UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)

JOHN DOE Tet al., )
Plaintiffs, )

)

v. ) Civil No. 01-cv-1357-RCL

)

EXXON MOBIL CORPORATION et al., )
Defendants. )

)

)

MEMORANDUM OPINION

Pursuant to an agreement with the Indonesian government, Exxon Mobil Corporation, a
United States corporation, and several of its wholly owned subsidiaries (hereinafter Exxon)
operated a large natural gas extraction and processing facility in the Aceh Province of Indonesia.
Plaintiffs are Indonesian citizens who claim that Exxon’s security forces engaged in extrajudicial
killing; torture; cruel, inhuman, and degrading treatment; and arbitrary detention in violation of
the Alien Tort Statute (ATS) and committed various common law torts. Now before the Court is
Exxon’s motion to dismiss the ATS claims. Def.’s Mot. to Dismiss the ATS Claims, ECF No. 634.
For the reasons set forth below, the Court declines to recognize domestic corporate liability under
the ATS in circumstances where, as here, the claims have caused significant diplomatic strife. The
Court will therefore dismiss plaintiffs’ ATS claims against Exxon.

Plaintiffs only remaining claims are the claims for wrongful death; battery; assault;
arbitrary arrest, detention, and false imprisonment; negligence, negligent hiring; negligent
supervision; and conversion. Second Am. Compl. J 193-240, ECF No. 465 [hereinafter Second
Am. Compl.]. These tort claims are governed by Indonesian law. Doe v. Exxon Mobil Corp., 527

F. App’x 7, 7 (D.C. Cir. 2013) (vacating Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011),
but expressly preserving the part of the 2011 opinion discussing plaintiffs’ non-federal tort claims);
Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014) (dismissing plaintiffs’ claims for
intentional infliction of emotional distress and negligent infliction of emotional distress).

I. Factual Background

This case arises out of alleged human rights abuses committed at or near natural gas
development facilities operated by Exxon in the Aceh Province of Indonesia in 2000 and 2001.
Second Am. Compl. § 176-86. Plaintiffs allege that they, or their decedents, were detained,
tortured, sexually assaulted, killed, or otherwise abused by Exxon’s paid military security
personnel, who were under Exxon’s direction and control. Jd. The Court must accept the
allegations of the plaintiffs’ complaint as true and construe the complaint in favor of the plaintiffs
at the motion to dismiss stage. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Exxon operated the facilities in the Aceh Province pursuant to an agreement with the
Indonesian government, which granted Exxon exclusive rights to develop and produce natural gas
in the area. Second Am. Compl. f§ 22-35. Plaintiffs claim that Exxon’s security forces were
comprised of members of the Indonesian military. Jd § 33. Security at the facilities was an
enormous concern at the time, as there was an ongoing internal conflict in the Aceh Province.
Exxon and its sibsiciaties, which were incorporated at the time of the first complaint in New
Jersey and Delaware, retained these soldiers as guards for its natural gas facility even though
Exxon was allegedly aware that the Indonesian military had committed human rights abuses in the
past and that performing the security contract would lead to human rights violations by the
Indonesian soldiers against the Aceh residents. /d. J] 33-55.

According to the complaint, the Indonesian military’s actions could be attributed to Exxon

because they were committed by a unit dedicated solely to providing security for Exxon, and
Exxon had the authority “to direct[] and control” the soldiers’ actions. Jd. J] 34-41. Plaintiffs
allege that Exxon’s executives in the U.S. received briefings on abuses committed by Exxon
security personnel in Aceh against the local population. Jd. J] 46-47, 49. Plaintiffs allege that this
information was reported prior to their injuries. Jd. J 45-55. In particular, plaintiffs allege that
Exxon’s executives in the U.S. received reports that Exxon security personnel engaged in rape,
torture, unlawful detention, assault, and killings. Jd. J] 50-51. They also allege that Exxon’s
executives in the U.S. received reports from employees and advisors that the Indonesian military
had a “poor reputation . . . especially in the area of respecting human rights” and that their
deployment in support’ of Exxon’s operations risked “more of a possibility of an unfortunate
incident.” Jd. J 46, 48. Plaintiffs allege that Exxon’s executives in the U.S. received reports that
Exxon security personnel were committing human rights violations on Exxon property, using
Exxon equipment. Jd. J] 50, 52. Also, staff allegedly warned Exxon’s executives in the U.S. that
supplying additional vehicles to the security personnel could lead to a greater likelihood of abuses
by security personnel. Jd. § 70. Plaintiffs allege that U.S.-based Exxon executives nevertheless
ordered the provision of supplies and vehicles for the Indonesian security personnel and that the
underlying international law violations were committed using these supplies and vehicles. Id. {J
43, 89-91.
Il. Procedural History

Judge Oberdorfer, who initially presided over this case, dismissed all of plaintiffs’ ATS
claims in 2005 following the Supreme Court’s decision in Sosa, reasoning in part that adjudicating
such claims could create diplomatic friction with Indonesia. See Doe v. Exxon Mobil Corp., 393
F. Supp. 2d: 20, 22-27 (D.D.C. 2005). In response to Judge Oberdorfer’s request, the U:S. State

Department had submitted a Statement of Interest in 2002 warning that the lawsuit would “in fact
risk a potentially serious adverse impact on significant interests of the United States, including
interests related directly to the on-going struggle against international terrorism.” Jd. at 22; see
Letter from William H. Taft, IV, Legal Adviser, Dep’t of State, to the Honorable Louis F.
Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court for D.C. 1-2 (July 29, 2002), Amicus Curiae United
States’ Statement of Interest, ECF No. 38 [hereinafter Letter from William H. Taft, IV, Legal
Adviser, Dep’t of State, to the Honorable Louis F. Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court
for D.C. 1-2 (July 29, 2002), ECF No. 38]. The Government of Indonesia also objected to the
litigation in a diplomatic note, stating that Indonesia “cannot accept the extra territorial jurisdiction
of a United States court over an allegation against an Indonesian government institution, eq [sic]
the Indonesia military, for operations taking place in Indonesia.” Jd. The concerns about diplomatic
strife with Indonesia, among other reasons, led Judge Oberdorfer to dismiss the ATS claims against
Exxon. /d. at 22-27.

