No. 19-____
`
`IN THE
`Supreme Court of the United States
`_________
`NESTLÉ USA, INC.,
`Petitioner,
`
`v.
`JOHN DOE I, ET AL.,
`Respondents.
`
`_________
`On Petition for a Writ of Certiorari to the
` United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`THEODORE J. BOUTROUS JR.
`PERLETTE MICHÈLE JURA
`GIBSON, DUNN &
`CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071
`(213) 229-7000
`tboutrous@gibsondunn.com
`
`NEAL KUMAR KATYAL
` Counsel of Record
`CRAIG A. HOOVER
`HOGAN LOVELLS US LLP
`555 Thirteenth Street, N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`
`BENJAMIN A. FLEMING
`HOGAN LOVELLS US LLP
`390 Madison Avenue
`New York, NY 10017
`
`Counsel for Petitioner
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`NESTLÉ USA, INC.,
`Petitioner,
`
`v.
`JOHN DOE I, ET AL.,
`Respondents.
`
`_________
`On Petition for a Writ of Certiorari to the
` United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`THEODORE J. BOUTROUS JR.
`PERLETTE MICHÈLE JURA
`GIBSON, DUNN &
`CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071
`(213) 229-7000
`tboutrous@gibsondunn.com
`
`NEAL KUMAR KATYAL
` Counsel of Record
`CRAIG A. HOOVER
`HOGAN LOVELLS US LLP
`555 Thirteenth Street, N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`
`BENJAMIN A. FLEMING
`HOGAN LOVELLS US LLP
`390 Madison Avenue
`New York, NY 10017
`
`Counsel for Petitioner
`
`
`
`QUESTIONS PRESENTED
`1. Whether an aiding and abetting claim against a
`domestic corporation brought under the Alien Tort
`Statute, 28 U.S.C. § 1350, may overcome the extra-
`territoriality bar where the claim is based on allega-
`tions of general corporate activity in the United
`States and where plaintiffs cannot trace the alleged
`harms, which occurred abroad at the hands of uni-
`dentified foreign actors, to that activity.
`
`2. Whether the Judiciary has the authority under
`the Alien Tort Statute to impose liability on domestic
`corporations.
`
`(i)
`
`
`
`ii
`PARTIES TO THE PROCEEDING
`Nestlé USA, Inc., petitioner on review, was a de-
`fendant-appellee below.
`John Does I-VI, each individually and on behalf of
`proposed class members, respondents on review,
`were the plaintiffs-appellants below.
`
`
`
`iii
`RULE 29.6 DISCLOSURE STATEMENT
`Petitioner Nestlé USA, Inc. is a wholly owned sub-
`sidiary of Nestlé Holdings, Inc., which is a wholly
`owned subsidiary of NIMCO US, Inc., which is a
`wholly owned subsidiary of Nestlé US Holdco, Inc.,
`which is a wholly owned subsidiary of Société des
`Produits Nestlé S.A., which is a wholly owned sub-
`sidiary of Nestlé S.A., a publicly traded Swiss corpo-
`ration, the shares of which are traded in the United
`States in the form of American Depositary Receipts.
`
`
`
`iv
`RELATED PROCEEDINGS
`All proceedings directly related to this petition
`include:
` Doe I v. Nestle S.A., No. 2:05-cv-05133-SVW-
`MRW (C.D. Cal. Sept. 8, 2010) (reported at 748
`F. Supp. 2d 1057), rev’d sub. nom, Doe I v. Nes-
`tle USA, Inc., No. 10-56739 (9th Cir. Dec. 19,
`2013) (reported at 738 F.3d 1048), as amended
`(Sept. 4, 2014) (reported at 766 F.3d 1013), cert.
`denied, No. 15-349 (Jan. 11, 2016) (reported at
`136 S. Ct. 798)
` On remand: Doe I v. Nestle, S.A., No. 2:05-cv-
`05133-SVW-MRW (C.D. Cal. Mar. 2, 2017)
`(available at 2017 WL 6059134), rev’d, No. 17-
`55435 (9th Cir. Oct. 23, 2018) (reported at 906
`F.3d 1120), as amended (July 5, 2019) (reported
`at 929 F.3d 623)
`
`
`
`v
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ........................................ i
`PARTIES TO THE PROCEEDING ............................ ii
`RULE 29.6 DISCLOSURE STATEMENT ............... iii
`RELATED PROCEEDINGS ...................................... iv
`TABLE OF AUTHORITIES ..................................... viii
`OPINIONS BELOW .................................................... 1
`JURISDICTION .......................................................... 2
`STATUTORY PROVISION INVOLVED .................... 2
`INTRODUCTION ........................................................ 2
`STATEMENT .............................................................. 4
`1.
