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Presbyterian Church of Sudan v. Talisman Energy, Inc. (2D CIR.)

Published online by Cambridge University Press:  27 February 2017

Jennifer E. Marcovitz
Jennifer E. Marcovitz*
Affiliation:
Davis Polk & Wardwell LLP in New York.
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Type
International Legal Materials
Information
International Legal Materials , Volume 49 , Issue 1 , February 2010 , pp. 1 - 22
Copyright
Copyright © American Society of International Law 2010

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References

End notes

* This text was reproduced and reformatted from the text available at docstoc.com website (visited January 7, 2010) http://www.docstoc.com/docs/12581037/Presbyterian-Church-of-Sudan-v-Talisman-Energy

1 Alien Tort Statute, 28 U.S.C. § 1350 (2006) [hereinafter ATS].

2 Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006).

3 Id. at 665.

4 Relying on international law, the District Court defined the elements of aiding and abetting liability:

To show that a defendant aided and abetted a violation of international law, an ATS plaintiff must show:

  1. that the principal violated international law;

  2. that the defendant knew of the specific violation;

  3. that the defendant acted with the intent to assist that violation, that is, the defendant specifically directed his acts to assist in the specific violation;

  4. that the defendant’s acts had a substantial effect upon the success of the criminal venture; and

  5. that the defendant was aware that the acts assisted the specific violation.

Id. at 668 (emphasis added).

5 See Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009). The Second Circuit also affirmed the District Court’s holding regarding plaintiffs’ conspiracy claim and stated that plaintiffs had not established that international law universally recognized a doctrine of conspiracy liability that would extend to activity encompassed by the Pinkerton doctrine. See id. at 260 (discussing Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)).

6 Talisman, 582 F.3d at 255 (quoting Flores v. Southern Peru Copper Corp., 414 F.3d 233, 250 (2d Cir. 2003); United States v. Yousef, 327 F.3d 56, 103 (2d Cir. 2003)).

7 Id. at 254 (quoting Filártiga v. Peña-Irala, 630 F.2d 876, 881 (2d Cir. 1980)).

8 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

9 Talisman, 582 F.3d at 255 (quoting Sosa, 542 U.S. at 725).

10 See id. at 256 (citing Sosa, 542 U.S. at 762 (Breyer, J., concurring in part and concurring in judgment) (describing a ‘‘subset’’ of ‘‘universally condemned behavior’’ for which ‘‘universal jurisdiction exists,’’ including ‘‘torture, genocide, crimes against humanity, and war crimes’’); Flores, 414 F.3d at 244 n.18; Kadic v. Karadzic, 70 F.3d 232, 236 (2d Cir. 1995)).

11 Id. at 257 (emphasis added).

12 See id. at 258-59 (adopting the reasoning and proposed rule of Judge Katzmann’s concurring opinion in Khulumani, 504 F.3d 254, 268-77 (2d Cir. 2007)). Judge Hall’s conflicting reasoning in Khulumani would have relied on domestic law, namely the Restatement (Second) of Torts § 876(b), to determine the standard for aiding and abetting liability. The Restatement standard requires only (i) knowing (ii) encouragement (iii) that facilitated the substantive violation. See Khulumani, 504 F.3d at 287-89.

