Presbyterian Church of Sudan v. Talisman Energy

07-0016-cv The Presbyterian Church of Sudan v. Talisman Energy, Inc. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 (Argued: January 12, 2009 Decided: October 2, 2009) 9 10 Docket No. 07-0016-cv 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 THE PRESBYTERIAN CHURCH OF SUDAN, 15 REV. MATTHEW MATHIANG DEANG, 16 REV. JAMES KOUNG NINREW, NUER 17 COMMUNITY DEVELOPMENT SERVICES IN U.S.A, 18 FATUMA NYAWANG GARBANG, NYOT TOT RIETH, 19 individually and on behalf of the estate 20 Of her husband JOSEPH THIET MAKUAC, 21 STEPHEN HOTH, STEPHEN KUINA, CHIEF 22 TUNGUAR KUEIGWONG RAT, LUKA AYUOL YOL, 23 THOMAS MALUAL KAP, PUOK BOL MUT, CHIEF 24 PATAI TUT, CHIEF PETER RING PATAI, CHIEF 25 GATLUAK CHIEK JANG, YIEN NYINAR RIEK AND 26 MORIS BOL MAJOK, on behalf of themselves 27 and all others similarly situated, 28 29 Plaintiffs-Appellants, 30 31 -v.- 07-0016-cv 32 33 TALISMAN ENERGY, INC., 34 35 Defendant-Appellee, 36 37 REPUBLIC OF THE SUDAN, 38 39 Defendant. 40 41 - - - - - - - - - - - - - - - - - - - -x 42 1 Before: JACOBS, Chief Judge, LEVAL and CABRANES, 2 Circuit Judges. 3 4 Appeal from a grant of summary judgment in favor of 5 Talisman Energy, Inc. (“Talisman”) on Plaintiffs-Appellants’ 6 claims under the Alien Tort Statute. The United States 7 District Court for the Southern District of New York (Cote, 8 J.) held that to establish accessorial liability for 9 violations of the international norms prohibiting genocide, 10 war crimes, and crimes against humanity, plaintiffs were 11 required to prove, inter alia, that Talisman provided 12 substantial assistance to the Government of the Sudan with 13 the purpose of aiding its unlawful conduct. We agree, and 14 affirm dismissal on the ground that plaintiffs have not 15 established Talisman’s purposeful complicity in human rights 16 abuses. 17 PAUL L. HOFFMAN, Schonbrun 18 DeSimone Seplow Harris & 19 Hoffman, Venice , CA (Adrienne J. 20 Quarry, Schonbrun DeSimone 21 Seplow Harris & Hoffman, Venice , 22 CA; Carey D’Avino, Stephen 23 Whinston, and Keino Robinson, 24 Berger & Montague, P.C., 25 Philadelphia, PA; Lawrence Kill, 26 John O’Connor, and Stanley 27 Bowker, Anderson Kill & Olick, 28 P.C., New York, NY; Daniel E. 29 Seltz, Steven E. Fineman, and 30 Rachel Geman, Lieff, Cabraser, 31 Heimann & Bernstein, LLP, New 2 1 York, NY on the brief), for 2 Plaintiffs-Appellants 3 4 MARC J. GOTTRIDGE (Joseph P. 5 Cyr, Scott W. Reynolds, Andrew 6 M. Behrman, on the brief), 7 Lovells, New York, NY, for 8 Defendant-Appellee 9 10 RALPH STEINHARDT , Professor of 11 Law, George Washington 12 University Law School, 13 Washington, DC (William J. 14 Aceves, Professor of Law, 15 California Western School of 16 Law, San Diego, CA, on the 17 brief) for Amici Curiae 18 International Law 19 Scholars in Support of 20 Appellants 21 22 RICHARD L. HERZ (Marco B. 23 Simons, on the brief), 24 Earthrights International, 25 Washington, DC, for Amicus 26 Curiae Earthrights International 27 in Support of Plaintiffs- 28 Appellants and Reversal 29 30 Judith Brown Chomsky and Michael 31 Poulshock, Law Office of Judith 32 Brown Chomsky, Elkins Park, PA, 33 and Jennifer M. Green and 34 Katherine Gallagher, Center for 35 Constitutional Rights, New York, 36 NY, for Amicus Curiae on Civil 37 Conspiracy and Joint Criminal 38 Enterprise in Support of 39 Plaintiffs-Appellants and in 40 Support of Reversal of the 41 District Court’s Opinion 42 43 Terrence P. Collingsworth, Derek 44 Baxter, and Natacha Thys, 3 1 International Labor Rights Fund, 2 Washington, DC, for Amicus 3 Curiae International Labor 4 Rights Fund in Support of 5 Plaintiffs-Appellants 6 7 Mark Diamond, Counsel for Amici 8 Curaie, New York, NY, for Amici 9 Curiae Lexiuste Cajuste, Neris 10 Gonzalez, Zenaida Velásquez 11 Rodriguez, and Francisco 12 Calderon in Support of 13 Plaintiffs-Appellants Urging 14 Reversal 15 16 Renee C. Redman, Legal Director, 17 American Civil Liberties Union 18 Foundation of Connecticut, 19 Hartford, CT, for Amici Curiae 20 Canadian Parliamentarians in 21 Support of the Appellants 22 23 Jonathan W. Cuneo and R. Brent 24 Walton, Cuneo Gilbert & LaDuca, 25 LLP, Washington, DC, for Amici 26 Curiae The Rt. Reverand Keith L. 27 Ackerman, SSC, Bishop, Diocese 28 of Quincy, the Episcopal Church; 29 Christian Solidarity 30 International-USA; Coalition for 31 the Defense of Human Rights; 32 Family Research Council; 33 Institute on Religion & 34 Democracy; Renew Network; 35 Servant’s Heart; Sudan Advocacy 36 Action Forum; Sudan Sunrise; and 37 Trinity Presbytery’s Sudan 38 Ministry in Support of 39 Appellants 40 41 LEWIS S. YELIN, Attorney, 42 Appellate Staff, Civil Division, 43 U.S. Department of Justice, 44 Washington, DC (Michael J. 4 1 Garcia, United States Attorney, 2 and David S. Jones, Assistant 3 United States Attorney, Southern 4 District of New York, New York, 5 NY, John B. Bellinger III, Legal 6 Advisor, Department of State, 7 Washington, DC, Jeffrey S. 8 Bucholtz, Acting Assistant 9 Attorney General, and Douglas N. 10 Letter and Robert M. Loeb, 11 Attorneys, Appellate Staff, 12 Civil Division, U.S. Department 13 of Justice, Washington, DC, on 14 the brief), for Amicus Curiae 15 United States 16 17 SAMUEL ESTREICHER, NYU School of 18 Law, New York, NY (Michael D. 19 Ramsey, University of San Diego 20 School of Law, San Diego, CA on 21 the brief), for Amici Curiae 22 Professors of International Law, 23 Federal Jurisdiction and the 24 Foreign Relations Law of the 25 United States in Support of 26 Defendant-Appellee 27 28 Karen M. Asner and Milana 29 Salzman, White & Case LLP, New 30 York, NY, for Amicus Curiae the 31 Government of Canada in Support 32 of Dismissal of the Underlying 33 Action 34 35 Robin S. Conrad and Amar D. 36 Sarwal, National Chamber 37 Litigation Center, Inc., 38 Washington, DC, and John 39 Townsend Rich, Paul R. Friedman, 40 and William F. Sheehan, Goodwin 41 Proctor LLP, Washington, DC for 42 Amicus Curiae the Chamber of 43 Commerce of the United States of 44 America in Support of Defendant- 5 1 Appellee Talisman Energy, Inc. 2 and in Support of Affirmance 3 4 Daniel J. Popeo and Richard A. 5 Samp, Washington Legal 6 Foundation, Washington, DC for 7 Amici Curiae Washington Legal 8 Foundation and Allied 9 Educational Foundation in 10 Support of Defendant/Appellee, 11 Urging Affirmance 12 13 James J. Dillon, Foley Hoag LLP, 14 Boston, MA, Janet Walker, 15 Professor of Law, Osgood Hall 16 Law School of York University, 17 Toronto, Ontario, Canada, and H. 18 Scott Fairley, Theall Group LLP, 19 Toronto, Ontario, Canada, for 20 Amici Curiae the Canadian 21 Chamber of Commerce; the Mining 22 Association of Canada; the 23 Canadian Association of 24 Petroleum Producers; and the 25 Prospectors and Developers 26 Association of Canada in Support 27 of Defendant-Appellee 28 29 James J. Dillon, Foley Hoag LLP, 30 Boston, MA, for Amici Curiae The 31 National Foreign Trade Council; 32 The Independent Petroleum 33 Association of America; and The 34 United States Council for 35 International Business in 36 Support of Defendant-Appellee 37 38 Christopher Greenwood, CMG, QC, 39 Essex Court Chambers, London, 40 United Kingdom, for Amicus 41 Curiae Professor Christopher 42 Greenwood, CMG, QC, in Support 43 of Defendant-Appellee 44 6 1 James Crawford, Whewell 2 Professor of International Law, 3 University of Cambridge, 4 Cambridge, United Kingdom, for 5 Amicus Curiae Professor James 6 Crawford in Support of 7 Defendant-Appellee 8 9 10 DENNIS JACOBS, Chief Judge: 11 12 Plaintiffs-Appellants are Sudanese who allege that they 13 are victims of human rights abuses committed by the 14 Government of the Sudan in Khartoum (“the Government”) and 15 that Talisman Energy, Inc. (“Talisman”), a Canadian 16 corporation, aided and abetted or conspired with the 17 Government to advance those abuses that facilitated the 18 development of Sudanese oil concessions by Talisman 19 affiliates. Plaintiffs appeal from a judgment of the United 20 States District Court for the Southern District of New York 21 (Cote, J.) dismissing their claims under the Alien Tort 22 Statute (“ATS”), 28 U.S.C. § 1350. 23 We hold that under the principles articulated by the 24 United States Supreme Court in Sosa v. Alvarez-Machain, 542 25 U.S. 692 (2004) , the standard for imposing accessorial 26 liability under the ATS must be drawn from international 27 law; and that under international law, a claimant must show 28 that the defendant provided substantial assistance with the 7 1 purpose of facilitating the alleged offenses. Applying that 2 standard, we affirm the district court’s grant of summary 3 judgment in favor of Talisman, because plaintiffs presented 4 no evidence that the company acted with the purpose of 5 harming civilians living in southern Sudan. 6 It becomes necessary to set out at some length the 7 background of the hostilities in the Sudan; the history of 8 the oil enterprise, its facilities and corporate structure; 9 the security measures taken by the enterprise and by the 10 Government; the injuries and persecutions alleged; and the 11 extent and nature of Talisman’s connection to the human 12 rights abuses. 13 14 BACKGROUND 15 A. Civil War in the Sudan 16 At the time Sudan obtained its independence from 17 Britain and Egypt in 1956, civil war broke out between the 18 Arab-dominated Islamic regime in the north, and the non- 19 Muslim African population in the south.1 In 1972, the two 1 The facts are set forth in detail in the district court’s summary judgment decision. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 641- 61 (S.D.N.Y. 2006) . We recount only those facts that bear upon the disposition of the appellate issues. 8 1 sides reached a power-sharing agreement in Addis Ababa, 2 Ethiopia, after which relative stability ensued until an 3 anti-Government uprising in 1983. 