citing

plaintiffs’ brief and exhibits).

Scrutiny of the cases refutes PLAC’s

contention that cases are brought § against

corporations as a “surrogate” for governments

which are immune. PLAC Br. 13 n.10. For

example, in Doe v. Exxon Mobil Corp., the District

Court and the Court of Appeals for the District of

Columbia rejected defendants’ motion to dismiss;

the case was brought by Indonesian villagers who

alleged that security forces directed by defendants

committed murder, torture, battery, and false

imprisonment in violation of the ATS. Exxon, 654

F.3d at 15. The Circuit found sufficient allegations

charging that Exxon paid, supported, equipped,

trained and provided the soldiers with intelligence.

Id. at 16. When examining the factual allegations,

the District Court accepted the allegations of the

parent company’s involvement: that Exxon Mobil

Indonesia (EMOI) “alone was not ‘equipped to

handle all the issues that were cropping up’ with

security and therefore ‘went up the chain and

request[ed] additional corporate kinds of support’

from Exxon Mobil Corporation—which enforced

‘uncompromising controls’ over EMOI's security.”

Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 19-

20 (D.D.C. 2008).

The decisions in two cases against Unocal

also challenge PLAC’s characterization of the

corporation as a mere “surrogate” for government

actors. In numerous rulings, the District Court for

the Central District of California and the Ninth

Circuit found sufficient allegations of Unocal’s

complicity in human rights abuses, including forced

labor and rape, to reject motions to dismiss, Doe v.

Unocal, 963 F. Supp. 880, 892 (C.D. Cal. 1997);

Nat'l Coal. Gov't of Union of Burma v. Unocal, Inc.,

176 F.R.D. 329, 334 (C.D. Cal. 1997); and allow the

case to proceed to trial. Doe J v. Unocal, 395 F.3d

932, 953-54 (9th Cir. 2002). In 2004, the 2002

decisions were vacated because the cases settled.

See Doe v. Unocal Case History, EARTHRIGHTS

INT'L, http://www.earthrights.org/legal/doe-v-

unocalcase-history (last visited June 8, 2012). The

settlement both compensated the plaintiffs and

provided funds to enable “plaintiffs and their

representatives to develop programs to improve

living conditions, health care and education and

protect the rights of people from the pipeline

region.” Final Settlement Reached in Doe ov.

Unocal, EARTHRIGHTS INTL (Mar. 21, 2005),

http://www.earthrights.org/legal/final-settlement-

reached-doe-v-unvocal.!9

Another sweeping mischaracterization by

PLAC is that ATS cases challenged corporate

actions to defend themselves. According to PLAC,

‘8 PLAC ignores these rulings and the settlement, citing only

an early opinion in the Roe case which dismissed claims

against a soldier for forced labor. PLAC Br. n.10 (citing Roe v.

Unocal, 70 F.Supp.2d 1073 (C.D. Cal. 1999)).

in Wiwa v. Royal Dutch Petroleum Co., “Shell

sought assistance from Nigerian military after [the]

local population protested and disrupted its oil

exploration and development operations.” PLAC

Br. 18 (citing Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88, 92 (2d Cir. 2000)). But the citation

provides no support for PLAC’s claim that the

violence supported by Shell was necessary to

protect Shell’s operation. In fact, the court

discusses allegations to the contrary, including

that plaintiffs were “repeatedly arrested, detained

and tortured,” were executed after “fabricated

evidence” and that, “[a]ccording to the complaint,

while these abuses were carried out by the

Nigerian government and military, they were

instigated, orchestrated, planned, and facilitated by

Shell Nigeria under the _ direction of the

defendants.” 226 F.3d at 92.

In this same category, PLAC asserts that

other cases “target corporations for liability arising

from efforts by local security forces to protect the

company’s personnel and operations from violence

and sabotage committed by local populations

during an internal conflict.” PLAC Br. 17.

However, the cases they describe involve very

different sets of facts from PLAC’s description. In

Sarei v. Rio Tinto, PLC, it was the corporation that

was accused of directing a pattern of human rights

abuses: the government of Papua New Guinea

“allegedly committed atrocious human rights

abuses and war crimes at the behest of Rio Tinto,

including a blockade, aerial bombardment of

civilian targets, burning of villages, rape and

pillage,” 487 F.3d at 1198 (emphasis added), and

the corporation acted “with the assistance of the

PNG Government...,” id. at 1197-98, rather than

being merely a bystander to the violations or a

“surrogate” for an immune foreign government.

Another instance where there is a significant

difference between PLAC’s description and the

facts alleged and analyzed by the court is Mujica v.

Occidental Petroleum Corp., in which the plaintiff

alleges that a bomb dropped by the military of

Colombia killed his mother, sister, and cousin; he

also alleges that the Colombian armed forces in

question were funded by Occidental Petroleum

Corporation, that the intelligence for the bombing

was provided by Occidental, and that the bombing

was planned in Occidental’s complex. Mujica uv.

Occidental Petroleum Corp., 381 F.Supp.2d 1164,

1168 (C.D. Cal. 2005). Although PLAC argued

that the corporation merely “sought assistance from

Colombian security forces after left-wing

insurgents engaged in violence and sabotage,”

PLAC Br. 18 (citing Mujica, 381 F.Supp.2d at

1168-69), any such actions were completely

unrelated to plaintiffs’ complaint, as the bombing

and ransacking of the town occurred where there

were no insurgents. Mujica, 381 F.Supp.2d at

1168.

