November 2012: Appellate Litigation Update

by Quinn Emanuel Urquhart & Sullivan, LLP

Quinn Emanuel Opens Supreme Court’s October 2012 Term: On Monday, October 1, 2012, the Supreme Court reconvened for its first oral arguments after the summer recess. Quinn Emanuel’s Kathleen Sullivan argued in the very first case of the new Term, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, on behalf of the respondents, the Dutch and English corporations Royal Dutch Petroleum Company and Shell Transport and Trading Company (collectively, “Shell”). This is the second time the case was argued, after the Court took the unusual step of ordering re-argument after Shell’s argument last Term.

At issue is the scope of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, which the First Congress enacted in 1789. The Act was motivated by concern that international law violations, like assaults on foreign ambassadors on U.S. soil, required redress in the nation’s nascent Federal Courts lest State-Court indifference to such violations lead to international conflict. The ATS accordingly provides: “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.”

The ATS was rarely invoked until 1980, when the U.S. Court of Appeals for the Second Circuit gave it new life in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Filartiga allowed an ATS suit alleging that a former Paraguayan government official had tortured the plaintiff in Paraguay in violation of international human rights norms. Filartiga opened the door to numerous other ATS cases for conduct on foreign soil—including many naming corporations as defendants.

In 2004, in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court kept the door open for such ATS actions, if only just ajar. Sosa held that, while the ATS provides only jurisdiction, federal common law provides a cause of action for offenses against the law of nations so long as they have no “less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted”—namely, violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 732. Sosa imposed a second screen on ATS actions as well, requiring that Federal Courts exercise their “judgment about the practical consequences of making [a new ATS] cause available to litigants in the federal courts.” Id. at 732-33.

Kiobel raises the question whether an ATS suit may proceed against a foreign corporation for alleged conduct aiding and abetting a foreign government on foreign soil. It involves a suit by Nigerian citizens alleging that Shell aided and abetted human rights violations in Nigeria by a prior Nigerian government. In 2010, the Second Circuit, in a divided opinion, held that international law does not recognize liability for corporations (as opposed to natural persons) for the violations alleged, and thus dismissed the case. The Supreme Court granted review in October 2011, and Shell retained Quinn Emanuel to represent it in the Court.

The Court granted review on the question whether international law holds a corporation (as opposed to a natural person) responsible for the violations alleged. Shell argued that it does not, but also argued, in the alternative, that the ATS and federal common law do not apply at all to conduct within the territory of a foreign sovereign. During oral argument on February 28, 2012, several Justices posed questions concerning that extraterritoriality issue, asking what the case had to do with the United States. The following week, the Court issued an unusual order asking the parties to prepare briefs on that issue over the summer and setting the case for re-argument this Term.

Kiobel in its two rounds has attracted over 85 amicus briefs from the U.S. and international business communities, human rights organizations, and governments, including the United States, which argued on the first Monday in October, in support of Shell, that the ATS cannot apply to a “foreign-cubed” action involving foreign conduct by a foreign corporation alleged to have aided and abetted a foreign government. Numerous other corporations and groups filed amicus briefs agreeing with Shell that the ATS equally cannot apply to “foreign-squared” actions against U.S. corporations alleged to have aided and abetted foreign government conduct on foreign soil. A decision is expected by June 2013.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Quinn Emanuel Urquhart & Sullivan, LLP | Attorney Advertising

Written by:

Quinn Emanuel Urquhart & Sullivan, LLP

Quinn Emanuel Urquhart & Sullivan, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.