Don’t call it a comeback: Sarei v. Rio Tinto revived by 9th Circuit

Mining company Rio Tinto can be sued for genocide and war crimes allegedly committed in Papua New Guinea under the Alien Tort Statute, a split 9th Circuit said in an opinion released yesterday. (opinion in PDF)

The case, Sarei v. Rio Tinto, has been bouncing up and down the federal court system for over a decade and has touched on several of the questions left open by the Supreme Court in Sosa, including whether corporations can be sued under ATS and whether exhaustion of local remedies is required before bringing suit.

On the corporate liability issue, this puts the 9th in direct conflict with the 2nd Circuit, from which Kiobel made its way to SCOTUS, but in line with the 7th Circuit, which ruled earlier this year in Flomo v. Firestone that corporations could be sued under ATS.  Judge Schroeder writes:

Our circuit’s most recent
decision on corporate civil liability in an international context
is Bowoto v. Chevron, 621 F.3d 1116 (2010), where we held
that the Torture Victim Protection Act’s express language and
documented legislative history reflected congressional intent
to limit liability under that statute to individuals. The statute
created a civil action for recovery of damages “from an individual,”
id. at 1126, and the legislative history demonstrated
that Congress considered and rejected corporate liability, id.
at 1127.

[8] The ATS contains no such language and has no such
legislative history to suggest that corporate liability was
excluded and that only liability of natural persons was
intended. We therefore find no basis for holding that there is
any such statutory limitation. This is also the view supported
by a distinguished contemporary scholar, Harold Hongju Koh,
Separating Myth from Reality About Corporate Responsibility
Litigation, 7 J. INT’L ECON. L. 263, 266-67 (2004). The D.C.
Circuit has recently reached the same conclusion. Doe, at *84.

There are a lot of goodies in here about aiding and abetting liability, prudential concerns and exhaustion.  Plus there are some strongly worded dissents:  Senior Judge Andrew Kleinfeld attacked the majority for implementing a “new imperialism, entitling our court, and not the peoples of other countries, to make the law governing persons within those countries.” Yeow!

I’ll have a bit more on this later – conflictoflaws.net has a good rundown of the holdings –  but the big take-away is that Kiobel is increasingly becoming the outlier as far as this circuit split is concerned.

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About Charles Donefer

I am an attorney in New York City.
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