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Alien Tort Statute

Doe I v. Nestle, S.A.

Ninth Circuit Denies Rehearing En Banc of Case Permitting Domestic Corporate Liability Claim.


The Alien Tort Statute1×1. 28 U.S.C. § 1350 (2018). (ATS) has a complicated history in federal courts. This centuries-old statute gives federal courts jurisdiction over torts “committed in violation of the law of nations.”2×2. Id. (“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.”). In recent decades, litigators have used this language to bring claims for human rights violations.3×3. Stephen P. Mulligan, Cong. Research Serv., R44947, The Alien Tort Statute (ATS): A Primer 6–7 (2018). However, the Supreme Court has repeatedly narrowed the applicability of the ATS, most recently holding in Jesner v. Arab Bank, PLC4×4. 138 S. Ct. 1386 (2018). that a foreign corporation cannot be sued under the statute.5×5. Id. at 1407. But in the Ninth Circuit, a domestic corporation still can be sued, and last year the circuit declined to change that by denying en banc rehearing of the ATS case Doe I v. Nestle, S.A.6×6. 929 F.3d 623, 626 (9th Cir. 2019); see id. at 628–29 (Bennett, J., dissenting from the denial of rehearing en banc). As the dissent from the denial of rehearing pointed out, the result leaves the circuit in tension with the spirit of the Supreme Court’s decision in Jesner,7×7. See id. at 628 (Bennett, J., dissenting from the denial of rehearing en banc). in which some Justices suggested that corporate liability generally is not the kind of universal norm required by the ATS.8×8. See Jesner, 138 S. Ct. at 1401 (plurality opinion). While domestic corporate ATS liability survives in the Ninth Circuit, the court failed to meaningfully engage with the implications of Jesner, and by declining to correct this failure the court may have merely condemned ATS plaintiffs to labor on hopelessly until the Supreme Court speaks again.

This case arose from the still-common practice of child slavery on cocoa plantations in Côte d’Ivoire.9×9. For an overview of the practice, see generally Peter Whoriskey & Rachel Siegel, Cocoa’s Child Laborers, Wash. Post (June 5, 2019), https://wapo.st/cocoa-child-laborers [https://perma.cc/C9PC-6UBP]. The plaintiffs were six former child slaves who alleged that, between the ages of twelve and fourteen, they were trafficked from Mali to cocoa plantations in Côte d’Ivoire, where they were forced to work without pay for twelve to fourteen hours a day, given inadequate food and shelter, and subjected to intimidation and torture.10×10. Appellants’ Opening Brief at 3, 5–6, Nestle, S.A., 929 F.3d 623 (9th Cir. 2019) (No. 17-55435). The defendant corporations, Nestlé and Cargill, did not own or directly operate these plantations, but the plaintiffs alleged that they exercised a high degree of control over the global cocoa industry and that they actively and knowingly facilitated the use of child slaves in order to keep cocoa prices low.11×11. Id. at 7–9.

