UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`August Term, 2009
`
`
`09-2778-cv(L)
`Balintulo v. Daimler AG
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`(Argued: January 11, 2010
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`Decided: August 21, 2013)
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`Docket Nos. 09-2778-cv(L), 09-2779-cv,
`09-2780-cv, 09-2781-cv, 09-2783-cv, 09-2785-cv,
`09-2787-cv, 09-2792-cv, 09-2801-cv, 09-3037-cv
`
`_______________________________________________________________
`
`
`SAKWE BALINTULO, as personal representative of SABA BALINTULO, DENNIS
`VINCENT FREDERICK BRUTUS, MARK FRANSCH, as personal representative of
`ANTON FRANSCH, ELSIE GISHI, LESIBA KEKANA, ARCHINGTON MADONDO, as
`personal representative of MANDLA MADONDO, MPHO ALFRED MASEMOLA,
`MICHAEL MBELE, MAMOSADI CATHERINE MLANGENI, REUBEN MPHELA, THULANI
`NUNU, THANDIWE SHEZI, THOBILE SIKANI, LUNGISLIE NTSEBEZA, MANTOA
`DOROTHY MOLEFI, individually and on behalf of her deceased son, MNCEKELELI
`HENYN SIMANGENTLOKO, TOZAMILE BOTHA, MPUMELELO CILIBE, WILLIAM
`DANIEL PETERS, SAMUEL ZOYISILE MALI, MSITHELI WELLINGTON NONYUKELA,
`JAMES MICHAEL TAMBOER, NOTHINI BETTY DYONASHE, individually and on behalf
`of her deceased son, NONKULULEKO SYLVIA NGCAKA, individually and on behalf of
`her deceased son, HANS LANGFORD PHIRI, MIRRIAM MZAMO, individually and on
`behalf of her deceased son,
`
`Plaintiffs-Appellees,
`
`
`
`—v.—
`
`
`
`DAIMLER AG, FORD MOTOR COMPANY, and
`INTERNATIONAL BUSINESS MACHINES CORPORATION,
`
`Defendants-Appellants.
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`_______________________________________________________________
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`1
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`

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`Before: CABRANES, HALL, and LIVINGSTON, Circuit Judges.
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`
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`The question presented is whether to issue a writ of mandamus to the United States District
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`Court for the Southern District of New York (Shira A. Scheindlin, Judge) to resolve in the
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`defendants’ favor these proposed class-action suits brought under the Alien Tort Statute (“ATS”),
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`28 U.S.C. § 1350, on behalf of those harmed by the decades-long South African legal regime known
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`as “apartheid.” The plaintiffs seek damages for violations of customary international law committed
`
`by the South African government, allegedly aided and abetted by the South African subsidiary
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`companies of the named corporate defendants—Daimler, Ford, and IBM. In short, the plaintiffs
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`claim that these subsidiary companies sold cars and computers to the South African government,
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`thus making the defendants, their parent companies, liable for the apartheid regime’s innumerable
`
`race-based depredations and injustices, including rape, torture, and extrajudicial killings.
`
`Although the plaintiffs did not claim that any of the South African government’s alleged
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`violations of the law of nations occurred in the United States, at the time they filed their complaint
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`they assumed (as did most American courts) that no such geographical connection was necessary.
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`Based on the same assumption, the District Court denied the defendants’ motion to dismiss, which
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`had asserted various grounds for dismissal, including that claims brought under the ATS cannot be
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`based on “extraterritorial” conduct—i.e., conduct that occurred in the territory of a sovereign other
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`than the United States. The District Court denied a motion to certify an interlocutory appeal, and
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`the defendants thereupon sought immediate appellate review through a writ of mandamus and by
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`invocation of the “collateral order” doctrine.
