Ntzebesa, et al v. Citigroup, Inc., et al
Filing
170
OPINION AND ORDER re: (272 in 1:02-md-01499-SAS) MOTION to Amend/Correct Complaint. filed by Sakwe Balintulo, Lungisile Ntzebesa, (159 in 1:03-cv-04524-SAS) MOTION to Amend/Correct Complaint. filed by Sakwe Balintulo, (84 in 1:03-cv-01024-SAS, 203 in 1:02-cv-06218-SAS, 273 in 1:02-md-01499-SAS, 162 in 1:02-cv-04712-SAS, 160 in 1:03-cv-04524-SAS) MOTION to Amend/Correct Complaint. filed by Sakwe Balintulo, Lungislie Ntsebeza, (202 in 1:02-cv-06218-SA S) MOTION to Amend/Correct Complaint. filed by Lungislie Ntsebeza, (161 in 1:02-cv-04712-SAS) MOTION to Amend/Correct Complaint. filed by Lungisile Ntzebesa, Lungisile Ntsebeza. For these reasons, plaintiffs' motion for leave to amend their complaints is DENIED. All remaining claims against Ford and IBM are DISMISSED with prejudice. The Clerk of the Court is directed to close this motion and these cases. (Signed by Judge Shira A. Scheindlin on 8/28/2014) Filed In Associated Cases: 1:02-md-01499-SAS, 1:02-cv-04712-SAS, 1:02-cv-06218-SAS, 1:03-cv-01024-SAS, 1:03-cv-04524-SAS(lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
IN RE SOUTH AFRICAN APARTHEID
LITIGATION
OPINION AND ORDER
02 MDL 1499 (SAS)
----------------------------------------------------- )(
This Document Relates to:
----------------------------------------------------- )(
LUNGISILE NTSEBEZA, et al.,
Plaintiffs,
02 Civ. 4712 (SAS)
02 Civ. 6218 (SAS)
03 Civ. 1024 (SAS)
- against FORD MOTOR COMPANY, and
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendants.
----------------------------------------------------- )(
SAKEWE BALINTULO, et al.,
Plaintiffs,
- against 03 Civ. 4524 (SAS)
FORD MOTOR COMPANY, and
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendants.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
1
I.
INTRODUCTION
This case arises out of allegations that various corporations aided and
abetted violations of customary international law committed by the South African
apartheid regime. The remaining plaintiffs are members of two putative classes of
black South Africans who were victims of apartheid-era violence and
discrimination. Plaintiffs seek relief under the Alien Tort Statute (“ATS”), which
confers federal jurisdiction over “any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.”1 The
remaining defendants – Ford Motor Company (“Ford”) and International Business
Machines Corporation (“IBM”) – are American corporations accused of aiding
and abetting violations of the ATS by manufacturing military vehicles and
computers for South African security forces. Plaintiffs move for leave to amend
their complaints.
II.
For the following reasons, plaintiffs’ motion is DENIED.
BACKGROUND2
1
28 U.S.C. § 1350.
2
The complicated factual and procedural history of this litigation,
which started with more than a dozen distinct cases of which two (the Balintulo
case, and the Ntsebeza case, consisting of three consolidated actions) still remain,
is summarized at length in In re South African Apartheid Litig., 617 F. Supp. 2d
228, 241-45 (S.D.N.Y. 2009), Balintulo v. Daimler AG, 727 F.3d 174, 182-85 (2d
Cir. 2013), and In re South African Apartheid Litig., No. 02 MDL 1499, 2014 WL
1569423, at *1-3 (Apr. 17, 2014). The following discussion is limited to the facts
pertinent to this motion.
2
A.
Procedural History
On April 8, 2009, I granted several defendants’ motions to dismiss,
but ruled that plaintiffs may proceed against Ford and IBM, as well as Rheinmettal
AG and Daimler AG (the “April 8 Opinion and Order”). On August 14, 2009,
defendants sought a writ of mandamus in the United States Court of Appeals for
the Second Circuit to obtain interlocutory review of certain issues in the April 8
Opinion and Order.
