Amicus Curiae Brief — Jesner v. Arab Bank, PLC, 138 S. Ct. 52 (2017) (No. 16-499)

Sapreme Court, U.S

RECORD FULD

3 ware JUN 27 2017

i OFFICE OF THE CLEFIx |

No. 16-499

ATTN NNN" ___— _-— ———____)

In the Supreme Court of the Anited States

JOSEPH JESNER, ET AL., PETITIONERS

v.

ARAB BANK, PLC

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING NEITHER PARTY

EDWIN S, KNEEDLER

ounnel of Record

CHAD A. READLER

Acting Asxistant Attorney

General

HASHIM M. MoopPaAN

Deputy Assistant Attorney

General

ERIC J. FEIGUIN

Assistant to the Solicitor

General

DOUGLAS N. LETTER

SHARON SWINGLE

MELISSA N. PATTERSON

Ri C.V

a Legal ~~ af Washington viefa 20530-0001

Washington, D.C. 20520 (202) 514-2217 atl

‘a... - 47M...

QUESTION PRESENTED

Whether a corporation may be named as a defendant

in a federal common-law action brought under the Alien

Tort Statute, 28 U.S.C. 1350.

(I)

TABLE OF CONTENTS

Page

Interest of the United States........................cccecceecceeeeteneeeneees 1

ce 1

nasi erereceneinteitanienteiemientnndienianieltinnmnenianenesinn 5

Argument:

I. Acorporation can be a defendant in a federal

common-law action under the Alien Tort Statute

for the violation of a well-established

I cerrticiternnenencesteervenceemsecsewescesceeese 8

A. A federal common-law “civil action” may

name a corporation as a defendant......................«.+. 9

B. A “civil action” against a corporation under

the Alien Tort Statute may be premised on a

“tort in violation of the law of nations” ................. 12

C. A common-law action against a corporation

under the Alien Tort Statute for violation of

a well-established norm is consistent with

domestic nexus under Kiobel...................-...-0-0.0»- 25

B. Diplomatic and efficiency concerns warrant

direct consideration of threshold issues by

the court of appeals on remand .................-..--..-.... 30

SII isons cocesestcenditseeinesticiiaiinhinianiingadtibdiiameeapineibanipminaenaiati 33

(111)

IV

TABLE OF AUTHORITIES

Cases: Page

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) .....cce.ccesccssscsessesscesssesseeeeessneee 9,11

Arab Bank PLC v. Linde, 134 S. Ct. 2869 (2014)............... 30

Banco Nacional de Cuba v. Sabbatino,

ES 21

Beaston v. Farmers’ Bank,

ae 10

Chestnut Hill & Spring House Tpk. Co.

v. Rutter, 4 Serg. & Rawle 6 (Pa. 1818)..................... 10, 11

Cook County v. United States ex rel. Chandler,

ET LE 10

Doe I v. Nestle USA, Inc., 766 F.3d 1013

(9th Cir. 2014), cert. denied, 136 S. Ct. 798 (2016) .......... 18

F’. Hoffman-La Roche Lid. v. Empagran S.A.,

A 28

Flomo v. Firestone Natural Rubber Co.,

I 23

Gray v. Portland Bank,

3 Mass. (2 Tyng) 363 (1807) ..................ecccscersessseresenseseceeees 11

Harmony v. United States (The Malek Adhel),

NC 14, 15

Hartford Fire Ins. Co. v. California,

CE 27

Kadic v. KaradZié, 70 F.3d 232 (2d Cir. 1995),

cert. denied, 518 U.S. 1005 (1996) ............crsserserveeseseenees 20

Kiobel v. Royal Dutch Petroleum Co.:

Ee passim

621 F.3d 111 (2d Cir. 2010), aff’d on other

grounds, 133 S. Ct. 1659 (2013) ................ 3, 18, 19, 23

Cases—Continued: Page

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

(E.D.N.Y. 2010), appeal dismissed, 706 F.3d 92

(2d Cir. 2013), cert. denied, 134 S. Ct. 2869 (2014).......... 30

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ............ 20

Mayor of Lynn v. Turner,

(1774) 98 Eng. Rep. 980 (K.B.) ..............ccsccssscccssssssesseeeees 11

Mohamad v. Palestinian Auth.,

ET 9

Morrison v. National Austl. Bank Ltd.,

EET. TA 26, 28

Philadelphia & Reading R.R. v. Derby,

55 U.S. (14 How.) 468 (1858).........cccccssssscsessessssscensereesees 15

Philadelphia, Wilmington, & Balt. R.R.

v. Quigley, 62 U.S. (21 How.) 202 (1859) ..............cccccceeee 10

RJR Nabisco, Inc. v. European Comm..,

Ps Ce IED cteencenscnscccnessserssarserscccsreen 25, 26, 27, 28

Riddle v. Proprietors of Lock & Canals on

Merrimack River, 7 Mass. (6 Tyng) 168 (1810)............... 11

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).......... passim

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

(D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) ........ 20

Townsend v. Susquehannah Tpk. Road,

6 Johns. 90 (N.Y. Sup. Ct. 1810)...............-ccccscccsessscorssesees 11

United States v. Amedy,

24 U.S. (11 Wheat.) 392 (1826)..............ccccecereceeseeeeeeenseenens 10

United States v. Bormes, 568 U.S. 6 (2012) ...2........ccccccceeceeee 9

United States v. Prevezon Holdings, Ltd.,

No. 13-cv-6326, 2017 WL 1951142

fF 8 8 ee 27

United States vy. Zarrab, No. 15-cr-287,

2016 WL 6820737 (S.D.N.Y. Oct. 17, 2016) ...................... 27

Vi

Treaties and statutes: Page

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment, adopted Dec. 10, 1984,

S. Treaty Doc. No. 20, 100th Cong.,

2d Sess. (1988), 1465 U.N.T.S. 85.............ccccccec000 13, 14, 20

Convention on Combating Bribery of Foreign Public

Officials in International Business Transactions,

adopted Nov. 21, 1997, S. Treaty Doc. No. 43,

105th Cong., 2d Sess. (1998), 37 1.L.M. 1 ......cccccccceceseeeeees 24

Convention on the Prevention and Punishment of

the Crime of Genocide, adopted Dec. 9, 1948,

102 Stat. 3045, 78 U.N.T.S. 277 ........cccccseccccssessecerereeene 14, 20

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

| RENCE en ea 14, 20

Rome Statute of the International Criminal Court,

opened for signature July 17, 1998, 2187 U.N.T.S. 90.... 23

United Nations Convention Against Transnational

Organized Crime, adopted Nov. 15, 2000,

S. Treaty Doc. No. 16, 108th Cong.,

2d Sess. (2004), 2225 U.N.T.S. 209 ..........ccccccccceeecsencneeeeeeee 24

Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77 .-.cccccccccsesesees 8,11

Act of Apr. 30, 1790, ch. 9, 1 Stat. 112:

| IS 16

I SEPT ini cnrsntenersinsccetioememaneteendnnanninensiaiin 17

Sn I dieiricieteteestniienesemeommanndnantneapaeinannneiscianastit 16

Alien Tort Statute, 28 U.S.C. 1350 ...........ccccceeccseeeees passim

Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq. .............. 30

Torture Victim Protection Act of 1991,

Pub. L. No. 102-256, 106 Stat. 73 ....................--2...-0--sees0000 i)

