Chevron Wins an Alien Tort Statute Case - But the Victory May Be Less Important than It Might Seem
By ANTHONY J. SEBOK
|Tuesday, Dec. 02, 2008|
Yesterday, a federal jury in San Francisco rejected every claim made by a group of Nigerians who had sued Chevron for its role in aiding and abetting a brutal 1998 attack by Nigerian government forces. The case, Bowoto v. Chevron, has been watched closely by both supporters and critics of the Alien Tort Statute ("ATS"), the law under which this suit was brought. In this column, I will argue that the verdict is much less significant than it seems, and that critics of the ATS should be wary of reading too much into Chevron's victory.
The Plaintiffs' Allegations: Chevron Assisted a Lethal Nigerian Government Attack
The facts behind Bowoto are sadly familiar. The plaintiffs allege that Chevron substantially assisted forces of the Nigerian military and police, in an attack that occurred against unarmed peaceful protesters on a Chevron oil platform. Two men were killed in that attack, and numerous men were injured. Furthermore, it was alleged that after the attack, at least three protesters were beaten or tortured by the Nigerian military and/or police while in captivity.
Chevron's version of the story is as follows: The company called the Nigerian authorities after its facility was illegally seized by the plaintiffs and others. After three days of fruitless negotiations, the Nigerian authorities decided to recapture the oil platform by force. Chevron admits that it operated helicopters that ferried Nigerian forces to the platform, but denies that it desired or expected lethal force to be used, or desired or expected that anyone would be beaten or tortured after being removed from the facility.
The Legal Proceedings, and the Core Arguments Made by the Two Sides
The plaintiffs filed suit in 1999 and since then, the case has gone through years of pretrial motions and maneuvering. The trial began in October 2008 and took seventeen days. The case was submitted to the jury last week, just before Thanksgiving. It did not take the jury long to decide in favor of Chevron.
What happened? It is always difficult to try to reconstruct the motives behind a jury's verdict, unless one happened to sit through the entire trial, seeing what the jury saw, and then also spoke to the jury afterwards-which I certainly have not done. Still, it seems clear that Chevron mounted a defense on two levels.
First, Chevron argued that it did not knowingly substantially assist the Nigerian forces to the extent that these forces used excessive force in their initial action on the platform and in the forces' subsequent allegedly brutal treatment of the arrested protesters. To prove this point, Chevron had its on-site personnel testify about what they knew about the Nigerian forces in the area. In rebuttal, the plaintiffs, who were ably aided by many leading human rights lawyers and activists, tendered evidence that showed that Chevron paid the local Nigerian forces, provided them with materials and transportation, and knew exactly how ruthless they were.
Second, Chevron argued that it had no choice: Its property was seized by protesters, who, no matter how well-intentioned, had crossed the line into criminal behavior. Chevron's argument to the jury was: "How can we be held liable for calling the police when criminals attacked our property?" The rebuttal by the plaintiffs was that the protest was peaceful; that on the day of the attack the protesters were planning to leave the platform, and Chevron knew that; and that, even if they broke the law, the protesters' law-breaking did not privilege Chevron to use any means it desired to reassert control over their property. The plaintiffs' argument to the jury was: "How can we permit a corporation to use the sort of excessive force in Nigeria that we would never accept in America?"
The Lessons Some Have Tried to Draw from the Drummond and, Now, the Chevron Defense Verdict
This is, to my knowledge, the second corporate liability ATS suit that has gone to trial since the law was given new life in the early '80s, when it was revived from the mothballs of history as a tool to be used by human rights activists against torturers and those who supported genocide in such varied circumstances as World War II and the Balkan wars.
The first such suit occurred in 2007. Drummond, an Alabama company, was handed a victory by a federal jury in Birmingham after it was sued under the ATS for aiding and abetting the murder of union organizers in Colombia. One lesson that some drew from the Drummond case was that weak ATS cases go to trial, while strong ones settle. After all, there have been numerous settlements by major corporations accused of aiding and abetting human rights violations. Hundreds of German, French and American corporations settled suits brought under the ATS for slave labor and genocide arising from the Holocaust. Just recently, too, Unocal settled a suit brought by some of the same lawyers who brought the Chevron case on somewhat similar facts; it involved the use of the Myanmar military against villagers near a pipeline project.
