Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?

Abstract

When a corporation operating abroad either conspires with or aids and abets a repressive regime in violating human rights, victims can seek redress in U.S. courts under the Alien Tort Statute. While some courts have chosen to apply a liberal pleading standard to these claims, others have applied a heightened pleading standard in order to combat frivolous lawsuits. However, there is now a third potential standard courts could apply, namely the plausibility standard recently adopted to assess a § 1 Sherman Act claim by the Supreme Court in Bell Atlantic Corp. v. Twombly. This Note explores the question of the appropriate pleading standard by analyzing the similar elements and discovery burdens in § 1 Sherman Act and ATS accomplice liability claims, as well as the impact of each pleading standard on foreign policy, corporate behavior, and judicial administration. As a result of this analysis, this Note suggests that courts uniformly apply the plausibility standard to ATS accomplice liability claims because it can address the government and defendants procedural and practical concerns, while ensuring that the system continues to afford plaintiffs the ability to seek justice.

Keywords: alien tort statute, twombly, plausibility, notice, heightened, pleading