ATS/TVPA Suit Against Drummond Dismissed in Alabama

In one of the first lower court decisions since the Supreme Court's somewhat opaque decision in Kiobel in June, a court in the Northern District of Alabama last week dismissed a suit brought under the Alien Tort Statute and Torture Victim Protection Act against Drummond Company, a Birmingham-based company, and its President, for aiding and abetting extrajudicial killings and other human rights violations committed by paramilitary groups in Colombia. Judge David Proctor, in a detailed and well-reasoned opinion, addresses whether Drummond officials had taken actions inside the United States that were sufficient to "touch and concern" the territory of the U.S. with sufficient force in order to overcome the presumption against extraterritoriality announced by the majority in Kiobel.   He notes that Kiobel "has not given courts a road map for answering this question."  For his part, Proctor concludes that "where a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of a statute arises only if the event on which the statute focuses did not occur abroad."  He then concludes that because the ATS focuses on extrajudicial killings and war crimes, and these events occurred in Colombia and not in the United States, the ATS should not be applied.  Although Judge Proctor does not say so explicitly, this is more or less the rule that Justices Alito and Thomas adopted in their concurring opinion in Kiobel, in which they stated that "a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations." In a separate opinion, Judge Proctor dismissed the suit against Drummond's President, concluding, inter alia, that there was insufficient evidence to show that the President had specifically intended that Colombian security forces murder victims in Colombia.