Nos. 14-777, 14-1011

IN THE

LILIANA MARIA CARDONA, et al. Petitioners,

v. CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.

DOES 1-144, et al. Petitioners,

v. CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.

On Petitions For A Writ Of Certiorari To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF IN OPPOSITION

Jonathan M. Sperling COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 841-1000 March 2015

John E. Hall Counsel of Record James M. Garland Mark W. Mosier COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, N.W. Washington, DC 20001-4956 jhall@cov.com (202) 662-6000

i

QUESTIONS PRESENTED

This Court recently applied the presumption against extraterritoriality to hold that the Alien Tort Statute (ATS) does not confer jurisdiction over claims based on “conduct occurring in the territory of a foreign sovereign.” Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664, 1668-69 (2013). Applying Kiobel, the Eleventh Circuit held that the district court lacked jurisdiction over Petitioners’ ATS claims.

The question presented by both sets of Petitioners is:

1. Whether ATS claims based on alleged violations of international law by Colombians against Colombians in Colombia, and relying on significant alleged conduct in Colombia to establish aiding-and-abetting liability, displace the presumption against the extraterritorial application of the ATS.

Petitioners in No. 14-1011 also seek interlocutory review of the following state law question not decided by the Eleventh Circuit:

2. 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.

If the Court were to grant certiorari, Respondents propose that the Court also add the following question, on which certiorari has previously been granted and on which the circuits remain divided:

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3. Whether a corporation may be held liable under the ATS for allegedly aiding and abetting violations of the law of nations.

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CORPORATE DISCLOSURE STATEMENT

Respondents Chiquita Brands International, Inc. and Chiquita Fresh North America LLC (collectively, “Chiquita”) are indirect, wholly-owned subsidiaries of Cavendish Global Limited. Cavendish Global Limited is owned 50% by Burlingtown UK Ltd. and 50% by J. Safra Foods Holdings S.à.r.l.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

CORPORATE DISCLOSURE STATEMENT .......... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

STATEMENT ............................................................. 2

ARGUMENT .............................................................. 9

I. The Court Should Deny Review Of The ATS Extraterritoriality Question. .................. 9

A. There Is No Split In Authority Requiring This Court To Revisit Kiobel So Soon After It Was Decided. ................................................. 9

B. Under Any Plausible Standard, Petitioners’ Claims Are Impermissibly Extraterritorial. ......... 16

C. This Case Would Be A Poor Vehicle To Revisit Kiobel. ................................ 23

II. The Court Should Deny Review Of The State Law Extraterritoriality Question. ....... 27

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III. If The Court Were To Grant Review, It Should Also Resolve The Circuit Split Over Corporate Liability Under The ATS. ... 28

CONCLUSION ......................................................... 31

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TABLE OF AUTHORITIES

Page(s)

Cases

Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014) .................. 13, 14, 15, 29

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................. 22

Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) ..................................... 29

Baloco v. Drummond Co., 767 F.3d 1229 (11th Cir. 2014) .......................... 11, 12

Butner v. United States, 440 U.S. 48 (1979) .................................................... 27

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) .................................................. 23

Chowdhury v. WorldTel Bangl. Holding, Ltd., 746 F.3d 42 (2d Cir. 2014), cert. denied, 135 S. Ct. 401 (2014) ................................................ 28

Doe v. Exxon Mobil Corp., __ F. Supp. 3d __, Nos. 01-1357, 07-1022, 2014 WL 4746256 (D.D.C. Sept. 23, 2014) ................................................................... 26

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Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), vacated, 527 F. App’x 7 (D.C. Cir. 2013) .......................... 18, 29

Doe v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014) ................ 15, 26, 27, 29

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) .................................................. 14

European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir. 2014) ..................................... 20

Flomo v. Firestone Nat’l Rubber Co., 643 F.3d 1013 (7th Cir. 2011) .................................. 29

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) ..................................... 19

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) ...................................... passim

Mamani v. Berzain, 654 F.3d 1148 (11th Cir. 2011) ................................ 24

Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) ............................. passim

Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), ..................................... 14, 17, 20

Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014) .............................. 14, 26

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) ..................................... 19

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Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) ................................ 24

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) ................................. 27-28

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) .......................... 24, 29

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .................................... 6, 8, 17, 23

Texas v. Hopwood, 518 U.S. 1033 (1996) ................................................ 23

Zschernig v. Miller, 389 U.S. 429 (1968) .................................................. 27

Statutes

Alien Tort Statute, 28 U.S.C. § 1350 ........................ 1, 17

International Emergency Economic Powers Act, 50 U.S.C. § 1705(b) ................................ 5

Other Authorities

Brief of United States as Amicus Curiae in Support of Petitioners, Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (No. 07-979) ....................................... 18, 19, 30

Supp. Brief of United States as Amicus Curiae in Partial Support of Affirmance, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491) ............................................................ 18

1

INTRODUCTION

Two terms ago in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), this Court held that the presumption against extraterritoriality applies to the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and that nothing in the statutory text, history, or purpose rebuts the presumption. Kiobel, 133 S. Ct. at 1669. Given this presumption, the Court held that ATS claims “seeking relief for violations of the law of nations occurring outside the United States [are] barred.” Id. The Eleventh Circuit’s decision in this case was one of the first circuit court decisions to apply Kiobel, and it did so faithfully. Petitioners’ claims are based on alleged acts of violence committed by Colombians, against Colombians, in Colombia, and assertedly sponsored by the Colombian government. Even the alleged acts Petitioners must rely on in order to establish the elements of “aiding-and-abetting” liability took place abroad. On these facts, the court of appeals unsurprisingly found that “[a]ll the relevant conduct in [this] case took place outside the United States.” Pet. App. 7.1 Contrary to Petitioners’ claims, this fact-bound holding did not create any meaningful split in authority. Petitioners repeatedly suggest that the Eleventh Circuit adopted a “bright-line rule” under

1 Unless otherwise indicated, references to the Petition (“Pet.”) and Petition Appendix (“Pet. App.”) refer to the Cardona Petition, No. 14-777.