Plaintiffs appealed Judge Oberdorfer’s dismissal of the ATS claims to the D.C. Circuit.
Exxon argued for the first time that a corporation is immune from liability under the ATS in a
cross-appeal. Doe v. Exxon Mobil Corp., 654 F.3d 11, 15 (D.C. Cir. 2011), vacated, 527 F. App’x
7 (D.C. Cir. 2013). The D.C. Circuit reversed and restored the ATS claims in 2011. Jd. The D.C.
Circuit held that the ATS generally permitted corporate liability, over then-Judge Kavanaugh’s
dissent. Jd. at 39-57, 71-91. This opinion was vacated in 2013 based on intervening changes in
the law governing the extraterritorial reach of the ATS and the standard for aiding and abetting
liability. Doe, 527 F. App’x at 7 (D.C. Cir. 2013).

Exxon again argued that corporations may not be held liable for causes of action arising
under the ATS in 2015. Doe v. Exxon Mobil Corp., No. CV 01-1357, 2015 WL 5042118, at *2

(D.D.C. July 6, 2015). This Court rejected this argument based on the reasoning provided in the
D.C. Circuit’s 2011 opinion. Jd. This Court reasoned that the D.C. Circuit’ s opinion on the
matter was vacated because of issues unrelated to the question of corporate liability under the
ATS, so there was no basis to revisit the question at that time. /d. But the 2015 opinion did
dismiss the claim for disappearance under the ATS because this claim was not a “specific,
universal, and obligatory” norm under customary international law. Id. at *4.

Shortly after the Supreme Court granted the petition for certiorari in Jesner v. Arab
Bank, 138 S. Ct. 1386 (2018), the parties jointly proposed a stay until Jesner was decided. Joint
Notice of Filing of Proposed Scheduling Order, ECF No. 625. The Court agreed. Scheduling
Order, ECF No. 630.

In April 2018, the Supreme Court issued its most recent ATS decision in Jesner. 138 S. Ct.
at 1386. The Court categorically foreclosed ATS liability for foreign corporations. Jd. Exxon
contends that the Jesner Court’s rationale and the various opinions of the five Justices comprising
the majority in that opinion are not limited to foreign corporations. Def.’s Mot. to Dismiss the ATS
Claims, ECF No. 634. Exxon argues Jesner should be read to extend to domestic corporate liability
under the ATS in circumstances where such claims threaten, or have already created, diplomatic
strife. Jd. This led Exxon to bring its present motion to dismiss the ATS claims. /d.; Mot. to Set a
Briefing Schedule and Stay Further Proceedings, ECF No. 631. The Court stayed all further
proceedings pending the resolution of this motion to dismiss. Order, ECF No. 632.

If. Discussion

A. The Alien Tort Statute

The ATS provides: “The district courts shall have original jurisdiction of any civil action
by an alien for a tort only, committed in violation of the law of nations or a treaty of the United

States.” 28 U.S.C. § 1350. The ATS is merely a jurisdictional grant. Sosa v. Alvarez-Machain, 542
U.S. 692, 713-14 (2004). The statute, which was passed by the First Congress, does not provide a
statutory cause of action or explain the definition of a cause of action for violations of international
law. Id.

The Supreme Court has articulated the historical backdrop that created the impetus for
passing the ATS. Under the Articles of Confederation, the Continental Congress lacked authority
to “cause infractions of treaties, or of the law of nations to be punished.” Jd. at 716 (quoting J.
Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)). Concerns with the
international relations tensions resulting from the lack of ability to punish violations of treaties and
the law of nations “persisted through the time of the Constitutional Convention.” Jd. at 717. The
inability of the central government under the Articles of Confederation to ensure adequate
remedies for foreign citizens caused’ substantial foreign relations problems. Jesner, 138 S. Ct. at
1396. In 1784, the French Minister lodged a formal protest with the Continental Congress after a
French adventurer assaulted the Secretary of the French Legion in Philadelphia. Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 120 (2013). In 1787, a New York constable caused an
international incident when he entered the Dutch Ambassador’s house and arrested one of his
diplomatic servants. Jd. Under thé Articles of Confederation, “there was no national forum
available to resolve disputes like these under any binding laws that were or could be enacted or
enforced by a central government.” Jesner, 138 S. Ct. at 1396.

The Framers addressed these issues at the 1787 Philadelphia Convention. /d. Article III of
the Constitution extends federal judicial power to “all cases affecting ambassadors, other public
ministers and consuls,” and “to controversies . . . between a state, or the citizens thereof, and
foreign states, citizens, or subjects.” U.S. Const. art. II, § 2. The First Congress passed the

Judiciary Act of 1789 to implement these constitutional provisions. The Judiciary Act of 1789
authorized federal jurisdiction over suits involving disputes between aliens and U.S. citizens and
suits involving diplomats. Judiciary Act of 1789, ch. 20, §§ 9, 11, 1 Stat. 73, 76-79. The Judiciary
Act also included what is now known as the ATS. Id. § 9.

Although the ATS is “strictly jurisdictional,” the Supreme Court has recognized that it
“was not enacted to sit on a shelf waiting further legislation.” Jesner, 138 S. Ct. at 1398 (citing
Sosa, 542 U.S. at 713-14). Instead, Congress enacted it with the understanding that the common
law would provide causes of action for a modest number of international law violations. Sosa, 542
US. at 724.

In the 18th century, international law primarily governed relationships between and among
nation-states. Jesner, 138 S. Ct. at 1397. But international law governed individual conduct
occurring outside national borders in a few instances. Id.; Sosa, 542 U.S. at 714-15. There was
also a narrow domain in which “rules binding individuals for the benefit of other individuals
overlapped with the norms of state relationships.” Sosa, 542 U.S. at 715. Blackstone understood
this sphere to include “three specific offenses against the law of nations addressed by the criminal
law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy.”
Id. (citing 4 William Blackstone, Commentaries on the Laws of England 68 (1769)).: “It was this
narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time
threatening serious consequences in international affairs, that was probably on the minds of the
men who drafted the ATS.” Jd.