Another case involving Occidental follows a

similar pattern. In Shiguango v. Occidental

Petroleum Corp., Occidental contracted with

Ecuadorian Special Forces to provide security

during protests at its mining interests in Ecuador.

The military promptly attacked, tortured, and

illegally detained the protesters. Shiguango v.

Occidental Petroleum Corp., No. 06-4982 (C.D. Cal.

filed Aug. 25, 2009). Ultimately, the company and

plaintiffs settled this case.

PLAC similarly characterizes Giraldo ov.

Drummond Co. as a case where a corporation

“sought assistance” from a foreign military after

attacks against its coal mining operations, PLAC

Br. 18; Giraldo v. Drummond Co., No. 09-1041

(N.D. Ala. filed Sept. 29, 2011). However, in

Giraldo, the court refused to dismiss the case

against the corporate defendant and two individual

defendants and found credible allegations that

Drummond made payments to known terrorists

and directed the operations. The court held that

plaintiffs had adequately alleged that Drummond

“urged that such attacks be made,” Giraldo uv.

Drummond Co., No. 09-1041, at 23, 32 (N.D. Ala.

April 30, 2010) (unpublished memorandum

opinion).

PLAC offers only a cursory mention of cases

brought against corporations for complicity in the

Holocaust, describing them as “litigation over the

Second World War.” PLAC Br. 15 n.11. However,

the actual allegations show PLAC’s description

fails to note the corporate misconduct on which the

ATS claims were based. In Holocaust Victims of

Bank Theft v. Magyar Nemzeti Bank, plaintiffs

brought the action against a group of international

banking institutions that allegedly participated in

a wealth appropriation scheme based upon theft

and withholding assets from Hungarian Jews and

their next of kin; the court denied defendants’

motion to dismiss the case. Holocaust Victims of

Bank Theft v. Magyar Nemzeti Bank, 807

F.Supp.2d 689 (N.D. Ill. 2011). A series of cases

was brought under the ATS for atrocities

committed during the Holocaust by corporations

which resulted in settlement. Notably, the

plaintiffs in cases cited by PLAC alleged specific

corporate complicity in violations such as slave

labor. See, e.g., Iwanowa v. Ford Motor Co., 67

F.Supp.2d 424 (D.N.J. 1999); Deutsch v. Turner

Corp., 317 F.3d 1005 (9th Cir. 2003).

PLAC attempts to dismiss a series of cases

charging corporations with aiding and abetting the

universally recognized violation of apartheid and

other related human rights abuses in South Africa,

as “litigation over...South Africa’s Apartheid

regime.” PLAC Br. 15 n.11. But in In re South

African Apartheid Litig., the Court ruled that the

complaint did not challenge the apartheid “regime,”

but that plaintiffs had made sufficient allegations

that particular corporate defendants were involved

in direct violations and had aided and abetted

specific acts of apartheid, torture, and extrajudicial

killing. See In re S. African Apartheid Litig., 617 F.

Supp. 2d 228, 264-65 (S.D.N.Y. 2009).20

20 This past March, the claims against General Motors

settled. See Shabtai Gold, US Curmaker GM to Compensate

Apartheid Victims, BUS. RECORDER, Mar. 3, 2012.

Another unsubstantiated claim by PLAC is

that ATS litigation against corporations operating

where governments have poor human nights

records could result in multinationals withdrawing

from such countries and depriving them of

desperately needed investment and jobs. PLAC Br.

18. Not only has PLAC provided no information to

demonstrate the accuracy of a 2003 “conservative”

prediction that litigation will deter $55 billion of

investments, PLAC Br. 19, but factual evidence

indicates that ATS suits do not deter investment.

Nobel prize-winning economist Joseph Stiglitz has

noted an increase in investments in South Africa

during the litigation of the Apartheid case. Brief

For Joseph F. Stiglitz As Amicus Curiae in Support

of Plaintiffs-Appellees, Balintulo v. Daimler (In re

South African Apartheid Litigation), No. 09-2778

(2d Cir. Nov. 30, 2009), 2009 WL 5177981. In fact,

one of the defendants, Barclays National Bank

Ltd., was responsible for making the single largest

direct foreign investment in in South Africa in that

country’s history during the pendency of the

litigation. Jd. at 9 (citing Business This Week, THE

ECONOMIST, May 14, 2005, at 88). During the

pendency of Wiwa v. Royal Dutch and Bowoto v.

Chevron, those companies continued to make multi-

year multi-billion investments in Nigeria. Richard

L. Herz, The Liberalizing Effects of Tort: How

Corporate Complicity Liability Under the Alien Tort

Statute Advances Constructive Engagement, 21

HARV. HUM. RTs. J. 207, 236 nn.108—-109 (2008).

The small number of ATS cases to date have

focused on the actions of corporations themselves in

the commission of human rights violations, through

either direct participation or secondary liability.

These cases have not sought to address larger

issues such as the armed conflicts in countries

where the companies operate nor is there any

factual evidence that they interfered with economic

investment.

Ill. ATS LAWSUITS DO NOT UNFAIRLY

CAUSE REPUTATIONAL DAMAGE TO

CORPORATIONS

PLAC argues that“[clompanies named as

defendants in ATS suits are routinely accused of

the vilest categories of misconduct{.]” and therefore

unfairly suffer reputational damage. PLAC Br. 20.

However, as one prominent law firm has noted,

“Separate and apart from potential legal liabilities

and concerns, the vast majority of companies in the

U.S. business community has already reached the

consensus that publicity surrounding human rights

abuses can harm their reputations, brand images

and in turn their bottom lines.” Weil, Gotshal &

Manges LLP, Memorandum: Corporation Social

Responsibility for Human Rights: Comments on the

UN Special Representative’s Report Entitled,

“Protect, Respect and Remedy: a Framework for

Business and Human Rights,” May 22, 2008.