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which “ATS claims are barred unless all the conduct underlying the claim occurred on U.S. territory.” Pet. 15, 20. But nowhere does the decision below accept or reject such an approach. In fact, as Petitioners concede, a subsequent Eleventh Circuit decision leaves this issue open. Pet. 34 n.6. Petitioners also attempt to portray a split between the decision below and recent decisions of the Second Circuit (finding the presumption not overcome) and Fourth Circuit (finding the presumption overcome), but those decisions simply apply Kiobel to very different sets of facts. To the extent minor differences in the lower courts’ treatment of foreign-conduct ATS claims are beginning to emerge, it would be premature for this Court to revisit the extraterritorial application of the ATS so soon after Kiobel. Ultimately, Petitioners are quite wrong to conclude that “these actions could proceed in federal courts in Los Angeles, Richmond or New York.” Pet. 38. Under any standard that any circuit court has applied since Kiobel, this case should proceed, if at all, in only one place: Colombia. Further review by this Court is unwarranted.

STATEMENT

Petitioners seek to hold Chiquita responsible for any act of violence committed by right-wing paramilitaries and left-wing guerillas in the course of a decades-long civil conflict in Colombia. There is no allegation that Chiquita or its employees committed any act of murder or torture. Instead, Petitioners seek to impose liability on Chiquita based on payments its local subsidiary made in Colombia to

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both sets of armed groups out of fear for its employees’ lives. The court of appeals correctly concluded that there is no jurisdiction over these claims in federal court. 1. Chiquita is a U.S. corporation that produces, markets, and distributes bananas. Until 2004, Chiquita’s former Colombian subsidiary, C.I. Bananos de Exportación, S.A. (“Banadex”), owned and operated banana farms in Urabá and Santa Marta, two remote regions of Colombia dominated by armed groups notorious for violence, extortion, and drug trafficking. Dist. Ct. Dkt. 287, ¶¶ 395, 407-09, 432, 437; Dist. Ct. Dkt. 394 ¶ 1363. Before 1997, Urabá and Santa Marta were controlled by the Revolutionary Armed Forces of Colombia (“FARC”) and other left-wing guerrilla groups engaged in armed conflict with the Colombian government. Pet. App. 24-25; Pet. App. 162 ¶ 20; Dist. Ct. Dkt. 439, ¶¶ 458-60. From approximately 1989 to 1997, Banadex was forced to make payments to these groups. Pet. App. 162 ¶ 20; Dist. Ct. Dkt. 439, ¶¶ 458-64. In or about 1997, the left-wing guerrilla groups lost control of these regions to private right-wing paramilitaries associated with an umbrella group known as the Autodefensas Unidas de Colombia (the United Self-Defense Forces of Colombia, or “AUC”). Pet. App. 25-26; Dist. Ct. Dkt. 287, ¶ 466. Around the same time, Banadex’s General Manager was summoned to a meeting in Colombia with the then-leader of the AUC, Carlos Castaño, and instructed by Castaño that Banadex must begin making payments to the AUC. Pet. App. 162-63 ¶ 21; Dist. Ct. Dkt. 449, ¶ 1042. As the U.S.

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Department of Justice (“DOJ”) would later acknowledge, “Castaño sent an unspoken but clear message that failure to make the payments could result in physical harm to Banadex personnel and property.” Pet. App. 162-63 ¶ 21. Confronted with this threat, Banadex was forced to begin making payments to the AUC in 1997. Pet. App. 162-63 ¶ 21; Dist. Ct. Dkt. 449, ¶ 1042. According to the plea agreement on which Petitioners rely, the payments were made in Colombia. Pet. App. 164-65, ¶¶ 23, 25. When the payments began, they were legal under U.S. law, but that changed on September 10, 2001, when the Secretary of State designated the AUC as a foreign terrorist organization. Pet. App. 159 ¶ 5; Dist. Ct. Dkt. 449 ¶ 1026. As a result of this designation, it became illegal under U.S. law for Banadex, the subsidiary of a U.S. corporation, to make payments to the AUC. Pet. App. 159 ¶ 5; Dist. Ct. Dkt. 449, ¶ 1026. In February 2003, a Chiquita employee discovered that the AUC had been designated a foreign terrorist organization. Pet. App. 171 ¶ 55; Dist. Ct. Dkt. 449, ¶ 1078. After consulting with counsel, Chiquita promptly and voluntarily disclosed the payments to the U.S. Department of Justice. Pet. App. 171 ¶ 55, 174 ¶ 62; Dist. Ct. Dkt. 449, ¶¶ 1078, 1085. Justice Department officials told Chiquita that the “payments to the AUC were illegal and could not continue,” but at the same time “acknowledged that the issue of continued payments was complicated.” Pet. App. 174 ¶ 62; Dist. Ct. Dkt. 449, ¶ 1085. Unable to stop the payments without

