Category Archives: Litigation

Corporate Liability and the Alien Tort Statute: Highlights from the Oral Arguments in Jesner v. Arab Bank

On Wednesday, October 11, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

In granting plaintiffs’ petition for a writ of certiorari, the Supreme Court agreed to review the following question:

This case presents the question this Court granted certiorari to resolve,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new report from the U.N. Working Group on Business and Human Rights; a report evaluating corporate efforts to assess forced labor risks in sugarcane supply chains; and a revised report reviewing national action plans on business and human rights as issued by 18 countries.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an announcement by the Government of Australia that it will move forward with the development of a new “Modern Slavery Act”; new commitments by five companies to prohibit recruitment fees in their supply chains; and decision by the African Commission on Human and Peoples’… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a decision by the Ontario Superior Court of Justice addressing a corporation’s “duty of care” with regard to the employees of its suppliers; new IBA guidance for lawyers on integrating business and human rights considerations into their advice to clients; and a report evaluating corporate conflict minerals filings for calendar year 2016.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the U.S. Government’s amicus brief in Jesner v. Arab Bank; a Declaration from the Leaders of the G20; and a commitment to renew the Accord on Fire and Building Safety in Bangladesh.

  • On June 27, the U.S.…
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Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new report on human rights litigation in U.S. federal courts; new guidelines on the E.U. directive on non-financial reporting; and the release of the U.S. State Department’s 2017 Trafficking in Persons report.

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the announcement of a new corporate alliance intended to advance diversity and inclusion in the workplace; the release of a paper by Professor John Ruggie on the development of the UN Guiding Principles on Business and Human Rights; and guidance from the UN Office of the High Commission for Human Rights on the human rights responsibilities of banks.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a jury verdict in the Quinteros v. DynCorp litigation; the latest GAO report on corporate conflict mineral disclosures; and a statement from the Scottish Parliament that investments agreements should only be signed after appropriate human rights due diligence.

  • On March 29,…
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The SEC and the Conflict Minerals Rule: What You Need to Know about the Latest Developments

It is clear that Michael Piwowar, Acting Chairman of the Securities Exchange Commission (“SEC”) is not a fan of the conflict minerals rule. Earlier this month, the Acting Chairman and the Division of Corporation Finance released two statements regarding rule, both of which clearly state that the regulation will not be an enforcement priority.

By way of background, the statements were published after long-running litigation regarding the conflict minerals rule finally reached a formal conclusion.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an effort by Twitter to enjoin U.S. Government demands for information regarding a user account critical of the Trump Administration; an announcement that seven telecommunications companies have joined the Global Network Initiative; and a decision by EITI to make project-level payment reporting mandatory.… More

Alien Tort Case Development: The U.S. Supreme Court Will Review the Question of Corporate Liability

On Monday, April 3, the U.S. Supreme Court granted a petition for a writ of certiorari filed by plaintiffs in Jesner v. Arab Bank, No. 16-499. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

The petition was filed after the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the European Parliament’s adoption of a new conflict minerals regulation; the French Constitutional Council’s review of the proposed duty of vigilance legislation; the dismissal of the Doe v. Nestle litigation; and the release of a new Corporate Accountability Index by Ranking Digital Rights.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a federal court decision holding that U.S.-based companies may be obligated to turn over customer data stored outside the United States; an amicus brief opposing President Trump’s Executive Order establishing an entry ban on individual from seven Muslim-majority countries; and new guidance from the OECD with regard to due diligence in apparel and footwear supply chains.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: expected efforts by the U.S. Congress to repeal the Securities and Exchange Commission’s revenue transparency rule; the dismissal of a case against Royal Dutch Shell in the United Kingdom stemming from the company’s activities in Nigeria; and the revival of claims against Tahoe Resources in British Columbia on the basis of the alleged shooting of protestors at a mine site in Guatemala.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: updates on litigation in the Doe v. Nestle case; a private members’ bill in the United Kingdom that would expand the scope of the Modern Slavery Act; and an easing of U.S. sanctions against Sudan.

