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Balintulo v. Ford Motor Co.

United States Court of Appeals, Second Circuit

July 27, 2015

SAKWE BALINTULO, as personal representative of SABA BALINTULO, et al., Plaintiffs-Appellants,
v.
FORD MOTOR CO., INTERNATIONAL BUSINESS MACHINES CORP., Defendants-Movants

Argued: June 24, 2015.

On Appeal from the United States District Court for the Southern District of New York.

This appeal presents the question of whether plaintiffs, victims of South African apartheid, have plausibly alleged relevant conduct committed within the United States that is sufficient to rebut the Alien Tort Statute's presumption against extraterritoriality.

We hold that they have not.

Accordingly, we AFFIRM the August 28, 2014 order of the United States District Court for the Southern District of New York (Shira A. Sheindlin, Judge).

PAUL L. HOFFMAN (Diane E. Sammons, Nagel Rice, LLP, Roseland, NJ; Michael D. Hausfeld, Kristen M. Ward, Hausfeld, Washington, DC, on the brief), Schonbrun, Desimone, Seplow, Harris & Hoffman LLP, Venice, CA, for Plaintiffs-Appellants.

JONATHAN HACKER (Anton Melitsky, on the brief), O'Melveny & Myers LLP, New York, NY, for Defendant-Movant Ford Motor Company.

KEITH R. HUMMEL (Teena-Ann V. Sankoorikal, James E. Canning, on the brief), Cravath, Swaine & Moore LLP, New York, NY, for Defendant-Movant International Business Machines Corporation.

Before: CABRANES, HALL, and LIVINGSTON, Circuit Judges.

OPINION

José A. Cabranes, Circuit Judge:

This appeal presents the question of whether plaintiffs, victims of South African apartheid, have plausibly alleged relevant conduct committed within the United States that is sufficient to rebut the Alien Tort Statute's presumption against extraterritoriality.

We hold that they have not.

Accordingly, we AFFIRM the August 28, 2014 order of the United States District Court for the Southern District of New York (Shira A. Sheindlin, Judge ).

BACKGROUND

Nearly a decade and a half ago, plaintiffs filed suit under the Alien Tort Statute (" ATS" )[1] against various corporations[2] for allegedly aiding and abetting crimes proscribed by " the law of nations" (also called " customary international law" )[3] committed during apartheid by the South African government against South Africans within South Africa's sovereign territory.

The long and complicated procedural history of this consolidated case involves rulings from all three levels of the federal judiciary.[4] As relevant here, the District Court, on April 8, 2009, held that plaintiffs may proceed against defendants Ford and IBM (the " Companies" ) on an agency theory of liability for apartheid era crimes allegedly committed by their subsidiaries. Thereafter, the Companies sought a writ of mandamus in this Court. On September 17, 2010, while this case remained pending, we held, in Kiobel v. Royal Dutch Petroleum Co. (" Kiobel I " ), that the ATS does not confer jurisdiction over claims pursuant to customary international law against corporations.[5] The Supreme Court granted certiorari and, on April 17, 2013, affirmed our judgment, while explicitly declining to reach the corporate liability question (" Kiobel II " ).[6] Instead, the Court held that " the presumption against extraterritoriality applies to claims under the ATS" [7] and thus the statute cannot be applied " to conduct in the territory of another sovereign." [8]

Two days after the Supreme Court released its ruling in Kiobel II, we requested supplemental briefing from the parties on the impact of that decision on the present case. Thereafter, on August 21, 2013, in Balintulo v. Daimler AG, 727 F.3d 174, 188 (2d Cir. 2013) (" Balintulo I " ), we denied the Companies' request for a writ of mandamus and remanded to the District Court where the Companies would be able to " seek the dismissal of all of the plaintiffs' claims, and prevail, prior to discovery, through a motion for judgment on the pleadings." In so doing, we rejected plaintiffs' theory of vicarious liability for the Companies based on actions taken within South Africa by their South African subsidiaries and concluded that Kiobel II " forecloses the plaintiffs' claims because the plaintiffs have failed to allege that any relevant conduct occurred in the United States." [9]

On remand, the Companies moved for a judgment in their favor. The District Court ordered the Companies to brief the question of whether corporations can be held liable under the ATS following Kiobel II. On April 17, 2014, the District Court held that the Supreme Court in Kiobel II, which, as noted earlier, expressly declined to address the question of corporate liability under customary international law, had nonetheless overruled the holding of Kiobel I and thus altered the law of the Circuit in that respect.[10] The District Court also permitted plaintiffs to move to amend their complaints in order to allege facts sufficient to overcome the ATS's presumption against extraterritoriality.[11] After plaintiffs submitted their proposed amended complaints, the District Court held that the proposed ...


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