Alien Tort Statute Development

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Since we blogged about the Supreme Court’s certiorari grant in Kiobel v. Royal Dutch Petroleum, 10-1491, we figured we owe our readers an update about a significant status change.

As we mentioned before, the Court accepted the appeal in Kiobel to answer a rather general question that nonetheless could affect drug/device companies caught up in Alien Tort litigation – whether the Act could be applied to corporations, as opposed to individuals.

Well, that’s been changed.  The other day, the Court ordered reargument (for next term) and broadened the question presented even more.  Now, the Court intends to decide:

"Whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."

(Citation omitted).

This means that the Court is going to decide whether the statute can be applied extraterritorially at all – whether U.S. law has any business policing acts that occur in other countries and injure only those countries’ citizens.  As always, there’s a much more detailed discussion for those who are interested on SCOTUSblog.

Again, this goes far beyond drug/device product liability litigation, but after the Court’s personal jurisdiction decisions last year, we have reason to suspect/hope that recent expansive uses of the Alien Tort statute may be in for a trim.

Also, while there are obvious and profound differences between international extraterritoriality of the sort now at issue in Kiobel versus interstate extraterritoriality of the kind we frequently encounter, most often in consumer protection claims, we’ll be watching the eventual resolution in Kiobel closely to see if the Court makes any statements in the context of the former (international extraterritoriality) that might also be applicable to the latter (interstate extraterritoriality).

Just thought you ought to know.