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`This putative appeal, held in abeyance pending a decision by the Supreme Court that was not
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`issued until 2013, and now pending for four years, involves challenging and important questions
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`regarding the immediate appealability of certain orders in cases brought under the Alien Tort
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`Statute, where the United States government has informed the district court that the ongoing
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`2
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`

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`litigation substantially threatens American foreign policy. We no longer need to answer those
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`questions, however, because all of the underlying claims are plainly barred by the recent opinion of
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`the Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which held that
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`federal courts may not, under the ATS, recognize common-law causes of action for conduct
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`occurring in the territory of another sovereign. Id. at 1668–69. Because that decision provides a
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`sufficient ground for dismissing all of the remaining claims, we deny mandamus relief. For the same
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`reason, we conclude that the interests of judicial economy, and of the parties, are best served by
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`holding this putative appeal in abeyance and enabling the District Court to consider a motion to
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`dismiss the plaintiffs’ remaining claims. The parties can then inform this Court, when appropriate,
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`whether this appeal has been rendered moot.
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`Accordingly, the petition for a writ of mandamus is DENIED; the stay on proceedings in
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`the District Court is VACATED; and any appellate jurisdiction that this Court may have pursuant
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`to the collateral order doctrine is held in abeyance.
`
`LISA S. BLATT (Peter L. Zimroth, Ramon P. Marks, Marcus
`A. Asner, on the brief), Arnold & Porter LLP,
`Washington, DC, and New York, NY; (Jerome S.
`Hirsch, Joseph N. Sacca, Gary J. Hacker, on the brief),
`Skadden, Arps, Slate, Meagher, & Flom LLP, New
`York, NY, for Defendant-Appellant Daimler AG.
`
`
`SRI SRINIVASAN (Brian C. Anderson, Irving L. Gornstein,
`Anton Metlitsky, on the brief), O’Melveny & Myers
`LLP, Washington, DC, for Defendant-Appellant Ford
`Motor Company.
`
`
`Keith R. Hummel, Teena-Ann Sankoorikal, James E.
`Canning, John E. Lazar, Cravath, Swaine, & Moore,
`LLP, New York, NY, for Defendant-Appellant IBM
`Corporation.
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`
`3
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`

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`STEIG OLSON (Michael D. Hausfeld, Ralph J. Bunche, on the
`brief), Hausfeld, LLP, New York, NY, and
`Washington, DC; (Robert G. Kerrigan, on the brief),
`Kerrigan, Estess, Rankin & McLeod, LLP, Pensacola,
`FL; (Matt Schultz, on the brief), Levin Papantonio
`Thomas Mitchell Echsner & Proctor, PA, Pensacola,
`FL; (Charles Peter Abrahams, on the brief), Abrahams
`Kiewitz, Cape Town, South Africa; for Plaintiffs-
`Appellees Sakwe Balintulo et al.
`
`
`PAUL L. HOFFMAN (Adrienne Quarry, on the brief), Schonbrun
`Desimone Seplow Harrison & Hoffman, Venice, CA;
`(Jay J. Rice, Diane E. Sammons, on the brief), Nagel
`Rice, LLP, Roseland, NJ; (Tyler R. Giannini, Susan
`Farbstein, on the brief), International Human Rights
`Clinic, Human Rights Program, Harvard Law School,
`Cambridge, MA; (Judith Brown Chomsky, on the brief),
`Law Offices of Judith Brown Chomsky, Elkins Park,
`PA; (Helen I. Zeldes, on the brief), Zeldes &
`Haeggquist, LLP, San Diego, CA; (Dumisa Buhle
`Ntsebeza, on the brief), Duma Nokwe Group of
`Advocates, Sandton, South Africa; (Michael Francis
`Osborne, on the brief), Cape Town, South Africa; (John
`Sindiso Ngcebetsha, Gugulethu Oscar Madlanga, on
`the brief), Ngcebetsha Madlanga Attorneys, Randburg,
`South Africa; (Medi Mokuena, on the brief), Mokuena
`Attorneys, Johannesburg, South Africa); (Dan
`Stormer, Anne Richardson, on the brief), Hadsell
`Stormer Keeny Richardson & Renick LLP, Pasadena,
`CA; (Anthony DiCaprio, on the brief), Rye, NY; for
`Plaintiffs-Appellees Lungisile Ntsebeza et al.
