Plaintiffs Estate of Arturo Giron Alvarez and 773 other Guatemalan nationals filed a civil action against the Johns Hopkins University and four affiliated entities, the Rockefeller Foundation, and Bristol-Myers Squibb Company. The plaintiffs alleged that the defendants subjected them or their family members to medical experiments in Guatemala without their knowledge or consent during the 1940s and 1950s, in violation of the law of nations.
The defendants filed their Motion for Judgment on the Pleadings on the grounds that the Alien Tort Statute, 28 U.S.C. S 1350 (2012), upon which the plaintiffs’ claims are based, does not allow for claims against a corporation. On December 18, 2018, the U.S. District Court for the District of Maryland heard oral argument on the Motion, and in its Memorandum Opinion filed on January 3, 2019, denied the Motion.
Alien Tort Statute
The Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
On April 24, 2018, the U.S. Supreme Court issued a decision in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018), holding that “foreign corporations may not be defendants in suits brought under the ATS,” stating that the ATS “was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.” However, ATS suits against foreign corporations would instead interfere with foreign relations.
In Count I of the Third Amended Complaint, the plaintiffs assert an ATS claim based on the allegation that the defendants, all of which are U.S. corporations, conducted medical experiments on them or their family members without the victims’ knowledge or consent, and thus committed crimes against humanity, in violation of well-established and customary norms of international law. In their Motion, the defendants sought dismissal of the plaintiffs’ ATS claim, the only remaining claim in the case, on the basis of the Supreme Court’s decision in Jesner. The defendants argued that although the Supreme Court’s holding in Jesner explicitly applied to only foreign corporations, its reasoning also establishes that courts may not permit causes of action under the ATS against domestic corporations.
Jesner v. Arab Bank
The Maryland federal court stated that the majority opinion in Jesner expressly did not conclude that there is no ATS liability for all corporations without further action by Congress. The Supreme Court limited its holding to the liability of foreign corporations. The Maryland federal court stated that the view that ATS liability likely cannot be extended to domestic corporations without an amendment of the statute was advanced by only three Justices, and even then, that plurality did not reach a definitive conclusion on this issue. Significantly, the concurring opinions also fail to reach the conclusion that ATS liability may not extend to domestic corporations, and Justices Alito and Gorsuch could have signed on to the plurality opinion that arguably would preclude corporate liability under the ATS for both foreign and domestic corporations, but they chose not to do so.
The Maryland federal court stated, “Where only three Justices engaged in any analysis of this question and did not resolve it, this Court will not conclude that the majority has endorsed the view that general corporate liability must be an international law norm under Sosa in order for ATS claims to be available against domestic corporations.” The Maryland federal court further stated: “Unlike a suit against a foreign corporation as in Jesner, which can cause, and has caused in other cases, diplomatic tension or objections from foreign governments that a suit is an “affront” to their sovereignty, see id. at 1406-07 (majority opinion), suits against U.S. corporations likely will not generate such complaints. Moreover, allowing domestic corporate liability would further the purposes of the ATS, by affording a remedy in U.S. courts to foreign nationals for violations of international law by a U.S. corporation. See id at 1397. Permitting such suits to go forward would thus “promote harmony” rather than “provoke foreign nations.” Id at 1406. Thus, the analysis in Jesner underlying the barring of ATS suits against foreign corporations does not lead to the same result for ATS suits against domestic corporations.”
The Maryland federal court held: “Thus, the Court concludes that Jesner does not bar ATS suits against domestic corporations. Jesner also provides no basis to revisit this Court’s prior ruling, consistent with the first prong of Sosa, that there is an international law norm barring nonconsensua1 medical experimentation on human subjects.”
Source Estate of Arturo Giron Alvarez v. The Johns Hopkins University, Civil Action No. TDC-15-0950.
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