The ATS’s primary objective, when first enacted, was to avoid foreign entanglements by
ensuring that a federal forum was available where the failure to provide a forum might cause
another nation to hold the U.S. responsible for a foreign citizen’s injury. Jd. at 1397; see Kiobel,

569 U.S. at 123-24; Sosa, 542 U.S. at 715-19.
B. Sosa, Kiobel, and Jesner

 

In the nearly eighteen years since plaintiffs filed this action under the ATS, the Supreme
Court has drastically curtailed the scope and reach of the ATS. In Sosa, the Court narrowed the
types of claims that could be recognized under the ATS to only those that are “specific, universal,
and obligatory” under customary international law norms. Sosa, 542 U.S. at 732. The only claims
that federal courts should recognize under the ATS are those that are widely recognized by the
civilized world as violations of international norms and can be defined with the same specificity
as the “historical paradigms familiar when § 1350 was enacted,” such as norms concerning safe
conducts, rights of ambassadors, and piracy. Jd. The Sosa Court explained that “the determination
whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably
must)’ involve an element of judgment about the practical consequences of making that cause
available to litigants in the federal courts.” /d at 732-33. Further, “a related consideration is
whether international law extends the scope of liability for a violation of a given norm to the
perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Jd.
at 732 n.20. The Court also stressed that ATS litigation implicates serious separation of powers
and foreign relations concerns. Jd. at 727-28.

In Kiobel, the Court barred any extraterritorial application of the ATS unless the claims
“touch and concern” the territory of the United States with sufficient force to displace the
presumption against extraterritoriality. Kiobel, 569 U.S. at 124-25.

The Supreme Court recently addressed the scope of the ATS again in Jesner. In Jesner,
foreign nationals who were allegedly victims of terrorist attacks abroad sued Arab Bank, a foreign
corporation based in Jordan, under the ATS alleging the Bank’s officials allowed the Bank to be

used to transfer funds to terrorist groups, which enabled or facilitated the terrorist acts. 138 S. Ct.
at 1393-95. The Court held that foreign corporations could not be sued under the ATS. /d. at 1407.
The Court emphasized that the ATS was enacted “to avoid foreign entanglements by ensuring the
availability of a federal forum where the failure to provide one might cause another nation to hold
the United States responsible for an injury to a foreign citizen.” Jd. at 1397. ATS litigation raises
serious separation of powers and foreign relations concerns, and therefore must be “subject to
vigilant doorkeeping.” Jd. at 1398. The Court expressed great reluctance to extend judicially

coe

created private rights of actions. Jd. at 1402-03. The litigation in Jesner had ‘““caused significant
diplomatic tensions’ with Jordan, a critical ally in one of the world’s most sensitive regions.”
Jordan considered the litigation to be a “grave affront” to its sovereignty. Jd. at 1406-07. The
Supreme Court recognized that courts should generally refrain from creating or extending new
grounds for lawsuits, especially when such a determiriation would trigger serious foreign policy
consequences, and should instead defer such decisions to the legislative and executive branches.
Id. at 1402-03, 1406-07. “The political branches, not the Judiciary, have the responsibility and
institutional capacity to weigh foreign-policy concerns.” Jd. at 1403. This led the Court to
determine that foreign corporations may not be defendants in ATS suits.

A plurality in Jesner would have applied the two-part test established in Sosa. Id. at 1399;
see Sosa, 542 U.S. at 732-33. First, courts must ask whether a plaintiff can demonstrate that the
alleged violation is a norm that is specific, universal, and obligatory. Jesner, 138 S. Ct. at 1399;
see Sosa, 542 U.S. at 732. Second, even if there is a specific norm under international law that is
controlling, courts must determine whether allowing the case to proceed under the ATS is a proper

exercise of judicial discretion, “or instead whether caution requires the political branches to grant

specific authority before corporate liability can be imposed.” Jesner, 138 S. Ct. at 1399; see Sosa,
542 U.S. at 732-33, 732 n.20, 733 n.21. Justice Kennedy in the plurality opinion acknowledged
that these two inquiries inform each other. Jesner, 138 S. Ct. at 1399.

The Sosa Court stated that a consideration related to whether an international norm is
sufficiently definite to support a cause of action is “whether international law extends the scope of
liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private
actor such as a corporation or individual.” Sosa, 542 U.S. at 732 n.20. The plurality in Jesner read
this footnote to likely mean the Court must ask whether there is an international law norm imposing
liability on corporations for their employees’ actions that violate fundamental human rights.
Jesner, 138 S. Ct. at 1399-1401. Therefore, international law must inform the determination of
which subjects can be held accountable in addition to the conduct that is prohibited. While
international law now imposes duties on individuals as well as nation-states, the plurality
determined that “[i]t does not follow ... that current principles of international law extend
liability—civil or criminal—for human-rights violations to corporations or other artificial
entities.” Jd. at 1400. International criminal tribunals’ charters, from the Nuremberg Tribunal to
more recent international tribunals, often exclude corporations from their jurisdictional reach. See
id. at 1400-01. This led the plurality in Jesner to conclude “[t]he international community’s
conscious decision to limit the authority of these international tribunals to natural persons counsel
against a broad holding that there is a specific, universal, and obligatory norm of corporate liability
currently prevailing in international law.” Jd. at 1401.

The plurality acknowledged that corporations are often subject to liability for their
employees’ conduct in the American legal system, which may make it “seem necessary and natural
that corporate entities are liable for violations of international law under the ATS.” Jd. at 1402.

Further, the plurality recognized that “the enormity of the offenses that can be committed against

10
persons in violation of international human-rights protections can be cited to show that
corporations should be subject to liability for the crimes of their human agents.” Jd. However,

the international community has not yet taken that step, at least in the specific,

universal, and obligatory manner required by Sosa. Indeed, there is precedent to the

contrary in the statement during the Nuremberg proceedings that “[c]rimes against
international law are committed by men, not by abstract entities, and only by
punishing individuals who commit such crimes can the provisions of international

law be enforced.”

Id. (quoting The Nurnberg Trial, 6 F.R.D. 69, 110 (1946).