`
`
`LEWIS S. YELIN (Ian Heath Gershengorn, Acting Assistant
`Attorney General, Douglass N. Letter, Robert M.
`Loeb, Appellate Staff, on the brief), Civil Division, U.S.
`Department of Justice, Washington, DC; (Preet
`Bharara, U.S. Attorney, and David S. Jones, Assistant
`U.S. Attorney, on the brief), Office of the U.S. Attorney
`for the Southern District of New York, NY; (Joan E.
`Donoghue, on the brief), U.S. Department of State,
`Washington, DC; for Amicus Curiae United States of
`America, in support of Plaintiffs-Appellees.
`
`
`Peter R. Rutledge, Athens, GA; Robin S. Conrad, Amar D.
`Sarwal, National Chamber Litigation Center, Inc.,
`Washington, DC; for Amicus Curiae Chamber of
`Commerce of the United States, in support of Defendants-
`Appellants.
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`4
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`

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`
`Klaus Botzet, Embassy of the Federal Republic of Germany,
`Washington, DC, for Amicus Curiae Federal Republic of
`Germany, in support of Defendants-Appellants.
`
`
`Alan E. Untereiner, Mark T. Stancil, Damon W. Taaffe, Eva
`A. Temkin, Ariel N. Lavinbuk, Robbins, Russel,
`Englert, Orseck, Untereiner & Sauber LLP,
`Washington, DC, for Amici Curiae Federation of German
`Industries, Association of German Chambers of Industry and
`Commerce, and German American Chambers of Commerce, in
`support of Defendants-Appellants.
`
`
`Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY,
`for Amici Curiae German Law Professors, in support of
`Defendants-Appellants.
`
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`Anthony D. Boccanfuso, Arnold & Porter, LLP, New York,
`NY, for Amici Curiae International Chamber of Commerce,
`in support of Defendants-Appellants.
`
`
`Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY,
`for Amici Curiae International Law Professors, in support of
`Defendants-Appellants.
`
`
`Jeffrey A. Lamken, Evan A. Young, Baker Botts L.L.P.,
`Washington, DC, and Austin, TX, for Amici Curiae
`National Foreign Trade Council, USA*Engage, U.S.
`Council for International Business, Organization for
`International Investment, and National Association of
`Manufacturers, in support of Defendants-Appellants.
`
`
`Julian Ku, Hofstra University Law School, Hempstead, NY;
`Michael D. Ramsey, University of San Diego Law
`School, San Diego, CA; for Amici Curiae Law Professors
`of International Law and U.S. Foreign Relations Law, in
`support of Defendants-Appellants.
`
`
`Marco B. Simons, Richard L. Herz, Jonathan G. Kaufman,
`EarthRights International, Washington, DC, for
`Amicus Curiae EarthRights International, in support of
`Plaintiffs-Appellees.
`
`
`Steven A. Kanner, Freed Kanner London & Millen LLC,
`Bannockburn, IL, for Amici Curiae Former Commissioners
`and Committee Members of South Africa’s Truth and
`Reconciliation Commission, in support of Plaintiffs-Appellees.
`
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`5
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`

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`Piper Hendricks, World Organization for Human Rights
`USA, Washington, DC, for Amicus Curiae International
`Center for Transitional Justice, in support of Plaintiffs-
`Appellees.
`
`
`William J. Aceves, California Western School of Law, San
`Diego, CA, for Amici Curiae International Law Scholars, in
`support of Plaintiffs-Appellees.
`
`
`Robert N. Kaplan, Gregory K. Arenson, Kaplan Fox
`Kilsheimer LLP, New York, NY, for Amicus Curiae
`Joseph E. Stiglitz, in support of Plaintiffs-Appellees.
`
`
`Maria C. LaHood, Katherine Gallagher, Meena Jagannath,
`Blinne Ni Ghralaigh, Center for Constitutional
`Rights, New York, NY, for Amici Curiae Non-
`Governmental Organizations Committed to Human Rights, in
`support of Plaintiffs-Appellees.