(emphasis added.) In other words, it is the

underlying conduct that causes the reputational

harm, not the lawsuit.

PLAC also condemns the press and blog

coverage of certain ATS cases as “sensational.”

PLAC Br. 23. PLAC cites as an example the press

coverage of the ATS claims against Chiquita, which

PLAC erroneously describes as one involving

“efforts by local security forces to protect the

company’s personnel and operations.” PLAC Br.

17. Remarkably, PLAC makes no reference to the

facts, referenced above, that Chiquita was

criminally prosecuted for funding death squads,

pled guilty, and paid a $25 million fine. Sentencing

Memorandum at 13. There is nothing “sensational”

about press coverage of Chiquita’s admitted abuses

and the plaintiffs’ efforts to seek compensation.

ATS suits often allege egregious human

rights violations, but that does not mean that

corporations business activities are above the

scrutiny of the media, the judiciary, and the public.

The scrutiny of a free press can help ensure that

corporations uphold their stated commitments to

human rights and social responsibility. PLAC’s

description of the “prejudicial impact of [ATS]

suits,” PLAC Br. 23, is not born out by the sources

it cites.

The articles from the news media and the

blogosphere cited by PLAC discuss _ serious

allegations of international law violations against

corporations.2! Some say little or even nothing.

21 PLAC Br. 23; See, e.g., Jonathan Stempel, REUTERS, July 8,

2011, http://www.reuters.com/article/201 1/07/08/us-

exxonmobil-indonesia-idUSTRE76744G20110708 (explaining

that D.C. Circuit’s ruling that “companies are not immune

from liability under a 1789 U.S. law known as the Alien Tort

Statute for ‘heinous conduct’ allegedly committed by its

about ATS litigation.?2 Others include perspectives

of both plaintiffs and corporations.*5 While blogs

tend to be more partisan in language and tone,

PLAC exaggerates the "far-reaching prejudicial

impact" that blog posts add to ATS suits. For

example. one blog to which PLAC cites has only 617

agents in violation of human rights norms”); Karen Gullo,

BLOOMBERG, Oct. 25, 2011, http://mobile.

bloomberg.com/news/201 1-10-25/rio-tinto-genocide-claims-

reinstated-by-u-s-appeals-court-1-?category= (explaining the

Ninth Circuit’s ruling that “claims of genocide and war crimes

fall within the limited category of issues that can be

considered under the [ATS]”).

22 Michael Blanding, NATION, Apr. 19, 2006,

http://alternet.org/story/34976/coke_is_death/?page=2

(discussing shareholder resolutions only); Maureen Chigbo,

NEWSWATCH (Oct. 27, 2011, http://www.newswatchngr.

com/index.php?option+com_content&task=view &id=3628&Ite

mid=1 (ATS and litigation in Europe mentioned in passing;

focus of article is controversy over Shell’s role in Niger Delta).

23 PLAC Br. 22—23; Mike Pflanz, TELEGRAPH, May 25, 2009,

http://www.telegraph.co.uk/finance/newsbysector/energy/5383

923/Shell-played-role-in-activist-executions.html (quoting a

Shell spokesperson); Erik Larson & Joshua Goodman,

BLOOMBERG, Apr. F 2008, http://www.bloom

berg.com/apps/news”?pid=20601109&sid=aqsoW_J3nbOU &ref

er=home (quoting a Chiquita spokesperson FACT OVER

FICTION (July 9, 2011), http://www.factoverfiction

.com/article/1109 (quoting an Exxon spokesman); Gabriel

Katsh, MULTINATIONAL MONITOR (Oct. 2000),

http://www.multinationalmonitor.org/mm2000/102000/

katsh.htm] (discussing Talisman’s position); Neela Banerjee,

N.Y. TIMES, June 21, 2001, at Cl (noting Exxon’s position);

Kyle Whitmire, WALL ST. J., Oct. 6, 2003, at Al (describing

the position of Drummond's lead counse}l).

views and has been commented on once—since

January 30, 2007.24 Another post is written by a

student for an online campus publication that has

received one comment—since November 9. 2010.29

And yet another has received zero comments—since

November 22, 2009.26 PLAC’s assertion that such

commentary will add to the “far-reaching

prejudicial impact of [ATS] suits,” PLAC Br. 23, is

clearly an overstatement.

In their assertions about “reputational

harm,” PLAC offers the misleading suggestion that

Petitioners compared corporate ATS defendants to

Hitler and Eichmann. PLAC Br. 25. In fact,

Petitioners made absolutely no mention of Hitler

and Eichmann. Petitioners’ brief invoked 1.G.

Farben and its legal responsibility after World War

II to address defendants’ argument that

corporations had no obligations under international

law. See Pet’rs Br. 50—51 (noting that the Control

Council took action under international law to

dismantle I1.G. Farben and seize its assets due to

Farben’s violations of international law).

24 PLAC Br. 23; Soaraway, BUZZNET (Jan. 30, 2007),

http://soaraway.buzz _ net.com/user/journal/108568/cocacolas-

use-paramilitary-death/.

25 PLAC Br. 24; Natalie Fine, THE WESLEYAN ARGUS (Nov. 9,

2010), http://wesleyanargus.com/2010/11/09/the-evil-behind-

cocacola/.