While the petitioners in Jesner argued that corporate liability is a remedial consideration
left for determination under domestic law rather than a substantive principle that must be supported
by a universal and obligatory international norm to be implemented under the ATS, the plurality
found this to be “far from obvious.” Jd. The plurality did not reach a conclusion on “whether
corporate liability is a question that is governed by international law, or, ifso, whether international
law imposes liability on corporations.” Jd. There was sufficient doubt on this point to continue to
the second prong of Sosa’s test—“whether the Judiciary must defer to Congress, allowing it to
determine in the first instance whether that universal norm has been recognized and, if so, whether
it is prudent and necessary to direct its enforcement in suits under the ATS.” Jd.

In analyzing the second prong of the Sosa test, the Jesner opinion stressed the Court’s
reluctance to extend or create private causes of action because “the Legislature is in the better
position to consider if the public interest would be served by imposing a new substantive legal
liability.” Jd. (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)). The plurality then turned
to the Torture Victim Protection Act (TVPA) as a statutory analogue for guidance in interpreting
the boundary of ATS common-law causes of action. /d. at 1403-05. The TVPA is the only cause

of action under the ATS that was created by Congress as opposed to the courts. Jd. at 1403. The

TVPA limits liability to “individuals,” which the Supreme Court in Mohamad y. Palestinian

11
Authority held unambiguously limits liability to natural persons. 556 U.S. 449, 453-56 (2012); see
28 U.S.C. § 1350 note. The plurality in Jesner declared “[t]he TVPA reflects Congress’ considered
judgment of the proper structure for a right of action under the ATS. Absent a compelling
justification, courts should not deviate from that model.” Jesner, 138 S. Ct. at 1403. The plurality
found that

Congress’ decision to exclude liability for corporations in actions brought under the

TVPA is all but dispositive of the present case. That decision illustrates that

significant foreign-policy implications require the courts to draw a careful balance

in defining the scope of actions under the ATS. It would be inconsistent with that

balance to create a remedy broader than the one created by Congress.
Td. at 1404.

Finally, the plurality focused on three practical reasons that counseled against courts
allowing liability under the ATS for foreign corporations. Jd. at 1405-08. First, corporate liability ~
under the ATS is not essential to serve the goals of the statute because the ATS will rarely be the
only way for plaintiffs to hold alleged perpetrators liable and plaintiffs can sue the individual
corporate employees responsible for violating international norms under the ATS. Jd. at 1405.
Second, allowing foreign corporations to be sued under the ATS could establish a precedent “that
discourages American investment abroad, including in developing economies where the host
government might have a history of alleged human-rights violations, or where judicial systems
might lack the safeguards of United States courts.” Jd. at 1405-06. This could deter the corporate
investment that contributes to economic development, which is often an important aspect to
improving human rights. Jd. at 1406. Third, the Court recognized that allowing foreign

corporations to be sued under the ATS risked significant diplomatic strife. Jd at 1406-07.

Ultimately, the plurality believed the political branches were better suited than the Judiciary to

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determine whether corporations should be liable for violations of international law. Id. at 1407-
08.

Justices Alito, Gorsuch, and Thomas each concurred separately. Justice Alito stressed that
creating causes of action against foreign corporate defendants under the ATS would lead to
diplomatic strife, which was what the ATS was intended to prevent. Jd. at 1408-12. Therefore,
Justice Alito believed that judicial caution and the separation of powers required the Court to
decline to extend the ATS to foreign corporate defendants. Jd. Justice Gorsuch cautioned that the
separation of powers requires the Judiciary to refrain from creating new causes of action without
congressional legislation. Jd. at 1412-19. Justice Gorsuch declared “[i]f Sosa is right—and I am
sure it is—that federal courts must ‘inevitably’ exercise ‘an element of judgment’ about delicate
questions of foreign affairs when deciding whether to create a new cause of action, then judges
should exercise good judgment by declining the project before we create real trouble.” Jd. at 1414.
Justice Thomas concurred, stating he agreed with Court’s opinion in full and Justices Alito and
Gorsuch’s concurrences. Jd. at 1408. Justice Thomas wrote that “[c]ourts should not be in the
business of creating new causes of action under the Alien Tort Statute . . . especially when it risks
international strife.” Jd.

The reasoning of the five Justices in Jesner leads this Court to believe it is appropriate to
re-examine whether Exxon can be held liable under the ATS in this suit. See Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (“The objection that
a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own

initiative, at any stage in the litigation, even after trial and the entry of judgment.”) (citations

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omitted); see also Shea v. Clinton, 850 F. Supp. 2d 153, 158 (D.D.C. 2012) (reconsideration may
be granted “where a significant change in the law occurred after the decision was rendered”).

C. Exxon cannot be held liable under the ATS in this case

The Court takes two different approaches to examine whether Exxon can be liable under
the ATS in this case. The first inquiry tracks the portion of Jesner’s analysis that was signed onto
by five justices. Second, the Court analyzes this issue using the approach adopted by the plurality
in Jesner, which looks at both prongs of Sosa’s two-part test. These separate lines of inquiry each
lead this Court to the same conclusion: Exxon cannot be held liable under the ATS in this case.

1. Separation of powers and foreign relations concerns lead the Court to
decline to recognize domestic corporate liability under the ATS in
circumstances where, as here, the claims have caused significant
diplomatic strife

The Supreme Court’s reasoning in Jesner leads this Court to decline to recognize domestic
corporate liability under the ATS in circumstances where, as here, the claims have caused
significant diplomatic strife.

The Supreme Court has been reluctant to extend judicially created causes of action. The
Court has repeatedly stated that the decision of whether to create a private right of action is best
left to the legislative branch. See, e.g., Sosa, 542 U.S. at 727; Correctional Services Corp. v.
Malesko, 534 U.S. 61, 68 (2001); Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001). The Jesner
Court recognized that separation of powers concerns are particularly acute in the ATS context.
Jesner, 138 S. Ct. at 1402. ATS suits such as this one implicate serious foreign relations concerns.
This Court must therefore take seriously the Supreme Court’s command that the federal courts ©

exercise “great caution” before recognizing new forms of liability under the ATS. Sosa, 542 U.S.

at 727; see also Jesner, 138 S. Ct. at 1403. “The political branches, not the Judiciary, have the

14
responsibility and institutional capacity to weigh foreign-policy concerns.” Jesner, 138 S. Ct. at
1403.