Miscellaneous: Page

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo

v. Belgium), Judgment, 2002 I.C.J. 3 (Feb. 14)............... 22

M. Cherif Bassiouni, Crimes Against Humanity in

International Criminal Law (2d rev. ed. 1999).............. 24

Black’s Law Dictionary (10th ed. 2009) .............ccccccceeeeeeee 12

1 William Blackstone, Commentaries on the

Laws of Erglamd (1765) .........-.00cceeceeceesserseereerseeeeeeees 10, 15

William R. Casto, The Federal Courts’ Protective

Jurisdiction Over Torts Committed in Violation

of the Law of Nations, 18 Conn. L. Rev. 467 (1986)........ 16

2 T. Cunningham, A New and Complete Law-

Pc ticciscemnseneesictmenatesnssemesmnenmeencessemenssreces 12

Joseph P. Griffin, Extraterritoriality in U.S. and EU

Antitrust Enforcement, 67 Antitrust L.J. 159 (1999) ..... 28

Louis Henkin, Foreign Affairs and the United States

Constitution (2d ed. 1996) .........ccccccecceeseeseeceeesreeeesenernnees 18

1 Stewart Kyd, A Treatise on the Law of

I icnrtccteecicosesececndeccnsccsssentensessenetocensnsscesees 10

Oe aiietrccsccecesccscssastecssnsscemucsssecconnienatis 11

BB ap, BAT Ge, BD GIB GD cccccccecccescsacesocesscccsossscessccsccescceses 12

Anita Ramasastry & Robert C. Thompson,

Commerce, Crime and Conflict: Legal Remedies

for Private Sector Liability for Grave Breaches

of International Law—A Survey of Sixteen

Countries—Executive Summary (2006),

https://www.biicl.org/files/4364_536.pdf.................c000000 24

Remarks by President Trump and His Majesty King

Abdullah II of Jordan in Joint Press Conference

(Apr. 5, 2017), https-//www.whitehouse.gov/the-

press-office/2017/04/ 05/remarks-president-trump-

and-his-majesty-king-abdullah-ii-jordan-joint ................ 31

1 Owen Ruffhead & J. Morgan, A New Law-

IIE TIUNIIichintionssiiienanictenbocumensmmicteabetenmees 12

Vili

Miscellaneous—Continued: Page

2 St. George Tucker, Blackstone’s Commentaries:

with Notes of Reference, to the Constitution and

Laws, of the Federal Government of the United

States; and of the Commonwealth of Virginia

10 United Nations War Crimes Comm’n,

Law Reports of Trials of War Criminals:

The 1.G. Farben and Krupp Trials (1949) ............c.cc0000+ 13

1 Restatement (Third) of Foreign Relations Law

FUN iireiiiateivcacametnnesinaiaisininnstantinanedstiatladanncinbimanbenireptavineces 13, 22

Statement on the Rome Treaty on the International

Criminal Court, 3 Pub. Papers 2816 (Dec. 31, 2000)....... 23

Jn the Supreme Court of the Gnited States

No. 16-499

JOSEPH JESNER, ET AL., PETITIONERS

Vv.

ARAB BANK, PLC

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING NEITHER PARTY

INTEREST OF THE UNITED STATES

This case concerns the scope of claims that may be

brought in a federal common-law action under the Alien

Tort Statute (ATS), 28 U.S.C. 1350. The United States

has a substantial interest in the proper application of

the ATS because actions under the ATS can have impli-

cations for the Nation’s foreign and commercial rela-

tions and for the enforcement of standards of conduct

under international law.

STATEMENT

1. Petitioners are aliens who were (or represent) vic-

tims of terrorist activities in Israel, Gaza, and the West

Bank. Pet. App. la, 4a. They filed actions in the United

States District Court for the Eastern District of New

York seeking damages from respondent, a multina-

tional bank headquartered in Jordan. /bid. Their com-

plaints invoked the Alien Tort Statute, 28 U.S.C. 1350,

(1)

2

which provides that “(tjhe district courts shall have

original jurisdiction of any civil action by an alien for a

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

a treaty of the United States.” See Pet. App. 5a.

This Court has interpreted the ATS to permit “liti-

gation of a narrow set of common law actions derived

from the law of nations.” Sosa v. Alvarez-Machain,

542 U.S. 692, 721 (2004). Such common-law claims are

available “only for alleged violations of international

law norms that are specific, universal, and obligatory.”

Kiobel v. Royal Dutch Petroleum Co., 133 8. Ct. 1659,

1665 (2013) (citations and internal quotation marks

omitted); see Sosa, 542 U.S. at 732. Any such claim

must also “touch and concern” the United States with

“sufficient force to displace the presumption against ex-

traterritorial application” of U.S. law. Kiobel, 133 S. Ct.

at 1669.

Petitioners here contend that respondent violated

well-established international-law standards of conduct

by “financing and facilitating the activities of organiza-

tions that committed the attacks that caused [their] in-

juries.” Pet. App. 4a. According to petitioners, the ter-

rorist organizations “arranged those attacks in part by

promising, and later delivering, financial payments to

the relatives of ‘martyrs’ who were killed—along with

those who were injured or captured—while perpetrat-

ing the attacks.” /d. at 9a. Petitioners allege that re-

spondent maintained bank accounts that it knew to be

collecting donations that would fund the terrorist at-

tacks. /d. at 10a-lla. Petitioners also allege that re-

spondent “played an active role in identifying the fami-

lies of ‘martyrs,’” “created individual bank accounts for

th[ ose] beneficiaries,” and “facilitated transfers of * * *

funds into those accounts, often routing the transfers

3

through its New York branch in order to convert Saudi

currency into Israeli currency.” /d. at 11a.

2. After several years of pretrial proceedings, the

district court dismissed petitioners’ suits on the ground

that the Second Circuit’s decision in Kiobel v. Royal

Dutch Petroleum Co., 621 F.3d 111 (2010), aff’d on other

grounds, 133 S. Ct. 1659 (2013), foreclosed “claims

against corporations under the ATS.” Pet. App. 6a (ci-

tation omitted). In Kiobel, the Second Circuit had

viewed “international law,” rather than “domestic law,”

to control whether a corporation may be a defendant in

a federal common-law action under the ATS. 621 F.3d

at 125; see id. at 125-131. It had held that no matter

what a corporation or its agent might do, a claim would

not be available under the ATS because “imposing lia-

bility on corporations for violations of customary inter-

national law has not attained a discernible, much less

universal, acceptance” in the international community.

Id. at 145; see id. at 131-145.

No other circuit that has addressed the corporate-

defendant issue has imposed such a bar, see Pet. App.

24a-25a, and this Court granted certiorari in Kiobel

to review the Second Circuit’s creation of one, see

133 S. Ct. at 1668. But the Court ultimately affirmed

the Second Circuit’s judgment on the alternative ground

that the Kiobel plaintiffs’ claims did not touch and con-

cern the United States with sufficient force to support

a claim under the ATS. /bid. The district court here, in

dismissing this case, believed that “[nJothing in [this]

Court’s affirmance [in Kiobel] undercuts the authority

of the Second Circuit’s decision” in that case. Pet. App.

7a (citation omitted).

3. The court of appeals affirmed. Pet. App. 1a-33a.

The panel explained that it would apply the corporate-

4

defendant bar even though this Court’s decision in

Kiobel had “cast a shadow on” that bar “in several

ways.” /d. at 22a. The panel recognized, for example,

that this Court’s description of actions under the ATS

as arising “‘under federal common law,’” or “‘under U.S.

law,’” “appears to reinforce” a construction of the ATS

as “leaving domestic law to govern the available remedy

and, presumably, the nature of the party against whom

it may be obtained.” Jd. at 22a, 23a (quoting Kiobel, 133

S. Ct. at 1663, 1666) (emphasis omitted). But because

circuit precedent on the subject had not been “over-

ruled,” the panel elected to adhere to it. /d. at 26a.

The panel rested its judgment entirely on the corpo-

rate-defendant bar and expressly declined to address

whether petitioners’ claims were subject to dismissal on

extraterritoriality grounds. Pet. App. 27a-29a. Both

parties had briefed the extraterritoriality issue, see

Resp. C.A. Br. 29-54; Pet. C.A. Reply Br. 4-19; both par-

ties had represented to the court that the record was

sufficient to decide it, C.A. Tr. 3; Resp. C.A. Br. 29; and

both parties had urged the court to decide it, C.A. Tr. 2;

Resp. C.A. Br. 29. The panel nevertheless reasoned

that the issue “was not the focus of either the district

court’s decision or the briefing on appeal” and deemed

it “unwise to decide the difficult and sensitive issue of

whether the clearing of foreign dollar-denominated

payments through a branch in New York could, under

these circumstances, displace the presumption against

the extraterritorial application of the ATS.” Pet. App.