`Initial District Court Proceedings ................. 6
`2.
`Initial Appeal ................................................. 8
`3. Second District Court Dismissal ................... 9
`4. Second Appeal .............................................. 11
`REASONS FOR GRANTING THE PETITION ....... 14
`I. THE
`NINTH
`CIRCUIT’S
`PERMISSIVE
`EXTRATERRITORIALITY
`STANDARD CONFLICTS WITH THE
`OPINIONS
`OF
`ITS
`SISTER
`CIRCUITS AND THE PRECEDENTS
`OF THIS COURT ........................................... 14
`A. Certiorari Is Necessary To Re-
`solve The Conflict In The Courts
`of Appeals Regarding The Proper
`Extraterritoriality Standard For
`ATS Claims ............................................. 15
`
`
`
`vi
`TABLE OF CONTENTS—Continued
`
`Page
`
`B. This Court Should Grant Review
`Because The Ninth Circuit’s
`Holding Cannot Be Squared With
`The Precedents Of This Court ............... 20
`C. At A Minimum, This Court
`Should Clarify That The Extra-
`territoriality Bar Requires Dis-
`missal Where A Plaintiff’s Injury
`Cannot Be Traced To Defendant’s
`Domestic Conduct ................................... 23
`II. THE
`NINTH
`CIRCUIT’S
`CORPORATE LIABILITY HOLDING
`RESUSCITATES A DIVISION IN
`THE CIRCUITS AND CONFLICTS
`WITH THE PRECEDENT OF THIS
`COURT ............................................................ 24
`III. THE
`NINTH
`CIRCUIT’S
`EXPANSIVE
`VIEW
`OF
`ATS
`LIABILITY
`CANNOT
`BE
`RECONCILED
`WITH
`BASIC
`PRINCIPLES OF SEPARATION OF
`POWERS AND COMITY ............................... 29
`IV. THIS COURT’S INTERVENTION IS
`URGENTLY NEEDED TO BRING AN
`END TO PROTRACTED AND
`MERITLESS ATS SUITS AND THE
`SEVERE HARMS THEY INFLICT ............... 32
`A. Until This Court Steps In, Lower
`Courts Will Continue To Permit
`Protracted And Meritless ATS
`Suits Like This One ................................ 32
`
`
`
`vii
`TABLE OF CONTENTS—Continued
`
`Page
`
`B. Lengthy And Meritless ATS Suits
`Burden Courts and Litigants,
`While Discouraging Foreign In-
`vestment
`In The Developing
`Countries That Need It Most ................. 35
`CONCLUSION .......................................................... 38
`APPENDIX
`APPENDIX A—Ninth Circuit’s Order
`Denying Rehearing En Banc and
`Amended Opinion (July 5, 2019) ...................... 1a
`APPENDIX B—Ninth Circuit’s Opinion
`(Oct. 23, 2018) ................................................. 47a
`APPENDIX C—District Court’s Order
`Granting Motion to Dismiss (Mar. 2,
`2017) ................................................................ 63a
`
`
`
`viii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`Adhikari v. Kellogg Brown & Root, Inc.,
`845 F.3d 184 (5th Cir. 2017) .................... 15, 17, 18
`Baloco v. Drummond Co.,
`767 F.3d 1229 (11th Cir. 2014) ................ 16, 18, 33
`Bowoto v. Chevron Corp.,
`621 F.3d 1116 (9th Cir. 2010) .............................. 33
`Cardona v. Chiquita Brands International,
`Inc.,
`760 F.3d 1185 (11th Cir. 2014) ............................ 16
`Correctional Services Corporation v.
