The US Court of Appeals for the Second Circuit, which has been considering the case for the last nine months, delivered its decision in Presbyterian Church of Sudan v Talisman Energylast week. The case was heard under alien tort statute (ATS) laws, which allow foreign citizens to bring human rights cases in the US for conduct committed in another country.
The controversial case centred on whether infrastructure such as roads built by Talisman in southern Sudan had aided and abetted crimes against humanity such as genocide. The plaintiffs claimed that the roads made it easier for the military to operate.
The plaintiffs had sued Talisman for violation of human rights, claiming that the energy company had conspired with the Sudanese government, leading to individuals being violently evicted from their homes or killed.
The case had originally been dismissed in 2006, when a US judge found there was not enough evidence (18 September 2006).
On Friday the Court of Appeals affirmed that of the plaintiffs’ claims and set stringent guidelines for future cases of this type.
It held that a plaintiff claiming that a company aided and abetted a foreign government in committing human rights abuses must allege and prove the company had acted with the purpose to facilitate the criminal activity.
As Lovells litigation partner and US regional head Marc Gottridge, who led the firm’s team on the dispute, pointed out, this mens rea standard, which is derived from international law, is far more stringent than the usual US common law “knowledge” standard.
“This will make it far more difficult for plaintiffs to launch ATS claims against companies, at least in the Second Circuit,” added Gottridge.
It is expected that the plaintiffs will apply to the US Supreme Court for a review of this decision.
Paul Hoffman of California-based Schonbrun DeSimone Seplow represented thePresbyterian Church of Sudan.