This case has caused significant diplomatic strife. The executive branch has repeatedly
explained that adjudication of plaintiffs’ ATS claims against Exxon in this case would harm U.S.
foreign policy interests. In 2002, the State Department filed a Statement of Interest with this Court:

[T]he Department of State believes that adjudication of this lawsuit at this
time would in fact risk a potentially serious adverse impact on significant interests
of the United States, including interests related directly to the on-going struggle
against international terrorism. It may also diminish our ability to work with the
Government of Indonesia (“GOI”) on a variety of important programs, including
efforts to promote human rights in Indonesia. . . .

With respect to this litigation, it is the Department’s considered opinion that
adjudication at this time could adversely affect United States interests in two ways,
recognizing that such effects cannot be determined with certainty. First, the GOI
may respond to the litigation by curtailing cooperation with the United States on
issues ‘of substantial importance to the United States. Second, the litigation’s ~
potential effects on Indonesia's economy could in turn adversely affect important
United States interests.

Letter from William H. Taft, IV, Legal Adviser, Dep’t of State, to the Honorable Louis F.
Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court for D.C. 1-2 (July 29, 2002), ECF No. 38 (internal
footnotes omitted). In 2003, the Department of Justice submitted a Supplemental Statement of
Interest that stressed “[i]t remains the United States’ position that adjudication of this case would
raise foreign policy and national security concerns for the reasons articulated in the State
Department’s letter. Those concerns can be avoided by holding, as the United States contends, that
the ATS does not create an independent right of action.” Suppl. Statement of Interest of the U.S.
2, ECF No. 62. The State Department again reiterated these concerns in a 2005 letter focused on a
proposed discovery plan in this case. Letter from John B. Bellinger, II, Legal Adviser, Dep’t of
State, to the Honorable Louis F. Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court for D.C. 1 July

15, 2005), ECF No. 91-1 [hereinafter ECF No. 91-1]. Indonesia has also submitted letters to the

15
United States, stating that it “cannot accept the extra territorial jurisdiction of a United States court
over an allegation against an Indonesian government institution, eq [sic] the Indonesia military,
for operations taking place in Indonesia.” Letter from Soemadi Brotodiningrat, Ambassador of
Indon., Republic of Indon., to Richard L. Armitage, Deputy Sec’y of State, Dep’t of State (July
15, 2002), ECF No. 244-5 [hereinafter ECF No. 244-5].

The Executive Branch’s foreign policy concerns led Judge Oberdorfer to originally dismiss
plaintiffs’ ATS claims. Exxon Mobil Corp., 393 F. Supp. 2d at 22-27. Exxon then asked the D.C.
Circuit to entertain an interlocutory appeal or to grant a writ of mandamus compelling this Court
to dismiss plaintiffs’ common law tort claims. The D.C. Circuit declined. Doe v. Exxon Mobil
Corp., 473 F.3d 345 (D.C. Cir. 2007). Exxon petitioned for certiorari with respect to the common
law tort claims, and the U.S. governnient filed an amicus brief urging the Supreme Court to deny
the petition. The government’s brief reiterated its position that the District Court “reach[ed] the
result the United States had advocated with respect to respondents’ ATS claims” when it dismissed
those claims. Brief for the United States as Amicus Curiae at 8, 16-18, Exxon Mobil Corp. v. Doe,
554 U.S. 909 (2008) (No. 07-81). The U.S. government’s 2008 brief makes clear the executive
branch opposed plaintiffs’ ATS claims and supported Judge Oberdorfer’s dismissal of those ATS
claims in light of the executive branch’s concerns.

Thus, the executive branch has repeatedly articulated its concern that allowing plaintiffs’
ATS claims to proceed would harm U.S. foreign policy interests. Recently, Indonesia reaffirmed
its position that it considers this litigation to be a severe affront to its sovereignty. Letter from the
Embassy of the Republic of Indon. to W. Patrick Murphy, Principal Deputy Assistant Sec’y for
Southeast Asia, Dep’t of State (Sept. 25, 2018), ECF No. 644 [hereinafter 2018 Letter from the

Embassy of the Republic of Indonesia]. Indonesia has expressed a fear that this litigation will have

16
a negative economic impact on the country and could destabilize hard-won peace and
reconciliation efforts in the Aceh Province. See id; ECF No. 91-1, at 2; ECF No. 244-5;
Diplomatic Note No. 120/II/07/05/DN (Feb. 1, 2007), Ex. O, John Doe VIII v. Exxon Mobil Corp.,
658 F. Supp. 2d 131 (D.D.C. 2009) (No. 07-1022), ECF No. 20-16 [hereinafter Diplomatic Note
No. 120/II/07/05/DN (Feb. 1, 2007)]; Letter from the Embassy of the Republic of Indonesia to
Kurt Campbell, Assistant Sec’y of State, Dep’t of State (Jan. 24, 2011), John Doe VIII v. Exxon
Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) (No. 09-7125), Doc. No. 1289979 [hereinafter 2011
Letter from the Embassy of the Republic of Indonesia]. Further, Indonesia has repeatedly stated
that this litigation will harm U.S.—Indonesian relations. See 2018 Letter from the Embassy of the
Republic of Indonesia; ECF No. 91-1, at 2; ECF No. 244-5; Diplomatic Note No. 120/1I/07/05/DN
(Feb. 1, 2007); 2011 Letter from the Embassy of the Republic of Indonesia.

The “courts are not well suited to make the required policy judgments that are implicated
by corporate liability in cases like this one.” Jesner, 138 S. Ct. at 1407. As the Supreme Court
recognized in Sosa, Kiobel, and Jesner, judicial caution should lead courts to defer to the political
branches in cases like this, rather than triggering serious foreign policy consequences. Indeed,
foreign policy and national security decisions are delicate and complex, and the Judiciary does not
have the institutional capacity or responsibility to weigh foreign policy concerns. See id. at 1414;
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). Foreign affairs
questions are reserved for the political branches. These separation of powers concerns caution this
Court against recognizing domestic corporate liability under the ATS in circumstances where, as
here, the claims have raised serious foreign relations concerns.