  • As noted previously,…
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Litigation Update: Plaintiffs Survive Motion to Dismiss in Case Involving Claims of Forced Labor in Corporate Supply Chains

Today, January 11, is National Human Trafficking Awareness Day, and therefore a good time to revisit some recent litigation developments. On November 9, a date on which most of the American media was focused on the Presidential election results, there were significant developments in the Keo Ratha v. Phattana Seafood Co. litigation, a case involving allegations of human trafficking in corporate supply chains. The District Court for the Central District of California issued an order that will allow the case to go forward,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: IHRB’s annual list of the Top 10 business and human rights issues for the coming year; the latest benchmarking report from Know the Chain focused on apparel and footwear companies; and the release of a reference annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: new reports on the corporate responsibility to respect human rights; a report on sustainability disclosures in corporate filings with the U.S. Securities and Exchange Commission (“SEC”); a draft law in France that would require companies to conduct human rights due diligence; and developments in human rights litigation against Chiquita.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an important decision by the Supreme Court of British Columbia with regard to a case raising forced labor concerns; the release of the U.S. Department of Labor’s most recent List of Goods Produced by Child Labor and Forced Labor;… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an announcement by the International Criminal Court regarding the potential for the prosecution of crimes based on environmental harm and land grabs; the lifting of sanctions on Burma and the end of the Burma Reporting Requirements on Responsible Investment; and new attention to the operational and reputational risks associated with global shipping.… More

Alien Tort Case Development: Plaintiffs Overcome Presumption against Extraterritoriality, but Still No Corporate Liability in the Second Circuit

On August 24, the Second Circuit Court of Appeals affirmed the dismissal of plaintiffs’ claims in a case filed against Lebanese Canadian Bank pursuant to the Alien Tort Statute (“ATS”). Plaintiffs in the case, Licci et al. v. Lebanese Canadian Bank, allege that the bank facilitated rocket attacks in Israel through the provision of a bank account in New York that allowed for wire transfers on behalf of Hezbollah.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: litigation developments in cases that address the “Social Cost of Carbon,” the liability of interactive media service providers, and human trafficking in corporate supply chains; and a new global ranking of countries according to the relative risk of human trafficking and forced labor.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new report from the U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; reviews of the latest round of conflict minerals reports; corporate efforts to address the risks of sex and labor trafficking in connection with the Olympic Games;… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the release of the third, and likely final, draft of the World Bank’s revised safeguard policies; guidance for management accountants on how to identify human rights-related risks and manage human rights performance; and developments in a major Alien Tort Statute case.

  • On July 20,…
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Second Circuit Holds that the U.S. Government Can’t Order Microsoft to Disclose Customer Emails Stored in Ireland

Cloud computing security conceptIn a case closely watched by privacy advocates, on July 14, the Second Circuit Court of Appeals held that the Stored Communications Act (“SCA”) does not authorize U.S. law enforcement authorities to order U.S.-based companies to turn over customer e-mail content that is stored exclusively outside the United States.

In the case, Microsoft v. United States of America, Microsoft challenged a warrant requiring it to turn over customer data,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new lawsuit aimed at combating human trafficking in corporate supply chains; the release of the 2016 Trafficking in Persons Report by the U.S. State Department; and a change in the Reporting Requirements on Responsible Investment in Burma.

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new guide for business lawyers from the International Bar Association that seeks to promote implementation of the U.N. Guiding Principles on Business and Human Rights; the public release of Know the Chain’s first report benchmarking technology companies on efforts to address forced labor in their supply chains;… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: new guidance for boards of directors on business and human rights; the launch of the Responsible Sourcing Tool; the release of the 2016 Global Slavery Index; and a new code of conduct in Europe by which American Internet companies have committed to taking actions to combat illegal hate speech.… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: new private and public initiatives on recruitment fees, including a proposal to further amend the U.S. Government’s Federal Acquisition Regulation to provide a clear definition of such fees; the dismissal of a lawsuit brought by victims of the Rana Plaza factory collapse;… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: an overview of amicus briefs in the Apple case; the arrest of a Facebook executive in Brazil; and a statement from the U.S. Government on its human rights “commitments and pledges,” including its forthcoming adoption of a National Action Plan on Responsible Business Conduct.… More

U.S. Congress Finally Eliminates the Consumptive Demand Exception

iStock_000068742157_SmallOn February 11, the U.S. Senate passed the Trade Facilitation and Trade Enforcement Act and President Obama is expected to sign the legislation this week. A key provision in the Act eliminates the “consumptive demand exception,” a long-standing loophole in the prohibition against the importation into the United States of goods made with forced labor.

