John Doe I v. Nestle, USA

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE I; JOHN DOE II; JOHN DOE No. 10-56739
III, individually and on behalf of
proposed class members; GLOBAL D.C. No.
EXCHANGE, 2:05-CV-05133-
Plaintiffs-Appellants, SVW-JTL
v.
ORDER
NESTLE USA, INC.; ARCHER
DANIELS MIDLAND COMPANY;
CARGILL INCORPORATED COMPANY;
CARGILL COCOA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 2, 2013—Pasadena, California
Filed December 19, 2013
Before: Dorothy W. Nelson, Kim McLane Wardlaw,
and Johnnie B. Rawlinson, Circuit Judges.
Order;
Partial Concurrence and Partial Dissent by Judge
Rawlinson
2 DOE V. NESTLE USA
SUMMARY*
Alien Tort Statute
Vacating the dismissal of a complaint for failure to state
a claim, the panel held that corporations can face liability for
claims brought under the Alien Tort Statute.
The panel held that, in addition, the district court erred in
requiring plaintiffs to allege specific intent in order to satisfy
the mens rea standard. The panel granted plaintiffs leave to
amend their complaint in light of recent authority regarding
the extraterritorial reach of the Alien Tort Statute and the
actus reus standard for aiding and abetting. The panel
remanded the case for further proceedings.
Concurring in part and dissenting in part, Judge
Rawlinson concurred in the order with the exception of the
discussion of the pleading requirements for aiding and
abetting liability under the Alien Tort Statute. She wrote that
a plaintiff must plead that the defendants acted with specific
intent to violate the norms of international law.
COUNSEL
Terrence Patrick Collingsworth, Conrad & Scherer, LLP,
Washington, D.C.; Paul Hoffman (argued), Schonbrun
DeSimone Seplow Harris Hoffman & Harrison, LLP, Venice,
California, for Plaintiffs-Appellants.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. NESTLE USA 3
Craig A. Hoover and Christopher Todd Handman, Hogan
Lovells US LLP, Washington, D.C.; Julie A. Shepard, Jenner
& Block, LLP, Los Angeles, California; Jonathan H. Blavin
and Kristin Linsley Myles, Munger Tolles & Olson, LLP, San
Francisco, California; Brad D. Brian and Daniel Paul Collins,
Munger Tolles & Olson, LLP, Los Angeles, California;
Andrew John Pincus (argued), Mayer Brown LLP,
Washington, D.C.; Lee H. Rubin, Mayer Brown LLP, Palo
Alto, California, for Defendants-Appellees.
Susan Hannah Farbstein, International Human Rights Clinic,
Harvard Law School, Cambridge, Massachusetts, for Amici
Curiae Professors of Legal History.
Marco Simons, Earthrights International, Washington, D.C.,
for Amicus Curiae Earthrights International.
Jennifer M. Green, Human Rights Litigation and International
Advocacy Clinic, University of Minnesota Law School,
Minneapolis, Minnesota, for Amici Curiae Nuremberg
Scholars.
David J. Scheffer, Northwestern University School of Law,
Bluhm Legal Clinic, Center for International Human Rights,
Chicago, Illinois, for Amicus Curiae David J. Scheffer.
Peter Bowman Rutledge, Athens, Georgia, for Amici Curiae
Chamber of Commerce of the United States of America and
The National Foreign Trade Council.
Meir Feder, Jones Day, New York, New York, for Amici
Curiae National Association of Manufacturers and Professors
of International and Foreign Relations Law and Federal
Jurisdiction.
4 DOE V. NESTLE USA
James Evan Berger and Charlene Sun, King & Spalding,
LLP, New York, New York; Rebecca Kelder Myers,
Vandenberg & Feliu LLP, New York, New York; Todd Tyler
Williams, Paul Hastings LLP, New York, New York, for
Amicus Curiae United States Council for International
Business.
William Aceves, California Western School of Law, San
Diego, California, for Amici Curiae International Law
Scholars.
Jonathan Massey, Massey & Gail LLP, Washington, D.C., for
Amici Curiae Nuremberg Historians and International
Lawyers.
ORDER
Plaintiff-appellants appeal the district court’s order
dismissing their First Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). In light of
intervening developments in the law, we conclude that
corporations can face liability for claims brought under the
Alien Tort Statute, 28 U.S.C. § 1350. Kiobel v. Royal Dutch
Petroleum, 133 S. Ct. 1659, 1669 (2013) (suggesting in dicta
that corporations may be liable under ATS so long as
presumption against extraterritorial application is overcome);
Sarei v. Rio Tinto, PLC, 671 F.3d 736, 761 (9th Cir. 2011)
(en banc) (holding that corporations may be liable under
ATS), vacated on other grounds, 133 S. Ct. 1995 (2013); Doe
v. Exxon Mobil Corp., 654 F.3d 11, 41 (D.C. Cir. 2011)
(same), vacated on other grounds, 527 F. App’x 7 (D.C. Cir.
2013); Flomo v. Firestone Natural Rubber Co., 643 F.3d
1013, 1020–21 (7th Cir. 2011) (same). Additionally, the
DOE V. NESTLE USA 5
district court erred in requiring plaintiff-appellants to allege
specific intent in order to satisfy the applicable purpose mens
rea standard. Presbyterian Church of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 259 (2d. Cir. 2009).
Furthermore, we grant plaintiff-appellants leave to amend
their complaint in light of recent authority regarding the
extraterritorial reach of the Alien Tort Statute and the actus
reus standard for aiding and abetting. Kiobel, 133 S. Ct. at
1669; Prosecutor v. Charles Ghankay Taylor, Case No.
