does v. chiquita brands, petition to us supreme court

8/10/2019 Does v. Chiquita Brands, Petition to US Supreme Court

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No. ______________

In The

SUPREME COURT OF THE UNITEDSTATES

DOES 1-144, 1-976, 1-677, 1-254

Petitioners,

vs.

CHIQUITA BRANDSINTERNATIONAL. INC. et al,

Respondents, _____________

On Petition for Certiorari to the United StatesCourt of Appeals for the Eleventh Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

______________

Paul David Wolf Attorney for Does 1-144, 1-976, 1-677, 1-254P.O. Box 46213Denver, CO 80201(202) 431-6986


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QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioners claims touch and concern theterritory of the United States with sufficient force to

displace the presumption against the extraterritorial

application of the Alien Tort Statute (ATS).

2. Whether the civil tort laws of Florida, New Jersey,

Ohio, and the District of Columbia apply to theextraterritorial conduct of foreign tortfeasors with

respect to foreign victims.


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LIST OF PARTIES

The 2,051 Doe Petitioners were plaintiffs andappellees below, proceeding under pseudonyms in the

complaints filed in the Southern District of Florida in

Case Nos. 08-80465, 10-80652, 11-80404, and 11-80405.

Respondents Chiquita Brands International, and ten

Doe Defendants identified in the associated criminalcase, were defendants and appellants below.


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................... vii.

OPINIONS BELOW ....................................... 1.

JURISDICTION ............................................. 1.

CONSTITUTIONAL PROVISIONS,STATUTE AND REGULATIONS

AT ISSUE ....................................................... 1.

STATEMENT OF THE CASE ...................... 4.

A. Facts Giving Rise To This Case .............. 4.

B. The District Court Proceedings .............. 6.

C. The Appellate Court Proceedings ........... 9.

REASONS WHY CERTIORARISHOULD BE GRANTED ............................. 10.

I. Review is Warranted Becausethe Opinion of the Majority Panel ofthe Eleventh Circuit Conflicts withthis Courts Hold ing in Kiobel v.Royal Dutch Petroleum ................................ 10.

A. The Chiquita case touches andconcerns the territory of the UnitedStates with "great force." ......................... 11.

B. The Chiquita case could pass thetests proposed in every concurring


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opinion. ...................................................... 12.

C. The focus of concern of the AlienTort Clause was to provide a federal,rather than state court forum forcases such as this. ............................ 14.

II. Review Is Warranted Because theEleventh Circuit's Decision Conflictswith Opinions of the Second andFourth Circuits. ........................................... 19.

III. Review Is Warranted Because thisCase Should be Heard in a Federal, notState Court. ................................................. 25.

A. Erie requires federal courts to

apply state law extraterritorially,as state courts do. .................................... 27.

B. The federal interest in foreignrelations is unique and exclusive. .......... 29.

C. The Alienage Jurisdictionprovisions of 28 USC 1332 weremeant to keep "foreign" cases infederal court. ............................................ 33.

D. A state court's power to hear"foreign" cases is limited only bythe Due Process Clause of the USConstitution. ............................................ 35.

E. Federal common law shouldapply to alien tort cases, to ensure


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uniformity and federal control overforeign relations. ................................... 38.

CONCLUSION ......................................... 41.

APPENDIX

1.28 U.S. Code 1332 ............................... 1.

2.28 U.S. Code 1350 note ....................... 10.

3.50 U.S.C. 1705(b). ............................... 13.

4.31 C.F.R. 594.204. ................................. 14.

5 .Judgment in criminal case, 07-cr-55. 15.

6. Factual Proffer, March 19, 2007. ...... 20.

7. Opinion and Order of the DistrictCourt, Granting in Part and Denyingin Part Defendant's Motion to Dismiss.6/3/2011. ................................................... 37.

8. District Court Order Granting inPart and Denying in Part Defendant'sMotion to Dismiss New Actions. 3/27/2012. 132.

9. District Court Order GrantingDefendants Motion for Certification ofInterlocutory Appeal. 3/27/2012. .............. 140.

10. Order Granting in Part and


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Denying in Part Plaintiff's Motion forReconsideration. 3/27/2012. ....................... 152.

11. 11th Circuit Order granting petitionfor interlocutory review. 9/27/2012. .......... 159

12. 11th Circuit Opinion dismissingappeal for lack of jurisdiction. 7/24/2014. .. 161

13. 11th Circuit Order denying panelrehearing, 9/4/2014. .................................... 183

14. 11th Circuit Order denying rehearingen banc, 10/2/2014. ..................................... 186

15. 11th Circuit Order denying Appellee'sMotion to Stay Mandate Pending this

Court's Review. 11/3/2014. .......................... 188


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TABLE OF AUTHORITIES

CASES

* Al Shimari v. CACI Premier Tech. Inc.,2014 WL 2922840 (4th Cir. June 30, 2014) .. 20-23.

Allstate Ins. Co. v. Hague, 449 U.S. 302(1981) ............................................................. 36, 37.

American Insurance Association v.Garamendi, 539 U.S. 396 (2003) ..................... 31.

Askander v. Unity Resources Group,Case No. 5:10-CV-00073-D. (E.D.N.C.) ........... 36.

Balintulo v. Daimler AG, 727 F.3d 174

(2d Cir. 2013) ................................................ 22, 24.

Baloco et al v. Drummond, No. 12-15268(11th Cir. Sept. 23, 2014) ................................ 23.

* Banco Nacional de Cuba v. Sabbatino,376 U.S. 398, 426-427 (1964) .......................... 39.

Brady v. Xe Services,Case No. 5:09-CV-449-BO (E.D.N.C.) ............. 36.

Chowdhury v. Worldtel,2014 WL 503037 (2d Cir. Feb. 10, 2014) ........ 24.

Crosby v. National Foreign Trade Council,530 U.S. 363 (1999) ......................................... 30.

Doe v. Nestle, No. 10-56739


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(9th Cir. Sept. 4, 2014) .................................... 23.

Doe v. Exxon Mobil, 527 Fed.Appx. 7(D.C. Cir. June 26, 2014) (not reported). ........ 23.

Doe v. Exxon Mobil Corporation,2914 WL 4746256 (D.D.C. Sept 23, 2014) ...... 24.

Daobin v. Cisco Sys., Inc.,2014 WL 769095 (D.Md. Feb. 24, 2014) ......... 24.

EEOC v. Arabian American Oil Co.,499 U.S. 244 (1991) ......................................... 40.

* Erie R. Co. v. Thompkins, 304 U.S. 64(1938) ............................................................. 27-29.

Filrtiga v. Pea-Irala, 630 F.2d 876(2d Cir. 1980) ................................................. 35, 40.

Ford v. State, 330 Md. 682 (1993) ................. 16.

Gang v. Zhizhen, N2013 WL 5313411(D. Conn. Sept. 20, 2013) ............................... 25.

* Halberstam v. Welch, 705 F.2d 472(D.C.Cir.1983) ................................................ 18, 39.

* International Shoe Co. v. Washington,326 U.S. 310 (1945) ........................................ 37-38.

