On Wednesday, October 11, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

In granting plaintiffs’ petition for a writ of certiorari, the Supreme Court agreed to review the following question:

This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

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Throughout the arguments, several Justices expressed concerns about the foreign relations concerns that can arise in the context of ATS cases. Petitioners’ counsel, Jeffrey Fisher, repeatedly noted these concerns can be addressed without adopting a rule precluding corporate liability. Mr. Fisher noted that “there are many other doctrines readily available to courts to directly and effectively deal with those issues,” citing the presumption against extraterritoriality, and exhaustion of remedies as examples. Citing the impact of the Supreme Court’s decision in Kiobel II, petitioners observed that what remains is a “very very small universe of ATS cases, a manageable universe of cases” — one which does not require further limitation through the imposition of a bar on corporate liability.

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Mr. Fisher sought to address Justice Kennedy’s concern in part by highlighting recent decisions in which the Court has found corporate liability to be “remedial,” including United States v. Bormes. Mr. Fisher also noted that “[w]hat the Court has said time and again is that part of the corporate bargain is that you get privileges and opportunities, but you also have burdens of being held liable in tort actions.”