In late September, the District Court for the District of Columbia ruled that two closely related cases filed against Exxon Mobil Corporation, and several of the company’s subsidiaries, could proceed. Plaintiffs in both cases, Doe I v. Exxon Mobil and Doe VIII v. Exxon Mobil, allege that the company is liable for human rights abuses committed by members of the Indonesian military who had been engaged to provide security for the company’s operations in Indonesia.
Plaintiffs in Doe I v. Exxon Mobil have raised claims under the Alien Tort Statute (“ATS”). At an earlier stage of the litigation, the Doe I plaintiffs’ ATS claims were dismissed, but the D.C. Circuit Court of Appeals revived the claims in a 2011 decision, allowing the plaintiffs to proceed under an aiding and abetting theory of liability.
The District Court’s most recent decision allows plaintiffs to file for leave to amend their complaint in order to try and demonstrate that the facts of the case sufficiently “touch and concern” the United States so as to overcome the presumption against extraterritoriality that applies to ATS cases pursuant to the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum.
Citing recent decisions by the Second, Fourth, and Eleventh Circuit Courts of Appeals, the court observed that the presumption against extraterritoriality is not displaced by a defendant’s U.S. citizenship alone, but
when plaintiffs allege U.S. based conduct itself constituting a violation of the ATS, the presumption against extraterritoriality is no obstacle to consideration of ATS claims.
Plaintiffs in Doe I have generally alleged that management decisions related to ExxonMobil’s operations in Indonesia are made in the United States, but as the court observed, plaintiffs have not alleged where support for the Indonesia military was planned and authorized or whether any such material or monetary support came from the United States.
Noting that the case was filed prior to the Kiobel decision, the court ruled that plaintiffs should have the opportunity to file for leave to amend their complaint in order to allege facts sufficient to demonstrate that their claims touch and concern the United States with sufficient force so as to overcome the presumption against extraterritoriality. Plaintiffs have asserted that they will be able to amend their complaint to show “substantial U.S. based conduct constituting violations of the ATS.”
The court’s decision reflects ongoing efforts by U.S. federal courts to determine the parameters of the “touch and concern” standard set forth in Kiobel. The Fourth Circuit’s decision in Al Shimari v. CACI — which found that claims against U.S. citizens employed by a U.S. government contractor operating with oversight by managers based in the United States did sufficiently touch and concern the United States — provides a benchmark to which several courts have looked, but it is still unclear what other fact patterns will support litigation pursuant to the ATS. With plaintiffs in both Doe I v. Exxon Mobil and Doe v. Nestle USA recently given leave to amend their complaints in order to try and meet the “touch and concern” standard, in the coming years there will likely be greater clarity as to exactly what types of U.S.-based conduct will allow plaintiffs to bring claims pursuant to the ATS.