4 In 1991, southern rebels fractured, and the factions 5 fought the Government and each other, with large-scale 6 displacement and death among civilians. 7 In April 1997, the Government signed the Khartoum 8 Peace Agreement (“KPA”) with several (but not all) of the 9 southern rebel groups. The KPA provided for religious 10 freedom, a cease-fire, sharing of resources and power 11 between the north and south, creation of a “Coordinating 12 Council” of factions in southern Sudan, and the 13 consolidation of most of the rebel militias into the South 14 Sudan Defense Force (“SSDF”), which was aligned with the 15 Government, but with a measure of autonomy and control in 16 the south. The benefits of this agreement were short-lived: 17 the SSDF split into warring factions by 1998, and competing 18 militia groups continued fighting each other and the 19 Government. This violence continued throughout the time 20 that Talisman operated in the Sudan. 21 B. Oil Development in the Sudan 22 After Chevron discovered oil in southern Sudan in 1979, 9 1 the Government granted development rights to foreign 2 companies for six numbered “blocks.” 3 In August 1993, a Canadian company named State 4 Petroleum Company (“SPC”) purchased the rights to develop 5 blocks 1, 2, and 4. In 1994, SPC was acquired by, and 6 became a wholly owned subsidiary of, another Canadian 7 company, Arakis Energy Corporation (“Arakis”). 8 In December 1996, SPC formed a consortium with three 9 other companies: China National Petroleum Corporation 10 (“CNPC”), Petronas Carigali Overseas SDN BHD (“Petronas”), 11 and Sudapet, Ltd. (“Sudapet”) (collectively “the 12 Consortium”), which were wholly owned by China, Malaysia, 13 and the Republic of the Sudan, respectively. The Consortium 14 members signed agreements among themselves and with the 15 Government concerning oil exploration, production, and 16 development, as well as the construction of a pipeline from 17 the Consortium’s concession area to the Red Sea. More than 18 half of the Consortium’s profits accrued to the Government. 19 The Consortium members conducted operations through a 20 Mauritius corporation, called the Greater Nile Petroleum 21 Operating Company Limited (“GNPOC”), which was owned 40% by 22 CNPC, 30% by Petronas, 25% by SPC, and 5% by Sudapet. 10 1 C. Talisman’s Purchase of Arakis 2 In October 1998, Talisman acquired Arakis and its 25% 3 stake in GNPOC. The purchase of Arakis was effectuated 4 through Talisman’s indirect subsidiary, State Petroleum 5 Corporation B.V., which was later renamed “Talisman (Greater 6 Nile) B.V.” (“Greater Nile”) on December 10, 1998. Greater 7 Nile was a wholly-owned subsidiary of Goal 8 Olie-en-Gasexploratie B.V., which at the time was wholly 9 owned by British companies. The British companies were 10 wholly owned subsidiaries of Talisman Energy (UK) Limited, 11 which was a direct and wholly owned subsidiary of Talisman. 12 Before purchasing Arakis, Talisman engaged in several 13 months of due diligence: meetings between senior Talisman 14 executives and governmental and security officials in the 15 Sudan; conversations with GNPOC employees and visits to 16 GNPOC development sites; reports on security conditions in 17 the country; roundtable discussions in Canada with 18 representatives of non-governmental organizations, church 19 groups, and other stakeholders; and consultations with 20 representatives of the British government, which controlled 21 the Sudan in condominium with Egypt from 1899 to 1956. 22 Among their many meetings, Talisman CEO Jim Buckee and 11 1 other Talisman officers met with Riek Machar (“Machar”), 2 then the First Assistant to the President of the Sudan and 3 head of the Southern Sudan Coordinating Council (“SSCC”) and 4 the SSDF. Sudanese officials, including Machar and Unity 5 State Governor Taban Deng Gai, provided assurances 6 concerning safety, security, and peace. 7 Robert Norton, the head of security for Arakis in the 8 Sudan from 1994 to 1998, advised Talisman that the oil 9 fields were protected both by the military and by 10 Government-sponsored militias. Norton opined that, though 11 Talisman’s assistance would greatly advance oil exploration, 12 it would tip the military balance in favor of the 13 Government. Norton believed that Talisman should not invest 14 in the Sudan. 15 A representative of Freedom Quest International also 16 discouraged Talisman from investing in the Sudan, warning 17 senior Talisman officials that GNPOC and the Government used 18 the Sudanese military to expel civilian populations from 19 villages in order to create a “cordon sanitaire” (“buffer 20 zone”) around oil fields. 21 D. Security Arrangements for GNPOC 22 Because GNPOC’s operations took place amidst civil war, 12 1 security arrangements were made for Consortium personnel in 2 coordination with the Government and military forces. 3 Plaintiffs contend that these arrangements resulted in the 4 persecution of civilians living in or near the oil 5 concession areas. 6 In May 1999, GNPOC and the Government built all-weather 7 roads traversing the oil concession areas and linking the 8 concessions to military bases. To protect GNPOC’s employees 9 and equipment, these roads served the dual purposes of 10 moving personnel for oil operations and facilitating 11 military activities. According to plaintiffs, these roads 12 enabled the military to operate year-round in areas prone to 13 seasonal flooding, enhancing the military’s ability to 14 launch attacks. 15 In 1999-2000, GNPOC upgraded two airstrips in the 16 concessions--Heglig and Unity--for the safety and 17 convenience of GNPOC personnel. The improvements also had 18 the effect of supporting military activity, because the 19 Government began using the airstrips to supply troops, take 20 defensive action, and initiate offensive attacks. 21 Heglig, in particular, was used extensively by the 22 military. Talisman employees saw outgoing flights by 13 1 helicopter gunships and Antonov bombers. One Talisman 2 security advisor observed 500-pound bombs being loaded on 3 Government-owned Antonov bombers at Heglig and regular 4 bombing runs from the airstrip. At both Heglig and Unity, 5 GNPOC personnel refueled military aircraft, sometimes with 6 GNPOC’s own fuel. 7 During the time that Greater Nile was a member of the 8 Consortium, it employed former soldiers as security advisors 9 who traveled throughout the concession areas, coordinated 10 with Mohammed Mokhtar (the former Sudanese Army colonel who 11 served as head of GNPOC security), and wrote detailed 12 reports for senior Talisman officials.2 13 Talisman CEO Buckee was aware of the military’s 14 activities from GNPOC airstrips. In February 2001, he wrote 15 to Sudanese Minister of National Defense Major General Bakri 16 Hassan Saleh urging restraint in the Government’s military 17 activities and warning that whatever “the military 18 objectives may be, the bombings are [universally] construed 2 Talisman argues that security reports prepared for Greater Nile are inadmissible because of “multiple levels of hearsay lurking” in the documents and the absence of a hearsay exception allowing for their admission. We do not reach this question, because even assuming the reports would be admissible in their entirety, they would not defeat summary judgment. 14 1 as violations of international humanitarian law.” Greater 2 Nile employees expressed concern to Mokhtar and Government 3 officials about bombers and helicopter gunships using the 4 airstrips. 5 Notwithstanding occasional breaks, the military 6 continued to use the facilities. After a missile attack on 7 the Heglig facility in August 2001, Buckee dropped his 8 objection to the presence of helicopter gunships, and a 9 Greater Nile security officer wrote to the Government 10 emphasizing the need for security at GNPOC’s facilities. 11 E. Buffer Zone Strategy 12 At the heart of plaintiffs’ complaint is the allegation 13 that the Government created a “buffer zone” around GNPOC 14 facilities by clearing the civilian population to secure 15 areas for exploration. Witness testimony and internal 16 Talisman reports show evidence of forced displacement. For 17 example, a 2002 Greater Nile report describing the “buffer 18 zone” around the Heglig camp explained that “[t]he remaining 19 nomads . . . are being ‘encouraged’ to complete their move 20 through the area as soon as possible. The area within the 21 security ring road while not a sterile area as found on 22 security operations elsewhere . . . is moving in that 15 1 direction.” A 1999 security report stated that “[t]he 2 military strategy, driven it appears by the GNPOC security 3 management, is to create a buffer zone, i.e. an area 4 surrounding both Heglig and Unity camps inside which no 5 local settlements or commerce is allowed.” 6 F. Greater Nile Inquiry into Expanding its Exploration Area 7 Greater Nile explored options for drilling new wells 8 within GNPOC’s concession, but outside the small area 9 secured by the military in which production was ongoing. 10 Greater Nile considered expanding exploration 11 notwithstanding its knowledge of the Government’s buffer 12 zone strategy. According to plaintiffs, decisions about 13 where to explore “were based upon technical analysis of 14 geological formations performed by Talisman employees in 15 Calgary,” without regard to the human consequences of 16 expansion. 17 G. Plaintiffs’ Injuries 18 The individual plaintiffs remaining in the case consist 19 of current or former residents of southern Sudan who were 20 injured or displaced by Government forces in attacks on 21 communities in Blocks 1, 2, and 5A. The plaintiffs were 22 subjected to assaults by foot soldiers, attackers on 16 1 horseback, gunships, and bombers. They testified at 2 depositions, with varying degrees of certainty, as to 3 whether the attacks were perpetrated by the Government. 