FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
` No. 15-16909
`DOE I; DOE II; IVY HE; DOE III;
`DOE IV; DOE V; DOE VI;
`
`D.C. No. 5:11-cv-
`CHARLES LEE; ROE VII; ROE VIII;
`02449-EJD
`LIU GUIFU; DOE IX; WEIYU
`
`WANG, and those individuals
`
`similarly situated,
`OPINION
`
`
`
` v.
`
`
`CISCO SYSTEMS, INC.; JOHN
`CHAMBERS; FREDY CHEUNG,
`AKA Zhang Sihua; DOES, 1-100,
`
`
`
`Plaintiffs-Appellants,
`
`
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted October 20, 2021
`Pasadena, California
`
`Filed July 7, 2023
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
` No. 15-16909
`DOE I; DOE II; IVY HE; DOE III;
`DOE IV; DOE V; DOE VI;
`
`D.C. No. 5:11-cv-
`CHARLES LEE; ROE VII; ROE VIII;
`02449-EJD
`LIU GUIFU; DOE IX; WEIYU
`
`WANG, and those individuals
`
`similarly situated,
`OPINION
`
`
`
` v.
`
`
`CISCO SYSTEMS, INC.; JOHN
`CHAMBERS; FREDY CHEUNG,
`AKA Zhang Sihua; DOES, 1-100,
`
`
`
`Plaintiffs-Appellants,
`
`
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted October 20, 2021
`Pasadena, California
`
`Filed July 7, 2023
`
`
`
`
`
`
`2
`
`DOE I V. CISCO SYSTEMS, INC.
`
`Before: A. Wallace Tashima, Marsha S. Berzon, and
`Morgan Christen, Circuit Judges.
`
`Opinion by Judge Berzon;
`Partial Concurrence and Partial Dissent by Judge Christen
`
`SUMMARY*
`
`Alien Tort Statute / Torture Victim Protection Act
`
`
`
`
`
`
`
`
`In an action brought by practitioners of Falun Gong who
`alleged that they or family members were victims of human
`rights abuses committed by the Chinese Communist Party
`and Chinese government officials and that these abuses were
`enabled by technological assistance of U.S. corporation
`Cisco Systems, Inc., and two Cisco executives, the panel
`affirmed the district court’s dismissal of plaintiffs’ claims
`under the Alien Tort Statute against the Cisco executives;
`reversed the dismissal of plaintiffs’ Alien Tort Statute claims
`against corporate defendant Cisco; reversed the dismissal of
`one plaintiff’s claims under the Torture Victim Protection
`Act against the Cisco executives; and remanded for further
`proceedings.
`The district court dismissed plaintiffs’ claims under the
`Alien Tort Statute (“ATS”) on the ground that plaintiffs did
`not allege conduct sufficient to meet the standard for aiding
`and abetting liability under international customary law or to
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`3
`
`overcome the presumption against the extraterritorial
`application of the ATS. The district court also dismissed
`plaintiff Charles Lee’s Torture Victim Protection Act
`(“TVPA”) claim against the Cisco executives on the ground
`that the statute does not provide for accomplice liability.
`The panel held that under Nestle USA, Inc. v. Doe, 141
`S. Ct. 1931 (2021), corporations may be held liable under the
`ATS. Agreeing with other circuits, the panel further held
`that, under the test set forth in Sosa v. Alvarez-Machain, 542
`U.S. 692 (2004), aiding and abetting liability is a norm of
`customary international law with sufficient definition and
`universality to establish liability under the ATS. In addition,
`because aiding and abetting liability did not raise separation-
`of-powers or foreign policy concerns, such liability is
`cognizable for the purposes of the ATS.
`The panel held that plaintiffs’ allegations against Cisco
`were sufficient to meet the applicable aiding and abetting
`standard. Joining other circuits, the panel held that the actus
`reus of aiding and abetting liability requires assistance to the
`principal with substantial effect on an international law
`violation. Joining the Eleventh Circuit, the panel held that
`the mens rea for aiding and abetting liability under
`customary
`international
`law
`is
`knowing
`assistance. Applying this standard, the panel concluded that
`plaintiffs plausibly alleged that corporate defendant Cisco
`provided assistance to the Party and to Chinese Public
`Security that had substantial effects on those entities’
`violations of international law. Plaintiffs also plausibly
`alleged that Cisco knowingly provided such assistance.
