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19 Mar 2012

Michael Goldhaber, AmLaw Daily

The Global Lawyer: Human Rights Plaintiffs Can't Even Pick Their Poison

Could anything be worse for alien tort claimants than arguing before a hostile U.S. Supreme Court on corporate liability, as the plaintiffs in Kiobel v. Royal Dutch Shell did last month? Yes: arguing before a hostile Supreme Court on extraterritoriality, as those plaintiffs will have to do next term, thanks to a surprise procedural order on March 5. A broad ruling against extraterritoriality is more dangerous to plaintiffs for two reasons. First, it could bar suits against corporate officers and directors. Second, it could bar traditional alien tort suits against individual torturers and genocidaires…One way or another, the assumption here is that the corporate alien tort has a dim future at best. After Morrison v. National Australia Bank foreclosed global securities class actions in U.S. courts, I examined the potential for work-arounds under state law or in foreign courts. In coming columns I will do the same for human rights claims against corporations.