On September 17, 2010, while this case remained pending, a split
panel of the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co. that the
ATS does not confer jurisdiction over claims against corporations, and dismissed
the ATS claims of Nigerian nationals who alleged that various corporations aided
and abetted customary international law violations in Nigeria (“Kiobel I”).3 The
Second Circuit’s decision in this case was stayed pending the resolution of Kiobel
in the Supreme Court. On April 17, 2013, after two rounds of briefing and oral
argument, the Supreme Court affirmed the judgment of dismissal in Kiobel without
addressing the issue of corporate liability (“Kiobel II”). Rather, the Supreme Court
held that the “presumption against extraterritoriality applies to claims under the
3
See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148 (2d Cir.
2010) (“Kiobel I”) (Cabranes, J. and Jacobs, C.J.) (Leval, J. concurring in the
judgment of the court to dismiss the complaint but filing separate opinion
accepting corporate liability under the ATS).
3
ATS” and bars actions “for violations of the law of nations occurring outside the
United States.”4
On April 19, 2013, two days after Kiobel II, the Second Circuit
directed the parties in this case to provide supplemental briefing on the impact of
the Supreme Court’s decision. On August 21, 2013, the court denied defendants’
request for a writ of mandamus and remanded to the district court. The court stated
that“[t]he opinion of the Supreme Court in Kiobel [II] plainly bar[red] commonlaw suits like this one, alleging violations of customary international law based
solely on conduct occurring abroad.”5 Applying the Supreme Court’s holding in
Kiobel II, the Second Circuit concluded that the ATS does not “recognize causes of
action based solely on conduct occurring within the territory of another sovereign,”
and that plaintiffs’ suit should be dismissed “[b]ecause the defendants’ putative
agents did not commit any relevant conduct within the United States giving rise to
a violation of customary international law.”6 On November 7, 2013, the court
denied plaintiffs’ petition for panel rehearing and rehearing en banc.
Following denial of en banc review, defendants asked this Court to
4
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663 (2012)
(“Kiobel II”).
5
Balintulo, 727 F.3d at 182.
6
Id. at 192.
4
enter judgment in their favor based on the Second Circuit’s directive, and based on
their view that there is no corporate liability for ATS claims based on the Second
Circuit decision in Kiobel I. Plaintiffs sought leave to amend their complaints,
arguing that the Second Circuit’s decision in Balintulo was based on complaints
drafted before Kiobel II and that plaintiffs are entitled to an opportunity to allege
additional facts that might show that some of the alleged wrongful conduct
“‘touch[es] and concern[s]’” the United States with “‘sufficient force’” to
overcome the presumption against extraterritorial application of the ATS.7
Plaintiffs also maintained that corporations are proper defendants because the
Supreme Court implicitly overturned the Second Circuit’s decision in Kiobel I
finding no corporate liability under the ATS.
On December 26, 2013, I dismissed the remaining foreign defendants
– Rheinmettal AG and Daimler AG – because “plaintiffs have failed to show that
they could plausibly plead that the[ir] actions . . . touch and concern the United
States with sufficient force to rebut the presumption against the extraterritorial
reach of the ATS.”8 I also ordered the remaining parties to fully brief the question
7
11/26/13 Letter from Diane E. Sammons, counsel for plaintiffs to the
Court, at 2 (quoting Kiobel, 133 S. Ct. at 1669).
8
In re South African Apartheid Litig., No. 02 MDL 1499, 2013 WL
6813877, at *2 (Dec. 26, 2013).