`
`
`Renae D. Steiner, Heins Mills & Olson, P.L.C., Minneapolis,
`MN, for Amici Curiae Professor John Dugard and Advocate
`Anton Katz, in support of Plaintiffs-Appellees.
`
`
`Elizabeth J. Cabraser, Steve M. Swerdlow, Lieff Cabraser,
`Heimann & Bernstein LLP, San Francisco, CA;
`Agnieszka M. Fryszman, Maureen E. McOwen,
`Cohen Milstein Sellers & Toll PLLC, Washington,
`DC; and Jennifer M. Green, University of Minnesota
`School of Law, Minneapolis, MN; for Amici Curiae
`Professors of Civil Procedure, in support of Plaintiffs-Appellees.
`
`
`Bernard Persky, Kellie Lerner, Labaton Sucharow LLP, New
`York, NY, for Amici Curiae Professors of Federal
`Jurisdiction and Legal History, in support of Plaintiffs-
`Appellees.
`
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`Eugene A. Spector, Spector Roseman Kodroff & Willis, P.C.,
`Philadelphia, PA, for Amicus Curiae South African
`Council of Churches, in support of Plaintiffs-Appellees.
`
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`Terry Collingsworth, Conrad & Scherer, LLP, Washington,
`DC, for Amicus Curiae Congress of South African Trade
`Unions, in support of Plaintiffs-Appellees.
`
`
`Richard L. Herz, Marco B. Simons, Jonathan G. Kaufman,
`EarthRights International, Washington, DC, for Amici
`Curiae U.S. Diplomats, in support of Plaintiffs-Appellees.
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`6
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`

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`Luis Romero Requena, European Commission, Brussels,
`Belgium, for Amicus Curiae European Commission.
`
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`David B. Goldstein, Rabinowitz, Boudin, Standard, Krinsky
`& Lieberman, P.C., New York, NY, for Amicus Curiae
`Republic of South Africa.
`
`
`Nigel Sheinwald, British Embassy Washington, Washington,
`DC, for Amicus Curiae United Kingdom of Great Britain
`and Northern Ireland.
`
`
`JOSÉ A. CABRANES, Circuit Judge:
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`
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`The question presented is whether to issue a writ of mandamus to resolve in favor of the
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`defendants this long-lived litigation under the Alien Tort Statute (“ATS”)—a statute, passed in 1789,
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`that was rediscovered and revitalized by the courts in recent decades to permit aliens to sue for
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`alleged serious violations of human rights occurring abroad. The statute was first deployed in 1980
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`against individual defendants alleged to have perpetrated crimes against humanity, and beginning in
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`1997, some courts have extended its reach to suits against corporate defendants as well. See Kiobel v.
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`Royal Dutch Petroleum Co., 621 F.3d 111, 116 (2d Cir. 2010), aff’d on other grounds, 133 S. Ct. 1659
`
`(2013). We consider this question in light of the Supreme Court’s recent decision that federal courts
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`may not, under the ATS, recognize common-law causes of action for conduct occurring in another
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`country.
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`In these putative class-action suits brought on behalf of those harmed by the decades-long
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`South African legal regime known as “apartheid,” the plaintiffs assert that the South African
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`subsidiary companies of the named corporate defendants—Daimler, Ford, and IBM (the
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`“defendants”)—aided and abetted violations of customary international law committed by the South
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`African government.1 In short, the plaintiffs claim that these subsidiary companies sold cars and
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`1 The suits were originally brought by two groups of plaintiffs, the Balintulo plaintiffs (also referred to as the
`Khulumani plaintiffs) and the Ntsebeza plaintiffs, see Part I.A, post, against a broad and diverse group of corporate
`defendants, over fifty in number and representing a broad cross-section of the international economy.
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`7
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`computers to the South African government, thus facilitating the apartheid regime’s innumerable
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`race-based depredations and injustices, including rape, torture, and extrajudicial killings.
