Opinion
Nos. 06-4800-cv, 06-4876-cv.
February 4, 2011.
Carey R. D'Avino, Esq., Berger Montague, P.C., Philadelphia, PA, for Plaintiffs-Appellants-Cross-Appellees.
F. Thomas Rafferty, Esq., Rory O. Millson, Esq., Cravath Swaine Moore LLP, New York, NY, for Defendants-Appellees-Cross-Appellants.
PRESENT: DENNIS JACOBS, Chief Judge, JOSE A. CABRANES, ROSEMARY S. POOLER, ROBERT A. KATZMANN, REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH and DENNY CHIN, Circuit Judges.
ORDER
Following disposition of this appeal on September 17, 2010, an active judge of the Court, together with a senior judge, requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.
I concur in the denial of rehearing in banc for the reasons set forth in my opinion concurring in the denial of rehearing by the panel.
Because I believe that this case presents a significant issue and generates a circuit split, see Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008), and because I believe, essentially for the reasons stated by Judge Leval in his scholarly and eloquent concurring opinion, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010), that the panel majority opinion is very likely incorrect as to whether corporations may be found civilly liable under the Alien Tort Statute for violations of such fundamental norms of international law as those prohibiting war crimes and crimes against humanity, I would rehear the case en banc. I therefore respectfully dissent.
In this matter of extraordinary importance, this court divided 5-5 as to whether to proceed to in banc rehearing. In voting in favor of rehearing this case in banc, I fully concur in Judge Lynch's dissent. I make these additional comments.
Some of the points of disagreement between the panel majority and Judge Leval relate to the views that I expressed in my concurring opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007). In that opinion, I concluded that courts under the Alien Tort Claims Act, 28 U.S.C. § 1350 ("ATCA"), should "determine whether the alleged tort was in fact committed in violation of the law of nations, and whether this law would recognize the defendants' responsibility for that violation." Id. at 270 (Katzmann, J., concurring) (internal quotation marks and citation omitted). In Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), the unanimous panel — Chief Judge Jacobs, Judge Leval, and Judge Cabranes — adopted this analysis as the "law of this Circuit," and held that we must look "to international law to find the standard for accessorial liability" under the ATCA, id. at 258-59.
I write separately to respond to the contentions by the panel majority that "[my] reasoning in Khulumani leads to the inescapable conclusion" that corporations cannot be liable under the ATCA, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 130 n. 33 (2d Cir. 2010), and that Judge Leval's reasoning disregarded my Khulumani opinion by ignoring the rulings of international criminal tribunals with respect to corporate liability, id. at 146-47. I disagree. I see no inconsistency between the reasoning of my opinion in Khulumani and Judge Leval's well-articulated conclusion, with which I fully agree, that corporations, like natural persons, may be liable for violations of the law of nations under the ATCA.
As to the status of corporate liability under the ATCA, my concurring opinion in Khulumani observed that "[w]e have repeatedly treated the issue of whether corporation may be held liable under the ATCA as indistinguishable from the question from the question of whether private individuals may be." may be." 504 F.3d at 282 (Katzmann, J., concurring). However, I stated that "we need not reach the issue at this time" because "[t]his argument was not raised by the defendants on appeal and therefore the issue was not briefed by the parties." Id. at 282-83.