Another lesson that some might draw from the examples of these two recent defense victories at ATS trials is that corporate America may have been too quick to settle in the past. The typical attitude of defense counsel has been that juries will likely have trouble distinguishing between the evil done by host nations, and the responsibility of corporations doing business in those nations. As a result, upon losing any dispositive pretrial motion, unless interlocutory appeal is available, corporations have typically seen settlement as the only practical option. These last two trials, however, may have stiffened the backbone of defense counsel throughout the land.
Why It Is Perilous to Try to Draw General Conclusions about Alien Tort Statute Suits From the Chevron Verdict
Whatever the merits of these theories, I think it would be a mistake to read too much into yesterday's result. The problem with Bowoto is that it was a gigantic California tort suit hitched to a very thin human rights suit. This is not a criticism of the underlying suit-which may have been a very good California tort suit-it is just to say that the plaintiffs' loss does not tell us very much about the current status of the ATS.
The complaint, which was filed in 1999, lists the following alleged violations of customary international law as the basis of the ATS claim: (1) summary execution, (2) crimes against humanity, (3) torture, (4) cruel, inhuman, or degrading treatment, (5) arbitrary arrest and detention, and (6) violation of the rights to life, liberty and security of person and peaceful assembly and association. The common law tort claims alleged were: (1) wrongful death; (2) battery; (3) false imprisonment; (4) assault; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; and (7) negligence per se.
The federal judge went back and forth as to whether any of the alleged ATS violations -- other than crimes against humanity -- could be claimed against a private actor as an aider and abettor, but this is a detail that need not detain us. The federal judge seemed unwilling to take seriously the admonition by Justice Souter in the 2004 Supreme Court decision in Sosa v. Alvarez-Machain that the federal courts must be very selective about which wrongs would be actionable under the ATS. In Sosa, the Court rejected the contention that the plaintiff's kidnapping and one-day detention was the kind of violation of customary international law whose remedy lay in the ATS. It held, instead, that the wrong the suffered by the plaintiff, taking the facts he pled most favorably to him, was that of the tort of false imprisonment, and that his remedy had to be rooted in that common law tort.
In the Chevron case, the actions allegedly performed by the Nigerian forces on the platform when it was recaptured were horrible, in the same way that the shooting of unarmed suspects by metropolitan police forces in the United States is horrible. Redress for excessive force by the police is sometimes had by recourse to common law tort claims, and sometimes by linking common law tort to a statutory civil rights claim for damages, such as those that may be brought under 42 U.S.C. § 1983. But it would be a mistake, I think, to assume that excessive police force rises to a jus cogens wrong like genocide or slave labor.
The claims made by the plaintiffs in Bowoto under California tort law may have been more prosaic, but they were much stronger on the facts and, frankly, they much more closely fit the wrong for which redress was sought. If Chevron knew that as a result of its bringing the Nigerian police to its facility, unarmed men would be shot and jailed without justification, then the company indeed aided and abetted numerous torts such as battery, wrongful death, assault and false imprisonment. Those would have been good claims (had the jury accepted the factual allegations underlying them).
The Plaintiffs' Interesting Choice to Bring Both California Tort Claims and ATS Claims
Why didn't the plaintiffs focus solely on the California tort claims? Why did they build their case around the much weaker ATS claims instead? I can only speculate. But one thing is quite clear: It is not that the damages under the ATS would have been higher-for punitive damages would have been available under California law for the intentional common law torts that were pled.
The answer may have had to do with a strategic decision to avoid dismissal under forum non conveniens - in favor of trying the case in Nigeria. As the federal judge in Bowoto noted, it is not clear that the plaintiffs were required to exhaust their remedies in Nigeria under the ATS. The same is clearly not true when it comes to California common law tort claims. While it is by no means certain that the defendants could have had all the tort claims dismissed in favor of a Nigerian forum, there was no chance at all that the defendants could have secured a dismissal under this theory of the ATS claims. Moreover, since the ATS claims were in federal court, the state claims could be joined to them as a matter of course. Thus, the ATS claims served the purpose of keeping the case in an American forum.
My theory that the ATS claims may have been a tactic to keep the state claims from being sent back to Nigeria to be tried (or not) in a much less hospitable environment for the plaintiffs is just that-a theory. My larger point does not depend on these speculations being true, however. My larger point is simply that the ATS claims were so weak and bore such a marginal relationship to the stronger core claims made against Chevron in Bowoto, that we should be wary about making any predictions about ATS litigation on the basis of the jury's defense verdict in this particular case. A future ATS case with stronger ATS claims could well lead to a substantial plaintiffs' verdict; at a minimum, such a scenario should not be ruled out based on the Chevron case alone.