26 Bataween, POINT OF NO RETURN, (Nov. 22, 2009),

http://jewishrefugees. blogspot.com/search?updated-min=2008-

12-31T16:00:00-08:00&updated-max=2009-11-

26T 10:56:00Z& max-results=50&start=37 &by-date=false.

Amici do not dispute PLAC’s statement.

PLAC Br. 24, that companies have recently made

commitments to socially responsible business

practices. ATS suits have reinforced the

importance of such practices. United Nations

Special Representative John Ruggie has

commented that “the mere fact of providing the

possibility of a remedy has made a difference.”

Special Representative of the Secretary-General,

Interim Report of the Special Representative of the

Secretary-General on the Issue of Human Rights

and Transnational Corporations and Other

Business Enterprises, 762, U.N. Doc.

E/CN.4/2006/97 (Feb. 22, 2006).

In assessing the impact of the 2004

settlement between the Unocal corporation and two

groups of plaintiffs, Carole Basri, director of the

New York chapter of the American Corporate

Counsel Association, author of INTERNATIONAL

CORPORATE PRACTICE: A PRACTITIONER’S GUIDE TO

GLOBAL SUCCESS and a University of Pennsylvania

corporate law instructor, commented, "This is going

to open up a whole new way of looking at what the

responsibility of U.S. corporations is when they are

dealing abroad.... It's going to have a tremendous

impact." Quoted by Lisa Girion, Judge Oks Unocal

Abuse Lawsuit, L. A. TIMES (June 12, 2002). A year

later, Elliot Schrage, former senior vice president

for global affairs at the Gap, wrote in the Harvard

Business Review, “Any meaningful defense of ATS

claims will require a company to show that it has

made a good faith effort to closely examine local

practices and ensure that they meet international

human rights’ standards.” Elliott Schrage,

Memorandum: Emerging Threat: Human Rights

Claims, HARV. BuS. REV. 16, 17 (2003).

Businesses that take proactive steps to

identify and avoid involvement in gross human

rights abuses have the least to fear from the ATS.

In his 2010 report to the UN Human Rights

Council, Mr. Ruggie noted:

Conducting due diligence enables

companies to identify and prevent

adverse human rights impacts. Doing

so also should provide corporate

boards with strong protection against

mismanagement claims by

shareholders. In Alien Tort Statute

and similar suits, proof that the

company took every reasonable step to

avoid involvement in the alleged

violation can only count in its favour.

Special Representative of the Secretary-General,

Business and Human Rights: Further Steps toward

the Operationalization of the “Protect, Respect and

Remedy” Framework, %86, U.N. Doc. A/HRC/14/27

(Apr. 9, 2010). ,

The burden on good businesses to avoid

involvement in gross human rights abuses is not

unreasonable, just as the burden of avoiding

criminal or _ fraudulent conduct is_ not

unreasonable. For example, the US Sentencing

Guidelines for Organizational Defendants requires

companies to have rigorous due diligence programs

to avoid involvement in criminal misconduct if they

want to avoid harsh sentences. U.S. Sentencing

Guidelines Manual §82B.1. Few have argued that

this is an unreasonable burden. Similarly, UN

Guiding Principle 23(c) provides that in all cases,

companies should "treat the risk of causing or

contributing to gross human rights abuses as a

legal compliance issue wherever they operate."

Special Representative of the Secretary-General,

Guiding Principles on Business and Human Rights:

Implementing the United Nations “Protect, Respect

and Remedy” Framework, U.N. Doc. A/HRC/17/31

(Mar. 21, 2011).

ATS suits seek to promote “corporate social

responsibility based on international human rights

and labor rights normsf[,]” PLAC Br. 24, and

reaffirm universal prohibitions against “genocide,

war crimes, torture, extrajudicial killing, [and]

crimes against humanity,” which PLAC agrees are

“well-established violation{s] of international law.”

PLAC App. 5. Corporate commitment to socially

responsible conduct enhances reputation. It is the

conduct, rather than litigation, that is harmful to

corporate reputation.

CONCLUSION

PLAC’s analysis of corporate ATS cases is

unfortunately inaccurate and exaggerated. The

cases do not place an unreasonable burden on U.S.

courts. They proceed against U.S. corporations or

corporations with sufficient ties to the U.S. to

support personal jurisdiction and where there are

sufficient allegations of direct or secondary liability

for human rights violations. Cases that do not meet

these criteria are efficiently dismissed by the

courts. ATS cases have contributed to an

international system of greater self-regulation for

multinational corporations and are an important

means to level the playing field for businesses

which are not complicit in human rights abuses.

Respectfully submitted,

JENNIFER GREEN

Counsel of Record

Director, Human Rights

Litigation and

International Advocacy

Clinic

UNIVERSITY OF

MINNESOTA LAW SCHOOL

229 19tr Avenue South

Minneapolis, MN 55455

jmgreen@umn.edu

612-625-7247

Counsel for Amici Curiae

Appendix Table of Contents

APPENDIX A

Amici Curiae

APPENDIX B

Table of ATS Cases Brought Against

U.S. and Foreign Corporate Defendants.........

App. l

APPENDIX A: Amici Curiae

The Institute for Human Rights and Business

(IHRB) is a global center of expertise on the

relationship between business and internationally

proclaimed human rights’ standards. IHRB

provides a trusted, impartial space for dialogue and

independent analysis to deepen understanding of

human rights challenges and the appropriate roles

of business.