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risking violent retaliation, Chiquita sold Banadex in 2004. Pet. App. 158 ¶ 2; Dist. Ct. Dkt. 449, ¶ 1023. In March 2007, Chiquita pled guilty in the U.S. District Court for the District of Columbia to a single count of “Engaging in Transactions with a Specially-Designated Global Terrorist” without first obtaining a license from the U.S. Office of Foreign Asset Control, in violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705(b). Dist. Ct. Dkt. 111 Ex. 2, at 1; Dist. Ct. Dkt. 449, ¶ 1127. In connection with Chiquita’s guilty plea and sentence, DOJ acknowledged that Banadex’s payments were made in response to threats of violence and that Chiquita did not support the goals or ideologies of the AUC. Dist. Ct. Dkt. 111, Ex. 2, at 13-14; Pet. App. 162, ¶ 21; id. at 199. 2. In June 2007, a few months after Chiquita’s plea, plaintiffs began filing lawsuits against Chiquita asserting claims, inter alia, under the ATS. Nine such lawsuits, brought by more than 4,000 individual plaintiffs, were transferred by the Judicial Panel on Multidistrict Litigation to the U.S. District Court for the Southern District of Florida for coordinated pretrial proceedings. Even after a round of amendments, Petitioners provided few factual allegations to support their claims. Most of the individual claims state only that the (generally unidentified) victim “was killed” or “was injured” on a particular date “by the AUC,” “by the FARC,” or even by unnamed “paramilitaries” or “guerrillas.” See, e.g., Dist. Ct. Dkt. 287, ¶¶ 23-393. Petitioners did not allege that Chiquita had any direct involvement in, or even knowledge of, any of the alleged acts of violence.

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Instead, the complaints simply assert that the paramilitary and guerrilla groups that allegedly injured the victims “received support from Chiquita.” See, e.g., id. ¶¶ 23-195. 3. The district court dismissed Petitioners’ principal ATS claim for “material support for terrorism,” reasoning that this was not a recognized international law violation that is cognizable under Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Pet. App. 41-65. However, it declined to dismiss Petitioners’ claims that Chiquita should be held indirectly liable for the international law violations committed by Colombian paramilitary and guerilla groups. The district court began by excusing Petitioners for their “lists of brief, undetailed allegations,” such as “Peter Doe 1 was killed by the AUC, which received support from Chiquita and/or Banadex.” Pet. App. 29 n.4. Deeming it “impractical for the complaints to detail each one of the thousands of alleged killings,” the court chose not to assess whether each plaintiff had alleged facts sufficient to state the elements of a claim, but instead considered whether a handful of “representative” plaintiffs had done so. Id. Based on these “representative” allegations, the district court concluded that each plaintiff, regardless of his or her own factual allegations, had stated claims for “[p]rimary [v]iolations of [i]nternational [l]aw [b]y the AUC” – torture, extrajudicial killing, war crimes, and crimes against humanity. Pet. App. 68-101. It further held that each plaintiff had adequately alleged the bases for aiding-and-abetting liability. According to the

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district court, the complaints sufficiently pled “substantial assistance” to the AUC in the form of Banadex’s payments, together with alleged facilitation of arms shipments. Pet. App. 131-32. The court also accepted Petitioners’ conclusory allegations of a “purpose” of furthering each of the armed groups’ thousands of alleged international law violations, notwithstanding Petitioners’ reliance on a plea agreement that recognized the coercion Banadex faced in making the payments. Pet. App. 116-25.2 The district court dismissed Petitioners’ state-law claims as inapplicable to “the extraterritorial conduct alleged here.” Pet. App. 143. However, it allowed their Colombian-law claims to remain. Dist. Ct. Dkt. 516 at 4-6. Recognizing “the possibility of reversal on appeal” with respect to the ATS issues, the district court certified its orders for interlocutory appeal. Dist. Ct. Dkt. 518 at 4-11. “[I]n an abundance of caution,” it also “recommend[ed] the Eleventh Circuit Court of Appeals review the dismissal of the state-law claims if it chooses to review” the ATS decision. Id. at 11. 4. The Eleventh Circuit reversed. Applying this Court’s decision in Kiobel, which post-dated the district court’s rulings, the court of appeals found

2 The court initially dismissed Petitioners’ claims based on international law violations committed by the FARC, Pet. App. 148-52, but allowed Petitioners to re-plead them, and then found that they adequately stated claims for aiding and abetting war crimes and crimes against humanity by the FARC. Dist. Ct. Dkt. 514 at 4-6.

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that “[a]ll the relevant conduct in our case took place outside the United States.” Pet. App. 7. The court rejected Petitioners’ reliance on Chiquita’s status as a U.S. corporation, finding no “indication of a congressional intent to make the [ATS] apply to extraterritorial torts,” whatever the nationality of the defendant. Id. Since there was “no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force,” the court of appeals concluded that federal courts lack jurisdiction over these claims. Pet. App. 10-11. The court “further observe[d] that to apply the ATS to the allegations before us would be inconsistent with the Supreme Court’s earlier holding in Sosa.” Pet. App. 8. Thus, “[e]ven aside from the presumption against extraterritoriality,” the court found, Sosa “counsels against recognizing” the tort claims alleged by Petitioners. Pet. App. 9. The court exercised its discretion to decline to review the district court’s dismissal of the state-law claims. Judge Martin dissented, and would have held that Petitioners’ ATS claims survive Kiobel. Pet. App. 13-21. 5. Petitioners sought rehearing or rehearing en banc. No judge called for a vote on the en banc petition, and the petitions were denied. Pet. App. 156. 6. Petitioners’ claims under the law of Colombia remain pending in the district court.

