9th Circuit: Falun Gong Can Move Ahead With Human Rights Suit Against Cisco

In Doe I v. Cisco Systems, Inc., (9th Cir., July 7, 2023), the U.S. 9th Circuit Court of Appeals in a 93-page opinion, held that Falun Gong victims of human rights abuses carried out by China can move ahead with claims against Cisco Systems and its executives for their assistance that enabled China to carry out monitoring of Internet activity by Falun Gong members. The court said in part:

Plaintiff-Appellants are practitioners of Falun Gong, a religion originating in China in the 1990s. They allege that they or family members are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials. The alleged abuses, Plaintiffs contend, were enabled by the technological assistance of Defendants, U.S. corporation Cisco Systems, Inc., and two Cisco executives....

Plaintiffs initiated this lawsuit more than a decade ago, alleging that Cisco aided and abetted or conspired with Chinese officials in violation of the Alien Tort Statute, the Torture Victim Protection Act of 1991 ... and other federal and state laws. Specifically, Plaintiffs contend that Cisco, operating largely from its corporate headquarters in California, “designed, implemented and helped to maintain a surveillance and internal security network” for Chinese officials, greatly enhancing their capacity to identify Falun Gong practitioners and ensnare them in a system of physical and mental torture, forced labor, and prolonged and arbitrary detention. 

... We once again recognize aiding and abetting liability under the ATS ... and hold Plaintiffs’ allegations against corporate defendant Cisco sufficient to meet the applicable aiding and abetting standard. We also conclude that this case involves a permissible domestic application of the ATS against corporate defendant Cisco, because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States. Finally, we reverse the district court’s dismissal of the claim under the TVPA against Chambers and Cheung, as the TVPA does provide a private right of action against those who aid and abet torture, and the allegations against [Cisco executives] Chambers and Cheung are sufficient to meet the aiding and abetting standard.

NTD reports on the decision.

Supreme Court Rejects Suit Against 2 US Companies Charging Abetting Child Slavery Abroad

Under the Alien Tort Statute, suits may be brought in U.S. courts by non-citizens to recover damages for human rights abuses that violate international law, if conduct relevant to the statute’s focus occurred in the United States.  The U.S. Supreme Court this morning in Nestle USA, Inc. v. Doe, (Sup. Ct., June 17, 2021), by an 8-1 vote, dismissed an Alien Tort Statute suit, finding insufficient conduct in the United States.  The Court summarized plaintiffs' allegations:

Petitioners Nestlé USA and Cargill are U. S.-based companies that purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. Respondents allege that they were enslaved on some of those farms.

Respondents sued Nestlé, Cargill, and other entities, contending that this arrangement aided and abetted child slavery.

The Court, in an opinion by Justice Thomas, held:

The Ninth Circuit ... let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.”... But allegations of general corporate activity—like decision making—cannot alone establish domestic application of the ATS.

Justices Thomas, Gorsuch and Kavanaugh would have also held that the ATS is merely jurisdictional, and no private right of action has been created by Congress for this conduct.

Justice Gorsuch filed a concurring opinion, joined in parts by Justices Alito and Kavanaugh. Justice Sotomayor, Joined by Justices Breyer and Kagan filed an opinion concurring in part. Justice Alito filed a dissenting opinion.

AP reports on the decision.

1st Circuit RefusesTo Change District Court's Language Criticizing Anti-LGBT Activist

In Sexual Minorities Uganda v. Lively, (1st Cir., Aug. 10, 2018), the U.S. 1st Circuit Court of Appeals refused to purge the opinion of a Massachusetts federal district court of language that harshly criticized the actions of anti-LGBT activist Pastor Scott Lively.  The 1st Circuit said that because Lively had won in the district court, it lacks jurisdiction over an appeal, noting:

federal courts of appeals have no roving writ to review ... a district court's word choices...

The case involved an Alien Tort Statute lawsuit against Lively growing out of his aid to anti-LGBT activists in Uganda. The district court held that there had been insufficient conduct in the United States to support a suit under the ATS. Courthouse News Service reports on the decision.

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.

Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan.  Law.com reports on the decision.

