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No Rehearing in Rejection of Alien Tort Statute Claims

In 1990, residents of the Ogoni region of Nigeria launched a peaceful resistance movement against the foreign oil companies operating in the region. A lawsuit claims that in response, the oil companies enlisted the aid of the Nigerian government to suppress the resistance. From 1993 through 1995, the lawsuit alleges, Nigerian military forces attacked Ogoni villages, killing, beating and raping residents and destroying and looting property.

The Ogoni plaintiffs brought their lawsuit in U.S. court under the Alien Tort Statute, accusing Royal Dutch Petroleum and Shell Transport and Trading Co. of aiding and abetting the human
rights violations.

The claimants, victims of apartheid in South Africa, had tried to keep their claims alive in the face of Kiobel by pointing to Judge Pierre Leval's lengthy dissent in that case and the fact that the court raised the issue sua sponte and ruled on it without briefing from the plaintiffs--two points that critics of Kiobel have cited since the 2nd Circuit's September ruling.

But the bankruptcy judge ruling on the apartheid claims relied on Kiobel. "[T]hose are points for the Circuit to consider, not me; I'm bound as a lower court in the Second Circuit to abide by any Second Circuit holding," wrote U.S. Bankruptcy Judge Robert Gerber. He disallowed the remaining claims, quoting Cabranes' opinion.

Associate Editor

Melissa Maleske

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