The Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016 (2d Cir. 2009)
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07-0016-cv The Presbyterian Church of Sudan v. Talisman Energy, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: January 12, 2009 Decided: October 2, 2009) Docket No. 07-0016-cv - - - - - - - - - - - - - - - - - - - -x THE PRESBYTERIAN CHURCH OF SUDAN, REV. MATTHEW MATHIANG DEANG, REV. JAMES KOUNG NINREW, NUER COMMUNITY DEVELOPMENT SERVICES IN U.S.A, FATUMA NYAWANG GARBANG, NYOT TOT RIETH, individually and on behalf of the estate Of her husband JOSEPH THIET MAKUAC, STEPHEN HOTH, STEPHEN KUINA, CHIEF TUNGUAR KUEIGWONG RAT, LUKA AYUOL YOL, THOMAS MALUAL KAP, PUOK BOL MUT, CHIEF PATAI TUT, CHIEF PETER RING PATAI, CHIEF GATLUAK CHIEK JANG, YIEN NYINAR RIEK AND MORIS BOL MAJOK, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, -v.TALISMAN ENERGY, INC., Defendant-Appellee, REPUBLIC OF THE SUDAN, Defendant. - - - - - - - - - - - - - - - - - - - -x 07-0016-cv 1 2 3 4 Before: JACOBS, Chief Judge, LEVAL and CABRANES, Circuit Judges. Appeal from a grant of summary judgment in favor of 5 Talisman Energy, Inc. ( Talisman ) on Plaintiffs-Appellants 6 claims under the Alien Tort Statute. 7 District Court for the Southern District of New York (Cote, 8 J.) held that to establish accessorial liability for 9 violations of the international norms prohibiting genocide, The United States 10 war crimes, and crimes against humanity, plaintiffs were 11 required to prove, inter alia, that Talisman provided 12 substantial assistance to the Government of the Sudan with 13 the purpose of aiding its unlawful conduct. 14 affirm dismissal on the ground that plaintiffs have not 15 established Talisman s purposeful complicity in human rights 16 abuses. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 We agree, and PAUL L. HOFFMAN, Schonbrun DeSimone Seplow Harris & Hoffman, Venice , CA (Adrienne J. Quarry, Schonbrun DeSimone Seplow Harris & Hoffman, Venice , CA; Carey D Avino, Stephen Whinston, and Keino Robinson, Berger & Montague, P.C., Philadelphia, PA; Lawrence Kill, John O Connor, and Stanley Bowker, Anderson Kill & Olick, P.C., New York, NY; Daniel E. Seltz, Steven E. Fineman, and Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 York, NY on the brief), for Plaintiffs-Appellants MARC J. GOTTRIDGE (Joseph P. Cyr, Scott W. Reynolds, Andrew M. Behrman, on the brief), Lovells, New York, NY, for Defendant-Appellee RALPH STEINHARDT , Professor of Law, George Washington University Law School, Washington, DC (William J. Aceves, Professor of Law, California Western School of Law, San Diego, CA, on the brief) for Amici Curiae International Law Scholars in Support of Appellants RICHARD L. HERZ (Marco B. Simons, on the brief), Earthrights International, Washington, DC, for Amicus Curiae Earthrights International in Support of PlaintiffsAppellants and Reversal Judith Brown Chomsky and Michael Poulshock, Law Office of Judith Brown Chomsky, Elkins Park, PA, and Jennifer M. Green and Katherine Gallagher, Center for Constitutional Rights, New York, NY, for Amicus Curiae on Civil Conspiracy and Joint Criminal Enterprise in Support of Plaintiffs-Appellants and in Support of Reversal of the District Court s Opinion Terrence P. Collingsworth, Derek Baxter, and Natacha Thys, 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 International Labor Rights Fund, Washington, DC, for Amicus Curiae International Labor Rights Fund in Support of Plaintiffs-Appellants Mark Diamond, Counsel for Amici Curaie, New York, NY, for Amici Curiae Lexiuste Cajuste, Neris Gonzalez, Zenaida Velásquez Rodriguez, and Francisco Calderon in Support of Plaintiffs-Appellants Urging Reversal Renee C. Redman, Legal Director, American Civil Liberties Union Foundation of Connecticut, Hartford, CT, for Amici Curiae Canadian Parliamentarians in Support of the Appellants Jonathan W. Cuneo and R. Brent Walton, Cuneo Gilbert & LaDuca, LLP, Washington, DC, for Amici Curiae The Rt. Reverand Keith L. Ackerman, SSC, Bishop, Diocese of Quincy, the Episcopal Church; Christian Solidarity International-USA; Coalition for the Defense of Human Rights; Family Research Council; Institute on Religion & Democracy; Renew Network; Servant s Heart; Sudan Advocacy Action Forum; Sudan Sunrise; and Trinity Presbytery s Sudan Ministry in Support of Appellants LEWIS S. YELIN, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC (Michael J. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Garcia, United States Attorney, and David S. Jones, Assistant United States Attorney, Southern District of New York, New York, NY, John B. Bellinger III, Legal Advisor, Department of State, Washington, DC, Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Douglas N. Letter and Robert M. Loeb, Attorneys, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC, on the brief), for Amicus Curiae United States SAMUEL ESTREICHER, NYU School of Law, New York, NY (Michael D. Ramsey, University of San Diego School of Law, San Diego, CA on the brief), for Amici Curiae Professors of International Law, Federal Jurisdiction and the Foreign Relations Law of the United States in Support of Defendant-Appellee Karen M. Asner and Milana Salzman, White & Case LLP, New York, NY, for Amicus Curiae the Government of Canada in Support of Dismissal of the Underlying Action Robin S. Conrad and Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC, and John Townsend Rich, Paul R. Friedman, and William F. Sheehan, Goodwin Proctor LLP, Washington, DC for Amicus Curiae the Chamber of Commerce of the United States of America in Support of Defendant5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Appellee Talisman Energy, Inc. and in Support of Affirmance Daniel J. Popeo and Richard A. Samp, Washington Legal Foundation, Washington, DC for Amici Curiae Washington Legal Foundation and Allied Educational Foundation in Support of Defendant/Appellee, Urging Affirmance James J. Dillon, Foley Hoag LLP, Boston, MA, Janet Walker, Professor of Law, Osgood Hall Law School of York University, Toronto, Ontario, Canada, and H. Scott Fairley, Theall Group LLP, Toronto, Ontario, Canada, for Amici Curiae the Canadian Chamber of Commerce; the Mining Association of Canada; the Canadian Association of Petroleum Producers; and the Prospectors and Developers Association of Canada in Support of Defendant-Appellee James J. Dillon, Foley Hoag LLP, Boston, MA, for Amici Curiae The National Foreign Trade Council; The Independent Petroleum Association of America; and The United States Council for International Business in Support of Defendant-Appellee Christopher Greenwood, CMG, QC, Essex Court Chambers, London, United Kingdom, for Amicus Curiae Professor Christopher Greenwood, CMG, QC, in Support of Defendant-Appellee 6 1 2 3 4 5 6 7 8 9 10 11 12 James Crawford, Whewell Professor of International Law, University of Cambridge, Cambridge, United Kingdom, for Amicus Curiae Professor James Crawford in Support of Defendant-Appellee DENNIS JACOBS, Chief Judge: Plaintiffs-Appellants are Sudanese who allege that they 13 are victims of human rights abuses committed by the 14 Government of the Sudan in Khartoum ( the Government ) and 15 that Talisman Energy, Inc. ( Talisman ), a Canadian 16 corporation, aided and abetted or conspired with the 17 Government to advance those abuses that facilitated the 18 development of Sudanese oil concessions by Talisman 19 affiliates. 20 States District Court for the Southern District of New York 21 (Cote, J.) dismissing their claims under the Alien Tort 22 Statute ( ATS ), 28 U.S.C. § 1350. 23 Plaintiffs appeal from a judgment of the United We hold that under the principles articulated by the 24 United States Supreme Court in Sosa v. Alvarez-Machain, 542 25 U.S. 692 (2004) , the standard for imposing accessorial 26 liability under the ATS must be drawn from international 27 law; and that under international law, a claimant must show 28 that the defendant provided substantial assistance with the 7 1 purpose of facilitating the alleged offenses. 2 standard, we affirm the district court s grant of summary 3 judgment in favor of Talisman, because plaintiffs presented 4 no evidence that the company acted with the purpose of 5 harming civilians living in southern Sudan. 6 Applying that It becomes necessary to set out at some length the 7 background of the hostilities in the Sudan; the history of 8 the oil enterprise, its facilities and corporate structure; 9 the security measures taken by the enterprise and by the 10 Government; the injuries and persecutions alleged; and the 11 extent and nature of Talisman s connection to the human 12 rights abuses. 13 14 15 BACKGROUND A. Civil War in the Sudan 16 At the time Sudan obtained its independence from 17 Britain and Egypt in 1956, civil war broke out between the 18 Arab-dominated Islamic regime in the north, and the non- 19 Muslim African population in the south.1 In 1972, the two 1 The facts are set forth in detail in the district court s summary judgment decision. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 64161 (S.D.N.Y. 2006) . We recount only those facts that bear upon the disposition of the appellate issues. 8 1 sides reached a power-sharing agreement in Addis Ababa, 2 Ethiopia, after which relative stability ensued until an 3 anti-Government uprising in 1983. 4 In 1991, southern rebels fractured, and the factions 5 fought the Government and each other, with large-scale 6 displacement and death among civilians. 7 In April 1997, the Government signed the Khartoum 8 Peace Agreement ( KPA ) with several (but not all) of the 9 southern rebel groups. The KPA provided for religious 10 freedom, a cease-fire, sharing of resources and power 11 between the north and south, creation of a Coordinating 12 Council of factions in southern Sudan, and the 13 consolidation of most of the rebel militias into the South 14 Sudan Defense Force ( SSDF ), which was aligned with the 15 Government, but with a measure of autonomy and control in 16 the south. 17 the SSDF split into warring factions by 1998, and competing 18 militia groups continued fighting each other and the 19 Government. 20 that Talisman operated in the Sudan. 