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Human Rights 4/6/2009 4:20:50 PM EST Drimmer & Ardito on Abdullahi v. Pfizer, Inc., 2009 U.S. App. LEXIS 1768 (2d Cir. Jan. 30, 2009)
On January 30, 2009, the Second Circuit reinstated a consolidated case filed by parents and guardians of Nigerian children against Pfizer, employing an analysis that indicates an increasing comfort in allowing ATCA cases to proceed where serious violations of international law may be at issue. This commentary, prepared by Jonathan Drimmer and Laura Ardito of the firm of Steptoe & Johnson, discusses this decision and its implications.
The authors write: In an important decision under the Alien Tort Claims Act (ATCA), 28 U.S.C. 1350, on January 30, 2009, the U.S. Court of Appeals for the Second Circuit reinstated a consolidated case filed by the parents and guardians of Nigerian children against Pfizer, Inc. (Pfizer). Abdullahi v. Pfizer, Inc., Nos. 05-4863, 05-6768, 2009 U.S. App. LEXIS 1768 (2d Cir. Jan. 30, 2009). The case is based on allegations that Pfizer tested an experimental drug on the children without their knowledge or consent. The U.S. District Court for the Southern District of New York had dismissed the case for lack of subject matter jurisdiction under the ATCA and, alternatively, on forum non conveniens grounds. Abdullahi v. Pfizer, Inc., 01 Civ. 8118 (WHP), 2005 U.S. Dist. LEXIS 16126 (S.D.N.Y. 2005). In reversing that decision, the Second Circuit employed an analysis that, similar to other courts, indicates an increasing comfort in allowing ATCA cases to proceed in the United States where serious violations of international law may be at issue. For multi-national companies, this means that the likelihood of prevailing on equitable and even technical legal defenses may decrease as the gravity of an alleged violation increases.
The ATCA allows foreign litigants to file civil actions in U.S. federal courts where premised on violations of the law of nations, wherever they may be committed. 28 U.S.C. 1350. On the books since the nations first Judiciary Act in 1789, the ATCA largely remained dormant for 200 years. In 1980, when Paraguayan citizens relied on the Act in bringing suit in New York against a Paraguayan police official for acts of torture and murder in Paraguay, the Act was resuscitated. Since then, scores of ATCA claims have been filed, leading to damage awards that have regularly topped $10 million and occasionally more than $100 million. Yet, even defendants who prevail in these cases face the heavy costs of substantial litigation expenses and negative publicity.
For multi-national corporations, to date, the Act has been invoked by plaintiffs more than 120 times in cases brought in the U.S., most of which have been filed since 2000. That trend has also spawned second generation human rights cases against corporations, which have not relied on the ATCA but on securities laws, traditional common law torts, unfair competition and advertising laws, and other theories. See, e.g., Kasky v. Nike, 45 P.3d 243 (Cal. 2002); Sheet Metal Workers #218 Pension Fund v. Hills, 1:07-CV-01957-PLF, Complaint, Oct. 31, 2007 (D.D.C.).
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