UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 4, 2011
ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER LATE HUSBAND, DR. BARINEM KIOBEL, BISHOP AUGUSTINE NUMENE JOHN-MILLER, CHARLES BARIDORN WIWA, ISRAEL PYAKENE NWIDOR, KENDRICKS DORLE NWIKPO, ANTHONY B. KOTE-WITAH, VICTOR B. WIFA, DUMLE J. KUNENU, BENSON MAGNUS IKARI, LEGBARA TONY IDIGIMA, PIUS NWINEE, KPOBARI TUSIMA, INDIVIDUALLY AND ON BEHALF OF HIS LATE FATHER, CLEMENTE TUSIMA, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,
ROYAL DUTCH PETROLEUM CO., SHELL TRANSPORT AND TRADING COMPANY PLC, DEFENDANTS-APPELLEES-CROSS-APPELLANTS, SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA, LTD., DEFENDANT.
Kiobel v. Royal Dutch Petroleum
At a stated term of the United States Court of Appeals 7 for the Second Circuit, held at the Daniel Patrick Moynihan 8 United States Courthouse, 500 Pearl Street, in th City of 9 New York, on the 4th day of February, two thousand eleven.
PRESENT: DENNIS JACOBS,
JOSE A. CABRANES,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Following disposition of this appeal on September
17, 2010, an active judge of the Court, together with a
judge, requested a poll on whether to rehear the case
15 banc. A poll having been conducted and there being
majority favoring in banc review, rehearing in banc
FOR THE COURT CATHERINE O'HAGAN WOLFE, CLERK
DENNIS JACOBS, Chief Judge, concurring in the denial of rehearing in banc:
I concur in the denial of rehearing in banc for the
reasons set forth in my opinion concurring in the denial
rehearing by the panel.
Gerard E. Lynch, Circuit Judge, joined by Rosemary S. Pooler,
Robert A. Katzmann, and
Denny Chin, Circuit Judges, dissenting from the denial of rehearing
Because I believe that this case presents a significant issue and
generates a circuit
split, see Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir.
2008), and because I
believe, essentially for the reasons stated by Judge Leval in his
scholarly and eloquent
concurring opinion, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 149 (2d Cir.
2010), that the panel majority opinion is very likely incorrect as
to whether corporations
may be found civilly liable under the Alien Tort Statute for
violations of such
fundamental norms of international law as those prohibiting war
crimes and crimes
against humanity, I would rehear the case en banc. I therefore
KATZMANN, Circuit Judge, dissenting from the denial of rehearing in banc:
In this matter of extraordinary importance, this court divided 5-5
as to whether to proceed
to in banc rehearing. In voting in favor of rehearing this case in
banc, I fully concur in Judge
Lynch's dissent. I make these additional
7 Some of the points of disagreement between the panel majority and Judge Leval relate to 8 the views that I expressed in my concurring opinion in Khulumani v. Barclay National Bank 9 Ltd., 504 F.3d 254 (2d Cir. 2007). In that opinion, I concluded that courts under the Alien Tort 10 Claims Act, 28 U.S.C. § 1350 ("ATCA"), should "determine whether the alleged tort was in fact 11 committed in violation of the law of nations, and whether this law would recognize the 12 defendants' responsibility for that violation." Id. at 270 (Katzmann, J., concurring) (internal 13 quotation marks and citation omitted). In Presbyterian Church of Sudan v. Talisman Energy, 14 Inc., 582 F.3d 244 (2d Cir. 2009), the unanimous panel -- Chief Judge Jacobs, Judge Leval, and 15 Judge Cabranes -- adopted this analysis as the "law of this Circuit," and held that we must look 16 "to international law to find the standard for accessorial liability" under the ATCA, id. at 258-59.
18 I write separately to respond to the contentions by the panel majority that "[my] 19 reasoning in Khulumani leads to the inescapable conclusion" that corporations cannot be liable 20 under the ATCA, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 130 n.33 (2d Cir. 2010), 21 and that Judge Leval's reasoning disregarded my Khulumani opinion by ignoring the rulings of 22 international criminal tribunals with respect to corporate liability, id. at 146-47.*fn1 I disagree. I 23 see no inconsistency between the reasoning of my opinion in Khulumani and Judge Leval's well- 24 articulated conclusion, with which I fully agree, that corporations, like natural persons, may be 25 liable for violations of the law of nations under the ATCA.