21 B. 22 The benefits of this agreement were short-lived: This violence continued throughout the time Oil Development in the Sudan After Chevron discovered oil in southern Sudan in 1979, 9 1 the Government granted development rights to foreign 2 companies for six numbered blocks. 3 In August 1993, a Canadian company named State 4 Petroleum Company ( SPC ) purchased the rights to develop 5 blocks 1, 2, and 4. 6 became a wholly owned subsidiary of, another Canadian 7 company, Arakis Energy Corporation ( Arakis ). 8 9 In 1994, SPC was acquired by, and In December 1996, SPC formed a consortium with three other companies: China National Petroleum Corporation 10 ( CNPC ), Petronas Carigali Overseas SDN BHD ( Petronas ), 11 and Sudapet, Ltd. ( Sudapet ) (collectively the 12 Consortium ), which were wholly owned by China, Malaysia, 13 and the Republic of the Sudan, respectively. 14 members signed agreements among themselves and with the 15 Government concerning oil exploration, production, and 16 development, as well as the construction of a pipeline from 17 the Consortium s concession area to the Red Sea. 18 half of the Consortium s profits accrued to the Government. 19 The Consortium More than The Consortium members conducted operations through a 20 Mauritius corporation, called the Greater Nile Petroleum 21 Operating Company Limited ( GNPOC ), which was owned 40% by 22 CNPC, 30% by Petronas, 25% by SPC, and 5% by Sudapet. 10 1 2 C. Talisman s Purchase of Arakis In October 1998, Talisman acquired Arakis and its 25% 3 stake in GNPOC. 4 through Talisman s indirect subsidiary, State Petroleum 5 Corporation B.V., which was later renamed Talisman (Greater 6 Nile) B.V. ( Greater Nile ) on December 10, 1998. 7 Nile was a wholly-owned subsidiary of Goal 8 Olie-en-Gasexploratie B.V., which at the time was wholly 9 owned by British companies. The purchase of Arakis was effectuated Greater The British companies were 10 wholly owned subsidiaries of Talisman Energy (UK) Limited, 11 which was a direct and wholly owned subsidiary of Talisman. 12 Before purchasing Arakis, Talisman engaged in several 13 months of due diligence: meetings between senior Talisman 14 executives and governmental and security officials in the 15 Sudan; conversations with GNPOC employees and visits to 16 GNPOC development sites; reports on security conditions in 17 the country; roundtable discussions in Canada with 18 representatives of non-governmental organizations, church 19 groups, and other stakeholders; and consultations with 20 representatives of the British government, which controlled 21 the Sudan in condominium with Egypt from 1899 to 1956. 22 Among their many meetings, Talisman CEO Jim Buckee and 11 1 other Talisman officers met with Riek Machar ( Machar ), 2 then the First Assistant to the President of the Sudan and 3 head of the Southern Sudan Coordinating Council ( SSCC ) and 4 the SSDF. 5 State Governor Taban Deng Gai, provided assurances 6 concerning safety, security, and peace. 7 Sudanese officials, including Machar and Unity Robert Norton, the head of security for Arakis in the 8 Sudan from 1994 to 1998, advised Talisman that the oil 9 fields were protected both by the military and by 10 Government-sponsored militias. 11 Talisman s assistance would greatly advance oil exploration, 12 it would tip the military balance in favor of the 13 Government. 14 in the Sudan. Norton opined that, though Norton believed that Talisman should not invest 15 A representative of Freedom Quest International also 16 discouraged Talisman from investing in the Sudan, warning 17 senior Talisman officials that GNPOC and the Government used 18 the Sudanese military to expel civilian populations from 19 villages in order to create a cordon sanitaire ( buffer 20 zone ) around oil fields. 21 D. 22 Security Arrangements for GNPOC Because GNPOC s operations took place amidst civil war, 12 1 security arrangements were made for Consortium personnel in 2 coordination with the Government and military forces. 3 Plaintiffs contend that these arrangements resulted in the 4 persecution of civilians living in or near the oil 5 concession areas. 6 In May 1999, GNPOC and the Government built all-weather 7 roads traversing the oil concession areas and linking the 8 concessions to military bases. 9 and equipment, these roads served the dual purposes of To protect GNPOC s employees 10 moving personnel for oil operations and facilitating 11 military activities. 12 enabled the military to operate year-round in areas prone to 13 seasonal flooding, enhancing the military s ability to 14 launch attacks. 15 According to plaintiffs, these roads In 1999-2000, GNPOC upgraded two airstrips in the 16 concessions--Heglig and Unity--for the safety and 17 convenience of GNPOC personnel. 18 the effect of supporting military activity, because the 19 Government began using the airstrips to supply troops, take 20 defensive action, and initiate offensive attacks. 21 22 The improvements also had Heglig, in particular, was used extensively by the military. Talisman employees saw outgoing flights by 13 1 helicopter gunships and Antonov bombers. 2 security advisor observed 500-pound bombs being loaded on 3 Government-owned Antonov bombers at Heglig and regular 4 bombing runs from the airstrip. 5 GNPOC personnel refueled military aircraft, sometimes with 6 GNPOC s own fuel. 7 One Talisman At both Heglig and Unity, During the time that Greater Nile was a member of the 8 Consortium, it employed former soldiers as security advisors 9 who traveled throughout the concession areas, coordinated 10 with Mohammed Mokhtar (the former Sudanese Army colonel who 11 served as head of GNPOC security), and wrote detailed 12 reports for senior Talisman officials.2 13 Talisman CEO Buckee was aware of the military s 14 activities from GNPOC airstrips. 15 to Sudanese Minister of National Defense Major General Bakri 16 Hassan Saleh urging restraint in the Government s military 17 activities and warning that whatever the military 18 objectives may be, the bombings are [universally] construed 2 In February 2001, he wrote Talisman argues that security reports prepared for Greater Nile are inadmissible because of multiple levels of hearsay lurking in the documents and the absence of a hearsay exception allowing for their admission. We do not reach this question, because even assuming the reports would be admissible in their entirety, they would not defeat summary judgment. 14 1 as violations of international humanitarian law. 2 Nile employees expressed concern to Mokhtar and Government 3 officials about bombers and helicopter gunships using the 4 airstrips. 5 Greater Notwithstanding occasional breaks, the military 6 continued to use the facilities. 7 the Heglig facility in August 2001, Buckee dropped his 8 objection to the presence of helicopter gunships, and a 9 Greater Nile security officer wrote to the Government After a missile attack on 10 emphasizing the need for security at GNPOC s facilities. 11 E. 12 Buffer Zone Strategy At the heart of plaintiffs complaint is the allegation 13 that the Government created a buffer zone around GNPOC 14 facilities by clearing the civilian population to secure 15 areas for exploration. 16 Talisman reports show evidence of forced displacement. 17 example, a 2002 Greater Nile report describing the buffer 18 zone around the Heglig camp explained that [t]he remaining 19 nomads . . . are being encouraged to complete their move 20 through the area as soon as possible. 21 security ring road while not a sterile area as found on 22 security operations elsewhere . . . is moving in that Witness testimony and internal 15 For The area within the 1 direction. 2 military strategy, driven it appears by the GNPOC security 3 management, is to create a buffer zone, i.e. an area 4 surrounding both Heglig and Unity camps inside which no 5 local settlements or commerce is allowed. 6 F. 7 A 1999 security report stated that [t]he Greater Nile Inquiry into Expanding its Exploration Area Greater Nile explored options for drilling new wells 8 within GNPOC s concession, but outside the small area 9 secured by the military in which production was ongoing. 10 Greater Nile considered expanding exploration 11 notwithstanding its knowledge of the Government s buffer 12 zone strategy. 13 where to explore were based upon technical analysis of 14 geological formations performed by Talisman employees in 15 Calgary, without regard to the human consequences of 16 expansion. 17 G. 18 According to plaintiffs, decisions about Plaintiffs Injuries The individual plaintiffs remaining in the case consist 19 of current or former residents of southern Sudan who were 20 injured or displaced by Government forces in attacks on 21 communities in Blocks 1, 2, and 5A. 22 subjected to assaults by foot soldiers, attackers on 16 The plaintiffs were 1 horseback, gunships, and bombers. 2 depositions, with varying degrees of certainty, as to 3 whether the attacks were perpetrated by the Government. 4 They testified at The Presbyterian Church of Sudan asserts claims based 5 on the destruction of its churches by the Government. 6 Plaintiffs Rev. James Koung Ninrew, Chief Tunguar Kueigwong 7 Rat, and Chief Gatluak Chiek Jang testified to seeing 8 churches burned in the Government s attacks. 9 H. 10 Procedural History In November 2001, the Presbyterian Church of Sudan and 11 four individual plaintiffs purporting to represent a class 12 of thousands of southern Sudanese filed a complaint against 13 Talisman in the United States District Court for the 14 Southern District of New York. 15 complaint in February 2002 naming additional plaintiffs and 16 adding the Government as a defendant. 17 complaint alleged that Talisman (1) directly violated, (2) 18 aided and abetted the Government of Sudan in violating, and 19 (3) conspired with the Government of Sudan to violate 20 customary international law related to genocide, torture, 21 war crimes, and crimes against humanity. 22 subsequently abandoned the claim of direct liability and 17 Plaintiffs filed an amended Plaintiffs amended Plaintiffs 1 elected to proceed against Talisman only on the claims of 2 aiding and abetting and conspiracy. 3 1. 4 Talisman s Motions to Dismiss The case was initially assigned to Judge Allen 5 Schwartz. 6 decision denying Talisman s motion to dismiss on numerous 7 jurisdictional grounds. 8 Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003). 