DC judge rules that foreign plaintiffs may sue in US courts for alleged wrongdoing by US companies operating overseas, under certain conditions

Ruling may offer plaintiffs a way forward after earlier Supreme Court decision that severely curtailed redress for victims alleging human rights abuses on foreign soil

In a ruling that may shape how US courts are used for international corporate accountability, a judge in Washington this month allowed a group of Indonesian villagers to persist in their claims of human rights abuses against the Texas oil giant Exxon Mobil Corp.

The 15-year-old claims may proceed, the judge found, because the villagers from Aceh province have newly alleged that top figures at the oil company — historically one of the most profitable companies in the world — knowingly hired and supported local military forces who tortured, killed and sexually assaulted the villagers, who have all withheld their names out of fear for their safety.

The company strongly denied the allegations.

The decision by U.S. District Judge Royce C. Lamberth, which was unsealed on Tuesday, came despite a 2013 Supreme Court ruling that had sharply curtailed similar human rights cases against major companies, several of which had foundered in its wake.

In that case, the Supreme Court found against Nigerians suing the Anglo-Dutch oil company Shell, which they accused of aiding and abetting in atrocities including extra-judicial killings in Nigeria. The judgment held that an 18th century law, known as the Alien Tort Statute, could not apply to conduct that did not sufficiently “touch and concern” U.S. territory.

Activists and human rights lawyers decried the 2013 decision as posing a seemingly insurmountable obstacle to cases involving corporate wrongdoing overseas, as it appeared to require that harm in foreign lands be caused by actions occurring exclusively on US soil.

Commentators referred to the “death” of the Alien Tort Statute, which had been widely used to seek redress for wrongdoing in human rights cases abroad since the 1980s. Following the Supreme Court decision, one went so far as to call it a “zombie doctrine.”

But Agnieszka Fryszman, a human rights lawyer representing the Indonesians, told 100Reporters that the Exxon Mobil case was likely the first involving allegations of foreign misconduct by a major company to survive the tests set down in the Nigerian case, known as Kiobel v. Royal Dutch Petroleum.

Judge Lamberth’s decision appears to offer a roadmap for other plaintiffs who may want to use the Alien Tort Statute in the future, Fryszman said.

“He’s an influential trial court judge and he’s one of the first to set out a really comprehensive framework,” she said.

In the 1970s, Exxon Mobil’s predecessor, Mobil Oil, began operating one the largest gas fields in the world in Aceh province on the island of Sumatra, where the company’s presence conflicted with the aims of a violent local independence movement.

By 1994, the gas field was producing about 3.4 billion cubic feet of gas every day, generating hundreds of millions of dollars in revenue. Exxon Mobil is now a minority stakeholder in the operations.

To protect its operations, the company hired the Indonesian military, despite its notoriety for human rights abuses.

The 11 plaintiffs in the case, first filed in 2001, claimed that, in a series of attacks in 2000 and 2001, Indonesian soldiers beat, tortured, shot and killed them or their loved ones, often on suspicion of involvement with the Free Aceh Movement, known as GAM.

One plaintiff identified only as John Doe I, who died in 2003 during a raid on his village, claimed that soldiers shot him in the wrist and then detonated a grenade next to him, leaving him for dead.

Another described being shocked in the genitals with electricity and threatened with execution by being shown a pit containing a pile of human heads.

Another plaintiff described being sexually assaulted while she was pregnant.

In September, Lamberth allowed the plaintiffs to re-file their complaint in light the Kiobel decision and changing legal precedent.

Fryszman said lawyers for the villagers began to review documents released to them by Exxon Mobil during the discovery process and found that the paper trail pointed right to corporate headquarters.

“After Kiobel happened, we reviewed all of those documents and we found that the conduct was really rooted in Houston,” she said.

In November, they added new allegations that company executives and senior managers were well aware of and even involved in what was going on.

“High-level executives in the United States approved the deployment of military security, including the specific locations and tasks to be performed by the military security personnel,” according to the new complaint.

Exxon Mobil received “daily reports” on security matters, officials frequently traveled to the region to address them and company legal counsel approved requests to provide support to the military, the complaint said.

Villager complaints were allegedly forwarded to executives in the United States, where company employees could view a live feed from closed-circuit cameras at the Aceh facility that was streamed over an internal computer network.[quote_box_right]“How do you meet this threshold if you haven’t had this kind of discovery?”-Agnieszka Fryszman[/quote_box_right]

Todd M. Spitler, a company spokesman, said Exxon Mobil rejected the allegations.

“We have fought these baseless claims for many years. The plaintiffs’ claims are without merit,” he wrote in an email.

“While conducting its business in Indonesia, Exxon Mobil has worked for generations to improve the quality of life in Aceh through employment of local workers, provision of health services and extensive community investment. The company strongly condemns human rights violations in any form.”

In allowing some of the defendants claims to go forward, Lamberth said that foreign claims of wrongdoing could be considered under the Alien Tort Statute under a set of conditions, including “substantial and specific domestic conduct.”

Fryszman said that other plaintiffs may not be able to allege “domestic conduct” because their claims may be dismissed before they can learn about it in discovery.

“It worries me that a lot of plaintiffs won’t have that,” she said. “How do you meet this threshold if you haven’t had this kind of discovery?”

Rick Herz, a lawyer at Earth Rights International, which has been involved in other major Alien Tort cases, and previously submitted an appeal brief in favor of the villagers, said a growing body of court decisions was turning against the industry view that foreign conduct was completely barred after Kiobel.

“The corporate view that, unless every aspect of the tort occurs in the United States there can’t be a claim, has been rejected,” he said.

Alan O. Sykes, who is currently teaching tort law at Stanford University, said the way forward proposed by Lamberth may create an uneven playing field, in which companies outside US jurisdiction may be spared the legal liabilities to which American firms would now be exposed.

“This decision by Judge Lamberth sort of swings back the other way a little bit and it may be that American defendants are the only ones who are vulnerable,” he said.

 

Top photo: Indonesian soldiers patrol in a Russian-made BMP-2 armored fighting vehicle at the Exxon owned Arun natural gas fields near Lhokseumawe in Indonesia’s Aceh province, in this April 5, 2001 photo.  (AP Photo/Ed Wray)

Douglas Gillison

Douglas Gillison

Douglas Gillison is a former staff writer for 100Reporters. His investigative projects have included the declassification of 1,300 pages of FBI records from a 1997 political massacre and the exposure of payments by a publicly traded mining company that are now the subject of an international criminal bribery investigation.

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