Alien Tort Statute. Extraterritorial application. Second Circuit affirms district court dismissal of putative class action against religious organizations allegedly involved in post-World War II scheme that trafficked children to Australia to work under slave labor conditions.

Ellul v. Christian Brothers, No. 11-1682-cv (2d Cir. Dec. 8, 2014) [click for opinion]

In a putative class action brought in federal court in New York under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, Plaintiffs alleged that Defendants, religious organizations, participated in a "child migration" program in the aftermath of World War II that took plaintiffs as children from their families in Britain and Malta and forced them to work long hours without pay in Australia, where they were subjected to extreme physical and, in some cases, sexual abuse. Plaintiffs alleged that Defendants' actions constituted . . "violations of customary international law, including slavery and involuntary servitude, child trafficking, forced child labor, and cruel, inhuman, and degrading treatment or punishment."

The district court dismissed Plaintiffs' claims for lack of personal jurisdiction and, alternatively, because they were barred by the statute of limitations. Plaintiffs appealed to the Second Circuit. On appeal, Defendants argued for the first time that the Second Circuit's decision inKiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), holding that ATS claims for violations of customary international law could not be brought against corporations, barred Plaintiffs' ATS claims. After the parties submitted their briefs to the Second Circuit, the U.S. Supreme Court granted certiorari in Kiobel, heard oral argument, and ordered reargument on the issue of the extraterritoriality of the ATS. The Second Circuit subsequently heard oral argument in Ellul but then stayed its proceedings in light of the pending decision in Kiobel. In 2012, the Supreme Court issued its opinion in Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012), holding that the ATS does not apply to extraterritorial conduct except where the 'claims touch and concern the territory of the United States' with 'sufficient force to displace the presumption against extraterritorial application.'

In supplemental briefing on the impact of the Supreme Court's Kiobeldecision, Plaintiffs' argued that some of their claims survived Kiobelbecause they "touch[ed] and concern[ed]" the territory of the United States by virtue of Defendants' substantial presence in the United States when they committed the alleged wrongs. The Second Circuit found, however, that Kiobel rejected the notion that a defendant's mere presence in the United States is sufficient to displace the presumption against extraterritoriality. Accordingly, it found that the Plaintiffs could not bring their claims for violations of international law predicated upon conduct that occurred in Australia.

The Second Circuit also affirmed the district court's dismissal of Plaintiffs' human trafficking claims under the ATS. Plaintiffs alleged that the trafficking acts were transnational, occurring in several jurisdictions and on the high seas, and therefore human trafficking falls outside the presumption against extraterritoriality of the ATS. The court did not reach this issue, as it found that the statute of limitations barred Plaintiffs' human trafficking claims.

Michael Bloom of the Chicago office contributed to this summary.