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The facts surrounding the Talisman decision, like so many ATCA cases, are extremely compelling.  The case was brought by Sudanese citizens and a Sudanese church alleging that Talisman, as one part of an oil consortium involved in oil exploration and export in Sudan, aided and abetted the Sudanese government in the genocide and war crimes that were associated with Sudan's brutal civil war.  At the heart of plaintiffs' claims were allegations that Talisman, through their involvement in the oil consortium, assisted in the atrocities committed against Sudanese citizens by building all-weather roads, upgrading airstrips, and assisting in the forced displacement of Sudanese citizens after the Sudanese government created a "buffer zone" around the oil consortium's facilities as a safety measure.

After surviving several dispositive motions, including motions to dismiss on various jurisdictional grounds, and another dispositive motion in light of the Supreme Court's seminal decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the district court for the Southern District of New York dismissed the case on summary judgment.

In reviewing the district court's decision, the Second Circuit Court of Appeals began by acknowledging that Talisman's alleged acts of genocide, war crimes, and crimes against humanity were sufficient to come within the ATCA's jurisdiction and, more importantly, were of sufficient severity such that plaintiffs did not need to establish the element of "state action" necessary in many ATCA cases.  This left the court to decide the standard under which corporate entities charged with "aiding and abetting" and conspiring to commit ATCA violations should be judged, and whether plaintiffs had presented sufficient evidence to meet those standards.

As to the "aiding and abetting" standard, the Second Circuit grappled with deciding between adopting a domestic tort law standard embodied by the Restatement (Second) of Torts, which requires a mere "knowing encouragement" that "facilitate[s] the substantive violation," and the much more robust standard under international law, which requires more than mere knowledge and instead requires some purposeful action in furtherance of a substantive violation.

This distinction was critical to the court's decision, because although significant evidence showed that Talisman was aware that the roads and airstrips they had built and upgraded were being utilized by the Sudanese military to wage a civil war, there was no evidence that any of Talisman's actions--not even the refueling of military planes--was committed with the purpose of harming Sudanese citizens.  Referencing the U.S. Supreme Court's decision in  Sosa, the Second Circuit reasoned that there was an insufficient consensus within international law to attach accessorial liability in the absence of purposeful conduct.  The Second Circuit therefore held that "aiding and abetting" ATCA liability attaches only when a "defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime; and (2) does so with the purpose of facilitating the commission of that crime."

This standard creates a significantly high burden for plaintiffs attempting to utilize the ATCA to allege corporate complicity in human rights violations, as corporate actors almost invariably play a very indirect role in ATCA violations.  Indeed, the decision in Talisman appears to strike a deep blow to the potential to utilize the ATCA as a means to police corporate conduct, and at the very least adds an additional layer of complexity to bringing ATCA claims against corporate defendants.

This entry was written by Michael Congiu.