Shell lawsuit (re Nigeria - Kiobel & Wiwa)

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Kiobel v. Shell
Nigerian Soldier, By SSGT Paul R. Caron, USAF [Public domain], via Wikimedia_CommonsIn 2002, Royal Dutch/Shell was sued in US federal court by Esther Kiobel, the wife of Dr. Barinem Kiobel- an Ogoni activist who was member of the Movement for the Survival of the Ogoni People (MOSOP) and eleven other Nigerians from the Ogoni region.  MOSOP campaigned against the environmental damage caused by oil extraction in the Ogoni region of Nigeria and for increased autonomy for the Ogoni ethnic group.  Barinem Kiobel and other members of MOSOP were detained illegally in 1994, held incommunicado in military custody, then tried by a special court established by the military government using procedures in violation of international fair trial standards, convicted of murder and executed.  The suit alleges that Shell, through its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC), provided transport to Nigerian troops, allowed company property to be used as staging areas for attacks against the Ogoni and provided food to the soldiers and paid them.  The plaintiffs claimed the defendant companies were complicit in the commission of torture, extrajudicial killing and other violations pursuant to the Alien Tort Claims Act (ATCA).

In March 2008, the district court granted the defendants’ motion to dismiss for lack of personal jurisdiction.  On 16 November 2009, the plaintiffs’ motion for reconsideration was granted asking the court to re-examine the issue of jurisdiction.  The court said in the motion that a direct business relationship between the USA and SPDC must be established in order for ATCA to apply.  On 21 June 2010, the district court ruled that the plaintiffs had not shown that this direct business relationship had existed, and the judge dismissed the suit against SPDC.  The plaintiffs appealed this ruling, and on 17 September 2010 the court of appeals issued a sweeping opinion addressing ATCA lawsuits involving corporate defendants.  The majority opinion affirmed lower court’s dismissal of the lawsuit, and it also stated that ATCA could not be used to sue corporations for violations of international law.  A separate opinion was written by the third judge from the appeals court panel, who concurred with the majority in judgment only.  This judge vigorously disagreed with the majority’s reasoning; he wrote that the majority’s opinion dealt a “substantial blow to international law and its undertaking to protect fundamental human rights.”  On 14 October 2010, the plaintiffs filed a petition for rehearing and rehearing en banc with the court.  The court of appeals, on 4 February 2011, refused to rehear the case.  The plaintiffs petitioned the Supreme Court in June 2011 asking it to hear an appeal of the lower court's ruling.  On 17 October 2011 the Supreme Court announced that it would hear the plaintiffs' appeal in this case.  Oral arguments were held on 28 February 2012.  On 5 March the Supreme Court announced that it would not rule on the case in the current term.  It has asked the parties to submit supplemental briefs and will rehear the case in the next term.  The Court asked the parties to submit briefs on whether the Alien Tort Claims Act allows federal courts to hear lawsuits alleging violations of international law which occur outside the United States.  The Court reheard the case on 1 October 2012.  On 17 April 2013 the Supreme Court handed down its decision finding that ATCA does not apply to conduct outside of the United States.  The Court affirmed the dismissal of the case.  A special page with all of the documents related to the Supreme Court review of this case is available here.

