This week, the International Human Rights Clinic, along with co-counsel, filed a petition on behalf of plaintiffs for panel rehearing or rehearing en banc to review the U.S. Second Circuit Court of Appeal’s decision in Balintulo v. Daimler AG, which is also known as the In Re South African Apartheid Litigation. The petition stated that, “The panel opinion in Balintulo v. Daimler AG would eviscerate more than thirty years of this Court’s Alien Tort Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this Circuit.”
The petition comes more than 10 years after cases were first filed in the United States in 2002. Three defendant corporations—Ford Motor Company, Daimler AG, and International Business Machines Corporation (IBM)—remain from the original cases and are charged with complicity in the perpetration of apartheid-era crimes and human rights violations.
The petition seeks review of an August 21 decision by a three-judge panel of the Second Circuit that lifted a stay and sent the matter back to district court Judge Shira Scheindlin to consider the plaintiffs’ claims in light of the Supreme Court’s April decision in Kiobel. In the wake of the Kiobel ruling, which found that ATS claims must “touch and concern” the United States, the Second Circuit had requested letter briefs from both the plaintiffs and defendants. The briefs were submitted in late May, and in August, the Second Circuit stated that in light of Kiobel, “the Alien Tort Statute does not reach the extraterritorial conduct in this case.”
The U.S.-based lawyers representing the plaintiffs in the cases include Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Michael Hausfeld of Hausfeld, LLP, Diane Sammons and Jay Rice of Nagel Rice LLP, and Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky. The South African-based legal team includes Dumisa Ntsebeza, John Ngcebetsha, Charles Abrahams, Medi Mokuena, and Michael Osborne.