Kadic v. Karadzic, 70 F. 3d 232(2nd Cir. 1995) ................................................ 17.

* Kiobel v. Royal Dutch Petroleum Co.,


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133 S.Ct. 1659 (2013) .................................... 10-19.

Khulumani v. Barclays National Bank,504 F.3d 254 (2nd Cir. 2007) ......................... 17.

Klaxon Co. v. Stentor Elec. Mfg. Co.,313 U.S. 487 (1941) ........................................ 28.

Krishanti v. Rajaratnam, 2014 WL1669873 (D.N.J. Apr. 28, 2014) ..................... 24.

* Linder v. Portocarrero,963 F.2d 332 (11th Cir. 1992) ......................... 28.

* Mamani v. Snchez-Berzin, 07-22459-CIV-COHN (S.D.F.L. May 20, 2014) ............. 25.

* Mastafa v. Chevron, 2014 WL 5368853(2nd Cir. Oct. 23, 2015) ................................. 18-20.

Matimak Trading Co. v. Khalily,118 F.3d 76 (2nd Cir. 1997). .......................... 33.

Milliken v. Meyer, 311 U.S. 457 (1940). ........ 37.

Mohammadi v. Islamic Republic of Iran947 F. Supp. 2d 48 (D.D.C. 2013) .................. 25.

* Morrison v. Natl Austl. Bank Ltd. ,561 U.S. 247 (2010). ............................ 14-15, 39-40.

Mwani v. Bin Laden, 2013 WL 2325166(D.D.C. May 29, 2013). .................................. 24.

Norex Petroleum v. Access Indus. Inc.,


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Case No. 650591/2011 (N.Y. Sup. Ct.) .......... 36.

Pennoyer v. Neff, 95 U.S. 714 (1877) ............ 38.

Phillips Petroleum Co. v. Shutts,472 U.S. 797 (1985) ........................................ 37.

Pinkerton v. United States,328 U.S. 640 (1946) ........................................ 16.

Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980) ............................................................... 33.

Sandstrom v. Montana, 442 U.S. 510 (1979) 16.

Sexual Minorities Uganda v. Lively,2013 WL 4130756 (D. Mass. 8/14/2013) ....... 24.

Sikhs For Justice Inc. V. Indian NationalCongress Party, 2014 WL 1683798(SDNY 2014). ................................................. 24.

* Sosa v. Alvarez-Machain, 542 U.S. 692(2004). ............................................................ 17-18.

* Swift v. Tyson, 41 U.S. 1 (1842) ................ 38.

Tel-Oren v. Libyan Arab Republic,726 F.2d 774 (D.C. Cir. 1984) ....................... 17.

Tymoshenko v. Firtash, 2013 WL4564646 (S.D.N.Y. Aug. 28, 2013). .............. 25.

United States v. Smith,198 F.3d 377 (2d Cir. 1999) ........................... 17.


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* Zschernig v. Miller, 389 U.S. 429 (1968) 30-31, 39.

CONSTITUTION AND STATUTES

U.S. Const. Art. IV, I (full faith and credit) .. 36.

U.S. Const. Art. III, 2, cl. 1. ...................... 32-33.

U.S. Const. Amend XIV. 1. ....................... 35-48.

18 U.S.C. 3231 .......................................... 34.

28 U.S.C. 1254(1) ...................................... 1.

28 U.S.C. 1331 .......................................... 26, 34.

28 U.S.C. 1332 ............................................ 25-35.

28 U.S.C. 1350 ............................................ 10-25.

28 U.S.C. 1350 note ...................................... 26.

Judiciary Act of 1789 (ch. 20, 1 Stat. 73) ....... 15.

Dodd-Frank Act, Pub.L. 111 203 (2010) ....... 40.

OTHER

Blacks Law Dictionary (9th ed. 2009) ....... .... 23.

Moore's Federal Practice (2004) ..................... 33.

Restatement of Conflict of Laws (1971) ......... 29.


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Restatement (Third) of Foreign RelationsLaw of the United States (1987) .................... 26.

William S. Dodge, The Historical Originsof the Alien Tort Statute: A Response tothe Originalists, 19 Hastings Int'l &Comp. L. Rev. 221 (1996). .......................... 15.

Katherine Florey, State Law, U.S. Power, Foreign Disputes: Understandingthe Extraterritorial Effects of State Lawin the Wake of Morrison v. National

Australia Bank , B.U. L. Rev. 535 (2012) .. 36.

Henry J. Friendly, The Historic Basis of Diversity Jurisdiction , 41 Harv. L.Rev.483 (1927-28) .............................................. 34.

Kevin R. Johnson, Why AlienageJurisdiction? Historical Foundationsand Modern Justifications for FederalJurisdiction over Disputes InvolvingNoncitizens , 21 Yale J. Int'l L. 1 (1996) .... 33.

Richard Painter, Douglas Dunham& Ellen Quackenbos, When Courtsand Congress Don't Say What TheyMean: Initial Reactions to Morrison v.

Australia National Bank and to theExtraterritorial Jurisdiction

Provisions of the Dodd-Frank Act ,20 Minn.. J. Intl. L. 1, 2-5 (2011) ............... 40.

Joseph B. Crace, Jr., Note, Gara-mendingthe Doctrine of Foreign Affairs Preemption ,


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90 Cornell L. Rev. 203, 207 (2004) .............. 31.

L. Henkin, Foreign Affairs and the UnitedStates Constitution 164 (2d ed.1996) .......... 31.


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OPINIONS BELOW

The decision of the court of appeals, reportedat 760 F.3d 1185 (11th Cir. July 24, 2014), is

reprinted in the Appendix (Appx.) at 161. The

district courts opinion, reported at 792 F. Supp. 2d

1301 (S.D. Fla. 2011), is reprinted at Appx. 37. The

district court also issued a separate opinion for asimilar group of plaintiffs, which is reprinted at

Appx. 132.

STATEMENT OF JURISDICTION

The court of appeals entered its judgment onJuly 24, 2014, and denied petitions for panel

rehearing and rehearing en banc on July 24, 2014

and Sept. 4, 2014. Appx. at 161, 182. This Court has

jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES AND REGULATIONS AT ISSUE

U.S. Const. art. III, 2, cl. 1.

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or


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which shall be made, under their Authority;--to all

Cases affecting Ambassadors, other public Ministers

and Consuls;--to all Cases of admiralty and maritime

Jurisdiction;--to Controversies to which the United

States shall be a Party;--to Controversies between

two or more States;--between a State and Citizens of

another State;--between Citizens of different States;--

between Citizens of the same State claiming Lands

under Grants of different States, and between a

State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

U.S. Const. amend. XIV 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.


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28 U.S. Code 1332 - Diversity of citizenship;amount in controversy; costs

(a) The district courts shall have original jurisdiction

of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a

foreign state, except that the district courts shall not

have original jurisdiction under this subsection of an

action between citizens of a State and citizens or

subjects of a foreign state who are lawfully admitted

for permanent residence in the United States and are

domiciled in the same State; ....

(see Appendix for full text)

28 U.S.C. 1350 - Aliens action for tort

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.