`Malesko,
`534 U.S. 61 (2001) ................................................ 26
`Daimler AG v. Bauman,
`571 U.S. 117 (2014) .............................................. 33
`Doe v. Drummond Co.,
`782 F.3d 576 (11th Cir. 2015) .................. 15, 16, 17
`Doe v. Nestle, S.A.,
`748 F. Supp. 2d 1057 (C.D. Cal. 2010) .... 5, 7, 8, 34
`Doe I v. Nestle USA, Inc.,
`766 F.3d 1013 (9th Cir. 2014) ...................... passim
`Doe I v. Nestle USA, Inc.,
`788 F.3d 946 (9th Cir. 2015) .................................. 9
`Doe I v. Exxon Mobil Corp.,
`69 F. Supp. 3d 75 (D.D.C. 2014) .......................... 33
`Doe VIII v. Exxon Mobil Corp.,
`654 F.3d 11 (D.C. Cir. 2011) .......................... 25, 27
`Flomo v. Firestone Nat. Rubber Co.,
`643 F.3d 1013 (7th Cir. 2011) .............................. 25
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Foman v. Davis,
`371 U.S. 178 (1962) .............................................. 35
`Jesner v. Arab Bank, PLC,
`138 S. Ct. 1386 (2018) .................................. passim
`Kiobel v. Royal Dutch Petroleum Co.,
`569 U.S. 108 (2013) ...................................... passim
`Kiobel v. Royal Dutch Petroleum Co.,
`621 F.3d 111 (2d Cir. 2010) ................................. 25
`Licci ex rel. Licci v. Lebanese Canadian
`Bank, SAL,
`834 F.3d 201 (2d Cir. 2016) ..................... 18, 19, 20
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) .............................................. 23
`Mastafa v. Chevron Corp.,
`770 F.3d 170 (2d Cir. 2014) ..................... 18, 19, 20
`Morrison v. National Australia Bank Ltd.,
`561 U.S. 247 (2010) ...................................... passim
`Mujica v. Airscan Inc,
`771 F.3d 580 (9th Cir. 2014) ................................ 33
`Nestle U.S.A., Inc. v. Doe I,
`136 S. Ct. 798 (2016) ........................................ 9, 36
`RJR Nabisco, Inc. v. European Community,
`136 S. Ct. 2090 (2016) .................................. passim
`Romero v. Drummond Co.,
`552 F.3d 1303 (11th Cir. 2008) ............................ 25
`Sarei v. Rio Tinto, PLC,
`722 F.3d 1109 (9th Cir. 2013) .............................. 33
`Sosa v. Alvarez-Machain,
`542 U.S. 692 (2004) ...................................... passim
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`The Nurnberg Trial,
`6 F.R.D. 69 (1946) ................................................ 27
`STATUTES:
`28 U.S.C. § 1254(1) ................................................... 2
`28 U.S.C. § 1350........................................................ 2
`OTHER AUTHORITIES:
`Agreement Between the Government of
`the United States of America and the
`West African Economic and Monetary
`Union Concerning the Development of
`Trade and Investment Relations (2002),
`https://tinyurl.com/yapttovj ................................. 30
`Bureau of African Affairs, U.S. Dep’t of
`State, U.S. Relations with Côte d’Ivoire:
`Bilateral Relations Fact Sheet
`(Dec. 4, 2018),
`https://tinyurl.com/yauodor7 ......................... 30, 31
`Bureau of Econ. & Bus. Affairs, U.S. Dep’t
`of State, 2013 Investment Climate
`Statement—Côte d’Ivoire (2013),
`https://tinyurl.com/y6jgkb2r ................................ 30
`Jonathan A. Drimmer & Sarah R.
`Lamoree, Think Globally, Sue Locally:
`Trends and Out-of-Court Tactics in
`Transnational Tort Actions,
`29 Berkeley J. Int’l L. 456 (2011) .................. 32, 33
`Restatement (Second) of Conflict of Laws
`§ 146 (1971) .......................................................... 21
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`No. 19-
`_________
`
`NESTLÉ USA, INC.,
`Petitioner,
`
`v.
`JOHN DOE I, ET AL.,
`Respondents.
`_________
`On Petition for a Writ of Certiorari to the
` United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`Nestlé USA, Inc. respectfully petitions for a writ of
`certiorari to review the judgment of the Ninth Cir-
`cuit in this case.
`OPINIONS BELOW
`The district court’s first order dismissing the case
`is reported at 748 F. Supp. 2d 1057. The Ninth
`Circuit’s initial opinion vacating and remanding that
`dismissal is reported at 738 F.3d 1048, and its re-
`vised opinion is reported at 766 F.3d 1013. The
`Ninth Circuit’s order denying en banc review is
`reported at 788 F.3d 946. This Court’s order denying
`certiorari review is reported at 136 S. Ct. 798.