5
of whether corporations can be held liable under the ATS following the Supreme
Court’s decision in Kiobel II. On April 17, 2014, I held that because the Supreme
Court implicitly overruled the Second Circuit’s decision in Kiobel I, the question
of corporate liability remained open in the Second Circuit,9 and concluded that
actions under the ATS can be brought against corporations.10 I permitted plaintiffs
to move for leave to amend against the remaining American defendants, in which
they would have to plead “that those defendants engaged in actions that ‘touch and
concern’ the United States with sufficient force to overcome the presumption
against the extraterritorial reach of the ATS.”11
9
See In re South African Apartheid Litig., 2014 WL 1569423, at *5
(citing Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 174 (2d
Cir. 2013) and Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 49
n.6 (2d Cir. 2014) (Pooler, J., concurring)).
10
See id. at *8-9 (citing Flomo v. Firestone Natural Rubber Co., 643
F.3d 1013, 1017-19 (7th Cir. 2011)).
11
Id. at *9. Plaintiffs were also permitted to allege new facts showing
“that those defendants acted not only with knowledge but with the purpose to aid
and abet the South African regime’s tortious conduct.” Id. This heightened mens
rea requirement for aiding and abetting liability under the ATS was established by
Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir.
2009). Because plaintiffs have failed to show that they could plausibly plead facts
to overcome the presumption against extraterritoriality, I will not address whether
the proposed amended complaint meets the extraordinarily high Talisman Energy
standard.
6
B.
Factual History12
1.
Allegations Against IBM
IBM is a United States corporation headquartered in New York.13
IBM South Africa was a wholly owned subsidiary of IBM.14 Plaintiffs allege that
IBM, through its South African subsidiary, “intentionally developed and provided
computer technology, systems, software, training, and support to purposefully
facilitate and enable the apartheid government’s control of the majority black
population, including the physical separation of the races.”15 For example, IBM’s
South African subsidiary “purposely pursued contracts that supported the
implementation of apartheid, including the ‘Book of Life’ and the Bantustan
12
For purposes of this section, I will discuss only the facts underlying
plaintiffs’ aiding and abetting claims against Ford and IBM. I will not discuss, in
detail, the general history of the apartheid regime or the primary violations alleged
by plaintiffs, as these facts are fully laid out in previous opinions. The facts are
drawn from Plaintiffs’ Memorandum of Law in Support of the Motion for Leave to
File Amended Complaints (“Pl. Mem.”) and the proposed amended complaints
(“Prop. Balintulo Compl.” and “Prop. Ntsebeza Compl.”). Well-pleaded factual
allegations are presumed true for the purposes of this motion. See Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). However, allegations in the proposed amended
complaints that consist of conclusory statements or threadbare recitals of causes of
action are not entitled to the presumption of truth. See Kirkendall v. Halliburton,
707 F.3d 173, 175 n.1 (2d Cir. 2013).
13
See Prop. Balintulo Compl. ¶ 136 and Prop. Ntsebeza Compl. ¶ 122.
14
See Prop. Balintulo Compl. ¶ 135 and Prop. Ntsebeza Compl. ¶ 125.
15
Prop. Ntsebeza Compl. ¶ 135. Accord Prop. Balintulo Compl. ¶ 171.
7
identity documents.”16
Nevertheless, plaintiffs allege that “[a]t all relevant times, the code of
business conduct, standards, and values for IBM directors, executive officers, and
employees globally were set by IBM in the United States.”17 “IBM in the United
States made key decisions about operations in South Africa, including investments,
policy, management, bids and contracts, hardware and software products and
customization, as well as services and maintenance.”18 “IBM did not have research
and development or manufacturing facilities in South Africa. Rather, IBM, in the
United States, conducted the research and development for the hardware and
software that supported the apartheid systems.”19
Plaintiffs further allege that “[i]n the United States, IBM opposed
shareholder resolutions related to divestment and advocated for a sanctions regime
16
Pl. Mem. at 14. The “Book of Life” was a mandatory passbook that
“contained assorted information including racial classification, name, sex, date of
birth, residence, photograph, marital status, driver license number, dates of travel .