4 The Presbyterian Church of Sudan asserts claims based 5 on the destruction of its churches by the Government. 6 Plaintiffs Rev. James Koung Ninrew, Chief Tunguar Kueigwong 7 Rat, and Chief Gatluak Chiek Jang testified to seeing 8 churches burned in the Government’s attacks. 9 H. Procedural History 10 In November 2001, the Presbyterian Church of Sudan and 11 four individual plaintiffs purporting to represent a class 12 of thousands of southern Sudanese filed a complaint against 13 Talisman in the United States District Court for the 14 Southern District of New York. Plaintiffs filed an amended 15 complaint in February 2002 naming additional plaintiffs and 16 adding the Government as a defendant. Plaintiffs’ amended 17 complaint alleged that Talisman (1) directly violated, (2) 18 aided and abetted the Government of Sudan in violating, and 19 (3) conspired with the Government of Sudan to violate 20 customary international law related to genocide, torture, 21 war crimes, and crimes against humanity. Plaintiffs 22 subsequently abandoned the claim of direct liability and 17 1 elected to proceed against Talisman only on the claims of 2 aiding and abetting and conspiracy. 3 1. Talisman’s Motions to Dismiss 4 The case was initially assigned to Judge Allen 5 Schwartz. In March 2003, Judge Schwartz issued a lengthy 6 decision denying Talisman’s motion to dismiss on numerous 7 jurisdictional grounds. Presbyterian Church of Sudan v. 8 Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003). 9 The case was reassigned to Judge Denise Cote after 10 Judge Schwartz died in March 2003. Plaintiffs filed a 11 Second Amended Class Action Complaint in August 2003, which 12 added plaintiffs. 3 13 After the Supreme Court’s decision in Sosa, and our 14 decision in Flores v. Southern Peru Copper Corp., 414 F.3d 15 233 (2d Cir. 2003), defendants moved for judgment on the 16 pleadings arguing that the decisions changed the landscape 17 for ATS claims and required reconsideration of the 18 conclusions that [i] corporations can be liable for 19 violating the ATS, and [ii] accessorial liability is 3 On August 27, 2004, after the submission of relevant discovery, the district court again denied a motion to dismiss for lack of personal jurisdiction. Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2004 WL 1920978 (S.D.N.Y. Aug. 27, 2004). 18 1 recognized under the ATS. By decision dated June 13, 2005, 2 the district court denied Talisman’s motion. Presbyterian 3 Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 4 331 (S.D.N.Y. 2005). 5 Talisman again moved for judgment on the pleadings 6 based on a letter from the United States Attorney, with 7 attachments from the Department of State and Embassy of 8 Canada expressing concern with the litigation. Presbyterian 9 Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 10 9882(DLC), 2005 WL 2082846, at *1 (S.D.N.Y. Aug. 30, 2005). 11 The Department of State advised that “considerations of 12 international comity and judicial abstention may properly 13 come into play” in view of Canada’s objections to the 14 litigation and the United States government’s determination 15 that Canadian courts were capable of adjudicating 16 plaintiffs’ claims. Id. at *2. Canada argued that the 17 court’s exercise of jurisdiction [i] infringed on its 18 sovereignty, [ii] chilled its ability to use “trade support 19 services as ‘both a stick and carrot in support of peace,’” 20 and [iii] violated traditional restraints on the exercise of 21 extraterritorial jurisdiction. Id. at *1-2. 22 In August 2005, the district court denied Talisman’s 19 1 motion. Id. at *9. As to dismissal on comity grounds, the 2 court found an insufficient nexus between Canada’s foreign 3 policy and the specific allegations in the complaint because 4 the litigation did not require judging Canada’s policy of 5 constructive engagement with the Sudan, but “merely” judging 6 “whether Talisman acted outside the bounds of customary 7 international law while doing business in Sudan.” Id. at 8 *5-8. The court also observed that Canadian courts are 9 unable to consider civil suits for violations of the law of 10 nations. Id. at *7. 11 As to dismissal on political question grounds, the 12 court emphasized that the State Department letter did not 13 explicitly declare that the lawsuit would interfere with 14 United States policy toward the Sudan or Canada, and the 15 court concluded therefore that exercising jurisdiction would 16 not unduly intrude on the authority of the executive 17 branch. 4 Id. at *8. 4 In 2005, the district court denied two motions for class certification on the ground that plaintiffs failed to satisfy the “predominance requirement.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 482-85 (S.D.N.Y. 2005); Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882(DLC), 2005 WL 2278076, at *1 (S.D.N.Y. Sep. 20, 2005). The court explained that all class members would have to show “that the injuries for which they are claiming damages were actually caused by [a 20 1 2. Motions to Amend and for Summary Judgment 2 In April 2006, plaintiffs filed a Proposed Third 3 Amended Class Action Complaint. Later that month (before 4 the district court ruled on plaintiffs’ motion), Talisman 5 moved for summary judgment as to all claims. On September 6 12, 2006, the district court granted Talisman’s motion. See 7 Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 8 F. Supp. 2d 633 (S.D.N.Y. 2006). 9 The district court first considered whether 10 international law recognized conspiracy liability. The 11 court held that “the offense of conspiracy is limited to 12 conspiracies to commit genocide and to wage aggressive war” 13 and that international law does not recognize the doctrine 14 of liability articulated in Pinkerton v. United States, 328 15 U.S. 640, 646-47 (1946). Presbyterian Church of Sudan, 453 16 F. Supp. 2d at 663, 665. The court observed that plaintiffs 17 never brought a claim for “wag[ing] aggressive war” and that Government campaign in the south],” which would require individual, fact-intensive inquiries, given the numerous factions of rebel groups and the fog of war. Presbyterian Church of Sudan, 226 F.R.D. at 482. Moreover, “damages to class members occurred over more than four years, a territory of many hundreds of square miles, . . . [and] through at least 142 separate incidents.” Presbyterian Church of Sudan, 2005 WL 2278076, at *3. 21 1 they had abandoned their genocide claim. Id. at 665. 2 Nonetheless, the court addressed the genocide claim and held 3 that plaintiffs could not be made liable for a co- 4 conspirator’s conduct solely because that conduct was 5 foreseeable. Id. 6 The district court next considered plaintiffs’ claim 7 that Talisman aided and abetted genocide, war crimes, and 8 crimes against humanity. The court undertook to define the 9 elements of aiding and abetting liability under the ATS, and 10 concluded that they must be derived from international law. 11 The court comprehensively surveyed international law and 12 held that: 13 To show that a defendant aided and 14 abetted a violation of international law, 15 an ATS plaintiff must show: 16 17 1) that the principal violated 18 international law; 19 20 2) that the defendant knew of 21 the specific violation; 22 23 3) that the defendant acted with 24 the intent to assist that 25 violation, that is, the 26 defendant specifically directed 27 his acts to assist in the 28 specific violation; 29 30 4) that the defendant’s acts had 31 a substantial effect upon the 32 success of the criminal venture; 22 1 and 2 3 5) that the defendant was aware 4 that the acts assisted the 5 specific violation. 6 Id. at 668. 7 As to plaintiffs’ genocide claim, the court held that 8 whether or not genocide was taking place, plaintiffs had 9 presented no evidence that Talisman was aware of the 10 genocide, or, if it was, that Talisman intended to further 11 it. Id. at 669-70. 12 As to war crimes and crimes against humanity, the court 13 identified the kinds of “substantial assistance” that 14 Talisman allegedly provided in aid of these violations: 15 “(1) upgrading the Heglig and Unity airstrips; (2) 16 designating areas ‘south of the river’ in Block 4 for oil 17 exploration; (3) providing financial assistance to the 18 Government through the payment of royalties; (4) giving 19 general logistical support to the Sudanese military; and (5) 20 various other acts.” Id. at 671-72. 21 The court determined that the airstrips at Unity and 22 Heglig were owned and operated by GNPOC--not Talisman--and 23 that there was no evidence that Talisman upgraded or 24 improved the airstrips. Id. at 673. Moreover, even if 23 1 plaintiffs could show that Talisman was involved, there is 2 no evidence that it upgraded the airstrips with the 3 intention that the Government would use them for missions 4 that violate human rights. Id. at 674. 5 As to designating areas “south of the river” for 6 exploration, the court determined that preliminary 7 discussions about expanding operations did not violate 8 international humanitarian law and that there was no 9 evidence Talisman was involved in such discussions, let 10 alone that it considered the expansion as a pretext for 11 attacking civilians. Id. at 675. 12 As to Talisman’s payment of royalties to the 13 Government, the court found no admissible evidence of the 14 relationship between oil profits and military spending. Id. 15 Nonetheless, the court assumed the relationship, and held 16 that such payments were not enough to establish liability in 17 the absence of evidence that Talisman “specifically 18 directed” payments to military procurement or that it 19 intended to aid attacks. Id. at 676. 