13 Id. at 259 (internal citations omitted).

14 See id. at 261-64.

15 See id. at 259; see also Chimene I. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61 (2008); Anthony J. Sebok, Taking Tort Law Seriously in the Alien Tort Statute, 33 Brooklyn J. Int’l L. 871, 881-83 (2008); Frank Christian Olah, MNC Liability for International Human Rights Violations Under the Alien Tort Claims Act, 25 Quinnipiac L. Rev. 751, 794-97 (2007); Philip A. Scarborough, Note, Rules of Decision for Issues Arising Under the Alien Tort Statute, 107 Colum. L. Rev. 457, 462 (2007); Tarek F. Maasarani, Four Counts of Corporate Complicity: Alternative Forms of Accomplice Liability Under the Alien Tort Claims Act, 38 N.Y.U. J. Int’l L. & Pol. 39 (2006); Daniel Diskin, Note, The Historical and Modern Foundations for Aiding and Abetting Liability Under the Alien Tort Statute, 47 Ariz. L. Rev. 805, 810 (2005); Edwin V. Woodsome, Jr. & T. Jason White, Corporate Liability for Conduct of a Foreign Government: The Ninth Circuit Adopts a ‘‘Reason to Know’’ Standard for Aiding and Abetting Liability Under the Alien Tort Claims Act, 26 Loy. L.A. Int’l & Comp. L. Rev. 89, 108 (2003). Tribunals that espouse a knowledge standard include the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). See Prosecutor v. Furundzija, Case. No. IT-95-17/1-T, Judgment, ¶¶ 236-48 (Dec. 10, 1998); Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment, ¶¶ 180-81 (Jan. 27, 2000).

16 Several recent decisions in other circuits have similarly reached conclusions that will effectively limit the reach of the ATS. See, e.g., Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (holding that in cases where the United States nexus is weak, U.S. courts should apply exhaustion of remedies to ATS claims); Turedi v. Coca-Cola Co., No. 06-5454-cv, 2009 U.S. App. LEXIS 14794 (2d Cir. 2009) (affirming dismissal of ATS claim on the grounds of forum non conveniens); Villeda Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (11th Cir. 2009) (same); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) (applying heightened pleading standards to ATS claimants and dismissing claims for failure to state a claim upon which relief could be granted).

17 617 F. Supp. 2d 228 (S.D.N.Y. 2009) (appeal to the Second Circuit argued January 11, 2010; decision pending).

18 562 F.3d 163 (2d Cir. 2009) (pending certiorari before the U.S. Supreme Court).

19 Talisman, 582 F.3d at 261 n.12 (‘‘We will also assume, without deciding, that corporations such as Talisman may be held liable for the violations of customary international law that plaintiffs allege. Because we hold that plaintiffs’ claims fail on other grounds, we need not reach, in this action, the question of ‘whether international law extends the scope of liability’ to corporations’’) (quoting Sosa, 542 U.S. at 732 n.20).

20 See Sosa, 542 U.S. at 732 n.20 (comparing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadzic, 70 F.3d 232, 239-41 (2d Cir. 1995) (sufficient consensus in 1995 that genocide by private actors violates international law)).

21 See Kadic, 70 F.3d at 239-41.

1 The facts are set forth in detail in the district court’s summary judgment decision. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 641-61 (S.D.N.Y. 2006). We recount only those facts that bear upon the disposition of the appellate issues.

2 Talisman argues that security reports prepared for Greater Nile are inadmissible because of ‘‘multiple levels of hearsay lurking’’ in the documents and the absence of a hearsay exception allowing for their admission. We do not reach this question, because even assuming the reports would be admissible in their entirety, they would not defeat summary judgment.

3 On August 27, 2004, after the submission of relevant discovery, the district court again denied a motion to dismiss for lack of personal jurisdiction. Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2004 WL 1920978 (S.D.N.Y. Aug. 27, 2004).

4 In 2005, the district court denied two motions for class certification on the ground that plaintiffs failed to satisfy the ‘‘predominance requirement.’’ Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 482-85 (S.D.N.Y. 2005); Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2005 WL 2278076, at *1 (S.D.N.Y. Sep. 20, 2005). The court explained that all class members would have to show ‘‘that the injuries for which they are claiming damages were actually caused by [a Government campaign in the south],’’ which would require individual, fact-intensive inquiries, given the numerous factions of rebel groups and the fog of war. Presbyterian Church of Sudan, 226 F.R.D. at 482. Moreover, ‘‘damages to class members occurred over more than four years, a territory of many hundreds of square miles, . . . [and] through at least 142 separate incidents.’’ Presbyterian Church of Sudan, 2005WL2278076, at *3.

