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Full Opinion
ORDER
The order filed December 19, 2013, and appearing at 738 F.3d 1048, is withdrawn, Carver v. Lehman, 558 F.3d 869, 878-79 (9th Cir.2009), and is replaced by the opinion filed concurrently with this order. Our prior order may not be cited as precedent to any court. Moreover, with the original order withdrawn, we deem the petition for rehearing and rehearing en banc moot. The parties may file a petition for rehearing and rehearing en bane with respect to the opinion filed together with this order.
IT IS SO ORDERED.
OPINION
The plaintiffs in this case are former child slaves who were forced to harvest cocoa in the Ivory Coast. They filed claims under the Alien Tort Statute (ATS) against defendants Nestle USA, Inc., Archer Daniels Midland Company, Cargill Incorporated Company, and Cargill Cocoa, alleging that the defendants aided and abetted child slavery by providing assistance to Ivorian farmers.
The district court dismissed their complaint, finding that the plaintiffs failed to state a claim upon which relief can be granted. We reverse, vacate, and remand for further proceedings.
I. Background
The use of child slave labor in the Ivory Coast is a humanitarian tragedy. Studies by International Labour Organization,
The plaintiffs in this case are three victims of child slavery. They were forced to work on Ivorian cocoa plantations for up to fourteen hours per day six days a week, given only scraps of food to eat, and whipped and beaten by overseers. They were locked in small rooms at night and not permitted to leave the plantations, knowing that children who tried to escape would be beaten or tortured. Plaintiff John Doe II witnessed guards cut open the feet of children who attempted to escape, and John Doe III knew that the guards forced failed escapees to drink urine.
Though tarnished by these atrocities, the Ivory Coast remains a critical part of the international chocolate industry, producing seventy percent of the worldâs supply of cocoa. The defendants in this case dominate the Ivorian cocoa market. Although the defendants do not own cocoa farms themselves, they maintain and protect a steady supply of cocoa by forming exclusive buyer/seller relationships with Ivorian farms. The defendants are largely in charge of the work of buying and selling cocoa, and import most of the Ivory Coastâs cocoa harvest into the United States. The defendantsâ involvement in the cocoa market gives them economic leverage, and along with other large multinational companies, the defendants effectively control the production of Ivorian cocoa.
To maintain their relationships with Ivorian farms, the defendants offer both financial assistance and technical farming assistance designed to support cocoa agriculture. The financial assistance includes advanced payment for cocoa and spending money for the farmersâ personal use. The technical support includes equipment and training in growing techniques, fermentation techniques, farm maintenance, and appropriate labor practices. The technical support is meant to expand the farmsâ capacity and act as a quality control mechanism, and either the defendants or their agents visit farms several times per year as part of the defendantsâ training and quality control efforts.
The defendants are well aware of the child slavery problem in the Ivory Coast. They acquired this knowledge firsthand through their numerous visits to Ivorian farms. Additionally, the defendants knew of the child slave labor problems in the Ivorian cocoa sector due to the many reports issued by domestic and international organizations.
Despite their knowledge of child slavery and their control over the cocoa market, the defendants operate in the Ivory Coast âwith the unilateral goal of finding the cheapest sources of cocoa.â The defendants continue to supply money, equipment, and training to Ivorian farmers, knowing that these provisions -will facilitate the use of forced child labor. The defendants have also lobbied against congressional efforts to curb the use of child slave labor. In 2001, the House of Representatives passed a bill that would have required United States importers and manufacturers to certify and label their products âslave free.â The defendants and others in the chocolate industry rallied against the bill, urging instead the adoption of a private, voluntary enforcement mechanism. A voluntary enforcement system was eventually adopted, a result that, according to the plaintiffs, âin effect guar
The plaintiffs filed a proposed class action in the United States District Court for the Central District of California, alleging that the defendants were liable under the ATS for aiding and abetting child slavery in the Ivory Coast. The district court granted the defendantsâ motion to dismiss in a detailed opinion, which concluded that corporations cannot be sued under the ATS, and that even if they could, the plaintiffs failed to allege the elements of a claim for aiding and abetting slave labor. The plaintiffs declined to amend their complaint, and appeal the district courtâs order.
II. Standard of Review
âA dismissal for failure to state a claim is reviewed de novo. All factual allegations in the complaint are accepted as true, and the pleadings construed in the light most favorable to the nonmoving party.â Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 737 (9th Cir.2008) (internal citations omitted).