20 As to the construction of all-weather roads and the 21 provision of fuel to the military, the court concluded that 22 the assistance was provided by GNPOC, not Talisman, which 24 1 had a limited presence on the ground. Id. at 676-77. 2 Finally, the court addressed plaintiffs’ allegations 3 that Talisman assisted the Government by “using its 4 community development program as a cover for gathering 5 military intelligence” and by publicly denying knowledge of 6 human rights violations. The court ruled that there was no 7 admissible evidence of the former allegation, and concluded 8 that the latter did not constitute “substantial assistance” 9 in violation of international humanitarian law. Id. at 677. 10 Although not necessary for deciding Talisman’s motion, 11 the court ruled on whether plaintiffs could show that their 12 injuries were caused by attacks initiated from GNPOC 13 airfields, finding that only three plaintiffs were 14 “arguably” attacked with GNPOC assistance, id. at 677, and 15 that there was an absence of admissible evidence as to which 16 Government aircraft flew particular missions, id. at 678. 17 Further, plaintiffs’ motion to amend the complaint was 18 denied on the ground that plaintiffs could not show good 19 cause to amend three years after the deadline for amendment 20 set forth in the scheduling order. Id. at 680. The court 21 went on, however, to discuss the merits of the amended 22 complaint and whether it could survive a motion for summary 25 1 judgment (given that the discovery period had closed). The 2 court conducted a comprehensive choice of law analysis, and 3 concluded that [i] there was no basis for applying domestic 4 federal law to plaintiffs’ claims against foreign 5 corporations, id. at 681-83, and [ii] plaintiffs could not 6 pierce the corporate veils of Talisman’s subsidiaries or 7 hold GNPOC or the subsidiaries liable on theories of joint 8 venture or agency, id. at 683-89. 9 Having prevailed on summary judgment, Talisman moved 10 for partial judgment pursuant to Federal Rule of Civil 11 Procedure 54(b), so that it could achieve finality in the 12 case notwithstanding the Government’s failure to enter an 13 appearance. The district court granted Talisman’s motion 14 and entered judgment in favor of Talisman. See Presbyterian 15 Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 16 9882(DLC), 2006 WL 3469542, at *2 (S.D.N.Y. Dec. 1, 2006). 17 This appeal followed. 18 19 DISCUSSION 20 Plaintiffs argue that, in granting summary judgment, 21 the district court drew inferences in favor of Talisman, 22 excluded plaintiffs’ evidence from consideration, and failed 26 1 to hold Talisman responsible for human rights abuses 2 committed by its partners and agents. This Court “review[s] 3 de novo the district court’s grant of summary judgment, 4 drawing all factual inferences in favor of the non-moving 5 party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 6 101, 107 (2d Cir. 2008). 7 8 I 9 The ATS provides that “[t]he district courts shall have 10 original jurisdiction of any civil action by an alien for a 11 tort only, committed in violation of the law of nations or a 12 treaty of the United States.” 28 U.S.C. § 1350. Although 13 the statute was passed as part of the Judiciary Act of 1789, 14 it provided jurisdiction in only one case in its first 170 15 years. Sosa, 542 U.S. at 712. Invocation of the statute 16 became more frequent after the issuance of Filártiga v. 17 Peña-Irala, 630 F.2d 876 (2d Cir. 1980), which held “that 18 deliberate torture perpetrated under color of official 19 authority violates universally accepted norms of the 20 international law of human rights, regardless of the 21 nationality of the parties,” and that the ATS “provides 22 federal jurisdiction” over torture claims. Id. at 878. The 27 1 torturer was likened to the pirate and slave trader of old, 2 “an enemy of all mankind.” Id. at 890. 3 Filártiga held “that courts must interpret 4 international law not as it was in 1789, but as it has 5 evolved and exists among the nations of the world today.” 6 Id. at 881. At the same time, Filártiga cautioned 7 restraint: “[t]he requirement that a rule command the 8 ‘general assent of civilized nations’ to become binding upon 9 them all is a stringent one.” Id. “It is only where the 10 nations of the world have demonstrated that the wrong is of 11 mutual, and not merely several, concern, by means of express 12 international accords, that a wrong generally recognized 13 becomes an international law violation within the meaning of 14 the statute.” Id. at 888. 15 In Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), we 16 concluded “that certain forms of conduct violate the law of 17 nations whether undertaken by those acting under the 18 auspices of a state or only as private individuals.” Id. at 19 239. Kadic recognized that claims for genocide and war 20 crimes against individuals could proceed without state 21 action. Id. at 244. 22 In Flores, we surveyed the state of ATS case law and 28 1 engaged in a detailed analysis of the ATS and related 2 principles of international law. Flores distilled three 3 elements required to state a claim under the ATS: 4 “plaintiffs must (i) be ‘aliens,’ (ii) claiming damages for 5 a ‘tort only,’ (iii) resulting from a violation ‘of the law 6 of nations’ or of ‘a treaty of the United States.’” 414 7 F.3d at 242 (quoting 28 U.S.C. § 1350). We again issued a 8 caution: “in determining what offenses violate customary 9 international law, courts must proceed with extraordinary 10 care and restraint.” Id. at 248. The decisive issue in 11 this case is whether accessorial liability can be imposed 12 absent a showing of purpose. To answer this question “‘we 13 look primarily to the formal lawmaking and official actions 14 of States and only secondarily to the works of scholars as 15 evidence of the established practices of States.’” 5 Id. at 5 Flores cited Article 38 of the Statute of the International Court of Justice, which provides that courts should look to the following sources of international law: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; 29 1 250 (quoting United States v. Yousef, 327 F.3d 56, 103 (2d 2 Cir. 2003)). After a thorough review of these sources, 3 Flores concluded that the alleged prohibition on 4 “intranational pollution” and “rights to life and health 5 [were] insufficiently definite to constitute rules of 6 customary international law.” Id. at 254-55. 7 The United States Supreme Court has analyzed the ATS 8 only once. In Sosa, the Court explained that the ATS “was 9 intended as jurisdictional in the sense of addressing the 10 power of the courts to entertain cases concerned with a 11 certain subject,” 542 U.S. at 714, and that “[t]he 12 jurisdictional grant is best read as having been enacted on 13 the understanding that the common law would provide a cause 14 of action for the modest number of international law 15 violations with a potential for personal liability at the 16 time,” id. at 724. Claims “based on the present-day law of d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists [i.e., scholars or “jurists”] of the various nations, as subsidiary means for the determination of rules of law. 414 F.3d at 251 (italics omitted)(quoting Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 33 U.N.T.S. 993). 30 1 nations” should be recognized only if “accepted by the 2 civilized world and defined with a specificity comparable to 3 the features of the 18th-century paradigms” contemporary 4 with enactment of the ATS. Id. at 725. 5 Sosa cited five reasons for courts to exercise “great 6 caution” before recognizing violations of international law 7 that were not recognized in 1789: 8 First, . . . the [modern] understanding 9 that the law is not so much found or 10 discovered as it is either made or 11 created[;] . . . [s]econd, . . . an 12 equally significant rethinking of the 13 role of the federal courts in making 14 it[;] . . . [t]hird, [the modern view 15 that] a decision to create a private 16 right of action is one better left to 17 legislative judgment in the great 18 majority of cases[;] . . . [f]ourth, 19 . . . risks of adverse foreign policy 20 consequences[; and] . . . fifth[,] . . . 21 the lack of a] congressional mandate to 22 seek out and define new and debatable 23 violations of the law of nations. 24 25 Id. at 725-28. Thus, under Sosa, “the determination whether 26 a norm is sufficiently definite to support a cause of action 27 should (and, indeed, inevitably must) involve an element of 28 judgment about the practical consequences of making that 29 cause available to litigants in the federal courts.” Id. at 30 732-33. 31 We have applied Sosa in four opinions addressing ATS 31 1 claims. In three of them, we considered whether Sosa 2 permitted recognition of particular offenses. In Vietnam 3 Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 4 F.3d 104 (2d Cir. 2008), we held that the manufacture and 5 supply of an herbicide used as a defoliant (with collateral 6 damage) did not violate international law: “[i]nasmuch as 7 Agent Orange was intended for defoliation and for 8 destruction of crops only, its use did not violate . . . 9 international norms . . . , since those norms would not 10 necessarily prohibit the deployment of materials that are 11 only secondarily, and not intentionally, harmful to humans.” 12 Id. at 119-20. 13 Mora v. New York, 524 F.3d 183 (2d Cir. 2008), held 14 that detention without notice of consular rights (in 15 violation of Article 36(1)(b)(third) of the Vienna 16 Convention on Consular Relations) did not violate a “well- 17 accepted” international law norm. Id. at 208-09. But a 18 divided panel held in Abdullahi v. Pfizer, Inc., 562 F.3d 19 163 (2d Cir. 2009), “that the prohibition in customary 20 international law against nonconsensual human medical 21 experimentation can[] be enforced through the ATS.” Id. at 22 169. 