Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum and AirScan

Alien Tort GavelOn November 12, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum and AirScan. The case, Mujica v. AirScan, involves claims by Colombian plaintiffs alleging that the companies were complicit in a 1998 bombing of a Colombian village by the Colombian Air Force. The Ninth Circuit held that plaintiffs’ claims did not rebut the presumption against extraterritorial application of ATS that has served as a significant obstacle for plaintiffs in ATS cases ever since the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum.  

Plaintiffs in the case had asserted that “actions or decisions” furthering the alleged conspiracy between defendants and the Colombian Air Force “took place in the United States.” On this basis, plaintiffs asserted that their claims “touched and concerned” the United States with sufficient force so as to displace the presumption against extraterritoriality. The Ninth Circuit disagreed, finding that “[t]he allegations that form the basis of Plaintiffs’ claims exclusively concern conduct that occurred in Colombia.”

The Ninth Circuit specifically found that plaintiffs’ assertions that certain conduct, including the establishment of contracts between the parties, took place in the United States was purely speculative. The Court held that “mere conjecture that conduct may have occurred in the United States” was not sufficient to meet plaintiffs’ burden. Notably, the Ninth Circuit denied plaintiffs’ request for leave to amend their complaint, finding that it was highly unlikely that plaintiffs would be able to plead sufficient facts to overcome the presumption without proceeding to discovery. In its decision, the Court agreed with other appellate courts in finding that the fact that defendants are U.S. corporations was not sufficient to overcome the presumption against extraterritoriality.

The Ninth Circuit also dismissed claims filed by the plaintiffs under state law, relying on the federal common law doctrine of international comity. The Court cited a Statement of Interest filed by the U.S. State Department in 2004 stating that “the adjudication of this case will have an adverse impact on the foreign policy interests of the United States” and also found that “Colombia’s interest in serving as the exclusive forum for this litigation is strong.”

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