5 Flores cited Article 38 of the Statute of the International Court of Justice, which provides that courts should look to the following sources of international law:

  • international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

  • international custom, as evidence of a general practice accepted as law;

  • the general principles of law recognized by civilized nations;

  • subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists [i.e., scholars or ‘‘jurists’’] of the various nations, as subsidiary means for the determination of rules of law.

414 F.3d at 251 (italics omitted)(quoting Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 33 U.N.T.S. 993).

6 The district court used the phrase ‘‘widespread and systematic,’’ but plaintiffs argue that this was error, and that ‘‘and’’ should be replaced by ‘‘or.’’ (Pls.’ Br. 65). We assume for purposes of this appeal that plaintiffs’ formulation is correct.

7 We address aiding and abetting liability—a concept typically associated with the criminal law—because customary international law norms prohibiting genocide, war crimes, and crimes against humanity have ‘‘been developed largely in the context of criminal prosecutions rather than civil proceedings.’’ John Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002); see also Khulumani, 504 F.3d at 270 n.5 (Katzmann, J., concurring)(‘‘[ O]ur case law . . . has consistently relied on criminal law norms in establishing the content of customary international law for purposes of the [ATS].’’).

8 Judge Katzmann’s individual opinion contains a thorough discussion of aiding and abetting principles. This opinion sets forth only so much of Judge Katzmann’s analysis as is necessary to provide the context of our holding. For an extended discussion of the aiding and abetting issue, see Khulumani, 504 F.3d at 268-77 (Katzmann, J., concurring).

9 A consideration related to whether the ATS provides jurisdiction over a norm is ‘‘whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.’’ Sosa, 542 U.S. at 732 n.20.

10 ‘‘[U]nder Pinkerton, a defendant may be found ‘guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy.’’’ United States v. Bruno, 383 F.3d 65, 89 (2d Cir. 2004) (quoting United States v. Miley, 513 F.2d 1191, 1208 (2d Cir. 1975)).

11 Plaintiffs argue that federal conspiracy law should apply to ATS claims. See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (applying domestic law to ATS conspiracy claim). Judge Cote rejected that approach, holding that Sosa required applying international law. Presbyterian Church, 453 F. Supp. 2d at 665 n.64. We agree with Judge Cote. Moreover, plaintiffs would fare no better if we adopted their preferred definition of conspiracy, because that definition (derived from domestic law) also requires proof ‘‘that . . . [the defendant] joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it.’’ Cabello, 402 F.3d at 1159 (emphasis added).

12 We will also assume, without deciding, that corporations such as Talisman may be held liable for the violations of customary international law that plaintiffs allege. Because we hold that plaintiffs’ claims fail on other grounds, we need not reach, in this action, the question of ‘‘whether international law extends the scope of liability’’ to corporations. Sosa, 542 U.S. at 732 n.20.

13 The district court also addressed plaintiffs’ allegations that Talisman assisted the Government by ‘‘using its community development program as a cover for gathering military intelligence’’ and by publicly denying knowledge of human rights violations. Presbyterian Church of Sudan, 453 F. Supp. 2d at 677. Plaintiffs do not raise the former point on appeal and we agree with the district court that publicly denying knowledge of abuses is not ‘‘substantial assistance.’’

14 Talisman argues that this statement (and others cited by plaintiffs) references an area of 5km and 8km around the Heglig and Unity camps, respectively, not a zone covering the entirety of the concession area.

15 Plaintiffs also rely on Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 128 (S.D.N.Y. 1990), in which the district court denied summary judgment on a sexual harassment claim. Halbrook is inapposite because the court in that case deferred ruling on trial evidence given its denial of summary judgment. The court did not articulate a general rule for considering evidence on summary judgment.

16 Plaintiffs also appeal from the denial of their motions for class certification. Because we affirm the district court’s grant of summary judgment as to all claims against Talisman, we do not reach that issue.