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`
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`The plaintiffs brought these suits over ten years ago in federal court under the ATS, which
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`confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation
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`of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Although the plaintiffs did
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`not claim that any of the South African government’s alleged violations of the law of nations2
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`occurred in the United States, at the time they filed their complaint they assumed (as did most
`
`
`The Balintulo plaintiffs sued twenty-three named foreign and domestic corporations: AEG Daimler-Benz Industrie,
`Barclays National Bank Ltd., British Petroleum, PLC, ChevronTexaco Corp., ChevronTexaco Global Energy, Inc.,
`Citigroup, Inc., Commerzbank, Credit Suisse Group, DaimlerChrysler AG, Deutsche Bank AG, Dresdner Bank AG,
`Exxon Mobil Corp., Fluor Corp., Ford Motor Co., Fujitsu, Ltd., General Motors Corp., IBM Corp., J.P. Morgan Chase,
`Rheinmetall Group AG, Rio Tinto Group, Shell Oil Co., Total-Fina-Elf, and UBS AG.
`
`The Ntsebeza plaintiffs sued fifty-five defendants, including Amdahl Corp., American Isuzu Motors, Inc., Anglo-
`American Corp., Banque Indo Suez, Bank of America, N.A., Barclays Bank PLC, Citigroup Inc., Bristol-Meyers Squibb
`Co., Burroughs Corp., Chemical Bank & Chase Manhattan Bank, Chevron Texaco Corp., Citigroup AG, Coca-Cola Co.,
`Colgate Palmolive, Commerzbank AG, Crédit Agricole S.A., Crédit Lyonnais, Credit Suisse Group, Daimler Chrysler
`Corp., De Beers Corp., Deutsche Bank AG, The Dow Chemical Co., Dresdner Bank AG, E.I. Dupont de Nemours and
`Co., EMS-Chemie (North America) Inc., Exxon Mobil Corp., Ford Motor Co., General Electric Co., General Motors
`Corp., Hewlett-Packard Co., Holcim, Inc., Holcim, Ltd., Honeywell International, Inc., ICL, Ltd., J.P. Morgan, IBM
`Corp., Manufacturers Hanover Corp., Merrill Lynch & Co. Inc., Minnesota Mining and Manufacturing Co. (3M Co.),
`National Westminster Bank PLC, Nestle USA, Inc., Novartis AG, Oerlikon Bührle AG, Oerlikon Contraves AG, Royal
`Dutch Petroleum Co., Schindler Holding AG, Securities Inc., Shell Oil Co., Shell Petroleum, Inc., Shell Transport &
`Trading Co. PLC, Sperry Corp., Standard Chartered, P.L.C., Sulzer AG, UBS AG, Unisys Corp., Xerox Corp., along
`with unnamed corporations and various named and unnamed corporate officers.
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`The three defendants in the instant appeal—Daimler, Ford, and IBM—are all that remain.
`
`2 A violation of the “law of nations,” we have consistently explained, is one that violates “customary international
`law,” Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2 (2d Cir. 2003) (internal citations omitted), “composed only of
`those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern,” id. at
`248, i.e., “the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one
`another,” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 118 (2d Cir. 2010), aff’d on other grounds, 133 S. Ct. 1659 (2013).
`As Judge Friendly explained long ago, these rules include only “those standards, rules or customs (a) affecting the
`relationship between states or between an individual and a foreign state, and (b) used by those states for their common
`good and/or in dealings inter se.” IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), abrogated on other grounds by
`Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010); see also Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980) (“It
`is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by
`means of express international accords, that a wrong generally recognized becomes an international law violation within
`the meaning of the [ATS].” (emphasis supplied)). The wrongs condemned by customary international law include those
`heinous criminal offenses that fall under the general headings of war crimes and crimes against humanity. See Presbyterian
`Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 257 n.7 (2d Cir. 2009); see also United States v. Yousef, 327 F.3d 56,
`103–04 (2d Cir. 2003) (noting the “strictly limited set of crimes” that are “uniformly recognized by the ‘civilized nations’
`as . . . offense[s] against the ‘Law of Nations’”). Certain violations of customary international law, however, can become
`actionable in civil lawsuits by virtue of legislative command. See Sosa v. Alvarez-Machain, 542 U.S. 692, 738 n.29 (2004)
`(noting the distinction between a rule of customary international law and a private right of action); see also Medellin v.
