Earlier this month, the District Court for the District of Columbia denied Exxon Mobil's motion to dismiss plaintiffs' claims in Doe I v. Exxon Mobil, a case brought pursuant to the Alien Tort Statute ("ATS"). Plaintiffs allege that Exxon Mobil should be held liable for aiding and abetting human rights abuses committed by members of the Indonesian military. The abuses were allegedly committed while the military was providing security for the company's operations in the Aceh Province of Indonesia in 2000 and 2001.
In September 2014, the District Court had allowed plaintiffs to file for leave to amend their complaint in order to try and demonstrate that the facts of the case sufficiently "touch and concern" the United States so as to overcome the presumption against extraterritoriality that applies to ATS cases pursuant to the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum. In its most recent decision, the District Court found that plaintiffs had pled sufficient facts so as to overcome the presumption with regard to Exxon Mobil Corporation, but not with regard to the company's Indonesian subsidiary.
Noting that the "primary inquiry in deciding whether the presumption against extraterritoriality is displaced is the location of the conduct at issue," the Court found that plaintiffs had made "numerous and detailed allegations" that Exxon Mobil executives based in the United States had made decisions regarding the deployment of military security personnel in Indonesia.
The Court cited the Supreme Court's decision in Morrison v. Nat'l Australian Bank (2010) in stating that "actions that are part of a course of conduct constituting a violation of customary international law are relevant to the congressional focus in passing the ATS and are relevant in determining whether a plaintiff's claims sufficiently touch and concern the United States[.]" Citing the Eleventh Circuit's March 2015 decision in Doe v. Drummond, the Court stated that, in order to displace the presumption against extraterritoriality, there should be "specific, substantial allegations of conduct occurring in the United States that support an ATS cause of action[,]" although the "U.S.-based conduct need not allege a completed tort under the ATS[.]"
Plaintiffs had specifically alleged that Exxon Mobil executives in the United States had received reports that human rights abuses were being committed by security personnel in Indonesia, on Exxon property and using Exxon equipment, prior to the incidents involving the plaintiffs. The Court found that the fact that Exxon Mobil executives knew of past crimes by security personnel "like those at issue in this case satisfies the requirement that the [company] have known the essential elements of the crimes committed and the intent of the principal perpetrators." Thus the mens rea, or state of mind, for aiding and abetting liability has been established.
The Court found that the actus reus for aiding and abetting liability was supported, in part, through plaintiffs' specific allegations of U.S.-based decision-making by Exxon Mobil executives. The Court noted that "these allegations are likely insufficient, without allegations of Indonesia-based conduct, to state a claim for aiding and abetting liability" but "the nature of aiding and abetting liability demonstrates that the site of decision making is relevant to the actus reus of the offense and, therefore, to the extraterritoriality inquiry." Specifically, "[d]ecisions to provide assistance that will have a substantial effect on a violation of customary international law are part of a course of conduct that gives rise to a claim for aiding and abetting under the ATS."
The Court also found, in accordance with the Eleventh Circuit in Drummond and the Fourth Circuit in Al Shimari v. CACI, that a defendant's U.S. citizenship or corporate status is a "relevant consideration" in applying the touch and concern test, although it is not sufficient to establish jurisdiction.
The decision in Doe v. Exxon Mobil is significant in that it found that U.S.-based decision-making, while not necessarily sufficient to state a claim for aiding and abetting, may be sufficient to provide the jurisdictional "hook" that plaintiffs need in order to ensure that ATS claims can be properly brought in U.S. court. It is notable, however, that plaintiffs were able to provide evidence of U.S.-based decision-making on the basis of the types of discovery findings that would not necessarily be available to plaintiffs in seeking to survive a motion to dismiss in future cases. As federal courts continue to determine the parameters of the "touch and concern" standard set forth in Kiobel, this decision is likely to be a key reference point for both plaintiffs and defendants alike.
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