HHRJ’s 2014 Symposium, The Future of Business and Human Rights, was held on April 17, 2014. It kicked off with a lunch panel on the Alien Tort Statute involving a timely discussion of litigation strategies for holding corporations accountable for human rights abuses one year after the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum. The panel, which was moderated by Professor Noah Feldman of Harvard Law School, featured four speakers: Paul Hoffman, Marco Simons, Susan Farbstein, and Tyler Giannini, each of whom has litigated in corporate ATS suits.
Paul Hoffman has been lead litigator for claimants in several landmark ATS cases, and argued as counsel for the petitioners before the Supreme Court in Kiobel. He is a partner in the Venice, California law firm of Schonbrun, DeSimone, Seplow, Harris, Hoffman & Harrison and was previously Legal Director of the ACLU Foundation of Southern California. He is a founder of the California Committee of Human Rights Watch and a former Chair of the International Executive Committee of Amnesty International, Amnesty International USA.
Marco Simons is Legal Director of Earth Rights International, an organization at the forefront of efforts to link human rights and environmental protection. He has served as counsel and submitted amicus briefs on many ATS cases, and writes widely about corporate accountability. He previously worked for the civil rights law firm Hadsell & Stormer.
Tyler Giannini is Clinical Professor of Law here at HLS, and co-director of the International Human Rights Clinic. Prior to joining HLS he was founder and director of EarthRights International. He has served as counsel in landmark ATS cases, and is currently co-counsel in In re South African Apartheid Litigation, a suit against major multinational corporations for aiding and abetting human rights violations committed by the apartheid state. He has authored numerous amicus curiae briefs including to the United States Supreme Court in Kiobel.
Susan Farbstein is Assistant Clinical Professor of Law at HLS, and co-directs the International Human Rights Clinic with Tyler. She is currently co-counsel in In re South African Apartheid Litigation and has participated in litigation of ATS cases in the past, as well as authoring an amicus brief to the Supreme Court in Kiobel.
The discussion started off with a presentation by Paul Hoffman, who joined the panel via Skype to present his views on whether the decision in Kiobel wiped out future ATS cases. Mr. Hoffman did not believe that this was so, but admitted that much depended on what Justice Kennedy’s position on the issue of extra-territoriality would turn out to be. Mr. Hoffman considered that “it could be that connection to the U.S. is more important to Justice Kennedy than geography.”
He also noted that Justices Kennedy and Alito both acknowledge that Kiobel is a narrow opinion, making it unlikely that it wipes out future ATS cases, particularly where the events or parties are within the U.S. Nevertheless, he acknowledged that Kiobel has been a negative decision for ATS litigation. He also stated that it left a lot of questions unanswered, and that it would be most telling to see how the lower courts deal with the decision.
Following Mr. Hoffman’s presentation, Professor Feldman asked the remaining panelists whether human rights litigators had gone too far by pushing for corporate liability in Kiobel.
Mr. Simons conceded that in retrospectlitigators had pushed too far and that they had suffered a “serious setback” in Kiobel. But he said that it was important to focus on the goal of advancing corporate liability cases, which he described as making the jump from “declaring the wrongness of this conduct, to actually having a deterrent and compensatory function against wrongdoing on large scale.” He pointed out that corporate liability cases are much more likely to change behavior than cases seeking to hold individuals liable. He reasoned that most of the time, individuals cannot remedy harms when sued, and are less likely than corporations to be deterred by litigation.
At that point, Professor Feldman summarized three observations from the discussion so far. Firstly, it seemed that the move to sue corporations was “a move from symbolism to effect.” The old Filartiga style litigation was a tool to draw attention to human rights abuses, but the shift to suing corporations was designed to effectuate. He concluded that the Kiobel decision could be read as the Supreme Court willing to recognize the symbolic effect of calling out human rights abuses, but unwilling to go so far as to hold actors accountable.
Secondly, while human rights litigators previously had the advantage of a concentrated interest as against the U.S.’s more diffuse set of interests, now that corporations were involved litigators were suddenly faced with a concentrated interest on the other side too. This changed the dynamics of the cases.
Thirdly, litigators were now guessing about what Justice Kennedy might do, and what might have really motivated the court in Kiobel.
In response to the question of whether litigators had pushed too hard, Ms. Farbstein pointed out that litigators are obligated to follow the instructions of their clients. Ultimately, if a client wants to appeal to the Supreme Court, counsel are obliged to follow through. Mr. Giannini added that the lawyers involved always knew there would be a different response once they started to sue corporations, and that this was to be expected.
Professor Feldman reflected that unlike some other social movement cases, which are all about progressive litigators aiming to reach the Supreme Court, the ATS litigation was devoted to the opposite: avoiding the Supreme Court. Mr. Hoffman said that it was hard, as a movement, to decide which cases should go up to the Supreme Court, and that none of the litigators had wanted to make that move in Kiobel. However, he concluded that in this case, the interests of the clients ultimately trumped those of the movement. He hoped that the next case to reach the Supreme Court would be the one with the most connection to the U.S. Mr. Giannini reflected that perhaps it would be best if the next case to reach the Supreme Court was not a corporate case, and that a case affirming Filártiga v. Peña-Irala would be preferable.
The day ended with an unexpected piece of good news when it was announced that Judge Shira Scheindlin of the Southern District of New York had just ruled that corporate liability exists under the ATS, and that the former ruling on the issue in Kiobel by the Second Circuit is no longer good law in the circuit.
By Mevlude Akay, LLM 2015