. . , place of work or study, and finger prints.” Id. at 16. Bantustans were
“independent” territories created in order to strip black South Africans of their
citizenship, “impos[ing] new identity documents and passports on those who were
denationalized.” Id. at 14. Accord Prop. Balintulo Compl. ¶¶ 171-201 and Prop.
Ntsebeza Compl. ¶¶ 139-160.
17
Pl. Mem. at 6.
18
Prop. Ntsebeza Compl. ¶ 127.
19
Id. ¶ 131.
8
that would allow it to support the South African government’s implementation and
enforcement of apartheid, thereby interfering with U.S. foreign policy.”20 “IBM
repeatedly misled the U.S. government and its own shareholders about the true
nature of its activities in South Africa to circumvent domestic criticism.”21 Finally,
“[a]lthough IBM formally withdrew from South Africa in 1987, it intentionally
continued its support for apartheid and denationalization” by selling its South
African subsidiary to another company, who in essence, continued to operate as an
alter ego, and to use products with IBM’s patents.22 In sum, plaintiffs allege that
“IBM pursued business in South Africa in a manner directly contrary to the intent
of the U.S. embargo and sanctions regime, as well as international law.”23
2.
Allegations Against Ford
“Ford is an American multinational automaker incorporated in the
United States and based in Dearborn, Michigan.”24 “Ford Motor Company of
South Africa Ltd (“Ford South Africa”). . . . was a wholly owned subsidiary of
Ford Motor Company of Canada, Ltd. (“Ford Canada”), which was itself 76%
20
Pl. Mem. at 8-9.
21
Id. at 10.
22
Pl. Mem. at 17-18.
23
Prop. Ntsebeza Compl. ¶ 139.
24
Id. ¶ 66.
9
owned by Ford.”25 “In 1985, Ford merged a subsidiary of Ford Canada with
Amcar Motor Holdings, a unit of the Anglo American Corporation, to form the
South African Motor Corporation (“SAMCOR”). After the merger, Ford had a
42% stake in SAMCOR.”26 Two years later, Ford sold its share in SAMCOR but
“allowed SAMCOR to continue ‘to use its trade name and . . . provided parts,
vehicles, and management assistance.”27
Ford, through Ford South Africa and SAMCOR, “had a long record of
strategic vehicle and parts sales to the South African security forces during
apartheid. Ford’s vehicles were used by the South African security forces to patrol
African townships, homelands, and other areas, as well as to arrest, detain, and
assault suspected dissidents, violators of pass laws, and other civilians.”28 “Despite
[United States] prohibitions [on the sale of cars to South African security forces in
1978], Ford continued to supply vehicles . . . on the basis that the vehicles did not
25
Pl. Mem. at 18.
26
Id. at 18-19.
27
Id. at 19. In 2000, Ford purchased a majority stakehold in SAMCOR,
and renamed it Ford of South Africa. See id.
28
Prop. Balintulo Compl. ¶ 251. For example, “[b]etween 1973 and
1977, Ford sold 128 cars and 683 trucks directly to the South African Ministry of
Defense and 646 cars and 1,473 trucks to the South African police.” Prop.
Ntsebeza Compl. ¶ 84(B).
10
contain parts or technical data of U.S. origin.”29 Plaintiffs further allege that Ford
sold “specialized” vehicles that “were more powerful than . . . other cars, and . . .
were only made for the security forces.”30 Additionally, plaintiffs claim that
“South African police and military regularly visited and entered the [South
African] plants” and that “[e]mployees in the South African plants were disciplined
. . . for anti-apartheid activities outside of work.”31
Plaintiffs allege that Ford made “key decisions about investments,
policy, and operations in South Africa” in the United States, even after “the
tightening of U.S. trade sanctions in February 1978.”32 “Ford’s U.S. headquarters
controlled its major global policies, which applied to South Africa, including
employment policies, ethical business policies, and codes of conduct.”33 “Ford, in
29
Prop. Balintulo Compl. ¶ 258.
30
Prop. Ntsebeza Compl. ¶ 84(F).
31
Pl. Mem. at 24-25.