28a.

4. Following a poll initiated by the panel, the full

court denied rehearing en banc. Pet. App. 34a-63a.

The court was divided over the correctness of its

corporate-defendant bar. Compare Pet. App. 43a-48a

5

(Cabranes, J., concurring in the denial of rehearing en

banc), with id. at 49a-58a (Pooler, J., dissenting from

the denial of rehearing en banc). Judge Jacobs, joined

by three other judges, reasoned that, even without the

corporate-defendant bar, this case would “straightfor-

wardly” be subject to dismissal on extraterritoriality

grounds. /d. at 38a; see id. at 36a-43a. He observed

that the “only contact with the United States mentioned

in the [panel] opinion is that terrorist groups used

branches of [respondent] in a score of countries (includ-

ing a single U.S. branch, in Manhattan) for, among

other ordinary transactions, the conversion of funds

from one currency to another.” /d. at 39a. And he de-

scribed the U.S.-based transactions as the “kind of

transaction that can be done at an automated airport ki-

osk.” Jd. at 40a n.1. Judge Chin, joined by one other

judge, defended the panel’s decision not to address ex-

traterritoriality. Jd. at 59a-63a (Chin, J., dissenting

from the denial of rehearing en banc).

SUMMARY OF ARGUMENT

This Court should vacate the decision below, which

rests on the mistaken premise that a federal common-

law claim under the ATS may never be brought against

a corporation. The particular claims in this case, how-

ever, present significant extraterritoriality questions

that warrant direct consideration by the court of ap-

peals on remand.

I. The court of appeals erred in holding that a cor-

poration can never be subject to a “civil action” for a

“tort * * * in violation of the law of nations,” 28 U.S.C.

1350. A “civil action” under the ATS is a claim defined

by federal common law, and the common law has long

recognized corporations as proper defendants in tort

suits. A “tort * * * in violation of the law of nations” is

6

a wrong done in contravention of specific and universal

international-law standards, which can apply to the ac-

tions of either a corporation or an individual whom the

common law would recognize to be acting on the corpo-

ration’s behalf. The ATS was enacted to ensure a pri-

vate damages remedy for incidents with the potential

for serious diplomatic consequences, and Congress had

no good reason to limit the set of possible defendants in

such actions to potentially judgment-proof individuals.

The court of appeals misconstrued this Court’s

decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004),

to require a specific and universal international-law

standard of corporate liability as a prerequisite for a

claim against a corporation under the ATS. Sosa re-

quires a claim under the ATS to be based on a well-

established international-law standard of conduct, not a

well-established international-law standard of liability.

When a well-established standard of conduct is violated,

which can potentially occur as the result of either indi-

vidual or corporate behavior, international law gives

each nation substantial discretion on questions of enforce-

ment within its own jurisdiction. While international

law is one of the factors a district court should consider

in determining whether to recognize a common-law

cause of action under the ATS, nothing in international

law discountenances civil claims against corporations.

II. Although respondent’s corporate status does not

justify dismissal of petitioners’ claims, dismissal may be

warranted, in whole or in part, on other grounds. In

particula., respondent has raised a serious question

concerning whether petitioners’ claims have a sufficient

connection to the United States to satisfy the extrater-

ritoriality concerns recognized in this Court’s decision

in Kiobel v. Royal Dutch Petroleum Co., 133 8. Ct. 1659

7

(2013). Petitioners’ claims involve foreign parties and

seek damages arising out of the actions of foreign ter-

rorist organizations on foreign soil. The only domestic

connection identified by the court of appeals is the al-

leged routing of dollar-denominated foreign transac-

tions through respondent’s New York branch. Al-

though automated clearance of dollar-denominated

transactions would be sufficient to support enforcement

of some federal statutes, it would not generally be suf-

ficient in isolation to support recognition of a federal

common-law claim under the ATS. The function of the

ATS is to ensure private damages remedies in circum-

stances where other nations might hold the United

States accountable if it did not provide a remedy. The

dollar’s prevalence as the currency of choice for unlaw-

ful actors does not in itself present such a circumstance.

The extraterritoriality issue was briefed and pre-

sented for decision in the court of appeals, and the court

of appeals should address it directly upon remand. The

unwarranted continuation of this case would be detri-

mental to the foreign-policy interests of the United

States. A trial in this case would be subject to a preex-

isting sanctions order that Jordan has declared to be an

affront to its sovereignty and that would seriously hin-

der respondent’s ability to defend itself against the im-

mense damages claims at issue. Delaying consideration

of potentially dispositive threshold issues and allowing

suit to proceed against a key Jordanian financial insti-

tution would harm the United States’ relationships with

Jordan and other important allies in the fight against

terrorism. I[t would also have consequences for the

United States’ ability to rely on the cooperation of re-

spondent, which has cooperated with the United States

to help prevent terrorist financing.

8

ARGUMENT

Enacted by the First Congress in 1789, the Alien

Tort Statute, 28 U.S.C. 1350, grants federal district

courts “original jurisdiction of any civil action by an

alien for a tort only, committed in violation of the law of

nations or a treaty of the United States.” See Act of

Sept. 24, 1789 (1789 Judiciary Act), ch. 20, § 9, 1 Stat. 77

(providing that federal district courts “shall * * * have

cognizance * * * of all causes where an alien sues for a

tort only in violation of the law of nations”). In Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004), this Court

construed the ATS to permit district courts, in appro-

priate circumstances, to “recognize private claims

under federal common law” for the violation of suffi-

ciently universal and specific international-law stand-

ards of conduct. /d. at 732. Claims under federal com-

mon law traditionally include claims against corpora-

tions, and respondent’s corporate status is therefore not

a basis for dismissing petitioners’ claims here. Those

claims, however, may be subject to dismissal on re-

mand, in whole or in part, on the alternative ground that

they fail to satisfy the extraterritoriality standard iden-

tified by this Court in Kiobel v. Royal Dutch Petroleum

Co., 133 S. Ct. 1659 (2013).

I. A CORPORATION CAN BE A DEFENDANT IN A

FEDERAL COMMON-LAW ACTION UNDER THE

ALIEN TORT STATUTE FOR THE VIOLATION OF A

WELL-ESTABLISHED INTERNATIONAL-LAW NORM

The ATS permits a federal district court, in appro-

priate circumstances, to hear a “civil action” for a “tort

* * * in violation of the law of nations.” 28 U.S.C. 1350.

A corporation is capable of being named as a defendant

in a common-law “civil action,” and such an action may

involve a “tort,” including a “tort * ** in violation of

9

the law of nations” committed by the corporation or its

agent. A corporation can therefore be a proper defend-

ant in a civil action based on an otherwise-valid claim

under the ATS.

A. A Federal Common-Law “Civil Action” May Name A

Corporation As A Defendant

A “civil action” under the ATS, 28 U.S.C. 1350, arises

under federal common law. Since the time of the ATS’s

enactment, the common law has authorized actions

against corporations.

1. Aclaim under the ATS is a “cause of action under

U.S. law to enforce a norm of international law.” Kiobel,

133 S. Ct. at 1666. The task of “defining a cause of

action” includes, inter alia, “specifying who may be lia-

ble,” id. at 1665—~.e., the set of permissible defendants.

See, e.g., United States v. Bormes, 568 U.S. 6, 15 (2012)

(describing definition of the defendant class as part of

the statute’s “remedial scheme”).

For some types of actions based on international-law

violations, Congress has directly spoken to that ques-

tion. The Torture Victim Protection Act of 1991 allows

damages suits for certain acts of torture and extrajudi-

cial killing only against an “individual”—+.e., a natural

person. Pub. L. No. 102-256, 106 Stat. 73; see Mohamad

v. Palestinian Auth., 566 U.S. 449, 451-452 (2012); see

also Kiobel, 133 S. Ct. at 1665.