III. Discussion
The ATS, quoted in full, reads:
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. For nearly two hundred years, the ATS was almost never invoked. In Filartiga v. Pena-Irala, however, the Second Circuit breathed life into the statute by construing it to allow two Paraguayan citizens to bring a civil action against a Paraguayan police officer who had tortured and killed their son. 630 F.2d 876, 878 (2d Cir.1980); Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (describing Filartiga as âthe birth of the modern line of [ATS] cases.â). The Second Circuit in Filartiga reasoned that the ATS was designed to âopen[ ] the federal courts for adjudication of the rights already recognized by international law,â and thus permitted the plaintiffs to pursue their tort claim because torture is prohibited by international law. Filartiga, 630 F.2d at 885, 887-88. Filartiga concluded by observing that modern history had led the nations of the world to recognize the collective interest in protecting fundamental human rights, and commented that its holding was âa small but important step in the fulfillment of the ageless dream to free all people from brutal violence.â Id. at 890.
The Supreme Court reached a consonant result in Sosa v. Alvarez-Machain, its first opinion addressing the ATS. The Court first held that the text of the ATS is focused solely on jurisdiction, and that the statute itself does not create a tort cause of action arising out of violations of international law. Sosa, 542 U.S. at 724, 124 S.Ct. 2739. After reviewing the ATSâs history, however, the Court also observed that âthe statute was intended to have practical effect the moment it became law,â and thus held that â[t]he jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.â Id. Thus, under Sosa, the federal courts are available to hear tort claims based on violations of international law. Specifically, Sosa held that federal common law creates tort liability for violations of international legal norms, and the ATS in turn provides federal courts with jurisdiction to hear these hybrid common law â international law tort claims. Id.;
At the time of its passage, the ATS was intended to grant jurisdiction over tort claims seeking relief only for three violations of international law: piracy, violation of safe conducts, and infringement of the rights of ambassadors. Sosa, 542 U.S. at 724, 124 S.Ct. 2739. The Court in Sosa held, however, that contemporary ATS claims can invoke the rights created by the âpresent-day law of nations,â and thus are not limited to these âhistorical paradigms.â Id. at 725, 732, 124 S.Ct. 2739. Under contemporary international law, federal courts have permitted plaintiffs to pursue ATS claims based on a broad range of misconduct, including genocide, war crimes, torture, and supporting terrorism.
While Sosa therefore permits the application of contemporary international law in an ATS claim, federal courts must exercise restraint when doing so. Sosa described this restraint through a historically focused standard for determining when an ATS claim may be based on contemporary international law. Under this test, âfederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.â Id. at 732, 124 S.Ct. 2739. This standard âis suggestive rather than precise,â and is perhaps âbest understood as the statement of a mood â and the mood is one of caution.â Flomo v. Firestone Natural Rubber Co., LLC, 643 F.3d 1013, 1016 (7th Cir.2011). Applying this standard, courts focus on whether a contemporary international legal norm underlying a proposed ATS claim is âspecific, universal, and obligatory.â In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir.1994); Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (citing this definition with approval).
Additionally, Sosa held that the decision to recognize a new cause of action must âinvolve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.â Sosa, 542 U.S. at 732-33, 124 S.Ct. 2739. This inquiry focuses on âthe consequences that might result from making the cause of action generally available to all potential plaintiffs,â and permits courts âto consider other prudential concerns consistent with Sosaâs approach.â Khulumani, 504 F.3d at 268 (Katzmann, J., concurring).
The body of international law that supplies the norms underlying an ATS claim is often referred to as âcustomary international law,â which consists of ârules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.â Id. at 267 (Katzmann, J., concurring) (quoting Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir.2003)); see also The Paquete Habana, 175 U.S. 677, 707-08, 20 S.Ct. 290, 44 L.Ed. 320 (1900); Abagninin, 545 F.3d at 738. To determine the content of customary international law, courts âlook to the sources of law identified by the Statute of the International Court of Justice.â Khulumani, 504 F.3d at 267 (Katzmann, J., concurring). These sources include international conventions, international customs, âthe general principles of law recognized by civilized nations,â âjudicial decisions,â and the works of scholars. Id.; see also Restatement (Third) of Foreign Relations Law § 102 (1987) (identifying similar sources). Courts also consult authorities that provide an authoritative expression of the
Here, the parties look primarily to three sources of customary international law. The first are decisions of the post â World War II International Military Tribunal at Nuremberg, which are widely recognized as a critical part of customary international law and regularly invoked in ATS litigation. See, e.g., Khulumani, 504 F.3d at 271 (Katzmann, J., concurring). The second are decisions issued by the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY, respectively), which were convened to prosecute violations of international humanitarian law committed in Rwanda during 1994 and war crimes that took place in the Balkans during the 1990s. These decisions are also recognized as authoritative sources of customary international law. Id. at 278-79; Abagninin, 545 F.3d at 739. The third is a recent decision issued by the Special Court for Sierra Leone (SCSL), which was convened to address violations of international humanitarian law in Sierra Leone since November 30, 1996. Prosecutor v. Taylor, Case No. SCSL-03-01-A (SCSL Sept. 26, 2013). We consider this decision to be a proper source of international law for ATS claims. The parties also cite the Rome Statute of the International Criminal Court in their briefing, but, as discussed in more detail below, dispute its relevance in this case.