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ARGUMENT

I. The Court Should Deny Review Of The ATS Extraterritoriality Question.

A. There Is No Split In Authority Requiring This Court To Revisit Kiobel So Soon After It Was Decided.

Just two Terms ago, this Court held that the ATS must be interpreted in light of the usual “presumption that United States law governs domestically but does not rule the world.” Kiobel, 133 S. Ct. at 1664 (internal quotation marks and citation omitted). The Court concluded that Congress enacted the ATS to ensure that federal courts have jurisdiction to decide claims involving international law violations that occur within the United States, but that there is “no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.” Id. at 1667. Because nothing in the statutory text, history, or purpose rebuts the presumption against extraterritoriality, this Court held that the ATS does not confer jurisdiction for claims “seeking relief for violations of the law of nations occurring outside the United States.” Id. at 1669.

The courts of appeals are just beginning to apply Kiobel to the facts of particular ATS cases, weighing whether any alleged domestic conduct has “sufficient force” to save the claim from the presumption against extraterritoriality. Id. In most cases (including this one), whatever domestic conduct was alleged has proved insufficient. In one

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case, with a unique array of connections to U.S. territory, the domestic conduct was deemed sufficient.

These results should not be surprising: any time this Court lays down a fact-dependent test, later cases will fall on one side of the line or the other. Contrary to what Petitioners claim, there is no significant difference of opinion in the circuit court decisions applying Kiobel that warrants this Court’s review. That is especially true because the Eleventh Circuit has not actually adopted the categorical rule Petitioners ascribe to the decision below.

1. The first problem with Petitioners’ allegation of a circuit split is that it is based on a misreading of the decision in this case. According to Petitioners, the Eleventh Circuit held that for jurisdiction to exist over ATS claims, “the underlying violation itself (e.g. torture) must occur entirely on U.S. territory.” Pet. 35. That is not what the decision below said. It simply held, on the facts of this case, that no torture or any “act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.” Pet. App. 10-11.

Petitioners have a different view of the facts: they insist that “Chiquita completed violations of the law of nations by aiding and abetting war crimes and other atrocities from U.S. soil.” Pet. 29 (emphasis omitted). As discussed below, that view of the allegations is not borne out by Petitioners’ complaints. Infra pp. 20-22. But it is also beside the

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point, because this Court does not grant certiorari to correct alleged errors in applying law to facts. Even if the court of appeals somehow “ignored the wealth of evidence connecting Chiquita’s conduct to U.S. territory,” Pet. 32, it nowhere announced a rule that domestic conduct giving rise to a claim is categorically irrelevant.

Proving this point, Petitioners bury in a footnote a concession that undermines their view of the Eleventh Circuit’s position. As they note, in a decision issued “[t]wo months after the decision below,” the Eleventh Circuit “assumed, without deciding, that U.S.-based decision-making [related to extraterritorial conduct] might be relevant to the ‘touch and concern’ analysis.” Pet. 34 n.6 (emphasis added) (citing Baloco v. Drummond Co., 767 F.3d 1229, 1236 (11th Cir. 2014)). Thus, Baloco refutes Petitioners’ theory that the decision below implicitly barred all ATS claims where alleged aiding-and-abetting conduct occurs in the United States.

To be sure, the court of appeals would have been correct to conclude, as Justice Alito did, that an ATS claim is available only if “the domestic conduct is sufficient to violate an international law norm.” Kiobel, 133 S. Ct. at 1670 (Alito, J., concurring); see infra pp. 16-19. But the Eleventh Circuit did not even cite Justice Alito’s concurring opinion, let alone adopt “an extreme interpretation” of it. Pet. 2. Petitioners’ claim of a circuit split is based on an asserted rule that the Eleventh Circuit never adopted, and that it has subsequently confirmed remains undecided.

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2. There is no meaningful conflict between the decision below and decisions of the Second, Fourth, and Ninth Circuits, as alleged by Petitioners.

a. In Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014), the Second Circuit confronted allegations that U.S. corporations should be held liable for Saddam Hussein’s crimes based on their participation in the Oil-for-Food Program. Although the defendants were alleged to have financed the Iraqi regime through transactions and accounts in the United States, the Second Circuit found the specific allegations insufficient to displace the presumption against extraterritoriality. Id. at 190-94.

Petitioners do not mention this conclusion. Instead, they focus on the Second Circuit’s willingness to consider domestic conduct “aiding and abetting another’s violation of the law of nations.” Id. at 189. But that does not create a conflict – the Eleventh Circuit has neither agreed nor disagreed with including domestic aiding-and-abetting conduct in the analysis. Baloco, 767 F.3d at 1236; Pet. App. 11.

Moreover, the Second Circuit recognized that the alleged domestic conduct must actually give rise to the claim, i.e., it must plausibly show a “purpose” of aiding and abetting an international law violation. Mastafa, 770 F.3d at 193-94. Applying this standard, Mastafa dismissed ATS claims involving much more substantial U.S. conduct than Petitioners’. For example, the Mastafa plaintiffs alleged the payment of kickbacks to Saddam Hussein

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through accounts and contracts in New York. Id. at 190-91. But because there was no plausible allegation that the purpose of these transactions was to support human rights violations, rather than simply to make a profit, these U.S.-based financial activities could not overcome the presumption. In this case, there is similarly no plausible allegation of a purpose to aid human rights violations, but unlike in Mastafa, Petitioners rely extensively on foreign conduct to establish the elements of secondary liability. See infra pp. 20-22. Nothing in Mastafa supports extending the ATS to reach the allegations in this case.

b. Neither is there any conflict between the decision below and the Fourth Circuit’s decision in Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014). Unlike this case, which is based on allegations of Colombians harming other Colombians on Colombian territory, Al-Shimari involved torture by a U.S. company’s own employees, with the encouragement of management in the United States, on a U.S. military base, during performance of a contract entered in the United States with a U.S. government agency. Id. at 528-31. There is nothing remarkable about the Fourth Circuit’s decision, based on these unique facts, that there was “extensive ‘relevant conduct’ in United States territory” capable of overcoming the presumption against extraterritoriality. Id. at 528, 530-31.