The text of the ATS, in contrast, “does not distin-

guish among classes of defendants.” Argentine Republic

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

(1989). Rather, in enacting the ATS, the First Congress

understood that “the common law would provide a cause

of action” in appropriate cases. Sosa, 542 U.S. at 724,

732; see Kiobel, 133 S. Ct. at 1663.

10

2. It has long been “unquestionable” under domestic

law that corporations are “deemed persons” for “civil

purposes” and can be held civilly liable. United States

v. Amedy, 24 U.S. (11 Wheat.) 392, 412 (1826); see

Beaston v. Farmers’ Bank, 37 U.S. (12 Pet.) 102, 134

(1838). Both at the time of the ATS’s enactment and

now, corporations have been capable of “suing and be-

ing sued.” 1 Stewart Kyd, A Treatise on the Law of

Corporations 13 (1793); see 1 William Blackstone,

Commentaries on the Laws of England 463 (1765)

(Blackstone) (corporations may “sue or be sued ** *

and do all other acts as natural persons may”); 2 St.

George Tucker, Blackstone’s Commentaries: with

Notes of Reference, to the Constitution and Laws, of the

Federal Government of the United States; and of the

Commonwealth of Virginia 475 (1803) (Tucker) (same);

see also Cook County v. United States ex rel. Chandler,

5388 U.S. 119, 125 (2003) (detailing “common under-

standing” that corporations have long had the “capacity

to sue and be sued”).

As particularly relevant here, corporations have long

been capable of being sued in tort. “At a very early pe-

riod, it was decided in Great Britain, as well as in the

United States, that actions might be maintained against

corporations for torts; and instances may be found, in

the judicial annals of both countries, of suits for torts

arising from the acts of their agents, of nearly every va-

riety.” Philadelphia, Wilmington, & Balt. R.R. v.

Quigley, 62 U.S. (21 How.) 202, 210 (1859); see Chestnut

Hill & Spring House Tpk. Co. v. Rutter, 4 Serg. &

Rawle 6, 17 (Pa. 1818) (“[F Jrom the earliest times to the

present, corporations have been held liable for torts.”).

In 1774, for example, Lord Mansfield’s opinion for the

Court of King’s Bench held that a corporation could be

11

held liable in damages for failing to repair a creek that

its actions had rendered unnavigable. See Mayor of

Lynn v. Turner, (1774) 98 Eng. Rep. 980. Early Amer-

ican courts followed suit. See, e.g., Chestnut Hill, 4

Serg. & Rawle at 17; Riddle v. Proprietors of Locks &

Canals on Merrimack River, 7 Mass. (6 Tyng) 168

(1810); Gray v. Portland Bank, 3 Mass. (2 Tyng) 363

(1807); Townsend v. Susquehannah Tpk. Road, 6 Johns.

90 (N.Y. Sup. Ct. 1810).

3. Arule excluding corporations as defendants in ac-

tions under the ATS would not only be inconsistent with

the common law, but would also be in considerable ten-

sion with the understanding that corporations can be

party to such actions as plaintiffs. In 1795, Attorney

General William Bradford addressed a situation in

which “U.S. citizens joined a French privateer fleet and

attacked and plundered the British colony of Sierra Le-

one.” Kiobel, 133 S. Ct. at 1667. “In response to a pro-

test from the British Ambassador,” Bradford expressed

the view that “‘there can be no doubt that the company

or individuals who have been injured * * * have a rem-

edy by a civil suit’” under the ATS. /d. at 1668 (quoting

1 Op. Att’y Gen. 57, 59 (1795)) (emphasis added); see

Sosa, 542 U.S. at 721.

If the set of potential plaintiffs under the ATS—

which is textually limited to “alien[s],” 1789 Judiciary

Act § 9, 1 Stat. 77—-was understood to include corpora-

tions, then the set of potential defendants—which is not

textually limited at all, see Argentine Republic, 488 U.S.

at 488—would naturally have been as well. Indeed, a

later Attorney General, opining on a boundary dispute

over the diversion of waters from the Rio Grande,

stated that citizens of Mexico would have a claim under

12

the ATS against the “Irrigation Company.” 26 Op. Att’y

Gen. 250, 251 (1907).

B. A “Civil Action” Against A Corporation Under The

Alien Tort Statute May Be Premised On A “Tort In

Violation Of The Law Of Nations”

A “tort *** in violation of the law of nations,”

28 U.S.C. 1350, can provide a valid basis for an action

against a corporate defendant under the ATS. Such a

tort is a type of injury or wrong. The phrase does not

impose a limitation on who may be held responsible for

the wrongdoing. And a common-law claim against a cor-

poration may involve such a tort.

1. Both in 1789 and now, the term “tort” has been

defined as an “injury or wrong.” See, e.g., 2 T. Cunning-

ham, A New and Complete Law-Dictionary (1765); see,

e.g., 1 Owen Ruffhead & J. Morgan, A New Law-

Dictionary (9th ed. 1772); Black’s Law Dictionary 1717

(10th ed. 2014). And the modifying phrase “in violation

of the law of nations,” 28 U.S.C. 1350, refers solely to

the type of conduct at issue in the tort.

Under Sosa, a tort is “in violation of the law of

nations,” 28 U.S.C. 1350, for purposes of the ATS when

a certain kind of international-law “norm”—ie., a

particular kind of “standard for right or wrong behav-

ior,” Black’s Law Dictionary 1223—is transgressed.

See Sosa, 542 U.S. at 725, 728-732, 738; see also Kiobel,

133 S. Ct. at 1664-1666, 1668. Sosa explained that, in

enacting the ATS, Congress “understood that the dis-

trict courts would recognize * ** torts corresponding

to *** three primary offenses: violation of safe con-

ducts, infringement of the rights of ambassadors, and

piracy.” Sosa, 542 U.S. at 724; see id. at 715, 720. Sosa

further explained that a modern court might construe

13

the relevant “law of nations,” 28 U.S.C. 1350, also to in-

clude a standard of conduct defined by “present-day”

international law. Sosa, 542 U.S. at 725. Any such

standard, however, must be a “norm of international

character accepted by the civilized world and defined

with a specificity comparable to the features of the 18th-

century paradigms.” [bid.

2. Both corporations and their agents are capable of

committing a “tort *** in violation of the law of

nations,” 28 U.S.C. 1350. A tort by either type of actor

could thus support a federal common-law cause of action

against a corporation under the ATS.

No principle of international law precludes the exist-

ence of a norm for the conduct of private actors that

applies to the conduct of corporations. “In the past it

was sometimes assumed that individuals and corpora-

tions, companies or other juridical persons created by

the laws of a state, were not persons under (or subjects

of) international law. In principle, however, individuals

and private juridical entities can have any status, capac-

ity, rights, or duties given them by international law or

agreement, and increasingly individuals and private en-

tities have been accorded such aspects of personality in

varying measures.” 1 Restatement (Third) of Foreign

Relations Law pt. II intro. note (1986) (footnote omit-

ted). A U.S. Military Tribunal at Nuremberg, for exam-

ple, observed that certain action by “private individuals,

including juristic persons,” would be “in violation of in-

ternational law.” 10 United Nations War Crimes Com-

mission, Law Reports of Trials of War Criminals: The

1.G. Farben and Krupp Trials 44 (1949).

Other international-law norms likewise neither re-

quire nor necessarily contemplate a distinction between

natural and juridical actors. See, e.g., Convention Against

14

Torture and Other Cruel, Inhuman or Degrading Treat-

ment or Punishment (Torture Convention), art. 1,

adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th

Cong., 2d Sess. 1, 19 (1988), 1465 U.N.T-.S. 85, 113, 114

(defining “torture” to include “any act by which severe

pain or suffering * * * is intentionally inflicted on a per-

son” for certain reasons, “by or at the instigation of or

with the consent or acquiescence of a public official or

other person acting in an official capacity”) (emphasis

added); Convention on the Prevention and Punishment

of the Crime of Genocide (Genocide Convention), art. II,

adopted Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277,

280 (defining genocide to include “any of the following

acts” committed with intent to destroy a group, without

regard to the type of perpetrator); Geneva Convention

Relative to the Treatment of Prisoners of War, art. 3,

Aug. 12, 1949, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 136

(Common Article 3) (prohibiting “the following acts,”

without regard to the type of perpetrator).