32 1 In the fourth case--Khulumani v. Barclay National Bank 2 Ltd., 504 F.3d 254 (2d Cir. 2007)--we ruled in a per curiam 3 opinion that “in this Circuit, a plaintiff may plead a 4 theory of aiding and abetting liability under the [ATS].” 5 Id. at 260. 6 7 II 8 Plaintiffs assert that Talisman aided and abetted (and 9 conspired with) the Government in the commission of three 10 violations of international law: [i] genocide, [ii] war 11 crimes, and [iii] crimes against humanity. All three torts 12 may be asserted under the ATS. Kadic, 70 F.3d at 236 (“[W]e 13 hold that subject-matter jurisdiction exists[, and] that 14 [defendant] may be found liable for genocide, war crimes, 15 and crimes against humanity . . . .”); see also Sosa, 542 16 U.S. at 762 (Breyer, J., concurring in part and concurring 17 in judgment)(describing a “subset” of “universally 18 condemned behavior” for which “universal jurisdiction 19 exists,” including “torture, genocide, crimes against 20 humanity, and war crimes”); Flores, 414 F.3d at 244 n.18 21 (“Customary international law rules proscribing crimes 22 against humanity, including genocide, and war crimes, have 33 1 been enforceable against individuals since World War II.”). 2 In Kadic, we defined “genocide” and “war crimes.” 3 Kadic adopted the definition of genocide from the Convention 4 on the Prevention and Punishment of the Crime of Genocide 5 art. 2, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 6 (“Genocide Convention”), which defines genocide as: 7 any of the following acts committed with 8 intent to destroy, in whole or in part, a 9 national, ethnical, racial or religious 10 group, as such: 11 12 (a) Killing members of the group; 13 14 (b) Causing serious bodily or mental harm 15 to members of the group; 16 17 (c) Deliberately inflicting on the group 18 conditions of life calculated to bring 19 about its physical destruction in whole 20 or in part; 21 22 (d) Imposing measures intended to prevent 23 births with the group; 24 25 (e) Forcibly transferring children of the 26 group to another group. 27 28 Kadic, 70 F.3d at 241 (quoting Genocide Convention). 29 As to war crimes, Kadic applied the definition from 30 Common Article 3 of the Geneva Convention, which “applies to 31 ‘armed conflict[s] not of an international character’” and 32 requires “‘each Party to the conflict’” to adhere to the 33 following: 34 1 2 Persons taking no active part in the 3 hostilities . . . shall in all 4 circumstances be treated humanely, 5 without any adverse distinction founded 6 on race, colour, religion or faith, sex, 7 birth or wealth, or any other similar 8 criteria. 9 10 To this end, the following acts are and 11 shall remain prohibited at any time and 12 in any place whatsoever with respect to 13 the above-mentioned persons: 14 15 (a) violence to life and person, 16 in particular murder of all 17 kinds, mutilation, cruel 18 treatment and torture; 19 20 (b) taking of hostages; 21 22 (c) outrages upon personal 23 dignity, in particular 24 humiliating and degrading 25 treatment; 26 27 (d) the passing of sentences and 28 carrying out of executions 29 without previous judgment 30 pronounced by a regularly 31 constituted court . . . . 32 33 Kadic, 70 F.3d at 243 (alterations in original)(quoting 34 Convention Relative to the Protection of Civilian Persons in 35 Time of War art. 3, August 12, 1949, 6 U.S.T. 3516, 75 36 U.N.T.S. 287). This standard applies to “all ‘parties’ to a 37 conflict--which includes insurgent military groups.” Id. 38 We have never defined “crimes against humanity.” Here, 35 1 the district court adopted a generally serviceable 2 definition, which the parties do not challenge and which we 3 therefore, for purposes of this case, need not evaluate or 4 edit: “[c]rimes against humanity include murder, 5 enslavement, deportation or forcible transfer, torture, rape 6 or other inhumane acts, committed as part of a widespread 7 [or] systematic attack directed against a civilian 8 population.” 6 Presbyterian Church of Sudan, 453 F. Supp. 2d 9 at 670. 10 Talisman does not contest that the enumerated torts are 11 cognizable under the ATS. At issue is whether plaintiffs’ 12 claim that Talisman aided and abetted these offenses (and 13 conspired to do them) is actionable under the ATS absent 14 evidence that Talisman acted with the purpose of advancing 15 the abuses, and, if proof of purpose is an element, whether 16 the evidence supports such a finding. 17 18 III 19 There is no allegation that Talisman (or its employees) 6 The district court used the phrase “widespread and systematic,” but plaintiffs argue that this was error, and that “and” should be replaced by “or.” (Pls.’ Br. 65). We assume for purposes of this appeal that plaintiffs’ formulation is correct. 36 1 personally engaged in human rights abuses; the allegation is 2 that Talisman was complicit in the Government’s abuses. 3 That allegation places in issue the standard for aiding 4 and abetting liability under the ATS. 7 This question was 5 presented to a prior panel, which held, in a brief per 6 curiam opinion, that “in this Circuit, a plaintiff may plead 7 a theory of aiding and abetting liability under the [ATS].” 8 Khulumani, 504 F.3d at 260. However, the panel fractured as 9 to the standard for pleading such liability. 10 Judge Katzmann, concurring, was of the view “that a 11 defendant may be held liable under international law for 12 aiding and abetting the violation of that law by another 13 when the defendant (1) provides practical assistance to the 14 principal which has a substantial effect on the perpetration 15 of the crime, and (2) does so with the purpose of 16 facilitating the commission of that crime.” Id. at 277 7 We address aiding and abetting liability--a concept typically associated with the criminal law--because customary international law norms prohibiting genocide, war crimes, and crimes against humanity have “been developed largely in the context of criminal prosecutions rather than civil proceedings.” John Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002); see also Khulumani, 504 F.3d at 270 n.5 (Katzmann, J., concurring)(“[O]ur case law . . . has consistently relied on criminal law norms in establishing the content of customary international law for purposes of the [ATS].”). 37 1 (Katzmann, J., concurring). Judge Korman noted that (were 2 he not dissenting on other grounds) he would have concurred 3 with Judge Katzmann. Id. at 333 (Korman, J., concurring in 4 part and dissenting in part). Both judges observed that the 5 standard for aiding and abetting liability under the ATS 6 must derive from international law sources. Id. at 268 7 (Katzmann, J., concurring); id. at 331 (Korman, J., 8 concurring in part and dissenting in part). 9 Judge Hall’s closely reasoned concurring opinion 10 concluded that Sosa’s reliance on international law applied 11 to the question of recognizing substantive offenses, but not 12 to the issue of secondary liability. On that issue, he 13 found that “Sosa at best lends Delphian guidance,” largely 14 in dicta. Id. at 286 (Hall, J., concurring). Citing “a 15 hornbook principle that international law does not specify 16 the means of its domestic enforcement,” id. (internal 17 quotation marks omitted), Judge Hall turned to the 18 Restatement (Second) of Torts § 876(b), which states that 19 the aiding and abetting standard should be [i] knowing [ii] 20 encouragement [iii] that facilitated the substantive 21 violation. Id. at 287-89. 22 The upshot of this split is that notwithstanding the 38 1 agreement of two judges, Judge Katzmann’s view did not 2 constitute a holding and is therefore not binding precedent. 3 In this unusual circumstance, the issue remains live. This 4 opinion draws substantially from Judge Katzmann’s concurring 5 opinion, and adopts his proposed rule as the law of this 6 Circuit. 7 Judge Katzmann began by choosing the source of law that 8 should provide the basis for an aiding and abetting 9 standard. 8 He observed that this Court has “repeatedly 10 emphasized that the scope of the [ATS’s] jurisdictional 11 grant should be determined by reference to international 12 law.” Id. at 269 (Katzmann, J., concurring)(citing Kadic, 13 70 F.3d at 238; Flores, 414 F.3d at 248; Filártiga, 630 F.2d 14 at 887). Similarly, footnote 20 of Sosa, 9 while nominally 15 concerned with the liability of non-state actors, supports 8 Judge Katzmann’s individual opinion contains a thorough discussion of aiding and abetting principles. This opinion sets forth only so much of Judge Katzmann’s analysis as is necessary to provide the context of our holding. For an extended discussion of the aiding and abetting issue, see Khulumani, 504 F.3d at 268-77 (Katzmann, J., concurring). 9 A consideration related to whether the ATS provides jurisdiction over a norm is “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 n.20. 39 1 the broader principle that the scope of liability for ATS 2 violations should be derived from international law. Id. 3 Judge Katzmann concluded that, while domestic law might 4 provide guidance on whether to recognize a violation of 5 international norms, it cannot render conduct actionable 6 under the ATS. Id. at 270. 