Block on Trump's Asylum Ban Upheld by Supreme Court
Will the Supreme Court rule once and for all on whether corporations can be held liable under the Alien Tort Act?
Experts believe that the Court will take up the issue. The question, however, is when it will happen. The circuit-level are-they-or-aren't-they-liable decision count stands at 7 to 1, but several circuits are in the process of re-hearing cases on this issue, en banc.
The lone outlier in the "corporations are not liable" camp is the Second Circuit's Kiobel v. Royal Dutch Petroleum. Nigerian plaintiffs in Kiobel filed a certiorari petition asking for review of the court's holding in June, after the Second Circuit issued its opinion.
Exxon Mobil is also challenging an Alien Tort Act holding, but from the opposite standpoint: the D.C. Circuit Court of Appeals ruled against the corporation in July, finding the plaintiffs could sue Exxon under the Alien Tort Act. Exxon has asked the circuit for an en banc rehearing.
In July, Judge Richard Posner wrote in the Seventh Circuit's Flomo v. Firestone Natural Rubber Co. opinion that Kiobel's underlying premise that there is no principle of customary international law that binds a corporation was "incorrect" and that "there is always a first time for litigation to enforce a norm."
Posner also noted that if, as Kiobel asserted, a plaintiff must show that civil liability for violations of the Act is a norm of international law, the Alien Tort Act is virtually unenforceable against corporations because the United States is the only country that has such a statute.
The Ninth Circuit Court of Appeals is considering the issue as well; the circuit agreed to rehear Sarei v. Rio Tinto, a human rights claim against a mining company, en banc.
The debate over alien tort liability has been raging within the circuits for years and is ripe for a High Court hearing. Our bet? The Supreme Court will wait for the D.C. and Ninth Circuits to issue en banc opinions before hearing the issue.