Pursuant to the consumptive demand exception, companies have been able to import goods produced with forced labor if the “consumptive demand”… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: recent developments with regard to a major Alien Tort Statute case; the announcement of a pilot effort to benchmark corporate human rights performance; and a major new report demonstrating the potential links between anti-corruption compliance programs and effort to eradicate labor trafficking in corporate supply chains.… More

SEC Extractive Industry Transparency Requirements Move Forward

UntitledOn December 11, 2015, the Securities and Exchange Commission (“SEC”) issued a new proposed rule to implement a key provision of the Dodd-Frank Act that targets corruption and increases transparency requirements for payments made to foreign governments by the oil, gas, and mining industries.

The SEC voted to re-propose rule 13q-1 and proposed an amended form SD to implement Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… More

Corporate Defendants Find a Safe Harbor in California Transparency Litigation

thumbnailA District Court judge in California has dismissed a complaint against Nestlé USA Inc. and Nestlé Purina Petcare Co. (together “Nestlé”) which argued that the company was obligated to inform consumers that seafood in its catfood products may have been sourced from forced labor. Plaintiffs alleged violations of the California Unfair Competition Law, the Legal Remedies Act, and the California False Advertising Law.

Specifically, plaintiffs stated that they would not have purchased the company’s products if they had been informed that the seafood in those products was linked to forced labor,… More

Alien Tort Case Development: Still No Corporate Liability in the Second Circuit (At Least for Now)

Alien Tort GavelOn December 8, the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank, PLC. Plaintiffs in each of the cases alleged that they, or their family members, had been harmed in attacks by terrorist organizations that had received financing, in part, as a result of accounts and transfers arranged by the bank.

Claims in the consolidated cases, … More

Managing Legal and Reputational Risks in an Era of Enhanced Transparency

HiRes (2)Companies face a range of new requirements and expectations calling for enhanced transparency regarding human rights-related risks in connection with their operations. Responsible compliance with both mandatory requirements and voluntary standards requires a coordinated internal approach that seeks to address the concerns of key stakeholders while mitigating potential legal risks.

Examples of new transparency requirements include:

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for our latest overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes notice of several new lawsuits regarding human rights concerns in corporate supply chains as well as coverage of the European Court of Justice’s recent decision to strike down the 15-year old “Safe Harbor” agreement allowing companies to self-certify that their data transfers between the United States and Europe are in compliance with E.U.… More

Securities and Exchange Commission Sets Schedule for Rulemaking on Revenue Transparency

TransparencyOn October 2, the Securities and Exchange Commission (“SEC”) filed a schedule with the U.S. District Court for the District of Massachusetts providing details as to when the agency will seek to issue a final rule on revenue transparency.

As discussed in previous posts, the SEC originally issued a rule in August 2012 implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… More

Five on Friday: Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmall

There continue to be regular developments in the business and human rights field that warrant attention from both companies and their stakeholders. New legislation and regulation, shifting policy positions, and developments in ongoing litigation…there is always a lot to discuss.

To conclude this week, we have put together a rundown of five recent developments that we’ve been watching closely:

  • On September 2,…
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National Labor Relations Board Issues Controversial Decision Regarding Who is a Joint Employer

ConferenceThis post, written by Rob Fisher, was originally published as a client alert by the firm’s Labor & Employment practice. 

One of the most fundamental concepts under federal labor law is identifying who is the employer. Under the National Labor Relations Act, “the employer” has a duty to bargain with the union representing its employees, is bound by the collective bargaining agreement,… More

Alien Tort Case Development: Second Circuit Affirms Dismissal of Claims Against Ford and IBM

Alien Tort Gavel

Earlier this week, the Second Circuit Court of Appeals affirmed a decision in In re: South African Apartheid Litigation dismissing claims brought pursuant to the Alien Tort Statute (“ATS”) against Ford and IBM. Plaintiffs had alleged that the companies aided and abetted tortious conduct by South Africa’s apartheid regime.

The Court observed that the “focus” of the necessary inquiry as to whether plaintiffs’… More

Frequently Asked Questions on the U.S. Government’s National Action Plan on Responsible Business Conduct

Global BusinessOn February 12, the U.S. Department of State released a set of “Frequently Asked Questions” (“FAQs”) with regard to the U.S. Government’s efforts to develop a National Action Plan on Responsible Business Conduct. The plan is expected to be released by the end of this year.