The specific norms underlying the plaintiffsâ ATS claim are the norms against aiding and abetting slave labor, which the defendants allegedly violated by providing financial and non-financial assistance to cocoa farmers in the Ivory Coast. The defendants argue that this claim should be dismissed, for three reasons. First, the defendants argue that there is no specific, universal, and obligatory norm preventing corporations â as opposed to individualsâ from aiding and abetting slave labor. Second, the defendants argue that the plaintiffsâ complaint fails to allege the actus reus and mens rea elements of an aiding and abetting claim. Finally, the defendants argue that the plaintiffsâ complaint improperly seeks extraterritorial application of federal law contrary to the Supreme Courtâs recent decision in Kiobel v. Royal Dutch Petroleum Co., â U.S. â, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) (âKiobel IIâ). We consider each argument in turn.
A. Corporate Liability under the ATS
The primary focus of international law, although not its exclusive focus, is the conduct of states. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 165 (2d Cir.2010) (Leval, J., concurring) (âKio-bel I â). Many of its prohibitions therefore only apply to state action, and an important issue in ATS litigation can be determining whether the norm asserted by the plaintiff is applicable to both state actors and private actors. This issue is illustrated by the contrasting decisions of the D.C. Circuit in Tel-Oren v. Libyan Arab Republic and the Second Circuit in Kadic v. Karadzic. In Tel-Oren, Judge Edwards concluded that the plaintiffsâ ATS claim was barred because there was no consensus that international law applied to torture carried out by non-state actors. 726 F.2d 774, 791-95 (D.C.Cir.1984). In Kadic, by contrast, the Second Circuit held that international lawâs prohibition on genocide applies regardless of whether the perpetrator is acting on behalf of a state. 70 F.3d 232, 241-42 (2d Cir.1995).
The issue of corporate liability has been more thoroughly examined in the circuit courts, which have disagreed about whether and under what circumstances corporations can face liability for ATS claims. Kiobel I, 621 F.3d at 145; Doe v. Exxon Mobil Corp., 654 F.3d 11, 57 (D.C.Cir.2011), vacated on other grounds by 527 Fed.Appx. 7 (D.C.Cir.2013); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747 (9th Cir.2011), vacated on other grounds by â U.S. â, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013); Flomo, 643 F.3d at 1020-21. Here, we reaffirm the corporate liability analysis reached by the en banc panel of our circuit in Sarei v. Rio Tinto.
In Sarei the plaintiffs sought to hold corporate defendants liable for aiding and abetting genocide and war crimes. We first rejected the defendantsâ argument that corporations can never be sued under the ATS. Rather than adopting a blanket rule of immunity or liability, the Sarei court held that for each ATS claim asserted by the plaintiffs, a court should look to international law and determine whether corporations are subject to the norms underlying that claim. Id. at 748 (âSosa expressly frames the relevant international-law inquiry to be the scope of liability of private actors for a violation of the âgiven norm,â i.e. an international-law inquiry specific to each cause of action asserted.â). Thus, we adopted a norm-by-norm analysis of corporate liability.
The Sarei court then conducted corporate liability analyses for the two norms underlying the plaintiffsâ claims, the norm against genocide and the norm against war crimes. Id. at 759-61, 764-65. The en banc panel observed that both norms apply to states, individuals, and groups, and that the applicability of the norms turns on the âspecific identity of the victims rather than the identity of the perpetrators.â Id. at 760, 764-65 (emphasis added). Thus, we concluded that the norms were âuniversalâ or applicable to âall actors,â and, consequently, applicable to corporations. Id. at 760, 765. We reasoned that allowing an actor to âavoid liability merely by incorporatingâ would be inconsistent with the universal quality of these norms. See id. at 760 (discussing genocide).