This case has already caused significant diplomatic strife. This is the type of foreign

relations tension the First Congress sought to avoid when passing the ATS. The First Congress

17
enacted the ATS to “provide a forum for adjudicating that ‘narrow set of violations of the law of
nations’ that, if left unaddressed, ‘threaten[ed] serious consequences’ for the United States.”
Jesner, 138 S. Ct. at 1410 (Alito, J., concurring) (quoting Sosa. 542 U.S. at 715). Accordingly, the
ATS’s purpose was to avoid diplomatic tensions. However, these ATS claims against Exxon have
provoked diplomatic strife. Thus, allowing these ATS claims against Exxon to proceed would be
contrary to the fundamental purpose of the ATS. The Court must decline to extend a judicially
created cause of action to Exxon in this case.

2. Sosa’s two-part test requires the Court to find that Exxon cannot be held
liable under the ATS

Both prongs of Sosa’s two-part test require the Court to decline to recognize domestic
corporate liability under the ATS in this suit.
a. Sosa’s step one
The Court must determine whether plaintiffs can demonstrate that the alleged violation is
a specific, universal, and obligatory international norm. The Sosa Court specified in a footnote that
“[a] related consideration is whether international law extends the scope of liability for a violation
of a given norm to the perpetrator being sued, if the defendant is a private actor such as a
corporation or individual.” Sosa, 542 U.S. at 732 n.20. This footnote has sparked significant
disagreement. The Second Circuit in Kiobel interpreted this footnote by looking to international
law to determine whether there is a norm of corporate liability. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 125-31 (2d Cir. 2010). Other circuits—including the D.C. Circuit in its now
vacated opinion in this case—have instead determined that corporate liability is a temedial
consideration rather than a substantive principle, and found international law leaves questions of
remedies open for determination under domestic law. See Exxon Mobil Corp., 654 F.3d at 41;

Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017-21 (7th Cir. 2011); Romero vy.

18
Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Serei v. Rio Tinto, PLC, 550 F.3d 822, 831
(9th Cir. 2008) (en banc). Although the Supreme Court did not resolve this dispute in Jesner, the
plurality opinion cast significant doubt on the interpretation that corporate liability is a remedial
consideration. The Jesner Court stated “[t]here is considerable force and weight to the position
articulated by Judge Cabranes” in the Second Circuit’s Kiobel opinion, and explained “it is far
from obvious why the question whether corporations may be held liable for international crimes
of their employees is a mere question of remedy.” Jesner, 138 S. Ct. at 1400, 1402.

The Court interprets the Sosa footnote to mean that this Court must look to international
law to determine who can be sued under the ATS. The Supreme Court declared that the “scope of
liability” is governed by international law. Sosa, 542 U.S. at 732 n.20. This means that courts are
required to look to international law to assess their jurisdiction over ATS claims against a particular
class of defendant, such as corporations. Kiobel, 621 F.3d at 127-28; Doe v. Exxon Mobil Corp.,
654 F.3d 11, 81-85 (D.C. Cir. 2011) (Kavanaugh, J., dissenting), vacated, 527 F. App’x 7 (D.C.
Cir. 2013). “It is inconceivable that a defendant who is not liable under customary international
law could be liable under the ATS.” Kiobel, 621 F.3d at 122.

Moreover, if corporate liability depended on domestic law instead of international law, this
could result in a lack of uniformity among nations, defying Sosa’s concerns about international
comity. See Sosa, 542 U.S. at 733 n.21 (suggesting it may be necessary for courts to apply limiting
doctrines designed to promote international comity, such as the act of state doctrine and a
requirement of exhaustion of local remedies); see also id. at 760-63 (Breyer, J., concurring)
(emphasizing the importance of comity considerations in ATS cases).

International law does not extend liability for human rights violations to corporations.

Classical international law was state-centered, and viewed public international law as consisting

19
of legal obligation between states. The Nuremberg tribunals in the aftermath of World War II
marked a significant shift in international law. The Nuremberg trials “for the first time made
explicit and unambiguous” that “individuals are responsible” for the commission of international
crimes. Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes
Trial, reprinted in 20 Temp. L.Q. 338, 342 (1946). Contemporary public international law now
purports to regulate the conduct of individuals directly. “‘The singular achievement of
international law since the Second World War has come in the area of human rights,’ where
international law now imposes duties on individuals as well as nation-states.” Jesner, 138 S. Ct.
1400 (quoting Kiobel, 621 F.3d at 118). The current principles of international law do not extend
liability for human rights violations to corporations.

International human rights treaties, such as the Genocide Convention, the Convention
Against Torture, the Apartheid Convention, the Convention on the Elimination of All Forms of
Discrimination Against Women, and the Convention on the Rights of the Child, do not impose
liability on corporations. See Convention on the Prevention and Punishment of the Crime of
Genocide, art. IV, Dec. 9, 1948, 78 U.N.T.S. 277 (“Persons committing genocide or any other acts
enumerated in article III shall be punished, whether they are constitutionally responsible rulers,
public officials, or private individuals.”); United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, arts. 4(1), 6(1), 6(3), Dec. 10, 1984, 1465
U.N.T.S. 85; International Convention on the Suppression and Punishment of the Crime of
Apartheid, art. 3, Nov. 30, 1973, 1015 U.N.T.S. 243 (the U.S. is not a party) (“International
criminal responsibility shall apply . . . to individuals, members of organizations and institutions
and representatives of the State.”); see generally Convention on the Elimination of All Forms of

Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 (the U.S. is not a party)

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(obligations directed to State Parties); Convention on the Rights of the Child, Nov. 20, 1989, 1577
U.N.T.S. 3 (the U.S. is not a party) (same). The Geneva Conventions do not provide for corporate
liability either. See Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva
Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, art. 50, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
Convention Relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. The lack of duties imposed on
corporations and lack of corporate liability in these treaties indicates that states have not intended
‘for corporations to be held liable for human rights violations.