`Recognizing
`that
`the ATS does not
`apply
`extraterritorially, the panel held that this case involved a
`permissible domestic application of the ATS against Cisco
`
`
`
`
`
`4
`
`DOE I V. CISCO SYSTEMS, INC.
`
`the corporation’s alleged conduct
`because much of
`constituting aiding and abetting occurred in the United
`States. By contrast, plaintiffs did not sufficiently connect
`the alleged actions taken by the Cisco executives to the
`United States.
`Reversing the district court’s dismissal of the claim
`under the TVPA against the Cisco executives, the panel held,
`as a matter of first impression in the Ninth Circuit, that based
`on the text and the Convention Against Torture background
`of the TVPA, the TVPA provides a private right of action
`against those who aid and abet torture or extrajudicial
`killing. The panel held that the allegations against the
`executives were sufficient to meet the aiding and abetting
`standard, as determined under international law.
`Concurring in part and dissenting in part, Judge Christen
`wrote that she joined Part II of the majority’s opinion,
`addressing the TVPA claim. Judge Christen wrote that the
`majority’s careful and cogent analysis of aiding and abetting
`liability under the ATS in Part I of its opinion was consistent
`with the views of other circuits, and in an appropriate case,
`Judge Christen would join it. She, however, did not do so
`here because she concluded that recognizing liability for
`aiding and abetting alleged human rights violations,
`committed in China and against Chinese nationals by the
`Chinese Communist Part and the Chinese government’s
`Ministry of Public Security, was inconsistent with the
`purpose of the ATS. Judge Christen wrote that she would
`affirm the dismissal of plaintiffs’ ATS claims on this basis,
`and go no further.
`
`
`
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`5
`
`COUNSEL
`
`Paul L. Hoffman (argued), Catherine Sweetser, and John C.
`Washington, Schonbrun Seplow Harris & Hoffman LLP,
`Hermosa Beach, California; Terri E. Marsh, Human Rights
`Law Foundation, Washington, D.C.;
`for Plaintiffs-
`Appellants.
`Kathleen M. Sullivan (argued), Isaac Nesser, and Todd S.
`Anten, Quinn Emanuel Urquhart & Sullivan LLP, New
`York, New York, for Defendants-Appellees.
`William J. Aceves, California Western School of Law, San
`Diego, California; David J. Scheffer, Northwestern
`University School of Law Bluhm Legal Clinic, Chicago,
`Illinois; for Amicus Curiae David J. Scheffer, former United
`States Ambassador-at-Large for War Crimes Issues.
`Sophia S. Cope and Cindy Cohn, Electronic Frontier
`Foundation, San Francisco, California, for Amici Curiae
`Electronic Frontier Foundation, Article 19, and Privacy
`International.
`Marco B. Simons, Richard L. Herz, Maryum Jordan,
`Marissa Vahlsing, and Michelle Harrison, EarthRights
`International, Washington, D.C., for Amici Curiae Human
`Rights Organizations EarthRights International and the
`Center for Constitutional Rights.
`
`
`
`
`
`
`
`6
`
`DOE I V. CISCO SYSTEMS, INC.
`
`OPINION
`
`
`BERZON, Circuit Judge:
`
`INTRODUCTION ...............................................................7
`BACKGROUND .................................................................9
`I.
`Factual Background ...............................................9
`A. Crackdown Against Falun Gong .......................9
`B. Cisco’s Contributions to the Golden Shield ....11
`C. Consequences for Falun Gong Adherents .......14
`Procedural History ...............................................16
`II.
`DISCUSSION ....................................................................17
`I.
`The Alien Tort Statute .........................................18
`A. Background .....................................................18
`B. Application ......................................................22
`1. Aiding and Abetting Liability under the ATS
`
` ....................................................................23
`Sosa’s First Step .....................................25
`a.
`Sosa’s Second Step ................................28
`b.
`2. Aiding and Abetting Standard and Pleadings
`
` ....................................................................39
`Actus reus ...............................................40
`(i) Standard .............................................40
`(ii) Application to Corporate Defendant
`Cisco ..........................................................45
`b. Mens rea.................................................49
`(i) Standard .............................................49
`
`a.
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`7
`
`3.
`
`(ii) Application to Corporate Defendant
`Cisco ..........................................................59
`Extraterritoriality ........................................63
`Background ............................................64
`a.