28 U.S.C. 1350 note - Torture VictimProtection Act.

(see Appendix for text)


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STATEMENT OF THE CASE

A. Facts Giving Rise to this Case.This case arises from the actions of Chiquita

Brands International, Inc. in funding and arming

illegal armed organizations in Urab, Colombia. The

Doe Plaintiffs are family members of banana farm

workers, union members, political organizers, socialactivists, and others targeted and killed by the

United Self-Defense Forces of Colombia

( Autodefensas Unidas de Colombia , or "AUC"), and

other Specially Designated Terrorist organizations.

Chiquita funded and armed these groups so that theycould wrest control of the region from left-wing

guerrillas to protect Chiquita's business interests.

The conspiracy to pay the AUC, and to

disguise the payments, was made by Chiquita's

Board of Directors in Cincinnati, Ohio. For at leastseven years, Chiquita paid the AUC locally in the

two regions of Colombia where it had banana-

producing operations. See Factual Proffer, Appx. at

23-27. The General Manager of Chiquita's wholly-

owned subsidiary, Banadex, met personally with

Carlos Castao, the leader of the AUC. Factual


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Proffer, Appx. at 24. From about 1997 through Feb.

2004, Chiquita made over 100 monthly payments to

the AUC, totaling over $1.7 million dollars. Id.,

Appx. at 24-35. This was admitted in Chiquita's

Factual Proffer in the associated criminal case, 07-cr-

055 (D.D.C.), in which Chiquita pled guilty to the

felony of engaging in financial transactions with

specially designated terrorists. Id.

The procedures for making the payments

involved keeping a second set of books and making

cash payments through personal bank accounts. Id.

These payments were reviewed and approved by

senior executives of the corporation, including

officers and directors. Id. In-house attorneys for

Chiquita conducted an investigation into the

payments, the results of which were discussed at a

meeting of the Audit Committee of Chiquita's Board

of Directors in September of 2000, and then by the

Board of Directors itself, which determined that the

company would continue making the payments. Id.

Chiquita was advised by the Department of Justice

that the payments were illegal. When Chiquita did

not stop making them, they were criminally

prosecuted, and pled guilty. Id. Chiquita also owned


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and operated a private port in Colombia that the

AUC used to import thousands of machine guns, and

export tons of cocaine. The drug and weapons

trafficking allegations were not admitted in the

factual proffer.

Chiquita knew of the AUC's status as a

Foreign Terrorist Organization, made monthly

payments against the advice of its own attorneys,

and continued paying the AUC even after being told

by the Department of Justice that the payments were

illegal. The campaign resulted in some 10,000

deaths of suspected guerrilla supporters over a ten

year period. These murders violated not only U.S.

and Colombian tort laws, but also constituted

violations of international laws prohibiting war

crimes, extrajudicial executions, and crimes against

humanity.

B. The District Court Proceedings.

On March 19, 2007, Chiquita Brands pled

guilty in U.S. District Court for the District of

Colombia to "engaging in transactions with a

specially designated global terrorist." Appx. at 15.

The deal included a $25 million fine and five years'


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probation. No individuals were prosecuted. Because

it was a criminal case, no compensation was awarded

to the victims.

On June 5, 2007, undersigned counsel filed the

first of thirteen complaints against Chiquita, which

included Alien Tort Statute, Anti-Terrorism Statute,

and shareholder derivative cases. These were all

transferred to the Southern District of Florida by the

Judicial Panel on Multi District Litigation.

On June 3, 2011, the District Court denied

Chiquita's motion to dismiss with respect to ATS

claims for extrajudicial killing, torture, war crimes,

and crimes against humanity, and Torture Victim

Protection Act claims for torture and extrajudicial

killing. 1 Appx. at 94. The District Court also

dismissed common law tort law claims brought

pursuant to 28 U.S.C. 1332. Id.

On March 27, 2012, the District Court issued

a series of orders, ruling that the court's opinion

applied to two new complaints alleging slightly

1 The District Court dismissed other claims for terrorism;material support to terrorist organizations; cruel, inhuman, or

degrading treatment; violation of the rights to life, liberty andsecurity of person and peaceful assembly and association; and aconsistent pattern of gross violations of human rights, holdingthat these claims were not actionable under the ATS.


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different facts, Appx. at 132; granting Plaintiff's

motion for reconsideration of the dismissal of tort

claims based on Colombian law, Appx. at 152;

denying the same with respect to the tort laws of

Florida, New Jersey, Ohio, and the District of

Columbia, and granting Chiquita's motion for

certification of three questions for interlocutory

review. Appx. at 140. Id.

The District Court certified three issues for

interlocutory review: whether state action must be

shown for each incident of murder or torture;

whether more facts must be pled to show the nexus

between each murder and the conflict; and whether

the elements of crimes against humanity were

adequately pled. 2 Appx. at 150. In addition, the

District Court sua sponte requested interlocutory

review of the question whether the civil tort laws of

Florida, New Jersey, Ohio, and the District of

Columbia apply to the extraterritorial conduct of

foreign tortfeasors with respect to foreign victims.

Appx. at 151.

2 The petitioners don't address any of these questions in thisbrief. Neither did the 11th Circuit, which ended its analysisafter finding that "[a]ll the relevant conduct in our case tookplace outside the United States." Appx. at 166.


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C. The Appellate Court Proceedings.

The 11th Circuit granted permission for theinterlocutory appeal on September 27, 2012. Appx.

at 158. Upon joint motion of the parties, the appeal

was stayed pending the outcome of the Kiobel v.

Royal Dutch Petroleum Co. case in this Court. The

Kiobel case was decided on April 17, 2013.On July 24, 2014, a divided panel of the 11th

Circuit held that it had no jurisdiction over the case,

citing Kiobel and finding that "[a]ll the relevant

conduct in our case took place outside the United

States." Appx. at 166. Judge Martin wrote adetailed dissent, noting the split with the 4th Circuit

in Al Shimari v. CACI Premier Tech., Inc., 2014 WL

2922840 (4th Cir. June 30, 2014). Appx. at 173-181.

The majority also said that it did not reach the issue

raised sua sponte by the District Court - whether thetort laws of U.S. states can apply extraterritorially -

or any of the issues originally raised by Chiquita in

the interlocutory appeal. 3 Appx. at 164. The 11th

3 The 11th Circuit had discretion to hear the question certified

by the District Court on interlocutory appeal, and declined toexercise it. There has been no final judgment, and diversityclaims based on Colombian law are still pending in the DistrictCourt.


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Circuit held that it did not have jurisdiction over the

action at all. Id. The appellate panel denied

rehearing on Sept. 24, 2014. Appx. at 166. Rehearing

en banc was denied on 10/2/2014. Appx/ at 169.

Finally, on Nov. 3, 2014, the 11th Circuit denied

Petitioners' motion to stay the mandate pending the

decision of the instant petition. Appx. at 171.

REASONS WHYCERTIORARI SHOULD BE GRANTED.

I.

Review is Warranted Because the Opinionof the Majority Panel of the EleventhCircuit Conflicts with this Courts Holding

in Kiobel v. Royal Dutch Shell.