Further, customary international law does not impose liability on corporations. Customary

99 66.

international law, which was historically referred to as part of the “law of nations,” “results from
a general and consistent practice of states followed by them from a sense of legal obligation.”
Restatement (Third) of Foreign Relations Law § 102(2) (Am. L. Inst. 1987) [hereinafter
Restatement (Third)]. States have consistently excluded corporations from the jurisdictional reach
of the charters of international criminal tribunals. For example, the charter that established the
International Military Tribunal at Nuremberg only provided jurisdiction to “try and punish” those
“persons who, acting in the interests of the European Axis countries, whether as individuals or as
members of organizations,” committed specified international crimes. Agreement for Prosecution
and Punishment of Major War Criminals of the European Axis, art. 6, Aug. 8, 1945, 59 Stat. 1544,

82 U.N.TS. 280, 288. No corporations were charged or convicted in the Nuremberg trials even

though many corporate executives were individually tried. See Jonathan A. Bush, The Prehistory

21
of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said,
109 Colum. L. Rev. 1094, 1098 (2009). Subsequently, a U.S. Military Tribunal prosecuted twenty-
four executives of the German corporation J.G. Farben. 7 Trials of War Criminals Before the
Nuremberg Military Tribunals Under Control Council Law No. 10, 11-60 (1952). 1.G. Farben’s
employees operated a slave-labor camp at Auschwitz and “knowingly and intentionally
manufactured and provided” the poison gas used in the Nazi gas chambers, among other crimes.
Jesner, 138 S. Ct. at 1400 (quoting Kiobel, 621 F.3d at 135). The Tribunal specifically emphasized:

the corporate, Farben, is not before the bar of this Tribunal and cannot be subjected

to criminal penalties in these proceedings. We have used the term “Farben” as

descriptive of the instrumentality of cohesion in the name of which the enumerated

acts of spoliation were committed. But corporations act through individuals and,

under the conception of personal individual guilt ... the prosecution, to discharge

the burden imposed upon it in this case, must establish by competent proof beyond

areasonable doubt that an individual defendant was either a participant in the illegal

act or that, being aware thereof, he authorized or approved it.
8 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law
No. 10, 1153 (1952).

Recent international tribunals have also limited liability to “natural persons.” See Statute
of the International Criminal Tribunal for the former Yugoslavia, arts. 2-6, S.C. Res. 827, U.N.
Doc. S/RES/827 (May 25, 1993); Statute of the International Criminal Tribunal for Rwanda, arts.
2-5, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994). The Rome Statute of the International
Criminal Court limits that tribunal’s jurisdiction to “natural persons,” too. See Rome Statute of the
International Criminal Court, art. 25(1), July 17, 1998, 2187 U. N. T. S. 90. The drafters of the
Rome Statute considered a‘proposal to give the International Criminal Court (ICC) jurisdiction
over corporations, but ultimately rejected this proposal. Jesner, 138 S. Ct. at 1401; Albin Eser,

Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court: A

Commentary 767, 778-79 (Antonio Cassese et al. eds. 2002). The absence of jurisdiction over

22
corporations in these international tribunals and in the ICC reflects a decision by the international
community not to extend criminal liability to corporations for war crimes and human rights
violations.

In addition, a U.N. Report from 2007 concluded that “States have been unwilling to adopt
binding international human rights standards for corporations,” John Ruggie (Special
Representative of the Secretary-General), Report of the Special Representative of the Secretary-
General on the Issue of Human Rights and Transnational Corporations and Other Business
Enterprises, | 44, U.N. Doc. AYHRC/4/35 (Feb. 19, 2007).

Finally, while many nations may subject corporations to liability in their domestic legal
systems, there is no indication that nations have enacted domestic corporate liability rules out of a
sense of mutual legal obligation towards other states. See Filartiga v. Pena-Irala, 630 F.2d 876,’
888 (2d Cir. 1980) (“[T]he mere fact that every nation's municipal law may prohibit theft does not
incorporate ‘the Eighth Commandment, ‘Thou Shalt not steal’ . . . (into) the law of nations.’ It is
only where the nations of the world have demonstrated that the wrong is of mutual, and not merely
several, concern, by means of express international accords, that a wrong generally recognized
becomes an international law violation within the meaning of the [ATS] statute.”) (quoting JT v.
Vencap, 519 F.2d 1001, 1015 (2d Cir. 1975)); Restatement (Third) § 102 cmt. c (1987) (“For a
practice of states to become a rule of customary international law it must appear that the states
follow the practice from a sense of legal obligation (opinio juris sive necessitatis).”).

Thus, international law has not extended the scope of liability to corporations. Accordingly,
there is not a specific, universal, and obligatory norm of corporate liability under currently
prevailing international law as required by Sosa for ATS cases. Plaintiffs cannot maintain their

ATS claims against Exxon, a corporation.

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b. Sosa’s step two

Under the second part of Sosa’s test, the Court must determine whether allowing the case
to proceed under the ATS is a proper exercise of judicial discretion, “or instead whether caution
requires the political branches to grant specific authority before corporate liability can be
imposed.” Jesner, 138 S. Ct. at 1399.

As noted in Section III(B), the Supreme Court has repeatedly expressed reluctance to
extend judicially created private rights of action. “[A] decision to create a private right of action is
one better left to legislative judgment in the great majority of cases.” Sosa, 542 U.S. at 727. In
Jesner, the Court noted “[t]his caution extends to the question whether the courts should exercise
the judicial authority to mandate a rule that imposes liability upon artificial entities like
corporations.” Jesner, 138 S. Ct. at 1402-03. The Jesner Court spécifically looked to its own
refusal to extend Bivens actions, which are implied causes of action for damages against federal
officers alleged to have violated a citizen’s constitutional rights, to encompass corporate liability
as an example of this reluctance. Jd.; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971). Indeed, Bivens actions are similar to ATS suits in that both involve judicial inferences
of causes of action. See Sosa, 542 U.S. at 742 (Scalia, J., concurring).

In Malesko, the plaintiff sought to bring a Bivens action against a corporation operating a
halfway house. Malesko, 534 U.S. at 63-66. The Court determined that Bivens actions against an
individual are “fundamentally different from” claims against the individual’s corporate employer.
Id. at 70. Allowing corporate liability would have been “a marked extension of Bivens, to contexts
that would not advance Bivens’ core purpose of deterring individual officers from engaging in

unconstitutional wrongdoing.” Jd. at 74. Thus, the Malesko Court held that corporate defendants

24
could not be held liable in Bivens actions. Jd. The Court determined that the question of whether
to subject corporate defendants to suit was “a question for Congress, not us, to decide.” Jd. at 72.