- "Companies Shielded as U.S. Court Cuts Human-Rights Suits", Greg Stohr, Bloomberg, 17 Apr 2013
- "Views on Kiobel v. Shell", Salil Tripathi, Institute for Human Rights and Business, 9 Oct 2012
- "Alien torts in America's courts", Editorial, Los Angeles Times, 8 Oct 2012
- "Shell, Corporate Responsibility and Respect for the Law", Amol Mehra & Katie Shay, International Corporate Accountability Roundtable, 3 Oct 2012
- "Argument recap: In search of an [Alien Tort Statute] compromise", Lyle Denniston, SCOTUSblog, 1 Oct 2012
- "Supreme Court may narrow law in human rights cases", Jonathan Stempel, Reuters, 1 Oct 2012
- "The U.S. Supreme Court must preserve the Alien Tort Statute for international corporate human rights cases", Marco Simons, EarthRights International, 13 Jun 2012
- "Torture Suits Against Companies Including Shell Draw U.S. High Court Review", Greg Stohr, Bloomberg, 17 Oct 2011
- "US court upholds key Shell ruling in Nigeria case", Jonathan Stempel, Reuters, 4 Feb 2011
- "2nd Circuit Rejects Corporate Liability in Alien Tort Cases", Mark Hamblett, New York Law Journal, 20 Sep 2010
- “Nigeria Torture Case Decision Exempts Companies From U.S. Alien Tort Law”, Bob Van Voris & Patricia Hurtado, Bloomberg, 17 Sep 2010
“Judge Kimba Wood Dismisses Defendant from Aliant Tort Statute Class Action for Lack of Personal Jurisdiction”, Russell Jackson, Jackson on Consumer Class Actions & Mass Torts, 25 Jun 2010

Esther Kiobel, et al. v. Royal Dutch Petroleum Company et al.
- [PDF] Opinion of US Supreme Court, 17 Apr 2013
Petitioners/plaintiffs (Kiobel) - Supplemental Reply Brief, 31 Aug 2012
Respondents/defendants (Shell) - Supplemental Brief, 1 Aug 2012
- [PDF] Supplemental brief for petitioners/plaintiffs (Kiobel), 6 Jun 2012
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Brief for Respondents, 27 Jan 2012
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Brief for Petitioners, 14 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Petroleum - Petition for Writ of Certiorari, 6 Jun 2011
- US Court of Appeals for the Second Circuit: [PDF] Kiobel, et al. v. Royal Dutch Petroleum, et al., 4 Feb 2011 [order denying plaintiffs' petition for rehearing]
- [PDF] Petition for rehearing and rehearing en banc for Plaintiffs-Appellants-Cross-Appellees, 14 Oct 2010
- US Court of Appeals for the Second Circuit: [PDF] Order affirming District Court’s dismissal of lawsuit, 17 Sep 2010
- US District Court for the Southern District of New York: [PDF] Opinion and Order [regarding 2008 motion to dismiss], 21 Jun 2010
Opinion and Order re Plainitffs' motion for reconsideration, 16 Nov 2009
Opinion and Order, 25 Jun 2009

- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief for the United States as amicus curiae supporting petitioners, 21 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief of Former US Senator Arlen Specter, Human Rights First, and the Anti-Defamation League as amici curiae in support of petitioners, 21 Dec 2011
- [PDF] Kiobel, et al. v. Royal Dutch Shell Petroleum Co., et al. - Brief of Earth Rights Intl. as amicus curiae supporting petitioners, 21 Dec 2011


Wiwa v. Shell
An earlier, related claim was filed by Ken Wiwa (son of the late Ogoni activist Ken Saro-Wiwa who was executed together with Barinem Kiobel  in 1995) and other members of MOSOP in 1996.  The Wiwa lawsuit was filed against the same defendant companies as the Kiobel lawsuit.  This lawsuit alleged that the Nigerian military government and security forces committed human rights violations, including torture and summary execution of MOSOP members, to suppress MOSOP’s activities and that Royal Dutch/Shell was complicit in the commission of these abuses.  The plaintiffs won several pre-trial rulings, including on motions by the defendants to dismiss the case. 

In early June 2009, the parties announced that they had agreed to a settlement in the case for $15.5 million.  The settlement provides compensation for the ten plaintiffs and covers a portion of the plaintiffs’ legal costs.  The settlement also establishes The Kiisi Trust, intended to benefit the Ogoni people, which will be governed by independent trustees.  This trust is to fund initiatives in Ogoni such as education, women’s programmes, adult literacy and small enterprise support.

