Last week, the International Human Rights Clinic and co-counsel filed our reply brief with the U.S. Supreme Court, responding to Ford and IBM’s opposition to the petition for a writ of certiorari in the in re South African Apartheid Litigation. The reply brief points out the clear circuit splits that require the Supreme Court’s attention, flatly rejecting Defendants’ claim to the contrary.
The petition, which was filed in February, asks the Supreme Court to resolve the splits among the circuits over the standard for aiding and abetting liability under the Alien Tort Statute (“ATS”); the question of when claims “touch and concern” the United States; and the availability of corporate liability under the ATS. The reply notes how “IBM and Ford do not seriously dispute the existence of these conflicts.” Despite Defendants’ attempts to argue otherwise, the reply brief makes clear that the Second Circuit, in a series of decisions culminating in the Apartheid litigation opinion, has adopted “the most restrictive rules governing ATS liability.” These rules conflict with Supreme Court decisions, other circuits’ rulings, and basic principles of international law. The Supreme Court needs to take up these essential and timely issues, which are the most important ones facing current and future ATS litigation.