Further, courts often look to analogous statutes for guidance in interpreting the boundaries
of judge-made causes of action. See, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 24 (1990);
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975). In Sosa, the Supreme Court
emphasized that courts should “look for legislative guidance before exercising innovative authority
over substantive law” in ATS cases. Sosa, 542 U.S. at 726. The relevant statute here, as the
plurality opinion in Jesner noted, is the TVPA. The TVPA is the only cause of action under the
ATS that Congress, rather than the courts, created. The TVPA supplies a civil cause of action to
U.S. citizens and aliens for torture and extrajudicial killing. Torture Victim Protection Act of 1991,
Pub. L. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). The plurality in Jésner
declared “[t]he TVPA reflects Congress’ considered judgment of the proper structure for a right
of action under the ATS. Absent a compelling justification, courts should not deviate from that
model.” Jesner, 138 S. Ct. at 1403.

The TVPA limits liability to “individuals.” 28 U.S.C. § 1350 note. The TVPA authorizes
a civil action for recovery of damages from “[a]n individual who, under actual or apparent
authority, or color of law, of any foreign nation—(1) subjects an individual to torture . . . ; or (2)
subjects an individual to extrajudicial killing.” Jd. The Supreme Court in Mohamad determined
that the word “individual” in the TVPA carried its ordinary meaning, and therefore held the TVPA
limits liability to natural persons. Mohamad, 556 US. at 453-56. The Court agrees with the Jesner
plurality that it is proper to follow “Congress’ decision to exclude liability for corporations in

actions brought under the TVPA” in this case. Jesner, 138 S. Ct. at 1404. It would be inconsistent

25
with the delicate foreign policy decisions that Congress made in defining the scope of the TVPA
if this Court created a remedy broader than the one established by Congress in this case. Id.

Also, judicially recognizing causes of action against corporations under the ATS—at least
in regard to torture and extrajudicial killing—would create a significant anomaly. The TVPA
reflects Congress’ decision to limit the circumstances under which U.S. citizens and aliens can sue
for torture and extrajudicial killing. “It would be odd and incongruous to disregard those limits in
defining when aliens may sue for torture and extrajudicial killing under the ATS. Put
simply, Sosa told courts in ATS cases to look to Congress for guidance, and Congress has
specifically delineated what limits should attach to civil suits for torture and extrajudicial killing.”
Doe v. Exxon Mobil Corp., 654 F.3d 11, 88 (D.C. Cir. 2011), (Kavanaugh, J., dissenting),
vacated, 527 F. App’x 7 (D.C. Cir. 2013). This leads the Court to believe “it makes eminerit sense
to fashion the ATS so that aliens cannot recover in U.S. court for torture and extrajudicial killing
in circumstances where U.S. citizens could not recover in U.S. court for torture and extrajudicial
killing.” Jd.

In addition, the Court finds that many of the points made by the Jesner plurality about the
practical reasons that counsel against courts permitting foreign corporate liability under the ATS
also applies to domestic corporate liability. First, corporate liability under the ATS is not essential
to serve the goals of the statute. Jesner, 138 S. Ct. at 1405. Plaintiffs can still sue individual
corporate employees responsible under the ATS for a violation of international law. If courts allow
corporations to be liable under the ATS for violations of international law, “then plaintiffs may
well ignore the human perpetrators and concentrate instead on multinational corporate entities.”
Id. Second, allowing plaintiffs to sue corporations under the ATS could discourage U.S.

corporations from investing abroad, including in developing economies where the governments

26
may have histories of alleged human-rights violations. “And, in consequence, that often might
deter the active corporate investment that contributes to the economic development that so often
is an essential foundation for human rights.” Jd. at 1406. Third, Congress is better suited than the
Judiciary to examine the difficult and complex policy questions about whether to impose liability
on corporations. As the plurality in Jesner pointed out, “natural persons can and do use
corporations for sinister purposes, including conduct that violates international law . . . [s]o there
are strong arguments for permitting the victims to seek relief from corporations themselves.” Jd.
The multifaceted nature of this issue makes it especially important that Congress determine
whether corporations can be sued for violating international law. “Congress, not the Judiciary, is
the branch with ‘the facilities necessary to make fairly such an important policy decision where
the possibilities of international discord are so evident.” Jd. (quoting Kiobel, 569 U.S. at 116).
Therefore, Congress is in a better position to determine whether to impose corporate liability, and
how to do so if it so chooses. Jd. at 1406-08.

Finally, as discussed in detail in Section III(C)(i), this case has caused significant
diplomatic strife. This is the type of foreion, relations tension the First Congress sought to avoid
when passing the ATS. Plaintiffs have caused foreign relations tensions by using the ATS as a
sword in this case, but the ATS was enacted to shield the U.S. from such diplomatic imbroglios.
As the Supreme Court stated in Jesner, “judicial caution under Sosa ‘guards against our courts
triggering . . . serious foreign policy consequences, and instead defers such decisions, quite
appropriately, to the political branches.”” Jd. at 1407 (quoting Kiobel, 569 U.S. at 124).

Therefore, under Sosa’s second question, this Court finds that caution requires the political
branches to grant specific authority before domestic corporate liability against Exxon can be

imposed. Recognizing corporate liability under the ATS in this case could have adverse foreign

27
policy consequences and raises significant separation of powers concerns. The Court declines to
extend liability under the ATS to corporate defendants absent congressional instructions in
circumstances where, as here, the claims have cause significant diplomatic strife.
IV. Conclusion

The Supreme Court’s prior precedents counsel against creating a private right of action in
this case. International law has not extended the scope of liability to corporations. Accordingly,
there is not a specific, universal, and obligatory norm of corporate liability under currently
prevailing international law as required by Sosa for ATS cases. Also, separation of powers and
foreign relations concerns lead the Court to decline to recognize domestic corporate liability under
the ATS in circumstances where, as here, the claims have caused significant diplomatic strife. The
Court will DISMISS plaintiffs’ ATS claims against Exxon. Plaintiffs only remaining claims are
therefore the claims for wrongful death; battery; assault; arbitrary arrest, detention, and false
imprisonment; negligence, negligent hiring; negligent supervision; and conversion. These tort

claims are governed by Indonesian law. A separate order will follow.

SIGNED this_3 day of June, 2019.

fi MT eS

Royce C. Lamberth
United States District Judge

28
