Wednesday, October 24, 2007
In his latest FindLaw column, Tony Sebok addresses the two recent opinions by the Second Circuit on the Alien Tort Claims Act: Khulumani v. Barclay National Bank and Ntsebeza v. Daimler Chrysler Corp. Although the Second Circuit reversed a dismissal by the district court, Sebok argues that the substantive ruling on ATCA aiding and abetting liability may prove to be a "pyrrhic victory" for the plaintiffs:
The test based in international human rights law is set out in the Rome Statute of the International Criminal Court: One is guilty of aiding and abetting a crime if one renders aid to someone who commits a crime, and does so "[f]or the purpose of facilitating the commission of such a crime."
Judge Korman and Judge Katzmann agree that the Rome Statute should apply. Since they constitute a majority of the panel, that is the standard Judge Sprizzo must apply on remand.
In contrast, the common law test is less demanding (and thus, more pro-plaintiff). On the Second Circuit panel, Judge Hall was the only judge who endorsed this test. He quoted the Restatement (Second) of Torts §876(b), which provides that one is liable for aiding and abetting the tortious conduct of another "if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other."
In his next column, Sebok will analyze which test for aiding and abetting should apply to the ATCA.