9 The case was reassigned to Judge Denise Cote after In March 2003, Judge Schwartz issued a lengthy Presbyterian Church of Sudan v. 10 Judge Schwartz died in March 2003. 11 Second Amended Class Action Complaint in August 2003, which 12 added plaintiffs. 3 13 Plaintiffs filed a After the Supreme Court s decision in Sosa, and our 14 decision in Flores v. Southern Peru Copper Corp., 414 F.3d 15 233 (2d Cir. 2003), defendants moved for judgment on the 16 pleadings arguing that the decisions changed the landscape 17 for ATS claims and required reconsideration of the 18 conclusions that [i] corporations can be liable for 19 violating the ATS, and [ii] accessorial liability is 3 On August 27, 2004, after the submission of relevant discovery, the district court again denied a motion to dismiss for lack of personal jurisdiction. Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2004 WL 1920978 (S.D.N.Y. Aug. 27, 2004). 18 1 recognized under the ATS. 2 the district court denied Talisman s motion. 3 Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 4 331 (S.D.N.Y. 2005). By decision dated June 13, 2005, Presbyterian 5 Talisman again moved for judgment on the pleadings 6 based on a letter from the United States Attorney, with 7 attachments from the Department of State and Embassy of 8 Canada expressing concern with the litigation. 9 Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. Presbyterian 10 9882(DLC), 2005 WL 2082846, at *1 (S.D.N.Y. Aug. 30, 2005). 11 The Department of State advised that considerations of 12 international comity and judicial abstention may properly 13 come into play in view of Canada s objections to the 14 litigation and the United States government s determination 15 that Canadian courts were capable of adjudicating 16 plaintiffs claims. 17 court s exercise of jurisdiction [i] infringed on its 18 sovereignty, [ii] chilled its ability to use trade support 19 services as both a stick and carrot in support of peace, 20 and [iii] violated traditional restraints on the exercise of 21 extraterritorial jurisdiction. 22 Id. at *2. Canada argued that the Id. at *1-2. In August 2005, the district court denied Talisman s 19 1 motion. 2 court found an insufficient nexus between Canada s foreign 3 policy and the specific allegations in the complaint because 4 the litigation did not require judging Canada s policy of 5 constructive engagement with the Sudan, but merely judging 6 whether Talisman acted outside the bounds of customary 7 international law while doing business in Sudan. 8 *5-8. 9 unable to consider civil suits for violations of the law of 10 11 Id. at *9. As to dismissal on comity grounds, the Id. at The court also observed that Canadian courts are nations. Id. at *7. As to dismissal on political question grounds, the 12 court emphasized that the State Department letter did not 13 explicitly declare that the lawsuit would interfere with 14 United States policy toward the Sudan or Canada, and the 15 court concluded therefore that exercising jurisdiction would 16 not unduly intrude on the authority of the executive 17 branch. 4 Id. at *8. 4 In 2005, the district court denied two motions for class certification on the ground that plaintiffs failed to satisfy the predominance requirement. Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 482-85 (S.D.N.Y. 2005); Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2005 WL 2278076, at *1 (S.D.N.Y. Sep. 20, 2005). The court explained that all class members would have to show that the injuries for which they are claiming damages were actually caused by [a 20 1 2 2. Motions to Amend and for Summary Judgment In April 2006, plaintiffs filed a Proposed Third 3 Amended Class Action Complaint. 4 the district court ruled on plaintiffs motion), Talisman 5 moved for summary judgment as to all claims. 6 12, 2006, the district court granted Talisman s motion. 7 Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 8 F. Supp. 2d 633 (S.D.N.Y. 2006). 9 Later that month (before On September See The district court first considered whether 10 international law recognized conspiracy liability. 11 court held that the offense of conspiracy is limited to 12 conspiracies to commit genocide and to wage aggressive war 13 and that international law does not recognize the doctrine 14 of liability articulated in Pinkerton v. United States, 328 15 U.S. 640, 646-47 (1946). Presbyterian Church of Sudan, 453 16 F. Supp. 2d at 663, 665. The court observed that plaintiffs 17 never brought a claim for wag[ing] aggressive war and that The Government campaign in the south], which would require individual, fact-intensive inquiries, given the numerous factions of rebel groups and the fog of war. Presbyterian Church of Sudan, 226 F.R.D. at 482. Moreover, damages to class members occurred over more than four years, a territory of many hundreds of square miles, . . . [and] through at least 142 separate incidents. Presbyterian Church of Sudan, 2005 WL 2278076, at *3. 21 1 they had abandoned their genocide claim. 2 Nonetheless, the court addressed the genocide claim and held 3 that plaintiffs could not be made liable for a co- 4 conspirator s conduct solely because that conduct was 5 foreseeable. Id. at 665. Id. 6 The district court next considered plaintiffs claim 7 that Talisman aided and abetted genocide, war crimes, and 8 crimes against humanity. 9 elements of aiding and abetting liability under the ATS, and 10 concluded that they must be derived from international law. 11 The court comprehensively surveyed international law and 12 held that: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 The court undertook to define the To show that a defendant aided and abetted a violation of international law, an ATS plaintiff must show: 1) that the principal violated international law; 2) that the defendant knew of the specific violation; 3) that the defendant acted with the intent to assist that violation, that is, the defendant specifically directed his acts to assist in the specific violation; 4) that the defendant s acts had a substantial effect upon the success of the criminal venture; 22 1 2 3 4 5 6 and 5) that the defendant was aware that the acts assisted the specific violation. Id. at 668. 7 As to plaintiffs genocide claim, the court held that 8 whether or not genocide was taking place, plaintiffs had 9 presented no evidence that Talisman was aware of the 10 genocide, or, if it was, that Talisman intended to further 11 it. 12 Id. at 669-70. As to war crimes and crimes against humanity, the court 13 identified the kinds of substantial assistance that 14 Talisman allegedly provided in aid of these violations: 15 (1) upgrading the Heglig and Unity airstrips; (2) 16 designating areas south of the river in Block 4 for oil 17 exploration; (3) providing financial assistance to the 18 Government through the payment of royalties; (4) giving 19 general logistical support to the Sudanese military; and (5) 20 various other acts. 21 Id. at 671-72. The court determined that the airstrips at Unity and 22 Heglig were owned and operated by GNPOC--not Talisman--and 23 that there was no evidence that Talisman upgraded or 24 improved the airstrips. Id. at 673. 23 Moreover, even if 1 plaintiffs could show that Talisman was involved, there is 2 no evidence that it upgraded the airstrips with the 3 intention that the Government would use them for missions 4 that violate human rights. 5 Id. at 674. As to designating areas south of the river for 6 exploration, the court determined that preliminary 7 discussions about expanding operations did not violate 8 international humanitarian law and that there was no 9 evidence Talisman was involved in such discussions, let 10 alone that it considered the expansion as a pretext for 11 attacking civilians. 12 Id. at 675. As to Talisman s payment of royalties to the 13 Government, the court found no admissible evidence of the 14 relationship between oil profits and military spending. 15 Nonetheless, the court assumed the relationship, and held 16 that such payments were not enough to establish liability in 17 the absence of evidence that Talisman specifically 18 directed payments to military procurement or that it 19 intended to aid attacks. 20 Id. Id. at 676. As to the construction of all-weather roads and the 21 provision of fuel to the military, the court concluded that 22 the assistance was provided by GNPOC, not Talisman, which 24 1 2 had a limited presence on the ground. Id. at 676-77. Finally, the court addressed plaintiffs allegations 3 that Talisman assisted the Government by using its 4 community development program as a cover for gathering 5 military intelligence and by publicly denying knowledge of 6 human rights violations. 7 admissible evidence of the former allegation, and concluded 8 that the latter did not constitute substantial assistance 9 in violation of international humanitarian law. The court ruled that there was no Id. at 677. 10 Although not necessary for deciding Talisman s motion, 11 the court ruled on whether plaintiffs could show that their 12 injuries were caused by attacks initiated from GNPOC 13 airfields, finding that only three plaintiffs were 14 arguably attacked with GNPOC assistance, id. at 677, and 15 that there was an absence of admissible evidence as to which 16 Government aircraft flew particular missions, id. at 678. 17 Further, plaintiffs motion to amend the complaint was 18 denied on the ground that plaintiffs could not show good 19 cause to amend three years after the deadline for amendment 20 set forth in the scheduling order. 21 went on, however, to discuss the merits of the amended 22 complaint and whether it could survive a motion for summary 25 Id. at 680. The court 1 judgment (given that the discovery period had closed). 2 court conducted a comprehensive choice of law analysis, and 3 concluded that [i] there was no basis for applying domestic 4 federal law to plaintiffs claims against foreign 5 corporations, id. at 681-83, and [ii] plaintiffs could not 6 pierce the corporate veils of Talisman s subsidiaries or 7 hold GNPOC or the subsidiaries liable on theories of joint 8 venture or agency, id. at 683-89. 9 The Having prevailed on summary judgment, Talisman moved 10 for partial judgment pursuant to Federal Rule of Civil 11 Procedure 54(b), so that it could achieve finality in the 12 case notwithstanding the Government s failure to enter an 13 appearance. 