A distinction between natural and juridical actors for

purposes of common-law actions under the ATS would

also be at odds with the longstanding treatment of com-

mon-law actions based on piracy, “a violation of the law

of nations familiar to the Congress that enacted the

ATS,” Kiobel, 133 S. Ct. at 1667. It was historically “not

an uncommon course in the admiralty, acting under the

law of nations,” including in piracy cases, “to treat the

vessel in which or by which, or by the master or crew

thereof, a wrong or offence has been done as the of-

fender, without any regard whatsoever to the personal

misconduct or responsibility of the owner thereof.”

Harmony v. United States (The Malek Adhel), 43 U.S.

(2 How.) 210, 233 (1844). “[T]his [wa]s done from the

15

necessity of the case, as the only adequate means of sup-

pressing the offence or wrong, or insuring an indemnity

to the injured party.” /bid. The principle that a juridi-

cal person (a ship) may be held liable for piracy in vio-

lation of the law of nations, and the logic underlying that

principle, cannot readily be squared with a categorical

bar against juridical corporate defendants under the

ATS.

That is particularly so because vicarious liability for

corporations is itself a well-pedigreed feature of the

common law. As Blackstone explained, “the master is

answerable for the act of his servant, if done by his com-

mand, either expressly given, or implied.” Blackstone

417; see Tucker 429-430 (same). That “maxim of ‘re-

spondeat superior’” has long applied to corporate and

noncorporate defendants alike. Philadelphia & Read-

ing R.R. v. Derby, 55 U.S. (14 How.) 468, 487 (1853); see

id. at 485-487 (applying principle to railroad company).

Accordingly, even if a particular norm were not under-

stood to apply directly to the actions of a corporation as

such, a corporation could still be named as a defendant

in acommon-law action based on a violation of that norm

by a natural person acting as the corporation’s agent or

employee.

3. The history of the ATS reinforces that it permits

courts, in appropriate cases, to recognize common-law

claims against corporations for law-of-nations viola-

tions.

The First Congress enacted the ATS following the

well-documented inability of the Continental Congress

to provide redress for law-of-nations and treaty viola-

tions for which the United States might be held account-

able. See Sosa, 542 U.S. at 715-717. That deficiency

16

was exposed by events like the “so-called Marbois inci-

dent of May 1784, in which a French adventurer, De

Longchamps, verbally and physically assaulted the

Secretary of the French Leg{ation] in Philadelphia.”

Id. at 716-717; see William R. Casto, The Federal

Courts’ Protective Jurisdiction Over Torts Committed

In Violation of the Law of Nations, 18 Conn. L. Rev. 467,

491-492 & n.136 (1986) (Casto); see also Kiobel, 133 S.

Ct. 1666. “The assault led the French Minister Plenipo-

tentiary to lodge a formal protest with the Continental

Congress and threaten to leave the country unless an

adequate remedy were provided.” Kiobel, 133 S. Ct.

1666. A “reprise of the Marbois affair,” Sosa, 542 U.S.

at 717, occurred in 1787, during the Constitutional Con-

vention, when a New York City constable entered the

residence of a Dutch diplomat with a warrant for the ar-

rest of one of his domestic servants. Casto 494; see Ki-

obel, 133 S. Ct. at 1666-1667. Again, the “national gov-

ernment was powerless to act.” Casto 494.

The United States was “embarrassed by its potential

inability to provide judicial relief to foreign officials in-

jured” within its borders. Kiobel, 133 S. Ct. at 1668.

“Such offenses against ambassadors violated the law of

nations, ‘and if not adequately redressed could rise to

an issue of war.’” /bid. (quoting Sosa, 542 U.S. at 715).

The First Congress addressed that concern both by

criminalizing certain law-of-nations violations (piracy,

violation of safe conducts, and infringements on the

rights of ambassadors), see Act of Apr. 30, 1790 (1790

Act), ch. 9, §§ 8, 28, 1 Stat. 113-114, 118, and by provid-

ing jurisdiction under the ATS over actions by aliens

seeking civil remedies. Not only a public remedy, but

also “a private remedy,” was “thought necessary for

diplomatic offenses under the law of nations,” Sosa,

17

542 U.S. at 724, and “[t]he ATS ensured that the United

States could provide a forum for adjudicating such inci-

dents,” Kiobel, 133 S. Ct. at 1668.

In undertaking to provide that forum, Congress did

not have a good reason to distinguish between foreign

entanglements for which natural persons were respon-

sible and foreign entanglements for which organiza-

tions of natural persons, such as corporations, were re-

sponsible. Nor did Congress have a good reason to al-

low a suit to proceed only against a potentially judg-

ment-proof individual actor while barring recovery

against the corporation on whose behalf he was acting.

Take, for example, the 1787 incident involving the

Dutch diplomat. If entry were made into his residence

by the agent of a private process-service company for

the purpose of serving a summons, the international af-

front could perhaps best be vindicated (and compensa-

tion paid) through a private suit against that company.

Cf. 1790 Act §§ 25-26, 1 Stat. 117-118 (providing that

“any writ or process” that is “sued forth or prosecuted

by any person” against an ambassador or “domestic

servant” of an ambassador shall be punished criminally

and would constitute a violation of “the laws of na-

tions”).

C. A Common-Law Action Against A Corporation Under The

Alien Tort Statute For Violation Of A Well-Established

Norm Is Consistent With International Law

The ATS permits a common-law “civil action”

against a corporate defendant for a qualifying “tort

.* * * in violation of the law of nations,” 28 U.S.C. 1350,

irrespective of whether international law would itself

provide a remedy against a corporation in such circum-

stances. An individual nation’s recognition of such a

claim accords with international law, which establishes

18

substantive standards of conduct but generally leaves

each nation with substantial discretion as to the means

of enforcement within its own jurisdiction. See Doe / v.

Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014)

(“[I]nternational law defines norms and determines

their scope, but delegates to domestic law the task of

determining the civil consequences of any given viola-

tion of these norms.”), cert. denied, 136 S. Ct. 798

(2016); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d

111, 152 (2d Cir. 2010) (Leval, J., concurring only in the

judgment) (“[I]nternational law says little or nothing

about how those norms should be enforced. It leaves

the manner of enforcement * * * almost entirely to indi-

vidual nations.”), aff’d on other grounds, 133 S. Ct. 1659

(2013); Louis Henkin, Foreign Affairs and the United

States Constitution 245 (2d ed. 1996) (“International

law itself * * * does not require any particular reaction

to violations of law.”)

1. In creating its corporate-defendant bar, the court

of appeals construed the ATS to “leave[] the question of

the nature and scope of liability—who is liable for

what—to customary international law.” Kiobel, 621 F.3d

at 122. It thus surveyed whether “corporate liability for

a ‘violation of the law of nations’ is a norm ‘accepted by

the civilized world and defined with a specificity.’” Jd. at

130 (citations omitted). That inquiry was misconceived.

The phrase “of the law of nations” in the ATS

modifies “violation,” not “civil action.” 28 U.S.C. 1350.

