Earlier today, the United States Supreme Court issued an order (.pdf) declining to grant a writ of certiorari in response to plaintiffs’ petition, and defendant’s conditional cross-petition, seeking review of the Second Circuit’s decision in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2nd Cir. 2009). The Second Circuit upheld a lower court decision dismissing the case, which involved allegations that Talisman Energy aided and abetted the Sudanese Government in committing human rights abuses in Southern Sudan.
The Second Circuit’s earlier decision, widely cited in Alien Tort Statute ("ATS") jurisprudence, held that companies may only be found liable for violations of customary international law under an aiding and abetting theory of liability if they provide substantial assistance to the primary violator with the intent of furthering the human rights violation. The Court determined that international law is the proper source for establishing a standard for accessory liability, and that “the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone.” Notably, the 2009 decision predates the Second Circuit’s recent decision in Kiobel v. Royal Dutch Petroleum, in which the Court held that corporations cannot be sued under the ATS for violations of customary international law.