`b. Application .............................................66
`(i) Corporate Defendant Cisco ................66
`(ii) Defendants Chambers and Cheung ...70
`State Action ................................................71
`4.
`II. The Torture Victim Protection Act of 1991 .........74
`A. Aiding and Abetting Liability .........................74
`B. Application ......................................................80
`1.
`Actus Reus...................................................81
`2. Mens Rea ....................................................82
`CONCLUSION ..................................................................83
`
`
`INTRODUCTION
`Plaintiff-Appellants are practitioners of Falun Gong, a
`religion originating in China in the 1990s. They allege that
`they or family members are victims of human rights abuses
`committed by the Chinese Communist Party and Chinese
`government officials. The alleged abuses, Plaintiffs contend,
`were enabled by the technological assistance of Defendants,
`U.S. corporation Cisco Systems, Inc., and two Cisco
`executives, John Chambers and Fredy Cheung (collectively,
`“Cisco,” except where otherwise noted).
`Plaintiffs initiated this lawsuit more than a decade ago,
`alleging that Cisco aided and abetted or conspired with
`Chinese officials in violation of the Alien Tort Statute
`
`
`
`
`
`8
`
`DOE I V. CISCO SYSTEMS, INC.
`
`(“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection
`Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note, and other
`federal and state laws. Specifically, Plaintiffs contend that
`Cisco, operating largely from its corporate headquarters in
`California, “designed, implemented and helped to maintain
`a surveillance and internal security network” for Chinese
`officials, greatly enhancing their capacity to identify Falun
`Gong practitioners and ensnare them in a system of physical
`and mental torture, forced labor, and prolonged and arbitrary
`detention.
`The district court dismissed Plaintiffs’ claims under the
`ATS, ruling that Plaintiffs did not allege conduct sufficient
`to satisfy the standard for aiding and abetting liability under
`international customary law or to overcome the presumption
`against the extraterritorial application of the ATS. The
`district court also dismissed Plaintiff Charles Lee’s TVPA
`claim against Chambers and Cheung on the ground the
`statute does not provide for accomplice liability.
`We once again recognize aiding and abetting liability
`under the ATS, see, e.g., Doe I v. Nestle USA, Inc. (“Nestle
`I”), 766 F.3d 1013, 1023 (9th Cir. 2014), and hold Plaintiffs’
`allegations against corporate defendant Cisco sufficient to
`meet the applicable aiding and abetting standard. We also
`conclude that this case involves a permissible domestic
`application of the ATS against corporate defendant Cisco,
`because much of
`the corporation’s alleged conduct
`constituting aiding and abetting occurred in the United
`States. Finally, we reverse the district court’s dismissal of
`the claim under the TVPA against Chambers and Cheung, as
`the TVPA does provide a private right of action against those
`who aid and abet torture, and the allegations against
`Chambers and Cheung are sufficient to meet the aiding and
`abetting standard.
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`9
`
`BACKGROUND
`I. Factual Background
`For the purposes of this appeal from the granting of a
`motion to dismiss under Federal Rule of Civil Procedure
`12(b)(6), we accept as true the allegations of Plaintiffs’
`Second Amended Complaint. Ashcroft v. Al-Kidd, 563 U.S.
`731, 734 (2011).
`As alleged in the complaint:
`A. Crackdown Against Falun Gong
`The Chinese Communist Party (“the Party”) was
`founded in 1921, well before the People’s Republic of China
`was established in 1949 at the end of the Chinese Civil War.
`Within a decade of its founding, the Party began periodically
`to launch violent political crackdowns, known as douzheng
`campaigns, against groups designated by the Party as
`enemies.1 Groups that have been targeted by douzheng
`campaigns include Tibetan Buddhist Dalai Lama supporters,
`pro-democracy advocates, and reformist
`intellectuals.
`During douzheng campaigns, targets are subjected to
`numerous human rights abuses, including forced ideological
`conversion, beatings, and other forms of torture, detention in
`non-state facilities, and assignment to “re-education through
`labor” camps. Although the Chinese government does not
`officially sanction these campaigns and the Party is distinct
`organizationally and operationally from the Chinese state,
`state officials are involved in the douzheng campaigns.
`In the early 1990s, the Falun Gong religious movement
`began in China. The religion is based on the tenets of
`
`1 Plaintiffs translate douzheng as “violent struggle.”