`On remand, the district court’s second order dis-
`missing the case (Pet. App. 63a-84a) is not reported
`
`(1)
`
`
`
`2
`but is available at 2017 WL 6059134. The Ninth
`Circuit’s initial opinion reversing this second dismis-
`sal (Pet. App. 47a-62a) is reported at 906 F.3d 1120,
`and its revised opinion (Pet. App. 1a-6a, 34a-46a) is
`reported at 929 F.3d 623. The order denying en banc
`review (Pet. App. 1a-33a) is also reported at 929 F.3d
`623.
`
`JURISDICTION
`The Ninth Circuit entered judgment on October 23,
`2018. Petitioner filed a timely petition for rehearing,
`which was denied on July 5, 2019. On the same
`date, the Ninth Circuit entered an amended judg-
`ment. This Court’s jurisdiction is invoked under 28
`U.S.C. § 1254(1).
`STATUTORY PROVISION INVOLVED
`The Alien Tort Statute, 28 U.S.C. § 1350, provides:
`The district courts shall have original jurisdic-
`tion of any civil action by an alien for a tort
`only, committed in violation of the law of na-
`tions or a treaty of the United States.
`INTRODUCTION
`As this Court recently underscored, Alien Tort
`Statute litigation “must be ‘subject to vigilant door-
`keeping’ ” to ensure that the statute is narrowly
`construed and sparingly applied. Jesner v. Arab
`Bank, PLC, 138 S. Ct. 1386, 1398 (2018) (quoting
`Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004)).
`In the decision below, the Ninth Circuit took the
`opposite approach. It reversed the district court’s
`straightforward determination that a plaintiff may
`not overcome the bar on extraterritorial ATS claims
`through generic allegations of corporate oversight
`activities in the United States. As eight members of
`
`
`
`3
`the Ninth Circuit recognized in a dissent from denial
`of en banc rehearing, the panel’s extraterritoriality
`holding conflicts with the decisions of its sister
`circuits and is irreconcilable with the precedents of
`this Court. And that is only the tip of the iceberg.
`The panel also perpetuated a circuit split regarding
`domestic corporate liability under the ATS, disre-
`garding this Court’s guidance in Jesner in the pro-
`cess. And—despite acknowledging that in the four-
`teen years this case has been pending, Plaintiffs have
`not yet alleged the actus reus for aiding and abetting
`or even established Article III standing as to Nestlé
`USA—the panel remanded to give Plaintiffs yet
`another opportunity to try to make out their case.
`Enough is enough. The allegations of child slavery
`in Côte d’Ivoire at the base of this suit unquestiona-
`bly represent terrible human rights abuses, and
`Petitioner unequivocally condemns child slavery in
`Côte d’Ivoire and slave labor anywhere in the world.
`But Plaintiffs have never asserted that Petitioner
`Nestlé USA or any of the other Defendants are the
`perpetrators of those grievous wrongs. Rather,
`Plaintiffs allege that Defendants should be held
`liable for child slavery in Côte d’Ivoire because they
`purchased cocoa from that country, and because they
`allegedly provided farmers with assistance in Côte
`d’Ivoire in order to aid in the production of that
`cocoa.
`Those allegations do not come close to satisfying
`the extraterritoriality standard that this Court
`articulated in Morrison v. National Australia Bank
`Ltd., 561 U.S. 247 (2010), Kiobel v. Royal Dutch
`Petroleum Co., 569 U.S. 108 (2013) and RJR Nabisco,
`Inc. v. European Community, 136 S. Ct. 2090 (2016).
`
`
`
`4
`And the panel’s determination that the ATS permits
`courts to impose liability on the domestic corpora-
`tions in this case is squarely at odds with this
`Court’s repeated holdings that “federal courts must
`exercise ‘great caution’ ” before allowing ATS claims
`to move forward. Jesner, 138 S. Ct. at 1403 (quoting
`Sosa, 542 U.S. at 728).
`Further prolonging this suit will only impinge on
`the separation of powers and interfere with the
`foreign policy of the political branches without doing
`anything to advance the goal of combatting child
`slavery. Indeed, allowing ATS suits like this to
`proceed discourages the very foreign investment that
`“contributes to the economic development that so
`often is an essential foundation for human rights.”
`Id. at 1406 (plurality op.).
`This Court should grant certiorari to clarify the
`threshold ATS requirements that will prevent simi-
`lar meritless ATS litigation in the future and bring
`this case to a long-overdue close.
