`In the Supreme Court of the United States
`NESTLÉ USA, INC., PETITIONER
`v.
`JOHN DOE I, ET AL.
`
`
`
`
`
`CARGILL, INC., PETITIONER
`v.
`JOHN DOE I, ET AL.
`
`
`
`ON PETITIONS FOR WRITS OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`JOSEPH H. HUNT
`Assistant Attorney General
`JEFFREY B. WALL
`Deputy Solicitor General
`HASHIM M. MOOPPAN
`Deputy Assistant Attorney
`General
`AUSTIN L. RAYNOR
`Assistant to the Solicitor
`General
`MELISSA N. PATTERSON
`DANA L. KAERSVANG
`JOSHUA M. KOPPEL
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`MARIK A. STRING
`Acting Legal Adviser
`Department of State
`Washington, D.C. 20520
`
`
`
`
`
`
`QUESTIONS PRESENTED
`1. Whether domestic corporations are subject to lia-
`bility under the Alien Tort Statute (ATS), 28 U.S.C.
`1350.
`2. Whether a cause of action for aiding and abetting
`a violation of international law may be implied under the
`ATS.
`3. Whether general allegations of corporate over-
`sight in the United States are sufficient to overcome the
`bar against extraterritorial claims under the ATS.
`
`
`
`
`
`
`(I)
`
`
`
`TABLE OF CONTENTS
`
`Page
`Statement ...................................................................................... 2
`Discussion ...................................................................................... 6
`A. The question whether the ATS authorizes liability
`for domestic corporations warrants review .................. 8
`B. The Court should add the question of whether the
`ATS imposes aiding-and-abetting liability .................. 13
`C. The question whether respondents’ claims are
`impermissibly extraterritorial warrants review......... 18
`D. The petition in Cargill is a suitable vehicle for
`review of all three questions ......................................... 22
`Conclusion ................................................................................... 23
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Adhikari v. Kellogg Brown & Root, Inc.,
`845 F.3d 184 (5th Cir.), cert. denied,
`138 S. Ct. 134 (2017) ........................................................... 21
`Aziz v. Alcolac, Inc., 658 F.3d 388
`(4th Cir. 2011) ...................................................................... 17
`Bivens v. Six Unknown Named Agents of Federal
`Bureau of Narcotics, 403 U.S. 388 (1971) ...................... 5, 9
`Central Bank of Denver, N. A. v. First Interstate
`Bank of Denver, N. A., 511 U.S. 164 (1994) ........... 7, 15, 16
`Correctional Servs. Corp. v. Malesko, 534 U.S. 61
`(2001) .......................................................................... 7, 10, 15
`Doe v. Drummond Co., 782 F.3d 576
`(11th Cir. 2015), cert. denied, 136 S. Ct. 1168 (2016) ....... 21
`Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057
`(C.D. Cal. 2010) ......................................................... 2, 13, 15
`Doe I v. Nestle USA, Inc., 766 F.3d 1013
`(9th Cir. 2014), cert. denied, 136 S. Ct. 798
`(2016) ............................................................... 3, 13, 14, 20, 22
`
`(III)
`
`
`
`IV
`
`Page
`
`Cases—Continued:
`Doe VIII v. Exxon Mobil Corp., 654 F.3d 11
`(D.C. Cir. 2011), vacated, 527 Fed. Appx. 7
`(D.C. Cir. 2013) ....................................................... 12, 16, 17
`Eastern Trading Co. v. Refco, Inc., 229 F.3d 617
`(7th Cir. 2000), amended on denial of reh’g
`(Nov. 29, 2000) ..................................................................... 19
`Flomo v. Firestone Natural Rubber Co., LLC,
`643 F.3d 1013 (7th Cir. 2011) ............................................. 12
`Halberstam v. Welch, 705 F.2d 472
`(D.C. Cir. 1983) ................................................................... 19
`Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......................... 19
`Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) .... passim
`John Doe I v. Nestle USA, Inc., 788 F.3d 946
