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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0719%3A14. Public record. Not legal advice.