- “Shell settles human rights suit for $15.5M”, Chris Kahn, Associated Press, 8 Jun 2009
- [video] Shell in court over alleged Nigeria crimes, Al Jazeera English, 3 Jun 2009
- "Shell must defend Nigerian rights suit, judge says", David Glovin, Bloomberg, 23 Apr 2009
- “Shell Faces Human Rights Grilling”, Tim Webb, Independent [UK], 11 Apr 2004
- “Big Oil and an Activist's Death: Family Sues to Probe Role Played by Shell in Nigerian's Execution”, Elizabeth Neuffer, Boston Globe, 03 Jun 2001

- Shell:
 - Shell in Nigeria: Issues
 - Shell settles Wiwa case with humanitarian gesture, 8 Jun 2009

- [PDF] Statement of the Plaintiffs in Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC, Lucky Doobee, Monday Gbokoo, David Kiobel, Karalolo Kogbara, Blessing Kpuinen, James N-nah, Friday Nuate, Ken Saro-Wiwa, Jr., Michael Vizor, Owens Wiwa, 8 Jun 2009
- [PDF] Statement of Plaintiffs' Attorneys in Wiwa v. Royal Dutch/Shell, Wiwa v. Anderson, and Wiwa v. SPDC, 8 Jun 2009

- EarthRights International (NGO representing plaintiffs):Wiwa v. Royal Dutch Petroleum (Shell) [includes links to court opinions and plaintiffs’ complaints filed in this case]

- Center for Constitutional Rights (NGO representing plaintiffs):
 - Wiwa v. Royal Dutch Petroleum [synopsis]
 - [PDF] On Eve of Trial, Settlement Agreements Provide $15.5 Million for Compensation to Nigerian Human Rights Activists and to Establish Trust Fund, 8 Jun 2009

- The Case Against Shell [joint project of EarthRights International and Center for Constitutional Rights]: Wiwa v. Shell

- US Circuit Court for the Second Circuit:
- [PDF] Wiwa v. Shell, 14 Sep 2000 [reversal of lower court’s dismissal of the case]

- US District Court for the Southern District of New York:
- [PDF] Wiwa v Shell – Settlement Agreement and Mutual Release, 8 Jun 2009
- [PDF] Wiwa v. Shell - Denial of Defendants' Motion to Dismiss, 23 Apr 2009
- [PDF] Wiwa v. Shell – Dismissal of RICO claims against defendants, 18 Mar 2009

 

Country: Nigeria, USA

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Article
12 December 2014

U.S. corporations winning fight over human rights lawsuits

Author: Lawrence Hurley, Reuters

A landmark U.S. Supreme Court decision in 2013 that made it all but impossible to sue foreign companies in U.S. courts for alleged roles in overseas human rights abuses is proving to be a boon for U.S. firms too…In the roughly year and a half since the ruling in Kiobel v. Royal Dutch Petroleum Co, U.S. companies such as Chiquita Brands International Inc, IBM Corp and Ford Motor Co have successfully invoked the Supreme Court's reasoning to fend off lawsuits alleging they were involved in human rights abuses…In the seven cases involving U.S. companies that federal appeals courts have decided since the Supreme Court rulings, corporate defendants have won five…Only one ruling was an outright win for plaintiffs…The Supreme Court ruling means human rights lawyers now have to look more seriously at alternative ways to seek redress for alleged abuses. [also refers to CACI]

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Article
5 December 2014

Access to justice for victims of human rights abuses needs to be strengthened

Author: Sif Thorgeirsson, Manager, Corporate Legal Accountability Project, Business & Human Rights Resource Centre

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto,  Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

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Article
25 November 2014

Standard behind US Court dismissal of Alien Tort case against Occidental & AirScan “sufficiently vague for corporations to hide behind”, says journalist

Author: Siddhartha Mahanta, Foreign Policy (USA)

"Suing companies for atrocities has never been harder. Thanks, Supreme Court!", 18 Nov 2014 [Subscription required]