The present litigation dates back to a complaint filed in the Central District of California in 2005.12×12. Appellants’ Opening Brief at 4, Doe I v. Nestle USA, Inc. (Nestle I), 766 F.3d 1013 (9th Cir. 2014) (No. 10-56739). At that point, defendants included not only Nestlé USA, Inc. and Cargill, Inc., but also Nestlé, S.A. (Nestlé’s Swiss parent company) and the Ivorian and West African subsidiaries of Nestlé and Cargill, respectively.13×13. Nestle, S.A., 929 F.3d at 628; Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057, 1063 (C.D. Cal. 2010). The complaint also listed Archer Daniels Midland Company as a defendant. In addition to the ATS, the plaintiffs also initially brought claims under state law and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note (2012). See Doe I v. Nestle, S.A., 748 F. Supp. 2d at 1063. The district court dismissed these claims. See id. at 1120, 1122–24. After a two-year stay,14×14. Appellants’ Opening Brief, supra note 12, at 4. The case was stayed pending a Ninth Circuit decision, id., that proved not to be relevant. the district court dismissed the claim in 2010 in part because it found that the ATS did not allow for corporate liability.15×15. Doe I v. Nestle, S.A., 748 F. Supp. 2d at 1144–45. On appeal, however, the Ninth Circuit, in an opinion by Judge Dorothy Wright Nelson,16×16. Judge Nelson was joined in full by Judge Wardlaw and in part by Judge Rawlinson. reversed and remanded, holding that the ATS did allow claims against corporations.17×17. Nestle I, 766 F.3d at 1016, 1022. The Ninth Circuit based its reasoning on the principles laid out in circuit precedent18×18. Id. at 1022 (citing Sarei v. Rio Tinto, PLC, 671 F.3d 736, 746 (9th Cir. 2011) (en banc), vacated on other grounds, 569 U.S. 945 (2013)). : that the scope of ATS liability proceeds norm by norm, that it does not depend on existing international precedent, and that it applies to all parties, including corporations, when the norm is “universal and absolute.”19×19. Id. (quoting Sarei, 671 F.3d at 760). Rehearing en banc was denied20×20. Doe I v. Nestle USA, Inc., 788 F.3d 946, 946 (9th Cir. 2015). Judge Bea was joined by Judges O’Scannlain, Gould, Tallman, Bybee, Callahan, Milan Smith, and N. Randy Smith. over a dissent by Judge Bea, who argued that the panel had erred by not adopting a “restrained conception” of ATS liability as called for by the Supreme Court.21×21. Id. at 947 (Bea, J., dissenting from the denial of rehearing en banc) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004)). On remand, the district court again dismissed the claim, this time on the grounds that the plaintiffs’ claim constituted an “impermissible extraterritorial application of the ATS.”22×22. Nestlé v. Nestlé S.A., No. 05-5133, 2017 U.S. Dist. LEXIS 221739, at *4, 2017 WL 6059134, at *1 (C.D. Cal. Mar. 2, 2017). Both Lexis and Westlaw list the plaintiffs here as “John Nestlé, et al.” rather than John Doe; this is presumably the result of a clerical error.

On appeal, Judge Nelson23×23. Judge Nelson was joined by Judge Christen. Judge Shea of the Eastern District of Washington, sitting by designation, concurred in the result but did not write a separate opinion. See Doe I v. Nestle, S.A. (Nestle II), 906 F.3d 1120, 1127 (9th Cir. 2018) (Shea, J., concurring). again wrote for the Ninth Circuit and reversed the dismissal.24×24. Id. (majority opinion). Judge Nelson considered both the decision of the lower court and the questions posed by the Supreme Court’s intervening decision in Jesner.25×25. See id. at 1124–25. In addressing the lower court’s concern about extraterritorial applications of the ATS, the court looked to an earlier Supreme Court ATS case, Kiobel v. Royal Dutch Petroleum Co.26×26. 569 U.S. 108 (2013); see Nestle II, 906 F.3d at 1124–25. Kiobel held that, in order to be remediable under the ATS, conduct must “touch and concern” the United States “with sufficient force to displace the presumption against extraterritorial application.”27×27. Kiobel, 569 U.S. at 124–25 (citing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 266–73 (2010)). Unlike the district court, the Ninth Circuit held that this standard had been met because, while the slave labor had occurred overseas, plaintiffs alleged that it was “perpetuated from headquarters in the United States.”28×28. Nestle II, 906 F.3d at 1126. This holding was consistent with some commentators’ reading of Kiobel. See, e.g., Oona Hathaway, Kiobel Commentary: The Door Remains Open to “Foreign Squared” Cases, SCOTUSblog (Apr. 18, 2013, 4:27 PM), https://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains-open-to-foreign-squared-cases [https://perma.cc/T533-E7YY].