32
Id. at 20. Plaintiffs allege certain specific examples, such as the
transfer of management personnel between Ford offices in the United States,
Europe, Canada, Asia and South Africa, infusion of capital into the South African
subsidiary, United States design and development of products eventually sold in
South Africa, maintenance of records on South African employees, and
involvement in labor relations and negotiations with foreign plants. See, e.g., Prop.
Ntsebeza Compl. ¶¶ 71-76.
33
Prop. Ntsebeza Compl. ¶ 75. For example, Ford “adopted the
Sullivan Principles regarding operations in South Africa and claimed that it would
implement the principles of non-segregation and equality of wages in its South
11
the United States, decided to and did oppose efforts in the United States and South
Africa that would end sales to the South African Security forces, because doing
otherwise might have harmed Ford’s business interests.”34 “Ford sought to comply
only with the technical letter of U.S. regulations but purposefully shifted supply
chains outside the United States [to Canada and England, specifically] to
circumvent their intent and deliberately support the apartheid government.”35
III.
APPLICABLE LAW
A.
Leave to Amend
Whether to permit a plaintiff to amend a complaint is a matter
“‘within the sound discretion of the district court.’”36 Federal Rule of Civil
Procedure 15(a) provides that leave to amend a complaint “shall be freely given
when justice so requires.”37 Leave to amend should be denied, however, where the
African operations.” Id. ¶ 73(B).
34
Id. ¶ 82.
35
Pl. Mem. at 21.
36
Franconero v. UMG Recordings, Inc., 542 Fed. App’x 14, 17 (2d Cir.
2013) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.
2007)).
37
Fed. R. Civ. P. 15(a).
12
proposed amendment would be futile.38
B.
Presumption Against Extraterritorial Application of the ATS
The Supreme Court’s decision in Kiobel II drastically limits the
viability of ATS claims based on conduct occurring abroad. The Court concluded
that “the presumption against extraterritoriality applies to claims under the ATS, []
that nothing in the statute rebuts that presumption[,] and [that the] petitioners’ case
seeking relief for violations of the law of nations occurring outside the United
States is barred.”39 The Court justified its decision to affirm the Second Circuit’s
judgment by noting that “all the relevant conduct [in Kiobel] took place outside the
United States.”40 However, the Court left open the possibility that certain “claims
[may] touch and concern the territory of the United States . . . with sufficient force
to displace the presumption against extraterritorial application” of the ATS.41
38
See TechnoMarine SA v. Giftports, Inc., – F.3d –, 2014 WL 3408570,
at *9 (2d Cir. July 14, 2014) (“A plaintiff need not be given leave to amend if it
fails to specify . . . how amendment would cure the pleading deficiencies in its
complaint.”). See also Hayden v. County of Nassau, 180 F.3d 42, 53–54 (2d Cir.
1999) (“[W]here the plaintiff is unable to demonstrate that he would be able to
amend his complaint in a manner which would survive dismissal, opportunity to
replead is rightfully denied.”).
39
Kiobel II, 133 S. Ct. at 1669.
40
Id.
41
Id.
13
The operative terms in this discussion – “relevant conduct,” “touch
and concern,” and “sufficient force” – are left undefined by the majority opinion,
except a clarification that “it would reach too far to say that mere corporate
presence suffices.”42 Two concurring opinions – one by Justice Alito, joined by
Justice Thomas, and one by Justice Breyer, joined by Justices Ginsburg,
Sotomayor, and Kagan – offer competing views. Under Justice Alito’s view, the
presumption against extraterritorial application can be rebutted only if conduct
within the United States is itself “sufficient to violate an international law norm.”43
Under Justice Breyer’s view, the presumption can be rebutted if “(1) the alleged
tort occurs on American soil, (2) the defendant is an American national, or (3) the
defendant’s conduct substantially and adversely affects an important American
national interest.”44
The Second Circuit’s opinion in this case – Balintulo v. Daimler –
was the first court of appeals case to interpret these important terms. The court
explicitly rejected Justice Breyer’s formulation.45 First, it concluded that
42
Id.