Errol P. Mendes is a lawyer, author and law

professor at the University of Ottawa and has been

an advisor to corporations, governments, civil

society groups and the United Nations in the areas

of human rights, corporate law, public and private

sector governance and corporate social

responsibility. Professor Mendes has been a senior

advisor in the Privy Council Office of the Canadian

Government, and has worked with leading private

sector companies and associations to establish an

International Code of Ethics for Canadian

Businesses. In 1999, the Office of the Secretary

General of the United Nations invited him to be an

advisor on the Global Compact initiative, where

Professor Mendes assisted with the drafting of the

UN Global Compact.

David Petrasek is an associate professor at the

Graduate School of Public and _ International

App. 2

Affairs, University of Ottawa. Professor Petrasek

has worked in the human rights field for over 20

years with NGOs, the United Nations, and research

centers, and has taught international human nghts

and humanitarian law courses at universities in

Canada, Sweden and the United Kingdom. He has

served as a Human Rights Officer and Senior

Adviser to the Office of the UN High Commissioner

for Human Rights (OHCHR), Research Director at

the International Council for Human Rights Policy

(ICHRP), Senior Director for Policy at Amnesty

International, and Policy Director at the Centre for

Humanitarian Dialogue. He is a member of the

International Advisory Network for the Business

and Human Rights Resource Centre. Professor

Petrasek is a graduate of the University of

Waterloo, York University, and the London School

of Economics.

John F. Sherman, III is an attorney and Senior

Program Fellow in the Corporate’ Social

Responsibility Initiative of the Mossavar-Rahmani

Center for Business and Government at the

Harvard Kennedy School, where he focuses on

business and human rights. From 2008 through

2011, Mr. Sherman served as senior legal advisor

to Professor John Ruggie, the UN Special

Representative of the Secretary General on

Business and Human Rights, whose Guiding

App. 3

Principles on Business and Human Rights were

unanimously endorsed by the UN Human Rights

Council in June 2011, and have become the

authoritative normative standard for business and

human rights worldwide. Until his retirement in

2008, Mr. Sherman served as deputy general

counsel of National Grid, where he held senior legal

positions with that company and its predecessors in

the areas of i litigation, corporate _ social

responsibility, business ethics, environmental and

safety law, and corporate governance. Mr. Sherman

is a graduate of Harvard Law School and

Dartmouth College.

The University of Minnesota Human Rights

Litigation and International Advocacy Clinic

instructs students in human rights litigation and

international human rights advocacy, particularly

in United States courts. The Human Rights Clinic

works closely with the other human rights

institutions at the University of Minnesota,

including the University of Minnesota Human

Rights Center, which was inaugurated in December

1988 to help train effective human rights

professionals and _ volunteers, and _ provide

assistance to human rights advocates, monitors,

students, and educators.

App. 4

APPENDIX B:

Table of ATS Cases Brought Against

U.S. and Foreign Corporate Defendants

Case

U.S. Defendant

Headquarters

Cases Involving U.S. Citizen Defendants!

Abagninin v. AMVAC

Chemical Corp., 545 F.

3d 733 (9th Cir. 2008)

Los Angeles,

California

Abdullahi v. Pfizer, Inc.,

562 F.3d 163 (2d Cir.

2009)

New York, New York

Abecassis v. Wyatt, 785

F. Supp. 2d 614 (S.D.

Tex. 2011)

NuCoastal

Corporation -

Houston, Texas

Adhikari v. Daoud &

Partners, No. 09-1237,

2010 WL 744237 (S.D.

Tex. Mar. 1, 2010)

Kellogg Brown &

Root - Houston, Texas

* Many of these cases contain multiple defendants; cases are

included in this category if one or more of the defendants is

headquartered in the United States or is a U.S. subsidiary.

App. 5

Aguilar v. Imperial

Nurseries, 2007 WL

1183549 (D. Conn. filed

Feb. 8, 2007)

Granby, Connecticut

Aguinda v. Texaco, Inc.,

303 F. 3d 470 (2d Cir.

2002)

White Plains, New

York

Al Shimari v. CACI

Intern., Inc., --- F.3d ----,

2012 WL 1656773 (4th

Cir.(Md.) May 11,

2012) (NO. 09-1335, 10-

1891, 10-1921)

Arlington, Virginia

Aldana v. Del Monte

Fresh Produce N.A.,

Inc., 578 F.3d 1283

(11th Cir. 2009)

Coral Gables, Florida

Al-Quraishi v. Nakhla,

728 F. Supp. 2d 702 (D.

Md. 2010)

Arlington, Virginia

Al-Razzag v. Xe, 2009

WL 1350956 (S.D. Cal.

filed Mar. 26, 2009)

Arlington, Virginia

App. 6

Al-Taee v. L-3 Services,

2008 WL 2598173 (E.D.

Mich. filed June 30,

2008)

New York, New York

Arias v. Dyncorp, 738 F.

Supp. 2d 46 (D.D.C.

2010)

Falls Church,

Virginia

Aziz v. Alcolac, Inc., 658

F. 3d 388 (4th Cir.

2011)

Baltimore, Maryland

Baloco ex rel. Tapia v.

Drummond Co., Inc.,

640 F. 3d 1338 (11th

Cir. 2011)

Vestavia, Alabama

Bano v. Union Carbide

Corp., 198 F. Appx. 32

(2d Cir. 2006)

Houston, Texas

Bao Ge v. Li Peng, 201

Bank of China (New

16 | F. Supp. 2d 14 (D.D.C.

2000) York, New York)

Bauman v.

