News & Events

Simpson Thacher was retained by The Clearing House Association L.L.C., an association of  leading commercial banks, to prepare an amicus brief in American Isuzu Motors Inc., et al. v. Ntsebeza, et al., in support of a petition for certiorari to the U.S. Supreme Court. The case is of significant interest to the financial services industry and other businesses because plaintiffs in these actions, as well as other actions filed under the Alien Tort Statute (ATS), seek to impose enormous liabilities on U.S. and non-U.S. entities for doing business in countries with repressive regimes on a theory of aiding and abetting the wrongdoing of foreign governments within their own territories.  Several other leading U.S. and overseas financial institution trade associations joined in the amicus brief  (American Bankers Association, Bankers' Association for Finance and Trade, European Banking Federation, The Financial Services Forum, The Financial Services Roundtable, Institute of International Bankers, Securities Industry, and Financial Markets Association, and Swiss Bankers Association).   The underlying actions, including three purported class actions, were coordinated by the Multi-District Litigation Panel and assigned to Judge Sprizzo in the Southern District of New York. Plaintiffs, on behalf of victims of South African apartheid from 1948 to 1994, assert that, by doing business with or in South Africa during that period, the defendants aided and abetted the government's violations of international law toward its own citizens and seek, inter alia, $400 billion in damages.  The current government of South African opposes the litigation on the basis that it violates that nation's policy of reconciliation and constitutes interference with the sovereign's right and ability to govern its own country.  The United States government also opposes the litigation and plaintiffs' expansive interpretation of the ATS for several reasons, including that imposing liability under these circumstances will discourage needed foreign investment and participation in the economies of developing nations and will interfere with U.S. foreign policy.  The District Court had dismissed the complaints in these actions, but the Second Circuit reversed in a lengthy decision consisting of a per curiam opinion, two concurring opinions, and a dissenting opinion, by which the divided panel recognized a tort claim, giving rise to federal jurisdiction under the ATS, against private actors for aiding and abetting a foreign nation's violations of international law.   Tom Rice, Libby McGarry, Agnes Dunogue, Meg Ciavarella and Shannon Price worked on the brief.