DOE I, ET AL V. CISCO SYSTEMS, INC., ET AL, No. 15-16909 (9th Cir. 2023)
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Plaintiffs are practitioners of Falun Gong, a religion originating in China in the 1990s. They allege that they or family members are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials. The alleged abuses, Plaintiffs contend, were enabled by the technological assistance of Defendants, U.S. corporation Cisco Systems, Inc., and two Cisco executives (collectively, “Cisco”). Plaintiffs initiated this lawsuit more than a decade ago, alleging that Cisco aided and abetted or conspired with Chinese officials in violation of the Alien Tort Statute (“ATS”), the Torture Victim Protection Act of 1991 (“TVPA”), and other federal and state laws. The district court dismissed Plaintiffs’ claims under the ATS, ruling that Plaintiffs did not allege conduct sufficient to satisfy the standard for aiding and abetting liability.
The Ninth Circuit affirmed the district court’s dismissal of Plaintiffs’ claims under the Alien Tort Statute against the Cisco executives; reversed the dismissal of Plaintiffs’ Alien Tort Statute claims against corporate defendant Cisco; reversed the dismissal of one Plaintiff’s claims under the Torture Victim Protection Act against the Cisco executives; and remanded for further proceedings. The panel held that under Nestle USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), corporations may be held liable under the ATS. The panel held that Plaintiffs’ allegations against Cisco were sufficient to meet the applicable aiding and abetting standard. Recognizing that the ATS does not apply extraterritorially, the panel held that this case involved a permissible domestic application of the ATS against Cisco because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States.
Court Description: Alien Tort Statute / Torture Victim Protection Act. In an action brought by practitioners of Falun Gong who alleged that they or family members were victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials and that these abuses were enabled by technological assistance of U.S. corporation Cisco Systems, Inc., and two Cisco executives, the panel affirmed the district court’s dismissal of plaintiffs’ claims under the Alien Tort Statute against the Cisco executives; reversed the dismissal of plaintiffs’ Alien Tort Statute claims against corporate defendant Cisco; reversed the dismissal of one plaintiff’s claims under the Torture Victim Protection Act against the Cisco executives; and remanded for further proceedings.
The district court dismissed plaintiffs’ claims under the Alien Tort Statute (“ATS”) on the ground that plaintiffs did not allege conduct sufficient to meet the standard for aiding and abetting liability under international customary law or to overcome the presumption against the extraterritorial application of the ATS. The district court also dismissed plaintiff Charles Lee’s Torture Victim Protection Act (“TVPA”) claim against the Cisco executives on the ground that the statute does not provide for accomplice liability.
The panel held that under Nestle USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), corporations may be held liable under the ATS. Agreeing with other circuits, the panel further held that, under the test set forth in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), aiding and abetting liability is a norm of customary international law with sufficient definition and universality to establish liability under the ATS. In addition, because aiding and abetting liability did not raise separation- of-powers or foreign policy concerns, such liability is cognizable for the purposes of the ATS.
The panel held that plaintiffs’ allegations against Cisco were sufficient to meet the applicable aiding and abetting standard. Joining other circuits, the panel held that the actus reus of aiding and abetting liability requires assistance to the principal with substantial effect on an international law violation. Joining the Eleventh Circuit, the panel held that the mens rea for aiding and abetting liability under customary international law is knowing assistance. Applying this standard, the panel concluded that plaintiffs plausibly alleged that corporate defendant Cisco provided assistance to the Party and to Chinese Public Security that had substantial effects on those entities’ violations of international law. Plaintiffs also plausibly alleged that Cisco knowingly provided such assistance.
Recognizing that the ATS does not apply extraterritorially, the panel held that this case involved a permissible domestic application of the ATS against Cisco because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States. By contrast, plaintiffs did not sufficiently connect the alleged actions taken by the Cisco executives to the United States.
Reversing the district court’s dismissal of the claim under the TVPA against the Cisco executives, the panel held, as a matter of first impression in the Ninth Circuit, that based on the text and the Convention Against Torture background of the TVPA, the TVPA provides a private right of action against those who aid and abet torture or extrajudicial killing. The panel held that the allegations against the executives were sufficient to meet the aiding and abetting standard, as determined under international law.
Concurring in part and dissenting in part, Judge Christen wrote that she joined Part II of the majority’s opinion, addressing the TVPA claim. Judge Christen wrote that the majority’s careful and cogent analysis of aiding and abetting liability under the ATS in Part I of its opinion was consistent with the views of other circuits, and in an appropriate case, Judge Christen would join it. She, however, did not do so here because she concluded that recognizing liability for aiding and abetting alleged human rights violations, committed in China and against Chinese nationals by the Chinese Communist Part and the Chinese government’s Ministry of Public Security, was inconsistent with the purpose of the ATS. Judge Christen wrote that she would affirm the dismissal of plaintiffs’ ATS claims on this basis, and go no further.
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