In re Arab Bank, PLC Alien Tort Statute Litigation

808 F.3d 144

December 17, 2015
United States Court of Appeals, Second Circuit
Ponente: SACK, Circuit Judge

FACTS: The plaintiffs in this case filed five separate lawsuits between 2004 and 2010 in the United States District
Court for the Eastern District of New York against the defendant, Arab Bank, PLC. The plaintiffs are aliens who were
injured or captured by terrorists overseas, or family members and estate representatives of those who were injured,
captured, or killed. The plaintiffs seek judgments against Arab Bank, PLC — a bank headquartered in Jordan with
branches in various places around the world — for allegedly financing and facilitating the activities of organizations
that committed the attacks that caused the plaintiffs' injuries.

The plaintiffs allege violations by Arab Bank of the Anti-Terrorism Act (the "ATA"), the Alien Tort Statute, 28
U.S.C. § 1350 (the "ATS"), and federal common law. The ATS differs from the ATA in that, among other things, it
provides jurisdiction only with respect to suits by "aliens," while the ATA provides jurisdiction only for suits by
"national[s] of the United States."

The district court ruled that the plaintiffs cannot bring claims against corporations under the ATS following the ruling
of Kiobel I. The plaintiffs appeal the decision, arguing that in light of the Supreme Court's decision in Kiobel II,
Kiobel I is no longer "good law," or at least, does not control this case. The plaintiffs also contend that the facts
alleged sufficiently touch and concern the territory of the United States as required under Kiobel II to support
jurisdiction.

ISSUE: Whether Kiobel II overruled Kiobel I

HELD: No, Kiobel I is still good law. While the Supreme Court, in Kiobel II, appears to suggest that the ATS allows
for some degree of corporate liability, it chose to affirm Kiobel I on extraterritoriality grounds without reaching the
corporate liability question. The two decisions are not logically inconsistent

Regarding corporate liability, Kiobel I held that federal courts lack jurisdiction over ATS suits against corporations; as
to extraterritoriality, Kiobel II held that federal courts lack jurisdiction over ATS suits based solely on extraterritorial
conduct unless that conduct sufficiently touches and concerns the territory of the United States. Taken together, they
require that if either the defendant in an ATS suit is a corporation, or the ATS suit is premised on conduct outside the
United States that does not sufficiently touch and concern the territory of the United States, or both, the federal court
in which the suit was brought lacks jurisdiction.

The Appellate Court further opines: “We think that one panel's overruling of the holding of a case decided by a
previous panel is perilous. It tends, in our view, to degrade the expectation of litigants, who routinely rely on the
authoritative stature of the Court's panel opinions. It also diminishes respect for the authority of three-judge panel
decisions and opinions by which the overwhelming majority of our work, and that of other circuits, is accomplished.
We will leave it to either an en banc sitting of this Court or an eventual Supreme Court review to overrule Kiobel I if,
indeed, it is no longer viable.”