14 and entered judgment in favor of Talisman. 15 Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 16 9882(DLC), 2006 WL 3469542, at *2 (S.D.N.Y. Dec. 1, 2006). 17 This appeal followed. The district court granted Talisman s motion See Presbyterian 18 19 20 DISCUSSION Plaintiffs argue that, in granting summary judgment, 21 the district court drew inferences in favor of Talisman, 22 excluded plaintiffs evidence from consideration, and failed 26 1 to hold Talisman responsible for human rights abuses 2 committed by its partners and agents. 3 de novo the district court s grant of summary judgment, 4 drawing all factual inferences in favor of the non-moving 5 party. 6 101, 107 (2d Cir. 2008). This Court review[s] Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 7 8 9 I The ATS provides that [t]he district courts shall have 10 original jurisdiction of any civil action by an alien for a 11 tort only, committed in violation of the law of nations or a 12 treaty of the United States. 13 the statute was passed as part of the Judiciary Act of 1789, 14 it provided jurisdiction in only one case in its first 170 15 years. 16 became more frequent after the issuance of Filártiga v. 17 Peña-Irala, 630 F.2d 876 (2d Cir. 1980), which held that 18 deliberate torture perpetrated under color of official 19 authority violates universally accepted norms of the 20 international law of human rights, regardless of the 21 nationality of the parties, and that the ATS provides 22 federal jurisdiction over torture claims. 28 U.S.C. § 1350. Sosa, 542 U.S. at 712. 27 Although Invocation of the statute Id. at 878. The 1 torturer was likened to the pirate and slave trader of old, 2 an enemy of all mankind. 3 Id. at 890. Filártiga held that courts must interpret 4 international law not as it was in 1789, but as it has 5 evolved and exists among the nations of the world today. 6 Id. at 881. 7 restraint: [t]he requirement that a rule command the 8 general assent of civilized nations to become binding upon 9 them all is a stringent one. At the same time, Filártiga cautioned Id. It is only where the 10 nations of the world have demonstrated that the wrong is of 11 mutual, and not merely several, concern, by means of express 12 international accords, that a wrong generally recognized 13 becomes an international law violation within the meaning of 14 the statute. 15 Id. at 888. In Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), we 16 concluded that certain forms of conduct violate the law of 17 nations whether undertaken by those acting under the 18 auspices of a state or only as private individuals. 19 239. 20 crimes against individuals could proceed without state 21 action. 22 Id. at Kadic recognized that claims for genocide and war Id. at 244. In Flores, we surveyed the state of ATS case law and 28 1 engaged in a detailed analysis of the ATS and related 2 principles of international law. 3 elements required to state a claim under the ATS: 4 plaintiffs must (i) be aliens, (ii) claiming damages for 5 a tort only, (iii) resulting from a violation of the law 6 of nations or of a treaty of the United States. 7 F.3d at 242 (quoting 28 U.S.C. § 1350). 8 caution: in determining what offenses violate customary 9 international law, courts must proceed with extraordinary Flores distilled three 414 We again issued a 10 care and restraint. 11 this case is whether accessorial liability can be imposed 12 absent a showing of purpose. 13 look primarily to the formal lawmaking and official actions 14 of States and only secondarily to the works of scholars as 15 evidence of the established practices of States. 5 Id. at 248. The decisive issue in To answer this question we 5 Id. at Flores cited Article 38 of the Statute of the International Court of Justice, which provides that courts should look to the following sources of international law: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; 29 1 250 (quoting United States v. Yousef, 327 F.3d 56, 103 (2d 2 Cir. 2003)). 3 Flores concluded that the alleged prohibition on 4 intranational pollution and rights to life and health 5 [were] insufficiently definite to constitute rules of 6 customary international law. 7 After a thorough review of these sources, Id. at 254-55. The United States Supreme Court has analyzed the ATS 8 only once. 9 intended as jurisdictional in the sense of addressing the In Sosa, the Court explained that the ATS was 10 power of the courts to entertain cases concerned with a 11 certain subject, 542 U.S. at 714, and that [t]he 12 jurisdictional grant is best read as having been enacted on 13 the understanding that the common law would provide a cause 14 of action for the modest number of international law 15 violations with a potential for personal liability at the 16 time, id. at 724. Claims based on the present-day law of d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists [i.e., scholars or jurists ] of the various nations, as subsidiary means for the determination of rules of law. 414 F.3d at 251 (italics omitted)(quoting Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 33 U.N.T.S. 993). 30 1 nations should be recognized only if accepted by the 2 civilized world and defined with a specificity comparable to 3 the features of the 18th-century paradigms contemporary 4 with enactment of the ATS. 5 Id. at 725. Sosa cited five reasons for courts to exercise great 6 caution before recognizing violations of international law 7 that were not recognized in 1789: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Id. at 725-28. 26 a norm is sufficiently definite to support a cause of action 27 should (and, indeed, inevitably must) involve an element of 28 judgment about the practical consequences of making that 29 cause available to litigants in the federal courts. 30 732-33. 31 First, . . . the [modern] understanding that the law is not so much found or discovered as it is either made or created[;] . . . [s]econd, . . . an equally significant rethinking of the role of the federal courts in making it[;] . . . [t]hird, [the modern view that] a decision to create a private right of action is one better left to legislative judgment in the great majority of cases[;] . . . [f]ourth, . . . risks of adverse foreign policy consequences[; and] . . . fifth[,] . . . the lack of a] congressional mandate to seek out and define new and debatable violations of the law of nations. Thus, under Sosa, the determination whether Id. at We have applied Sosa in four opinions addressing ATS 31 1 claims. 2 permitted recognition of particular offenses. 3 Ass n for Victims of Agent Orange v. Dow Chemical Co., 517 4 F.3d 104 (2d Cir. 2008), we held that the manufacture and 5 supply of an herbicide used as a defoliant (with collateral 6 damage) did not violate international law: [i]nasmuch as 7 Agent Orange was intended for defoliation and for 8 destruction of crops only, its use did not violate . . . 9 international norms . . . , since those norms would not In three of them, we considered whether Sosa In Vietnam 10 necessarily prohibit the deployment of materials that are 11 only secondarily, and not intentionally, harmful to humans. 12 Id. at 119-20. 13 Mora v. New York, 524 F.3d 183 (2d Cir. 2008), held 14 that detention without notice of consular rights (in 15 violation of Article 36(1)(b)(third) of the Vienna 16 Convention on Consular Relations) did not violate a well- 17 accepted international law norm. 18 divided panel held in Abdullahi v. Pfizer, Inc., 562 F.3d 19 163 (2d Cir. 2009), that the prohibition in customary 20 international law against nonconsensual human medical 21 experimentation can[] be enforced through the ATS. 22 169. 32 Id. at 208-09. But a Id. at 1 In the fourth case--Khulumani v. Barclay National Bank 2 Ltd., 504 F.3d 254 (2d Cir. 2007)--we ruled in a per curiam 3 opinion that in this Circuit, a plaintiff may plead a 4 theory of aiding and abetting liability under the [ATS]. 5 Id. at 260. 6 7 8 9 II Plaintiffs assert that Talisman aided and abetted (and conspired with) the Government in the commission of three 10 violations of international law: [i] genocide, [ii] war 11 crimes, and [iii] crimes against humanity. 12 may be asserted under the ATS. 13 hold that subject-matter jurisdiction exists[, and] that 14 [defendant] may be found liable for genocide, war crimes, 15 and crimes against humanity . . . . ); see also Sosa, 542 16 U.S. at 762 (Breyer, J., concurring in part and concurring 17 in judgment)(describing 18 condemned behavior for which universal jurisdiction 19 exists, including torture, genocide, crimes against 20 humanity, and war crimes ); Flores, 414 F.3d at 244 n.18 21 ( Customary international law rules proscribing crimes 22 against humanity, including genocide, and war crimes, have All three torts Kadic, 70 F.3d at 236 ( [W]e a subset of universally 33 1 been enforceable against individuals since World War II. ). 2 In Kadic, we defined genocide and war crimes. 3 Kadic adopted the definition of genocide from the Convention 4 on the Prevention and Punishment of the Crime of Genocide 5 art. 2, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 6 ( Genocide Convention ), which defines genocide as: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births with the group; (e) Forcibly transferring children of the group to another group. Kadic, 70 F.3d at 241 (quoting Genocide Convention). 29 As to war crimes, Kadic applied the definition from 30 Common Article 3 of the Geneva Convention, which applies to 31 armed conflict[s] not of an international character and 32 requires each Party to the conflict to adhere to the 33 following: 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Kadic, 70 F.3d at 243 (alterations in original)(quoting 34 Convention Relative to the Protection of Civilian Persons in 35 Time of War art. 3, August 12, 1949, 6 U.S.T. 3516, 75 36 U.N.T.S. 287). 37 conflict--which includes insurgent military groups. 38 Persons taking no active part in the hostilities . . . shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court . . . . This standard applies to all parties to a We have never defined crimes against humanity. 