Monthly Archives: September 2010

The Federal Courts and Corporate Liability under the Alien Tort Statute

After the recent decision in Kiobel v. Royal Dutch Petroleum06-4800-cv, 06-4876-cv (2d Cir. September 17, 2010) (.pdf), in which the Second Circuit Court of Appeals held that corporations cannot be sued under the Alien Tort Statute (“ATS”) for violations of customary international law, it is worth reviewing statements made by courts in other circuits with regard to corporate liability under the ATS.

As is reflected in the summaries below, many federal courts have not yet directly addressed the question of corporate liability under the ATS and others have merely made observations without… More

Second Circuit Holds that Corporations are not Proper Defendants under the Alien Tort Statute

On September 17, in a controversial opinion, the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum that corporations cannot be properly sued under the Alien Tort Statute (“ATS”) for violations of customary international law.  The case is one of a series of cases arising from claims that Royal Dutch Petroleum was complicit in human rights abuses against the Ogoni people in Nigeria.  Three related cases (the Wiwa cases) settled on the eve of trial in June 2009 for a disclosed settlement… More

Securities and Exchange Commission Publishes New Proxy Access Rule in Federal Register

The Securities and Exchange Commission ("SEC") published Rule 14a-11 today in the Federal Register (.pdf).  As discussed in our September 7 post below, this Rule provides for proxy access to certain long-term shareholders, including socially responsible investment funds and pension funds.  The rule is effective 60 days after being published in the Federal Register, or November 15, 2010.

Taking into account the uniform 120 day advanced notice deadline, any issuer whose one year anniversary for mailing date is prior to March 15, 2011 will not be subject to a proxy access campaign in 2011.  Application of the new access… More

Microsoft Makes Unilateral Software License Available to Protect Freedom of Expression in Russia

On September 13, Microsoft Corporation announced a major change in policy whereby the company will make a new unilateral software license available to NGOs and certain journalist organizations in Russia. 

Microsoft’s announcement came shortly after The New York Times published a front-page article stating that Microsoft’s local counsel had provided assistance to Russian authorities in the criminal prosecution of NGOs and independent journalists on the basis of allegations that these groups were utilizing pirated Microsoft software.  Although software piracy is a serious problem across Russia, Russian authorities allegedly targeted journalists and advocacy groups for criminal prosecution. This is not surprising, given ongoing reports that journalists and advocacy groups in… More

Bowoto v. Chevron: Appellate Court Upholds Jury Verdict

On September 10, the Ninth Circuit Court of Appeals upheld a jury verdict in favor of Chevron Corporation (.pdf) in a case involving plaintiff allegations that Chevron was complicit in human rights abuses committed by Nigerian security forces in 1998.  Plaintiffs brought claims under the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act (“TVPA”).

The primary events at issue in the litigation took place at an offshore platform belonging to Chevron’s Nigerian subsidiary.  After protesters spent several days at the platform in May 1998 protesting Chevron’s drilling… More

Securities and Exchange Commission Passes New Proxy Access Rule

On August 25, the Securities and Exchange Commission (“SEC”) passed a new proxy access rule that will provide certain shareholders with the right to nominate corporate directors and have those nominations appear in corporate proxy statements.  Shareholder advocates have advocated for a federal proxy access rule for nearly thirty years.  A draft rule was published in June 2009, and the recently passed Dodd-Frank Wall Street Reform and Consumer Protection Act (.pdf) confirmed the SEC’s authority to issue the new rule.

Specific provisions of new Exchange Act Rule 14a-11 include:

  • A shareholder or shareholder group must have held at least… More