`(9th Cir. 2015) .............................................................. 3, 4, 17
`Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254
`(2d Cir. 2007), aff ’d sub nom. American Isuzu
`Motors, Inc. v. Ntsebeza, 553 U.S. 1028
`(2008) .................................................................. 11, 16, 17, 19
`Kiobel v. Royal Dutch Petroleum Co.:
`621 F.3d 111 (2d Cir. 2010), cert. denied,
`565 U.S. 881, and cert. granted,
`565 U.S. 961 (2011), aff ’d,
`569 U.S. 108 (2013) .................................................... 12
`569 U.S. 108 (2013) ................................................. passim
`Major League Baseball Players Ass’n v. Garvey,
`532 U.S. 504 (2001).............................................................. 14
`Mastafa v. Chevron Corp., 770 F.3d 170
`(2d Cir. 2014) ................................................................. 21, 22
`Morrison v. National Australia Bank Ltd.,
` 561 U.S. 247 (2010) ............................................................. 18
`Presbyterian Church of Sudan v. Talisman Energy,
`Inc., 582 F.3d 244 (2d Cir. 2009),
`cert. denied, 562 U.S. 946 (2010) ....................................... 17
`
`
`
`
`
`V
`
`Page
`
`Cases—Continued:
`RJR Nabisco, Inc. v. European Community,
`136 S. Ct. 2090 (2016) ........................................... 4, 8, 18, 20
`Romero v. Drummond Co., 552 F.3d 1303
`(11th Cir. 2008) .............................................................. 12, 17
`Sarei v. Rio Tinto, PLC, 671 F.3d 736
`(9th Cir. 2011), cert. granted, judgment vacated,
`569 U.S. 945 (2013)........................................................ 14, 18
`Sosa v. Alvarez-Machain, 542 U.S. 692
`(2004) .................................................................2, 6, 15, 16, 17
`United States v. Smith, 198 F.3d 377
`(2d Cir. 1999), cert. denied, 531 U.S. 864 (2000) .............. 19
`United States v. Williams, 504 U.S. 36 (1992) ................... 13
`Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ................ 5, 9, 10, 15
`
`Treaties and statutes:
`Charter of the International Tribunal, Aug. 8, 1945,
`art. 6, 59 Stat. 1545, 82 U.N.T.S. 282 .......................... 14, 15
`Statute of the International Criminal Tribunal for
`Rwanda, S.C. Res. 955, art. 6,
`U.N. Doc. S/RES/955 (Nov. 8, 1994) ................................. 14
`Alien Tort Statute, 28 U.S.C. 1350 ............................. passim
`Torture Victim Protection Act of 1991,
`Pub. L. No. 102-256, 106 Stat. 73 ...................................... 10
`28 U.S.C. 1350 note ......................................................... 16
`Trafficking Victims Protection Act of 2000,
`22 U.S.C. 7101 et seq. .......................................................... 16
`18 U.S.C. 2(a) ......................................................................... 19
`18 U.S.C. 1595(a) ................................................................... 16
`
`Miscellaneous:
`2 Wayne R. LaFave, Substantive Criminal Law
`(3d ed. 2017) ......................................................................... 19
`Restatement (Second) of Torts (1979) ................................. 19
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 19-416
`NESTLÉ USA, INC., PETITIONER
`v.
`JOHN DOE I, ET AL.
`
`
`
`No. 19-453
`CARGILL, INC., PETITIONER
`v.
`JOHN DOE I, ET AL.
`
`
`
`ON PETITIONS FOR WRITS OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
`This brief is submitted in response to the Court’s or-
`der inviting the Solicitor General to express the views
`of the United States. In the view of the United States,
`the petition for a writ of certiorari in No. 19-453 should
`be granted, and the Court should add a question ad-
`dressing the availability of aiding-and-abetting liability.
`The petition for a writ of certiorari in No. 19-416 should
`be held pending the Court’s disposition of the petition
`in No. 19-453.
