The Kiobel suit was filed in 2002 by Nigerian citizens from the Ogoni region of Nigeria against Dutch and British holding companies that were operating in the region through their Nigerian subsidiary. The petitioners alleged that the respondents aided and abetted human rights abuses committed by the Nigerian government, including torture, crimes against humanity, and arbitrary arrest and detention. The District Court granted in part and denied in part the respondents' motion to dismiss the petitioners' claims and certified an order on its own initiative for interlocutory appeal to the Second Circuit Court of Appeals. A divided Second Circuit panel held as an issue of subject matter jurisdiction that no corporate liability exists under the ATS. After the Second Circuit's decision in Kiobel, the Seventh Circuit, Ninth Circuit, and DC Circuit each issued decisions in separate ATS cases, finding that corporations were proper defendants under the ATS. The Supreme Court granted certiorari to consider the issue of corporate liability. Following oral argument, the Court directed the parties to submit supplemental briefs on the question of "[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."
1. Kiobel limits the availability of ATS claims premised on overseas conduct, but the decision "leaves for another day the determination of just when the presumption against extraterritoriality might be 'overcome.'" Should multinational companies expect plaintiffs to continue asserting ATS claims premised on at least some U.S.-based conduct in connection with the underlying tort?
2. Do you think plaintiffs will try their chances with ATS claims against corporate defendants that have a more substantial connection to the United States than "mere presence" through an investment office, securities exchange listing, or the like?