A District Court judge for the Southern District of New York last week denied in part and granted in part a motion to dismiss in the seminal Alien Tort Statute (“ATS”) case, In Re South African Apartheid Litigation. The In Re Apartheid case is particularly significant because it helps to clarify how courts may analyze liability in ATS cases for companies conducting business in countries with poor human rights records. The ruling required that companies have “knowledge” that they are assisting a crime, rather than “intent.” Knowledge is easier to demonstrate in court. The court also noted that merely conducting business in a pariah country or providing fungible goods or financing is not likely to generate aiding and abetting liability under the ATS. Rather, the court looked for goods that were specifically tailored for the government and used to help commit a crime. The court seemed to be searching for a tight causal nexus between the goods supplied and the particular harm suffered. The court also concluded that conspiracy liability is not available under the ATS.
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