`
`
`
`
`
`10
`
`DOE I V. CISCO SYSTEMS, INC.
`
`truthfulness, compassion, and tolerance, and espouses
`absolute nonviolence. The Falun Gong movement grew
`quickly in popularity. By 1999, an estimated 70 to 100
`million people in all regions of China practiced Falun Gong.
`As the number of Falun Gong practitioners grew, the
`Party became concerned about their activities. Party
`Chairman and Chinese President Jiang Zemin ordered
`Chinese state law enforcement—called “Public Security”—
`to investigate and find grounds for a ban against the practice
`of Falun Gong.2 In 1999, the Party officially called for a
`douzheng campaign against Falun Gong, with the goal of
`convincing adherents to renounce their beliefs or otherwise
`suppressing the practice. To facilitate the douzheng, the
`Party created Office 610, a subdivision specifically devoted
`to persecuting Falun Gong practitioners. The Chinese state
`designated Falun Gong organizations as illegal in 1999.
`To monitor Falun Gong internet activity and identify
`individual practitioners based on that activity, the Party and
`Public Security envisioned an online tool that became known
`as the “Golden Shield.” The Golden Shield was to comprise
`a “vast and multi-tiered surveillance system of a scale and
`capacity that could surveil the entire country’s Internet use
`
`2 The complaint does not define “Public Security.” We understand the
`term to refer to law enforcement officers managed by the Chinese
`Ministry of Public Security, “an organization under the State Council in
`charge of the country’s public security.” The State Council, The People’s
`Republic
`of
`China, Ministry
`Security,
`of
`Public
`http://english.www.gov.cn/state_council/2014/09/09/content_28147498
`6284154.htm (last visited Nov. 28, 2022); see also Suzanne E. Scoggins,
`Policing Modern China, 3 China L. & Soc’y Rev. 79, 82 (2018)
`(describing “China’s Public Security Bureau” as “the institution that
`encompasses the heterogeneous forces and missions of the Chinese
`police”).
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`11
`
`for all Falun Gong believers.” To develop such a system,
`capable of obtaining and organizing all the information
`about Falun Gong activities and adherents Chinese
`authorities desired—for example, the “home and work
`addresses, purchases, financial information, contact with
`other Falun Gong members, past Falun Gong activities, IP
`addresses, and family
`information” of Falun Gong
`adherents—the Party and Public Security
`required
`technology not available in China at the time. As a result, the
`Party and Chinese security officials together “sought the
`assistance of Western technology companies, including
`Cisco.”
`B. Cisco’s Contributions to the Golden Shield
`Cisco is a multinational corporation based in San Jose,
`California, with branch offices throughout the world,
`including in the Asia-Pacific region. Cisco conducted an
`extensive “marketing campaign,” “directed from Cisco’s
`headquarters in San Jose, California, in communication with
`Cisco subsidiaries in China,” with the goal of obtaining
`contracts for the design and development of the Golden
`Shield. Defendant John Chambers, Cisco chief executive
`officer at all times relevant to the allegations, met with
`President and Party Chair Jiang Zemin and other Party
`officials repeatedly, beginning as early as 1998, to discuss
`the “objectives of the Golden Shield apparatus” and to
`explain “how Cisco could help Jiang control the Internet
`through advanced
`information security networks and
`technology.” Cisco also participated in trade shows in
`Beijing in the early 2000s, at which it offered brochures
`marketing its services as useful to the “douzheng” of Falun
`Gong.
`
`
`
`
`
`12
`
`DOE I V. CISCO SYSTEMS, INC.
`
`In 2001, Public Security selected Cisco to “submit the
`high-level design” for a national public security network.
`Cisco ultimately won several contracts “to design and
`implement many Golden Shield components,” several of
`which were “first-of-their-kind features . . . developed
`specifically to aid Chinese security officers in the detection,
`apprehension
`and
`interrogation
`of Falun Gong”
`practitioners. Cisco’s technological assistance had several
`facets, including “high-level [network] design”; customized
`“software product[s]”; the provision of “integrated hardware
`and software systems, i.e., ‘solutions,’ designed for specific
`purposes”; and ongoing maintenance, testing, and training.
`Cisco “manufactured key components of the Golden Shield
`in the United States, such as Integrated circuit chips that
`function in the same manner as the Central Processing Unit
`of a computer.”
