Wednesday, February 13, 2008

American Isuzu Motors: United States Files Amicus Brief in Support of Petitioners

On Monday, as anticipated, the Government filed an amicus brief in support of the petitioners in American Isuzu Motors v. Ntsebeza (No. 07-919). The brief is here. In the brief, the Solicitor General argued that the Court should grant the petition on the petitioners' second question presented only: "Whether a private defendant may be sued under the ATS for aiding and abetting a violation of international law by a foreign government in its own territory." Joining the Solicitor General on the brief were State Department Legal Adviser John B. Bellinger, III, Treasury Department Assistant General Counsel for International Affairs Russell Munk, and Commerce Department General Counsel John J. Sullivan. Appended to the brief were diplomatic communications from the Governments of Germany, South Africa, Switzerland, and the United Kingdom expressing concern with the Second Circuit's decision in this case, particularly what they characterize as its extraterritorial effects, and requesting the U.S. Government's intervention on behalf of the petitioners at the Supreme Court. Here's an excerpt from the brief (all but one citation omitted):

The court of appeals’ decision allows an unprecedented and sprawling lawsuit to move forward and represents a dramatic expansion of U.S. law that is inconsistent with well-established presumptions that Congress does not intend to authorize civil aiding and abetting liability or extend U.S. law extraterritorially. The decision does so, moreover, in an area fraught with foreign relations perils, where “judicial caution” is especially appropriate before “exercising innovative authority over substantive law.” Sosa, 542 U.S. at 726. The consequence is to invite lawsuits challenging the conduct of foreign governments toward their own citizens in their own countries - conduct as to which the foreign states are themselves immune from suit - through the simple expedient of naming as defendants those private corporations that lawfully did business with the governments. Such lawsuits inevitably create tension between the United States and foreign nations, as the present litigation demonstrates.

This Court should grant certiorari on the second question presented to review the court of appeals’ extension of the ATS to encompass claims of aiding and abetting a foreign state’s violation of international law in its own territory. Although the court left open the possibility that the district court might yet dismiss the lawsuit based on “case-specific prudential doctrines,” it has categorically held that “a plaintiff may plead a theory of aiding and abetting liability under the [ATS].” That holding invites similar lawsuits to be filed and will preclude their early dismissal, which, in turn, will undermine efforts to encourage foreign investment.