In Jama v. Esmor Correctional Services, Inc., the second Alien Tort Claims Act case to survive dispositive motions and proceed to trial, the claims at issue were not premised on overseas acts but instead on conduct that took place solely within the United States. In this Commentary, Jonathan Drimmer, a partner at Steptoe & Johnson who advises corporations on issues related to Alien Tort Claims Act compliance, discusses the implications of these proceedings for corporations both at home and abroad.
Mr. Drimmer writes: In contrast to the fanfare surrounding the first corporate Alien Tort Claims Act (“ATCA”) case to proceed to trial, the second such trial – which concluded late last year – went almost unnoticed. Although the jury rejected the plaintiff’s claims that Esmor Correctional Services, the private prison operator, violated the ATCA by subjecting her to physical and psychological abuse during her detention, the case could end up opening a new potential wave of corporate ATCA cases. The claims at issue were not premised on overseas acts, as with most other ATCA cases, but on conduct that took place solely within the United States. That posture, given the growing surge of high-stakes ATCA lawsuits against corporations and their officers and the fact that a corporate ATCA case can survive dispositive motions and reach a jury, requires that companies and their inhouse pay particularly close attention to ATCA issues at home and abroad.
Part of U.S. federal law since the nation’s founding, the ATCA permits aliens to file civil lawsuits in the U.S. for “violations of the law of nations or a treaty ratified by the United States.” For some two centuries, the ATCA remained dormant. In 1980, it was revived in a landmark human rights case, Filartiga v. Pena-Irala. The plaintiffs, Paraguayan citizens, filed suit in New York under the ATCA against a Paraguayan police official for acts of torture and murder of a relative in Paraguay. The lawsuit thus had no U.S. link; the acts were committed abroad, by a non-U.S. citizen, against a non-U.S. citizen. When courts permitted the lawsuit to proceed, there was an ATCA explosion, with scores of foreign plaintiffs following the Filartiga model and invoking the law to emphasize human rights abuses committed abroad.
It was not until 1993, however, when Texaco was accused of environmental devastation in Ecuador, that the trend began of using the Act to sue corporations for overseas activities. Since then, dozens of companies have faced complaints for a wide variety of alleged activities that plaintiffs claim violated the “law of nations,” from the treatment of workers in Liberia, to groundwater pollution in India, to providing information about dissidents to the Chinese government, to the use of herbicides in Vietnam, to allegedly trafficking children to cultivate and harvest crops in the Ivory Coast, to the use of pesticides in Ecuador, to torture, war crimes, genocide and crimes against humanity in Sudan, Guatemala, Nigeria, Colombia, and elsewhere. Although the allegations in these tort-based corporate ATCA cases vary, they have tended to adhere to Filartiga’s extraterritorial model in alleging violations of the law of nations wrongs based on foreign activities. [citations omitted]