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21 Apr 2008

Ben Winograd, Legal Times, reprinted on SCOTUSblog [USA]

Conference Call: Companies Want Apartheid Case Tossed

The current South African leadership...strenuously objected earlier this decade at the filing of numerous class actions in U.S. courts, seeking upwards of $400 billion from some four dozen corporations alleged to have assisted the apartheid government... Companies targeted in the suit include: Bank of America, IBM, and the Coca-Cola Co... The United States followed suit, asserting the litigation would...interfere with South African policy goals and serve as an “irritant” between the two countries... [In] October 2007 a split panel of the U.S. Court of Appeals for the 2nd Circuit...[ruled] that the plaintiffs could in fact state a claim for “aiding and abetting” violations of international law under...the Alien Tort statute. In a case with ramifications for the growing number of suits targeting corporations allegedly complicit in human rights violations, the Supreme Court on April 25 will consider whether to accept the companies’ petition for certiorari [review]... [The case is] American Isuzu, et al. v. Ntsebeza... As the companies’ petition for certiorari puts it, the mere existence of the litigation causes ongoing harm to both U.S. and South African interests... [The petition] argues the [2nd Circuit] panel erred in failing to dismiss the plaintiffs’ “aiding and abetting” claims under the Alien Tort statute... In an amicus brief, the United States also recommends the Court grant certiorari — but only on the question of “aiding and abetting” liability under the Alien Tort law — and dismiss what Solicitor General Paul Clement calls an “unprecedented and sprawling lawsuit.”... [The] respondents’ brief in opposition contends that...the plaintiffs already plan to amend their pleadings to comply with the Court’s decision in Sosa [another Alien Tort case, and]...maintains the plaintiffs do not seek to hold the companies’ liable for simply “doing business” with the apartheid regime... On the merits, [the brief] maintains that an “overwhelming consensus” of courts agree the Alien Tort law permits claims for aiding and abetting liability... [also refers to lawsuits against Wal-Mart, Nestlé, Yahoo!]