As announced in September, the U.S. Government is working on a National Action Plan “to promote and incentivize responsible business conduct,… More

Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum

Alien Tort GavelIn mid-December, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum. Plaintiffs in the case argued that Occidental should be held liable for the deaths of three union leaders in Colombia who were killed by the Colombian National Army’s 18th Brigade in 2004. The court affirmed the lower court’s finding that the case raised non-justiciable political questions.… More

Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum and AirScan

Alien Tort GavelOn November 12, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum and AirScan. The case, Mujica v. AirScan, involves claims by Colombian plaintiffs alleging that the companies were complicit in a 1998 bombing of a Colombian village by the Colombian Air Force. The Ninth Circuit held that plaintiffs’ claims did not rebut the presumption against extraterritorial application of ATS that has served as a significant obstacle for plaintiffs in ATS cases ever since the Supreme Court’s 2013 decision in Kiobel v.… More

Alien Tort Case Development: The Second Circuit Assesses the Appropriate Focus of Jurisdictional Inquiries

Alien Tort GavelOn October 23, the Second Circuit Court of Appeals issued a decision in Mastafa v. Chevron Corp., a case filed against Chevron Corp. and BNP Paribas pursuant to the Alien Tort Statute (“ATS”). The court upheld the District Court’s dismissal of the plaintiffs’ complaint. In upholding the dismissal, the court held that the “focus” of the jurisdictional inquiry in ATS cases must be the specific conduct that allegedly violated the law of nations and where that conduct occurred.… More

Alien Tort Case Development: Litigation Against Exxon Mobil Corporation May Proceed

Alien Tort GavelIn late September, the District Court for the District of Columbia ruled that two closely related cases filed against Exxon Mobil Corporation, and several of the company’s subsidiaries, could proceed. Plaintiffs in both cases, Doe I v. Exxon Mobil and Doe VIII v. Exxon Mobil, allege that the company is liable for human rights abuses committed by members of the Indonesian military who had been engaged to provide security for the company’s operations in Indonesia.… More

United States to Develop National Action Plan on Responsible Business Conduct

Global BusinessOn September 24, at a meeting of the Open Government Partnership at the United Nations, President Obama announced that the U.S. Government would develop a national action plan to promote responsible business conduct. The United States had been under considerable pressure from civil society organizations and others to develop such a plan.

Specifically, and as stated in a fact sheet released by the White House:

The United States will develop a National Action Plan to promote and incentivize responsible business conduct,… More

A Conference on Law and Corporate Social Responsibility

International Bar Association Conference on Law and Corporate Social ResponsibilityIt used to be that the links between corporate social responsibility (“CSR”) and the law were not so clear. Practitioners in the field were few and far between and often faced considerable challenges in defining their roles and expertise to both internal and external stakeholders.

It is clear that times are changing. On September 19, many practitioners in the field of CSR and the law will gather in London for a conference hosted by the International Bar Association on “… More

Alien Tort Case Developments: Fourth and Eleventh Circuits Apply Kiobel’s “Touch and Concern” Standard

In the lastAlien Tort Gavel month, two federal appellate courts have issued decisions in cases filed against U.S.-based corporations pursuant to the Alien Tort Statute (“ATS”). Both courts applied the “touch and concern” standard established by the Supreme Court in its 2013 decision in Kiobel v. Royal Dutch Petroleum with one court finding that jurisdiction was proper and the other court finding that “there is no jurisdiction” because all relevant conduct took place outside the United States.… More

European Court Establishes “Right to be Forgotten” Online

Flag_of_Europe.svgToday’s decision by the European Court of Justice (ECJ) that individuals enjoy the right to have truthful yet unflattering information about them “forgotten” from online search results is generating a great deal of controversy in Europe and beyond. In a case brought by Spanish national Mario Costeja Gonzalez against Google demanding that the search giant remove results referring to a years-old newspaper notice of a tax auction of his property,… More

D.C. Circuit Largely Upholds SEC’s Conflict Minerals Rule But Supports First Amendment Challenge

iStock_000013609814XSmall-e1374781449214On April 14, the D.C. Circuit Court of Appeals issued an opinion in National Association of Manufacturers v. SEC, a case that sought to challenge the conflict minerals rule released by the Securities and Exchange Commission (“SEC”) in August 2012.