`
`(1)
`
`
`
`2
`
`STATEMENT
`1. The Alien Tort Statute (ATS) provides in full:
`“The district courts shall have original jurisdiction of
`any civil action by an alien for a tort only, committed in
`violation of the law of nations or a treaty of the United
`States.” 28 U.S.C. 1350. In Sosa v. Alvarez-Machain,
`542 U.S. 692 (2004), this Court held that although the
`“ATS is a jurisdictional statute creating no new causes
`of action,” it was “enacted on the understanding that the
`common law would provide a cause of action for [a] mod-
`est number of international law violations.” Id. at 724.
`Under Sosa, to recognize a new cause of action, courts
`must apply a two-step test: first, the suit must be based
`on an international-law norm that is “specific, universal,
`and obligatory,” and second, the court must determine
`whether permitting the suit to proceed is an appropri-
`ate exercise of judicial discretion. Id. at 732-733 (cita-
`tion omitted); see Jesner v. Arab Bank, PLC, 138 S. Ct.
`1386, 1402-1403, 1406-1407 (2018) (elaborating on the
`second step of the Sosa test).
`Respondents allege that they are former child slaves
`from Mali who were trafficked and forced to work culti-
`vating cocoa beans on farms in Côte d’Ivoire in violation
`of international law. Second Am. Compl. (Compl.) ¶¶ 1,
`80. They brought suit under the ATS, alleging that pe-
`titioners, who are domestic corporations, aided and
`abetted these international-law violations by, among
`other things, purchasing cocoa beans from farms that
`used child slaves and providing those farms with tech-
`nical assistance. Id. at ¶¶ 32-69.
`Petitioners moved to dismiss the complaint for fail-
`ure to state a claim, and the district court granted the
`motion. Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D.
`
`
`
`
`
`3
`
`Cal. 2010). The court concluded that aiding and abet-
`ting is a cognizable theory under the ATS, id. at 1078-
`1079, but held that the complaint’s allegations pleaded
`neither the mens rea nor the actus reus necessary to
`state a claim under international law, id. at 1098. The
`court further held that corporations are not amenable
`to suit under the ATS. Id. at 1124.
`Following the district court’s dismissal, this Court
`decided Kiobel v. Royal Dutch Petroleum Co., 569 U.S.
`108 (2013), in which it determined that the presumption
`against extraterritoriality applies to the ATS and noth-
`ing in the statute’s text or context overcomes that pre-
`sumption. Id. at 116, 124. Accordingly, “even where the
`claims touch and concern the territory of the United
`States, they must do so with sufficient force” to state a
`domestic claim. Id. at 124-125. “[M]ere corporate pres-
`ence” does not “suffice[].” Id. at 125.
`On appeal of the district court’s ruling, the Ninth
`Circuit reversed and remanded. Doe I v. Nestle USA,
`Inc., 766 F.3d 1013 (2014), cert. denied, 136 S. Ct. 798
`(2016). It held that corporations are subject to suit un-
`der the ATS for violating the international-law prohibi-
`tion on slavery, reasoning that this particular norm is
`categorical. Id. at 1022. The court further held that
`aiding-and-abetting liability is cognizable under the
`ATS, id. at 1023, and that respondents’ allegations were
`sufficient to show the requisite mens rea. But the court
`remanded for repleading with respect to the actus reus,
`id. at 1024, 1026, as well as on the question of extrater-
`ritoriality in light of Kiobel, id. at 1027.
`Petitioners sought rehearing en banc, which the
`court of appeals denied. John Doe I v. Nestle USA, Inc.,
`788 F.3d 946 (9th Cir. 2015). Judge Bea, joined by seven
`other judges, dissented from the denial of rehearing en
`
`
`
`
`
`4
`
`banc. Id. at 946. In his view, respondents’ allegations
`failed to make out the requisite mens rea because they
`showed only that petitioners intended to maximize prof-
`its. Id. at 947. He also disagreed that corporate liability
`is permissible under the ATS. Id. at 955.
