Kiobel's Practical Significance

The Second Circuit’s holding in Kiobel that plaintiffs cannot sue corporations under the Alien Tort Statute (ATS) will, I predict, eventually be embraced by the Supreme Court.  But that will not end ATS litigation arising from alleged corporate human rights abuses.  As the majority makes clear, “nothing in this opinion limits or forecloses suits under the ATS against the individual perpetrators of violations of customary international law—including the employees, managers, officers, and directors of a corporation—as well as anyone who purposefully aids and abets a violation of customary international law.”  We can now expect suits against corporate officers and employees under the ATS for their corporation’s alleged human rights violations.  It will be harder to show that high-level officers with deep pockets are culpable than it is to show the corporation itself is culpable.  Many lower-level culpable individuals will be judgment proof.  And all of these individuals might be harder to assert personal jurisdiction over than the corporation itself.  These hurdles might dissuade private plaintiffs’ firms from taking on corporate ATS cases.  But they should not dissuade the many NGOs that bring ATS suits and that are motivated by the aims of developing international norms and shaming bad corporate practices, the latter of which can be achieved to some degree by the mere filing of a complaint.