The Court largely rejected the plaintiffs’ challenges, holding that the SEC did not act arbitrarily or capriciously in adopting the due diligence and disclosure requirements of the rule and in deciding not to include a de minimis exception.… More

Foley Hoag Authors Good Practice Note on Indigenous Peoples’ Rights and Free, Prior, and Informed Consent

Indigenous handsThe U.N. Global Compact recently released a Good Practice Note on Indigenous Peoples’ Rights and the Role of Free, Prior, and Informed Consent (“FPIC”) authored by Amy Lehr, an associate in Foley Hoag’s Corporate Social Responsibility practice. The Note complements the U.N. Global Compact’s release of a longer Business Reference Guide to the U.N. Declaration on the Rights of Indigenous Peoples. … More

Yaiguaje v. Chevron: Blurring the Lines between Parents and Subsidiaries in Ontario

GavelA recent ruling by Ontario’s highest court clarifying the law governing the enforcement of foreign judgments may turn Canada’s most populous province into an attractive forum for plaintiffs seeking to collect on judgments against multinational corporations.

On December 17, the Ontario Court of Appeal overturned a stay issued by the Ontario Superior Court of Justice in an enforcement action brought against Chevron and its Canadian subsidiary by a group of Ecuadorian plaintiffs.… More

Daimler AG v. Bauman: In Latest ATS Decision, the Supreme Court Limits Jurisdiction of U.S. Courts over Multinational Corporations

Supreme CourtA sweeping decision by the Supreme Court on January 14 has further restricted the circumstances under which plaintiffs may sue multinational corporations in U.S. courts for harms occurring outside the United States.

In Daimler AG v. Bauman, the Supreme Court unanimously rejected an attempt by twenty-two Argentinian plaintiffs to sue the German automaker in California for the alleged role of its Argentinian subsidiary in the deaths,… More

Land Tenure Risk: Why It Matters for Companies, Investors, and Communities

Sugar cane fieldTwo important new reports focus on land tenure conflicts between companies and communities.

In September, the Rights and Resources Initiative released a report entitled, “Global Capital, Local Concessions: A Data-Driven Examination of Land Tenure Risk and Industrial Concessions in Emerging Market Economies.” The report, drafted by the Munden Project, attempts to quantify the percentage of company land concessions that overlap community (particularly indigenous) claims,… More

ATS Case Developments Post-Kiobel: Interpreting the “Touch and Concern” Standard

gavelThe past few months have seen a few interesting developments in cases in which Alien Tort Statute (“ATS”) claims factor prominently. This judicial activity, much of which focuses on the significance of the presumption against extraterritoriality as applied to the ATS, is illustrative of some of the key questions that will inevitably arise as courts work to interpret and apply the Supreme Court’s holding in Kiobel v.… More

U.S. District Court Upholds the Conflict Minerals Rule

Gold NuggetOn July 23, the District Court for the District of Columbia rejected a challenge to the conflict minerals rule adopted by the Securities and Exchange Commission in August 2012 and published in September 2012.  Plaintiffs seeking a review of the rule included the National Association of Manufacturers, the Chamber of Commerce, and the Business Roundtable.

Plaintiffs had challenged the rule under the Administrative Procedure Act (“APA”),… More

The Transparency Wars: Coming to a Galaxy Near You?

iStock_000019388600XSmallEveryone is in favor of transparency and anti-corruption – at least, everyone except the occasional despot or dictator. Yet substantial controversy now swirls around the disclosure of the vast sums that governments receive from mining and oil projects.

The question is not whether the streams of payments paid to governments by oil, gas, and mining companies should be disclosed, but how.… More

Mandatory Payment Disclosure: Bloodied but Unbowed

TransparencyOn July 2, the U.S. District Court for the District of Columbia vacated the rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and remanded it to the Securities and Exchange Commission (“SEC”) for further consideration. Section 1504 requires Securities and Exchange Commission issuers involved in the extraction of oil, gas, and minerals to report on their payments to foreign governments and the U.S.… More

The ATS’s Second Act: The Supreme Court Looks to Address the Unanswered Questions of Kiobel

Supreme CourtThe U.S. Supreme Court granted cert on April 22 in two important cases for the future application of the Alien Tort Statute (“ATS”) following its decision last week in Kiobel v. Royal Dutch Petroleum

As discussed in last week’s post, in Kiobel, the Supreme Court offered  little guidance to litigants regarding what facts and circumstances would be sufficient to overcome the presumption against extraterritoriality in ATS cases.… More

Supreme Court Holds that Plaintiffs Must Overcome Presumption Against Extraterritoriality in Alien Tort Statute Cases

Supreme CourtEarlier today the U.S. Supreme Court issued its long-awaited ruling in Kiobel v. Royal Dutch Petroleum, the case that was to decide whether the Alien Tort Statute (“ATS”) could be applied to corporations as legal persons and whether such lawsuits could be based on actions that occurred outside of the territory of the United States. The Court did not directly address the question of corporate liability and stated that,… More

The Transparency Agenda: Section 1504 and Beyond

A number of significant briefs were filed recently with the U.S. Court of Appeals for the D.C. Circuit in support of Section 1504 of the Dodd-Frank Act, which requires oil, gas, and mining issuers to report on their payments to governments.

