Sunday, September 30, 2012

U.S. Supreme Court Hears ATS Case (Kiobel) as it Opens 2012-13 Term

US Supreme Court SealThe U.S. Supreme Court begins its 2012-13 Term tomorrow on October 1, the first Monday in October.  The court will hear two cases tomorrow.  The first is Kiobel v. Royal Dutch Petroleum Co., No. 10-1491.  The issue in that case is whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. ยง 1350, is a merits question or an issue of subject matter jurisdiction.  The Supreme Court must decide whether a federal district court can hear a claim under the ATS when the calim arose out of conduct in a foreign country.

The petitioner, Esther Kiobel, filed a class action under the ATS against the Royal Dutch Petroleum Company (incorporated in the Netherlands), Shell Transport and Trading Company (incorporated in the United Kingdom), and the Shell Petroleum Development Company of Nigeria (incorporated in Nigeria). The members of the class are individuals from the Ogoni region in Nigeria.  They had organized the "Movement for the Survival of Ogoni People" to protest the detrimental effects that oil exploration had in their homelands.

The petitioners allege that the oil companies assisted the Nigerian government in acts of violence against the Ogoni people who were protesting oil exploration and development in their region of Nigeria. They allege that the Nigerian military used rape, murder, beatings, and unlawful arrests to get them to stop their protests against oil exploration and development.  The petitioners claim that the oil companies provided the Nigerian military with transportation, foot, compensation, and other support that facilitated the attacks against the Ogoni.

The petitioners claim standing under the ATS because the hisotry, text, and purpose of the statute support application of the ATS to actions that arose in foreign countries.  

The oil companies argue that U.S. law does not apply extraterritorially and that the ATS is not an exception to that general rule.  The U.S. Court of Appeals for the Second Circuit had dismissed the claim against the oil companies because the ATS had never previously been used as a basis of liability for corporations.

The U.S. Supreme Court heard oral arguments in the case on February 28, 2012 and on March 5, 2012 ordered re-argument on the question of whether the ATS allows litigation in the United States when the events did not occur within the territory of the United States. 

Tomorrow the U.S. Supreme Court will also hear Lozman v. City of Riviera Beach, No. 11-626, where the Court will decide whether an indefinitely moored houseboat is a "vessel" for purporses of federal maritime jurisdicition.


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