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U.S. seeks shutdown of South Africa case

The Justice Department on Monday night urged the Supreme Court to put an end to further court action in a massive lawsuit accusing a broad group of businesses of helping the former South African government maintain rigid separation of the races under the apartheid policy (American Isuzu Motors v. Ntsebeza, et al., 07-919).  As U.S. Solicitor General Paul D. Clement had signaled on Feb. 1, the government filed an amicus brief arguing that U.S. courts should not allow the “unprecedented and sprawling” litigation to proceed on the legal theory behind its $400-billion-plus claims against U.S. and foreign business firms.  The brief can be downloaded here.

The brief contended that the lawsuit by private parties against businesses that operated in South Africa during the apartheid era would bring about a “dramatic expansion” of U.S. law, particularly the Alien Tort Statute, with significant consequences for foreign relations.

When the 34 companies filed their appeal on Jan. 10, they raised three questions.  The Solicitor General urged the Court to grant review on only the second of those three, saying the Second Circuit Court had not decided the other two.

The issue that the Court should decide — and reject it as a claim, the government said — is whether a private party may be sued under the Alien Tort Statute for aiding and abetting a violation of inernational law by a foreign government in its own territory.  The Solicitor General noted that, if the Court rejects that theory, it would permit the early dismissal of cases like this one.  If that theory is allowed to stand, the brief contended, it would invite similar lawsuits to be filed.  In fact, it suggested, the Circuit Court ruling “virtually invites an ATS action in New York whenever there are allegations of human rights violations anywhere in the world.”

That is the theory on which the Second Circuit ruled that the case could proceed, at least through some pre-trial stages.

The first question raised in the companies’ petition is whether the case should be dismissed on “prudential” grounds specific to this case, in the face of opposition by U.S. and foreign governments.  The Solicitor General said that, while the Circuit Court had raised the prospect that, at some time, the District Court might dismiss the case on case-specific grounds, the appeals court did not actually rule on that point.

The third question posed in the firms’ petition — whether a private party could be held liable under the Alien Tort Statute for violating international law standards established by a treaty against genocide — also was not decided by the Circuit Court, the government noted.