7 Judge Katzmann’s research “revealed no source of 8 international law that recognizes liability for aiding and 9 abetting a violation of international law but would not 10 authorize the imposition of such liability on a party who 11 acts with the purpose of facilitating that violation 12 (provided, of course, that the actus reus requirement is 13 also satisfied).” Id. at 277. While liability had been 14 imposed in certain cases under a less-stringent knowledge 15 standard, see, e.g., id. at 277 n.12 (citing Prosecutor v. 16 Vasiljevic, Case No. IT-98-32-A, Appeal Judgment, ¶ 102(ii) 17 (Feb. 24, 2004)), Judge Katzmann cited Sosa’s requirement 18 that a norm obtain universal acceptance, and adopted the 19 standard set forth in the Rome Statute: “that a defendant 20 may be held liable under international law for aiding and 21 abetting the violation of that law by another when the 22 defendant (1) provides practical assistance to the principal 40 1 which has a substantial effect on the perpetration of the 2 crime, and (2) does so with the purpose of facilitating the 3 commission of that crime.” Id. at 277. 4 We agree that Sosa and our precedents send us to 5 international law to find the standard for accessorial 6 liability. Plaintiffs argue that aiding and abetting 7 liability is a matter ordinarily left to the forum country, 8 where (in this venue) the principle is broad and elastic. 9 But such an expansion would violate Sosa’s command that we 10 limit liability to “violations of . . . international law . 11 . . with . . . definite content and acceptance among 12 civilized nations [equivalent to] the historical paradigms 13 familiar when § 1350 was enacted.” 542 U.S. at 732. 14 Recognition of secondary liability is no less significant a 15 decision than whether to recognize a whole new tort in the 16 first place. 17 Thus, applying international law, we hold that the mens 18 rea standard for aiding and abetting liability in ATS 19 actions is purpose rather than knowledge alone. Even if 20 there is a sufficient international consensus for imposing 21 liability on individuals who purposefully aid and abet a 22 violation of international law, see Khulumani, 504 F.3d at 41 1 276 (Katzmann, J., concurring); cf. id. at 333 (Korman, J., 2 concurring in part and dissenting in part), no such 3 consensus exists for imposing liability on individuals who 4 knowingly (but not purposefully) aid and abet a violation of 5 international law. 6 Indeed, international law at the time of the Nuremberg 7 trials recognized aiding and abetting liability only for 8 purposeful conduct. See United States v. von Weizsaecker 9 (The Ministries Case), in 14 Trials of War Criminals Before 10 the Nuremberg Military Tribunals Under Control Council Law 11 No. 10, at 662 (William S. Hein & Co., Inc. 12 1997)(1949)(declining to impose criminal liability on a bank 13 officer who made a loan with the knowledge, but not the 14 purpose, that the borrower would use the funds to commit a 15 crime). That purpose standard has been largely upheld in 16 the modern era, with only sporadic forays in the direction 17 of a knowledge standard. See Khulumani, 504 F.3d at 276 18 (Katzmann, J., concurring)(noting that some international 19 criminal tribunals have made overtures toward a knowledge 20 standard but that the Rome Statute of the International 21 Criminal Court adopts a purpose standard); see also id. at 22 332-37 (Korman, J., concurring in part and dissenting in 42 1 part). Only a purpose standard, therefore, has the 2 requisite “acceptance among civilized nations,” Sosa, 542 3 U.S. at 732, for application in an action under the ATS. 4 See generally Flores, 414 F.3d at 248 (“[I]n order for a 5 principle to become part of customary international law, 6 States must universally abide by it.”); see also Yousef, 327 7 F.3d at 92, 105-08; Kadic, 70 F.3d at 239; Filártiga, 630 8 F.2d at 888. 9 10 IV 11 Plaintiffs allege that Talisman conspired with the 12 Government to commit human rights abuses and argue that the 13 district court failed to apply conspiracy principles from 14 United States law to violations of international law under 15 the ATS. In particular, plaintiffs urge application of the 16 Pinkerton doctrine, 328 U.S. at 646-47. 10 Whether 17 conspiracy claims are cognizab le under international law is 10 “[U]nder Pinkerton, a defendant may be found ‘guilty on a substantive count without specific evidence that he committed the act charged if it is clear that the offense had been committed, that it had been committed in the furtherance of an unlawful conspiracy, and that the defendant was a member of that conspiracy.’” United States v. Bruno, 383 F.3d 65, 89 (2d Cir. 2004) (quoting United States v. Miley, 513 F.2d 1191, 1208 (2d Cir. 1975)). 43 1 a question of first impression in this Circuit. 2 As a matter of first principles, we look to 3 international law to derive the elements for any such cause 4 of action.11 See Sec. III, supra. In so doing, we must 5 distinguish between the inchoate crime of conspiracy (which 6 requires an agreement and overt acts, but no completed deed) 7 and conspiracy as a theory of accessorial liability for 8 completed offenses. 9 As to conspiracy as an inchoate offense, the Supreme 10 Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 610 (2006), 11 that “the only ‘conspiracy’ crimes that have been recognized 12 by international war crimes tribunals (whose jurisdiction 13 often extends beyond war crimes proper to crimes against 14 humanity and crimes against the peace) are conspiracy to 15 commit genocide and common plan to wage aggressive war.” 11 Plaintiffs argue that federal conspiracy law should apply to ATS claims. See, e.g., Cabello v. Fernandez- Larios, 402 F.3d 1148 (11th Cir. 2005) (applying domestic law to ATS conspiracy claim). Judge Cote rejected that approach, holding that Sosa required applying international law. Presbyterian Church, 453 F. Supp. 2d at 665 n.64. We agree with Judge Cote. Moreover, plaintiffs would fare no better if we adopted their preferred definition of conspiracy, because that definition (derived from domestic law) also requires proof “that . . . [the defendant] joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it.” Cabello, 402 F.3d at 1159 (emphasis added). 44 1 Plaintiffs did not plead the waging of aggressive war, and 2 while they did plead genocide, it is pled as a completed 3 offense, not an inchoate one. 4 The analog to a conspiracy as a completed offense in 5 international law is the concept of a “joint criminal 6 enterprise.” See Hamdan, 548 U.S. at 611 n.40. Even 7 assuming, without deciding, that plaintiffs could assert 8 such a theory in an ATS action, an essential element of a 9 joint criminal enterprise is “a criminal intention to 10 participate in a common criminal design.” Prosecutor v. 11 Tadic, Case No. IT-94-1-A, Appeal Judgment, ¶ 206 (July 15, 12 1999)(basing that finding on numerous precedents from 13 criminal tribunals established in the aftermath of Word War 14 II). Therefore, under a theory of relief based on a joint 15 criminal enterprise, plaintiffs’ conspiracy claims would 16 require the same proof of mens rea as their claims for 17 aiding and abetting. 18 In any event, plaintiffs have not established that 19 “international law [universally] recognize[s] a doctrine of 20 conspiratorial liability that would extend to activity 21 encompassed by the Pinkerton doctrine.” Presbyterian Church 22 of Sudan, 453 F. Supp. 2d at 663. 45 1 2 V 3 Therefore, in reviewing the district court’s grant of 4 summary judgment to Talisman, we must test plaintiffs’ 5 evidence to see if it supports an inference that Talisman 6 acted with the “purpose” to advance the Government’s human 7 rights abuses. 8 The district court’s observations are well-considered 9 and apt. “The activities which the plaintiffs identify as 10 assisting the Government in committing crimes against 11 humanity and war crimes generally accompany any natural 12 resource development business or the creation of any 13 industry.” Presbyterian Church of Sudan, 453 F. Supp. 2d at 14 672. None of the acts was inherently criminal or wrongful. 15 “[T]he plaintiffs’ theories of substantial assistance serve 16 essentially as proxies for their contention that Talisman 17 should not have made any investment in the Sudan, knowing as 18 it did that the Government was engaged in the forced 19 eviction of non-Muslim Africans from lands that held promise 20 for the discovery of oil.” Id. In sum: 21 The plaintiffs essentially argue that 22 Talisman understood that the Government 23 had cleared and would continue to clear 24 the land of the local population if oil 46 1 companies were willing to come to the 2 Sudan and explore for oil, and that[,] 3 understanding that to be so, Talisman 4 should not have come. They have no 5 evidence that Talisman (or [Greater Nile] 6 or GNPOC) participated in any attack 7 against a plaintiff and no direct 8 evidence of Talisman’s illicit intent, so 9 they wish to argue that Talisman’s 10 knowledge of the Government’s record of 11 human rights violations, and its 12 understanding of how the Government would 13 abuse the presence of Talisman, is a 14 sufficient basis from which to infer 15 Talisman’s illicit intent when it 16 designated areas for exploration, 17 upgraded airstrips or paid royalties. 18 19 Id. at 672-73. 20 Plaintiffs argue that the district court’s analysis was 21 flawed because it assumed that “ordinary development 22 activities cannot constitute aiding and abetting.” This 23 argument misconstrues the district court’s analysis, which 24 does not rely on any categorical or blanket principle 25 precluding liability; rather, the court conscientiously 26 looked at each specific activity to determine if it 27 satisfied the aiding and abetting standard. A de novo 28 review of plaintiffs’ evidence confirms the soundness of the 29 district court’s ruling. 30 As a threshold matter, Talisman did not manage oil 31 operations in the Sudan: its indirect subsidiary Greater 47 1 Nile was a 25% shareholder in GNPOC, the corporation 2 responsible for developing the concessions. The rest of the 3 GNPOC shares were held by entities from China, Malaysia, and 4 the Sudan. This attenuation between the plaintiffs’ 5 allegations and the named defendant (the only entity over 6 which the district court had personal jurisdiction) raises 7 knotty issues concerning control, imputation, and veil 8 piercing (among other things). Nevertheless, we will assume 9 for most purposes that plaintiffs could surmount these 10 hurdles; 12 so we proceed to the allegations of aiding and 11 abetting and conspiring to commit human rights abuses. 