Justices wary of suits alleging abuse by corporations abroad

February 28, 2012

A majority of the Supreme Court on Tuesday seemed disinclined to allow human rights advocates to sue corporations in American courts over allegations that the companies might be complicit in atrocities committed overseas.

About a dozen Nigerians charge that Shell Oil’s parent company aided and abetted the Ni­ger­ian government in torturing and killing people protesting the oil company’s operations in the Ogoni region during the 1990s.

But conservative justices seemed skeptical that a more-than 200-year-old U.S. law formulated at the time of the country’s founding allowed such suits against corporations. The law allows “aliens” to bring civil lawsuits for acts that violate the “law of nations.”

Justice Anthony M. Kennedy told the lawyer representing the Nigerians that he did not think they could refute Shell’s argument that international law does not recognize corporate liability for such offenses.

And Justice Samuel A. Alito Jr. said he could not understand why abuses alleged by Nigerians to have been committed in Nigeria and aided by a multinational company should be tried here.

“What business does a case like that have in the courts of the United States?” asked Alito. “There’s no connection to the United States whatsoever.”

Lawyer Paul Hoffman said that the court should not make such a categorical ruling. All the court need decide, Hoffman said, is whether a corporation can “ever” be held liable for human rights abuses.

Under Shell’s argument, he said, “even if these corporations had jointly operated torture centers with the military dictatorship in Nigeria to detain, torture and kill all opponents of Shell’s operations in Ogoni, the victims would have no claim.”

Besides the Ni­ger­ians’ argument, the court Tuesday heard another case that asks whether victims of torture may pursue civil lawsuits only against the individuals involved, or against corporations and organizations. That case involved a suit against the Palestinian National Authority brought under a 20-year-old law, the Torture Victims Protection Act. It uses the word “individual” to describe who may sue and who may be sued.

On the surface, the cases seem to raise the issue of corporate “personhood” that has disturbed the political landscape since the court’s conservative majority in 2010 ruled for a corporation’s First Amendment rights in Citizens United v. Federal Election Commission.

Several briefs submitted in the cases — and protesters on the sidewalk outside the court building — attempted to link the court’s finding in Citizens United about corporations having the same free speech rights as individuals with the assertion that they could also be sued as individuals would.

But the constitutional question in Citizens United is different from the two cases argued Tuesday, which raised the issue of what Congress meant when it wrote the laws in question.

In the Ni­ger­ian case, Kiobel v. Royal Dutch Petroleum , the court was examining the Alien Tort Statute, which was enacted in1789 to protect ambassadors to the United States. But it was not invoked until 1980, when human rights lawyers used it to sue foreign officials for violations occurring in those countries. Since the 1990s, according to a brief by the U.S. Chamber of Commerce, more than 150 lawsuits have been filed against U.S. and foreign companies doing business in 60 countries.

The U.S. Court of Appeals for the 2nd Circuit in New York tossed out the Kiobel suit because it said international law did not recognize corporate liability for such abuses.

The Obama administration disagreed with the ruling and Deputy Solicitor General Edwin Kneedler told the court that there should not be a categorical bar against corporate liability “regardless of the nature of the norm, the locus of the wrong or the involvement of the state.”

Some of the court’s liberal justices seemed to be looking for a way to leave the door open for at least some lawsuits. “In certain circumstances there could be a suit against your corporation,” Justice Stephen G. Breyer told Shell’s lawyer, Kathleen M. Sullivan. “You would have to be careful.”

But Sullivan was unyielding. She said that the law simply did not allow for corporate liability. Corporations were not arguing “impunity,” she said, and Congress could change the law “tomorrow,” but she said that Congress had never shown any inclination to include corporate liability.

That led to the second case, involving the Torture Victim Protection Act. The family of Azzam Rahim, a naturalized U.S. citizen who died in the custody of Palestinian intelligence officers in 1995, sued the Palestinian Authority and Palestine Liberation Organization.

But the law says suits may be brought against an “individual.” The U.S. Court of Appeals for the D.C. Circuit said that meant a natural person, not an organization or corporation, and rejected the lawsuit.

Stanford law professor Jeffrey Fisher, representing the family, acknowledged the difficulty the plain language of the statute presented, but he said Congress has always included organizations when assigning liability.

Even justices on the left who would be most likely to look for ways to let such lawsuits proceed told Fisher that they were skeptical Congress would use the word “individual” if it also meant to include organizations.

The case is Mohamad v. Palestinian Authority .

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both.
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