35 Id. Here, 1 the district court adopted a generally serviceable 2 definition, which the parties do not challenge and which we 3 therefore, for purposes of this case, need not evaluate or 4 edit: [c]rimes against humanity include murder, 5 enslavement, deportation or forcible transfer, torture, rape 6 or other inhumane acts, committed as part of a widespread 7 [or] systematic attack directed against a civilian 8 population. 6 9 at 670. 10 Presbyterian Church of Sudan, 453 F. Supp. 2d Talisman does not contest that the enumerated torts are 11 cognizable under the ATS. 12 claim that Talisman aided and abetted these offenses (and 13 conspired to do them) is actionable under the ATS absent 14 evidence that Talisman acted with the purpose of advancing 15 the abuses, and, if proof of purpose is an element, whether 16 the evidence supports such a finding. At issue is whether plaintiffs 17 18 19 III There is no allegation that Talisman (or its employees) 6 The district court used the phrase widespread and systematic, but plaintiffs argue that this was error, and that and should be replaced by or. (Pls. Br. 65). We assume for purposes of this appeal that plaintiffs formulation is correct. 36 1 personally engaged in human rights abuses; the allegation is 2 that Talisman was complicit in the Government s abuses. 3 That allegation places in issue the standard for aiding 4 and abetting liability under the ATS. 7 5 presented to a prior panel, which held, in a brief per 6 curiam opinion, that in this Circuit, a plaintiff may plead 7 a theory of aiding and abetting liability under the [ATS]. 8 Khulumani, 504 F.3d at 260. 9 to the standard for pleading such liability. This question was However, the panel fractured as 10 Judge Katzmann, concurring, was of the view that a 11 defendant may be held liable under international law for 12 aiding and abetting the violation of that law by another 13 when the defendant (1) provides practical assistance to the 14 principal which has a substantial effect on the perpetration 15 of the crime, and (2) does so with the purpose of 16 facilitating the commission of that crime. 7 Id. at 277 We address aiding and abetting liability--a concept typically associated with the criminal law--because customary international law norms prohibiting genocide, war crimes, and crimes against humanity have been developed largely in the context of criminal prosecutions rather than civil proceedings. John Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002); see also Khulumani, 504 F.3d at 270 n.5 (Katzmann, J., concurring)( [O]ur case law . . . has consistently relied on criminal law norms in establishing the content of customary international law for purposes of the [ATS]. ). 37 1 (Katzmann, J., concurring). 2 he not dissenting on other grounds) he would have concurred 3 with Judge Katzmann. 4 part and dissenting in part). 5 standard for aiding and abetting liability under the ATS 6 must derive from international law sources. 7 (Katzmann, J., concurring); id. at 331 (Korman, J., 8 concurring in part and dissenting in part). 9 Judge Korman noted that (were Id. at 333 (Korman, J., concurring in Both judges observed that the Id. at 268 Judge Hall s closely reasoned concurring opinion 10 concluded that Sosa s reliance on international law applied 11 to the question of recognizing substantive offenses, but not 12 to the issue of secondary liability. 13 found that Sosa at best lends Delphian guidance, largely 14 in dicta. 15 hornbook principle that international law does not specify 16 the means of its domestic enforcement, id. (internal 17 quotation marks omitted), Judge Hall turned to the 18 Restatement (Second) of Torts § 876(b), which states that 19 the aiding and abetting standard should be [i] knowing [ii] 20 encouragement [iii] that facilitated the substantive 21 violation. 22 On that issue, he Id. at 286 (Hall, J., concurring). Citing a Id. at 287-89. The upshot of this split is that notwithstanding the 38 1 agreement of two judges, Judge Katzmann s view did not 2 constitute a holding and is therefore not binding precedent. 3 In this unusual circumstance, the issue remains live. 4 opinion draws substantially from Judge Katzmann s concurring 5 opinion, and adopts his proposed rule as the law of this 6 Circuit. 7 This Judge Katzmann began by choosing the source of law that 8 should provide the basis for an aiding and abetting 9 standard. 8 He observed that this Court has repeatedly 10 emphasized that the scope of the [ATS s] jurisdictional 11 grant should be determined by reference to international 12 law. 13 70 F.3d at 238; Flores, 414 F.3d at 248; Filártiga, 630 F.2d 14 at 887). 15 concerned with the liability of non-state actors, supports Id. at 269 (Katzmann, J., concurring)(citing Kadic, Similarly, footnote 20 of Sosa, 9 while nominally 8 Judge Katzmann s individual opinion contains a thorough discussion of aiding and abetting principles. This opinion sets forth only so much of Judge Katzmann s analysis as is necessary to provide the context of our holding. For an extended discussion of the aiding and abetting issue, see Khulumani, 504 F.3d at 268-77 (Katzmann, J., concurring). 9 A consideration related to whether the ATS provides jurisdiction over a norm 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. 39 1 the broader principle that the scope of liability for ATS 2 violations should be derived from international law. 3 Judge Katzmann concluded that, while domestic law might 4 provide guidance on whether to recognize a violation of 5 international norms, it cannot render conduct actionable 6 under the ATS. Id. Id. at 270. 7 Judge Katzmann s research revealed no source of 8 international law that recognizes liability for aiding and 9 abetting a violation of international law but would not 10 authorize the imposition of such liability on a party who 11 acts with the purpose of facilitating that violation 12 (provided, of course, that the actus reus requirement is 13 also satisfied). 14 imposed in certain cases under a less-stringent knowledge 15 standard, see, e.g., id. at 277 n.12 (citing Prosecutor v. 16 Vasiljevic, Case No. IT-98-32-A, Appeal Judgment, ¶ 102(ii) 17 (Feb. 24, 2004)), Judge Katzmann cited Sosa s requirement 18 that a norm obtain universal acceptance, and adopted the 19 standard set forth in the Rome Statute: that a defendant 20 may be held liable under international law for aiding and 21 abetting the violation of that law by another when the 22 defendant (1) provides practical assistance to the principal Id. at 277. 40 While liability had been 1 which has a substantial effect on the perpetration of the 2 crime, and (2) does so with the purpose of facilitating the 3 commission of that crime. 4 Id. at 277. We agree that Sosa and our precedents send us to 5 international law to find the standard for accessorial 6 liability. 7 liability is a matter ordinarily left to the forum country, 8 where (in this venue) the principle is broad and elastic. 9 But such an expansion would violate Sosa s command that we 10 limit liability to violations of . . . international law . 11 . . with . . . definite content and acceptance among 12 civilized nations [equivalent to] the historical paradigms 13 familiar when § 1350 was enacted. 14 Recognition of secondary liability is no less significant a 15 decision than whether to recognize a whole new tort in the 16 first place. 17 Plaintiffs argue that aiding and abetting 542 U.S. at 732. Thus, applying international law, we hold that the mens 18 rea standard for aiding and abetting liability in ATS 19 actions is purpose rather than knowledge alone. 20 there is a sufficient international consensus for imposing 21 liability on individuals who purposefully aid and abet a 22 violation of international law, see Khulumani, 504 F.3d at 41 Even if 1 276 (Katzmann, J., concurring); cf. id. at 333 (Korman, J., 2 concurring in part and dissenting in part), no such 3 consensus exists for imposing liability on individuals who 4 knowingly (but not purposefully) aid and abet a violation of 5 international law. 6 Indeed, international law at the time of the Nuremberg 7 trials recognized aiding and abetting liability only for 8 purposeful conduct. 9 (The Ministries Case), in 14 Trials of War Criminals Before 10 the Nuremberg Military Tribunals Under Control Council Law 11 No. 10, at 662 (William S. Hein & Co., Inc. 12 1997)(1949)(declining to impose criminal liability on a bank 13 officer who made a loan with the knowledge, but not the 14 purpose, that the borrower would use the funds to commit a 15 crime). 16 the modern era, with only sporadic forays in the direction 17 of a knowledge standard. 18 (Katzmann, J., concurring)(noting that some international 19 criminal tribunals have made overtures toward a knowledge 20 standard but that the Rome Statute of the International 21 Criminal Court adopts a purpose standard); see also id. at 22 332-37 (Korman, J., concurring in part and dissenting in See United States v. von Weizsaecker That purpose standard has been largely upheld in See Khulumani, 504 F.3d at 276 42 1 part). 2 requisite acceptance among civilized nations, Sosa, 542 3 U.S. at 732, for application in an action under the ATS. 4 See generally Flores, 414 F.3d at 248 ( [I]n order for a 5 principle to become part of customary international law, 6 States must universally abide by it. ); see also Yousef, 327 7 F.3d at 92, 105-08; Kadic, 70 F.3d at 239; Filártiga, 630 8 F.2d at 888. Only a purpose standard, therefore, has the 9 10 IV 11 Plaintiffs allege that Talisman conspired with the 12 Government to commit human rights abuses and argue that the 13 district court failed to apply conspiracy principles from 14 United States law to violations of international law under 15 the ATS. 16 Pinkerton doctrine, 328 U.S. at 646-47. 10 17 conspiracy claims are cognizab le under international law is In particular, plaintiffs urge application of the 10 Whether [U]nder Pinkerton, a defendant may be found guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy. United States v. Bruno, 383 F.3d 65, 89 (2d Cir. 2004) (quoting United States v. Miley, 513 F.2d 1191, 1208 (2d Cir. 1975)). 43 1 2 a question of first impression in this Circuit. As a matter of first principles, we look to 3 international law to derive the elements for any such cause 4 of action.11 5 distinguish between the inchoate crime of conspiracy (which 6 requires an agreement and overt acts, but no completed deed) 7 and conspiracy as a theory of accessorial liability for 8 completed offenses. 