Can Corporations Be Sued Under the ATS in U.S. Federal Courts by Foreign Citizens for Torts Committed Abroad?

Eleventh Circuit Ruling Revives the Debate Over Corporate Liability Under the Alien Tort Statute

A series of recent appellate decisions has drawn attention to the issue of whether corporations may be sued under the Alien Tort Statute (“ATS”)[1] in U.S. federal courts based on conduct that occurs in other countries. The ATS, a unique jurisdictional statute that the Second Circuit has described as “unlike any other in American law and of a kind apparently unknown to any other legal system in the world,” generally permits suit to be brought based on violations of “customary international law.”[2] Although previously limited to undeniably outrageous conduct like soliciting murder, commentators have urged the expansion of liability to other areas, such as environmental torts, which raises the prospect of massive corporate liability for a wider range of injuries. A Second Circuit order issued on February 4, 2011, which denied rehearing en banc of a panel decision holding that corporations cannot be held liable for violating customary international law, has put the brakes on such suits against corporations in the Second Circuit. However, corporations continue to face the risk of such suits outside the Second Circuit, particularly in the Eleventh Circuit, which on February 3, 2011 issued a decision reinstating an ATS suit against a corporation.

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[1] 28 U.S.C. § 1350.
[2] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 115 (2d Cir. 2010).

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