The light’s out. Now what? Corporate accountability after Doe v. Cisco

When the Supreme Court shuts one door, where do human rights advocates knock next? That was the question Hausfeld presented to leading practitioners in Washington D.C. after Doe v. Cisco closed the Alien Tort Statute (“ATS”) to most corporate human rights claims. 

For nearly half a century, the Alien Tort Statute (“ATS”) was the lighthouse of transnational human rights litigation. Michael Hausfeld, Hausfeld’s Chair Emeritus, called it “an unintended aspirational statute,” a few words passed into law in 1789 that came to gather “all concepts of human morality and human dignity” into a beacon guiding the world’s victims to American courtrooms. In June, the Supreme Court decided Cisco System, Inc. v. Doe.[1] His summary of the result took three words: “The light’s out.”

But plaintiffs’ lawyers are not, by temperament, inclined to sit in the dark. On October 13, Hausfeld hosted “After Doe v. Cisco: The Future of the Alien Tort Statute and Alternative Avenues for Corporate Accountability in a Changing World.” The panel included Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman, who argued Cisco for the Falun Gong victims; Charity Ryerson, Founder and Executive Director of Corporate Accountability Lab; Diana Kearney, Legal Lead at Oxfam America; and Mr. Hausfeld. It was less a wake than a strategy session.

What Cisco Closed, What it Left Ajar

In Cisco, the Court held that causes of action under the ATS go no further than the three historical offenses the First Congress had in mind, and that federal courts may not recognize new ones for violations of other international law norms, closing the door on the use of the ATS against corporations that aid and abet human rights violations. Because, in its view, “ATS cases by their nature implicate foreign policy,”[2] the majority found it “difficult to think of a case in which a court might safely conclude”[3] that a new claim would not carry foreign policy consequences. It also stressed that, “the power to create causes of action belongs to Congress.”[4] The category of permissible new claims, the majority concluded, “is a null set.”[5]

The decision came as a significant loss to the corporate accountability community, which for decades used the ATS to hold companies liable for enabling human rights abuses Justice Sotomayor, dissented, warning that the Court “closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS,” effectively overruling Sosa v. Alvarez-Machain[6] without acknowledging it.[7]

The Court then went further still on the TVPA itself.[8] By an 8–1 margin, it held that the statute does not reach those who aid and abet torture, because Congress did not expressly say it does.[9] Post-Cisco, the only causes of action that survive under the ATS are the three historical “Blackstone” norms—piracy, violation of safe conduct, and infringement of the rights of ambassadors. Earlier decisions, most notably Sosa, recognized these three as the offenses the First Congress had in mind, but left the door to other claims “still ajar subject to vigilant door keeping.”[10] Cisco is the first to declare the list closed: “Today,” the majority wrote, “we close the door that Sosa cracked.”[11]

The more compelling remnant is jurisdictional. Cisco stripped courts of the power to create causes of action under the ATS, but reaffirmed that the statute itself is jurisdictional. That, Mr. Hoffman observed, is “basically back to Filártiga,”[12] which held that the ATS confers subject-matter jurisdiction without deciding where the cause of action comes from. The Cisco plaintiffs are now testing the point on remand, arguing that their state-law claims fall within the ATS’s jurisdictional grant because they are aliens, the claims are grounded in torts, and the underlying conduct violated the law of nations. Cisco counters that the theory revives the very cause of action the Supreme Court rejected. If the plaintiffs prevail, state-law and foreign-law tort claims could still reach federal court through the ATS, keeping international human rights questions before federal judges.

Less comfort is offered through the TVPA. After Mohamad v. Palestinian Authority[13]  removed corporations from its reach, litigators turned to corporate officials.  Now, Ms. Ryerson noted, Cisco has narrowed that path as well. Because the Court read the TVPA to reach only those who directly subject a victim to torture, an executive who supplies the tools of abuse, without directing it, is likely beyond the statute’s reach. Command responsibility likely remains. “But what else? Maybe not much.”

Mr. Hoffman offered a consolation worth underlining: the majority never said international human rights law does not exist, only that, as with the line of cases under Bivens,[14] courts are unwilling to recognize remedies Congress has not expressly provided.

Human Rights Are Torts

But neither Hausfeld, nor the other panelists, appear too surprised, given the history of the ATS, or beat down. “We tend to lose sight that human rights are torts, and torts can be human rights,” emphasized Mr. Hausfeld. Every legal system in the world provides a remedy for wrongs. When Hausfeld compared the jury instructions for secondary liability in Kashef v. BNP Paribas,[15] tried under Swiss law, with those in the Chiquita[16] litigation, tried under Colombian law, he found they were “virtually the same.”

Mr. Hoffman, who, along with a cadre of human rights litigators, has been “hanging onto the ATS by [his] fingernails for the last 20 years,” pointed out that reliance on state torts—implicating foreign law—is not a new strategy. It is the one that has been quietly winning. Chiquita, Doe v. Exxon,[17] and Doe v. Unocal [18] all began as ATS cases. The approach works in part because many foreign legal systems incorporate human rights norms directly into their tort law, so that “you’re litigating a human rights case in a tort case.” Nor is there anything novel about American courts hearing such claims: for some 250 years, Anglo-American courts have treated personal injuries as “transitory” torts, meaning the claim travels with the wrongdoer, so a victim can sue wherever the defendant can be found.[19]

Kashef also shows how a domestic wrong can reach a foreign atrocity. BNP Paribas violated U.S. sanctions to gain access to the U.S. financial system, then used that access to help finance the Sudanese regime’s genocide. The sanctions violation was not the cause of action, but it gave the case a domestic anchor for a human rights harm suffered abroad.