9 See Sec. III, supra. In so doing, we must As to conspiracy as an inchoate offense, the Supreme 10 Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 610 (2006), 11 that the only conspiracy crimes that have been recognized 12 by international war crimes tribunals (whose jurisdiction 13 often extends beyond war crimes proper to crimes against 14 humanity and crimes against the peace) are conspiracy to 15 commit genocide and common plan to wage aggressive war. 11 Plaintiffs argue that federal conspiracy law should apply to ATS claims. See, e.g., Cabello v. FernandezLarios, 402 F.3d 1148 (11th Cir. 2005) (applying domestic law to ATS conspiracy claim). Judge Cote rejected that approach, holding that Sosa required applying international law. Presbyterian Church, 453 F. Supp. 2d at 665 n.64. We agree with Judge Cote. Moreover, plaintiffs would fare no better if we adopted their preferred definition of conspiracy, because that definition (derived from domestic law) also requires proof that . . . [the defendant] joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it. Cabello, 402 F.3d at 1159 (emphasis added). 44 1 Plaintiffs did not plead the waging of aggressive war, and 2 while they did plead genocide, it is pled as a completed 3 offense, not an inchoate one. 4 The analog to a conspiracy as a completed offense in 5 international law is the concept of a joint criminal 6 enterprise. 7 assuming, without deciding, that plaintiffs could assert 8 such a theory in an ATS action, an essential element of a 9 joint criminal enterprise is a criminal intention to See Hamdan, 548 U.S. at 611 n.40. Even 10 participate in a common criminal design. 11 Tadic, Case No. IT-94-1-A, Appeal Judgment, ¶ 206 (July 15, 12 1999)(basing that finding on numerous precedents from 13 criminal tribunals established in the aftermath of Word War 14 II). 15 criminal enterprise, plaintiffs conspiracy claims would 16 require the same proof of mens rea as their claims for 17 aiding and abetting. Prosecutor v. Therefore, under a theory of relief based on a joint 18 In any event, plaintiffs have not established that 19 international law [universally] recognize[s] a doctrine of 20 conspiratorial liability that would extend to activity 21 encompassed by the Pinkerton doctrine. 22 of Sudan, 453 F. Supp. 2d at 663. 45 Presbyterian Church 1 2 V 3 Therefore, in reviewing the district court s grant of 4 summary judgment to Talisman, we must test plaintiffs 5 evidence to see if it supports an inference that Talisman 6 acted with the purpose to advance the Government s human 7 rights abuses. 8 9 The district court s observations are well-considered and apt. The activities which the plaintiffs identify as 10 assisting the Government in committing crimes against 11 humanity and war crimes generally accompany any natural 12 resource development business or the creation of any 13 industry. 14 672. 15 [T]he plaintiffs theories of substantial assistance serve 16 essentially as proxies for their contention that Talisman 17 should not have made any investment in the Sudan, knowing as 18 it did that the Government was engaged in the forced 19 eviction of non-Muslim Africans from lands that held promise 20 for the discovery of oil. 21 22 23 24 Presbyterian Church of Sudan, 453 F. Supp. 2d at None of the acts was inherently criminal or wrongful. Id. In sum: The plaintiffs essentially argue that Talisman understood that the Government had cleared and would continue to clear the land of the local population if oil 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 companies were willing to come to the Sudan and explore for oil, and that[,] understanding that to be so, Talisman should not have come. They have no evidence that Talisman (or [Greater Nile] or GNPOC) participated in any attack against a plaintiff and no direct evidence of Talisman s illicit intent, so they wish to argue that Talisman s knowledge of the Government s record of human rights violations, and its understanding of how the Government would abuse the presence of Talisman, is a sufficient basis from which to infer Talisman s illicit intent when it designated areas for exploration, upgraded airstrips or paid royalties. Id. at 672-73. Plaintiffs argue that the district court s analysis was 21 flawed because it assumed that ordinary development 22 activities cannot constitute aiding and abetting. 23 argument misconstrues the district court s analysis, which 24 does not rely on any categorical or blanket principle 25 precluding liability; rather, the court conscientiously 26 looked at each specific activity to determine if it 27 satisfied the aiding and abetting standard. 28 review of plaintiffs evidence confirms the soundness of the 29 district court s ruling. 30 31 This A de novo As a threshold matter, Talisman did not manage oil operations in the Sudan: its indirect subsidiary Greater 47 1 Nile was a 25% shareholder in GNPOC, the corporation 2 responsible for developing the concessions. 3 GNPOC shares were held by entities from China, Malaysia, and 4 the Sudan. 5 allegations and the named defendant (the only entity over 6 which the district court had personal jurisdiction) raises 7 knotty issues concerning control, imputation, and veil 8 piercing (among other things). 9 for most purposes that plaintiffs could surmount these The rest of the This attenuation between the plaintiffs Nevertheless, we will assume 10 hurdles; 12 so we proceed to the allegations of aiding and 11 abetting and conspiring to commit human rights abuses. 12 The district court classified four kinds of 13 substantial assistance that Talisman provided (or is 14 alleged to have provided) to the Government: (1) upgrading 15 the Heglig and Unity airstrips; (2) designating areas south 16 of the river in Block 4 for oil exploration; (3) providing 17 financial assistance to the Government through the payment 18 of royalties; [and] (4) giving general logistical support to 12 We will also assume, without deciding, that corporations such as Talisman may be held liable for the violations of customary international law that plaintiffs allege. Because we hold that plaintiffs claims fail on other grounds, we need not reach, in this action, the question of whether international law extends the scope of liability to corporations. Sosa, 542 U.S. at 732 n.20. 48 1 the Sudanese military. 13 2 F. Supp. 2d at 671-72. 3 1. Presbyterian Church of Sudan, 453 We take these up one by one. Talisman helped build all-weather roads and 4 improved airports, notwithstanding awareness that this 5 infrastructure might be used for attacks on civilians. 6 There is no doubt that roads and airports are necessary 7 features of a remote facility for oil extraction: they are 8 used for transporting supplies, bringing workers to the work 9 site, and assuring evacuation in the event of emergency. 10 There is evidence that Talisman (partially) financed 11 the road-building, from its Calgary headquarters, and helped 12 build other infrastructure, notwithstanding awareness of the 13 Government s activity. 14 constructive purposes for these projects and (more to the 15 point) there is no evidence that any of this was done for an 16 improper purpose. 17 show that GNPOC personnel had knowledge of the Government s But obviously there are benign and Consistent with plaintiffs effort to 13 The district court also addressed plaintiffs allegations that Talisman assisted the Government by using its community development program as a cover for gathering military intelligence and by publicly denying knowledge of human rights violations. Presbyterian Church of Sudan, 453 F. Supp. 2d at 677. Plaintiffs do not raise the former point on appeal and we agree with the district court that publicly denying knowledge of abuses is not substantial assistance. 49 1 human rights abuses, plaintiffs adduce evidence that senior 2 Talisman officials protested to the Government and that 3 security reports shared with senior Talisman officials 4 expressed concern about the military s use of GNPOC 5 airstrips. 6 purpose (not knowledge), all this evidence of knowledge (and 7 protest) cuts against Talisman s liability. 8 9 Since, however, the proper test of liability is Even if Talisman built roads or improved the airstrips with the intention that the military would also be 10 accommodated, GNPOC had a legitimate need to rely on the 11 military for defense. 12 that tumultuous region were subjected to attacks: rebel 13 groups viewed oil installations and oil workers as enemy 14 targets; an e-mail from a Talisman employee describes rebel 15 attacks and the placement of mines in work areas; rebels 16 launched a nighttime mortar attack against a Heglig camp 17 where 700 oil workers were living; and in Block 5A the 18 attacks caused that concessionaire (Lundin Oil AB) to close 19 down operations for an extended period. 20 circumstances, evidence that GNPOC was coordinating with the 21 military supports no inference of a purpose to aid 22 atrocities. It is undisputed that oil workers in 50 In these 1 2. At one point, Greater Nile was worried that the 2 Government would terminate GNPOC s concession on lands south 3 of its existing operations unless GNPOC began to exploit 4 them, and consideration was given to an expansion. 5 Plaintiffs contend that this consideration violated 6 international law. 7 expansion south did not occur during the time any Talisman 8 affiliate was in the Sudan, and contemplation does not 9 amount to substantial assistance in violation of 10 11 However, the evidence shows that this international law. 3. The royalties paid by GNPOC may have assisted the 12 Government in its abuses, as it may have assisted any other 13 activity the Government wanted to pursue. 14 evidence that GNPOC or Talisman acted with the purpose that 15 the royalty payments be used for human rights abuses. 16 4. But there is no GNPOC provided fuel for military aircraft taking 17 off on bombing missions, and some of the fuel was paid for 18 by GNPOC rather than the Government. 19 insufficient to defeat summary judgment for two reasons. 