Petitioners nonetheless allege conflicts on two tangential matters. First, they argue that Al-Shimari conflicts with both the decision below and

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Mastafa with respect to the latters’ rejection of citizenship as a relevant factor. Pet. 36. But neither Al-Shimari nor any other decision has held that citizenship is dispositive in overcoming the presumption. See Al-Shimari, 758 F.3d at 530-31 (considering citizenship as one factor among several); Mujica v. AirScan Inc., 771 F.3d 580, 594 n.9 (9th Cir. 2014) (citizenship “not dispositive”). Moreover, allowing the citizenship of a defendant to tip the balance in favor of extraterritorial application of the ATS would be plainly inconsistent with this Court’s precedents. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 247 (1991) (presumption against extraterritoriality applied in Title VII suit against U.S. corporation); see also Mastafa, 770 F.3d at 188. Unless and until a circuit court erroneously holds that an extraterritorial ATS claim may go forward simply because the defendant is a U.S. citizen, it is unnecessary for this Court to intervene just to confirm its prior holdings.

Second, Petitioners assert that the Fourth Circuit, unlike the Second and Eleventh Circuits, “rejects the Morrison [v. National Australia Bank Ltd., 561 U.S. 247 (2010),] ‘focus’ test.” Pet. 36. Petitioners claim that Kiobel’s “touch and concern” language deviates from Morrison’s approach of considering the location of the conduct that is the “focus” of Congress’s concern (Pet. 28-31) – even though the “touch and concern” sentence in Kiobel actually cites Morrison. See Kiobel, 133 S. Ct. at 1669. But Petitioners cannot explain how these allegedly conflicting tests are different (and in fact they argue that the results should be the same under both). See Pet. 29. Moreover, Al-Shimari did not

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“reject” Morrison at all; it merely noted Morrison’s correct observation that “proper application” of the presumption against extraterritoriality may not always be obvious. 758 F.3d at 529.

c. Finally, Petitioners allege a conflict between the decision below and the Ninth Circuit’s decision in Doe v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014). They concede, however, that Nestle “left open” the question on which they seek review: whether and when “aiding and abetting conduct in the United States” can overcome the presumption against extraterritoriality. Pet. 38. And contrary to Petitioners’ suggestion (Pet. 37), the Ninth Circuit said nothing at all about the sort of facts that could give rise to a viable claim. The court simply remanded to allow amendment of the complaint, considering it “imprudent to attempt to apply and refine the touch and concern test where the pleadings before us make no attempt to explain what portion of the conduct underlying the plaintiffs[’] claims took place within the United States.” Nestle, 766 F.3d at 1028.

The only substantive discussion in Nestle had nothing to do with what facts would be sufficient to survive Kiobel, but was limited to the issue of whether the supposed “touch and concern” standard differs from Morrison’s approach to the presumption. According to the Ninth Circuit, the two tests are different, though the court did not explain how it would apply them differently, and it acknowledged that “Morrison may be informative precedent for discerning the content of the touch and concern standard.” Nestle, 766 F.3d at 1028. As noted above,

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any debate over whether Morrison’s approach to the presumption is binding or “only” informative has had no impact on the outcome of any case. Certiorari is not warranted to consider this minor doctrinal detail.

In sum, there is no relevant inconsistency in the few post-Kiobel ATS decisions in the courts of appeals. Rather, courts are properly proceeding case-by-case to determine whether particular facts are sufficient to overcome the presumption against extraterritoriality. There is no need for this Court to take this case simply to apply the presumption to a new fact pattern – just as questions of Kiobel’s application are beginning to percolate in the lower courts.

B. Under Any Plausible Standard, Petitioners’ Claims Are Impermissibly Extraterritorial.

As discussed above, the Eleventh Circuit has left open the question of whether and when alleged “aiding and abetting” conduct in the United States can overcome the presumption against extraterritoriality. In addition to the lack of a circuit split on this or any other issue, there is no cause to consider the question here. Under any viable interpretation of Kiobel, the decision below is correct.

1. Although the court of appeals did not reach this issue and it is unnecessary for this Court to do so, ATS claims are impermissibly extraterritorial whenever they arise from law of nations violations that occur on foreign territory. Allegations that extraterritorial torts were “aided and abetted” from U.S. soil are insufficient under Kiobel.

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Petitioners fault the court of appeals for “equat[ing] the Kiobel holding with the presumption against extraterritoriality applied to federal statutes.” Pet. 28. Of course, this is exactly what Kiobel held – that “the presumption against extraterritoriality applies.” 133 S. Ct. at 1669. Petitioners nonetheless contend that every other decision of this Court applying that presumption is irrelevant, and that Kiobel instead adopted a novel “‘touch and concern’ test” that is different from the standard of extraterritoriality applied to other statutes. Pet. 28.

What Petitioners object to in particular is the application to ATS claims of the principle, articulated in Morrison, that claims may not proceed without a sufficient “territorial event” that is within “the ‘focus’ of congressional concern.” Morrison, 130 S. Ct. at 2884. Yet Kiobel’s “touch and concern” language, which Petitioners claim creates a different test, cites this portion of Morrison. Kiobel, 133 S. Ct. at 1669 (citing Morrison, 130 S. Ct. at 2883-88). This Court’s precedents, including Kiobel, make clear that there is only one presumption against extraterritoriality, and only one way for a claim to survive it: establish sufficient domestic conduct of the kind that was the focus of congressional concern.