`STATEMENT
`This ATS case arises from a putative class action
`filed fourteen years ago on behalf of several unnamed
`Malian citizens. Plaintiffs allege that unidentified
`foreigners enslaved them and forced them to work on
`Ivorian-owned cocoa farms in West Africa. Their
`suit, however, is not against these alleged malefac-
`tors, but rather against multinational cocoa suppli-
`ers and food and beverage companies. Plaintiffs
`allege that these companies aided and abetted forced
`labor through their involvement with the cocoa
`industry in West Africa.
`Specifically, Plaintiffs contend that a broad swath
`of named and unnamed corporate defendants, includ-
`
`
`
`5
`ing Nestlé USA, purchased cocoa that originated
`from West Africa, and that unspecified Defendants
`contracted with cocoa farmers in Côte d’Ivoire to
`provide them with funds, farming supplies, and
`training. They also allege that in 2001, Defendants
`lobbied against a bill that would have funded re-
`search about creating a slave-free label for chocolate
`products and instead entered into a voluntary
`agreement—the Harkin-Engel Protocol—aimed at
`eradicating forced labor in West Africa.
`Over the last fourteen years, Plaintiffs have
`amended their allegations on multiple occasions, and
`various parties have been added to or dismissed from
`the case. But it is worth noting what has never been
`in dispute: Plaintiffs have never alleged that Nestlé
`USA ever owned or operated farms in West Africa; it
`has not. Plaintiffs have also admitted that they have
`not and cannot allege that Defendants “specifically
`intended the human rights violation at issue,” Doe I
`v. Nestle USA, Inc. (Nestlé I), 766 F.3d 1013, 1029
`(9th Cir. 2014) (Rawlinson, J., concurring in part and
`dissenting in part), or that Defendants “wanted child
`slave labor to go on,” Doe v. Nestle, S.A., 748 F. Supp.
`2d 1057, 1110 n.52 (C.D. Cal. 2010). In fact, Plain-
`tiffs’ complaints have consistently pointed to Nestlé’s
`statements condemning child slavery and explaining
`the company’s extensive efforts to counteract it,
`because—according to Plaintiffs—these statements
`indicate knowledge of child slavery, and therefore
`intent to abet it.
`It is also worth noting that, over the course of four-
`teen years, no court has ever held that Plaintiffs
`stated a valid claim for aiding and abetting child
`slavery. Rather, during this time, the district court
`
`
`
`6
`twice dismissed Plaintiffs’ allegations for failure to
`state a claim. The Ninth Circuit, in turn, twice
`reversed in opinions acknowledging crucial defects in
`Plaintiffs’ claims, but nonetheless granting leave to
`amend. Collectively, twelve different judges have
`dissented from denials of en banc rehearing spurred
`by the Ninth Circuit’s holdings.
`The following presents a condensed version of this
`voluminous procedural history.
`1. Initial District Court Proceedings
`Plaintiffs filed their initial complaint in 2005, and
`a First Amended Class Action Complaint (FAC) in
`2009. That complaint, like its precursor, named
`Petitioner Nestlé USA as one of many Defendants,
`along with its Swiss parent company Nestlé S.A.; its
`Côte d’Ivoire affiliate, Nestlé Côte d’Ivoire; Cargill,
`Inc. and several affiliates; Archer Daniels Midland,
`Co.; and ten unnamed “Corporate Doe” defendants.
`C.A. ER 241 (No. 10-56739).
`The FAC alleged that this group of “Defendants”
`purchase “ongoing, cheap suppl[ies] of cocoa” from
`Côte d’Ivoire through “exclusive supplier/buyer
`relationships” with farmers and farming cooperatives
`in the country. Id. at 251. The FAC also alleged
`that unspecified “Defendants control” conditions in
`Côte d’Ivoire by providing “ongoing financial sup-
`port,” as well as “farming supplies” and “training and
`capacity building.” Id. It alleged that these tasks
`“require frequent and ongoing visits to the farms
`either by Defendants directly or via their contracted
`agents.” Id.
`In addition, the FAC alleged that the “U.S. choco-
`late industry” lobbied against a 2001 bill proposed by
`Representative Engel that would have worked to
`
`
`
`7
`stem child labor in West Africa by “forc[ing] U.S.
`chocolate importers and manufacturers to adhere to
`a certification and labeling system.” Id. at 257.
`Plaintiffs alleged that the industry threw its support
`behind an alternate “Harkin-Eng[el] Protocol” that
`implemented “a private, voluntary mechanism to
`ensure child labor free chocolate.” Id.