Supreme Court Hears Oral Arguments In Alien Tort Statute Case

Today the U.S. Supreme Court heard oral arguments (full transcript of arguments) in Jesner v. Arab Bank, PLC.  At issue in the case is whether corporations may ever be held liable under the Alien Tort Statute, which allows aliens to sue in U.S. courts for a tort committed in violation of the law of nations or a treaty of the United States. Circuit Courts are split on the issue.  The underlying claims in this lawsuit are described in the petition for certiorari:

Petitioners are victims of terrorist attacks ... that took place between 1995 and 2005 in Israel, the West Bank, and Gaza. In five separate lawsuits ... they alleged that Arab Bank knowingly and intentionally financed this terrorism through activities in New York that led to the suicide bombings and other attacks that caused petitioners’ injuries.... Petitioners also allege that the Bank, through the involvement of its New York branch, knowingly distributed millions of dollars to terrorists and their families on behalf of terrorist front groups.

USA Today reports on today's oral arguments.

Anti-LGBT Activist Appeals ATS Lawsuit That He Won

As previously reported, earlier this week a Massachusetts federal district court dismissed an Alien Tort Statute lawsuit against activist Scott Lively who was sued over his conduct in Uganda helping anti-LGBT activists there.  The court held that there had been insufficient conduct in the United States to support a suit under the ATS.  However the court's opinion harshly criticized Lively's actions, calling them crimes against humanity. Now, in an unusual move, Lively has filed an appeal even though the suit against him was dismissed.  The Notice of Appeal (full text) in Sexual Minorities Uganda v. Lively, (D MA, filed 6/8/2017), says appellant seeks removal from the court's order of "certain extraneous but prejudicial language immaterial to the disposition of the case and which the district court had no jurisdiction to entertain or enter." It also seeks to have supplemental state law claims which the district court dismissed without prejudice to instead be dismissed with prejudice so they cannot be refiled in state court. Liberty Counsel, representing Lively, issued a press release announcing the appeal and describing their objections to the district court's Order:

Judge Ponsor improperly littered his Order with a prolonged tirade against Lively, badly distorting his Christian views and activism, and insulting him with such unbecoming epithets as “crackpot bigot[],” “pathetic,” “ludicrous,” “abhorrent” and numerous others.

No Jurisdiction Under ATS Over Anti-Gay Pastor's Activity In Uganda

In Sexual Minorities Uganda v. Lively, (D MA, June 5, 2017), a Massachusetts federal district court dismissed a suit that had been brought under the Alien Tort Statute against Scott Lively, a pastor and anti-LGBT activist. The court said in part:

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent....  He has tried to make gay people scapegoats for practically all of humanity's ills.... 

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.... 

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries -- however grievous -- occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's .jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason. 

Liberty Counsel which represented Lively issued a press release on the decision describing Lively's activities as "sharing his biblical views on homosexuality during three visits to Uganda...."

Alien Tort Suit Against Turkish Cleric Dismissed

In Ates v. Gulen, (MD PA, June 29, 2016), a Pennsylvania federal district court dismissed an Alien Tort Statute lawsuit (as well as related state law claims) that had been brought by three residents of Turkey against Fethullah Gulen, a Muslim cleric from Turkey presently living in Pennsylvania. Plaintiffs are followers of a Muslim sect known as the Dogan Movement which is critical of Gulen's Anatolian version of Islam.  Plaintiffs claim that Gulen, using influence he wielded over police, prosecutors and judges in Turkey, engaged in a campaign of persecution against plaintiffs, ultimately having them arrested and detained in Turkey for up to 20 months. The court elaborated;

Plaintiffs' action revolves around their key allegation that, in April of 2009, Golen "in effect issued instructions to his followers illegally to misuse the Turkish law enforcement system against the members of the Dogan Movement...."

The court concluded that it lacks jurisdiction under the Alien Tort Statute because there had been insufficient evidence of conduct that "touches and concerns" the territory of the United States to overcome the presumption that the Alien Tort Statute does not have extraterritorial application. The court found that the action is also barred by the act of state doctrine. Wall Street Journal reports on the decision.