It is clear from the face of the ATS that the focus of congressional concern was “tort[s] . . . committed in violation of the law of nations.” 28 U.S.C. § 1350; see also Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004) (identifying three primary violations of international law as “[u]ppermost in the legislative mind”). It follows that the only

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“territorial event” capable of displacing the presumption of extraterritoriality in an ATS case is a primary violation of international law. See Kiobel, 133 S. Ct. at 1670 (Alito, J., concurring).

There is no evidence, by contrast, of a congressional focus on secondary liability for the conduct of foreign governments on foreign soil. In fact, the U.S. Government has maintained that aiding-and-abetting liability under the ATS interferes with foreign policy and should not be recognized at all. See Brief of United States as Amicus Curiae in Support of Petitioners at 6-16, Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (No. 07-979) (“U.S. Isuzu Br.”); accord Supp. Brief of United States as Amicus Curiae in Partial Support of Affirmance at 21 n.10, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491). See also Doe v. Exxon Mobil Corp., 654 F.3d 11, 85-88 (D.C. Cir. 2011), (Kavanaugh, J., dissenting) (rejecting the “incongruous” result that aiding-and-abetting liability could apply to ATS claims brought by aliens, because such claims are not even available to U.S. citizens proceeding under the Torture Victim Protection Act), vacated, 527 F. App’x 7 (D.C. Cir. 2013).

Thus, to the extent secondary liability even exists under the ATS (a predicate issue that would need to be resolved before the Court could address the question Petitioners pose), it is plainly not the focus of the statute. Indeed, international law itself recognizes that an aider-and-abettor has not actually committed a violation of the law of nations, but rather is responsible for “‘the violation of that law by

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another.’” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (emphasis added) (quoting Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 277 (2d Cir. 2007) (Katzmann, J., concurring)).

Moreover, allowing aiding-and-abetting conduct to displace the presumption against extraterritoriality would thwart the policies underlying that presumption. As the Court explained in Kiobel, the purpose of the presumption is to avoid “judicial interference in the conduct of foreign policy,” and that concern is “all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.” 133 S. Ct. at 1664-65. The foreign policy implications of a lawsuit alleging that the Colombian government is complicit in the killing and torture of thousands of its own citizens by state-sponsored paramilitaries are obvious. Adding allegations of domestic acts of assistance does not change the fact that such a case challenges a foreign government’s conduct in its own territory. See U.S. Isuzu Br. at 14-15 (noting that aiding-and-abetting claims would require federal courts “to adjudicate the legality under international law of the conduct of foreign states as to which Congress has conferred sovereign immunity from civil suits”).

Thus, under a proper application of Kiobel, Petitioners’ claims are barred, because their claims are based on alleged violations of international law that occurred entirely in Colombia.

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2. Even if the presence of domestic aiding-and-abetting conduct could overcome the presumption, however, the allegations in this case are not sufficient to do so. The Second Circuit – the only court of appeals to conclude that such conduct can be relevant – made clear that domestic conduct displaces the presumption only if that conduct is sufficient to establish liability for aiding and abetting international law violations. See Mastafa, 770 F.3d at 191 (specific allegations of domestic conduct are sufficient only “if such conduct . . . aided and abetted a violation of the law of nations”). Moreover, the Second Circuit’s test includes a requirement that the domestic conduct have a “purpose” of aiding the violations. See id. at 191-94. As the Second Circuit put it in the RICO context, the presumption is overcome “[i]f domestic conduct satisfies every essential element to prove a violation.” European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 142 (2d Cir. 2014) (emphasis added); see also Morrison, 561 U.S. at 266 (“[T]he presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.”).

In this case, Petitioners rely heavily on foreign conduct in attempting establish aiding-and-abetting liability. For example, the district court emphasized allegations of a meeting in 1996 or 1997 involving one or more Banadex employees and the AUC leader, Carlos Castaño. Pet. App. 120-23, 127-28, 134. But none of the complaints alleges that this meeting took place in the United States, and some of them expressly acknowledge that it occurred in Colombia.

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See, e.g., Does 1-976, No. 9:10-cv-80652 (S.D. Fla.), Dkt. 3, ¶ 1092; Does 1-677, No. 9:11-cv-80404 (S.D. Fla.), Dkt. 3, ¶ 803.

Similarly, the district court relied entirely on conduct occurring in Colombia to hold that plaintiffs had sufficiently alleged that Chiquita provided “substantial assistance” to the AUC, an element necessary to establish aiding-and-abetting liability. Pet. App. 131-33. The court relied on allegations that Chiquita facilitated arms shipments to the AUC, but this alleged conduct – for which Colombian officials cleared Chiquita of any wrongdoing – had no connection to the United States, because the arms were allegedly shipped from Nicaragua to Colombia. See Pet. App. 131-32 n.89; Dist. Ct. Dkt. 287, ¶ 477. The court also relied on Banadex’s payments to the AUC, Pet. App. 132-33, but plaintiffs do not allege that the payments were made in the United States. Nor could they given their reliance on Chiquita’s plea, which shows that the payments were made in Colombia. Pet. App. 164-65, ¶¶ 23, 25; see also Dist. Ct. Dkt. 449, ¶ 1044 (alleging “[t]he checks . . . were drawn from the Colombian bank accounts of defendant CHIQUITA’s subsidiary”).

All of this notwithstanding, Petitioners insist that their “claims arise out of substantial conduct in the United States.” Pet. 2. But this is based solely on allegations of domestic approval of payments to armed groups, which does not on its own establish any violation of international law, or even the requirements of secondary liability.