The “norm” analysis under Sosa thus focuses on

whether the international community specifically and

universally condemns the underlying conduct, not

whether the international community specifically and

universally imposes civil liability. See, e.g., Sosa,

19

542 U.S. at 738 (concluding that particular “illegal de-

tention * * * violate[d] no norm of customary interna-

tional law”) (emphasis added); see also, e.g., Kiobel,

133 S. Ct. at 1665 (describing claims under the ATS as

premised on “alleged violations of international law

norms”); Sosa, 542 U.S. at 732 (favorably citing descrip-

tion of ATS as limited to “heinous actions” that “vio-

late[] definable, universal, and obligatory norms”) (cita-

tion omitted; emphasis added). “The question under

Sosa is not whether a federal court has jurisdiction to

entertain a cause of action provided by foreign or even

international law.” Kiobel, 133 S. Ct. at 1666. It is “in-

stead whether the court has authority to recognize a

cause of action under U.S. law to enforce a norm of in-

ternational law.” bid. (emphasis added); see, e.g., id. at

1663 (citing Sosa, 542 U.S. at 714, 724).

The court of appeals’ confusion stemmed in large

part from its misreading of footnote 20 in the Sosa opin-

ion. See, e.g., Kiobel, 621 F.3d at 127; see also Pet. App.

52a-54a (Pooler, J., dissenting from the denial of re-

hearing en banc). In that footnote, this Court explained

that a “consideration” that is “related” to “the determi-

nation whether a norm is sufficiently definite to support

a cause of action” is “whether international law extends

the scope of liability for a violation of a given norm to

the perpetrator being sued, if the defendant is a private

actor such as a corporation or individual.” Sosa, 542 U.S.

at 732 & n.20. That footnote references international

law’s state-action doctrine, under which “the distinction

between conduct that does and conduct that does not vi-

‘olate the law of nations can turn on whether the conduct

is done by or on behalf of a State or by a private actor

independently of a State.” Kiobel, 621 F.3d at 177

(Leval, J., concurring only in the judgment). Under the

20

Torture Convention, for example, conduct qualifies as

“torture,” and thus violates the international-law norm

against “torture,” only when done “by or at the instiga-

tion or with the consent or acquiescence of a public offi-

cial or other person acting in an official capacity.”

Torture Convention art. 1, S. Treaty Doc. No. 20, at 19;

1465 U.N.T.S. 114; compare, e.g., Genocide Convention

art. I1, 102 Stat. 3045, 78 U.N.T.S. 280 (no requirement

of state involvement); Common Article 3, 6 U.S.T. 3318,

75 U.N.T.S. 136 (same). Such a distinction between

state and private action in international law can be anal-

ogized to the similar distinction in domestic constitu-

tional law, under which a private party is subject to con-

stitutional norms only when it can “fairly be said to be

a state actor,” Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982).

The state-action footnote in Sosa does not support

transposition of the Sosa requirements of specificity

and universality from the question of conduct to the

question of corporate liability. Although the footnote

uses the phrase “scope of liability” to describe the state-

action inquiry, it subsequently clarifies through exam-

ples that the inquiry turns on the existence of a “suffi-

cient consensus” that particular conduct—e.g., “tor-

ture” or “genocide”—“violates international law” when

undertaken “by private actors.” Sosa, 542 U.S. at 732

n.20; see ibid. (discussing Kadic v. Karadzié, 70 F.3d

232, 239-241 (2d Cir. 1995), cert. denied, 518 U.S. 1005

(1996), and Tel-Oren v. Libyan Arab Republic, 726 F.2d

774, 791-795 (D.C. Cir. 1984) (Edwards, J., concurring),

cert. denied, 470 U.S. 1003 (1985)). Reliance on the foot-

note to support a distinction between natural and cor-

porate defendants is particularly misplaced in light of

its reference to “a private actor such as a corporation

21

or individual,” which expressly affiliates corporations

and natural persons for ATS purposes. /bid. (emphasis

added).

Respondent defends the court of appeals’ approach

on the alternative ground that “[ujnder normal choice-

of-law rules, the types of defendants who may be held

liable for violating a legal rule is a question of substance,

not procedure.” Br. in Opp. 29 (emphasis omitted). But

the distinction drawn by the ATS is not between sub-

stance and procedure; it is between the “civil action”

(which is defined by federal common law) and the un-

derlying “violation of the law of nations” (which is de-

fined by international law). 28 U.S.C. 1350; see Kiobel,

133 S. Ct. at 1665-1666. As this Court has explzined,

“identifying” an “international law norm|] that [is} spe-

cific, universal, and obligatory *** is only the begin-

ning of defining a cause of action,” which encompasses

additional decisions such as “specifying who may be lia-

ble.” Kiobel, 133 S. Ct. at 1665 (citations and internal

quotation marks omitted). The application of domestic

law to those decisions may result in a cause of action

either narrower or broader in certain respects than it

might be if international law controlled. See ibid. It

also gives federal courts the tools—and the obligation—

to apply uniquely domestic considerations in determin-

ing whether a claim against any kind of defendant is

warranted in the circumstances of a particular case.

2. Although international law does not control na-

tions’ domestic means of enforcing international-law

norms within its jurisdiction, it may nevertheless be rel-

‘evant to enforcement questions. Cf. Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (explaining

that although “the public law of nations can hardly dic-

tate to a country which is in theory wronged how to

22

treat that wrong within its domestic borders,” it is, “of

course, true that United States courts apply interna-

tional law as a part of our own in appropriate circum-

stances”). There are, for example, internationally ac-

cepted rules on jurisdiction and immunities. See, ¢.g.,

1 Restatement (Third) of Foreign Relations Law §§ 421,

423 (1986) (international law on jurisdiction to adjudi-

cate); id. §§ 451-456 (international law on foreign sover-

eign immunity); Arrest Warrant of 11 April 2000 (Dem.

Rep. Congo v. Belgium), Judgment, I.C.J. 3, 20-21 (Feb.

14) (head-of-state immunity).

International law may also inform a U.S. court’s ex-

ercise of its domestic common-law authority under the

ATS. The limitation of the strict Sosa test to the ques-

tion of the standard of conduct, rather than the question

of liability for that conduct, does not prevent federal

courts from taking international law into account in the

development of federal common law on issues to which

international law relates. If, for example, international

law were clearly to discountenance the imposition of li-

ability on corporations for violating the law of nations,

or a particular norm under the law of nations, federal

courts might be well-served by declining to recognize a

federal common-law claim against corporations under

the ATS, even though common-law claims against cor-

porations have a long historical pedigree. But no such

situation is presented here.

The fact that no international tribunal has been cre-

ated for the purpose of holding corporations civilly lia-

ble for violations of international law does not counsel

against federal common-law actions against corpora-

tions under the ATS. Each international tribunal is spe-

cially negotiated, and limitations are placed on the ju-

risdiction of such tribunals that may be unrelated to

23

whether such limitations are required by or reflective

of customary international law. See, e.g., Rome Statute

of the International Criminal Court (Rome Treaty), art.

10, opened for signature July 17, 1998, 2187 U.N.T\S.

90, 98 (“Nothing in this Part shall be interpreted as lim-

iting or prejudicing in any way existing or developing

rules of international law for purposes other than this

Statute.”).” That is why, even though no international

tribunal has been created for the purpose of holding

natural persons civilly liable, it is nevertheless well-ac-

cepted that natural persons can be defendants in civil

actions under the ATS. See, e.g., Flomo v. Firestone

Natural Rubber Co., 643 F.3d 1013, 1019 (7th Cir. 2011)

(“If a plaintiff had to show that civil liability for such

violations was itself a norm of international law, no

claims under the [ATS] could ever be successful, even

claims against individuals.”).

Limitations on the jurisdiction of international

criminal tribunals to natural persons (see Kiobel,

621 F.3d at 132-137) appear to be based on reasons

unique to criminal punishment—e.g., the view under

some legal regimes that “criminal intent cannot exist in

an artificial entity” or that “criminal punishment does

not achieve its principal objectives when it is imposed

on an abstract entity.” Kiobel, 621 F.3d at 167 (Leval,

J., concurring only in the judgment) (emphasis omit-

ted). In any event, international tribunals are not in-

tended to be the sole (or even the primary) means of

* The United States has not ratified the Rome Treaty; is accord-

ingly not bound by it; and would not necessarily regard all of its pro-

visions as reflecting customary international law, especially insofar

as it has expressed “concerns about significant flaws in the treaty,”

Statement on the Rome Treaty on the International Criminal Court,

3 Pub. Papers 2816 (Dec. 31, 2000) (President William J. Clinton).

24

enforcing international-law norms. At least until the

twentieth century, domestic law and domestic courts

were the primary means of implementing customary

international law. And, notably, several countries

(including the United Kingdom and the Netherlands)

that have incorporated the three crimes punishable by

the International Criminal Court (genocide, crimes

against humanity, and war crimes) into their domestic

jurisprudence themselves impose criminal liability on

corporations and other legal persons for such offenses.