`2. On remand, the district court again dismissed re-
`spondents’ claims. Pet. App. 52a-70a.1 It noted that un-
`der Kiobel and RJR Nabisco, Inc. v. European Commu-
`nity, 136 S. Ct. 2090 (2016), the question whether re-
`spondents’ claims are extraterritorial or domestic turns
`on whether “the conduct relevant to the statute’s focus
`occurred in the United States.” Pet. App. 55a (quoting
`RJR Nabisco, 136 S. Ct. at 2101). The court concluded
`that the “focus” in this case is petitioners’ aiding-and-
`abetting conduct, id. at 58a, and characterized respond-
`ents’ allegations on this point as “essentially that De-
`fendants are U.S. corporations” that “had ‘general cor-
`porate supervision’ over subsidiaries in Côte d’Ivoire,”
`id. at 69a (citation omitted). The court deemed those
`allegations insufficient. Id. at 60a, 66a-67a.
`While the case was on appeal for the second time,
`this Court decided Jesner, supra, holding that foreign
`corporations are not subject to ATS liability. The Court
`declined to resolve whether Sosa’s first step applies to
`the question whether a particular class of defendants is
`amenable to suit under the ATS, 138 S. Ct. at 1399-1400
`(plurality opinion), though the plurality noted there was
`a “strong argument” that international law did not im-
`pose an obligatory norm of corporate liability, id. at
`1400. At the second step, the Court reasoned that “if
`there are sound reasons to think Congress might doubt
`the efficacy or necessity of a damages remedy,” “courts
`
`1 References are to the petition appendix and brief in opposition
`in No. 19-453.
`
`
`
`
`
`5
`
`must refrain from creating the remedy.” Id. at 1402
`(quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017)).
`The Court found ample reason for caution in light of its
`refusal to recognize corporate liability under Bivens v.
`Six Unknown Named Agents of Federal Bureau of
`Narcotics, 403 U.S. 388 (1971), as well as the disruption
`to U.S. foreign relations that such liability could cause.
`Jesner, 138 S. Ct. at 1403, 1406.
`After Jesner, the Ninth Circuit again reversed and
`remanded. Pet. App. 28a-39a. Noting its previous hold-
`ing that corporations were amenable to liability, the
`court determined that Jesner abrogated this holding as
`to foreign corporations but had no effect with respect to
`domestic corporations. Id. at 31a-32a. The court fur-
`ther held that the statutory “focus” under RJR Nabisco
`is petitioners’ aiding-and-abetting conduct. Id. at 35a.
`In concluding that conduct occurred in the United
`States, the court homed in on respondents’ allegations
`that petitioners provided “personal spending money to
`maintain the farmers’ and/or the cooperatives’ loyalty”
`and “had employees from their United States headquar-
`ters regularly inspect operations in the Ivory Coast and
`report back to the United States offices,” where their
`financing decisions “originated.” Id. at 36a.
`Petitioners argued in the alternative that respond-
`ents had failed to state a claim for aiding and abetting,
`but the court declined to reach that issue, instead re-
`manding for respondents to replead and “specify whether
`aiding and abetting conduct that took place in the
`
`
`
`
`
`6
`
`United States is attributable to the domestic corpora-
`tions in this case.” Pet. App. 39a; see id. at 37a.2 Fi-
`nally, the court concluded that respondents “raise suffi-
`ciently specific allegations regarding Cargill’s involve-
`ment in farms that rely on child slavery” to satisfy Ar-
`ticle III’s traceability requirement. Id. at 38a. But it
`deemed the allegations against Nestlé “far less clear”
`and remanded for repleading as to Nestlé. Id. at 38a-
`39a.
`Petitioners sought rehearing en banc, which the
`court of appeals denied. Pet. App. 3a. Judge Bennett
`dissented from the denial of rehearing en banc, joined
`in part or in full by seven other judges. Id. at 4a. Judge
`Bennett reasoned that after Jesner, “corporations (for-
`eign or not) are clearly not proper ATS defendants.” Id.
`at 7a. He further contended that the proper statutory
`“focus” for extraterritoriality purposes is “[p]laintiffs’
`enslavement on cocoa plantations” overseas. Id. at 20a.