In light of Jesner, which held that foreign corporations may never be liable under the ATS,29×29. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018). the Ninth Circuit ordered the plaintiffs to remove those defendant corporations that were not based in the United States.30×30. Nestle II, 906 F.3d at 1127; see also id. at 1124. However, despite at least one defendant’s call to preclude domestic corporate liability,31×31. See Defendant-Appellee Cargill, Incorporated’s Supplemental Brief Regarding Jesner v. Arab Bank, PLC at 14–15, Nestle II, 906 F.3d 1120 (9th Cir. 2018) (No. 17-55435). the panel instead returned to its own precedent in Nestle I that corporations could be liable for aiding and abetting slavery under the ATS.32×32. Nestle II, 906 F.3d at 1124. Nestle I held that the prohibition on slavery is a “universal and absolute” norm that applies to all parties, including corporate defendants,33×33. Nestle I, 766 F.3d 1013, 1022 (9th Cir. 2014). and though Jesner means that norm can no longer be enforced against foreign corporations using the ATS, the court in Nestle II declined to modify its precedent beyond that necessary minimum.34×34. Nestle II, 906 F.3d at 1124. The court did not address the reasoning of Jesner. See id. (“But Jesner did not eliminate all corporate liability under the ATS, and we therefore continue to follow Nestle I’s holding as applied to domestic corporations.” (citing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc))).

Last year, the Ninth Circuit declined to rehear the case en banc, drawing a dissent written by Judge Bennett and joined in full or in part by seven other judges.35×35. Nestle, S.A., 929 F.3d at 626 (Bennett, J., dissenting from the denial of rehearing en banc). Judges Bybee, Callahan, Bea, Ikuta, and Ryan Nelson joined in full, while Judges Milan Smith and Bade joined with respect to the extraterritoriality issue. Judge Bennett argued that the panel’s decision had been incorrect. He stated that the ATS was to be “narrowly construed and sparingly applied.”36×36. Id. Specifically, Judge Bennett argued that the Ninth Circuit should have determined that corporations are not liable under the ATS in light of Jesner.37×37. Id. at 627. Though he admitted that Jesner had “expressly left open” the question of domestic corporate liability,38×38. Id. Judge Bennett nonetheless reasoned that the principles of judicial restraint reiterated in that case dictated that such liability should be denied.39×39. See id. at 627–28. Moreover, Judge Bennett’s reading of Jesner’s plurality opinion and concurrences led him to conclude that “[f]ive Justices in Jesner strongly suggested that the ATS forecloses corporate liability.”40×40. Id. at 629. In determining whether a cause of action is recognized under the ATS, Judge Bennett looked to another Supreme Court precedent, Sosa v. Alvarez-Machain,41×41. 542 U.S. 692 (2004); see Nestle, S.A., 929 F.3d at 628–33 (Bennett, J., dissenting from the denial of rehearing en banc) (applying Sosa). which held that in order for an ATS claim to succeed, (1) the claim must address a violation of a norm that is “specific, universal, and obligatory,”42×42. Sosa, 542 U.S. at 732 (quoting In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)). In Sosa this standard was merely illustrative, but its use in Nestle, S.A. is the latest demonstration of the canonical status it has since attained. See, e.g., Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1398 (2018); Nestle, S.A., 929 F.3d at 627. and (2) a court must determine that it is wise from a practical standpoint to make that violation a cause of action in America’s federal courts.43×43. Sosa, 542 U.S. at 732–33. He argued that “[c]orporate liability fail[ed] at both steps.”44×44. Nestle, S.A., 929 F.3d at 628 (Bennett, J., dissenting from the denial of rehearing en banc); see id. at 631–33.

Judge Bennett also suggested that the claim should have been rejected as impermissibly extraterritorial.45×45. Id. at 633. He pointed out that the plaintiffs’ enslavement had happened entirely within Côte d’Ivoire, at the hands of local slavers and farmers.46×46. Id. at 634. He addressed the panel’s contrary conclusion that the plaintiffs had alleged sufficient corporate business conduct within the United States by pointing out that the defendants’ alleged payments to cocoa farmers and inspections of plantations would have in fact happened overseas.47×47. See id. at 634–35. As for corporate decisions within the United States, Judge Bennett argued that these could not overcome the presumption against extraterritorial application lest that presumption be devoid of meaning.48×48. See id. at 635.