See, e.g., Anita Ramasastry & Robert C. Thompson,

Commerce, Crime and Conflict: Legal Remedies for

Private Sector Liability for Grave Breaches of Inter-

national Law—A Survey of Sixteen Countries—E xecu-

tive Summary 13-16, 30 (2006), http://www.biicl.org/files/

4364 536.pdf.

Furthermore, a number of current international

agreements (including some that the United States has

ratified) affirmatively require signatory nations to im-

pose liability on corporations for certain actions. See,

e.g., United Nations Convention Against Transnational

Organized Crime, art. 10(1), adopted Nov. 15, 2000,

S. Treaty Doc. No. 16, 108th Cong., 2d Sess. 1, 7 (2004),

2225 U.N.T.S. 209, 279; Convention on Combating Brib-

ery of Foreign Public Officials in International Business

Transactions, art. 2, adopted Nov. 21, 1997, S. Treaty

Doc. No. 43, 105th Cong., 2d Sess. 1, 4 (1998), 37 1.L.M.

1,3. As a noted scholar has explained, “all positions now

accept in some form or another the principle that a legal

entity, private or public, can, through its policies or

actions, transgress a norm for which the law, whether

national or international, provides, at the very least

damages *** and other remedies such as seizure and

forfeiture of assets.” M. Cherif Bassiouni, Crimes

25

Against Humanity in International Criminal Law 379

(2d rev. ed. 1999).

Il. THE COURT OF APPEALS SHOULD ADDRESS EXTRA-

TERRITORIALITY AND OTHER THRESHOLD ISSUES

DIRECTLY ON REMAND

Although the court of appeals’ erroneous application

of a corporate-defendant bar requires vacatur of the

judgment below, it does not require that petitioners’

claims be allowed to proceed in district court. Respond-

ent has raised a number of alternative arguments for

dismissing those claims, at least one of which—

extraterritoriality—has been fully briefed and pre-

sented by both parties for the court of appeals’ decision.

See, e.g., Br. in Opp. 20-26; p. 4, supra. Because peti-

tioners’ claims raise serious extraterritoriality ques-

tions, and because prompt appellate resolution of those

questions would further foreign-policy and judicial-

efficiency interests, the court of appeals should address

those questions directly upon remand.

A. The Automated Clearance Of Dollar-Denominated

Transactions In The United States Would Not Alone

Provide A Sufficient Domestic Nexus Under Kiobel

1. The “presumption against extraterritoriality” re-

quires courts to construe federal statutes to “have

only domestic application,” unless Congress has

“clearly expressed” a contrary intent. RJR Nabisco,

Inc. v. European Cmty., 136 S. Ct. 2090, 2097, 2100

(2016). Applying that presumption helps to “ensure

that the Judiciary does not erroneously adopt an inter-

pretation of U.S. law that carries foreign policy conse-

quences not clearly intended by the political branches.”

Kiobel, 133 S. Ct. at 1664.

26

In Kiobel, this Court held that the “principles under-

lying the presumption against extraterritoriality * * *

constrain courts exercising their power under the

ATS.” 133 S. Ct. at 1665. The Court emphasized that

“the danger of unwarranted judicial interference in the

conduct of foreign policy is magnified in the context of

the ATS, because the question is not what Congress has

done but instead what courts may do” in recognizing

causes of action under federal common law. /d. at 1664.

The Court explained that concerns about judicial intru-

sion into the realm of foreign policy “are implicated in

any case arising under the ATS,” and that courts asked

to recognize claims under the ATS should be “‘particu-

larly wary of impinging on the discretion of the Legis-

lative and Executive Branches in managing foreign af-

fairs.’” Id. at 1664, 1665 (quoting Sosa, 542 U.S. at 727).

The Court stated that “even where” claims asserted

under the ATS “touch and concern the territory of the

United States,” they will be actionable only if they “do

so with sufficient force to displace the presumption

against extraterritorial application” of U.S. law. Kiobel,

133 S. Ct. at 1669 (citing Morrison v. National Aust.

Bank Ltd., 561 U.S. 247, 266-273 (2010)). The requisite

claim-specific inquiry necessarily takes place against

the backdrop of the ATS’s function of providing redress

in situations where the international community might

consider the United States accountable. See RJR

Nabisco, 136 S. Ct. at 2101; Kiobel, 133 S. Ct. at 1668-

1669; Sosa, 542 U.S. at 714-718, 722-724 & n.15; pp. 15-

17, supra.

2. The claims in this case all involve foreign plain-

tiffs seeking recovery from a foreign defendant based

on injuries incurred at the hands of foreign terrorist or-

ganizations acting on foreign soil. See Pet. App. 1a, 4a,

27

9a. The court of appeals viewed the argument for appli-

cation of U.S. law to those claims as centering on re-

spondent’s alleged “clearing of foreign dollar-denomi-

nated payments” related to the terrorist activities

“through [its] branch in New York.” Jd. at 28a; see id.

at lla (recounting allegations that respondent “often

rout{ed] * ** transfers through its New York branch

in order to convert Saudi currency into Israeli cur-

rency”); see also Pet. 6-7 (focusing on that point); Cert.

Reply Br. 6-7 (same); Pet. C.A. Reply Br. 4-19 (same);

Pet. Br. 8 (same, and mentioning that respondent’s New

York branch holds accounts for its other branches). Pe-

titioners contend (Pet. 6, 7 n.1) that dollars are “the pre-

ferred currency” for terrorist-related payments and

that banking standards incentivize the routing of “inter-

national U.S. dollar fund transfers” through a bank’s

U.S. branch or effiliate. See Pet. Br. 5, 8.

In some non-ATS contexts, automated clearance ac-

tivity in the United States would alone be sufficient to

support the application of U.S. law that is not explicitly

extraterritorial. For example, the government could

potentially rely on such activity as the basis for a crim-

inal indictment or a civil enforcement action. Cf., e.g.,

United States v. Prevezon Holdings, Ltd., No. 13-cv-

6326, 2017 WL 1951142, at *1 (S.D.N.Y. May 10, 2017)

(civil forfeiture action for laundering proceeds of for-

eign fraud); United States v. Zarrab, No. 15-cer-287,

2016 WL 6820737, at *5 (S.D.N.Y. Oct. 17, 2016) (federal

prosecution for evading U.S. sanctions against Iran). A

domestic statute that focuses, in whole or in part, on for-

‘eign misuse of domestic instrumentalities may properly

be invoked to defend the integrity of the U.S. financial

system. See RJR Nabisco, 136 S. Ct. at 2101; cf., e.9.,

Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796-

28

797 & n.24 (1993) (recognizing antitrust claims arising

from foreign conduct that produces a substantial in-

tended effect in the United States). And given “the de-

gree of self-restraint and consideration of foreign gov-

ernmental sensibilities generally exercised by the U.S.

Government,” F. Hoffman-La Roche Ltd. v. Empagran

S.A., 542 U.S. 155, 171 (2004) (parenthetically quoting

Joseph P. Griffin, Extraterritoriality in U.S. and EU

Antitrust Enforcement, 67 Antitrust L.J. 159, 194

(1999)), Congress may be presumed not to require as

substantial a domestic nexus in a statute enforced by

the government as it might require in one enforced

through private civil actions. See RJR Nabisco, 136 S. Ct.

at 2110.