In Sarei we also explained that a norm could form the basis for an ATS claim against a corporation even in the absence of a decision from an international tribunal enforcing that norm against a corporation. Id. at 761 (âWe cannot be bound to find liability only where international fora have imposed liability.â). Contra Kiobel I, 621 F.3d at 131-45. We explained that the absence of decisions finding corporations liable does not imply that corporate liability is a legal impossibility under international law, and also noted that the lack of decisions holding corporations liable could be explained by strategic considerations. Sarei, 671 F.3d at 761 (citing Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Colum. L.Rev. 1094, 1149-68 (2009)). Rejecting an analysis that focuses on past enforcement, Sarei reaffirmed that corporate liability ultimately turns on an analysis of the norm underlying the ATS claim. Id. at 760-61 (âWe ... believe the proper
We thus established three principles about corporate ATS liability in Sar-ei, that we now reaffirm. First, the analysis proceeds norm-by-norm; there is no categorical rule of corporate immunity or liability. Id. at 747-48. Second, corporate liability under an ATS claim does not depend on the existence of international precedent enforcing legal norms against corporations. Id. at 760-61. Third, norms that are âuniversal and absolute,â or applicable to âall actors,â can provide the basis for an ATS claim against a corporation. Id. at 760. To determine whether a norm is universal, we consider, among other things, whether it is âlimited to statesâ and whether its application depends on the identity of the perpetrator. Id. at 764-65.
We conclude that the prohibition against slavery is universal and may be asserted against the corporate defendants in this case. Private, non-state actors were held hable at Nuremberg for slavery offenses. The Flick Case, 6 Trials of War Criminals (T.W.C.) 1194, 1202. Moreover, the statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia are broadly phrased to condemn âpersons responsibleâ for enslavement of civilian populations. ICTY Statute Art. 5(c), U.N. S/RES/827 (May 25, 1993); ICTR Statute Art. 3(c), U.N. S/RES/955 (Nov. 8, 1994). The prohibition against slavery applies to state actors and non-state actors alike, and there are no rules exempting acts of enslavement carried out on behalf of a corporation. Indeed, it would be contrary to both the categorical nature of the prohibition on slavery and the moral imperative underlying that prohibition to conclude that incorporation leads to legal absolution for acts of enslavement. Kiobel I, 621 F.3d at 155 (Leval, J., concurring) (âThe majorityâs interpretation of international law, which accords to corporations a free pass to act in contravention of international lawâs norms, conflicts with the humanitarian objectives of that body of law.â).
A final point of clarification is in order about the role of domestic and international law. Although international law controls the threshold question of whether an international legal norm provides the basis for an ATS claim against a corporation, there remain several issues about corporate liability which must be governed by domestic law. This division of labor is dictated by international legal principles, because international law defines norms and determines their scope, but delegates to domestic law the task of determining the civil consequences of any given violation of these norms. Id. at 172 (Leval, J., concurring); Exxon, 654 F.3d at 42-43; Flomo, 643 F.3d at 1020. Thus, when questions endemic to tort litigation or civil liability arise in ATS litigation â such as damages computation, joint and several liability, and proximate causation â these issues must be governed by domestic law. Many questions that surround corporate liability fall into this category, including, most importantly, the issue of when the actions of an individual can be attributed to a corporation for purposes of tort liability. Determining when a corporation can be held liable therefore requires a court to apply customary international law to determine the nature and scope of the norm underlying the plaintiffsâ claim, and domestic tort law to determine whether recovery from the corporation is permissible.
Our holding that the norm against slavery is universal and thus may be asserted against the defendants addresses only the international legal issues related to corporate liability in this case. We do not ad
B. Aiding and Abetting Liability
We next consider whether the plaintiffsâ complaint alleges the elements of a claim for aiding and abetting slavery. Customary international law â not domestic law â provides the legal standard for aiding and abetting ATS claims. Sarei, 671 F.3d at 765-66. When choosing between competing legal standards, we consider which one best reflects a consensus of the well-developed democracies of the world. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (directing federal courts to apply legal norms in ATS litigation that are accepted by âcivilized nationsâ); Khulumani, 504 F.3d at 276 (Katzmann, J., concurring) (consulting the Rome Statuteâs aiding and abetting legal standard in part due to its wide acceptance among âmost of the mature democracies of the worldâ).