This case marks only the latest development in the ATS’s long and storied history,49×49. The ATS was passed by the First Congress as part of the Judiciary Act of 1789, apparently in response to the United States’ previous embarrassing inability to punish those who had injured foreign diplomats. See Mulligan, supra note 3, at 2–5. But see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (asserting that “no one seems to know whence [the ATS] came”). Uncertainty about the ATS’s purpose continues to be stressed in decisions. See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1417–18 (2018) (Gorsuch, J., concurring in part and concurring in the judgment) (questioning whether the concern about diplomats really motivated the passage of the ATS). In any case, the ATS faded into obscurity for nearly two centuries after its passage, until it found new life in the 1980 case Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). See Mulligan, supra note 3, at 5–6 (“Between 1789 and 1980, litigants successfully invoked the ATS as a basis for jurisdiction in only two reported decisions.” Id. at 5.). In that case, the Second Circuit allowed Paraguayan plaintiffs to sue under the ATS a former Paraguayan official who had tortured and killed their family member, Filartiga, 630 F.2d at 878–79, and the statute was soon put to use by litigants seeking redress in American courts for human rights abuses that occurred abroad, see Mulligan, supra note 3, at 6–7; cf. Michael Bazyler, Litigating the International Law of Human Rights: A “How To” Approach, 7 Whittier L. Rev. 713, 721 (1985) (describing the ATS as “the best means” then available for holding a defendant liable for human rights violations committed abroad). Supporters and detractors of the statute agree that cases brought under the ATS have had international significance. For a supportive view by a plaintiff in the original case, see Dolly Filártiga, Opinion, American Courts, Global Justice, N.Y. Times (Mar. 30, 2004), https://www.nytimes.com/2004/03/30/opinion/american-courts-global-justice.html [https://perma.cc/ZN4S-YFV9]. For a critical view, see Curtis A. Bradley & Jack L. Goldsmith, Opinion, Judicial Foreign Policy We Cannot Afford, Wash. Post (Apr. 19, 2009), https://www.washingtonpost.com/wp-dyn/content/article/2009/04/17/AR2009041702859.html [https://perma.cc/C52S-E4E3]. but the Ninth Circuit’s refusal to narrow ATS liability should not obscure the probability that that history is approaching its end. As the panel in Nestle II understood, the Court in Jesner did not require inferior courts to reject ATS liability for American corporations, and the Ninth Circuit was by no means required to rehear the case. However, as the dissent from denial pointed out, the Supreme Court did reason in a way that would make corporate liability difficult to justify, and it is likely only a matter of time before the Court makes the plaintiffs’ case untenable. The Ninth Circuit has shown how ATS litigation against corporations may proceed for the time being in courts inclined to allow it, but this model does little to undermine the reasoning, ratified by the Supreme Court in Jesner, that makes the end of ATS corporate liability probable. By allowing litigation to continue in the meantime, only for it to quite possibly be rendered moot at some later date, the Ninth Circuit may be sending human rights plaintiffs down a road that leads nowhere.

The Ninth Circuit did not meaningfully engage with Jesner in Nestle II. Instead it simply asserted that “Jesner did not eliminate all corporate liability under the ATS, and we therefore continue to follow Nestle I’s holding as applied to domestic corporations.”50×50. Nestle II, 906 F.3d 1120, 1124 (9th Cir. 2018). This reasoning ignores the Supreme Court’s application of the two-step Sosa analysis described in Judge Bennett’s dissent.51×51. See Nestle, S.A., 929 F.3d at 627–28 (Bennett, J., dissenting from the denial of rehearing en banc). While the Jesner Court’s analysis on step two, concerning the need for “judicial caution” due to the diplomatic implications of suing foreign corporations,52×52. Jesner, 138 S. Ct. at 1407; see also id. at 1406–07. need not apply to domestic corporations, the Court’s step-one analysis is less escapable. The Jesner plurality read international law as “counsel[ing] against” the existence of a universal norm of corporate liability — not merely foreign corporate liability.53×53. Id. at 1401 (plurality opinion). In applying the second step of Sosa, Justice Alito made much the same point in concurrence, see id. at 1410 (Alito, J., concurring in part and concurring in the judgment), while Justice Gorsuch skipped the Sosa test to argue against recognizing any new ATS causes of action, see id. at 1412 (Gorsuch, J., concurring in part and concurring in the judgment). Justice Gorsuch thereby reprised a strongly antiliability reading of the ATS staked out by Judge Bork when the D.C. Circuit considered its first ATS case. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798–801 (D.C. Cir. 1984) (Bork, J., concurring).

