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The Impact of Corporate Amicus Briefs on the Supreme Court in Kiobel [USA]

If general counsel ever wonder whether their companies’ friend-of-the-court briefs really have any impact, they only need to look at this week’s U.S. Supreme Court action involving the Alien Tort Statute. Two amicus briefs clearly helped sway the Justices into postponing a decision while exploring a new issue not raised by the parties...[T]he...court...asked the parties to submit supplemental briefs on the extraterritorial issue. Specifically, they asked whether the ATS allows federal courts to hear lawsuits alleging violations of international law that occur outside the United States...The...Kiobel brief [by attorney John Bellinger, of Arnold & Porter and Paul Clement, of the Bancroft law firm,] hardly mentioned the corporation issue, and argued instead that the ATS does not apply to purely extraterritorial conduct. “Founding-era courts did not even consider cases, like this one, in which a foreign plaintiff sued a foreign defendant based on foreign conduct,” it states...However, the U.S. Department of Justice had filed in support of the Nigerian plaintiffs, arguing that corporations should be held liable for torts under the ATS.