43
Id. at 1670 (Alito, J., concurring).
44
Id. at 1674 (Breyer, J., concurring).
45
See Balintulo, 727 F.3d at 189.
14
“corporate citizenship” in the United States is an “irrelevant factual distinction[],”
when “all of the relevant conduct occurred abroad.”46 Second, it concluded that
“the compelling American interests in supporting the struggle against apartheid in
South Africa” equally “miss the mark” because the presumption against
extraterritoriality is a question of statutory interpretation, not judicial weighing of
national interests.47
Finally, the court rejected plaintiffs’ argument that defendants’ control
over its foreign subsidiaries or its “affirmative steps in this country to circumvent
the sanctions regime,” including “continu[ing] to supply the South African
government with their products, notwithstanding various legal restrictions against
trade with South Africa,” are sufficient to “tie[] the relevant human rights
violations to actions taken within the United States.”48 The court concluded that
such allegations could only make out a claim of “vicarious liability of the
defendant corporations based on the actions taken within South Africa by their
South African subsidiaries” and “[d]efendants cannot be vicariously liable for that
46
Id. at 190.
47
Id. at 192.
48
Id.
15
conduct under the ATS.”49 Thus, “the ATS does not . . . recognize causes of action
based solely on conduct occurring within the territory of another sovereign . . . and
does not permit claims based on illegal conduct that occurred entirely in the
territory of another sovereign.”50 In sum, Balintulo requires plaintiffs to plead
“relevant conduct within the United States” that itself “give rise to a violation of
customary international law” – in other words, the position adopted by Justice
Alito.51
IV.
DISCUSSION
Despite plaintiffs’ tenacious effort to revive this litigation, the bar set
by the Supreme Court in Kiobel II, and raised by the Second Circuit in Balintulo, is
too high to overcome. Defendants argue, and plaintiffs cannot plausibly deny, that
while the newly proposed allegations are substantially more detailed and specific,
the theories of the American corporations’ liability are “essentially the same as
those in plaintiffs’ existing complaints.”52
Plaintiffs argue that “the two U.S. corporations were integral to the
49
Id. (emphasis added).
50
Id.
51
Id.
52
Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion
for Leave to Amend Their Complaints, at 12.
16
creation, maintenance, and enforcement of the apartheid regime – and its attendant
international law violations” because “[c]ritical policy-level decisions were made
in the United States, and the provision of expertise, management, technology, and
equipment essential to the alleged abuses came from the United States.”53
Although now supported with detailed facts, this theory of liability was already
rejected by the Second Circuit in Balintulo as establishing vicarious liability at
most, and therefore being insufficient to overcome Kiobel II’s presumption against
extraterritoriality. The Balintulo court also rejected plaintiffs’ effort to tie the
international law violations to the “affirmative steps” defendants “took . . . in this
country to circumvent the sanctions regime.”54
Plaintiffs urge this Court to reject Balintulo and follow a recent Fourth
Circuit case, Al-Shimari v. CACI Premier Technology, Inc.55 In Al-Shimari, the
Fourth Circuit concluded that plaintiffs’ claims against an American private
military contractor for abuse and torture during their detention at Abu Ghraib
“touched and concerned” the territory of the United States with sufficient force to
53
Plaintiffs’ Reply Memorandum of Law in Support of Their Motion for
Leave to Amend, at 3-5.
54
Balintulo, 727 F.3d at 192 (“None of these [allegations] ties the
relevant human rights violations to actions taken within the United States.”).
55
– F.3d –, 2014 WL 2922840 (4th Cir. June 30, 2014).