On January 16, Oxfam filed an intervenor brief in the case that the American Petroleum Institute (“API”) and others have brought against the Securities and Exchange Commission (“SEC”) to block its final rule. … More

Looking Ahead: Five Developments We’ll be Watching in 2013

As memories of New Year’s Eve fade, and another Inauguration Day winds down in Washington, D.C., it’s time to look ahead and identify key events and emerging trends that we think will help shape the business and human rights agenda in 2013.

Here are five developments that we’ll be watching closely:

Further integration of human rights considerations into business management systems. Eighteen months after the release of the U.N.… More

SEC Files Brief in Lawsuit Challenging Extractive Industry Transparency Rule

On January 2, the Securities and Exchange Commission (“SEC”) filed its brief (.pdf) in the lawsuit brought by the U.S. Chamber of Commerce, the American Petroleum Institute (“API”), the National Foreign Trade Council, and the International Petroleum Association of America that seeks to alter or overturn the SEC’s final extractive industry transparency rule.

The petitioners’ lawsuit made several key arguments,… More

Brazil’s Belo Monte Move: Will National Development Banks Start Taking Human Rights and Environmental Concerns More Seriously?

In late November, the Brazilian national development bank (“BNDES”, by its Portuguese initials) announced its approval of a $10.8 billion loan to finance the construction of the Belo Monte dam, the world’s third largest hydroelectric dam.  Approximately $1.5 billion, representing 11.2% of the loan, was earmarked for social and environmental programs — the largest amount ever set aside by BNDES for such purposes.… More

Petitioners Challenging Conflict Minerals Rule File Preliminary Statement of Issues and Proposed Briefing Schedule

On November 21, petitioners challenging the SEC’s new conflict minerals rule filed a “Preliminary Statement of Issues” with the D.C. Circuit Court of Appeals, setting forth an overview of the challenges they intend to raise in further briefing.

As discussed in an earlier post, on October 19, the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Business Roundtable filed a petition seeking review of the conflict minerals rule,… More

SEC Rejects Request to Stay New Extractive Industry Transparency Rule

On November 8, the Securities and Exchange Commission (“SEC”) rejected a request by industry groups to stay new regulations requiring disclosure of payments to governments relating to oil, gas, and mining projects. The American Petroleum Institute, U.S. Chamber of Commerce, and other groups in the extractive sector had urged the SEC to stay the requirements while the groups’ litigation against the rules proceeds.… More

Business Groups File Petition for Review of the SEC’s Conflict Minerals Rule

On October 19, the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Business Roundtable filed a petition seeking review of the Securities and Exchange Commission’s final conflict minerals rule, as released on August 22. Earlier today, the U.S. Court of Appeals for the District of Columbia issued an initial order establishing a preliminary schedule for the submission of documents by both the petitioners and the SEC.… More

The Future of the Alien Tort Statute, Take II: The U.S. Supreme Court Hears New Arguments on Extraterritorial Liability

iStock_000015258115XSmall(5)The U.S. Supreme Court started its new term on Monday with a holdover from the last term. The case of Kiobel v. Royal Dutch Petroleum was once again before the Court, this time with arguments focused on the question of whether the Alien Tort Statute (“ATS”) provides federal jurisdiction for tortious actions committed outside the territory of the United States by corporations.… More

Obama Administration Calls for Significant Restrictions on the Application of the Alien Tort Statute

The Obama Administration has filed a supplemental amicus brief with the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum arguing for significant limitations on the application of the Alien Tort Statute ("ATS") to conduct outside the United States. 