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Moreover, Petitioners plead no non-conclusory facts in support of their strained assertion that U.S. officials of a prominent public company, whose directors included a former chairman of the Securities and Exchange Commission, gave their approval for the purpose of having thousands of innocent Colombians murdered or tortured. Cf. Mastafa, 770 F.3d at 194 (“Plaintiffs never elaborate upon this assertion in any way that establishes the plausibility of a large international corporation intending – and taking deliberate steps with the purpose of assisting – the Saddam Hussein regime’s torture and abuse of Iraqi persons.”). There is an “obvious alternative explanation” for the alleged approval of the payments, Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009): fear for the safety of Banadex employees. See Pet. App. 162-63 ¶ 21 (AUC leader “sent an unspoken but clear message that failure to make the payments could result in physical harm to Banadex personnel and property”).

In light of these facts, the domestic conduct alleged in this case is plainly not “sufficient” to displace the presumption against extraterritoriality – as it was not in Mastafa. Not only did the underlying torts occur entirely in Colombia, but Petitioners have relied heavily on conduct in Colombia to establish the elements of aiding-and-abetting liability, and their allegations of domestic corporate approval do not come close to satisfying the standard (assuming aiding-and-abetting liability exists at all). Whatever Petitioners’ view of the law, their case fails on the facts as alleged.

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C. This Case Would Be A Poor Vehicle To Revisit Kiobel.

Even if there were a circuit split that warranted this Court’s review, and even if dismissal of this case were not appropriate under the analysis of every court of appeals to apply Kiobel, certiorari should still be denied for several reasons.

1. In asking this Court to review the Eleventh Circuit’s application of Kiobel, Petitioners ignore the alternative, independent basis for the court of appeals’ decision. Wholly apart from the extraterritoriality issue, the court held that “to apply the ATS to the allegations before us would be inconsistent with the Supreme Court’s earlier holding in Sosa v. Alvarez-Machain.” Pet. App. 8; see also id. at 9 (“Even aside from the presumption against extraterritoriality – not overcome by the allegations before us – Sosa counsels against recognizing a tort not previously recognized as within ATS jurisdiction.” (emphasis added)).

Petitioners do not mention, let alone seek review of, this alternate holding. Accordingly, even if the Court were to disagree with the court of appeals on the extraterritoriality issue, there would be no basis for reversal. Petitioners’ request for review of the questions presented is inconsistent with the well-settled principle that this Court “‘reviews judgments, not opinions.’” Texas v. Hopwood, 518 U.S. 1033 (1996) (op. of Ginsburg, J., respecting the denial of certiorari) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

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2. Apart from the alternate ground for dismissal adopted by the court of appeals, there are a number of additional reasons why Petitioners have no viable ATS claims. One is that Petitioners have not stated a claim for aiding-and-abetting liability. See supra p. 22. Another is that even if Petitioners could persuade this Court to reverse the decision below and remand, their claims would almost certainly fail based on their failure to link either the Colombian government or Chiquita to particular human rights violations.

In cases arising out of the same factual context – violence by the AUC in Colombia – the Eleventh Circuit has dismissed ATS claims that merely allege “a general relationship” between the AUC and the Colombian government, without “evidence of state action regarding the murders described in the complaint.” Romero v. Drummond Co., 552 F.3d 1303, 1317-18 (11th Cir. 2008); see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009). Similarly, the Eleventh Circuit requires allegations “connecting what these defendants personally did to the particular alleged wrongs.” Mamani v. Berzain, 654 F.3d 1148, 1155 n.8 (11th Cir. 2011).

The complaints do not even attempt to plead these elements on behalf of the overwhelming majority of Petitioners. Rather, by aggregating the claims of more than 4,000 different plaintiffs, Petitioners persuaded the district court to simply “assume” every individual could eventually state a claim. Pet. App. 29 n.4. As a result, the district court denied Chiquita’s motion to dismiss even with

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respect to plaintiffs whom the district court affirmatively acknowledged had not adequately pleaded the elements of their claims. See id.; id. at 91 n.53. This undifferentiated attempt to hold Chiquita responsible for essentially every killing in a particular region of Colombia during a civil war has little chance of success under Eleventh Circuit case law, and there is no reason for this Court to grant review given the likelihood that any remand would be futile.

3. Petitioners repeatedly urge that review is critical to “providing a forum” for their claims. Pet. 19; see also id. at 20, 29, 30. But that is manifestly incorrect. Petitioners’ claims under the law of Colombia remain pending in the district court. Whether these foreign law claims will be litigated in the U.S. or in Colombia will be determined by Chiquita’s forum non conveniens dismissal motion. But petitioners’ claims will be heard in one of the two forums; this is plainly not a case where it is the ATS or nothing. See Kiobel, 133 S. Ct. at 1674 (Breyer, J., concurring in the judgment) (emphasizing the importance of “exhaustion, forum non conveniens, and comity” as “limiting principles” to “minimize international friction” from ATS suits).

4. Review should also be denied because it would require this Court to decide a necessary predicate to Petitioners’ argument: whether aiding-and-abetting liability is available under the ATS. According to Petitioners, aiding-and-abetting liability is so central to the ATS that courts must consider the domestic conduct of an alleged aider and abettor, even where the actual international law

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violation is entirely extraterritorial. But it would be impossible to make sense of that argument without confronting the antecedent question of whether this theory of liability is even viable in the first place. The U.S. Government, for one, thinks not. See supra p. 18. Moreover, resolution of these issues could be impeded by still another question, whether corporations are subject to ATS liability. See infra § III.