`DISCUSSION
`The United States unequivocally condemns child
`slavery and those who aid and abet it, and is committed
`to fostering respect for human rights. This case, how-
`ever, involves more specific issues: whether domestic
`corporations that are alleged to have aided and abetted
`slavery overseas may be held liable in an implied right
`of action under the ATS. And in that context, this Court
`has repeatedly made clear that courts “must exercise
`‘great caution’ before recognizing new forms of liabil-
`ity.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403
`(2018) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692,
`
`
`2 The operative complaint also “names several foreign corpora-
`tions” that respondents concede “must be dismissed.” Pet. App.
`37a.
`
`
`
`
`
`7
`
`728 (2004)). And even when the ATS does permit liabil-
`ity for a particular international-law violation, a plain-
`tiff’s claim must be domestic rather than extraterrito-
`rial. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,
`124 (2013). The decision of the court below is incon-
`sistent with those principles in three different respects
`that warrant this Court’s review.
`First, the court of appeals erred in holding that do-
`mestic corporations are subject to liability under the
`ATS. Although the Court did not directly address that
`question in Jesner, it held that the requisite “caution”
`in recognizing new causes of action under the ATS “ex-
`tends” to whether courts should “impose[ ] liability upon
`artificial entities like corporations.” 138 S. Ct. at 1402-
`1403. And here, as in other contexts, “[w]hether corpo-
`rate defendants should be subject to suit [is] ‘a question
`for Congress.’ ” Id. at 1403 (quoting Correctional Servs.
`Corp. v. Malesko, 534 U.S. 61, 72 (2001)). This Court
`has twice granted certiorari on this issue, which contin-
`ues to divide the circuits.
`Second, the court of appeals erred in recognizing
`aiding-and-abetting liability under the ATS. That
`choice is also best left to Congress, see Jesner, 138 S.
`Ct. at 1403—a point confirmed by Central Bank of Den-
`ver, N. A. v. First Interstate Bank of Denver, N. A., 511
`U.S. 164 (1994), which held that a cause of action for aid-
`ing and abetting will not lie absent clear congressional
`direction. The Court should add a question presented
`on this important issue: it is logically antecedent to the
`extraterritoriality question, was decided by the Ninth
`Circuit, and has percolated extensively in the courts of
`appeals.
`Third, even assuming domestic corporate and aiding-
`and-abetting liability exist, the court of appeals erred in
`
`
`
`
`
`8
`
`finding that respondents have overcome the bar on ex-
`traterritoriality. Under RJR Nabisco, Inc. v. European
`Community, 136 S. Ct. 2090 (2016), a claim is domestic
`rather than extraterritorial only when its “focus” occurs
`in the United States, id. at 2101, and the focus of an aid-
`ing-and-abetting claim is the principal offense, which
`here occurred overseas. Even were the Court to look to
`the aiding-and-abetting conduct itself, respondents
`have alleged nothing more than generic domestic corpo-
`rate activity, which is insufficient. The courts of appeals
`have reached differing results on similar facts in cases
`raising this issue.
`Cargill’s petition for a writ of certiorari presents a
`suitable vehicle for resolving all three questions. Be-
`cause the court below remanded the claims against
`Nestlé for repleading on standing, the Court should
`hold that case if it grants the petition in Cargill.
`A. The Question Whether The ATS Authorizes Liability
`For Domestic Corporations Warrants Review
`The Ninth Circuit erred in concluding that domestic
`corporations are proper ATS defendants. The reason-
`ing of this Court with respect to foreign corporations in
`Jesner forecloses liability for domestic corporations as
`well. This important question has divided the circuits
`and warrants this Court’s review.
