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licci v lebanese canadian bank: 2nd circuit follows its decision in kiobel that there is no corporate liability for alien tort statute claims August 24, 2016

Posted by Bradley in : mgl , trackback

From the judgment in Licci et al. v. Lebanese Canadian Bank, SAL:

We conclude that Plaintiffs’ complaint alleges conduct by LCB that touched and concerned the United States, and that the same conduct, upon preliminary examination, states a claim for aiding and abetting Hezbollah’ violation of the law of nations, with sufficient force to displace the presumption against extraterritoriality. ccordingly, Plaintiffs have surpassed the jurisdictional hurdle set forth in Kiobel II, 133 S. Ct. at 1669… Nevertheless, Kiobel I forecloses Plaintiffs’ claims against LCB. In Kiobel I, we established that the law of nations, while imposing civil liability on individuals for torts that qualify under the ATS, immunizes corporations from liability. Kiobel I, 621 F.3d at 120. Specifically, Kiobel I held that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS….. Neither party disputes that LCB is a corporation. Accordingly, we cannot exercise subject matter jurisdiction over Plaintiffs’ ATS claims pursuant to that statute.”

Memo to file: incorporate before aiding and abetting such a tort. A footnote in the judgment discussing the Court’s earlier decision not to reconsider Kiobel I (on the basis that cases excluded by the Supreme Court’s Kiobel II decision would be “largely co-extensive” with the cases excluded under this no corporate liability approach) notes:

This case, in which defendants are accused of domestic acts that aided and abetted torts committed abroad, may illustrate a category of cases that surpass Kiobel II’s extraterritoriality inquiry but do not survive Kiobel I’s bar on corporate liability. At present, how large a class of cases that may be is difficult to know.

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