17 DaimlerChrysler Corp., Auburn Hills,

644 F. 3d 909 (9th Cir. Michigan

2011)

App. 7

Beanal v. Freeport-

18 | McMoran, Inc., 197 F. Phoenix, Arizona

3d 161 (5th Cir. 1999)

Bigio v. Coca-Cola Co.,

19 | 239 F. 3d 440 (2d Cir. Atlanta, Georgia

2000)

Citibank - New York,

Bleier v. Deutschland, ge tron phoney

20 |2009 WL 4679371 (N.D.|_. 7° _

Ill. filed Sept. 17, 2009) | Hiimois: Bank of New

: smite York Mellon - New

York, New York

~engl > Ganges Chase Manhattan -

21 | Paribas, 114 F. Supp. Chic Mino;

2d 117 (E.D.N.Y 2000) ee Saree

Bowoto v. Chevron

22 | Corp., 621 F. 3d 1116 a

(9th Cir. 2010) ueeareies

Corrie v. Caterpillar,

23 | Inc., 403 F. Supp. 2d Peoria, Illinois

1019 (W.D. Wash. 2005)

App. 8

Cunzhu v. Yahoo!, Inc.,

2008 WL 1894039 (N.D.

Cal. filed Feb. 22, 2008)

Sunnyvale, California

Daobin v. Cisco

Systems, Inc., 2011 WL

25 | 3962879 (D. Md. filed | "2" 9°8® California

June 6, 2011)

Deutsch v. Turner

26 | Corp., 317 F. 3d 1005 California

(9th Cir. 2003)

Diaz v. Grupo Mexico, Americas Mining

97 Inc., 2010 WL 1944094 Corp. - Arizona;

(D.Ariz. filed April 22, Southern Copper

2010) Corp. — Arizona

Doe I v. Cisco Systems,

Inc., 2011 WL 1338057 , ;

28 (E.D. Tex. filed May 19, San Jose, California

2011)

Doe I. v. Wal-Mart

99 Stores, Inc., 2005 WL Bentonville,

4049637 (C.D. Cal. filed Arkansas

Dec. 23, 2005)

App. 9

Doe v. Drummond Co.,

Inc., 2010 WL 2572422

(N.D. Ala. filed June 14,

2010)

Birmingham,

Alabama

Doe v. Exxon Mobil

Corp., 654 F. 3d 11

(D.C. Cir. 2011)

Irving, Texas

Doe v. Nestle, S.A., 748

F. Supp. 2d 1057 (C.D.

Cal. 2010)

ADM - Decatur,

Illinois; Cargill, Inc -

Minnetonka,

Minnesota

Doe v. Neveleff, 2011

WL 5027754 (W.D. Tex.

filed Oct. 19, 2011)

Nashville, Tennessee

Estate of Manook v.

Research Triangle

Institute, Intern., 759 F.

Supp. 2d 674 (E.D.N.C.

2010)

Research Triangle

Park, North Carolina

Estate of Rodriguez v.

Drummond Co. Inc.,

256 F. Supp. 2d 1250

(N.D. Ala. 2003)

Birmingham,

Alabama

App. 10

Fiouris v. Turkish

Cypriot Community,

2010 WL 7378418

(D.D.C. filed July 20,

2010)

HSBC USA, N.A. -

Buffalo, New York

Flomo v. Firestone

Natural Rubber, 744 F.

Supp. 2d 810 (S.D. Ind.

2010)

Nashville, Tennessee

Flores v. Southern Peru

Copper Corp., 343 F. 3d

140 (2d Cir. 2003)

Arizona

Ge v. Shanghai

Municipal Branch

Committee of Chinese

Communist Party, 2010

WL 4235973 (S.D.N.Y.

filed Oct. 10, 2010)

ThyssenKrupp USA -

Washington, D.C.

Genocide Victims of

Krajina v. L-3 Services,

Inc., No. 10-5197, 2011

WL 3625055 (N.D. Ill.

Aug. 17, 2011)

New York City, New

York

App. 11

Giraldo v. Drummond

41 Co., Inc., 2011 WL Birmingham,

4863942 (N.D. Ala. filed Alabama

Sept. 29, 2011)

Guanipa v. Chavez, ,

42, |2009 WL 1392253 (S.D. ye a

Fla. filed May 12, 2009) ;

Guzman-Martinez v.

Corrections Corp. of

43 America, 2011 WL Nashville, Tennessee

6062622 (D. Ariz. Filed

Dec. 5, 2011)

Hamid v. Price .

44 | Waterhouse, 51 F. 3d pe ggg

1411 (9th Cir. 1995) .

Hassoon v. Xe, 2009 WL

45 |1953283 (S.D. Cal. filed} Arlington, Virginia

Apr. 1, 2009)

Ibrahim v. Titan Corp.,

46 391 F. Supp. 2d 10 (|San Diego, California

(D.D.C. 2005)

App. 12

In re African-American

Slave Descendants

Litig., 304 F.Supp.2d

1027 (N.D. Ill. 2004)

FleetBoston Financial

- Boston,

Massachusetts.; CSX

- Jacksonville, Florida

In re Chiquita Brands

Intern. Inc. Alien Tort

Statute Shareholder

Derivative Litigation,

792 F. Supp. 2d 1301

(S.D. Fla. 2011)

Cincinnati, Ohio

In re Terrorist Attacks

Supp. 2d 494 (S.D.N.Y.

2010)

on September 11, 740 F.

Al Haramain Islamic

Foundation, Inc. -

Ashland, Oregon

In re South African

Apartheid Litig., 633 F.

Supp. 2d 117 (S.D.N.Y.

2009)

Ford - Dearborn,

Michigan; GM -

Detroit, Michigan;

IBM - Armonk, New

York

In re XE Services Alien

2d 569 (E.D. Va. 2009)

Tort Litig., 665 F. Supp.