`More specifically, “Cisco’s design and implementation
`of the Golden Shield, under the direction and control of
`Defendants in San Jose, occurred in at least two phases.” In
`the first phase, “Cisco provided high-level design for and
`implementation of the Golden Shield database-driven
`surveillance system that could be accessed digitally by
`national, provincial and major municipal security across
`China.” This system included a “library of ‘signatures,’ i.e.,
`carefully analyzed patterns of Falun Gong Internet activity
`to enable the intelligent identification of individual Falun
`Gong Internet users,” “real time monitoring” of “Falun Gong
`Internet traffic patterns and behaviors,” and widespread
`integration of Falun Gong databases “with Cisco security
`software systems not only to enable the identification and
`tracking of Falun Gong, but also and specifically to give
`Chinese security
`[officers] access
`to
`the sensitive
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`13
`
`information to facilitate the zhuanhua (forced conversion
`through torture) of Falun Gong believers.”
`In phase two, “Cisco engineers in San Jose” “carefully
`analyzed” the Golden Shield system with the goal of making
`it “more efficient” and increasing its “scope.” One upgrade
`was the addition of “Ironport,” which included a tool
`“marketed by Cisco as able to identify Falun Gong online
`email communication . . . to facilitate the identification and
`apprehension of Falun Gong believers who typically sent
`and forwarded pictorial Falun Gong images to others in
`China.” Cisco “actively help[ed] Chinese security forces
`build a nationwide, networked video surveillance system.”
`This system “has been a primary means” of identifying
`Falun Gong practitioners through non-internet activities,
`such as protests or religious practice.
`The resulting surveillance system contains nationally
`accessible databases of
`information on
`the families,
`locations, contacts, and other sensitive personal data of
`suspected and known Falun Gong practitioners. The system
`includes “constantly updated
`‘lifetime’
`information
`profile[s]” of practitioners, combining data from their
`“initial identification” and subsequent “interrogation[s]” and
`“treatment[s],” all logged into centralized and accessible
`databases. Cisco employees in San Jose “approved,”
`“enacted,” and “orchestrated” the “construction, testing,
`verification, optimization, and servicing” of Cisco’s “design
`solutions and security features” for the Golden Shield.
`In addition to the provision of technology, Cisco
`engineers, “operational
`specialists,” and “high-level
`executives” in San Jose provided “long-term customer
`support,” including “network maintenance,” testing, and
`training. For example, “Cisco intentionally incorporated the
`
`
`
`
`
`14
`
`DOE I V. CISCO SYSTEMS, INC.
`
`Falun Gong-specific signatures into security software
`upgrades at regular intervals to ensure Falun Gong activities
`and individuals were identified, blocked, tracked and
`suppressed.” Cisco also “provided ‘skill training’ and
`‘technical training’ to Public Security officers” and “Office
`610 security agents” “to enable them to use the customized
`technologies to suppress Falun Gong.”3
`C. Consequences for Falun Gong Adherents
`Plaintiffs allege that the douzheng of Falun Gong, which
`has largely depended on Golden Shield technology and
`Cisco’s specific contributions to it, has devastated Falun
`Gong throughout China. Since the 1990s, the torture
`routinely used against such practitioners
`in
`forced
`conversion sessions and interrogations has been well
`documented by the United States Government, international
`human rights organizations, media outlets in the United
`States, and the UN Special Rapporteur. The U.S. Department
`of State estimates that hundreds of thousands of Falun Gong
`adherents have been persecuted, including through torture
`and detention in psychiatric facilities and labor camps. The
`Department has estimated that a significant percentage, and
`
`3 Some of the marketing and implementation of Cisco’s technical
`assistance to the Party and Chinese security was carried out by Cisco
`China. Cisco created Cisco China in 1998 in part to comply with the
`requirements of the Party and Chinese Government for international
`corporations operating within China. Plaintiffs allege that Cisco China is
`an alter ego or a “mere proxy” of the parent corporation with no “clear
`corporate demarcation.” During
`the marketing, design, and
`implementation of Cisco’s projects with the Party and Chinese security,
`Plaintiffs allege, Cisco in San Jose oversaw all operations of Cisco
`China, and the two entities shared a management structure and chain of
`command, which required Cisco China to report to executives in San
`Jose and left major decisions to be made by those executives.
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`15
`
`in many cases the majority, of those confined to labor camps
`are Falun Gong practitioners. The New York Times estimated
`in 2009 that at least two thousand Falun Gong practitioners
`had been tortured to death.