In its March order scheduling Kiobel for rehearing, the Supreme Court directed the parties to focus a new round of briefs on the following question:

Whether and under what circumstances the Alien Tort Statute,… More

U.S. Supreme Court Holds that the TVPA Does Not Apply to Organizations, but Corporate Officers Are Still Fair Game

Renewing speculation about the future of corporate liability for human rights abuses, last week the Supreme Court held unanimously in Mohamad v. Palestinian Authority that the Torture Victims Protection Act (“TVPA") cannot be used to sue organizations, and by extension, corporations. The Court, however, did not limit the type of individuals subject to suit under the Act, thus a corporation’s officers or employees may still find themselves open to suit under the TVPA.… More

Would the End of the Alien Tort Statute Mean an End to Corporate Liability for Human Rights Abuses?

If the U.S. Supreme Court strikes down, or severely limits, the Alien Tort Statute (“ATS”), what are the implications for plaintiffs and defendants in cases involving violations of international human rights law? The crystal balls were out in Washington recently as scholars and practitioners alike continued to speculate about the future of the ATS following the Supreme Court’s order to rehear arguments in Kiobel v.… More

A Surprise Twist: U.S. Supreme Court Will Rehear Kiobel

On March 5, less than a week after oral arguments in Kiobel v. Royal Dutch Petroleum, the Supreme Court ordered the case "restored to the calendar for reargument."  The Court’s order directed the parties to file new briefs on a calendar running through June 29.  The case will not be decided this term.  

The Court’s order directs the parties to focus their briefs on the following question:

Whether and under what circumstances the Alien Tort Statute,… More

U.S. Supreme Court Review of Corporate Liability Under the Alien Tort Statute — An Overview of the Oral Arguments in Kiobel v. Royal Dutch Petroleum

On February 28, in proceedings that were both closely watched and anxiously anticipated, the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum. For the first time, the question of whether corporations are proper defendants in Alien Tort Statute ("ATS") cases is squarely before the Court.  Petitioners had sought Supreme Court review of a decision by the Second Circuit Court of Appeals finding that corporations are not proper defendants under the ATS.… More

Liability and Immunity for Human Rights Violations: The Impact of Current Legal Developments on Corporate Responsibility

It is likely that the coming year will see a number of legal developments relating to the immunity and liability of corporations, states, and individuals as recognized by U.S. courts.  With an increasing number of suits filed against companies for human rights abuses, the question of whether immunity attaches is of great significance.

Courts inside and outside the United States are weighing questions regarding jurisdiction and immunity,… More

Ninth Circuit Upholds Corporate Liability Under the Alien Tort Statute

Almost one year ago, we wrote about the long history of Sarei v. Rio Tinto, an Alien Tort Statute ("ATS") case filed in 2000 against Rio Tinto Plc involving allegations stemming from the company’s mining operations on the island of Bougainville, Papua New Guinea. Last week, on October 25, the Ninth Circuit Court of Appeals reversed the District Court’s dismissal of plaintiffs’ claims for genocide and war crimes.… More

Seventh Circuit Upholds Corporate Liability Under the Alien Tort Statute

On Monday, July 11, for the second time in four days, a U.S. appellate court issued a decision stating that corporations are proper defendants in cases involving claims under the Alien Tort Statute (“ATS”). The Seventh Circuit Court of Appeals dismissed plaintiffs’ claims in Flomo v. Firestone, but held that “corporate liability is possible” under the ATS.

In a decision written by Circuit Judge Richard Posner,… More

D.C. Circuit Upholds Corporate Liability under the Alien Tort Statute

On July 8, the D.C. Circuit Court of Appeals reinstated a lawsuit brought against Exxon Mobil Corp. (“ExxonMobil”) by Acehnese villagers, alleging that the company and its Indonesian subsidiary are liable for killings, torture, and other human rights abuses committed by the Indonesian military. In a lengthy 2-1 decision, the D.C. Circuit held that companies are proper defendants under the Alien Tort Statute (“ATS”),… More

District Court Denies Motion to Dismiss Certain Alien Tort Statute Claims Against Chiquita Brands International

On June 3, the U.S. District Court for the Southern District of Florida declined to dismiss certain claims brought by Colombian plaintiffs against Chiquita Brands International ("Chiquita") alleging that the company knew, or should have known, that its material support for the United Self-Defense Forces of Colombia (“AUC”), a paramilitary organization, would lead to the death or torture of their family members. In Re: Chiquita Brands International,… More

Alien Tort Statute Update: Ninth Circuit Revives Bauman v. DaimlerChrysler Corp.