20 First, there is no showing that Talisman was involved in 21 such routine day-to-day GNPOC operations as refueling 22 aircraft. This evidence is Second, there is no evidence that GNPOC workers 51 1 provided fuel for the purpose of facilitating attacks on 2 civilians; to the contrary, an e-mail from a Talisman 3 employee to his supervisor, which plaintiffs use to show 4 that the military refueled at a GNPOC airstrip, expresses 5 anger and frustration at the military using the fuel. 6 Plaintiffs primary argument is that Talisman supported 7 the creation of a buffer zone around its oil fields, 8 understanding that the Government was displacing huge 9 numbers of civilians from oil-rich regions, decimating as it 10 went the population of southern Sudan. 11 plaintiffs cite statements in Greater Nile security 12 memoranda, including this one: [t]he military strategy, 13 driven it appears by the GNPOC security management, is to 14 create a buffer zone, i.e., an area surrounding both Heglig 15 and Unity camps inside which no local settlements or 16 commerce is allowed. 14 17 As evidence, Plaintiffs repeatedly cite the forced displacement of 18 people from the oil fields, but they do not allege that such 19 displacement in itself is a violation of international law. 14 Talisman argues that this statement (and others cited by plaintiffs) references an area of 5km and 8km around the Heglig and Unity camps, respectively, not a zone covering the entirety of the concession area. 52 1 That is understandable, because a government has power to 2 regulate use of land and resources. 3 particular is by nature land-intensive: land is needed for 4 exploration and engineering, equipment, rigs or mines, 5 offices and dormitories in remote areas, transportation 6 infrastructure, and so on. 7 these facilities might require relocation from a development 8 area. 9 circumstances. Resource extraction in Under the best circumstances, But GNPOC was not operating in the best of Sudan s oil was located in an area heavily 10 contested in a civil war, in a region of the country that 11 had suffered through four decades of violence before 12 Talisman arrived. 13 rebel attack and oil workers were killed during the relevant 14 time. 15 required tightened security; and displacing civilians from 16 an area within the security ring road was not in itself 17 unlawful. 18 The oil facilities came under frequent Safe operation of the oil facilities therefore It is therefore not enough for plaintiffs to establish 19 Talisman s complicity in depopulating areas in or around the 20 Heglig and Unity camps: plaintiffs must establish that 21 Talisman acted with the purpose to assist the Government s 22 violations of customary international law. 53 1 Plaintiffs have provided evidence that the Government 2 violated customary international law; but they provide no 3 evidence that Talisman acted with the purpose to support the 4 Government s offenses. 5 briefs that Talisman was a partisan in regional, religious, 6 or ethnic hostilities, or that Talisman acted with the 7 purpose to assist persecution. 8 of the Sudanese government threatened the security of the 9 company s operations, tarnished its reputation, angered its 10 employees and management, and ultimately forced Talisman to 11 abandon the venture. 12 Plaintiffs do not suggest in their To the contrary, the actions Plaintiffs argue that they need no direct evidence of 13 purpose because [genocidal intent may] be inferred from a 14 number of facts and circumstances, such as the general 15 context, the perpetration of other culpable acts 16 systematically directed against the same group, the scale of 17 atrocities committed, the systematic targeting of victims on 18 account of their membership of a particular group, or the 19 repetition of destructive and discriminatory acts. 20 Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 21 F.R.D. 456, 479 (S.D.N.Y. 2005)(alterations in 22 original)(quoting Prosecutor v. Jelisec, No. IT-95-10-A, 54 1 Appeals Chamber Judgment, ¶ 101 (July 5, 2001)). 2 intent must often be demonstrated by the circumstances, and 3 there may well be an ATS case in which a genuine issue of 4 fact as to a defendant s intent to aid and abet the 5 principal could be inferred; but in this case, there were 6 insufficient facts or circumstances suggesting that Talisman 7 acted with the purpose to advance violations of 8 international humanitarian law. 9 True, The reports that plaintiffs rely upon to prove 10 knowledge also show that Greater Nile security personnel and 11 GNPOC workers were upset by the Government s actions and 12 possible attacks on civilians. 13 address the company s efforts to relieve the plight of 14 internally displaced persons, which included stockpiling 15 tons of relief supplies and distributing food, water, 16 medicine, and mosquito nets. For example, several reports 17 There is evidence that southern Sudanese were subjected 18 to attacks by the Government, that those attacks facilitated 19 the oil enterprise, and that the Government s stream of oil 20 revenue enhanced the military capabilities used to persecute 21 its enemies. 22 knowledge of those abuses coupled only with such commercial But if ATS liability could be established by 55 1 activities as resource development, the statute would act as 2 a vehicle for private parties to impose embargos or 3 international sanctions through civil actions in United 4 States courts. 5 private parties but are, instead, properly reserved to 6 governments and multinational organizations. Such measures are not the province of 7 8 9 10 Plaintiffs argue that the district court failed to 11 consider portions of the summary judgment record and failed 12 to afford the parties an opportunity to argue evidentiary 13 issues. 14 did not make a wholesale blanket ruling excluding 15 plaintiffs evidence and did not exclude evidence in 16 contravention of the Federal Rules of Evidence. 17 plaintiffs have cited no relevant authority holding that a 18 district court is confined to a particular evidentiary 19 procedure in ruling on a summary judgment motion. 20 VI We reject these contentions. The district court Moreover, A district court deciding a summary judgment motion 21 has broad discretion in choosing whether to admit 22 evidence. 23 1997). The principles governing admissibility of evidence Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 56 1 do not change on a motion for summary judgment. 2 66. 3 against summary judgment shall set forth such facts as would 4 be admissible in evidence. 5 evidence need be considered by the trial court in ruling on 6 a motion for summary judgment. 7 quotation marks and citations omitted). 8 see how a court can decide a summary judgment motion without 9 deciding questions of evidence: Id. at 65- Rule 56(e) provides that affidavits in support of and Therefore, only admissible Id. at 66 (internal It is difficult to 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Id. (citations omitted)(alterations in original); see also 28 LaSalle Bank Nat. Ass n v. Nomura Asset Capital Corp., 424 29 F.3d 195, 205-06 (2d Cir. 2005)( Even on summary judgment, a 30 district court has wide discretion in determining which 31 evidence is admissible, [and] we review its evidentiary Because the purpose of summary judgment is to weed out cases in which there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law, it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment. Although disputes as to the validity of the underlying data go to the weight of the evidence, and are for the fact-finder to resolve, questions of admissibility are properly resolved by the court. The resolution of evidentiary questions on summary judgment conserves the resources of the parties, the court, and the jury. 57 1 rulings for manifest error. (internal quotation marks and 2 citations omitted))(alterations in original)). 3 4 At the outset of the summary judgment opinion in this case, the district court observed that 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Presbyterian Church of Sudan, 453 F. Supp. 2d at 639. 26 Plaintiffs argue that this prefatory language amounts to an 27 evidentiary ruling and bespeaks a disregard of the 28 plaintiffs evidence in whole. 29 set aside its concerns about the evidence in describing the 30 facts of the case: In order to describe as fairly as 31 possible the evidence the plaintiffs present, the 32 description of events that follows is largely taken from the plaintiffs have not distinguished between the admissible and inadmissible. The plaintiffs repeatedly describe Talisman as having done this or that, when the examination of the sources to which they refer reveals that it is some other entity or an employee of some other company that acted. They assert that this or that event happened, when the documents to which they refer consist of hearsay embedded in more hearsay. Indeed, most of the admissible evidence is either statements made by or to Talisman executives, and the plaintiffs descriptions of their own injuries, with very little admissible evidence offered to build the links in the chain of causation between the defendant and those injuries. 58 However, the district court 1 documents on which the plaintiffs have placed the greatest 2 reliance, without a careful analysis of the admissibility of 3 this evidence. Id. at 641-42. 4 In weighing evidence of questionable admissibility, the 5 district court often noted Talisman s evidentiary objection, 6 and sometimes expressed a view of the objection; but the 7 court never made a blanket exclusion of evidence. 8 Plaintiffs focus on four specific exclusions : 9 1. Congressional findings included in the Sudan Peace 10 Act stating that genocide was taking place in the Sudan and 11 that oil profits were contributing to the misery. 12 L. No. 107-245, 116 Stat. 1504 (codified at 50 U.S.C. 13 § 1701). 14 congressional findings and Talisman s objections, and 15 explained that in any case plaintiffs had no proof of 16 Talisman s intent. 17 Supp. 2d at 669-70. 18 2. See Pub. This was not excluded; the court described the Presbyterian Church of Sudan, 453 F. Evidence from plaintiffs experts about the 19 relationship between oil profits and military spending. 