`Plaintiffs are thirteen Chinese nationals and a U.S.
`citizen, all identified through Golden Shield technology as
`participants in Falun Gong-related online activities and all
`apprehended, detained, and subjected in China to forced
`conversion, among other abuses. Two plaintiffs represent
`family members, Doe VII and Doe VIII, after Doe VII’s
`disappearance and suspected death following the forced
`administration of medicine and Doe VIII’s confirmed death
`by beating while detained. Some of the plaintiffs allege that
`they were detained several times, for years or months at a
`time, and were subjected to surveillance between detentions.
`The physical torture the plaintiffs endured in detention and
`while imprisoned in forced labor camps included beatings
`with steel rods and shocking with electric batons, sleep
`deprivation, being forced to sit or stand for prolonged
`periods of time in painful positions, and violent force-
`feeding. Plaintiffs report lasting emotional and physical
`injury caused by this abusive treatment.
`Many plaintiffs allege that information collected and
`stored by Golden Shield technology was used during the
`forced conversion sessions to which they were subjected.
`One plaintiff, for example, alleges that during his detention
`and torture, Chinese authorities used information about his
`family and wife to attempt to coerce him to renounce his
`beliefs. Another alleges authorities used private emails and
`text messages, information about and threats against his
`brother, and threats to his brother’s employment, all based
`on information obtained through Golden Shield surveillance,
`in torture sessions. Plaintiff Wang Weiyu, detained on
`
`
`
`
`
`16
`
`DOE I V. CISCO SYSTEMS, INC.
`
`several occasions and subjected to prolonged isolation and
`physical torture, alleges that information about his wife and
`threats against her safety were used against him by Chinese
`authorities during forced conversion sessions, and that the
`information used was obtained through Golden Shield
`surveillance.
`II. Procedural History
`Plaintiffs filed this putative class action in 2011. The
`Second Amended Complaint names as defendants Cisco;
`two individual defendants, John Chambers and Fredy
`Cheung; and 100 unnamed Does whose capacity and identity
`were unknown at the time of filing. Chambers was Cisco’s
`chief executive officer and Cheung was the vice president of
`Cisco China when the alleged violations occurred.
`Chinese national plaintiffs brought suit under the ATS
`against Cisco for aiding and abetting or, alternatively,
`entering into a conspiracy with Party officials and the
`Chinese government to commit violations of seven aspects
`of international law. The alleged violations include torture;
`cruel, inhuman, or degrading treatment; forced labor;
`prolonged and arbitrary detention; crimes against humanity;
`extrajudicial
`killing;
`and
`forced
`disappearance.
`Additionally, U.S. citizen plaintiff Charles Lee alleged
`torture in violation of the TVPA against Chambers and
`Cheung.
`The district court stayed the action while Kiobel v. Dutch
`Petroleum Co., 569 U.S. 108 (2013), was pending before the
`Supreme Court. Kiobel held that the ATS does not apply
`extraterritorially. Id. at 124. After Kiobel was decided, Cisco
`moved to dismiss the complaint. In 2014, the district court
`granted the motion to dismiss. The court held that Plaintiffs
`failed to plead a sufficient connection between the alleged
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`17
`
`violations and the territory of the United States to permit the
`domestic application of the ATS. The court also held that the
`complaint did not adequately allege a claim for aiding and
`abetting liability under international law. Specifically, the
`complaint, according to the district court, did not show a
`“substantial effect on the perpetration of alleged violations
`against Plaintiffs” or demonstrate that Cisco knew its actions
`would contribute to violations of international law.
`After we concluded in Nestle I, 766 F.3d 1013, that the
`allegations
`in
`that
`case—which
`concerned U.S.
`corporations’ involvement in violations of international law
`that occurred abroad—were sufficient to satisfy the mens rea
`of an aiding and abetting claim under the ATS, id. at 1026,
`Plaintiffs in this case filed a motion for reconsideration,
`which the district court denied. This appeal followed. We
`stayed this case pending the Supreme Court’s decisions in
`Jesner v. Arab Bank, PLC, 138 S. Ct 1386 (2018), and Nestle
`USA, Inc. v. Doe (“Nestle II”), 141 S. Ct. 1931 (2021), cases
`whose relevance we explain later in this opinion.
