By Rebecca Hamilton
(Reuters) - For more than three decades survivors of human rights abuses in foreign countries have turned to U.S. federal courts to seek justice. On Monday the U.S. Supreme Court hears a case that could make that impossible.
The case pits a Nigerian widow against a multinational oil company. Esther Kiobel and others say Royal Dutch Petroleum (Shell) helped the Nigerian government commit human rights violations against her husband, who was executed in 1995. Shell has denied the allegations and argues that cases involving foreign governments committing atrocities in their own countries do not belong in the U.S. court system at all.
That the justices are considering the sweeping question of whether an entire class of lawsuits can be heard in the United States can be traced to briefs filed by three lawyers whose clients aren't even involved in the case.
How their briefs came to be sheds light on one of the most closely watched cases before the Supreme Court this term and shows how the efforts of private lawyers pursuing a public policy goal can have momentous consequences.
A ruling against Kiobel could wipe out lawsuits pending against companies such as Exxon Mobil Corp, Rio Tinto Plc and Nestle, which are accused by private plaintiffs of helping governments violate human rights in Indonesia, Papua New Guinea and Ivory Coast, respectively.
Esther Kiobel's husband, Barinem Kiobel, was arrested in 1994 along with Nobel Peace Prize nominee Ken Saro-Wiwa and others. They had spoken out against the government's violent suppression of environmental activists who opposed Shell's oil and gas drilling in Nigeria. Kiobel was found guilty of murder by a Nigerian military court in a trial that the U.S. State Department said lacked due process, and he was hanged in Port Harcourt, Nigeria, in 1995.
With no recourse in Nigeria, Esther, who had received asylum in the United States, filed a lawsuit in federal court in New York alleging among other things that Shell cooperated with the Nigerian military, resulting in crimes against humanity. She relied on a 200-year-old U.S. law called the Alien Tort Statute.
While the case was under way, Shell won a ruling in September 2010 from the influential 2nd U.S. Circuit Court of Appeals that said Shell could not be held liable under the statute because it was a corporation. It was a major shock to human rights lawyers, who had brought more than 100 such cases against corporations in the previous two decades.
TEAMING UP AGAIN
The ruling quickly caught the attention of John Bellinger, an attorney at the law firm Arnold & Porter. In a series of interviews with Reuters, Bellinger, 52, discussed his actions over the subsequent 18 months. He stressed that he was speaking in a private capacity rather than as a representative of his clients in the Kiobel case.
Bellinger believed Kiobel's lawyers were likely to petition the Supreme Court. Sure enough, in October 2011 the court agreed to take the case on the narrow question of whether corporations could be held liable under the statute.
Bellinger, who had been State Department legal adviser in the Bush administration, had bigger ideas. He wanted to present the court with arguments he had heard from foreign governments while he was at the State Department. Back then, Australia, Britain, Canada and others had protested when cases were brought under the Alien Tort Statute. They argued that U.S. courts had no business judging events that took place on foreign soil.
When the Supreme Court accepted the Kiobel case, Bellinger started emailing and calling governments that had opposed previous Alien Tort Statute cases to see whether they wanted to file a brief and whether they already had legal representation. But none of those he contacted were ready to commit, leaving him with no one to represent.
In November last year, Bellinger called Shell's lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former U.S. Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.
Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation's top court. In late 2011 he was working on some of the nation's highest-profile cases, including defending Arizona's immigration law and a federal law that defines marriage as a union between a man and a woman.
Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. "Paul agreed," said Bellinger, "we could track a number of the issues we'd argued in government."
They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement's job was to look at the big picture.
In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger's concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit's Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.
Like Bellinger, Clement agreed to speak only in a private capacity and not as a representative of his clients in the ongoing litigation.
The two lawyers said they decided they needed to marshal a much broader argument than the one the Supreme Court had asked for in Kiobel. Bellinger spent December 2011 reaching out to clients of Arnold and Porter who were past, current or potential future targets of lawsuits under the Alien Tort Statute.
In February this year they filed their brief on behalf of BP Plc, Caterpillar Inc, ConocoPhillips, General Electric Co, Honeywell International Inc and IBM. They argued that the Alien Tort Statute does not cover events that took place in foreign countries, nor does it apply to those who help others commit abuses, only those who commit abuses themselves. None of the six companies would comment for this story.
Jack Goldsmith, another lawyer who had worked in the Bush administration, filed a similar brief on behalf of Chevron. Goldsmith declined to talk about the pending litigation.
CHANGING THE QUESTION
On a crisp morning in late February, Paul Hoffman, a veteran human rights advocate, stood before the Supreme Court to argue the case for Kiobel. Some 16 years earlier, Hoffman had brought a landmark lawsuit under the Alien Tort Statute against oil company UNOCAL over abuses in Myanmar, which settled in 2005 for an undisclosed sum. Since then, bringing lawsuits against corporations had come to define his career.
Hoffman had hardly opened his mouth, however, when Justice Anthony Kennedy interrupted with a question that had nothing to do with corporate liability but rather to do with the reach of U.S. courts. Justice Samuel Alito jumped in next: "What business does a case like that have in the courts of the United States?" Then Chief Justice John Roberts joined the fray. The justices wanted to know if U.S. courts had any role in adjudicating events that took place overseas. Hoffman was under assault and struggled to get back to the question of corporate liability.
Bellinger, sitting two rows back in the public gallery, smiled. The justices were interested in his argument.
Just how interested became clear a few days later. The following Monday, Bellinger got a message on his BlackBerry. The court had asked the parties to come back and argue a new question: whether, and under what circumstances, the Alien Tort Statute applied to events on foreign soil. "It was a stunner," he said.
Clement was similarly surprised. "We didn't file the brief imagining that they were going to ask for reargument," he said. "We filed the brief thinking if the court said something favorable it would help our clients in lower courts."
When the Supreme court seeks a second round of oral arguments, it can portend a significant ruling. Brown v. Board of Education, the landmark 1954 case that ended segregation in public schools, was decided after reargument. In 2009 a second round of arguments in Citizens United v. Federal Election Commission was followed by a major decision on political spending by corporations and unions.
The court's decision to consider the wider question could have a major impact. As of August this year, there were 36 claims against corporations under the Alien Tort Statute. If the court had ruled for Shell on the narrower question - that the statute does not apply to corporations - 20 of those cases could be dismissed. However, those 20 cases could be changed to name individual corporate officers rather than the corporations as defendants. This would mean the cases could go forward. And while they would be harder to win, they would still create negative publicity. "It wouldn't stop the next wave of litigation," said Bellinger.
If, on the other hand, the court rules broadly for Shell, deciding that the statute does not apply to events on foreign soil, 29 of the current cases would likely be dismissed. The only cases that would remain are seven in which the alleged abuses took place on U.S. soil.
Earlier this month, Hoffman held a final strategy meeting at New York University Law School. His casual chinos and sneakers belied the seriousness of Monday's reargument for the survivors of human rights abuses. A ruling against the plaintiffs on the grounds that the events happened overseas would, he said, "rip the guts" out of the Alien Tort Statute.
(Reporting by Rebecca Hamilton; Editing by Eddie Evans and Douglas Royalty)