The Supreme Court’s 2018 Jesner v. Arab Bank, PLC decision caused uncertainty for future and ongoing Alien Tort Statute (ATS) litigation in federal courts. In holding that foreign corporations are not subject to liability under the ATS, the Court foreclosed one avenue human rights plaintiffs have sought to use for the past few decades to garner attention, and in some cases receive significant monetary settlements, for the abuses. Further, the Court’s decision cast doubt on whether domestic corporations remain subject to the ATS given the weight the Court placed on separation of powers concerns in its decision. While foreign corporations, and perhaps domestic corporations, can no longer be haled into federal court using the ATS, both the Jesner Court and commentators suggest that plaintiffs are not without a remedy—the corporate officials responsible for the human rights violations remain liable.
This Note argues that suits against corporate officers, directors, and employees raise complicated choice of law issues the Court has avoided addressing in ATS suits against corporations, but courts will be forced to address in suits against individual corporate officials. The Note finds that the choice of law determination on ancillary liability issues will prove outcome determinative in these cases given the different liability laws for corporate officials in different jurisdictions. This factor will create significant uncertainty for courts and litigants about whether cases against corporate officers, directors, and employees can be brought under the ATS, as the Court’s current ATS jurisprudence provides little direction for resolving choice of law issues in ATS cases. The Note proposes that federal courts require the applicable choice of law inquiry to yield the conclusion that U.S. law (state or federal) controls all aspects of the case beyond the substantive allegation of a violation of the law of nations for any suit against a corporate official to be cognizable using the ATS.
The full text of this note may be found by clicking the PDF link to the left.