Nestlé & Cargill v. Doe: What’s Not in the Supreme Court’s Opinions
Bill Dodge has provided a succinct summary and analysis of the Supreme Court’s recent ruling on the Alien Tort Statute (ATS) in Nestlé & Cargill v. Doe...But what the Court ultimately did not rule on – the subject of this post – is almost as impactful as what it did decide.
As Bill explains, the Court’s holding (contained in Parts I and II of Justice Clarence Thomas’s opinion) reversed the Ninth Circuit on extraterritoriality and remanded the case to the district court, where the plaintiffs will now have to move for leave to amend their complaint. In so holding, the Court’s majority re-worked the extraterritoriality test (more explicitly abandoning Kiobel v. Royal Dutch Petroleum’s touch-and-concern test and adopting RJR Nabisco, Inc. v. European Community’s focus test), and concluded that the facts alleged as to the companies’ conduct all involved domestic “general corporate activity,” which they held was not actionable under the ATS...
Beyond the discussion between Justices Thomas and Sotomayor on the wisdom of Sosa, the Court declined to issue a ruling on, or is relatively quiet about, three important issues that were either the basis of the grant of certiorari or received significant airtime in oral argument: the amenability of corporations to suit under the ATS, the cognizability and scope of aiding and abetting liability under the ATS, and the strength of anti-slavery/anti-human trafficking norms under the law of nations. The remainder of this article will discuss the significance of the Court avoiding each of these topics in turn...