Jesner was the latest of three cases, along with Sosa and Kiobel, in which the Supreme Court narrowed ATS liability.54×54. Although in Sosa the Court ruled against the plaintiff and created the two-step framework that ATS claims must pass, see Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33, 738 (2004), the case was not perceived as a defeat for the ATS litigation movement. See Eric A. Posner, A Review, 126 Yale L.J. 504, 515 n.52 (2016) (reviewing Stephen Breyer, The Court and the World (2015)) (noting that the number of ATS cases rose after Sosa). While the Court has taken only incremental steps — creating a two-step framework for liability, barring extraterritorial application, and barring foreign corporate liability — some Justices have given strong hints that they will only go further. In his opinion in Jesner, Justice Kennedy employed an argument, previously adopted by the Second Circuit, that corporate liability generally was not a universal norm in international law and thus failed the Sosa test for ATS liability.55×55. See Jesner, 138 S. Ct. at 1401 (plurality opinion); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148–49 (2d Cir. 2010), aff’d on other grounds, 569 U.S. 108 (2013). But see Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1017 (7th Cir. 2011) (criticizing the Second Circuit’s reasoning and factual claims and characterizing the court as an “outlier” among the federal circuits). For unclear reasons,56×56. Justice Kennedy had previously expressed reluctance to definitively settle ATS questions; in Kiobel, he even wrote a cryptic concurrence praising the Court for “leav[ing] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.” Kiobel, 569 U.S. at 125 (Kennedy, J., concurring). An ungenerous commentator wrote that this quality of the Kiobel opinion meant that the decision “fails as precedent.” Ralph G. Steinhardt, Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink, 107 Am. J. Int’l L. 841, 843 (2013) (emphasis omitted). Justice Kennedy limited his holding to foreign corporations, and so lawsuits like Nestle remain possible. Repeated proclamations of the ATS’s death have yet again proven premature.57×57. For one such proclamation after Kiobel, see Roger P. Alford, The Future of Human Rights Litigation After Kiobel, 89 Notre Dame L. Rev. 1749, 1751 (2014) (describing the “demise of ATS litigation”). For a proclamation after Jesner, see, for example, Jack Goldsmith (@jackgoldsmith), Twitter (Apr. 24, 2018, 10:35 AM), https://twitter.com/jacklgoldsmith/status/988788536173387776 [https://perma.cc/QVA4-GQTY] (“ATS, RIP.”). But that does not mean that the Court’s trend toward narrowing liability has stopped.

The Supreme Court’s current composition suggests that it will only take Jesner’s reasoning further, meaning it is likely a matter of time before the Court reverses the Ninth Circuit’s decision, or another one like it, on the grounds outlined in Judge Bennett’s dissent. Judge Bennett’s argument on corporate liability would be especially likely to prevail in the current Supreme Court: not only did much of Jesner’s reasoning apply to domestic as well as foreign corporations,58×58. See, e.g., Jesner, 138 S. Ct. at 1402–03 (comparing ATS liability to Bivens liability, an area where the Court has declined to recognize corporations as proper defendants). but Justice Kavanaugh has replaced Justice Kennedy on the Court. While on the D.C. Circuit, then-Judge Kavanaugh echoed the same Second Circuit argument partially adopted in Jesner to assert that “the ATS does not apply to claims against corporations.”59×59. Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 72 (D.C. Cir. 2011) (Kavanaugh, J., dissenting in part) (citing Kiobel, 621 F.3d 111).

By refusing to pick up on the Supreme Court’s signals, the Ninth Circuit is inviting dubious and prolonged litigation against American companies from future plaintiffs. Particularly where there are other tools that can be developed further with robust litigation, the court may be giving plaintiffs false hope and delaying the inevitable. The history of this case shows the potential consequences of holding open avenues of ATS liability. As the panel in Nestle II acknowledged, “delay does not serve the interests of any party.”60×60. Nestle II, 906 F.3d 1120, 1127 (9th Cir. 2018). The parties have had no opportunity to present the merits of their cases since litigation began fifteen years ago, primarily because of shifting and unclear rules about who is a proper ATS defendant.61×61. See id. at 1126–27 (dismissing claims against foreign defendants in light of Jesner); Nestlé v. Nestlé S.A., 2017 U.S. Dist. LEXIS 221739, at *4, *8, *22 (C.D. Cal. Mar. 2, 2017) (dismissing the case as impermissibly extraterritorial in light of Kiobel); Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057, 1144–45 (C.D. Cal. 2010) (dismissing the case because the district judge believed the ATS, as interpreted in Sosa, did not allow for corporate liability). With the Supreme Court poised to continue limiting ATS liability in general and to eliminate corporate liability in particular, it is likely only a matter of time before the case is dismissed again.

