The U.S. Supreme Court held the presumption against the extraterritorial application of U.S. laws applies to claims under the Alien Tort Statute (“ATS”).
For an ATS claim to survive a motion to dismiss, it must “touch and concern” activities occurring in the “territory of the United States” and must do so with sufficient force to displace the presumption against extraterritorial application. The Court’s decision has effectively shut off cases brought by foreign nationals for violations which occur wholly outside the U.S.
Following the guidance of the Supreme Court, several federal courts have now dismissed ATS suits against U.S. companies on the basis that that facts underlying the actions do not satisfy the new “touch and concern” test outlined by the Court.
- In September, the Eleventh Circuit upheld a district court decision dismissing a complaint brought by families of victims in Colombia, alleging that a U.S. company had aided and abetted paramilitary forces in Colombia which carried out several extrajudicial killings in the country.
The court held that since the murders took place in Colombia, and the plaintiff’s failed to allege any facts supporting an express agreement between the company and the paramilitants to execute the victims, the factual allegations fell short of overcoming the presumption against extraterritoriality.
- Similarly, in September, a Northern California District Court dismissed an ATS lawsuit brought against a U.S. company in 2011 by the Falun Gong for allegedly aiding the Chinese government in committing human rights abuses by providing the network security system the Chinese government used for the widespread censorship, tracking, and torture of dissidents.
The court dismissed the ATS claim on the grounds that the company’s alleged actions did not sufficiently “touch and concern” the United States, and that there were insufficient allegations that the network security system played a substantial role in the abuses or that the company knew about the abuses. The court also dismissed the claim on the ground that the statute does not provide for aiding-and-abetting liability.