Alien Tort Case Development: The U.S. Supreme Court Will Review the Question of Corporate Liability

On Monday, April 3, the U.S. Supreme Court granted a petition for a writ of certiorari filed by plaintiffs in Jesner v. Arab Bank, No. 16-499. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

The petition was filed after the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank, PLC. Plaintiffs in each of the cases alleged that they, or their family members, had been harmed in attacks by terrorist organizations that had received financing, in part, as a result of accounts and transfers arranged by the bank.

In upholding the dismissal of plaintiffs’ ATS claims, the Second Circuit had relied upon its 2010 decision in Kiobel v. Royal Dutch Petroleum (2d Cir. 2010) (“Kiobel I“) in finding that the law of the Circuit still holds that plaintiffs cannot bring claims against corporations pursuant to the ATS. In its December 2015 decision, the Court found that the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum (S. Ct. 2013) (“Kiobel II“) had not overruled the Circuit on this issue, as the Supreme Court’s decision was ultimately focused on the issue of extraterritoriality and did not reach the question of corporate liability.

In granting the writ of certiorari, the Supreme Court has decided to review the question of corporate liability once and for all. As stated in the petition before the Court,

This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

Oral arguments will be held during the Court’s term beginning in October 2017. The case will be watched closely by corporate attorneys as well as plaintiffs’ advocates seeking to hold companies liable for complicity in human rights abuses.


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