12 The district court classified four kinds of 13 “substantial assistance” that Talisman provided (or is 14 alleged to have provided) to the Government: “(1) upgrading 15 the Heglig and Unity airstrips; (2) designating areas ‘south 16 of the river’ in Block 4 for oil exploration; (3) providing 17 financial assistance to the Government through the payment 18 of royalties; [and] (4) giving general logistical support to 12 We will also assume, without deciding, that corporations such as Talisman may be held liable for the violations of customary international law that plaintiffs allege. Because we hold that plaintiffs’ claims fail on other grounds, we need not reach, in this action, the question of “whether international law extends the scope of liability” to corporations. Sosa, 542 U.S. at 732 n.20. 48 1 the Sudanese military.” 13 Presbyterian Church of Sudan, 453 2 F. Supp. 2d at 671-72. We take these up one by one. 3 1. Talisman helped build all-weather roads and 4 improved airports, notwithstanding awareness that this 5 infrastructure might be used for attacks on civilians. 6 There is no doubt that roads and airports are necessary 7 features of a remote facility for oil extraction: they are 8 used for transporting supplies, bringing workers to the work 9 site, and assuring evacuation in the event of emergency. 10 There is evidence that Talisman (partially) financed 11 the road-building, from its Calgary headquarters, and helped 12 build other infrastructure, notwithstanding awareness of the 13 Government’s activity. But obviously there are benign and 14 constructive purposes for these projects and (more to the 15 point) there is no evidence that any of this was done for an 16 improper purpose. Consistent with plaintiffs’ effort to 17 show that GNPOC personnel had knowledge of the Government’s 13 The district court also addressed plaintiffs’ allegations that Talisman assisted the Government by “using its community development program as a cover for gathering military intelligence” and by publicly denying knowledge of human rights violations. Presbyterian Church of Sudan, 453 F. Supp. 2d at 677. Plaintiffs do not raise the former point on appeal and we agree with the district court that publicly denying knowledge of abuses is not “substantial assistance.” 49 1 human rights abuses, plaintiffs adduce evidence that senior 2 Talisman officials protested to the Government and that 3 security reports shared with senior Talisman officials 4 expressed concern about the military’s use of GNPOC 5 airstrips. Since, however, the proper test of liability is 6 purpose (not knowledge), all this evidence of knowledge (and 7 protest) cuts against Talisman’s liability. 8 Even if Talisman built roads or improved the airstrips 9 with the intention that the military would also be 10 accommodated, GNPOC had a legitimate need to rely on the 11 military for defense. It is undisputed that oil workers in 12 that tumultuous region were subjected to attacks: rebel 13 groups viewed oil installations and oil workers as enemy 14 targets; an e-mail from a Talisman employee describes rebel 15 attacks and the placement of mines in work areas; rebels 16 launched a nighttime mortar attack against a Heglig camp 17 where 700 oil workers were living; and in Block 5A the 18 attacks caused that concessionaire (Lundin Oil AB) to close 19 down operations for an extended period. In these 20 circumstances, evidence that GNPOC was coordinating with the 21 military supports no inference of a purpose to aid 22 atrocities. 50 1 2. At one point, Greater Nile was worried that the 2 Government would terminate GNPOC’s concession on lands south 3 of its existing operations unless GNPOC began to exploit 4 them, and consideration was given to an expansion. 5 Plaintiffs contend that this consideration violated 6 international law. However, the evidence shows that this 7 expansion south did not occur during the time any Talisman 8 affiliate was in the Sudan, and contemplation does not 9 amount to “substantial assistance” in violation of 10 international law. 11 3. The royalties paid by GNPOC may have assisted the 12 Government in its abuses, as it may have assisted any other 13 activity the Government wanted to pursue. But there is no 14 evidence that GNPOC or Talisman acted with the purpose that 15 the royalty payments be used for human rights abuses. 16 4. GNPOC provided fuel for military aircraft taking 17 off on bombing missions, and some of the fuel was paid for 18 by GNPOC rather than the Government. This evidence is 19 insufficient to defeat summary judgment for two reasons. 20 First, there is no showing that Talisman was involved in 21 such routine day-to-day GNPOC operations as refueling 22 aircraft. Second, there is no evidence that GNPOC workers 51 1 provided fuel for the purpose of facilitating attacks on 2 civilians; to the contrary, an e-mail from a Talisman 3 employee to his supervisor, which plaintiffs use to show 4 that the military refueled at a GNPOC airstrip, expresses 5 anger and frustration at the military using the fuel. 6 Plaintiffs’ primary argument is that Talisman supported 7 the creation of a buffer zone around its oil fields, 8 understanding that the Government was displacing huge 9 numbers of civilians from oil-rich regions, decimating as it 10 went the population of southern Sudan. As evidence, 11 plaintiffs cite statements in Greater Nile security 12 memoranda, including this one: “[t]he military strategy, 13 driven it appears by the GNPOC security management, is to 14 create a buffer zone, i.e., an area surrounding both Heglig 15 and Unity camps inside which no local settlements or 16 commerce is allowed.”14 17 Plaintiffs repeatedly cite the forced displacement of 18 people from the oil fields, but they do not allege that such 19 displacement in itself is a violation of international law. 14 Talisman argues that this statement (and others cited by plaintiffs) references an area of 5km and 8km around the Heglig and Unity camps, respectively, not a zone covering the entirety of the concession area. 52 1 That is understandable, because a government has power to 2 regulate use of land and resources. Resource extraction in 3 particular is by nature land-intensive: land is needed for 4 exploration and engineering, equipment, rigs or mines, 5 offices and dormitories in remote areas, transportation 6 infrastructure, and so on. Under the best circumstances, 7 these facilities might require relocation from a development 8 area. But GNPOC was not operating in the best of 9 circumstances. Sudan’s oil was located in an area heavily 10 contested in a civil war, in a region of the country that 11 had suffered through four decades of violence before 12 Talisman arrived. The oil facilities came under frequent 13 rebel attack and oil workers were killed during the relevant 14 time. Safe operation of the oil facilities therefore 15 required tightened security; and displacing civilians from 16 an “area within the security ring road” was not in itself 17 unlawful. 18 It is therefore not enough for plaintiffs to establish 19 Talisman’s complicity in depopulating areas in or around the 20 Heglig and Unity camps: plaintiffs must establish that 21 Talisman acted with the purpose to assist the Government’s 22 violations of customary international law. 53 1 Plaintiffs have provided evidence that the Government 2 violated customary international law; but they provide no 3 evidence that Talisman acted with the purpose to support the 4 Government’s offenses. Plaintiffs do not suggest in their 5 briefs that Talisman was a partisan in regional, religious, 6 or ethnic hostilities, or that Talisman acted with the 7 purpose to assist persecution. To the contrary, the actions 8 of the Sudanese government threatened the security of the 9 company’s operations, tarnished its reputation, angered its 10 employees and management, and ultimately forced Talisman to 11 abandon the venture. 12 Plaintiffs argue that they need no direct evidence of 13 purpose because “‘[genocidal intent may] be inferred from a 14 number of facts and circumstances, such as the general 15 context, the perpetration of other culpable acts 16 systematically directed against the same group, the scale of 17 atrocities committed, the systematic targeting of victims on 18 account of their membership of a particular group, or the 19 repetition of destructive and discriminatory acts.’” 20 Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 21 F.R.D. 456, 479 (S.D.N.Y. 2005)(alterations in 22 original)(quoting Prosecutor v. Jelisec, No. IT-95-10-A, 54 1 Appeals Chamber Judgment, ¶ 101 (July 5, 2001)). True, 2 intent must often be demonstrated by the circumstances, and 3 there may well be an ATS case in which a genuine issue of 4 fact as to a defendant’s intent to aid and abet the 5 principal could be inferred; but in this case, there were 6 insufficient facts or circumstances suggesting that Talisman 7 acted with the purpose to advance violations of 8 international humanitarian law. 9 The reports that plaintiffs rely upon to prove 10 knowledge also show that Greater Nile security personnel and 11 GNPOC workers were upset by the Government’s actions and 12 possible attacks on civilians. For example, several reports 13 address the company’s efforts to relieve the plight of 14 internally displaced persons, which included stockpiling 15 tons of relief supplies and distributing food, water, 16 medicine, and mosquito nets. 17 There is evidence that southern Sudanese were subjected 18 to attacks by the Government, that those attacks facilitated 19 the oil enterprise, and that the Government’s stream of oil 20 revenue enhanced the military capabilities used to persecute 21 its enemies. But if ATS liability could be established by 22 knowledge of those abuses coupled only with such commercial 55 1 activities as resource development, the statute would act as 2 a vehicle for private parties to impose embargos or 3 international sanctions through civil actions in United 4 States courts. Such measures are not the province of 5 private parties but are, instead, properly reserved to 6 governments and multinational organizations. 