`These allegations were lodged against “Defendants”
`in general, even though the complaint acknowledged
`that different Defendants have different roles in the
`cocoa supply chain. For example, the FAC recog-
`nized that Cargill is a cocoa supplier whereas Nestlé
`USA is a food and beverage manufacturer and pro-
`cessor. Id. at 247-248. Moreover, neither the 2005
`Complaint nor the FAC contained any allegations
`regarding conduct by Nestlé USA in particular.
`Beyond specifying that Nestlé USA is a food and
`beverage company, the FAC simply alleged that it
`(like the other subsidiaries named in the complaints)
`was an “agent” and “alter-ego” of its corporate par-
`ent, Swiss-based Nestlé S.A. Plaintiffs then treated
`the different Nestlé entities interchangeably, alleg-
`ing—for example—that “Nestlé” had “exclusive
`supplier/buyer relationships” with certain farms in
`Côte d’Ivoire, and citing extensively from “Nestlé”
`policies. See id. at 251-253.
`In 2010, the district court dismissed the case in a
`161-page opinion. Nestle, S.A., 748 F. Supp. 2d 1057.
`The district court held that Plaintiffs had not alleged
`sufficient facts to support the mens rea for aiding
`and abetting liability because they “do not—and, as
`they conceded at oral argument * * *, cannot—allege
`that Defendants acted with the purpose and intent
`that their conduct would perpetuate child slavery on
`
`
`
`8
`Ivorian farms.” Id. at 1110. Moreover, Plaintiffs had
`not alleged the actus reus for aiding and abetting
`child slavery because they alleged nothing more than
`“ordinary commercial transactions.” Id. at 1109.
`The district court also held that international law
`precludes ATS claims against corporate defendants.
`Id. at 1143.
`2. Initial Appeal
`Plaintiffs appealed, and the Ninth Circuit vacated
`and remanded for further proceedings. It originally
`overturned the district court’s opinion through a
`three paragraph per curiam order, with a partial
`dissent from Judge Rawlinson. Following a petition
`for rehearing, the panel withdrew its order and
`issued a new, longer opinion, again vacating the
`district court’s decision over Judge Rawlinson’s
`partial dissent.
`The panel’s revised opinion held that corporate
`liability exists under the ATS. Nestlé I, 766 F.3d at
`1021-22. It then held that Plaintiffs had sufficiently
`pled mens rea through allegations that Defendants
`had attempted to purchase the “the cheapest cocoa
`possible, even if it meant facilitating child slavery.”
`Id. at 1026. The panel further explained that, given
`Plaintiffs’ allegations that Defendants exercise
`financial control in the Ivorian cocoa market, De-
`fendants’ “failure to stop or limit child slavery sup-
`ports the inference that they intended to keep that
`system in place.” Id. at 1024-25.
`The panel declined to decide, however, whether
`Plaintiffs had satisfied the actus reus requirement,
`stating instead that Plaintiffs should be permitted to
`amend their complaint. Id. at 1026-27.
`
`
`
`9
`The panel also declined to decide whether the suit
`was impermissibly extraterritorial under this Court’s
`decision in Kiobel, 569 U.S. 108, issued while the
`appeal was pending. It observed that the FAC made
`“no attempt to explain what portion of the conduct
`underlying the plaintiffs[’] claims took place within
`the United States.” Nestlé I, 766 F.3d at 1028. It
`remanded to allow Plaintiffs to attempt to correct
`this deficiency. Id. at 1027-29.
`The Ninth Circuit denied the petition for en banc
`rehearing over the dissent of eight judges. Doe I v.
`Nestle USA, Inc., 788 F.3d 946 (9th Cir. 2015). The
`dissent recognized that Plaintiffs had allegedly
`suffered grievous harms and that they were “deserv-
`ing of sympathy.” Id. at 946-947. But the dissenters
`also noted that Plaintiffs had not brought “this
`action against the slavers who kidnapped them, nor
`against the plantation owners who mistreated them.”
`Id. at 947. By permitting Plaintiffs to move forward
`with their suit against a set of Defendants whose
`primary alleged misconduct was purchasing cocoa,
`“the panel majority * * * substituted sympathy for
`legal analysis.” Id. at 946.
`Defendants petitioned for certiorari, which was
`denied in January 2016. Nestle U.S.A., Inc. v. Doe I,
`136 S. Ct. 798 (2016) (mem.).
