Adhikari v. Kellogg Brown & Root, Incorporated, et al.

Case Updates

The Fifth Circuit affirmed the district court’s ruling in favor of the defendants-appellees, agreeing that the ATS claims were impermissibly extraterritorial. The court rejected the plaintiff’s theory that the Supreme Court’s decision in Kiobel creates a vague “touch and concern” test, instead concluding that Morrison v. National Australia Bank’s “focus” test applies.

Additionally, the court held that the claims under the Trafficking Victims Protection Reauthorization Act had been properly dismissed for the same reason. Although a 2008 amendment permits extraterritorial claims, the court held that the amendment couldn’t be applied retroactively to the claims at issue, which arose in 2004.

Finally, the Fifth Circuit agreed that the state common-law claims had been properly dismissed as time barred, as there were no grounds for equitable tolling.

In its brief, the U.S. Chamber urged the Fifth Circuit to uphold a District Court decision that rejected Plaintiffs’ extraterritorial application of the Alien Tort Statute (“ATS”). The brief argued that the Plaintiffs’ ambiguous and multi-factor approach to applying the ATS conflicts with Kiobel, in which the Supreme Court required that the conduct giving rise to the cause of action must have occurred in the United States. The brief also argued that expanding the scope of the ATS to conduct abroad will deter cross-border investment and harm international commerce.

Andrew J. Pincus, Archis A. Parasharami, and Kevin S. Ranlett of Mayer Brown LLP served as co-counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.