5. Finally, this case is a poor vehicle for the simple reason that it arises so soon after this Court decided Kiobel. Only three circuits have actually applied the presumption against extraterritoriality since that decision. Consideration of this issue continues to percolate, with some courts allowing plaintiffs an opportunity to amend their complaints to attempt to show that the presumption is overcome. See Nestle, 766 F.3d at 1028-29; Doe v. Exxon Mobil Corp., __ F. Supp. 3d __, Nos. 01-1357, 07-1022, 2014 WL 4746256, at *14 (D.D.C. Sept. 23, 2014); but see Mujica, 771 F.3d at 592-93 (denying leave to amend where doing so would be futile).

There is no pressing need for this Court to supplement the guidance it provided just two Terms ago. If at some point the Court determines a need to police the boundaries of Kiobel, it should wait for the courts of appeals to apply the presumption against extraterritorial application across a wider range of ATS claims and facts.

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II. The Court Should Deny Review Of The State Law Extraterritoriality Question.

The Petitioners in No. 14-1011 ask this Court to consider an additional question: whether the district court properly dismissed state law claims on the basis that the states in question would not extend their laws to the conduct in Colombia at issue here. Doe Pet. i. That question also does not merit review.

As Petitioners recognize, “the [Eleventh] Circuit declined to consider the issue.” Id. at 25. That was entirely appropriate, as Petitioners raised it only in a cross-appeal on interlocutory review, and the court of appeals had discretion not to entertain it. This Court regularly denies review when the case comes to it in an interlocutory posture, and denial is even more appropriate where the court of appeals declines to pass on an issue at all. The Court also generally declines to review questions of state law. See Butner v. United States, 440 U.S. 48, 58 (1979).

In any event, the district court was correct to recognize that the state laws in question do not reach the extraterritorial conduct alleged. Indeed, it would be surprising if state law could go where federal law does not. Even if a state did choose to apply its law to reach alleged international law violations by a foreign sovereign on its own territory, it would confront serious preemption problems. See Zschernig v. Miller, 389 U.S. 429, 432, 441 (1968) (applying field preemption to state law whose application would have “a direct impact upon foreign relations and [might] adversely affect the power of the central government to deal with those problems”); Saleh v.

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Titan Corp., 580 F.3d 1, 12-13 (D.C. Cir. 2009) (applying foreign affairs preemption to alleged torts committed by contractors in Iraq, where states had “de minimis” interest).

III. If The Court Were To Grant Review, It Should Also Resolve The Circuit Split Over Corporate Liability Under The ATS.

For the reasons discussed above, the Court should deny the petitions. But if it were to grant review, it should also decide the question on which it initially granted review in Kiobel: whether a corporation can be held liable under the ATS. See Kiobel, 133 S. Ct. at 1663. After argument on that question, the Court ordered supplemental briefing on the extraterritoriality issue, and was able to resolve the case on that ground. Id. However, there remains a circuit split on the availability of corporate liability, and the issue would take on renewed importance if Petitioners’ relaxed approach to the presumption against extraterritoriality were to prevail.

Since this Court’s Kiobel decision, the Second Circuit has three times reaffirmed that its rejection of corporate liability remains good law in that circuit. See Chowdhury v. WorldTel Bangl. Holding, Ltd., 746 F.3d 42, 49 n.6 (2d Cir. 2014) (“[T]he Supreme Court’s decision in Kiobel did not disturb the precedent of this Circuit that corporate liability is not presently recognized under customary international law and thus is not currently actionable under the ATS.” (internal citations omitted)), cert. denied, 135 S. Ct. 401 (2014); Mastafa, 770 F.3d at 179 n.5 (“the holding of our

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Kiobel opinion has not been modified or disturbed”); Balintulo v. Daimler AG, 727 F.3d 174, 191 n.26 (2d Cir. 2013) (“The law of this Circuit already provides answers to some of those questions, including the principle that corporations are not proper defendants under the ATS in light of prevailing customary international law.”).

Three other circuits, however, allow corporate liability under the ATS. See Nestle, 766 F.3d at 1021-22 (9th Cir. 2014); Flomo v. Firestone Nat’l Rubber Co., 643 F.3d 1013, 1015-21 (7th Cir. 2011); Sinaltrainal, 578 F.3d at 1263 (11th Cir. 2009).3

As long as the courts of appeals correctly apply Kiobel and restrict extraterritorial application of the ATS, this circuit split will likely recede in importance. However, Petitioners propose an approach that would significantly expand the extraterritorial reach of the statute, which would heighten the need to settle the issue of corporate liability. Thus, if the Court decides to entertain Petitioners’ request for expanded extraterritorial application of the ATS, it should also consider the issue of corporate liability.

For similar reasons, if the Court were to review this case it should also consider whether aiding-and-abetting liability is available under the 3 A divided D.C. Circuit allowed corporate liability in Doe v. Exxon Mobil Corp., 654 F.3d 11, 57 (D.C. Cir. 2011), but vacated that decision after Kiobel, see 527 F. App’x 7 (D.C. Cir. 2013). The Fourth Circuit specifically reserved the question in Al-Shimari. 758 F.3d at 525 n.5.

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ATS. The Solicitor General has previously explained that this issue warrants review, U.S. Isuzu Br. at 16-18, and Petitioners’ proposed approach to the extraterritoriality question cannot be resolved without first deciding whether aiding-and-abetting liability exists.4

4 Although Eleventh Circuit precedent allows both corporate liability and aiding-and-abetting liability, Chiquita preserved these arguments in both the district court and the court of appeals. See Resp. C.A. Br. 50 n.10.

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CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

Jonathan M. Sperling COVINGTON & BURLING LLP The New York Times Building New York, NY 10018-1405 (212) 841-1000

John E. Hall James M. Garland Mark W. Mosier COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, N.W. Washington, DC 20001-4956 jhall@cov.com (202) 662-6000

March 2015