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By Lawrence Hurley
WASHINGTON, Dec 12 (Reuters) - A landmark U.S. Supreme Courtdecision in 2013 that made it all but impossible to sue foreigncompanies in U.S. courts for alleged roles in overseas humanrights abuses is proving to be a boon for U.S. firms too, courtdocuments show.
In the roughly year and a half since the ruling in Kiobel v.Royal Dutch Petroleum Co, U.S. companies such as Chiquita BrandsInternational Inc, IBM Corp and Ford Motor Co have successfully invoked the Supreme Court's reasoning tofend off lawsuits alleging they were involved in human rightsabuses in South Africa, Colombia and elsewhere.
In the seven cases involving U.S. companies that federalappeals courts have decided since the Supreme Court rulings,corporate defendants have won five, according to a Reutersreview of the court documents. Only one ruling was an outrightwin for plaintiffs.
A similar pattern has played out in lower courts, withjudges citing the Kiobel decision in favor of defendants inseven of eight human rights cases involving U.S. companies thathave been decided since the ruling
With rulings tending to favor companies, human rightslawyers are thinking twice before filing new lawsuits. TheReuters review shows only one new human rights lawsuit filedagainst a U.S. company since the ruling came down in April 2013.In the 1990s and 2000s, up to half a dozen cases were filedevery year against U.S. or foreign corporations.
Paul Hoffman, a leading Venice, California-based humanrights lawyer who argued Kiobel for the plaintiffs, said he hasbeen fighting to keep his existing cases alive rather thanplanning new ones. He has been presenting legal argumentsexplaining why the Supreme Court decision does not mean hislawsuits should be dismissed.
"People are waiting to see what the landscape is going tolook like," he said.
Lawyers on both sides of the issue say the Supreme Courtmight yet have to take another case to clarify exactly when U.S.companies can be sued.
TORTURE, MURDER
In the Kiobel case, the court unanimously threw out alawsuit by 12 people from Nigeria that accused British andDutch-based Royal Dutch Shell Plc of aidingstate-sponsored torture and murder.
The court said the law under which the Nigerians brought thecase, the 1789 Alien Tort Statute, was presumed to cover onlyviolations of international law occurring in the United States.Violations elsewhere, Chief Justice John Roberts wrote, must"touch and concern" U.S. territory "with sufficient force todisplace the presumption."
Before the Kiobel ruling in April 2013, the law had been theprimary vehicle for bringing human rights cases for more than 30years, not just in the United States but globally.
"Human rights litigators have lost a significant weapon,"said John Bellinger, a Washington-based lawyer at the Arnold &Porter law firm who has played a prominent role advocating forcorporate defendants. Bellinger was the top legal adviser to theU.S. State Department under President George W. Bush when itfiled briefs in various cases arguing that the scope of the lawshould be pared back.
OTHER OPTIONS
The Supreme Court ruling means human rights lawyers now haveto look more seriously at alternative ways to seek redress foralleged abuses.
Human rights lawyers can sue multinational companies inother countries, which has happened in Canada, the UnitedKingdom, and a handful of other countries, but that option isusually only viable if the defendant is based in one of thosecountries. Bringing suit in a developing country where allegedviolations occurred is often less appealing to plaintiffs, assuch countries often have troubled judicial systems.
In theory, some of the major cases against U.S. companiesfiled before the Supreme Court ruling could go ahead on othergrounds because the lawsuits cite other legal claims.
There is also the possibility that alleged human rightsvictims could sue companies in U.S. state courts, under commonlaw theories of wrongdoing such as assault and battery. But thattoo has its drawbacks for plaintiffs, including a shorter windowin which to file lawsuits, which are often based on allegedconduct that doesn't come to light until years after it occurs.
Also, lawyers on both sides say such cases would lack theheadline-grabbing punch of a case filed under the Alien TortStatute alleging human rights violations.
A limited number of Alien Tort Statute cases could still moveforward in the United States even under the new restrictiveinterpretation.
In the one clear victory for plaintiffs since the SupremeCourt ruling, an appeals court in Virginia said in June thatIraqi nationals who complained of mistreatment at Abu Ghraibprison near Baghdad could sue a subsidiary of U.S.-based CACIInternational Inc, a military contractor that worked atthe site.
Judge Barbara Keenan wrote that the plaintiffs had allegedsufficient connection to the United States to "require adifferent result than that reached in Kiobel." (Reporting by Lawrence Hurley; Editing by Amy Stevens and RossColvin)