`DISCUSSION
`Plaintiffs appeal the district court’s dismissal of seven
`claims under the ATS and its dismissal of Plaintiff Charles
`Lee’s TVPA claim against Chambers and Cheung. This
`court reviews de novo a district court’s dismissal pursuant to
`Federal Rule of Civil Procedure 12(b)(6). See, e.g., Edwards
`v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). To
`survive a motion to dismiss, a plaintiff must allege “enough
`facts to state a claim to relief that is plausible on its face.”
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`Although a reviewing court must accept a complaint’s
`factual allegations as true, the same is not true of legal
`conclusions, and “[t]hreadbare recitals of the elements of a
`
`
`
`
`
`18
`
`DOE I V. CISCO SYSTEMS, INC.
`
`cause of action, supported by mere conclusory statements,
`do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`I. The Alien Tort Statute
`A. Background
`The 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. Before the
`ratification of the Constitution and the passage of the
`Judiciary Act of 1789 to implement its provisions, several
`international scandals had resulted from the “inability to
`provide judicial relief to foreign officials injured in the
`United States.” Kiobel, 569 U.S. at 123; see also Jesner, 138
`S. Ct. at 1396–97 (majority op.).4 Noting the problems
`caused by the lack of a forum in which aggrieved
`foreigners—in particular, ambassadors—could find an
`appropriate remedy, the Supreme Court in Jesner concluded
`that the First Congress of the United States enacted the ATS
`as part of the Judiciary Act of 1789 to “promote harmony in
`international relations by ensuring foreign plaintiffs a
`remedy for international-law violations in circumstances
`where the absence of such a remedy might provoke foreign
`nations to hold the United States accountable.” 138 S. Ct. at
`1396–97, 1406 (majority op.); see also Kiobel, 569 U.S. at
`123.
`The precise contours of the ATS remained largely
`undefined for nearly two hundred years. See Kiobel, 569
`
`4 Some sections of the main opinion in Jesner represent the opinion of
`the Court, and others are signed only by three justices. 138 S. Ct. at 1393.
`We refer to the opinion of the Court as the “majority opinion” and to the
`other sections as the “plurality opinion.”
`
`
`
`
`
`DOE I V. CISCO SYSTEMS, INC.
`
`
`
`19
`
`U.S. at 114. Beginning with the seminal case of Filartiga v.
`Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the ATS gained
`new relevance and, more recently, definition. See Sosa v.
`Alvarez-Machain, 542 U.S. 692, 725
`(2004). Two
`developments in the fleshing out of the ATS are of particular
`relevance to this case.
`First, in Sosa, the Supreme Court delineated a “high bar”
`for recognition of new causes of action under the ATS. Id. at
`728; see also Jesner, 138 S. Ct. at 1398, 1402 (majority op.).
`Noting that the ATS is “only jurisdictional” and does not
`itself provide a cause of action, the Court held that the ATS
`“enable[s] federal courts to hear claims in a very limited
`category defined by the law of nations and recognized at
`common law.” Sosa, 542 U.S. at 712. At the time the ATS
`was enacted, the common law recognized only three such
`causes of action: “violation of safe conducts, infringement
`of the rights of ambassadors, and piracy.” Id. at 715 (citing
`4 William Blackstone, Commentaries *68). Sosa concluded
`that under the ATS only claims that “rest on a norm of
`international character accepted by the civilized world and
`defined with a specificity comparable to” those causes of
`action may be recognized today. Id. at 725. Sosa additionally
`instructed that courts are to consider foreign policy
`consequences and separation-of-power concerns before
`recognizing a cause of action or allowing a particular case to
`proceed. Id. at 728, 732–33; see also Jesner, 138 S. Ct. at
`1399 (plurality op.). These requirements have been
`interpreted as prescribing a two-part test for determining
`
`
`
`
`
`20
`
`DOE I V. CISCO SYSTEMS, INC.
`
`whether a new cause of action may be recognized under the
`ATS. See Jesner, 138 S. Ct. at 1399 (plurality op.).5
`We note that the Supreme Court has divided several
`times as to whether any new international law causes of
`action should be recognized under the ATS, beyond the three
`that existed in 1789. Most recently, in Nestle II, three
`Justices opined that federal courts should not recognize new
`causes of action “beyond the three historical torts identified
`in Sosa.” 141 S. Ct. at 1939 (plurality op.);6 see also Jesner,
`138 S. Ct.
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