Ending domestic corporate ATS liability would not mean the end of all liability for human rights abuses committed abroad. There would remain political remedies, such as economic sanctions against states committing human rights abuses, with possible criminal consequences for corporations that aid them,62×62. See, e.g., Recent Case, Kashef v. BNP Paribas S.A., 925 F.3d 53 (2d Cir. 2019), 133 Harv. L. Rev. 1103, 1109 (2020). and new legal remedies could be created.63×63. See Pierre-Hugues Verdier & Paul Stephan, After ATS Litigation: A FCPA for Human Rights?, Lawfare (May 7, 2018, 7:00 AM), https://www.lawfareblog.com/after-ats-litigation-fcpa-human-rights [https://perma.cc/4ZX3-YRDN]. State law claims would remain viable as well.64×64. See Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397, 400–03 (2018). Indeed, many ATS complaints have included state law claims, see Paul Hoffman & Beth Stephens, International Human Rights Cases Under State Law and in State Courts, 3 U.C. Irvine L. Rev. 9, 15–17 (2013), though these claims have usually not been the basis for awards, see id. at 15. The same pattern played out in this case. See Doe I v. Nestle, S.A., 748 F. Supp. 2d at 1120–24 (dismissing state law claims). Individuals will also remain liable under the Torture Victim Protection Act65×65. Pub. L. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2018)). The plaintiffs’ TVPA claim was dismissed in this case for failing to meet the “color of law” requirement and because corporations are not proper TVPA defendants. See Doe I v. Nestle, S.A., 748 F. Supp. 2d at 1120. (TVPA) insofar as they commit torts under color of law, and ATS individual liability will survive in the limited set of cases that satisfy both the two-part Sosa test and the Kiobel extraterritoriality requirement.66×66. ATS plaintiffs have sought to expand this set of cases by arguing that the presumption against extraterritoriality can be overcome if the defendant has taken up residence in the United States, see, e.g., Plaintiffs’ Opposition to Defendants’ Joint Motion to Dismiss Second Amended Complaint at 16, Rojas Mamani v. Sanchez Berzain, 636 F. Supp. 2d 1326 (S.D. Fla. 2009) (Nos. 08-21063-CV, 07-22459-CV), but this argument is unlikely to be accepted by a court.

Until relatively recently, the ATS provided human rights plaintiffs advantages not easily matched anywhere in the world,67×67. Cf. Aric K. Short, Is the Alien Tort Statute Sacrosanct? Retaining Forum Non Conveniens in Human Rights Litigation, 33 N.Y.U. J. Int’l L. & Pol. 1001, 1097 (2001) (discussing the attractiveness of U.S. courts to potential victims of the Milosevic regime in Yugoslavia). making it possible for American federal courts to adjudicate everything from Colombian intimidation of trade unions68×68. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1257 (11th Cir. 2009). to Chinese restraints on expression.69×69. See Wang Xiaoning v. Yahoo!, Inc., 2007 U.S. Dist. LEXIS 97566, at *2 (N.D. Cal. Oct. 31, 2007). If any of the tools mentioned above are to take its place, advocates will need to develop them. While the continued viability of the ATS claims against corporations does not prevent plaintiffs from using other tools if they deem them more effective, those plaintiffs should recognize that the end of domestic corporate liability seems likely. By declining to reconsider this case, the Ninth Circuit has postponed that end to some indefinite point in the future, after some indefinite expenditure of time and money by plaintiffs, defendants, and the court system, but it has not made it less likely. In not bringing its precedent into line with the probable future trends in the Supreme Court’s jurisprudence, the Ninth Circuit, far from delivering a meaningful victory to ATS plaintiffs, may have only drawn out their struggle until the next grant of certiorari.