The Alien Tort Statute: Next Bonanza for the Trial Barby Earl Silbert, Joseph G. Finnerty III, Anthony Coles, Ignacio Sanchez, and George Salem Hoping for the next litigation bonanza, some of America's most aggressive contingency fee law firms have begun filing large-scale class actions under the Alien Tort Statute (ATS). ATS Cases Rival Asbestos and Tobacco Class ActionsThe size of these lawsuits will surpass asbestos and tobacco class actions. Most ATS suits involve conduct that has no nexus to the United States. The plaintiff classes are composed of tens or hundreds of thousands of foreigners, who reside in locations as remote as Sudan and Pakistan. And the trial lawyers have begun suing classes of defendants, which can include hundreds of U.S. and multinational corporations. One complaint alone seeks $400 billion in damages. The contingency fee lawyers calculate that, if they can weather a motion to dismiss in a stalking horse case, they will gain the ability to bring a flood of these extraterritorial lawsuits in U.S. courts. These suits would be even harder for U.S. courts to administer than the asbestos class actions. Resolution of these cases requires class action litigation capability combined with the capacity to negotiate with the Executive Branch for the filing of a dispositive Statement of Interest (SOI). Dismissals Often Are Based on Interference with U.S. Foreign RelationsBecause these suits tend, by their nature, to interfere in the conduct of U.S. foreign relations, dismissals often are predicated on abstention doctrines including political question and international comity. The prospect for dismissal increases significantly if the Executive Branch files a forceful SOI with the court urging dismissal of the case. Executive Branch SOI Helps Clients Defend ATS SuitsSecuring an effective SOI by the Executive Branch is a vital step in defending clients in ATS lawsuits. There is a multi-agency process whereby the Executive Branch decides whether to file an SOI in a particular case, and how the SOI should be framed. If the Executive Branch files an SOI, the likelihood for dismissal increases. The terms of the SOI also require special attention. Some courts have seized upon weak SOIs to buttress a conclusion that dismissal is not appropriate. Vigorous SOIs, in contrast, have persuaded courts to dismiss federal (and perhaps even state law) claims. A recent decision by the D.C. Circuit, Doe v. ExxonMobil Corp., 2007 WL 79007 (D.C. Cir. 2007), suggests that a strong SOI may compel a federal court to dismiss state law claims, as well as federal claims, under the political question doctrine. DLA Piper Defends Stalking-horse ATS Class ActionsIn a pending ATS class action, a team of DLA Piper litigation and federal affairs attorneys is defending two United Arab Emirates (UAE) officials in an ATS case brought in the Southern District of Florida. This case consists of over 30,000 "John Doe" plaintiffs from countries as remote as Sudan, Mauritania, Pakistan, and Bangladesh. In addition to the two UAE officials, plaintiffs are suing a class of 500 other unnamed defendants from the UAE, Saudi Arabia, and Qatar. Even in a non-ATS case, an SOI can be vitally important. For example, DLA Piper is representing the League of Arab States to prevent enforcement of a U.S. judgment overseas. The firm's team includes attorneys from the litigation and federal affairs practices. Because the case could create foreign policy ramifications, the DLA team requested that the court solicit the views of the Executive Branch. In response, the Executive Branch issued a strong SOI urging dismissal, which serves as a model for the type of SOI one would hope to persuade the Executive Branch to file in any case affecting the Executive's conduct of foreign policy, including the emerging ATS class actions. Read that SOI here. Recent Publication on ATS Class ActionsThe National Legal Center for the Public Interest recently published a paper, authored by Arthur Fergenson and John Merrigan, which describes the rising tide of global ATS class actions and trends in recent court decisions, then offers practical advice concerning the issuance of SOIs by the Executive Branch. Please click here to read the paper.
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