Chowdhury v. Worldtel Bangladesh Holding, Ltd., No. 09-4483, 2014 U.S. App. LEXIS 2507 (2d Cir. Feb. 10, 2014) [click for opinion]
Plaintiff Nayeem Mehtab Chowdhury, in his capacity as the managing director of a large Bangladeshi telecom company, directed the company to issue new shares. This reduced Defendant Amjad Hossain Khan's interest in the company by fifty percent. Defendant responded by lodging allegations of misconduct against Chowdhury with various agencies of the Bangladeshi government, including a Bangladeshi paramilitary unit of the National Police called the Rapid Action Battalion. The Battalion detained Plaintiff without bringing charges, and, at Defendant's direction, tortured him by applying electric shocks to his thighs and arms and lifting him off his feet and suspending him from a prison door.
Plaintiff, a U.S. resident, sued Defendant, also a U.S. resident, under the Alien Tort Statute (“ATS”) – which provides original jurisdiction in U.S. court over “any civil action by an alien for a tort only, committed in violation of the law of nations” – and the Torture Victim Protection Act (“TVPA”) – which imposes civil liability for torture carried out by an individual with “actual or apparent authority, or color of law, of any foreign nation.” A jury found Defendant civilly liable under both statutes and assessed $1.5 million in compensatory damages and $250,000 in punitive damages.
Defendant appealed to the Second Circuit. During the pendency of the appeal, the U.S. Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which significantly limited relief under the ATS for conduct occurring outside the United States. Invoking Kiobel, the Second Circuit held that the ATS claim was jurisdictionally barred because the relevant conduct was committed entirely within Bangladesh against a non-U.S. national.
Defendant also argued that his TVPA liability should be reversed. The Second Circuit rejected this argument, however, and distinguished the TVPA from the ATS: “We find no support in Kiobel … for the proposition that the territorial constraints on common law causes of action under the ATS apply to the statutory cause of action created by the TVPA.” Rather, the court continued, “we must conduct a separate statutory analysis with respect to the TVPA to determine whether that statute – not the ATS – gives clear indication of an extraterritorial application.” Looking to the legislative history of the TVPA, the Second Circuit concluded that the electric shock which [Plaintiff] suffered “while detained by RAB were properly actionable as torture under the TVPA.” The Second Circuit also concluded that Defendant, who was alleged to have directed the Battalion to torture Plaintiff, was properly liable under an agency theory, explaining that “an individual can be liable for subjecting the victim to torture even if his agent administers the torture[.]”