`Texas, 552 U.S. 491, 506 n.3 (2008) (identifying a similar principle with respect to treaty law).
`
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`8
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`American courts at that time3) that no such geographical connection was necessary. Based, in part,
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`on that assumption, the United States District Court for the Southern District of New York (Shira
`
`A. Scheindlin, Judge)4 denied a motion to dismiss by the defendants, and allowed the suits to proceed.
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`See In re South African Apartheid Litig., 617 F. Supp. 2d 228, 246, 296 (S.D.N.Y. 2009).
`
`
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`Although parties usually cannot appeal while district court proceedings are ongoing, the
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`defendants sought immediate review of the District Court’s denial of their motion to dismiss in this
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`Court, first through a motion to certify an interlocutory appeal, which the District Court denied, and
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`thereupon through either a writ of mandamus or under the “collateral order” doctrine5—both of
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`which permit immediate appellate review of certain types of particularly important decisions by a
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`district court. In pursuing appellate review, the defendants claimed (1) that the case should be
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`dismissed because it threatened significant United States foreign-policy interests, as explained in a
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`statement of interest filed by the U.S. government; (2) that the jurisdiction conferred by the ATS
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`does not permit suits against corporations or apply to acts committed outside of the United States;
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`and (3) that the District Court erroneously imposed accessorial liability. We then granted the
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`defendants’ motion for a stay of all proceedings, putting the District Court proceedings on pause
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`while we considered this case.
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`Now on appeal for over four years, this case has been overtaken by recent events. Most
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`significantly, the Supreme Court held, as a matter of United States law, that federal courts may not,
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`under the ATS, recognize common-law causes of action for conduct occurring in the territory of
`
`
`3 See, e.g., Flomo v. Firestone Nat’l Rubber Co., LLC, 643 F.3d 1013, 1025 (7th Cir. 2011) (“[N]o court to our knowledge
`has ever held that [the ATS] doesn’t apply extraterritorially.”).
`
`4 The suits were brought in various districts but were transferred to the Southern District of New York by the
`Judicial Panel on Multidistrict Litigation. See In re South African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML 2002).
`The cases were originally assigned to Judge John E. Sprizzo, but they were reassigned to Judge Shira A. Scheindlin
`following the death of Judge Sprizzo in 2008.
`
`5 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
`106–07 (2009); Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013).
`
`
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`9
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`another sovereign. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1668–69 (2013).6 Additionally,
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`the South African government—which had previously opposed the suits because they “interfere[d]
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`with the policy embodied by its Truth and Reconciliation Commission,” Sosa v. Alvarez-Machain, 542
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`U.S. 692, 733 n.21 (2004)—reversed its position in September 2009 after a change in governmental
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`leadership. After this series of twists and turns, the parties submitted supplemental briefing, and we
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`have now reached a decision.
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`The opinion of the Supreme Court in Kiobel plainly bars common-law suits, like this one,
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`alleging violations of customary international law based solely on conduct occurring abroad.
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`Because of that unambiguous holding, the defendants will be able to obtain their desired relief
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`(dismissal of all claims) in the District Court through a motion for judgment on the pleadings,
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`without resort to a writ of mandamus. The defendants’ request for mandamus relief is therefore
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`denied. For the same reason, we need not consider the defendants’ argument under the collateral
`
`order doctrine. Instead, we vacate our stay on the District Court proceedings so that the defendants
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`may move for judgment on the pleadings. We reserve the question whether we have jurisdiction
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`under the collateral order doctrine and hold the putative appeal under that doctrine in abeyance
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`pending further notice from the parties.