Under Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. __, 133 S. Ct. 1659 (2013), the Petitioners

must show that the case touches and concerns the

territory of the United States with sufficient force to

displace the presumption against the extraterritorial

application of the Alien Tort Statute. 133 S. Ct. at

1669. Mere corporate presence in the United States

does not suffice. Id.


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Kiobel was a "foreign-cubed" case, with

plaintiffs and defendants domiciled abroad, and all

relevant conduct occurring abroad. The only contact

of the Kiobel case with the United States was that

the defendant had a corporate presence and did

business in the United States. Chiquita is

significantly different and can pass any of the tests

articulated in the Kiobel case.

A. The Chiquita case touches and concerns theterritory of the United States with "great force."

The Chiquita case is distinguishable from

Kiobel in three important ways: (1) Chiquita is

incorporated and headquarted in the United States;

(2) the conspiracy to pay the AUC, and to disguise

the payments, was made by Chiquita's management

in the United States, 4 and (3) Chiquita was

criminally prosecuted in the United States for the

same conduct. Corporate decisions of Chiquita were

4 Chiquita's intent is what ties this case to the United States.Chiquitas U.S. management not only made the decision to paythe AUC and devised a fraudulent accounting scheme to hidethe payments; they did so in exchange for the AUCs protection

of their farms. Proximate cause is shown by the local nature ofthe payments, which were made to specific AUC unitsprotecting Chiquita's farms. These payments originated in theUnited States.


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made in the United States and were the basis of its

admitted criminal liability. See Factual Proffer,

Appx. at 20-36. The Court should consider these

substantial contacts with the United States as

conferring jurisdiction. As Judge Martin put it in

her dissent, this case touches and concerns the

territory of the United States with "great force."

Appx. at 180.

The 11th Circuit found these contacts to be

irrelevant. Its understanding of Kiobel is that only

where the place of injury is on U.S. soil can a case be

heard in federal courts. This is the error that the

Supreme Court needs to correct.

B. The Chiquita case could pass the tests proposed in every concurring opinion.

Aside from the "touch and concern test" of the

majority, three concurring opinions were written in

Kiobel. The Chiquita case could satisfy any of these

tests as well. It easily passes the test proposed by

Justices Breyer, Ginsberg, Sotomayor and Kagan.

According to their view, there would be jurisdiction

under the ATS whenever (1) the alleged tort occurson American soil, (2) the defendant is an American


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national, or (3) the defendants conduct substantially

and adversely affects an important American

national interest, including an interest in preventing

the United States from becoming a safe for torturers

or other common enemies of mankind. Kiobel,

Breyer, J. concurring. It is undisputed that Chiquita

is a U.S. corporation, and Justice Breyer's test is

easily met with this fact alone. 5 It is also clear that

the decision to pay the AUC was made on US soil,

and that this decision was contrary to the interests of

the United States. Both these facts are apparent

from Chiquita's criminal plea. Appx. at 21-27.

In his own concurring opinion, Justice

Kennedy wrote that he would also support a more

expansive view of the ATS if presented with the

appropriate facts. 133 S. Ct. at 1669. He noted that

the majority in Kiobel was careful to leave open a

number of significant questions regarding the reach

5 The two other criteria are not hard to argue. Our nationalpolicy is to discourage American corporations from fundingforeign terrorist organizations, and the effect on America'sinterests is shown by the criminal prosecution. And althoughthe murders themselves did not occur on US soil, the agreement

to pay the AUC was made in the US, and all payments (overtacts) came from the U.S. This would be actionable as aconspiracy even if only nominal harm had occurred inColombia.


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and interpretation of the Alien Tort Statute. Id.

Since the Chiquita case represents a common, if not

a paradigm fact pattern, the Court is now in a

position to reconcile a very unsettled area of law.

Finally, although the concurring opinion of

Justices Alito and Thomas was the most restrictive,

the Chiquita case could still pass their test. Relying

on Morrison v. Natl Austl. Bank Ltd. , 561 U.S. 247

(2010), these justices concluded that the analysis

should begin with the "focus of concern," or

legislative intent, of the statute in question. In

Morrison, Justice Scalia had described the

presumption against extraterritoriality as a

"longstanding principle of American law" which

"would be a craven watchdog indeed if it retreated to

its kennel whenever some domestic activity is

involved in the case. Id. at 2880, 2884. (emphasis in

original) However, rather than analyzing the degree

or kind of domestic activity required, the Court found

that jurisdiction turned on "whether the purchase or

sale is made in the United States, or involves a

security listed on a domestic exchange." Id. at 2886.

This was because the "focus of concern," or legislative

intent of the Securities and Exchange Act, was to


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regulate conduct on domestic, not foreign,

exchanges. 6

C. The focus of concern of the Alien Tort Clausewas to provide a federal, rather than statecourt forum for cases such as this.

The Court has in recent years placed a heavy

emphasis on the textual analysis of statutes,avoiding the consideration of legislative intent. The

text of the ATS consists of a mere 33 words, and no

legislative history of the ATS exists. The best

scholarship in this field suggests that the purpose of

the Alien Tort Clause, as it was known in 1789, wasto provide a federal, rather than state court forum for

cases involving alien tort claims. 7 By definition, they

concern foreign states and foreign policy, and it was

not seen as desirable for each state's courts to act

independently. The Alien Tort Clause was a part ofthe Judiciary Act of 1789, which created our federal

6 As Justice Stevens noted in his concurring opinion inMorrison, Morrison was a "foreign-cubed" case with "(1) foreignplaintiffs suing (2) a foreign issue in an american court forviolations of American securities laws based on securitiestransactions in (3) foreign countries. 130 S. Ct. at 2894 n. 11

(Stevens, J., concurring) 7 See William S. Dodge, The Historical Origins of the Alien TortStatute: A Response to the Originalists. 19 Hastings Int'l &Comp. L. Rev. 221 (1996).


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court system, and should be read in the context of

that statute.

In Justice Alito's view, the "focus of concern"

of this clause was to provide a forum only for cases

where the domestic conduct is itself sufficient to

constitute a violation of international law. We would

argue that Chiquita's domestic conduct, in planning,

funding and executing this conspiracy, did violate

international law. Co-conspirators are liable for the

unintended, but foreseeable consequences of their

criminal agreement. So long as the partnership in

crime continues, the partners act for each other in

carrying it forward, and an overt act of one partner

may be the act of all without any new agreement

specifically directed to that act. Pinkerton v. United

States, 328 U.S. 640, 647 (1946). If the unlawful

agreement contemplated the type of offense

committed in the substantive acts, the conspirators

are liable. Id. More basically, a person is presumed

to intend the natural and probable consequences of

his acts. Sandstrom v. Montana, 442 U.S. 510

(1979); Ford v. State, 330 Md. 682 (1993) ("where the

means employed to commit the crime against a

primary victim create a zone of harm around that


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victim, the factfinder can reasonably infer that the

defendant intended that harm to all who are in the

anticipated zone") As Judge Katzmann observed in

his concurring opinion in Khulumani v. Barclays

National Bank, 504 F.3d 254 (2nd Cir. 2007), aiding

and abetting "does not constitute a discrete criminal

offense but only serves as a more particularized way

of identifying persons involved" in the underlying

offense. 504 F. 3d at 280, quoting United States v.