20 district court conceded that plaintiffs have evidence from 21 which a jury could find that Talisman believed that the 22 Government used oil revenues to buy armaments, even if 59 The 1 Talisman did not have any direct evidence or knowledge of 2 that fact. 3 concluded that was not enough, because plaintiffs had not 4 identified evidence sufficient to support a finding that 5 when Talisman (or [Greater Nile] or GNPOC) paid royalties, 6 it specifically directed those payments to the 7 Government s procurement of weaponry to target civilians and 8 displace them. 9 3. Id. at 676. The district court nonetheless Id. Security reports by Greater Nile personnel (who 10 monitored threats to GNPOC workers) recording the military s 11 use of airstrips to conduct bombing runs and other military 12 operations. 13 great detail in the background section of its opinion, and 14 explained that the reports painted a complex picture of the 15 situation. 16 the reports, there is no question that they were accounted 17 for in the district court s analysis. 18 4. The district court described these reports in Whatever the significance of the information in A declaration from the head of security for Arakis 19 (Robert Norton), stating that he had warned Talisman at the 20 time it purchased Arakis about likely civilian displacement. 21 The district court excluded this declaration because the 22 witness had testified at an earlier deposition that he was 60 1 unaware of any displacement. 2 453 F. Supp. 2d at 647 & n.11. 3 [a] witness may not use a later affidavit to contradict 4 deposition testimony in an effort to defeat a motion for 5 summary judgment. 6 Supp. 2d at 647 (citing Bickerstaff v. Vassar Coll., 196 7 F.3d 435, 455 (2d Cir. 1999)). 8 declarations from parties contradicting earlier deposition 9 testimony are inadmissible, and that Norton s declaration Presbyterian Church of Sudan, The district court explained Presbyterian Church of Sudan, 453 F. Plaintiffs contend that only 10 did not fit within this rule. 11 question, because [i] there was other evidence of Talisman s 12 knowledge of displacement of civilians and [ii] Talisman s 13 notice of this displacement is not enough to show an illicit 14 purpose. 15 We need not decide this Plaintiffs cite United States v. McDermott, 245 F.3d 16 133 (2d Cir. 2001), and United States v. Carson, 52 F.3d 17 1173 (2d Cir. 1995), for the proposition that a party must 18 make a specific and contemporaneous objection to the 19 admission of trial evidence under Federal Rule of Evidence 20 103(a)(1). 21 irrelevant, because the case never went to trial and because 22 Talisman is not objecting to the district court s admission This non-controversial proposition is 61 1 2 of trial evidence. Finally, plaintiffs rely on an unpublished opinion from 3 the Eleventh Circuit which reversed a district court s 4 striking of fifty passages from a response to a motion for 5 summary judgment. 6 195 F. App x 829 (11th Cir. 2006). 7 that case: [i] failed to give the parties an opportunity to 8 argue the merits of the objections; [ii] failed to analyze 9 and rule on each objection; and [iii] offered only a Mack v. ST Mobile Aerospace Eng g, Inc., The district court in 10 blanket declaration that the statements at issue are 11 inadmissible hearsay, double hearsay, opinion, speculation 12 and/or conjecture. 13 the submission could be inadmissible hearsay evidence 14 because the passages [were] not evidence at all--they [were] 15 the plaintiffs arguments in their responsive pleading. 16 Id. at 842 (emphasis in original). 17 distinguishable. 18 explained its reasons for excluding evidence. 19 district court in Mack struck pleadings, not evidence. 20 Third, the Eleventh Circuit reversed in part because it 21 determined (after addressing several specific strikes) that 22 the district court s evidentiary rulings were wrong on the Id. at 842-43. Moreover, nothing in Mack is easily First, the district court in this case 62 Second, the 1 merits. 2 this case (with the possible exception of the Norton 3 declaration, which is not material as to purpose).15 4 5 Plaintiffs have pointed to no incorrect rulings in In conclusion, there is no evidence that the district court improperly failed to consider plaintiffs evidence. 6 7 8 9 VII Two weeks before Talisman moved for summary judgment, plaintiffs filed a Proposed Third Amended Class Action 10 Complaint. 11 district court explained that the Second Amended Complaint 12 sought to hold Talisman liable for its own acts, while the 13 proposed pleading, [w]hen stripped to its essentials, . . . 14 seeks to hold Talisman liable for the actions of GNPOC. 15 Presbyterian Church of Sudan, 453 F. Supp. 2d at 679. 16 while the Second Amended Complaint alleged that Talisman 17 aided and abetted the Government, the Third Amended 18 Complaint alleged that Talisman aided and abetted GNPOC and In denying plaintiffs motion to amend, the 15 Thus, Plaintiffs also rely on Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 128 (S.D.N.Y. 1990), in which the district court denied summary judgment on a sexual harassment claim. Halbrook is inapposite because the court in that case deferred ruling on trial evidence given its denial of summary judgment. The court did not articulate a general rule for considering evidence on summary judgment. 63 1 2 Greater Nile. Id. The district court ruled that, to plead new theories of 3 liability three years after the deadline for amendment 4 specified in the scheduling order, plaintiffs were required 5 to show good cause for delay and the exercise of due 6 diligence. 7 Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 8 2003); In re Wireless Tel. Servs. Antitrust Litig., 02 Civ. 9 2673(DLC), 2004 WL 2244502, at *5 (S.D.N.Y. Oct. 6, 2004)). 10 The court found that plaintiffs failed to show good cause, 11 and that [i]t could even be said that the plaintiffs acted 12 in bad faith in waiting until the eve of summary judgment 13 practice to file the motion to amend. Id. at 680 (citing Fed. R. Civ. P. 16; Id. at 680. 14 Once the deadline for amendment in a scheduling order 15 has passed, leave to amend may be denied where the moving 16 party has failed to establish good cause. 17 Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). 18 [A] finding of good cause depends on the diligence of the 19 moving party. 20 leave to amend for abuse of discretion. 21 22 Id. Parker v. We review a district court s denial of Plaintiffs argue that they filed the Third Amended Complaint as promptly as they could at the conclusion of 64 1 discovery. 2 unreasonable for plaintiffs to hold the proposed amendment 3 until discovery ended. 4 proposed amendment would not have required new discovery and 5 that the dates in the scheduling order were irrelevant 6 because the theories pled in the Third Amended Complaint 7 were already in the case. 8 Complaint reads as if Talisman operated directly in the 9 Sudan with no intervening subsidiaries and it does not But the district court concluded that it was Plaintiffs also argue that the However, the Second Amended 10 allege that Talisman acted through GNPOC. 11 to GNPOC are sprinkled throughout the Second Amended 12 Complaint, the gravamen is that Talisman conspired directly 13 with the Sudanese government. 14 Complaint, which alleged that Talisman aided and abetted 15 GNPOC and that it conspired with Greater Nile, substantially 16 revised plaintiffs theory. 17 While references Thus, the Third Amended It is true that the issue of joint venture liability 18 was mentioned early in the case by Judge Schwartz in a 2003 19 decision denying Talisman s motion to dismiss on the ground 20 that GNPOC was a necessary party. 21 district court considered and rejected a number of arguments 22 as to why the litigation could not proceed without GNPOC. 65 In that decision, the 1 Judge Schwartz explained that nearly every paragraph 2 describes alleged unlawful acts by Talisman, not GNPOC. 3 Presbyterian Church of Sudan, 244 F. Supp. 2d at 352. 4 footnote, the district court added that [t]o the extent 5 that the Amended Complaint alleges acts by GNPOC, . . . 6 Talisman may potentially be held liable for the acts of 7 other GNPOC members under a theory of joint venture 8 liability. 9 In a Id. at 352 n.50 (citation omitted) Plaintiffs cite this footnote as evidence that the 10 district court and Talisman were aware from early in the 11 litigation that plaintiffs might proceed against Greater 12 Nile and GNPOC on theories of joint liability. 13 Cote observed that the Third Amended Complaint dramatically 14 alter[ed] the plaintiffs theories of liability and the 15 focus of the entire case, Presbyterian Church of Sudan, 453 16 F. Supp. 2d at 680, and Talisman vigorously contests the 17 idea that the substance of the amended complaint was already 18 understood to be part of the case. 19 supervised this case for three years before the filing of 20 plaintiffs motion and was thoroughly familiar with the 21 facts and allegations, having written several lengthy 22 opinions in the matter. But Judge The district court We owe deference to the district 66 1 2 court s analysis. The district court also denied leave to amend on the 3 alternative ground that amendment would be futile. 4 court assessed whether plaintiffs could pierce the corporate 5 veils of GNPOC and subsidiaries between GNPOC and Talisman: 6 the court held plaintiffs could not pierce and that Talisman 7 could not be liable on theories of joint venture or agency. 8 Id. at 683-89. 9 The We have not considered what law would be applied in 10 seeking to pierce a corporate veil in the ATS context, and 11 this case does not require us to reach the question. 12 district court discussed the issue in an abundance of 13 caution; but we have no occasion to do so given our 14 affirming the denial of leave to amend on good-faith 15 grounds. 16 The Finally, plaintiffs argue that even absent amended 17 pleading, the district court should have considered their 18 agency, joint venture, and veil piercing theories. 19 disagree. 20 were insufficiently pled, and our independent review of the 21 Second Amended Complaint supports the district court s We The district court concluded that these theories 67 1 conclusion. 16 2 3 4 5 CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. 16 Plaintiffs also appeal from the denial of their motions for class certification. Because we affirm the district court s grant of summary judgment as to all claims against Talisman, we do not reach that issue. 68
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