In the context of the ATS, however, the automated

domestic clearance of dollar-denominated transactions

in isolation does not in itself constitute a sufficient do-

mestic nexus for recognizing a common-law claim. The

“need for judicial caution” about “foreign policy con-

cerns” when “considering which claims c[an] be brought

under the ATS” may counsel forbearance even in cir-

cumstances where an express statutory cause of action

under domestic law, reflecting the considered judgment

of Congress and the Executive, might be found applica-

ble. Kiobel, 183 S. Ct. at 1664; see id. at 1664-1665; see

also Sosa, 542 U.S. at 727 728. Courts must therefore

consider whether, in light of the particularized role of

the ATS, a proposed com.non-law claim exhibits a

uomestic connection of “sufi.cient force to displace

the presumption against eairaterritorial application.”

Kiobel, 133 S. Ct. at 1669 (citin’ Morrison, 561 U.S. at

266-273); see RJR Nabisco, 13638. Ct. at 2101. A foreign

actor’s preference for dollar-denominated transactions,

and the consequent likelihood that a transaction will be

29

automatically routed through a bank’s U.S. branch or

affiliate, are not generally circumstances for which the

international community might validly deem the United

States to be responsible.

Congress did not intend the ATS to “make the

United States a uniquely hospitable forum for the en-

forcement of international norms.” Kiobel, 133 S. Ct. at

1668. That limitation is difficult to reconcile with an ap-

proach under which a claim under the ATS may be

premised on the popularity of the dollar as a currency

for remunerating foreign illegal activity. Such an ex-

pansive remedial scheme for law-of-nations violations

would undermine the ATS’s goal of “avoiding diplomatic

strife,” and instead “could * * * generate[] it.” Jd. at

1669.

3. Although automated clearance activities alone

would not support claims under the ATS, petitioners

have made other allegations that might affect the extra-

territoriality inquiry in this case. They have alleged, for

example, that respondent “knowingly laundered”

money, using its New York Branch, for an organization

in Texas that raised funds within the United States for

Hamas. C.A. App. 207-208. It is not clear that such al-

legations, even in combination with clearance activities,

would support any, let alone all, of petitioners’ claims

seeking recovery for injuries suffered in particular for-

eign terrorist activity. But particularly because a por-

tion of the record and briefs in this case are under seal,

the government is not currently in a position to assess

whether, or to what extent, such allegations might pro-

vide a sufficient domestic connection for some of peti-

tioners’ claims. The court of appeals, however, would

be able on remand to review the relevant filings and ad-

dress that question.

30

B. Diplomatic And Efficiency Concerns Warrant Direct

Consideration Of Threshold Issues By The Court Of

Appeals On Remand

Claims by petitioners and others, which have been in

litigation for well over a decade, have already caused

significant diplomatic tensions. Should respondent, the

major financial institution in Jordan, have to stand trial

before the remaining threshold issues are decided by

the court of appeals, the adverse foreign-policy conse-

quences would be considerable.

1. The underlying actions are subject to an order,

entered when they were consolidated with other actions

for pretrial purposes, that was imposed as a sanction for

respondent’s insistence on adhering to foreign bank-se-

crecy laws by withholding certain documents from dis-

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

(E.D.N.Y. 2010), appeal dismissed, 706 F.3d 92 (2d Cir.

2013), cert. denied, 134 S. Ct. 2869 (2014). Under that

order, the jury would be instructed that it would be free

to infer that respondent provided financial services to

terrorist organizations and that it did so “knowingly and

purposefully.” /d. at 205. The order also precludes re-

spondent from “making any argument or offering any

evidence regarding its state of mind or any other issue

that would find proof or refutation in withheld docu-

ments.” Ibid.

The sanctions order has previously been the subject

of an unsuccessful petition for a writ of certiorari, which

followed the court of appeals’ denial of respondent’s re-

quest for mandamus relief from the order in a related

case involving statutory claims by U.S. citizens under

the Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq.,

that are similar in substance to petitioners’ claims here.

See Arab Bank PLC v. Linde, 1348. Ct. 2869 (2014). At

31

the Court’s invitation, the United States filed a certio-

rari-stage amicus brief in that matter. The United

States recommended that, notwithstanding the “several

significant” errors committed by the lower courts with

respect to the order, the Court should decline to review

it in that posture at that time. U.S. Amicus Br. (U.S.

Linde Br.) at 8, Linde, supra (No. 12-1485). The United

States explained, however, that Jordan viewed the or-

der “as a ‘direct affront’ to its sovereignty.” Jd. at 19

(quoting Hashemite Kingdom of Jordan Amicus Br. at

14, Linde, supra) (No. 12-1485)). And it further ex-

plained that the order “could undermine the United

States’ vital interest in maintaining close cooperative

relationships with Jordan and other key regional part-

ners in the fight against terrorism.” /bid.

2. Since that filing, the United States’ cooperation

with Jordan has strengthened. According to the De-

partment of State, Jordan is a key counterterrorism

partner, especially in the global campaign to defeat the

Islamic State in Lraq and Syria (ISIS). The Department

of State has informed this Office that, in furtherance of

that campaign, Jordan regularly conducts air missions

over Iraq and Syria, cooperates with measures to

thwart the financing of terrorist activities, and plays a

critical role in international efforts to stem the flow of

foreign terrorist fighters. Jordan is also an important

partner in advancing a range of broad U.S. interests in

the region, including efforts to forge a lasting peace be-

tween Israelis and Palestinians. The President has re-

cently reiterated Jordan’s longstanding status as “a

valued partner, an advocate for the values of civiliza-

tion, and a source of stability and hope.” Remarks

by President Trump and His Majesty King Abdullah II

of Jordan in Joint Press Conference (Apr. 5, 2017),

32

https://www. whitehouse.gov/the-press-office/2017/04/05/

remarks-president-trump-and-his-majesty-king-abdullah-

ii-jordan-joint.

The sanctions order has already affected litigation of

the U.S. citizens’ related statutory claims, see Br. in

Opp. 25-26 & n.5, and its effect here could be even

greater. There are “roughly 6000” alien petitioners in

this case, Pet. ii, whose combined damages claims

threaten to have an overwhelming impact on respond-

ent’s financial condition. Because respondent is “Jor-

dan’s leading financial institution,” “plays a significant

role in the Jordanian and surrounding regional econo-

mies,” and is “a constructive partner with the United

States in working to prevent terrorist financing,” U.S.

Linde Br. 1, 20 (citation and internal quotation marks

omitted), unwarranted continuation of petitioners’

claims would undercut U.S. foreign policy interests in

both direct and indirect ways. Cf. Sosa, 542 U.S. at 733

n.21 (noting “a strong argument that federal courts

should give serious weight to the Executive Branch’s

view of [a] case’s impact on foreign policy” in ATS con-

texts).

Such effects could be avoided by ensuring appellate

consideration of potentially dispositive issues, including

the viability of petitioners’ claims under Kiobel, at the

earliest possible opportunity. Remanding the claims for

a potential trial, at which respondent’s chances of pre-

vailing would be impeded by the sanctions order, would

prolong the uncertainty and attendant diplomatic ten-

sions, and could therefore produce significant and un-

desirable consequences even if the court of appeals

were ultimately to reverse on _ extraterritoriality

grounds. Given that both parties viewed the extraterri-

toriality issue to have been properly before the court of

33

appeals for decision, sound considerations of diplomatic

comity and judicial economy favor its resolution by that

court at the first possible opportunity following a re-

mand.

CONCLUSION

The judgment of the court of appeals should be

vacated and the case remanded for further proceedings.

Respectfully submitted.

EDWIN S. KNEEDLER

Deputy Solicitor General'

CHAD A. READLER

Acting Assistant Attorney

General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

ERIC J. FEIGIN

Assistant to the Solicitor

General

DOUGLAS N. LETTER

RICHARD C. VISEK SHARON SWINGLE

Acting Legal Adviser MELISSA N. PATTERSON

Department of State Attorneys

JUNE 2017

' The Acting Solicitor General is recused in this case.