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Cert Granted: Will SCOTUS Side with Seventh on Alien Tort Act?

By Robyn Hagan Cain on October 18, 2011 | Last updated on March 21, 2019

The Supreme Court will decide whether corporations can be held liable under the Alien Tort Act (ATA). The Court granted cert in Kiobel v. Royal Dutch Petroleum on Monday.

The question now is whether the Court will agree with the Seventh, Eleventh, and D.C. Circuits that the ATA applies to corporations, or if it will affirm the Second Circuit on Kiobel, the lone opinion that denied liability.

The Seventh Circuit Court of Appeals became a key player in the ATA debate in July, when Judge Richard Posner explicitly stated that the Second Circuit's holding in Kiobel was incorrect.

In Flomo v. Firestone Natural Rubber Co., Judge Richard Posner criticized the Kiobel decision's underlying premise that there is no principle of customary international law that binds a corporation, noting that, even in the absence of precedent for corporate international law violation sanctions, "there is always a first time for litigation to enforce a norm."

So how did Kiobel, rather than Flomo, become the Supreme Court's test case on the ATA?

While the Seventh Circuit Court of Appeals found that a corporation could be held liable under the ATA in Flomo, it did not rule in favor of the plaintiffs. Instead, the court found that the plaintiffs' case lacked "an adequate basis for inferring a violation of customary international law."

Meanwhile, Exxon, the defendant in John Doe VIII et al v. Exxon Mobil Corp et al, has requested en banc rehearing in the D.C. Circuit Court of Appeals.

The Kiobel plaintiffs, on the other hand, filed their petition for writ of certiorari to the Supreme Court in August.

In its orders, the Supreme Court indicated the Kiobel will be heard in tandem with Mohamad v. Rajoub, a case about the Torture Victims Prevention Act (TVPA). Plaintiffs frequently invoke both the ATA and the TVPA in their claims. Like the ATA, courts have found that the TVPA does not apply to corporations, reports Thomson Reuters News & Insight.

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