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Resisting an all-encompassing Alien Tort Statute

An Aug. 24 news release from the National Foreign Trade Council, "Leading Business Groups Urge Federal Court to Dismiss South African Alien Tort Lawsuit," noting the filing of an amicus brief in the Second U.S. Circuit Court of Appeals supporting the appeal of a lower court's ruling in an Alien Tort Statute lawsuit.

The lawsuit, now known as Balintulo v. Daimler, AG, et al., was originally filed in 2002 against 85 U.S. and European companies that had done business in South Africa prior to 1994. The case was dismissed in Federal District Court in 2005, but was sent back to that Court by the Second Circuit Court of Appeals in 2007. Since then the District Court has ruled that the case may go forward and the defendants have appealed to the Second Circuit to dismiss the case. This amicus brief is in support of that appeal....

The amicus brief filed today cites the fact that both the U.S. and the South African governments have asked that the case be dismissed and concludes that where the executive branch determines that trade will promote the interests of the United States (and improve the lot of foreign citizens as well) courts must respect that determination by shutting down inconsistent litigation at the earliest opportunity.

The brief is available here. Others joining in the amicus brief are USA*Engage, U.S. Council for International Business, Organization for International Investment, and the National Association of Manufacturers (my employers). The NAM summarizes the litigation at our Legal Beagle search engine.

Staying in the Southern Hemisphere, The Age newspaper in Australia reports, "Plan for locals to join Madoff class actions," reporting that, "THE US law firm representing investors attempting to recoup funds from Bernard Madoff plans to launch class actions on behalf of Australian companies and investors who lost millions of dollars to fraud and negligence on US financial markets."

Which law firm? Milberg! As for the Alien Tort Statute:

Millberg [sic] senior partner Brad Friedman warned Australian multinationals that breaching their international legal obligations could also result in class action suits in the US.

''Many courts around the world, but particularly in the United States, are willing to assert jurisdiction against foreign companies,'' Mr Friedman said.

He said lawyers would increasingly use US alien torts legislation to hold Australian companies liable for breaches of international laws that occurred outside the US.

Speaking of aliens, have you seen "District 9," the science fiction/crustacean-buddy flick set in South Africa? It ends ambiguously, setting up the possibility of a sequel. Most would expect such a sequel to be an action/revenge movie, but we suspect it will be a courtroom drama involving a high-profile civil suit against companies that supplied the private security forces used to oppress the non-humans.

Set it in U.S. District Court, Southern District of New York, cast Russell Crowe as a crusading attorney, and call it, "District 9: Alien Tort Statute."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.