Smith, 198 F.3d 377, 383 (2d Cir. 1999).

The 2nd Circuit also recognized the role of

domestic law in Kadic v. Karadzic, 70 F. 3d 232 (2nd

Cir. 1995) when it held that the "law of nations

generally does not create private causes of action to

remedy its violations, but leaves to each nation the

task of defining the remedies that are available for

international law violations." 70 F.3d at 246. Federal

courts may exercise their common-law discretion to

decline to provide a cause of action for a violation of

international law. Sosa v. Alvarez-Machain, 542

U.S. 692, 732-33 (2004); see Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 778 (D.C. Cir. 1984)

(Edwards, J., concurring) (explaining that each

nation may choose whether to impose civil liability
https://www.courtlistener.com/cadc/3d5U/hanoch-tel-oren-in-his-capacity-as-father-on-behal/https://www.courtlistener.com/cadc/3d5U/hanoch-tel-oren-in-his-capacity-as-father-on-behal/


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for violations of international law). The federal

common law standard for aiding and abetting, set

forth in Halberstam v. Welch, 705 F.2d 472

(D.C.Cir.1983), isn't derived from international law.

The theory of secondary liability need not also

be "specific, universal and obligatory" under Sosa v.

Alvarez-Machain, 542 U.S. at 732. 8 The domestic

enforcement of a substantive norm is distinct from

the norm itself. It would also be unreasonable to

expect every country in the world to have identical

concepts of conspiracy and aiding and abetting.

In Mastafa v. Chevron, 2014 WL 5368853 (2nd

Cir. Oct. 23, 2015) the Second Circuit applied the

minority approach of Justices Alito and Thomas in

Kiobel, 133 S.Ct. at 1669, but held that even where

plaintiffs are injured abroad, aiding and abetting

within the United States may displace Kiobel's

8 Footnote 20 in Sosa stated that "A related consideration iswhether international law extends the scope of liability for aviolation of a given norm to the perpetrator being sued, if thedefendant is a private actor such as a corporation orindividual.." (citations omitted) We understand this to refer towhether a norm like torture could be applied to a private party,or whether it would simply be assault and battery. The

footnote does not, as some have suggested, mean that conceptsof secondary liability should be drawn from international law.This would expand the reach of international law into the U.S.,at the expense of the federal common law.


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presumption against extraterritoriality. Mastafa,

2014 WL 5368853 at *10. This shows a split with the

11th Circuit over whether the place of injury is

dispositive in determining jurisdiction.

II.

Review is Warranted Because the EleventhCircuit's Decision Conflicts with Opinionsof the Second and Fourth Circuits

In Mastafa, the Second Circuit considered

whether paying surcharges for oil purchased from

the Iraqi state oil company constituted aiding and

abetting alleged human rights abuses by the Iraqi

military. In contrast to the 11th Circuit, the 2nd

Circuit didn't look to the place of injury and apply

the rule of lex loci delecti. It found that the relevant

conduct, for the purposes of Kiobel, included not only

the injury itself, but also "conduct that constitutes

aiding and abetting another's violation of the Law of

Nations." Id. at *10. Since the financial transactions

in Mastafa originated in the United States, the

presumption was displaced. Id.

In Mastafa, however, the plaintiffs had failedto allege the requisite mens rea, that by paying these


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subsidies, the Defendant intended that the Iraqi

army violate international law. Id. at *17. In

Chiquita, a terrorist group was paid three cents per

box of bananas shipped and allowed the use of a

private port to import thousands of machine guns

from Central America, in a campaign to defeat the

leftist FARC guerrillas. In Chiquita, the District

Court has already found that the Plaintiffs

sufficiently alleged the mens rea of intent or purpose.

Appx. at 83-85.

The 11th Circuit's decision also creates a split

with the 4th Circuit over the same issue: what

amount and type of domestic conduct, if any, would

be sufficient to displace the presumption against

extraterritoriality? In Al Shimari v. CACI Premier

Tech. Inc., 2014 WL 2922840 (4th Cir. June 30,

2014), there was jurisdiction under the ATS for the

torture of prisoners in Abu Ghraib, Iraq, by a private

military contractor. The Fourth Circuit held that the

case touched and concerned the territory of the

United States because (1) CACI is a US corporation;

(2) the employees who allegedly tortured the

prisoners were U.S. citizens; and (3) the injuries


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occurred on a U.S. military facility pursuant to a

contract with the U.S. Government. 9 Id. at *30-31.

Although the actual perpetrators in Al

Shimari were Americans, and the injuries occured on

an American base in Iraq, in most other respects the

Chiquita case has more facts linking the actions of

Chiquita to the United States. These links were so

substantial that Chiquita was criminally prosecuted

for its conduct in a federal District Court. The

application of US criminal law abroad is more likely

to interfere with the sovereignty of another State

than a civil case between private parties. More

importantly, though, Chiquita's domestic conduct

supporting the AUC was intentional , while in Al

Shimari, only domestic negligence was alleged:

[I]n the command vacuum at Abu Ghraib,CACI interrogators operated with little to no

supervision and were perceived as superiorsby United States military personnel. U.S.military personnel allegedly carried out ordersissued by the CACI civilian interrogators tosoften up and set conditions for the abuse ofparticular detainees, contrary to the terms of

9 The Fourth Circuit didn't find that the Abu Ghraib prison waseffectively within the territory of the United States. It countedCACI's relationship with the U.S. government as a "contact" ofthe case with the U.S. Id.


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CACIs contract with the United Statesgovernment.

Id. at *8. (citations omitted) There is no allegation of

anyone in the US even knowing about the torture. 10

This is a negligence standard with two levels of

secondary liability. CACI is liable for the conduct of

its employees in Iraq, who were perceived by the

military personnel to be their superiors, and it is the

U.S. military personnel who inflicted the injuries.

The only conduct to have occurred in the United

States was signing a contract with the U.S.

government.

In Chiquita, the Board of Directors in Ohio

agreed to pay a terrorist organization on a monthly

basis for at least seven years, falsified its accounting

records in Ohio to hide the fact, and then pled guilty

when prosecuted in the District of Columbia. The

illegal payments originated in the United States.

10 Notably, the instant case is not one in which the plaintiffsseek to hold an American company vicariously liable for theunauthorized actions of its agents overseas. See, e.g., Balintulov. Daimler AG, 727 F.3d 174, 192 (2d Cir. 2013) (Kiobelpresumption is not displaced where an American corporation is

vicariously liable for actions taken within South Africa by aSouth African subsidiary). Instead, the Petitioners seek to holdRespondent liable for its own conduct within the territory of theUnited States.


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Chiquita's domestic conduct was far more than

negligent.

The Fourth Circuit also observed that the

touch and concern language requires a fact -based

analysis to determine whether particular ATS claims

displace the presumption. Al Shimari, 2014 WL

2922840 at *24. It interpreted the Supreme Court's

use of the word "claim" to include the citizenship of

the parties and the various contacts of the case with

the United States. Id., citing Blacks Law Dictionary

281 (9th ed. 2009) (defining claim as the aggregate

of operative facts giving rise to a right enforceable by

a court).