On Nov. 12 [2014], the 9th U.S. Circuit Court of Appeals…ruled…in Mujica v. AirScan that the families of the victims of a…1998, cluster bomb attack on…Santo Domingo, Colombia, could not make claims against two American companies...Occidental Petroleum and AirScan...allegedly complicit in the attack...The Colombian helicopters that bombed Santo Domingo did so to protect the Caño-Limón pipeline, owned by Occidental, according to the plaintiffs. Occidental allegedly provided financial support to the Colombian military, [and gave] it office space to plan the…raid, the plaintiffs said…[I]n Kiobel vs. Royal Dutch Petroleum Co...Chief Justice John Roberts...[said]..."even where the claims touch and concern the territory of the United States...they must do so with sufficient force to displace the presumption against extraterritorial application."...Now, that "touch and concern" standard has returned...[Judge] Bybee wrote that the [Alien Tort Statute] didn't apply [in this case] because the…claims…failed to "touch and concern" the [US] with sufficient force...Relying on a standard as ill-defined as touch and concern, it seems, creates language sufficiently vague for corporations to hide behind. [Also refers to Exxon Mobil, Cisco, Shell]

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Article
13 October 2014

The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute

Author: Jennifer M. Green, University of Pennsylvania Journal of International Law, Article 6 in Vol. 35 Issue 4

...[Despite] the development of international norms on how corporations should behave in the global economy, one of the biggest challenges continues to be the enforcement of human rights standards...Effective accountability is critical for an international legal system that rewards law-abiding corporations, which then contributes to the deterrence of future violations. [This paper focuses on] one small piece of the attempt to enforce human rights standards against corporate violators—the claims brought under a U.S. law, the Alien Tort Statute (“ATS”), and the recent challenges presented by a Supreme Court case, Kiobel v. Royal Dutch Shell. The development of this area of jurisprudence is at an important crossroad, and the next steps by U.S. courts will be critical steps—either forward, towards an improved system of accountability...or backward, leaving victims without a remedy, rewarding those companies who flout the rule of law and penalizing their competitors who follow the law, and weakening the system of law itself...

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Article
12 September 2014

Lawyer analyses US court decision in So. African apartheid case against IBM & Ford

Author: Michael Kourabas, TriplePundit

"The End of Apartheid Litigation and the Future of Corporate Accountability", 11 Sep 2014

The quest to hold corporations liable for alleged human rights abuses committed abroad was dealt another blow late last month when a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations...In a begrudging bow to current precedent...Judge Shira Scheindlin...denied plaintiffs’ motion to amend their complaint because they would be unable to meet the stringent demands of a test announced by the Second Circuit Court of Appeals earlier in the year...It seems, then, that all an American corporation has to do to protect itself from ATS exposure is ensure that, to the extent it engages in violations of international law in another country, it does so through a foreign subsidiary...As for Judge Scheindlin...“That these plaintiffs are left without relief in an American court is regrettable,” she wrote.  “But I am bound to follow [precedent]..."...

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Article
8 August 2014

US Court decision to dismiss lawsuit against Chiquita shows difficulties faced by victims to hold corporations accountable for human rights abuses abroad, says academic

Author: Lauren Carasik, Western New England University School of Law, in Al Jazeera America

"The uphill battle to hold US corporations accountable for abuses abroad", 8 Aug 2014 

...[T]he Court of Appeals for the Eleventh Circuit dismissed a lawsuit against...Chiquita by 4,000 victims of...violence during Colombia’s...civil war...The court found that though Chiquita executives in Ohio did make illegal payments to the AUC, the case did not “touch and concern” the U.S...Judge...Martin [dissenting opinion]...wrote, “we disarm innocents against American corporations that engage in human rights violations abroad”...[T]he case highlights a glaring gap in the international framework...and underscores the importance of developing mechanisms to ensure that victims have access to judicial remedies...[They] face...prohibitive costs of litigation across borders, statutes of limitations and corporate structures that are built on legally distinct entities and insulate companies from liability...[T]he issue is a marked power imbalance: Big companies employ their considerable resources to shield themselves and impose double standards that serve their interests. They invoke the protections of international law when it suits them…Yet they aggressively resist efforts to impose accountability across borders…

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Article
29 July 2014

US federal appeals courts issue conflicting decisions regarding extraterritoriality in Alien Tort lawsuits against CACI & Chiquita