Tort law has its own hazards, the panelists warned—statute of limitations periods are short, and plaintiffs in conflict zones may need years simply to find a lawyer or come to terms with the harm they suffered. California’s Code of Civil Procedure § 354.8[20] is an example of an attempt to answer that problem with a longer limitations period for torts amounting to torture, genocide, war crimes, extrajudicial killing, and crimes against humanity.

Then there is the jury. “Almost every time,” Mr. Hoffman said, “juries have come through in a big way.” Jurors understand human rights violations, and they do not like them. For corporate defendants, liability will not disappear simply because the ATS has been stripped down. 

Charting New Routes: Supply Chains and State Torts

Cisco is only the latest in a line of Supreme Court decisions narrowing the ATS.[21] As the statute narrowed, Corporate Accountability Lab, like many advocates, went looking for its replacement. The Lab now starts with the people harmed instead: West African cocoa farmers, frankincense harvesters in Somaliland, shrimp processing workers in Andhra Pradesh, and sugarcane cutters in the Dominican Republic. Then it asks what legal tools fit their specific harms. The question is no longer which single case to bring, but what holistic strategy to build: tools deployed at every node of the supply chain, from the store shelf to the port to the farm, each complementing the community’s own advocacy.

Ms. Ryerson encouraged the attendees to think about challenging human rights violations at each contact point along the supply chain. Challenging misrepresentations on the store shelves, a consumer protection suit over child labor on Rainforest Alliance-certified farms supplying Hershey led the company to remove the certification from its chocolate bars. At the point of entry into the United States, Section 337 of the Tariff Act[22] can exclude goods made with forced labor from entering the country.[23] It lets a “good guy company go after a bad guy company” before the International Trade Commission for unfair methods of competition in importation. The challenge comes in proving real economic harm to the “good guy”. Ultimately, most 337 matters settle, and settlement, the discussion emphasized, is where the creative remedies live.

Section 307 petitions,[24] another trade tool, which also seek to bar imports made with forced labor, give a further point of leverage. If goods are blocked, the modification process can force a cleanup. At the source, local lawyers file local claims. The aim is a holistic strategy that complements the community’s own advocacy.

State law offers another set of tools. Ms. Kearney made the case for California’s Unfair Competition Law,[25] whose prohibition of “unlawful, unfair, or fraudulent” practices is broadly open to interpretation. The “unlawful” prong allows for the borrowing of federal statutes that lack a private right of action, such as the War Crimes Act or the Genocide Convention Implementation Act. Imagine a Palo Alto company that knowingly builds surveillance technology that an autocratic government or foreign military use to commit atrocity crimes abroad. Extraterritoriality and foreign-affairs preemption defenses could be raised but, in her view, are not necessarily insurmountable. Standing requires economic injury, but an organization that diverts resources in response to the harm qualifies. She also flagged a caveat—fraud-based suits over corporate human rights policies that a company fails to abide by could risk teaching companies that the safest policy is none at all.

Mr. Hoffman is looking closer to home. California’s constitutional right to privacy has a longstanding pedigree and the state Supreme Court, he emphasized, is “stronger than it has ever been on these questions.” In his view, that makes it a more powerful vehicle than federal statutes for spyware and surveillance claims, and it can reach corporations doing business in California that federal law cannot. A taxpayer injunction statute reaches the buyers too: any city using Flock’s surveillance technology can be sued to stop it, and similar suits have already succeeded against municipalities. California claims against ICE data brokers may be viable where Federal options are limited, but remain possible.

Look Abroad, and Learn

As American courts have narrowed their doors, courts in other countries have opened theirs, hearing claims against corporations for abuses committed abroad, including claims against parent companies for harms caused by their overseas subsidiaries. The ATS once made American lawyers exporters of human rights litigation. Now, Mr. Hoffman observed, “we’re looking to them because they’re doing it better.” Ms. Ryerson pointed to common-law courts abroad: Vedanta in the United Kingdom[26] and Nevsun in Canada,[27]  where customary international law is part of tort law and can ground a claim directly against a corporation. Europe’s due diligence statutes add further openings; even without the EU directive’s harmonized civil liability provision, member states may create their own. Mr. Hausfeld cited South African courts recognizing human rights harms as torts, from bread priced higher in poor neighborhoods to untreated silicosis among mineworkers. Lawyers from those mining cases now trade lessons with Colombian litigators through a skill share that grew out of Corporate Accountability Lab’s work. The exchange runs in every direction. A U.S. statute allows discovery in aid of foreign proceedings, so American lawyers can support cases brought abroad, and foreign colleagues can strengthen the ones brought here.

Navigating Without the Lighthouse

The lighthouse that was the ATS may now be dark, but a constellation of tools remains. Cisco was not harmless, but the ATS was never the only instrument. Tort law, foreign law, state statutes, trade remedies, investor pressure, and international mechanisms remain, and together they may reach further than the ATS alone ever did. As Mr. Hausfeld put it, the moment calls for lawyers to be “guardians of those principles and not bystanders.”