`3. Second District Court Dismissal
`Back before the district court, Plaintiffs filed their
`Second Amended Complaint (SAC) in June 2016.
`The SAC is markedly similar to Plaintiffs’ prior
`complaints. It modestly changed the roster of named
`and unnamed parties, but continued to reference
`Nestlé S.A., Nestlé Côte d’Ivoire, and Cargill’s for-
`
`
`
`10
`eign affiliates, though none of these entities have
`been served.
`As to substance, Plaintiffs’ allegations remain fun-
`damentally the same. The SAC contains scant
`allegations with respect to Nestlé USA’s alleged
`conduct. It reiterates (incorrectly) that “Nestlé
`established Nestlé, USA as a wholly-owned subsidi-
`ary of Nestlé, S.A.,” but it does not attribute any
`conduct to Nestlé USA in particular. C.A. ER 143
`(No. 17-55435). Instead, it again makes allegations
`with respect to “Nestlé” as whole, asserting that
`“Nestlé had the ability and control in the U.S. to take
`any necessary steps to eradicate the practice of using
`child slaves to harvest its cocoa in Côte D’Ivoire,”
`and that “Nestlé” in general “regularly had employ-
`ees from their Swiss and U.S. headquarters inspect-
`ing their operations in Côte D’Ivoire.” Id.
`In addition, the SAC continues to allege that
`“Nestlé” had “exclusive supplier/buyer relationships”
`with Côte d’Ivoire farming cooperatives, and that
`“Nestlé” has ample literature explaining its commit-
`ment to corporate responsibility and the eradication
`of child slavery. In this regard, however, Plaintiffs
`amended their prior allegations by adding the asser-
`tion that this literature was “published in the U.S.”
`Id. at 144, 148-151.
`Defendants once again moved to dismiss,1 and the
`district court again granted the motion. Applying
`the “focus” test for extraterritoriality announced in
`Morrison, 561 U.S. 247, and applied to the ATS in
`
`1 Archer Daniel Midlands, Co. was voluntarily dismissed from
`the case before the motion-to-dismiss proceedings.
`
`
`
`11
`RJR Nabisco, 136 S. Ct. 2090, the district court held
`that the “focus” of Plaintiffs’ claim is impermissibly
`outside the United States. See Pet. App. 66a-77a.
`The district court dismissed the case with prejudice.
`Id. at 83a-84a.
`4. Second Appeal
`The Ninth Circuit again reversed, with Judge Nel-
`son again writing for the majority and Judge Shea
`concurring only in the judgment.
`First, the panel reasserted the Ninth Circuit’s rule
`that domestic corporations may be liable under the
`ATS. It acknowledged that, while the appeal was
`pending, this Court had issued Jesner, barring
`foreign corporate ATS liability. Pet. App. 55a-56a.
`But the panel concluded that nothing in Jesner
`necessitated revisiting the Circuit’s position. Id.
`Second, the panel held that Plaintiffs’ claims are
`sufficiently domestic. It rejected the assertion that
`the ATS “focus” analysis should center on “the loca-
`tion where the principal offense took place or the
`location where the injury occurred.” Id. at 58a.
`Instead, it held that the “focus” analysis requires
`courts to look more broadly to any conduct that
`might constitute “aiding and abetting.” Id. at 58a-
`59a. And it held that standard was satisfied by a
`single, unsupported allegation that “[D]efendants”
`had provided “personal spending money to maintain
`the farmers’ and/or the cooperatives’ loyalty as an
`exclusive supplier.” Id. at 60a. The panel “in-
`fer[red]” that these alleged payments to farmers in
`Côte d’Ivoire were “akin to kickbacks,” even though
`Plaintiffs never used that term in the complaint. Id.
`(internal quotation marks omitted). The panel
`apparently also inferred that these payments were
`
`
`
`12
`orchestrated from the United States—though that
`also was never alleged. Id. at 60a-61a.
