"Ninth Circuit Allows Human Rights Claims Against Cisco to Proceed", 19 July 2023

There may yet be life in the Alien Tort Statute (ATS). The Ninth Circuit recently held, in Doe I v. Cisco Systems, Inc., that Chinese practitioners of Falun Gong could go forward with claims of aiding and abetting human rights violations against Cisco Systems, which designed and built a surveillance system for the People’s Republic of China.

Over the past decade, the Supreme Court has repeatedly whittled down the ATS cause of action, holding that it does not apply to foreign corporations and that it requires substantial conduct in the United States. But the claims in Doe v. Cisco Systems fit through the narrow space the Court has left for ATS actions. Cisco is a U.S. company, and it designed and built the surveillance system for China in the United States.

Doe v. Cisco Systems also has important things to say about aiding and abetting liability. First, the decision holds that aiding and abetting human rights violations is a violation of international law that is actionable under the ATS. Second, it holds that knowledge, rather than purpose, satisfies the mens rea requirement for aiding and abetting, deepening a split on this question among the circuits. Finally, the decision holds, as a matter of first impression, that the Torture Victim Protection Act (TVPA) allows aiding and abetting claims against Cisco’s corporate officers...

The Chinese plaintiffs brought their claims under the ATS, which allows non-U.S. citizens to sue for torts in violation of international law. Judge Berzon first disposed of Cisco’s argument that corporations may not be sued under the ATS, correctly noting that five Justices in Nestlé “concluded that domestic corporations are appropriate defendants under the statute...”

To be sure, cases like Cisco will be rare. Plaintiffs will have to show that a U.S. corporation engaged in substantial conduct in the United States with knowledge that it was facilitating human rights violations abroad...