This also appears to be the understanding of

two other circuits, which remanded ATS cases with

instructions to grant leave to amend complaints. Doe

v. Nestle, No. 10-56739 (9th Cir. Sept. 4, 2014)

(remanding with order to grant leave to amend); Doe

v. Exxon Mobil, 527 Fed.Appx. 7 (D.C. Cir. June 26,

2014) (not reported). 11 District Courts in Maryland,

11 The Eleventh Circuit itself analyzed the contacts of an ATS

case with the U.S. in Baloco et al v. Drummond, No. 12-15268(11th Cir. Sept. 23, 2014), albeit in a hypothetical way, since theelement of intent was never alleged with respect to anyoneinside the United States.


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New Jersey, the District of Columbia, and

Massachusetts are using the same analysis. 12 In

Does et al v. Exxon Mobil Corporation, 2014 WL

4746256 (D.D.C. Sept 23, 2014), the D.C. District

Court held that leave to amend wouldn't necessarily

be futile, despite it being uncontested that the place

of injury in that case was in Indonesia. Id. at *25-26.

Cases not finding jurisdiction have lacked significant

contacts with the territory of the U.S. 13

12 See Daobin v. Cisco Sys., Inc., 2014 WL 769095, at *9 (D.Md.Feb. 24, 2014) (observing that Kiobel may be distinguishablebecause (1) Cisco is an American company; and (2) plaintiffsalleged that Cisco's conduct took place predominantly, if notentirely, within the United Stat es); Krishanti v. Rajaratnam,2014 WL 1669873 at *10 (D.N.J. Apr. 28, 2014) (finding

jurisdiction for ATS claims brought against U.S. citizens and aU.S. organization who organized and funded terrorist bombingsin Sri Lanka); Mwani v. Bin Laden, 2013 WL 2325166 (D.D.C.May 29, 2013). (jurisdiction for claim brought by foreignnationals injured in a foreign terrorist attack against U.S.embassy in a foreign state); Sexual Minorities Uganda v. Lively,2013 WL 4130756 (D. Mass. Aug. 14, 2013) (finding jurisdictionto hear ATS claim brought against U.S. citizen who assisted,managed, and advised a foreign nations violations ofinternational law).13 See Balintulo v. Daimler AG, 727 F.3d 174 (2nd. Cir. 2013)(finding no jurisdiction where the only contact with the U.S.was that the defendant was "doing business in that state" andtherefore subject to general personal jurisdiction); Chowdhuryv. Worldtel, 2014 WL 503037 (2d Cir. Feb. 10, 2014) (no

jurisdiction for claims brought by Bangladeshi plaintiff againstBangladeshi business and citizen for torture occurring inBangladesh); Sikhs For Justice Inc. V. Indian NationalCongress Party, 2014 WL 1683798 (SDNY 2014) (no jurisdiction


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In Mamani v. Snchez-Berzin, 07-22459-CIV-

COHN (S.D.F.L. May 20, 2014), the Southern

District of Florida surveyed these cases, and found

that the dismissed cases all had one thing in common

- they all lacked a significant connection to the

United States. Id. at *17-22. The Chiquita case is

an outlier in this rapidly developing field of post-

Kiobel law.

III.

Review is Warranted Because this CaseShould be Heard in a Federal, not State Court.

The 11th Circuit declined to consider the issueof whether state tort laws may apply outside of the

territory of the United States. Appx. at 164. This

was raised sua sponte by the District Court, in

addition to the three questions presented by the

for claims brought by Indian citizens against an Indian politicalparty for conduct taking place in India); Tymoshenko v. Firtash,2013 WL 4564646 (S.D.N.Y. Aug. 28, 2013) (no jurisdiction forclaims brought by former Ukrainian prime minister against aSwiss corporation that allegedly bribed Ukrainian officials);Mohammadi v. Islamic Republic of Iran 947 F. Supp. 2d 48, 65(D.D.C. 2013) (no jurisdiction for claims of extrajudicial killingand torture in Iran brought by relatives of an Iranian citizenagainst the Islamic Republic of Iran and the Revolutionary

Guard); Gang v. Zhizhen, N2013 WL 5313411 (D. Conn. Sept.20, 2013) (no jurisdiction for claims brought by Chinese citizensand residents against a Chinese media executive who promotedthe torture of Falun Gong practioners in China).


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Respondent for certification on interlocutory appeal.

Appx. at 150. 14

The Petitioners' state law tort claims, arising

from the common law of Florida, New Jersey, Ohio,

the District of Columbia, and the country of

Colombia, are based on federal diversity jurisdiction

pursuant to 28 U.S. Code 1332. In contrast, the

claims pursuant to the Alien Tort Statute, 28 U.S.

Code 1350, and Torture Victim Protection Act , 28

U.S. Code 1350 note, are federal claims brought

under 28 U.S. Code 1331. The federal question and

diversity claims have completely different

jurisdictional bases.

The Petitioners in this action are all citizens

and residents of Colombia, while the Respondent is a

US corporation, formerly headquartered in Ohio, and

now in North Carolina. The Respondent has no

14 The District Court's analysis of whether the laws of a statemay have extraterritorial application was based on 402, 404of the Restatement (Third) of Foreign Relations Law of theUnited States (1987). Appx. at 122-123. These sections onlyapply to public, not private law, and are inapplicable here. SeeRestatement pt. IV, ch. 1, subch. A, Intro. Note. In addition, 402 (2) provides jurisdiction for "the activities, interests, status,

or relations of its nationals outside as well as within itsterritory." There is a domestic nexus to the case sufficient toprovide jurisdiction to adjudicate private tort actions so long asthere is personal jurisdiction. Restatement 421.


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corporate presence in Colombia. Since the claims are

for wrongful death (and a few personal injury cases

involving very serious injuries), the amount in

controversy between each Plaintiff and the

Defendant exceeds $75,000.

While claims brought pursuant to federal

statutes may be limited in extraterritorial effect by

the "presumption against extraterritoriality," no

comparable presumption applies to state common

law. States can and do apply their laws to conduct

occurring outside of their territories, including

outside of the territory of the United States. 15 When

hearing these claims in diversity, federal district

courts should do the same.

A. Erie requires federal courts to applystate law extraterritorially, as state courts do.

15 In international cases, conflicts may arise between the laws ofa state and a foreign nation, or between federal law and the lawof a foreign nation. Both are problems of "legislative

jurisdiction," as choice of law is sometimes called. Either kindof case can be brought in either federal or state court. There isa difference, however, in how federal and state laws are applied.In deciding whether to apply federal law, a court looks at the

contacts with the United States. If they are too slim, thefederal claim is dismissed. On the other hand, courts decidestate choice of law issues by comparing two laws and decidingwhich one to apply.