`Third, like the first Doe panel, the Ninth Circuit
`refused to rule on Defendants’ argument that Plain-
`tiffs had not adequately pled actus reus. The panel
`observed that “the operative complaint names sever-
`al foreign corporations as defendants” and it recog-
`nized that the SAC adopts the “problematic ap-
`proach” of “discuss[ing] defendants as if they are a
`single bloc.” Id. at 61a. The panel concluded that, in
`light of Jesner, “it is not possible on the current
`record to connect culpable conduct to defendants that
`may be sued under the ATS.” Id. But the panel
`nevertheless held that this pleading failure, after
`fourteen years, was not fatal to Plaintiffs’ suit and
`that Plaintiffs should be allowed yet another oppor-
`tunity to amend to “remove those defendants who are
`no longer amenable to suit under the ATS, and
`specify which potentially liable party is responsible
`for what culpable conduct.” Id. at 62a.
`Defendants’ petitions for rehearing were again
`denied, over the dissent of eight judges. But, as in
`the prior appeal, the rehearing petitions prompted
`the panel to issue an amended order. That revised
`opinion added a new section addressing Article III
`standing, which the panel had previously ignored.
`Id. at 5a-6a, 45a-46a. The panel held that Plaintiffs
`had met two of the three fundamental requirements
`for Article III standing because they had alleged (1)
`an injury that (2) could be redressed. Id. at 5a, 45a.
`The panel also held that Plaintiffs had satisfied the
`third fundamental requirement—traceability—with
`respect to Defendant Cargill because the SAC pur-
`portedly “raise[s] sufficiently specific allegations
`
`
`
`13
`regarding Cargill’s involvement in farms that rely on
`child slavery” (though the panel did not explain what
`those might be). Id. at 6a, 45a-46a.
`The panel acknowledged that “Plaintiffs’ allega-
`tions against Nestlé are far less clear,” in part be-
`cause of “plaintiffs’ reliance on collective allegations
`against all or at least multiple defendants.” Id. at
`6a, 46a. But, despite the panel’s recognition that—
`fourteen years into the case—Plaintiffs still had not
`sufficiently alleged standing to sue Nestlé USA, the
`panel remanded to give Plaintiffs a chance to amend
`their pleadings to address this “deficiency.” Id.
`Judge Bennett dissented from the denial of rehear-
`ing. Seven judges agreed that en banc review should
`have been granted to reconsider the panel’s extrater-
`ritoriality holding.
`As the dissent explained, the panel’s holding that
`the extraterritoriality bar may be overcome by
`allegations of domestic financing arrangements and
`decisionmaking “conflicts with two other circuits that
`have considered the question” and is inconsistent
`with this Court’s own holdings. Id. at 24a-25a, 28a-
`29a.
`The dissent also explained, in agreement with five
`other judges, that rehearing should have been grant-
`ed because, after Jesner, actions against domestic
`corporations are not cognizable under the ATS. Id.
`at 14a-18a.
`This petition followed.
`
`
`
`14
`REASONS FOR GRANTING THE PETITION
`I. THE NINTH CIRCUIT’S PERMISSIVE
`EXTRATERRITORIALITY
`STANDARD
`CONFLICTS WITH THE OPINIONS OF ITS
`SISTER CIRCUITS AND THE PRECEDENTS
`OF THIS COURT.
`In Kiobel, this Court held that “the presumption
`against extraterritoriality applies to claims under
`the ATS.” 569 U.S. at 124. As a result, ATS suits
`may move forward only where the “claims touch and
`concern the territory of the United States” with
`“sufficient force to displace the presumption.” Id. at
`124-125. In RJR Nabisco, this Court further clari-
`fied that Kiobel’s “touch and concern” inquiry is
`merely another way of capturing the basic extraterri-
`toriality standard articulated in Morrison: A claim
`may displace the presumption against extraterritori-
`ality only where the “conduct relevant to the stat-
`ute’s focus occurred in the United States.” 136 S. Ct.
`at 2101.
`Despite that clarification, the courts of appeals
`remain confused as to when an ATS suit is imper-
`missibly extraterritorial. Two circuits—the Fifth
`and the Eleventh—have held that an ATS claim
`cannot displace the presumption against extraterri-
`toriality based on conclusory allegations of corporate
`oversight activities in the United States. By con-
`trast, the Ninth Circuit held in this case that the
`extraterritoriality bar is overcome by Plaintiffs’
`allegations that Defendants made payments to
`farmers in Côte d’Ivoire based on the panel’s infer-
`ence that “financing decisions” were made “from
`headquarters in the United States.” Pet. App. 43a-
`44a.
`
`
`
`15
`Not only does that holding conflict with those of the
`Fifth and Eleventh Circuits, but it is also irreconcil-
`able with the precedents of this Court. In case after
`case, the Court has emphasized the importance of a
`robust extraterrit
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