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Petitioners, V No. In the Supreme Court of the United States NESTLÉ U.S.A., INC.; ARCHER-DANIELS-MIDLAND COMPANY; AND CARGILL, INCORPORATED, Petitioners, v. JOHN DOE I; JOHN DOE II; JOHN DOE III, INDIVIDUALLY AND ON BEHALF OF PROPOSED CLASS MEMBERS, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI ANDREW J. PINCUS NEAL KUMAR KATYAL Mayer Brown LLP Counsel of Record 1999 K St., N.W. CRAIG A. HOOVER Washington, DC 20006 Hogan Lovells US LLP (202) 263-3000 555 Thirteenth St., NW Attorneys for Cargill, Washington, DC 20004 Incorporated (202) 637-5600 KRISTIN LINSLEY MYLES neal.katyal@hoganlovells. Munger, Tolles & Olson LLP com 560 Mission St. Attorneys for Nestlé San Francisco, CA 94105 U.S.A., Inc. (415) 512-4000 Attorneys for Archer- Daniels-Midland Co. [Additional counsel listed on signature page] i QUESTIONS PRESENTED Petitioners are companies that purchase cocoa beans grown in Côte d’Ivoire. Respondents, citizens of Mali, claim that Ivorian cocoa farmers subjected them to forced labor and other abuses when they were under the age of 14. They also contend that the use of forced child labor on Ivorian cocoa farms is “widespread” and well known. Respondents filed this class action under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, claiming that petitioners are liable as aiders and abettors of the farmers’ labor abuses based on petitioners’ purchases of cocoa and provision of crop-related assistance to cocoa farmers. The questions presented, each of which is the subject of a circuit conflict, are: 1. Whether a defendant is subject to suit under the ATS for aiding and abetting another person’s alleged violation of the law of nations based on allegations that the defendant intended to pursue a legitimate business objective while knowing (but not intending) that the objective could be advanced by the other person’s violation of international law. 2. Whether the “focus” test of Morrison v. National Australian Bank, Ltd., 561 U.S. 247, 248 (2010), governs whether a proposed application of the ATS would be impermissibly extraterritorial under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). 3. Whether there is a well-defined international-law consensus that corporations are subject to liability for violations of the law of nations. ii PARTIES TO THE PROCEEDING BELOW The petitioners, and defendants-appellees below, are Nestlé U.S.A., Inc.; Archer-Daniels-Midland Company, and Cargill, Incorporated. The respondents, and plaintiffs-appellants below, are Malian citizens suing pseudonymously as John Doe I, John Doe II, and John Doe III. Global Exchange, a San Francisco-based human- rights organization, was a plaintiff in district court, but did not appeal the dismissal of its claims. RULE 29.6 STATEMENT Petitioner Archer-Daniels-Midland Company is a publicly traded domestic corporation. No publicly traded company owns 10% or more of its common stock. Petitioner Nestlé U.S.A., Inc. is a wholly owned subsidiary of Nestlé Holdings, Inc., which is a wholly owned subsidiary of NIMCO US, Inc., which is a wholly owned subsidiary of Nestlé S.A., a publicly traded Swiss corporation, the shares of which are traded in the U.S. in the form of American Depositary Receipts. Petitioner Cargill, Incorporated is a domestic corporation, the shares of which are not publicly traded. No publicly traded company owns 10% or more of its common stock. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING BELOW............ ii RULE 29.6 STATEMENT.......................................... ii TABLE OF AUTHORITIES.......................................vi OPINIONS BELOW....................................................1 JURISDICTION ..........................................................1 STATUTORY PROVISION INVOLVED....................1 STATEMENT ..............................................................1 A. District Court Proceedings...............................1 B. Ninth Circuit Proceedings................................4 REASONS FOR GRANTING THE PETITION .......12 I. THE NINTH CIRCUIT’S RULING CREATES A CONFLICT REGARDING THE MENS REA STANDARD FOR AIDING-AND-ABETTING LIABILITY..............12 A. The Decision Below Squarely Conflicts With Rulings By The Second And Fourth Circuits ...............................................13 B. The Panel Majority’s Aiding-and- Abetting Analysis Conflicts With This Court’s Precedents..........................................20 C. The Ninth Circuit’s Ruling Will Have Significant Adverse Consequences ................22 II. THE EXTRATERRITORIALITY RULING CONTRAVENES KIOBEL AND CREATES A CIRCUIT CONFLICT ......................................24 iv TABLE