SCSL-03-01-A Judgment, at ¶ 475 (SCSL Sept. 26, 2013)
(“[T]he actus reus of aiding and abetting liability is
established by assistance that has a substantial effect on the
crimes, not the particular manner in which such assistance is
provided.”); Prosecutor v. Perisic, Case No. IT-04-81-A
Judgment, at ¶ 36 & n.97 (ICTY Feb. 28, 2013) (holding that
“specific direction remains an element of the actus reus of
aiding and abetting,” but noting that “specific direction may
be addressed implicitly in the context of analysing substantial
contribution”).
Accordingly, the order of the district court is hereby
VACATED, and this case is REMANDED for further
proceedings consistent with this order. This panel retains
jurisdiction over any other appeals in this case.
IT IS SO ORDERED.
6 DOE V. NESTLE USA
RAWLINSON, Circuit Judge, concurring in part and
dissenting in part:
I concur in the Order with the exception of the discussion
of the pleading requirements for aiding and abetting liability
under international law. I am of the view that the Plaintiff
must plead that the Defendants acted with specific intent to
violate the norms of international law. See Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 258
(2d Cir. 2009) (holding that “a defendant may be held liable
under international law for aiding and abetting the violation
of that law by another when the defendant (1) provides
practical assistance to the principal which has a substantial
effect on the perpetration of the crime, and (2) does so with
the purpose of facilitating the commission of that crime”); see
also Aziz v. Alcolac, Inc., 658 F.3d 388, 400–01 (4th Cir.
2011) (“We conclude that adopting the specific intent mens
rea standard for accessorial liability explicitly embodied in
the Rome Statute hews as closely as possible to the Sosa [v.
Alvarez-Machain, 542 U.S. 692 (2004)] limits of requiring
any claim based on the present-day law of nations to rest on
a norm of international character accepted by the civilized
world and defined with a specificity comparable to the
features of the 18th-century paradigms the Supreme Court has
recognized.”) (citation and footnote reference omitted).
The district court “conclude[d] that the ‘purpose’ mens
rea standard is the proper standard to use in Alien Tort
Statute litigation. The less stringent ‘knowledge’ standard
that was originally synthesized by the International Criminal
Tribunal for the former Yugoslavia in Furundzija rests on a
number of premises that, while perhaps acceptable under that
Tribunal’s enacting authority, fail to satisfy the requirements
set forth by the Supreme Court in Sosa.” Doe I v. Nestle,
DOE V. NESTLE USA 7
748 F. Supp. 2d 1057, 1083 (C.D. Cal. 2010). The district
court explained that it was “apply[ing] the dominant approach
taken in the recent international appellate tribunal
decisions . . . requir[ing] that the aider and abettor must know
or have reason to know of the relationship between his
conduct and the wrongful acts.” Id. (citation omitted). The
district court held:
In sum, the Court concludes that the core
definition of aiding and abetting under
international law requires the following. A
person is legally responsible for aiding and
abetting a principal’s wrongful act when the
aider and abettor (1) carries out acts that have
a substantial effect on the perpetration of a
specific crime, and (2) acts with the specific
intent (i.e., for the purpose) of substantially
assisting the commission of that crime.
Id. at 1087–88 (citations omitted). Thus, it appears that the
district court was equating “specific intent” with “purpose”
for pleading an aiding and abetting claim under international
law.1
1
It is not uncommon for the terms “purpose” and “specific intent” to be
utilized by courts as synonymous. See United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (observing that “[i]n
general, ‘purpose’ corresponds to the concept of specific intent, while
‘knowledge’ corresponds to general intent. A person who causes a result
prohibited by common law or statute is said to have acted purposely if he
or she consciously desired that result, whatever the likelihood of that
result ensuing from his or her actions.”) (citations omitted); see also
United States v. Meredith, 685 F.3d 814, 826 (9th Cir. 2012) (“Jury
Instruction 52 defines willfully as an act ‘done voluntarily and
8 DOE V. NESTLE USA
The district court utilized the same analysis as that used
in Presbyterian Church, in which the Second Circuit
observed that “[t]here is no allegation that [the defendant] (or
its employees) personally engaged in human rights abuses;
the allegation is that [the defendant] was complicit in
Government abuses.” 582 F.3d at 257. The Second Circuit
incorporated the standard proposed by Judge Katzmann in his
concurring opinion in a prior case. See id. at 258. The
Second Circuit presented its mens rea standard by holding
that “a defendant may be held liable under international law
for aiding and abetting the violation of that law by another
when the defendant (1) provides practical assistance to the
principal which has a substantial effect on the perpetration of
the crime, and (2) does so with the purpose of facilitating the
commission of that crime.” Id. (citation omitted).
The district court relied upon Presbyterian Church to
determine that the appropriate mens rea standard was
“specific intent (i.e., for the purpose) of substantially assisting
the commission of that crime.” Doe, 748 F. Supp. 2d at1087–88 (citations omitted). In my opinion, the district
court’s reliance was consistent with recent indications from
the Supreme Court urging restraint in applying the Alien Tort
Statute. See Sosa, 542 U.S. at 724–25.
Although I agree that the case should be remanded to give
the Plaintiff the opportunity to amend his Complaint in view
of intervening authority, that authority requires Plaintiff to
meet the specific intent mens rea pleading standard.
intentionally and with the specific intent to do something the law forbids;
that is to say with a purpose either to disobey or disregard the law. . . .’”).