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`I. Background
`
`A. The Pleadings
`
`
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`These consolidated cases come to us as a continuation of litigation on which the District
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`Court, this Court, and even the Supreme Court, have already spoken at length. See Part I.B., post. In
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`the latest iteration of pleadings, which have been amended twice, the plaintiffs assert that the South
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`African subsidiaries of the various corporate defendants aided and abetted in violations of
`
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`6 This decision followed in time our holdings that “the mens rea standard for aiding and abetting liability in ATS
`actions is purpose rather than knowledge alone,” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d
`Cir. 2009), and that customary international law does not presently recognize corporate liability, Kiobel v. Royal Dutch
`Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010), reh’g en banc denied, 642 F.3d 379 (2011).
`
`
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`10
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`customary international law during the repressive “apartheid” legal regime in South Africa. The
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`District Court summarized these allegations as follows:
`
`Plaintiffs in the first action, Ntsebeza v. Daimler A.G. (“Ntsebeza plaintiffs”), allege
`that they suffered discriminatory employment practices, employment retaliation for
`political beliefs, geographic segregation, arbitrary arrest and detention, torture, forced
`exile, arbitrary denationalization, and the extrajudicial killing of family members. The
`Ntsebeza plaintiffs bring a class action on behalf of “themselves and all black South
`African citizens (and their heirs and beneficiaries) who during the period from 1973
`to 1994 suffered injuries” as a result of defendants’ direct and secondary violations of
`the law of nations.
`
`Plaintiffs in the second action, Khulumani v. Barclays National Bank Ltd.
`(“Khulumani plaintiffs”), include both Khulumani—a South African organization that
`“works to assist victims of apartheid-era violence”—and individuals who suffered
`geographic segregation, arbitrary arrest and detention, rape, torture, and the
`extrajudicial killing of family members. . . .
`
`
`
`. . . .
`
`The Ntsebeza plaintiffs allege that the automotive defendants—or their agents or
`alter egos—committed both direct and secondary violations of the law of nations by
`engaging in workplace discrimination that mimicked and enhanced apartheid,
`suppressing union activities, manufacturing military vehicles for the South African
`security forces in the face of worker protests, and assisting security forces in
`identifying and torturing anti-apartheid leaders. The Ntsebeza plaintiffs additionally
`allege that defendant IBM—or its agents or alter egos—committed secondary
`violations of the law of nations by providing the computer hardware, software,
`maintenance, and support necessary for the South African Government to carry out
`geographic segregation and denationalization. . . .
`
`The Khulumani plaintiffs allege that the automotive defendants aided and abetted
`violations of the law of nations by supplying vehicles, parts, and other equipment to
`the apartheid security forces. The Khulumani plaintiffs additionally allege that the
`technology defendants aided and abetted violations of the law of nations by
`providing the computer systems necessary to restrict black South Africans’
`movements, track dissidents, and target particular individuals for repressive acts.
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`In re South African Apartheid Litig., 617 F. Supp. 2d at 241–43.
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`B. Procedural History
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`
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`“The tortuous procedural history of these cases dates back to the filing of complaints in
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`2002.” In re South African Apartheid Litig., 624 F. Supp. 2d 336, 338 (S.D.N.Y. 2009).7 As relevant
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`7 See In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004), aff’d in part, vacated in part, Khulumani v.
`Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (per curiam), aff’d for want of a quorum sub nom., Am. Isuzu Motors, Inc., v.
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`
`
`11
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`

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`here, Judge Sprizzo, then presiding, dismissed the plaintiffs’ claims under the ATS for lack of
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`subject-matter jurisdiction, holding that the plaintiffs had not alleged a violation of “well-accepted
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`and clearly-defined” norms of customary international law. In re South African Apartheid Litig., 346
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`F. Supp. 2d 538, 546, 548 (S.D.N.Y. 2004). We reversed that judgment in part, explaining in a per
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`curiam opinion that “a plaintiff may plead a theory of aiding and abetting liability” under the ATS,
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`Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007) (per curiam), but we declined to
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`reach other arguments, and instead permitted the plaintiffs to replead, id. at 260–61.8 After the
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`defendants sought a writ of certiorari, the Supreme Court affirmed our decision for want of a
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`quorum. See Am. Isuzu Motors, Inc., v. Ntsebeza, 553 U.S. 1028 (2008) (Mem.).
