Fourth Circuit Aligns With Second Circuit: 'Purposeful' Standard Of Mens Rea Required Under Alien Tort Statute

In a decision issued last week, the Fourth Circuit Court of Appeals chimed in on the evolving dialogue in the federal appellate courts regarding the scope of a corporation's aiding and abetting liability under the Alien Tort Statute ("ATS")1. In Aziz et al. v. Alcolac, Inc. et al.,2 the Fourth Circuit held that the ATS imposes liability for aiding and abetting violations of international law only if the attendant conduct is "purposeful". This ruling aligns the Fourth Circuit with recent rulings in the Second Circuit, but splits with authority in the District of Columbia Circuit.

As we previously reported in a series of client alerts,3 a circuit split exists on two key issues regarding liability under the ATS: first, whether the jurisdiction of the ATS is limited to claims against natural persons or extends to corporations; and second, what standard of mens rea is required to find ATS liability.

In October 2009, the Second Circuit in Presbyterian Church of Sudan v. Talisman4 held that plaintiffs bringing claims against a corporation under the ATS must allege that the company acted with the "purpose" of facilitating violations of international law – "knowledge" alone was held insufficient. Less than a year later, the Second Circuit ruled in Kiobel v. Royal Dutch Petroleum Co.5 that the jurisdiction granted by the ATS extends only to civil actions against individuals, not to actions against corporations. Then, just two months ago, the District of Columbia Circuit in Doe VIII v. Exxon Mobil Corp.6 and the Seventh Circuit in Flomo v. Firestone Nat. Rubber Co., LLC7 reached the opposite conclusion finding that corporate liability is available under the ATS. The Exxon court also held that the mens rea required for aiding and abetting liability is the lower "knowledge" standard rather than the Talisman "purposeful" standard.

These splits among several federal courts of appeal make it likely that in the near future the Supreme Court will grant certiorari in an ATS case that presents these issues.

Background of Aziz et al. v. Alcolac, Inc. et al.

Aziz was filed as a class action in 2009 by individuals of Kurdish descent alleging violations of the ATS and Torture Victim Protection Act ("TVPA")8 against corporate defendant Alcolac, Inc. ("Alcolac"), the Republic of Iraq, and additional corporate defendants. During Iraq's armed conflict with Iran in the 1980s, it was widely reported that Iraq engaged in large-scale use of mustard gas and other chemical...