17
rebut the presumption. The Fourth Circuit reached that conclusion because
plaintiffs’ allegations involved “the performance of a contract executed by a
United States corporation with the United States government,” “acts of torture
committed by United States citizens who were employed by an American
corporation . . . . at a military facility operated by United States government
personnel,” and “attempt[s] to ‘cover up’ the misconduct” by the contractors’
managers located in the United States.56 “In addition, the employees who allegedly
participated in the acts of torture were hired . . . in the United States . . . and were
required to obtain security clearances from the United States Department of
Defense.”57
Even apart from my obligation to follow Balintulo as controlling law
in the Circuit and as the law of the case, the facts in Al-Shimari are clearly different
than the facts in this case and involve much greater contact with the United States
government, military, citizens, and territory. Here, any alleged violation of
international law norms was inflicted by the South African subsidiaries over whom
the American defendant corporations may have exercised authority and control.
While corporations are typically liable in tort for the actions of their putative
56
Id. at *9-10.
57
Id. at *10.
18
agents, the underlying tort must itself be actionable. However, plaintiffs have no
valid cause of action against the South African subsidiaries under Kiobel II because
all of the subsidiaries’ conduct undisputedly occurred abroad. Thus, even the AlShimari court implicitly accepted Balintulo’s conclusion that ATS jurisdiction does
not extend “to claims involving foreign conduct by [foreign] subsidiaries of
American corporations.”58
That these plaintiffs are left without relief in an American court is
regrettable. But I am bound to follow Kiobel II and Balintulo, no matter what my
personal view of the law may be. Even if accepted as true, the “relevant conduct”
alleged in plaintiffs’ proposed amended complaints all occurred abroad. Thus,
under the law of the Supreme Court and of the Second Circuit, the claims do not
touch and concern the territory of the United States “with sufficient force to
displace the presumption against extraterritorial application,” and would not
survive a motion to dismiss.59
V.
CONCLUSION
For these reasons, plaintiffs’ motion for leave to amend their
58
Id. (“The[] ties to the territory of the United States [in this case] are
far greater than those considered recently by the Second Circuit in Balintulo v.
Daimler AG.”).
59
Kiobel II, 133 S. Ct. at 1669.
19
complaints is DENIED. All remaining claims against Ford and IBM are
DISMISSED with prejudice. The Clerk of the Court is directed to close this
motion and these cases.
SO ORDERED:
Dated:
New York, New York
August 28, 2014
20
- Appearances Judith Brown Chomsky, Esq.
Law Offices of Judith Brown
Chomsky
Post Office Box 29726
Elkins Park, Pennsylvania 19027
(215) 782-8367
For Plaintiffs Ntsebeza et al.:
Bruce Heller Nagel, Esq.
Jay J. Rice, Esq.
Diane E. Sammons, Esq.
Nagel Rice LLP
103 Eisenhower Parkway
Roseland, New Jersey 07068
(973) 618-0400
Michael F. Osborne, Esq.
56 Keerom Street
Cape Town 08001
South Africa
558-7221
Tyler R. Giannini, Esq.
International Human Rights Clinic
Harvard Law School
Pound Hall Room 401
1563 Massachusetts Avenue
Cambridge, Massachusetts 02138
(617) 495-9362
For Plaintiffs Balintulo et al.:
Michael D. Hausfeld, Esq.
Hausfeld LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
(202) 579-1089
Linda P. Nussbaum, Esq.
Grant & Eisenhofer
485 Lexington Avenue
New York, New York, 10017
(646) 722-8504
Carroll H. Ingram, Esq.
Ingram Wilkinson
P.O. Box 15039
Hattiesburg, Mississippi 39404
(601) 261-1385
Paul L. Hoffman, Esq.
Schonbrun DeSimone Seplow Harris
& Hoffman
723 Ocean Front Walk
Venice, California 90291
(310) 396-0731
For Defendant International
Business Machines Corp.:
Keith R. Hummel, Esq.
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
21
For Defendant Ford Motor
Company:
Jonathan Hacker, Esq.
O’Melveny & Myers LLP
1625 I Street, NW
Washington, DC 20006
(202) 383-5300
22
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