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In Erie R. Co. v. Thompkins, 304 U.S. 64

(1938), the Court addressed a situation where two

different rules of law were potentially applicable,

depending on whether a federal or state court heard

the case. Since Erie, federal courts must follow state

court decisions on matters properly cognizable by the

states. 16 Id. If state courts have already decided to

apply their common law to foreign conduct, then Erie

should require federal courts to follow suit and also

apply state law extraterritorially. 17

If the federal courts do not hear theses cases

in diversity, foreign plaintiffs will file them in state

courts. State courts are courts of general jurisdiction

which do not rely on any federal statute for

jurisdiction. If different choice of law rules are used,

the same case could be decided under different

substantive law, depending on which state court had

16 In Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941),the Court explained its reasoning in Erie. To allow federal andstate courts to follow different rules "would do violence to theprinciple of uniformity within a state, upon which the [Erie]

decision is based." 313 U.S. at 496.17 See Linder v. Portocarrero, 963 F.2d 332, 333, 336 (11th Cir.1992) (torture and murder in Nicaragua actionable in Floridaunder Florida state tort law).


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the case. 18 This would generally mean that states

using the rule of lex loci delecti would apply foreign

law, and those following the Restatement of Conflict

of Laws (1971) would follow forum law, unless there

was a real conflict.

Just as Erie rejected different results

depending on whether a case was filed in state or

federal court, the Court should also reject having the

application of U.S. or foreign law (and the protection

of exclusively federal interests) depend on the

policies of the state where the case was filed. While

this may be commonplace in litigation and often

leads to "forum shopping," the problem is of a

different kind when foreign relations are involved.

B. The federal interest in foreign relations isunique and exclusive.

18 Choice of laws is determined issue by issue. In a case likeChiquita, we would expect different questions to be decidedusing different bodies of law. For example, in order todetermine who is a legal heir, we would look at Colombianprobate law. We would use the Federal Rules of Evidence in

the trial. We would use international law to determine whetherthe Petitioners stated a claim for crimes against humanity.

And so on. At this stage, the only issue is that of the jurisdictional reach of state tort law.


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The power to conduct foreign affairs is an

exclusively federal interest. Zschernig v. Miller, 389

U.S. 429 (1968); Crosby v. National Foreign Trade

Council, 530 U.S. 363, 374 n.8 (1999). This interest

is implicated in the instant case. For example,

Colombia indicted several Chiquita employees and

requested their extradition. Should this case really

be heard in Florida State Court?

Although Chiquita hasn't ever raised the

defense of foreign affairs preemption, the doctrine

deserves some discussion. A state may violate the

U.S. Constitution by passing a law that

impermissibly intrudes on the federal government's

power over foreign affairs. Zschernig v. Miller, 389

U.S. at 440-41. In Zschernig, the State of Oregon

had passed a law providing for escheat in probate

cases where a nonresident alien was to inherit

property. Id. at 430-431. The Court found that the

escheat clause amounted to "confiscation," which

would negatively impact our relations with Germany,

and violate the Just Compensation Clause of the

Fifth Amendment

In the decisons followng Zscherning, scholars

identified two categories of foreign affairs


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preemption: statutory and dormant. See Joseph B.

Crace, Jr., Note, Gara-mending the Doctrine of

Foreign Affairs Preemption , 90 Cornell L. Rev. 203,

207 (2004). Statutory preemption occurs when a

federal law plainly "occupies the field" of legislation

relating to the subject matter. Id. Dormant

preemption refers to when the federal government

has taken no clear action on the subject matter. Id.

The Supreme Court has neither endorsed nor

rejected the concept of dormant preemption. Some

support can be found in the dissent of Justice

Ginsburg in American Insurance Association v.

Garamendi, 539 U.S. 396, 439 (2003), where she

wrote that it "resonates most audibly" when a state

action reflect[s] a state policy critical of foreign

governments and involve[s] sitting in judgment on

them. 539 U.S. at 439, (Ginsburg, J., dissenting),

quoting L. Henkin, Foreign Affairs and the United

States Constitution 164 (2d ed.1996) Otherwise, and

perhaps despite Justice Ginsburg's dissent, it

remains inaudible.

Here, the Court has held that it lacks

jurisdiction over extraterritorial ATS claims due to

the absence of any explicit language in the ATS


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providing for an extraterritorial effect. Kiobel, 133 S.

Ct. at 1665. The ATS cannot, therefore, be said to

"occupy the field" of this type of litigation in any

meaningful way. It is not logical to say that federal

law occupies the field after Kiobel.

It is conceivable that this case, whether heard

by a federal or state court, would involve "sitting in

judgment" of Colombia, as Justice Ginsburg has

warned. However, Colombian prosecutors have

requested the extradition of Chiquita's employees to

answer criminal charges for the relationship at issue

in this case, and the U.S. Department of Justice

prosecuted Chiquita for the exact same conduct.

There is no indication that either government has

any hostility towards this case. Both have policies

criminalizing the financial support of terrorist

organizations.

The diverse results produced by state courts

would run the risk of impeding the foreign relations

objectives of the federal government. This

demonstrates the need for federal jurisdiction over

alien tort cases, and moreover, for the application of

federal common law by whatever court hears the

case.


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C. The Alienage Jurisdiction provisions of 28USC 1332 were meant to keep "foreign" cases

in federal court.

Article III of the Constitution extends the

federal judicial power to "all Cases ... between a

State, or citizens thereof, and foreign States, Citizens

or Subjects." U.S. Const. art. III, 2, cl. 1. The

federal district courts have original jurisdiction over

suits between "citizens of a State and citizens or

subjects of a foreign state" by way of 28 U.S.C.

1332(a)(2). This has sometimes been referred to as

"alienage jurisdiction." See Matimak Trading Co. v.

Khalily, 118 F.3d 76, 82-85 (2nd Cir. 1997).

Alienage jurisdiction was intended "to provide

the federal courts with a form of protective

jurisdiction over matters implicating international

relations where the national interest was

paramount." Sadat v. Mertes, 615 F.2d 1176, 1182

(7th Cir. 1980) The "paramount purpose" of the

alienage jurisdiction provision was to avoid offense to

foreign nations because of the possible appearance of

injustice to their citizens. Id. at 1186. 19 Because of

19 See Moore's Federal Practice, 102.73 (2004); Kevin R.Johnson, Why Alienage Jurisdiction? Historical Foundations


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the clear language of 1332(a)(2), there is no doubt

that federal courts have diversity jurisdiction over

cases involving aliens. And there is no doubt of the

injustice being done to the thousands of people

Chiquita paid to have killed.

There should also be no doubt that 28 U.S.C.

1332 itself applies extraterritorially, despite the lack

of any mention of territorial reach in the statute.

Applying the Kiobel rule to 1332 would lead us

down a steep slope, since the next question would be

whether 28 U.S.C. 1331, the federal question

jurisdiction statute, has extraterritorial application.

There is no mention of extraterritoriality in it. There

is also no indication in the text of 18 U.S.C. 3231,

which provides subject matter jurisdiction for federal

criminal offenses, of whether it applies outside of the

United States. Yet these three statutes are applied

to extraterritorial conduct on a regular basis.