Alien Tort Suit Focuses On Sectarian Rivalry In Turkey

A suit seeking damages under the Alien Tort Statute was filed in a Pennsylvania federal district court this week against Muhammed Fethullah Gülen, a Turkish cleric who has lived in the United States since 1998. The complaint (full text) in Ates v. Gulen, (MD PA, filed 12/7/2015) was nominally brought by three individuals who are members of the Sunni Muslim Dogan Movement, an Anatolian offshoot of the rival Nur Movement.  However according to BuzzFeed News, the Turkish government is behind the lawsuit because Gulen is now an archrival of President Recep Tayyip Erdogan.

According to the complaint:

Over the course of the past two decades, Mr. Gülen has implemented a political strategy of encouraging his followers to secure official positions within the official Turkish state apparatus – notably in police, prosecutorial and judicial positions – through whom he is able to exercise a corrupt influence in Turkish society....

Defendant intentionally ordered the coordinated, systematic attack on members of the Doğan Movement because of that group’s religious beliefs and public criticism of Defendant. Defendant ordered his co-conspirators in Turkey to use their high level positions in Turkish law enforcement to identify members of the Doğan Movement, plant evidence, and target them for arrest and incarceration.

 The complaint also alleges:

Mr. Gülen has an international following estimated to approach 10 million people. He has developed a vast network of businesses and non-governmental organizations that supply him with financial support, and he is estimated to control at least $25 billion in assets. In the United States, Mr. Gülen controls dozens of business entities and more than 120 charter schools in various states, many of which are or have been under investigation by state and federal criminal and regulatory authorities.

2nd Circuit Affirms Dismissal of Class Action By Sikh Victims of 1984 Riots In India

In Sikhs for Justice, Inc. v. Gandhi, (2d Cir., Aug. 25, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a putative class action on behalf of victims of 1984 anti-Sikh riots in India brought against Sonia Gandhi, president of India's ruling political party.  Claims under the Alien Tort Statute were dismissed because all relevant conduct took place outside the United States. Torture Victim Protection Act claims were dismissed on standing grounds.  The court added:

Moreover, plaintiffs failed to plausibly allege that defendant is liable for the anti-Sikh riots. At best, the amended complaint alleges that certain attacks were carried out on defendant’s “orders,” and that defendant was present at one of several meetings at which the riots were planned.

Suit Against India's PM Over Role In Anti-Muslim Riots Dismissed

In American Justice Center (AJC), Inc. v. Modi, (SD NY, Jan. 14, 2015), a New York federal district court dismissed on immunity grounds a suit that was brought against the current prime minister of India over his actions as Chief Minister of Gujarat during anti-Muslim rioting in 2002. The suit was brought under the Torture Victim Protection Act and the Alien Tort Statute.  (See prior posting.) The court accepted the U.S. government's contention that Modi enjoys immunity from suit as a sitting head of a foreign government. The Hindu reports on the decision.

2nd Circuit Dismisses Alien Tort Suit Charging Catholic Orders With Human Trafficking

The U.S. Second Circuit Court of Appeals has dismissed an Alien Tort Statute suit brought against several Catholic religious orders charging human trafficking,  In Ellul v. Congregation of Christian Brothers, (2d Cir., Dec. 8, 2014), the Second Circuit concluded that the Supreme Court's decision last year in the Kiobel case holding that the Alien Tort Statute does not apply extraterritorially requires dismissal of most of plaintiffs' claims.  The remainder must be dismissed on statute of limitations grounds. The suit alleged "shocking violations of internationally accepted norms." As described by the court:

Plaintiffs’ claims stem from an alleged “child migration” program undertaken in the aftermath of World War II.  As part of the scheme, the purpose of which was to populate Australia with “pure white stock” from Britain and “working boys” from Malta..., defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.

Plaintiffs Lose Suit Against Cisco For Developing System Used To Track Falun Gong In China

In Doe I v. Cisco Systems, Inc., (ND CA, Sept. 5, 2014), a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. Cisco created the Golden Shield security system that was used to intercept and track communications of Falun Gong, leading to their apprehension, arrest and torture. The court dismissed plaintiffs claims under the Alien Tort Statute (ATS), holding that the actions were not suffciently related to the territory of the United States to overcome the presumptions against extraterritorial application of the ATS. It dismissed aiding and abetting claims, finding that it was not shown that Cisco had knowledge that its product would be used for torture and forced conversions.  Courthouse News Service reports on the decision.