Virgina

App. 13

Iwanowa v. Ford Motor

Co., 67 F. Supp. 2d 424

(D.N.J. 1999)

Dearborn, Michigan

Jama v. Esmor

Correctional Services,

Inc., 577 F. 3d 169 (3d

Cir. 2009)

Melville, New York

(Originally),

Relocated to

Sarasota, Florida

Jarallah v. Xe, 2009 WL

1350958 (S.D. Cal. filed

Mar. 27, 2009)

Arlington, Virginia

Khulumani v. Barclay

Nat. Bank Ltd., 509 F.

3d 148 (2d Cir. 2007)

Ford - Dearborn,

Michigan; GM -

Detroit, Michigan;

IBM - Armonk, New

York

Kruman v. Christie's

Int'l PLC, 129 F. Supp.

2d 620 (S.D.N.Y. 2001)

Sotheby's Inc — New

York, New York

Licci v. American Exp.

Bank Ltd., 704 F. Supp.

2d 403 (S.D.N.Y. 2010)

New York City, New

York

App. 14

Lim v. Government of

Singapore, 2011 WL

2428948 (N.D. Ill. filed

June 14, 2011)

Hayward, California

Magnifico v. Villanueva,

Miami, Florida and

59 | 783 F. Supp. 2d 1217

WwW

(S.D. Fla. 2011) Madison, Wisconsin

Manook v. Unity

60 Resources Group, 2008 | Triangle Park, North

WL 310879 (D.D.C. filed

Jan. 17, 2008)

Carolina

Margallo-Gans v.

Farrell, 2009 WL

Oct. 16, 2009)

Mastafa v. Chevron

62 | Corp., 759 F. Supp. 2d a

297 (S.D.N.Y. 2010)

Maugein v. Newmont

63 Mining Corp., 298 F. Greenwood Village,

Supp. 2d 1124 (D.Colo. Colorado

2004)

App. 15

Mendonca v. Tidewater,

Inc., 159 F. Supp. 2d

299 (E.D. La. 2001)

New Orleans,

Louisiana/ Houston,

Texas

Mohamed v. Erinys

International Ltd., 2010

WL 2679426 (S.D. Tex.

filed Apr. 28, 2010)

NOUR USA, Ltd. -

Vienna, Virginia

Mohamed v. Jeppesen

Dataplan, Inc., 614 F.

3d 1070 (9th Cir. 2010)

Englewood, Colorado

Mujica v. Occidental

67 Petroleum Corp., 381 F. Los Angeles,

Supp. 2d 1164 (C.D. California

Cal. 2005)

National Coalition

Government of Union of .

68 | Burma v. Unocal, Inc., - amy

California

176 F.R.D. 329 (C.D.

Cal. 1997)

Ponce-Rubio v. North

Brevard, Inc., 2003 WL

23772118 (M.D. Fla.

filed Oct. 3, 2002)

Cocoa, Brevard

County, Florida

App. 16

Prince Hotel, SA v.

Blake Marine Grp., 433

70 F. Appx 706 (11th Cir. Harvey, Louisiana

2011)

Bridgestone Americas

Roe v. Bridgestone Holding, Inc.-

71 | Corp., 257 F.R.D. 159 |Nashville, Tennessee;

(S.D. Ind. 2009) Firestone Polymers,

LLC — Ohio

Roe v. Unocal Corp., 70

72 | F. Supp. 2d 1073 (C.D. a

Cal. 1999)

Sa'‘adoon v. Xe, 2009

73 | WL 761253 (S.D. Cal. | Arlington, Virginia

filed Mar. 19, 2009)

Saldana v. Occidental

74 Petroleum Corp., 2011 Los Angeles,

WL 5142961 (C.D. Cal. California

filed Oct. 20, 2011)

Saleh v. Titan Corp.,

75 | 580 F. 3d1(D.C. Cir. |San Diego, California

2009)

App. 17

Saharkhiz v. Nokia

Corp., 2010 WL

3375217 (E.D. Va. filed

Aug. 16, 2010)

Nokia Inc. — New

York, New York;

Siemens Corp White

Plains, New York;

Nokia Siemens

Networks US, LLC, -

Atlanta, Georgia

Shiguango v. Occidental

77 Petroleum Corp., 2009 Los Angeles,

WL 2921372 (C.D. Cal. California

filed Aug. 10, 2006)

Sinaltrainal v. Coca-

78 |Cola Co., 578 F. 3d 1252} Atlanta, Georgia

(11th Cir. 2009)

Sinaltrainal v. Nestle

USA, Inc., 2006 WL

3668381 (S.D. Fla. filed

Oct. 31, 2006)

Nestle USA —

California

Siswinarti v. Jennifer

Shien Ng, 2005 WL

2511406 (D.N.J. filed

Aug. 16, 2005)

Portland, Oregon

App. 18

Turedi v. Coca-Cola Co.,

81 460 F. Supp. 2d 507 Atlanta, Georgia

(S.D.N.Y. 2006)

Vieira v. Eli Lilly and

89 Co., 2009 WL 3150953

2009)

(S.D. Ind. filed Sept. 25,

Indianapolis, Indiana

Viet. Ass'n for Victims

of Agent Orange v. Dow

Dow - Midland,

Michigan; Monsanto -

Creve Coeur,

Missouri; Hercules -

83 Wilmington

Chem. Co., 517 F. 3d_ | Delaware; Occidental

104 (2d Cir. 2008) - Dallas, Texas;

Uniroyal -

Middlebury,

Connecticut

Wang Xiaoning v.