OF CONTENTS—continued Page A. Kiobel Adopted Morrison’s “Focus” Test........25 B. The Clear Conflict On This Frequently Recurring Question Should Be Resolved By This Court..................................................31 III. THE COURT SHOULD RESOLVE THE RECOGNIZED CONFLICT AS TO WHETHER THERE IS A WELL- DEFINED INTERNATIONAL-LAW CONSENSUS THAT CORPORATIONS ARE SUBJECT TO LIABILITY FOR VIOLATIONS OF THE LAW OF NATIONS............................................................34 CONCLUSION ..........................................................37 APPENDIX A: Opinion of the United States Court of Appeals for the Ninth Circuit (Sept. 4, 2014) .....................................................1a APPENDIX B: Opinion of the United States Court of Appeals for the Ninth Circuit (Dec. 18, 2013) ..................................................43a APPENDIX C: Order of the United States District Court for the Central District of California (Oct. 13, 2010) .................................49a APPENDIX D: Order of the United States District Court for the Central District of California (Sept. 8, 2010) ................................54a v TABLE OF CONTENTS—continued Page APPENDIX E: Amended Order of the United States Court of Appeals for the Ninth Circuit Denying Rehearing and Rehearing En Banc (June 10, 2015) ................................232a vi TABLE OF AUTHORITIES Page(s) CASES Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014)................................ 33 Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011).........................passim Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) ..................... 31, 32, 35 Balintulo v. Ford Motor Co., 796 F.3d 150 (2d Cir. 2015) ................15, 31, 33, 35 Baloco v. Drummond Co., 767 F.3d 1229 (11th Cir. 2014)................ 11, 31, 32 Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 (11th Cir. 2014)............................ 32 Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42 (2d Cir. 2014)........................... 35 Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015).............................. 31 Flomo v. Firestone Nat’l Rubber Co., 643 F.3d 1013 (7th Cir. 2011).............................. 34 Khulumani v. Barclay Nat’l Bank PLC Ltd., 504 F.3d 254 (2d Cir. 2007) ................................. 22 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2011) ........................... 35, 36 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013)...................................passim Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) ..................... 11, 16, 31 vii TABLE OF AUTHORITIES—continued Page(s) Morrison v. Nat’l Australian Bank, Ltd., 561 U.S. 247 (2010).......................................passim Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) ....passim Prosecutor v. Perisic, Case No. IT–04–81–T Judgment (Feb. 28, 2013)...................................................... 24 Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008)............................ 34 Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011)............................ 7, 35 Sosa v. Alvarez Machain, 542 U.S. 692 (2004).......................................passim Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006)................................ 19 United States v. Wallace, 531 F.3d 504 (7th Cir. 2008)................................ 19 STATUTES 15 U.S.C. § 78j(b)................................................. 27, 29 28 U.S.C. § 1254(1)...................................................... 1 28 U.S.C. § 2109 ........................................................ 22 Alien Tort Statute, 28 U.S.C. § 1350.................passim MISCELLANEOUS BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2d ed. 1999)......................................................... 36 PETITION FOR A WRIT OF CERTIORARI OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-42a) is reported at 766 F.3d 1013. The court of appeals’ order denying rehearing, as amended (App., infra, 232a-253a), is reported at 788 F.3d 946. The court of appeals’ initial opinion (App., infra, 43a-48a) is reported at 738 F.3d 1048. The district court’s opinion granting the motion to dismiss (App., infra, 54a-231a) is reported at 748 F. Supp. 2d 1057. The district court’s order dismissing the action (App., infra, 49a-53a) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 4, 2014 (App., infra, 1a), and a timely petition for rehearing was denied on May 6, 2015 (App., infra, 232a). Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including September 18, 2015. This Court’s jurisdiction rests on 28 U.S.C.
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