Go to Extended Case 23.3, Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir. 2007), on pages 452– 453.

Extended Case 23.3 (Khulumani v. Barclay National Bank Ltd.)

The plaintiffs in this action bring claims under the Alien Tort Claims Act (“ATCA”) against
approximately fifty corporate defendants and hundreds of “corporate Does” [including Bank of America, N.A.; Barclay National Bank, Ltd.; Citigroup, Inc.; Credit Suisse Group;
Deutsche Bank A.G.; General Electric Company; IBM Corporation;
and Shell Oil Company]. The plaintiffs
argue that these defendants
actively and willingly collaborated
with the government of South Africa
in maintaining a repressive, racially
based system known as “apartheid,”
which restricted the majority black
African population in all areas of
life while providing benefi ts for the
minority white population.
Three groups of plaintiffs fi led
ten separate actions in multiple
federal district courts asserting
these apartheid-related claims. One
group, the Khulumani Plaintiffs,
fi led a complaint against twentythree
domestic and foreign corporations,
charging them with various
violations of international law. The
other two groups, the Ntsebeza
and Digwamaje Plaintiffs, brought
class action claims on behalf of the
“victims of the apartheid related
atrocities, human rights’ violations,
crimes against humanity and unfair
[and] discriminatory forced labor
practices.”
* * * All of the actions [were
transferred to a federal district
court in] the Southern District of
New York * * * . Thirty-one of the
fifty-five defendants in the Ntsebeza
and Digwamaje actions * * *
[and] eighteen of the twenty-three
defendants in [the Khulumani]
action * * * fi led * * * motion[s]
to dismiss.
* * * *
Ruling on the defendants’
motions to dismiss, the district
court held that the plaintiffs failed
to establish subject matter jurisdiction
under the ATCA. * * * The
district court therefore dismissed
the plaintiffs’ complaints in their
entirety. * * * The plaintiffs fi led
timely notices of appeal [with the
U.S. Court of Appeals for the Second
Circuit].
* * * *
* * * [This court] vacate[s]
the district court’s dismissal of the
plaintiffs’ ATCA claims because the
district court erred in holding that
aiding and abetting violations of
customary international law cannot
provide a basis for ATCA jurisdiction.
We hold that * * * a plaintiff
may plead a theory of aiding and abetting
liability under the ATCA. * * *
[The majority of the judges on the
panel that heard this case agreed
on the result but differed on the
reasons, which were presented in
two concurring opinions. One judge
believed that liability on these facts
is “well established in international
law,” citing such examples as the
Rome Statute of the International
Criminal Court. Another judge
stated that grounds existed in such
resources of U.S. law as Section
876(b) of the Restatement (Second) of
Torts, under which liability could be
assessed in part for “facilitating the
commission of human rights violations
by providing the principal
tortfeasor with the tools, instrumentalities,
or services to commit those
violations.”] [Emphasis added.]
* * * *
* * * We decline to affirm the
dismissal of plaintiffs’ ATCA claims
on the basis of the prudential
concernsa raised by the defendants.
* * * The Supreme Court [has]
identified two different respects
in which courts should consider
prudential concerns in deciding
whether to hear claims brought
under the ATCA.b First, * * * courts
should consider prudential concerns
in the context of determining
whether to recognize a cause of
action under the ATCA. Specifically, * * * the determination whether a
norm is suffi ciently defi nite to support
a cause of action should (and,
indeed, inevitably must) involve
an element of judgment about the
practical consequences of making
that cause available to litigants in
the federal courts. Second, * * *
in certain cases, other prudential
principles might operate to limit the
availability of relief in the federal
courts for violations of customary
international law.
* * * *
One such principle * * * [is] a
policy of case-specifi c deference to
the political branches [of the U.S.
government]. This policy of judicial
deference to the Executive Branch on
questions of foreign policy has long
been established under the prudential
justiciability doctrine known as the
political question doctrine. Another
prudential doctrine that the defendants
raise in this case is international
comity. This doctrine * * * asks
whether adjudication of the case by
a United States court would offend
amicable working relationships with
a foreign country. [Emphasis added.]
* * * *
We decline to address these casespecifi
c prudential doctrines now
and instead remand to the district
court to allow it to engage in the
fi rst instance in the careful “case-bycase”
analysis that questions of this
type require.
* * * *
* * * We VACATE the district
court’s dismissal of the plaintiffs’
ATCA claims * * * and REMAND
for further proceedings consistent
with this opinion.

Read the excerpt and answer the following questions:

(a) What was the plaintiffs’ claim in this case?

(b) On what U.S. law did the plaintiffs base this claim, and what was the defendants’ response?

(c) How did the trial court respond to the parties’ contentions, what was the appellate court’s position, and why?

(d) Did the court issue an ultimate ruling with respect to the plaintiffs’ claim in this case?
Explain.