Supreme Court of The United States

Supreme Court of the United States (SCOTUS): In 8-1 majority, Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Roberts, CJ., and Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Gorsuch and Kavanaugh, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Alito, J., joined as to Part I, and in which Kavanaugh, J., joined as to Part II. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer and Kagan, JJ., joined. Alito  J. filed a dissenting opinion.

Factual Matrix

Respondents alleged that they were trafficked into Ivory Coast as child slaves to produce cocoa.

It was stated that U. S. based companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate cocoa farms in Ivory Coast, but they do buy cocoa from farms located there and provide those farms with technical and financial resources.

Alien Tort Statute

Respondents sued Nestle, Cargill and others under the Alien Tort Statute (ATS) which provides the Federal Court’s jurisdiction to hear claims brought by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States contending that the said arrangement aids and abets child slavery.

District Court had dismissed the suit after this court held that the ATS does not apply extraterritorially.

Ninth Circuit let this suit proceed as respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U.S. and allegations of general corporate activity, like decision making cannot alone establish domestic application of the ATS.

our precedents are clear that creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.

JUSTICE GORSUCH, with whom JUSTICE ALITO joins as to Part I, and with whom JUSTICE KAVANAUGH joins as to Part II, concurring.

  • Notion that Corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.
  • The time has come to jettison the misguided notion that courts have discretion to create new causes of action under the ATS

Bench stated that causes of action in tort normally focus on wrongs and injuries, not who is responsible for them.

Further, it was stated that the real problem with the present lawsuit and others like it isn’t whether the defendant happens to be a corporation., it’s this: Just as the ATS nowhere privileges corporations, it nowhere deputizes the Judiciary to create new causes of action. Rather, the statute confers “jurisdiction” on federal courts to adjudicate “tort” claims by aliens for violations “of the law of nations.”

This Court has never—not once in 230 years—invoked the ATS to create a new cause of action.

In Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), Court recognized that federal judges usually may not invoke the ATS to create new causes of action, but it also proceeded to speculate that in some future case this Court might invoke the ATS to create a new cause of action.

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in part and concurring in the judgment.

Bench held that the respondents failed to allege a domestic application of the Alien Tort Statute, hence their complaint must be dismissed.

The trouble with JUSTICE THOMAS’ test is that it is unmoored from both history and precedent. The ATS was a statute born of necessity.

One needs to look no further than the text of the ATS to understand the task that the First Congress assigned to the Federal Judiciary. As originally enacted, the ATS gave federal courts “cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

JUSTICE THOMAS argued that “creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.”. He offered no meaningful support for that sweeping assertion, nor did he explain why an ATS suit for the tort of piracy, for example, would categorically present fewer foreign-policy concerns than a suit for aiding and abetting child slavery.

JUSTICE THOMAS suggests that federal courts lack “the ‘institutional capacity’ to consider all factors relevant” to recognizing actionable torts under the ATS.

His pessimism aside, there was no reason to doubt the federal court’s ability to identify those norms of international law that were sufficiently “specific, universal and obligatory” to give rise to a cause of action under the ATS.

Hence, there is nothing so mysterious about a law’s international origins that would prevent courts— bodies specifically tasked with, and particularly capable of, interpreting and applying laws—from ably adjudicating a suit for damages arising out of a “tort . . . committed in violation of the law of nations.”

Since Justice Sotomayor found no support for Justice Thomas’ proposition in the ATS or in the Court’s precedents, he did not join that portion of his opinion.

JUSTICE ALITO, dissenting.

  • Whether domestic corporation are immune from liability under Alien Tort Statute?

Justice Alito held that if a particular claim may be brought under the ATS against a natural person who is a US Citizen, a similar claim may be brought against a domestic corporation.

Court disposes of the case holding that respondent’s complaint sought extraterritorial application of the ATS, but in Justice Alito’s view Court should not decide that question at this juncture, it is tied to the question of whether the plaintiffs should be allowed to amend their complaint, and in order to reach the question of extraterritoriality, the Court must assume the answers to a host of important questions.

Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS. But this issue was not raised by petitioners’ counsel, and I would not reach it here.


Supreme Court held that Nestle and Cargill will not be sued for aiding and abetting child slavery at farms in Ivory Coast.

[Nestle USA, Inc. v. Doe, 593 U.S __(2021), decided on 17-06-2021]

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