Will Kiobel Grant the Privilege to Commit Human Rights Violations?

Kiobel v. Royal Dutch Petroleum, 132 S.Ct. 472 (2011), has presented the United States Supreme Court with a number of questions regarding the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). The U.S. Court of Appeals for the Second Circuit refused to apply the ATS to Royal Dutch Petroleum. In Kiobel, the facts involved a foreign company acting in a foreign land against foreign plaintiffs – commonly referred to as a “foreign cubed” situation. The Solicitor General, in an Amicus brief, indicated that while the foreign cubed situation (such as is found in Kiobel) causes problems, there are certainly cases where a corporation should be liable under the ATS. In that Amicus brief, the Department of Justice argued that the Second Circuit’s 2-1 ruling is a proper application of the ATS in this particular case, but “insofar as the court addresses whether a corporation can be a proper defendant in a suit under the ATS, the judgment of the court of appeals should be reversed.” The Department of Justice argues that a liberal application of the Second Circuit’s ruling would be in error. In Du v. Cisco, the foreign cubed problem is not an issue. The Solicitor General’s warning regarding the overbreadth of the Second Circuit’s ruling should be heeded. Cisco is a U.S. corporation headquartered in California, which implicates issues irrelevant to the Dutch-based Royal Dutch Petroleum.

All interested parties are awaiting rehearing in the Kiobel case. On February 28, 2012, oral arguments were held in front of the Supreme Court.  A week later, the Supreme Court stated that it would hold additional arguments as to “[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The Obama Administration has urged the courts to use caution in ATS cases, while also acknowledging that the Second Circuit’s position is too broad. The present issue of “extraterritorial application” to foreign corporations has put the Executive Branch on alert, fearing that Kiobel, as well as future cases, could have ramifications throughout the political and foreign policy spectrums of the United States. While President Obama has repeatedly supported ATS application to corporations, his administration has asked “to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country.”

Given its recent opinions, it would be inconsistent for the Supreme Court to grant corporations the privilege to avoid ATS liability. Just one month ago, in American Tradition Partnership Inc. v. Bullock, 567 U. S. ____ (2012) (reaffirming Citizens United v. FEC, 130 S.Ct. 876 (2010)), the Supreme Court held that corporations have the same legal status as people under the First Amendment. If corporations are to be afforded legal benefits as individuals, they should be saddled with the same legal burdens.

As an American corporation, Cisco should have no special privilege to commit human rights violations under the ATS when a private citizen would be liable for the same action. Cisco, as a corporation operating under and availing itself of the laws and protections of the United States, should be accountable to U.S. courts for its actions.

If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward. Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives — let them know how you feel. Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.

Redskins in the Supreme Court

The Redskins’ day in court is soon to come — will the Court determine that the name is racist and offensive, and thus not entitled to trademark protection under the Lanham Act?  If so, what’s a Skins fan (or its Napoleonic owner, Dan Snyder) to do? Frankly, I’m amazed the ‘Skins have held on to the name this long, and I am a lifelong fan.  Part of me says it is a testament to the warrior spirit, and thus a compliment, that a football team would choose to name itself after your race or ethnic group — the Fightin’ Irish come to mind.  But “Redskin” is universally seen as a very derogatory term for a Native American, so the “testament to the warrior spirit” argument breaks down, big time. It is interesting to note that the previous attack on the Redskins’ trademark was thrown out as being time-barred under the doctrine of Laches, but the current assault cites Marshak v. Treadwell, a 2001 3rd Circuit opinion which held that the law allows for trademark cancellation “at any time.”  The author of Marshak?  None other than current Supreme Court Justice Samuel Alito, Jr. Could be interesting . . . http://www.nbcwashington.com/news/sports/Redskins-Trademark-Battle-Goes-to-Supreme-Court-59323632.html and http://legaltimes.typepad.com/blt/2009/09/challenge-to-redskins-name-reaches-supreme-court.html