06-4800-cv, 06-4876-cv Kiobel v. Royal Dutch Petroleum UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4…

06-4800-cv, 06-4876-cv
Kiobel v. Royal Dutch Petroleum
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
At a stated term of the United States Court of Appeals 6
for the Second Circuit, held at the Daniel Patrick Moynihan 7
United States Courthouse, 500 Pearl Street, in th City of 8
New York, on the 4 th day of February, two thousand eleven. 9
10
PRESENT: DENNIS JACOBS, 11
Chief Judge, 12
JOSÉ A. CABRANES, 13
ROSEMARY S. POOLER, 14
ROBERT A. KATZMANN, 15
REENA RAGGI, 16
RICHARD C. WESLEY, 17
PETER W. HALL, 18
DEBRA ANN LIVINGSTON, 19
GERARD E. LYNCH, 20
DENNY CHIN, 21
Circuit Judges. 22
23
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25
ESTHER KIOBEL, individually and on behalf 26
of her late husband, DR. BARINEM KIOBEL, 27
BISHOP AUGUSTINE NUMENE JOHN-MILLER, 28
CHARLES BARIDORN WIWA, ISRAEL PYAKENE 29
NWIDOR, KENDRICKS DORLE NWIKPO, ANTHONY B. 30
KOTE-WITAH, VICTOR B. WIFA, DUMLE J. 31
KUNENU, BENSON MAGNUS IKARI, LEGBARA TONY 32
IDIGIMA, PIUS NWINEE, KPOBARI TUSIMA, 33
individually and on behalf of his late 34
father, CLEMENTE TUSIMA, 35
Plaintiffs-Appellants-Cross-Appellees, 36
37
- v.- 06-4800-cv 38
06-4876-cv 39
ROYAL DUTCH PETROLEUM CO., SHELL TRANSPORT 40

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2
AND TRADING COMPANY PLC, 1
Defendants-Appellees-Cross-Appellants, 2
3
SHELL PETROLEUM DEVELOPMENT COMPANY OF 4
NIGERIA, LTD., 5
Defendant. 6
7
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9
ORDER 10
11
Following disposition of this appeal on September 17, 12
2010, an active judge of the Court, together with a senior 13
judge, requested a poll on whether to rehear the case in 14
banc. A poll having been conducted and there being no 15
majority favoring in banc review, rehearing in banc is 16
hereby DENIED. 17
18
19
FOR THE COURT: 20
CATHERINE O’HAGAN WOLFE, CLERK 21
22
23
24

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DENNIS JACOBS, Chief Judge, concurring in the denial of
rehearing in banc:
I concur in the denial of rehearing in banc for the 1
reasons set forth in my opinion concurring in the denial of 2
rehearing by the panel. 3

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Gerard E. Lynch, Circuit Judge, joined by Rosemary S. Pooler, Robert A. Katzmann, and 1
Denny Chin, Circuit Judges, dissenting from the denial of rehearing in banc: 2
3
Because I believe that this case presents a significant issue and generates a circuit 4
split, see Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008), and because I 5
believe, essentially for the reasons stated by Judge Leval in his scholarly and eloquent 6
concurring opinion, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 7
2010), that the panel majority opinion is very likely incorrect as to whether corporations 8
may be found civilly liable under the Alien Tort Statute for violations of such 9
fundamental norms of international law as those prohibiting war crimes and crimes 10
against humanity, I would rehear the case en banc. I therefore respectfully dissent. 11

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1 As to the status of corporate liability under the ATCA, my concurring opinion in
Khulumani observed that “[w]e have repeatedly treated the issue of whether corporations may be
held liable under the ATCA as indistinguishable from the question of whether private individuals
may be.” 504 F.3d at 282 (Katzmann, J., concurring). However, I stated that “we need not reach
the issue at this time” because “[t]his argument was not raised by the defendants on appeal and
therefore the issue was not briefed by the parties.” Id. at 282-83.
KATZMANN , Circuit Judge, dissenting from the denial of rehearing in banc: 1
2
In this matter of extraordinary importance, this court divided 5-5 as to whether to proceed 3
to in banc rehearing. In voting in favor of rehearing this case in banc, I fully concur in Judge 4
Lynch’s dissent. I make these additional comments. 5
6
Some of the points of disagreement between the panel majority and Judge Leval relate to 7
the views that I expressed in my concurring opinion in Khulumani v. Barclay National Bank 8
Ltd., 504 F.3d 254 (2d Cir. 2007). In that opinion, I concluded that courts under the Alien Tort 9
Claims Act, 28 U.S.C. § 1350 (“ATCA”), should “determine whether the alleged tort was in fact 10
committed in violation of the law of nations, and whether this law would recognize the 11
defendants’ responsibility for that violation.” Id. at 270 (Katzmann, J., concurring) (internal 12
quotation marks and citation omitted). In Presbyterian Church of Sudan v. Talisman Energy, 13
Inc., 582 F.3d 244 (2d Cir. 2009), the unanimous panel — Chief Judge Jacobs, Judge Leval, and 14
Judge Cabranes — adopted this analysis as the “law of this Circuit,” and held that we must look 15
“to international law to find the standard for accessorial liability” under the ATCA, id. at 258-59. 16
17
I write separately to respond to the contentions by the panel majority that “[my] 18
reasoning in Khulumani leads to the inescapable conclusion” that corporations cannot be liable 19
under the ATCA, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 130 n.33 (2d Cir. 2010), 20
and that Judge Leval’s reasoning disregarded my Khulumani opinion by ignoring the rulings of 21
international criminal tribunals with respect to corporate liability, id. at 146-47. 1 I disagree. I 22
see no inconsistency between the reasoning of my opinion in Khulumani and Judge Leval’s well- 23
articulated conclusion, with which I fully agree, that corporations, like natural persons, may be 24
liable for violations of the law of nations under the ATCA. 25

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