Applying the Kiobel presumption to these purely

and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens , 21 Yale J. Int'l L. 1, 10-16(1996); Henry J. Friendly, The Historic Basis of DiversityJurisdiction , 41 Harv. L.Rev. 483, 484 n. 6 (1927-28) ("Several

states had failed to give foreigners proper protection under thetreaties concluded with England at the end of the Revolution."... "Local animosity was so great that only national tribunalscould compel the enforcement of a national treaty.").


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jurisdictional statutes would be contrary to the

common practices of the federal courts.

To some extent, the diversity jurisdiction

statute makes the Alien Tort Statute superfluous.

Section 1332 says nothing about which law should be

applied in diversity cases. There is no reason why a

cause of action arising under international law (war

crimes, genocide, crimes against humanity) couldn't

be brought under 1332. Or for that matter, a case

arising under the federal common law, which has

been developed in more than 100 ATS cases since

Filrtiga v. Pea-Irala, 630 F.2d 876 (2d Cir. 1980),

was decided. After Kiobel, "foreign-cubed" cases

lacking diversity of citizenship can't be brought in

federal courts, so there is really no need for the ATS

if 1332 can incorporate claims brought under

international or federal common law.

D. A State Court's Power to Hear "Foreign" Casesis Limited Only by the Due Process Clause ofthe US Constitution.

The result of limiting federal jurisdiction is

going to be that foreign plaintiffs will file their cases


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in state courts. 20 Justice Breyer predicted this when

he noted in Morrison that "state law ... may apply to

the fraudulent activity alleged here to have occurred

in the United States." Morrison, 130 S.Ct. at 2888

(Breyer, J., concurring) The states' power to hear

these kinds of cases is limited only by the Due

Process Clause of the U.S. Constitution. 21

The constitutional limits on a state court's

power to hear a case with foreign contacts is

20 For example,.in Norex Petroleum v. Access Indus. Inc., CaseNo. 650591/2011 (N.Y. Sup. Ct.), plaintiffs had allegedsecurities fraud in violation of Section 10(b) in federal court.

After the federal case was dismissed pursuant to Morrison, theplaintiffs re-filed in state court, alleging common law fraud.See Katherine Florey, State Law, U.S. Power, Foreign Disputes:Understanding the Extraterritorial Effects of State Law in theWake of Morrison v. National Australia Bank , B.U. L. Rev. 535,539 (2012) (noting that "Morrison has the perverse effect ofsubstituting state law for federal law in securities casesinvolving substantial foreign contacts.") Cases involving theactions of private military contractors in Iraq have beenbrought in North Carolina State Court and the Superior Courtof the District of Columbia. See Brady v. Xe Services, Case No.5:09-CV-449-BO (E.D.N.C.) (removed from N.C. State Court);

Askander v. Unity Resources Group, Case No. 5:10-CV-00073-D. (E.D.N.C.) (refiled in D.C. Superior Court after ATS claimsdismissed, and no diversity of citizenship existed).21 The application of one U.S. State's law by another State isoften justified by reference to the Full Faith and Credit Clauseof the Constitution. U.S. CONST. Art. IV, I ("Full Faith andCredit shall be given in each State to the public Acts, Records,

and judicial Proceedings of every other State . . . "). TheSupreme Court has consistently held that the Full Faith andCredit and Due Process Clauses play identical roles. See

Allstate Ins. Co. v. Hague, 449 U.S. 302, 308 n. 10 (1981).


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normally met when the case has minimum contacts

with the forum state for purposes of personal

jurisdiction. This is because the tests for minimum

contacts and for constitutionally-sufficient choice of

laws are very similar. Personal jurisdiction requires

"certain minimum contacts" with the forum state

"such that the maintenance of the suit does not

offend 'traditional notions of fair play and

substantial justice.'" International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945), quoting

Milliken v. Meyer, 311 U.S. 457, 463 (1940). In

choice of laws, "a significant aggregation of contacts,

creating state interests, with the parties and the

occurrence or transaction" must exist in order to

apply a state's law. Allstate Ins. Co. v. Hague, 449

U.S. 302, 317 (1981); Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 818 (1985) (a state must have

enough contacts that choice of its law is neither

arbitrary nor fundamentally unfair. ) In practical

terms, state courts may hear "foreign" cases

whenever there is personal jurisdiction over the

defendant.

This has not always been the law.

Historically, a state could exercise jurisdiction only


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within its territorial boundaries. In Pennoyer v.

Neff, 95 U.S. 714 (1877), the Court upheld this

principle when it stated that judgments entered by a

court without territorial jurisdiction were violations

of the Due Process Clause of the U.S. Constitution.

The territoriality requirement was removed in

International Shoe, where the Court held that due

process only requires that the defendant have certain

"minimum contacts" with the forum in order for a

state to assert jurisdiction, and that such jurisdiction

may not offend "traditional notions of fair play and

substantial justice." 326 U.S. at 316. Following

International Shoe, states began enacting long-arm

statutes to assert personal jurisdiction over

nonresidents, including aliens. If a state court has in

personum jurisdiction over a defendant, then it has

jurisdiction to hear the case. The only remaining

issue is which laws should apply.

E. Federal common law should apply to alien tortcases, to ensure uniformity and federal controlover foreign relations.

A few years after Erie, in Swift v. Tyson, 41

U.S. 1 (1842), the Court held that in diversity cases


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40

Australia Bank, 130 S.Ct. 2869, 2886 (2010),

("Rather than guess anew in each case, we apply the

presumption in all cases, preserving a stable

background against which Congress can legislate

with predictable effects.") The Court's decisions in

Aramco and Morrison were not predicted, or what

Congress intended. Congress acted quickly to amend

Title VII to overrule EEOC v. Arabian American Oil

Co., 499 U.S. 244 (1991) to permit Title VII and the

Americans with Disabilities Act to apply to United

States citizens working abroad. In a provision in the

Dodd-Frank Act, Congress tried to reinstate pre-

Morrison law with respect to actions in federal court

by the Department of Justice and the Securities and

Exchange Commission. 22 Although Congress has

taken no action in response to the Kiobel decision,

neither did it act in response to the more than 100

Alien Tort Statute cases that have been brought in

the thirty years since Filartiga was decided. Rather

than providing a stable background, the Kiobel case

22 See Richard Painter, Douglas Dunham & Ellen Quackenbos,

When Courts and Congress Don't Say What They Mean: InitialReactions to Morrison v. Australia National Bank and to theExtraterritorial Jurisdiction Provisions of the Dodd-Frank Act ,20 MINN. J. INTL L. 1, 2-5 (2011).


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added confusion and controversy to an already

unsettled area of law.

CONCLUSION

Based on the foregoing, Petitioners

respectfully submit that this Petition for Writ of

Certiorari should be granted. The Court may wish to

consider summary reversal of the decision of the

Eleventh Circuit Court of Appeals, or in the

alterative, an order to remand the case to determine

whether it sufficiently "touches and concerns" the

territory of the United States.

Respectfully submitted,

_______________________________Paul David Wolf, DC Bar#480285

Attorney for Does 1-144, 1-976,1-677 and 1-254PO Box 46213Denver, CO 80201(202) 431-6986

does v. chiquita brands, petition to us supreme court

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