Last week, the Ninth Circuit Court of Appeals reversed and remanded a lower court’s decision to dismiss Bauman v. DaimlerChrysler Corp. The case involves allegations by residents of Argentina stating that one of DaimlerChrysler’s subsidiaries, Mercedes-Benz Argentina, collaborated with state security forces to kidnap, detain, torture and/or kill plaintiffs or their relatives during Argentina’s "Dirty War."  Plaintiffs have asserted claims under both the Alien Tort Statute ("ATS") and the Torture Victims Protection Act.… More

Corporate Social Responsibility and Risk Management – New Article in Executive Counsel Magazine

Gare Smith and I recently co-authored an article on corporate social responsibility ("CSR") and risk management for Executive Counsel magazine. In the article, "Making Corporate Social Responsibility Systemic," one issue we discuss is the potential risk to companies that "claim to have embraced CSR and then simply point to glossy reports reflecting anecdotal philanthropic initiatives to demonstrate the degree of their commitment." We believe that

such companies fail to develop the internal policies and mechanisms necessary to ensure that the correct people,… More

Podcast on Recent Legal Developments in the Field of Corporate Social Responsibility

Last week, Sarah Altschuller was interviewed on Capital Thinking, an internet radio program on VoiceAmerica Business Network. During the interview, she addressed several recent legal developments in the field of corporate social responsibility, including the Dodd-Frank provisions on conflict minerals and disclosure of payments to governments, as well as the California Transparency in Supply Chains Act.… More

Alien Tort Statute Update: Second Circuit Denies Petition for Rehearing En Banc in Kiobel v. Royal Dutch Petroleum

On February 4, the Second Circuit Court of Appeals denied plaintiffs’ petition for a rehearing en banc in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010).  Plaintiffs filed the petition after the Second Circuit held, in a controversial September 2010 decision, that corporations cannot be properly sued under the Alien Tort Statute (“ATS”) for violations of customary international law.… More

CSR and the Law: Five Big Developments in 2010

Looking back at 2010, there have been a number of significant legal developments in the field of corporate social responsibility.  New federal and state statutes have imposed due diligence requirements on companies with the specific intent of addressing human rights concerns, ranging from forced labor to the ongoing conflict in the Democratic Republic of Congo.  Courts continue to grapple with the potential scope of corporate liability under the Alien Tort Statute (“ATS”). … More

Ninth Circuit Reverses Dismissal of Carijano v. Occidental Petroleum

Early last week, the Ninth Circuit Court of Appeals revived a tort case brought by 25 members of the Peruvian Achuar indigenous group and Amazon Watch against Occidental Petroleum ("Occidental").  Plaintiffs allege that the company’s operations in the Peruvian Amazon resulted in severe contamination of the land and rivers in the region and that, as a result, they have suffered adverse health effects and negative impacts on their livelihoods.… More

Ten Years and Counting: Ninth Circuit Refers Sarei v. Rio Tinto to a Mediator

Ten years ago today, plaintiffs filed an Alien Tort Statute (“ATS”) suit against Rio Tinto Plc alleging that they were the victims of numerous violations of international law as the result of Rio Tinto’s mining operations on the island of Bougainville, Papua New Guinea.  Almost ten years later, on October 26, an en banc panel of the Ninth Circuit Court of Appeals referred the proposed class action,… More

Supreme Court Denies Certiorari in Presbyterian Church of Sudan v. Talisman Energy, Inc.

Earlier today, the United States Supreme Court issued an order (.pdf) declining to grant a writ of certiorari in response to plaintiffs’ petition, and defendant’s conditional cross-petition, seeking review of the Second Circuit’s decision in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2nd Cir. 2009).  The Second Circuit upheld a lower court decision dismissing the case, which involved allegations that Talisman Energy aided and abetted the Sudanese Government in committing human rights abuses in Southern Sudan. … More

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,… 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. … 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. … More

Iranian Journalist Files Alien Tort Statute Lawsuit against Nokia Siemens Networks

Isa Saharkhiz, an Iranian journalist who has been in detention in Iran since June 2009, and his son, a resident of New Jersey, recently filed suit against Nokia Siemens Networks (“NSN”), a joint venture of Nokia Corporation and Siemens Corporation.  The lawsuit, filed on August 16 in the District Court for the Eastern District of Virginia, includes claims under the Alien Tort Statute ("ATS") and the Torture Victim Protection Act and alleges that NSN aided and abetted the Iranian Government in detaining and torturing Mr.… More