`1. The court below failed to engage meaningfully
`with Jesner, instead adhering to a pre-Jesner precedent
`solely on the ground that Jesner did not expressly ad-
`dress domestic corporate liability. See Pet. App. 44a-
`45a. That result is untenable. Regardless of whether
`the Court applies both steps of the analysis under Sosa
`
`
`
`
`
`9
`
`or only the second, Jesner’s reasoning categorically
`precludes domestic corporate liability.3
`a. Jesner declined to resolve whether corporate lia-
`bility is subject to Sosa’s step-one requirement of an
`international-law norm, or instead whether such liabil-
`ity is solely a matter of domestic law under Sosa’s sec-
`ond step. 138 S. Ct. at 1402 (plurality opinion). But as
`the plurality explained, “assuming * * * that under
`Sosa corporate liability is a question of international
`law, there is” a “strong argument that [respondents]
`cannot satisfy the high bar” that Sosa imposes. Id. at
`1400. This Court need not resolve the question whether
`corporate liability must satisfy Sosa’s first step, how-
`ever, because Jesner precludes domestic corporate lia-
`bility at the second step.
`b. As the Jesner majority noted, “even in the realm
`of domestic law,” “recent precedents cast doubt on the
`authority of courts to extend or create private causes of
`action.” 138 S. Ct. at 1402 (discussing cases applying
`Bivens v. Six Unknown Named Agents of Federal Bu-
`reau of Narcotics, 403 U.S. 388 (1971)). This Court has
`“ ‘recently and repeatedly said’ ” that such judgments
`are generally best left to the legislature, which is “ ‘bet-
`ter position[ed] to consider if the public interest would
`be served by imposing’ ” legal liability in a particular
`case. Ibid. (quoting Ziglar v. Abbasi, 137 S. Ct. 1843,
`
`
`3 In Jesner, the United States contended that corporate liability
`was appropriate because corporations were traditionally liable in
`tort actions at common law. Gov’t Amicus Br. at 8-9, Jesner, supra
`(No. 16-499). The Court declined to adopt that argument in Jesner,
`however, and the United States has revisited its position in light of
`the Court’s opinion, which rejected not only the government’s con-
`clusion but also its basic framework for analysis. See Jesner, 138 S. Ct.
`at 1402-1403, 1406-1407.
`
`
`
`
`
`10
`
`1857 (2017)) (citation omitted). Accordingly, “if there
`are sound reasons to think Congress might doubt the
`efficacy or necessity of a damages remedy, . . . courts
`must refrain from creating the remedy in order to
`respect the role of Congress.” Ibid. (quoting Abbasi,
`137 S. Ct. at 1858). These background “separation-of-
`powers concerns * * * apply with particular force” to
`the ATS, given the “foreign-policy” considerations “in-
`herent in ATS litigation.” Id. at 1403. Indeed, “there is
`an argument that a proper application of Sosa would
`preclude courts from ever recognizing any new causes
`of action under the ATS.” Ibid.
`The need to exercise “caution” in implying new
`rights of action “extends to the question whether the
`courts should exercise the judicial authority to mandate
`a rule that imposes liability upon artificial entities like
`corporations.” Jesner, 138 S. Ct. at 1402-1403. The
`Bivens context is instructive. There, the Court has held
`that whether corporate defendants should be subject to
`civil suit is “a question for Congress, not [the Court], to
`decide.” Malesko, 534 U.S. at 72. As Jesner recognized,
`the same logic applies under the ATS. 138 S. Ct. at 1403
`(discussing Malesko). Extending ATS liability to cor-
`porations of any kind “absent further action from Con-
`gress” would therefore “be inappropriate.” Ibid.
`In addition, the Jesner plurality recognized that
`“[e]ven in areas less fraught with foreign-policy conse-
`quences, the Court looks to analogous statutes for guid-
`ance on the appropriate boundaries of judge-made
`causes of action.” 138 S. Ct. at 1403. The “logical place
`to look for a statutory analogy to an ATS common-law
`action is the [Torture Victim Protection Act of 1991
`(TVPA), Pub. L. No. 102-256, 106 Stat. 73]—the only
`
`
`
`
`
`11
`
`cause of action under the ATS created by Congress ra-
`ther than the courts.” Ibid. A “key feature” of the
`TVPA is that it limits liability to “natural persons,” and
`“Congress’ decision to exclude liability for corporations
`in actions brought under the TVPA is all but dispositive
`of the present case.” Id. at 1404.