1. Mens Rea
The plaintiffs argue that the required mens rea for aiding and abetting is knowledge, specifically, knowledge that the aider and abetterâs acts would facilitate the commission of the underlying offense. This knowledge standard dates back to the Nuremberg tribunals, and is well illustrated by the Zyklon B Case, 1 Law RepoRts of Trials of Wae Criminals 93 (1946). There, the defendants supplied poison gas to the Nazis knowing that it would be used to murder innocent people, and were convicted of aiding and abetting war crimes. Id. at 101. An analogous knowledge standard is applied in The Flick Case, where a defendant was convicted of aiding and abetting war crimes for donating money to the leader of the SS, knowing that it would be used to support a criminal organization. 6 T.W.C. 1216-17, 1220-21; see also The Ministries Case, 14 T.W.C. 622 (concluding that the defendantâs knowledge regarding the intended use of a loan was sufficient to satisfy the mens rea requirement, but declining to find that the defendant satisfied the actus reus requirement).
As plaintiffs contend, this knowledge standard has also been embraced by contemporary international criminal tribunals. The International Criminal Tribunals for Rwanda and the former Yugoslavia consistently apply a knowledge standard. In Prosecutor v. Blagojevic, for instance, the tribunal stated that â[t]he requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.â No. IT-02-60-A, ¶ 127 (ICTY, May 9, 2007) (âBlagojevicâ); see also Prosecutor v. Kayishema, No. ICTR-95-1-T, ¶ 205 (ICTR, May 21, 1999); Khulumani, 504 F.3d at 277-79 (Katzmann, J., concurring) (observing that the ICTY and ICTR decisions apply a knowledge standard); Exxon, 654 F.3d at 33-34 (same). Additionally, after conducting an extensive review of customary international law, the Appeals Chamber of the Special Court for Sierra Leone recently affirmed this knowledge standard, concluding that âan accusedâs knowledge of the consequence of his acts or conduct â that is, an accusedâs âknowing participationâ in the crimes â is a culpable mens rea standard for individual criminal liability.â Taylor, ¶ 483.
However, two of our sister circuits have concluded that knowledge is insufficient and that an aiding and abetting ATS defendant must act with the purpose of facilitating the criminal act, relying on the Rome Statute of the International Criminal Court, 37 I.L.M. 999 (1998) (âRome Statuteâ). See Aziz v. Alcolac, Inc., 658 F.3d 388, 399-400 (4th Cir.2011); Presby
[A] person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... [f]or the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission....
Rome Statute, art. 25(3)(c) (emphasis added). Taking this text at face value, as the Second and Fourth Circuits did, it appears that the Rome Statute rejects a knowledge standard and requires the heightened mens rea of purpose, suggesting that a knowledge standard lacks the universal acceptance that Sosa demands.
Here, we need not decide whether a purpose or knowledge standard applies to aiding and abetting ATS claims. We conclude that the plaintiffsâ allegations satisfy the more stringent purpose standard, and therefore state a claim for aiding and abetting slavery. All international authorities agree that âat least purposive action ... constitutes aiding and abetting[.]â Sarei, 671 F.3d at 765-66 (declining to determine whether the mens rea required for an aiding and abetting claim is knowledge or purpose).
Reading the allegations in the light most favorable to the plaintiffs, one is led to the inference that the defendants placed increased revenues before basic human welfare, and intended to pursue all options available to reduce their cost for purchasing cocoa. Driven by the goal to reduce costs in any way possible, the defendants allegedly supported the use of child slavery, the cheapest form of labor available. These allegations explain how the use of child slavery benefited the defendants and furthered their operational goals in the Ivory Coast, and therefore, the allegations support the inference that the defendants acted with the purpose to facilitate child slavery.
The defendantsâ alleged plan to benefit from the use of child slave labor starkly distinguishes this case from other ATS decisions where the purpose standard was not met. See Talisman, 582 F.3d at 262-64; Aziz, 658 F.3d at 390-91, 401. According to the allegations here, the defendants have not merely profited by doing business with known human rights violators. Instead, they have allegedly sought to accomplish their own goals by supporting violations of international law. In Talisman, by contrast, the defendant did not in any way benefit from the underlying human rights atrocities carried out by the Sudanese military, and in fact, those atrocities ran contrary to the defendantâs goals in the area, and even forced the defendant to abandon its operations. Talisman, 582 F.3d at 262. Similarly, in Aziz, the plaintiffs alleged that the defendants sold chemicals knowing they would be used to murder Kurds in northern Iraq, but failed to allege that the defendants had anything to gain from the use of chemical weapons. Aziz, 658 F.3d at 394, 401. Thus, in Talisman and Aziz, the purpose standard was not satisfied because the defendants had nothing to gain from the violations of international law, and in Talisman, the violations actually ran counter to the defendantsâ interest. Here, however, the complaint alleges that the defendants obtained a direct benefit from the commission of the violation of international law, which bolsters the allegation that the defendants acted with the purpose to support child slavery.
The defendantsâ control over the Ivory Coast cocoa market further supports the