84 Yahoo! Inc., 2007 WL

Apr. 18, 2007)

1511131 (N.D. Cal. filed

Sunnyvale, California

Zhen v. Yahoo!, Inc.,

2009 WL 1241004 (N.D.

Cal. filed Feb. 26, 2009)

Sunnyvale, California

App. 19

Zheng v. Yahoo, Inc.,

2008 WL 4056779 (N.D.

Cal. filed June 16, 2008)

Sunnyvale, California

—_——

Case Headquarters

Il. Cases with Only Foreign Companies

Benjamins v. British Ruilshlip, London

87 | European Airways, 572 Borough of

F. 2d 913 (2d Cir. 1978)

Hillingdon, UK.

Eastman Keaak Co. v.

Kavlin, 978 F. Supp.

1078 (S.D. Fla. 1997)

La Paz, Bolivia

Hereros ex rel. Riruako

v. Deutsche Afrika-

Linien Gmbit & Co.,

232 F. Appx. 90 (3d Cir.

2007)

Hamburg, Germany

App. 20

Hidalgo v. Siemens AG,

2011 WL 74581 (S.D.

Fla. filed Jan. 11, 2011)

Munich, Germany

Holocaust Victims of

Bank Theft v. Maygyar

Nemzeti Bank, No. 10-

1884, 2011 WL 1900340

(N.D. Dll. May 18, 2011)

Budapest, Hungary

Licea v. Curacao

Drydock Co., 584 F.

Supp. 2d 1355 (S.D. Fla

2008)

Curacao, Netherlands

Antilles

Linde v. Arab Bank,

PLC, 269 F.R.D. 186

(E.D.N.Y. 2010)

Amman, Jordan

Liu Bo Shan v. China

Const. Bank Corp., 421

Fed. Appx. 89 (2d Cir.

2011)

Beijing, People's

Republic of China

App. 21

Presbyterian Church of

Sudan v. Talisman

Energy, Inc., 582 F. 3d

244 (2d Cir. 2009)

Calgary, Alberta,

Canada

Sarei v. Rio Tinto, PLC,

Nos. 02-56256, 02-

56390, 09-56381, 2011

WL 5041927 (9th Cir.

Oct. 25, 2011)

London, UK

Wiwa v. Royal Dutch

Petroleum Co., 226 F.

3d 88 (2d Cir. 2000)

Nigeria

bam

oD Maes *s oF Sa, ee aioe

a o> = + ERE wee at:

> >> -”

== “at

Ahmed v. Dubai Islamic

Bank, 2008 WL

2935356 (S.D. Fla. filed

June 2, 2008)

Dubai, U.A.E.

&. 4

Bera v. Shell Petroleum

Development Company

of Nigeria Ltd., 2011

WL 5522680 (S.D.N.Y.

filed Nov. 14, 2011)

Nigeria

App. 22

100

Cooperhill Inv. Ltd. v.

Rep. of Seychelles, 2011

WL 601962 (S.D.N-Y.

filed Feb. 14, 2011)

Seychelles

101

Kaplan v. Al Jazeera,

2011 WL 2941526

(S.D.N.Y. filed July 18,

2011)

Doha, Qatar

102

Kiobel v. Royal Dutch

Petroleum Co., 642 F.

3d 268 (2d Cir. 2011)

The Hague,

Netherlands

103

Luu v. Int'l Inv. Trade

& Service Group, 2011

WL 1398984 (S.D. Tex.

filed Apr. 13, 2011)

Vietnam

104

Okpabi v. Royal Dutch

Shell, PLC, 2011 WL

5027193 (E.D. Mich.

Filed Oct. 18, 2011)

The Hague,

Netherlands

App. 23

105

Tymoshenko v. Firtash,

2011 WL 1560364

(S.D.N.Y. filed Apr. 26,

2011)

Zug, Switzerland

106

Victims of the

Hungarian Holocaust v.

Hungarian State

Railways, 2010 WL

560777 (N.D. Ill. filed

Feb. 9, 2010)

Budapest, Hungary

efurtocionion Camien

107

Aikpitanhi v. Iberia

Airlines of Spain, 553 F.

Supp. 2d 872 (E.D.

Mich. Mar. 31, 2008)

London, United

Kingdom

108

Anderman v. Federal

Rep. of Austria, 256 F.

Supp. 2d 1098 (C.D.

Cal. 2003)

Austria

109

Arndt v. UBS AG, 342

F. Supp. 2d 132

(E.D.N.Y. 2004)

Zurich and Basel,

Switzerland

App. 24

110

Chowdhury v. WorldTel

Bangladesh Holding,

Ltd., 588 F. Supp. 2d

375 (E.D.N.Y. 2008)

Bangladesh

lll

Azer., 349 F. Supp. 2d

736 (S.D.N.Y. 2004)

Daventree Ltd. v. Rep. of

Zurich, Switzerland

112

Tamam v. Fransabank

Sal, 677 F. Supp. 2d

720 (S.D.N.Y. 2010)

Beirut, Lebanon

113

Whiteman v. Fed. Rep.

of Austria, 2002 WL

34593773 (S.D.N.Y.

filed Nov. 12, 2002)

Austria

App. 25

No Corporate

Defendants

114

Abrams v. Societe

Nationale des Chemins

de Fer Francais, 175 F.

Supp. 2d 423 (E.D.N-Y.

2001)

Montparnasse,

France

Orkin v. Swiss

Confederation, No. 11-

1414, 2011 WL 4822343

(2d Cir. Oct. 12, 2011)

Switzerland

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