`Finally, in light of Jesner’s holding rejecting foreign
`corporate liability under the ATS, a contrary rule for
`domestic corporate liability would facially discriminate
`against U.S. corporations. There is no indication that
`Congress in enacting the ATS intended to treat U.S.
`businesses worse than foreign businesses engaged in
`exactly the same conduct. Such a rule would place U.S.
`corporations at a distinct disadvantage, particularly “in
`developing economies” where there may be “a history
`of alleged human-rights violations” and a correspond-
`ingly heightened potential for liability exposure. Jes-
`ner, 138 S. Ct. at 1406 (plurality opinion).
`c. Respondents contend (Br. in Opp. 21) that Jesner
`hinged on the “foreign policy implications” in that case,
`which are not present in a suit against domestic corpo-
`rations. But the Jesner majority’s separation-of-powers
`reasoning in Part II.B.1 of the opinion was an independ-
`ent basis for its decision. See 138 S. Ct. at 1403 (“[A]b-
`sent further action from Congress it would be inappro-
`priate for courts to extend ATS liability to foreign cor-
`porations.”). In any event, ATS suits against domestic
`corporations frequently involve claims of aiding and
`abetting misconduct abroad—which often implicate the
`policies and conduct of foreign states. See Compl. ¶ 50
`(alleging that “several of the cocoa farms in Côte
`d’Ivoire from which Defendants source are owned” or
`“protected by government officials”); see also, e.g.,
`Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254,
`
`
`
`
`
`12
`
`258 (2d Cir. 2007) (per curiam), aff ’d sub nom. Ameri-
`can Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008)
`(alleging corporate aiding and abetting of apartheid).
`Respondents further argue (Br. in Opp. 21-22) that
`foreclosing domestic corporate liability would conflict
`with the ATS’s “original purpose” of providing “foreign
`citizens redress for violations of the law of nations.” Be-
`cause “customary international law does not require
`corporate liability,” however, “declining to create it un-
`der the ATS cannot give other nations just cause for
`complaint against the United States.” Jesner, 138 S. Ct.
`at 1410 (Alito, J., concurring in part and concurring in
`the judgment).
`2. This Court’s review is warranted. This is an im-
`portant, recurring question, as evidenced by the Court’s
`grant of certiorari on the availability of corporate liabil-
`ity in two previous cases. See Kiobel, supra (No.
`10-1491); Jesner, supra (No. 16-499). The courts of ap-
`peals are squarely divided, and the conflict is unlikely
`to resolve itself. The Ninth Circuit in the decision below
`declined to reconsider its prior precedent in light of Jes-
`ner, see Pet. App. 44a-45a, and various other circuits
`have similarly recognized corporate liability, albeit pre-
`Jesner. See Flomo v. Firestone Natural Rubber Co.,
`LLC, 643 F.3d 1013, 1017-1021 (7th Cir. 2011); Romero
`v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008);
`see also Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 57
`(D.C. Cir. 2011), vacated on other grounds, 527 Fed.
`Appx. 7 (D.C. Cir. 2013). In contrast, the Second Circuit
`has rejected corporate liability, see Kiobel v. Royal
`Dutch Petroleum Co., 621 F.3d 111, 148-149 (2010), cert.
`denied, 565 U.S. 881, and cert. granted, 565 U.S. 961
`(2011), aff ’d on other grounds, 569 U.S. 108 (2013), and
`
`
`
`
`
`13
`
`nothing in Jesner provides a reason for the Second Cir-
`cuit to reconsider that decision.
`B. The Court Should Add The Question Of Whether The
`ATS Imposes Aiding-And-Abetting Liability
`The question whether the ATS permits aiding-and-
`abetting claims is logically antecedent to the question
`presented by petitioners concerning when such claims
`are extraterritorial. This threshold question was raised
`below, and the court of appeals erred in answering it in
`the affirmative. And it is a significant issue that has
`percolated extensively in the courts of appeals and is
`ripe for this Court’s review.
