"Cisco’s Cert Petition", 4 February 2025.

Last Friday, January 31, 2025, Cisco Systems filed a petition for certiorari asking the Supreme Court to review the Ninth Circuit’s decision in Doe v. Cisco Systems, Inc. (2023), a decision holding that claims of aiding and abetting may be brought under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA).

As more fully described in a prior post, the complaint alleges that Cisco and its CEO aided and abetted human rights violations in China by designing and building a surveillance system for the Chinese government to identify practitioners of the banned religious movement Falun Gong. Although the Supreme Court has repeatedly narrowed the implied cause of action under the ATS, this complaint fit squarely within those limits because the plaintiffs sued a U.S. company and alleged substantial conduct in the United States. The TVPA came into play because one of the plaintiffs is a U.S. citizen who is not covered by the ATS. The TVPA does not apply to corporations but was invoked in this case to sue Cisco’s CEO.

The Ninth Circuit’s decision in Cisco has three main holdings. First, the court held that claims for aiding and abetting human rights violations can be brought under the ATS. Second, the court held that the mens rea standard for such claims is knowledge rather than purpose. And third, the court held that aiding and abetting claims can also be brought under the TVPA.

Cisco’s cert petition challenges each of these holdings...

Cisco first argues that the Ninth Circuit was wrong to allow any aiding and abetting claims to proceed under the ATS. Citing the plurality opinion in Nestlé U.S.A., Inc. v. Doe (2021)...

Cisco also argues that the Supreme Court’s decision in Central Bank of Denver N.A. v. First Interstate Bank of Denver, N.A. (1994) forecloses civil aiding and abetting liability unless Congress expressly provides for it...

Next, Cisco argues that permitting aiding and abetting claims under the ATS raises foreign policy concerns because such claims require finding that a foreign government violated international law, even though the foreign government is not a party. In this case, however, there is no conflict with U.S. policy...

Finally, Cisco argues that the Ninth Circuit erred in allowing aiding and abetting claims under the TVPA...

By traditional standards, Cisco’s petition for cert should be denied. But denial is hardly a foregone conclusion. The U.S. Solicitor General’s Office has previously urged the Supreme Court to address aiding and abetting liability under the ATS and TVPA and, if asked, would likely support a grant of cert here...