Author: John Bellinger, Lawfare (USA)

"Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States", 27 Jul 2014 

...[F]ederal appellate courts have recently issued two significant, and potentially conflicting...decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision…[A] Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States…[A] split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by…Colombians against Chiquita…in connection with its alleged payments to paramilitary forces in Colombia [on the grounds that] “There is no allegation that…any other act constituting a tort…touched or concerned the territory of the United States with any force.”...[These] decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations…[Also refers to Archer Daniels Midland, Cargill, Ford, IBM, KBR, Nestlé]

 

 

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Article
5 May 2014

[video] 10 Years After Abu Ghraib, Ex-Prisoners Seek Justice in Torture Lawsuit Against U.S. Contractor CACI

Author: Democracy Now

[I]n 2004, after military investigative reports revealed the role of private military contractors in the atrocities in Abu Ghraib, we…with other lawyers, brought three lawsuits against two sets of private military contractors - one on behalf of 256 victims in—which was dismissed by a court of appeals in Washington, a second one against a company called L-3 Services…and that settled on behalf of 71. And this last lawsuit on behalf of Salah and three other victims of torture at the Abu Ghraib hard site against a private military contractor called CACI International…[T]his lawsuit seeks to hold CACI, the corporate entity, responsible for the actions of its employees…[The case] was dismissed by a lower court…[R]ecently, a court of appeals has heard our appeal…And I think…there are such strong U.S. connections to the torture here…we’re hopeful that the court of appeals will reinstate the case…[Also refers to L-3 Communications, L-3 Titan (part of L-3 Communications)]

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Article
2 May 2014

[PDF] Submission to the House of Commons Foreign Affairs Select Committee Inquiry: The FCO’S human rights work in 2013

Author: CORE (Corporate Responsibility Coalition)

Summary of Recommendations 1.1 On UK Action Plan on Business and Human Rights...CORE recommends that the FAC asks the UK government: Whether there are clear goals and success criteria for each of the proposed commitments set out in the UK’s Action Plan, along with a timetable for completion. Whether it monitors compliance with the Action Plan and identifies deficiencies that need to be addressed. How it responds to the lack of coherence and consistency across government departments in giving effect to the Action Plan. How it can ensure more effective accountability across Whitehall for implementation of the Action Plan. 1.2 On Human Rights in Promoting Britain’s Prosperity CORE recommends that the FAC asks the UK government: How the promotion of business interests and respect for human rights can be reconciled in light of UK’s intervention on behalf of Shell in a case before the US Supreme Court (Kiobel v Royal Dutch Petroleum) where the FCO admitted that the UK’s intervention “would be acting to seek a result that will close a possible remedy for victims of alleged human rights abuse”. Whether the UK considers that an international treaty on business and human rights will help create a level playing field for States and companies, and whether the UK will support the initiative that is being taken within the UN Human Rights Council to set in motion an intergovernmental process that may lead to such a treaty.

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Article
24 April 2014

Chiquita asks court to toss terror payments case [USA]

Author: AP, Washington Post

Chiquita…asked a…court…to dismiss lawsuits filed against [it] by relatives of…Colombians killed in a bloody civil war, contending the cases do not belong in a U.S. court…[The] attorney for…Chiquita [said]…that any legal action by the relatives should be pursued in Colombia. The lawsuits accuse Chiquita…of assisting in the killings by paying $1.7 million to a right-wing paramilitary group…The Colombians’ lawyer [Paul Hoffman]…countered that the cases belonged in the U.S. because Chiquita is based in this country and made decisions about the payments at its headquarters…in Cincinnati…The arguments Thursday revolved mainly around…Kiobel vs. Royal Dutch Petroleum…Like that case, the Colombian lawsuits against Chiquita invoke the Alien Tort Statute…The Chiquita lawyer…said…Kiobel…means there is now a presumption against such “extraterritorial” lawsuits being brought in the U.S…Hoffman…said…[i]f there’s enough linkage between a U.S. person or company and the overseas atrocities…a case…can go forward…

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