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`On remand, the plaintiffs filed an amended complaint, this time naming only eight
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`defendants.9 With the exception of one defendant that contested personal jurisdiction, the
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`defendants then filed a joint motion to dismiss on various grounds, including doctrines of case-
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`specific deference and international comity, lack of jurisdiction over corporations under the ATS,
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`lack of extraterritorial reach for causes of action under the ATS, and the absence of aiding-and-
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`abetting liability under the federal common law, as developed pursuant to Sosa v. Alvarez-Machain,
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`542 U.S. 692 (2004). Judge Scheindlin, to whom the case was assigned following the death of Judge
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`Sprizzo, rejected each of these arguments, and held that the suit could proceed on an agency theory,
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`under which the corporate defendants could be held liable for the actions of their South African
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`Ntsebeza, 553 U.S. 1028 (2008) (Mem.), on remand, In re South African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009);
`see also Sosa, 542 U.S. at 733 n.21 (referring, by name, to this particular suit as one that may warrant dismissal, and
`commenting that “there is a strong argument that federal courts should give serious weight to the Executive Branch’s
`view of the case’s impact on foreign policy”).
`
`8 Each of the three judges on the Khulumani panel filed a separate opinion. 504 F.3d at 264–84 (Katzmann, J.,
`concurring); id. at 284–92 (Hall, J., concurring); id. at 292–337 (Korman, J., dissenting).
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`9 The Ntsebeza plaintiffs named Ford, General Motors Corp., Daimler, IBM, and Barclays Bank PLC. The Balintulo
`plaintiffs named those five companies as well as UBS AG, Fujitsu Ltd., and Rheinmetall AG.
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`12
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`

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`subsidiaries.10 See In re South African Apartheid Litig., 617 F. Supp. 2d at 274–76. She explained that
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`the South African subsidiary companies could be liable as accessories based on their knowledge that
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`their dealings with the South African government facilitated the many evils of apartheid, even if the
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`companies did not intend their assistance to have that effect.11 Id. at 259–62. Following the District
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`Court’s denial of certification, see In re South African Apartheid Litig., 624 F. Supp. 2d 336 (S.D.N.Y.
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`2009), the defendants brought this petition for a writ of mandamus, and a putative appeal under the
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`collateral order doctrine, arguing that “the District Court’s denial of dismissal should be reversed,
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`and the cases remanded with instructions to dismiss the complaints.” Defendants’ Br. 59.12
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`We initially heard argument on a variety of preliminary motions on September 1, 2009. Only
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`a day after argument, we received a letter from the South African government reversing its earlier
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`position and declaring that it was “now of the view that [the United States District Court for the
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`Southern District of New York] is an appropriate forum to hear the remaining claims of aiding and
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`abetting in violation of international law.” See Letter of Jeffrey Thamsanqa Radebe, Minister of
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`Justice and Constitutional Development, Sept. 2, 2009; see also Sosa, 542 U.S. at 733 n.21 (explaining
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`10 Judge Scheindlin dismissed claims made by the Khulumani (or Balintulo) plaintiffs in the First Amended complaint
`on the basis of insufficient allegations concerning vicarious liability, see In re South African Apartheid Litig., 617 F. Supp. 2d
`at 275-76, but she allowed those claims to proceed once the plaintiffs amended the complaint a second time.
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`11 Our Court later held that “the mens rea standard for aiding and abetting liability in ATS actions is purpose rather
`than knowledge alone.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009).
`Accordingly, “supplying . . . equipment to a local government will not support the imposition of aiding and abetting
`liability . . . for that government’s abuses unless the [defendant] acted with a purpose to promote or advance those
`violations.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 158 (2d Cir. 2010) (Leval, J., concurring). The Distri