`1. A ruling that the ATS does not permit a claim for
`aiding and abetting would obviate the need to reach the
`extraterritoriality question altogether. Moreover, the
`extraterritoriality analysis could well depend on the ba-
`sis for recognizing an aiding-and-abetting claim in the
`first place, as the contours of that claim could affect the
`determination of its “focus.” See pp. 19-20, infra (focus
`may depend on whether aiding and abetting is charac-
`terized as an independent tort or simply a method of
`holding a secondary actor liable for the principal tort).
`Accordingly, this Court should add a question pre-
`sented on the logically antecedent issue of whether the
`ATS permits aiding-and-abetting liability at all.
`Although petitioners have not sought review of that
`question, the issue was both “pressed” and “passed
`upon below.” United States v. Williams, 504 U.S. 36, 41
`(1992) (citation omitted). Petitioners moved to dismiss
`the complaint on the ground that the ATS does not au-
`thorize aiding-and-abetting liability, see D. Ct. Doc. 19,
`at 7-18 (Dec. 5, 2005); see also, e.g., D. Ct. Doc. 90, at 7-
`13 (Feb. 9, 2009), and the district court rejected that ar-
`gument, see Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057,
`
`
`
`
`14
`
`1078 (C.D. Cal. 2010). On the first appeal, petitioners
`argued that the court could “affirm on the alternative
`ground that an aiding and abetting cause of action un-
`der the ATS is contrary to Sosa.” Pet. C.A. Answering
`Br. 54 (No. 10-56739) (capitalization and emphasis omit-
`ted). The Ninth Circuit declined that invitation, citing
`a prior case permitting aiding-and-abetting liability, see
`Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1023 (2014),
`cert. denied, 136 S. Ct. 798 (2016) (citing Sarei v. Rio
`Tinto, PLC, 671 F.3d 736, 765-766 (9th Cir. 2011), cert.
`granted, judgment vacated, 569 U.S. 945 (2013)), and
`the fact that the issue was resolved in a previous appeal
`in the same litigation allows this Court to consider it
`here, see Major League Baseball Players Ass’n v. Gar-
`vey, 532 U.S. 504, 508 n.1 (2001) (per curiam).
`2. The court of appeals recognized aiding-and-
`abetting liability under the ATS based solely on what it
`perceived to be a norm of international law. Sarei, 671
`F.3d at 748-749; see Nestle, 766 F.3d at 1023 (citing
`Sarei). That analysis is untenable after Jesner, which
`makes clear that Sosa’s second step precludes an aiding-
`and-abetting claim under the ATS.
`a. Under Jesner, it is an open question whether the
`availability of aiding-and-abetting liability—which, like
`corporate liability, speaks to the issue of who can be
`held liable for a particular international-law violation,
`see p. 19, infra—is “governed by international law” pur-
`suant to Sosa’s first step. Jesner, 138 S. Ct. at 1402
`(plurality opinion). Several sources of international law
`recognize at least some form of criminal liability for aid-
`ers and abettors, see, e.g., Statute of the International
`Criminal Tribunal for Rwanda, S.C. Res. 955, art. 6,
`U.N. Doc. S/RES/955 (Nov. 8, 1994); Charter of the In-
`ternational Tribunal, Aug. 8, 1945, art. 6, 59 Stat. 1545,
`
`
`
`
`
`15
`
`82 U.N.T.S. 282, though these authorities reach diver-
`gent conclusions as to the requisite mens rea and actus
`reus, see Nestle, 748 F. Supp. 2d at 1080-1087. Ulti-
`mately, however, the Court need not resolve whether
`the step-one inquiry applies or whether these sources
`establish a “specific, universal, and obligatory” norm
`under Sosa, 542 U.S. at 732-733 (citation omitted), as
`respondents’ claims plainly fail at step two.
`b. There are numerous “sound reasons to think Con-
`gress might doubt the efficacy or necessity” of aiding-
`and-abetting liability. Jesner, 138 S. Ct. at 1402 (quot-
`ing Abbasi, 137 S. Ct. at 1858). Just as Jesner declined
`to extend liability beyond individual perpetrators to for-
`eign corporations, so too this Court should decline to ex-