7 8 VI 9 10 Plaintiffs argue that the district court failed to 11 consider portions of the summary judgment record and failed 12 to afford the parties an opportunity to argue evidentiary 13 issues. We reject these contentions. The district court 14 did not make a “wholesale blanket ruling” excluding 15 plaintiffs’ evidence and did not exclude evidence in 16 contravention of the Federal Rules of Evidence. Moreover, 17 plaintiffs have cited no relevant authority holding that a 18 district court is confined to a particular evidentiary 19 procedure in ruling on a summary judgment motion. 20 A district court deciding a summary judgment motion 21 “has broad discretion in choosing whether to admit 22 evidence.” Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 23 1997). “The principles governing admissibility of evidence 56 1 do not change on a motion for summary judgment.” Id. at 65- 2 66. “Rule 56(e) provides that affidavits in support of and 3 against summary judgment shall set forth such facts as would 4 be admissible in evidence. Therefore, only admissible 5 evidence need be considered by the trial court in ruling on 6 a motion for summary judgment.” Id. at 66 (internal 7 quotation marks and citations omitted). It is difficult to 8 see how a court can decide a summary judgment motion without 9 deciding questions of evidence: 10 Because the purpose of summary judgment 11 is to weed out cases in which “there is 12 no genuine issue as to any material fact 13 and . . . the moving party is entitled to 14 a judgment as a matter of law,” it is 15 appropriate for district courts to decide 16 questions regarding the admissibility of 17 evidence on summary judgment. Although 18 disputes as to the validity of the 19 underlying data go to the weight of the 20 evidence, and are for the fact-finder to 21 resolve, questions of admissibility are 22 properly resolved by the court. The 23 resolution of evidentiary questions on 24 summary judgment conserves the resources 25 of the parties, the court, and the jury. 26 27 Id. (citations omitted)(alterations in original); see also 28 LaSalle Bank Nat. Ass’n v. Nomura Asset Capital Corp., 424 29 F.3d 195, 205-06 (2d Cir. 2005)(“Even on summary judgment, a 30 district court has wide discretion in determining which 31 evidence is admissible, [and] we review its evidentiary 57 1 rulings for manifest error.” (internal quotation marks and 2 citations omitted))(alterations in original)). 3 At the outset of the summary judgment opinion in this 4 case, the district court observed that 5 plaintiffs have not distinguished between 6 the admissible and inadmissible. The 7 plaintiffs repeatedly describe ‘Talisman’ 8 as having done this or that, when the 9 examination of the sources to which they 10 refer reveals that it is some other 11 entity or an employee of some other 12 company that acted. They assert that 13 this or that event happened, when the 14 documents to which they refer consist of 15 hearsay embedded in more hearsay. 16 Indeed, most of the admissible evidence 17 is either statements made by or to 18 Talisman executives, and the plaintiffs’ 19 descriptions of their own injuries, with 20 very little admissible evidence offered 21 to build the links in the chain of 22 causation between the defendant and those 23 injuries. 24 25 Presbyterian Church of Sudan, 453 F. Supp. 2d at 639. 26 Plaintiffs argue that this prefatory language amounts to an 27 evidentiary ruling and bespeaks a disregard of the 28 plaintiffs’ evidence in whole. However, the district court 29 set aside its concerns about the evidence in describing the 30 facts of the case: “In order to describe as fairly as 31 possible the evidence the plaintiffs present, the 32 description of events that follows is largely taken from the 58 1 documents on which the plaintiffs have placed the greatest 2 reliance, without a careful analysis of the admissibility of 3 this evidence.” Id. at 641-42. 4 In weighing evidence of questionable admissibility, the 5 district court often noted Talisman’s evidentiary objection, 6 and sometimes expressed a view of the objection; but the 7 court never made a blanket exclusion of evidence. 8 Plaintiffs focus on four specific “exclusions”: 9 1. Congressional findings included in the Sudan Peace 10 Act stating that genocide was taking place in the Sudan and 11 that oil profits were contributing to the misery. See Pub. 12 L. No. 107-245, 116 Stat. 1504 (codified at 50 U.S.C. 13 § 1701). This was not excluded; the court described the 14 congressional findings and Talisman’s objections, and 15 explained that in any case plaintiffs had no proof of 16 Talisman’s intent. Presbyterian Church of Sudan, 453 F. 17 Supp. 2d at 669-70. 18 2. Evidence from plaintiffs’ experts about the 19 relationship between oil profits and military spending. The 20 district court conceded that “plaintiffs have evidence from 21 which a jury could find that Talisman believed that the 22 Government used oil revenues to buy armaments, even if 59 1 Talisman did not have any direct evidence or knowledge of 2 that fact.” Id. at 676. The district court nonetheless 3 concluded that was not enough, because plaintiffs had not 4 “identified evidence sufficient to support a finding that 5 when Talisman (or [Greater Nile] or GNPOC) paid royalties, 6 it ‘specifically directed’ those payments to the 7 Government’s procurement of weaponry to target civilians and 8 displace them.” Id. 9 3. Security reports by Greater Nile personnel (who 10 monitored threats to GNPOC workers) recording the military’s 11 use of airstrips to conduct bombing runs and other military 12 operations. The district court described these reports in 13 great detail in the background section of its opinion, and 14 explained that the reports painted a complex picture of the 15 situation. Whatever the significance of the information in 16 the reports, there is no question that they were accounted 17 for in the district court’s analysis. 18 4. A declaration from the head of security for Arakis 19 (Robert Norton), stating that he had warned Talisman at the 20 time it purchased Arakis about likely civilian displacement. 21 The district court excluded this declaration because the 22 witness had testified at an earlier deposition that he was 60 1 unaware of any displacement. Presbyterian Church of Sudan, 2 453 F. Supp. 2d at 647 & n.11. The district court explained 3 “[a] witness may not use a later affidavit to contradict 4 deposition testimony in an effort to defeat a motion for 5 summary judgment.” Presbyterian Church of Sudan, 453 F. 6 Supp. 2d at 647 (citing Bickerstaff v. Vassar Coll., 196 7 F.3d 435, 455 (2d Cir. 1999)). Plaintiffs contend that only 8 declarations from parties contradicting earlier deposition 9 testimony are inadmissible, and that Norton’s declaration 10 did not fit within this rule. We need not decide this 11 question, because [i] there was other evidence of Talisman’s 12 knowledge of displacement of civilians and [ii] Talisman’s 13 notice of this displacement is not enough to show an illicit 14 purpose. 15 Plaintiffs cite United States v. McDermott, 245 F.3d 16 133 (2d Cir. 2001), and United States v. Carson, 52 F.3d 17 1173 (2d Cir. 1995), for the proposition that a party must 18 make a specific and contemporaneous objection to the 19 admission of trial evidence under Federal Rule of Evidence 20 103(a)(1). This non-controversial proposition is 21 irrelevant, because the case never went to trial and because 22 Talisman is not objecting to the district court’s admission 61 1 of trial evidence. 2 Finally, plaintiffs rely on an unpublished opinion from 3 the Eleventh Circuit which reversed a district court’s 4 striking of fifty passages from a response to a motion for 5 summary judgment. Mack v. ST Mobile Aerospace Eng’g, Inc., 6 195 F. App’x 829 (11th Cir. 2006). The district court in 7 that case: [i] failed to give the parties an opportunity to 8 argue the merits of the objections; [ii] failed to analyze 9 and rule on each objection; and [iii] offered only a 10 “blanket declaration that ‘the statements at issue are 11 inadmissible hearsay, double hearsay, opinion, speculation 12 and/or conjecture.’” Id. at 842-43. Moreover, nothing in 13 the submission could be “inadmissible hearsay evidence 14 because the passages [were] not evidence at all--they [were] 15 the plaintiffs’ arguments in their responsive pleading.” 16 Id. at 842 (emphasis in original). Mack is easily 17 distinguishable. First, the district court in this case 18 explained its reasons for excluding evidence. Second, the 19 district court in Mack struck pleadings, not evidence. 20 Third, the Eleventh Circuit reversed in part because it 21 determined (after addressing several specific strikes) that 22 the district court’s evidentiary rulings were wrong on the 62 1 merits. Plaintiffs have pointed to no incorrect rulings in 2 this case (with the possible exception of the Norton 3 declaration, which is not material as to purpose).15 4 In conclusion, there is no evidence that the district 5 court improperly failed to consider plaintiffs’ evidence. 6 7 VII 8 Two weeks before Talisman moved for summary judgment, 9 plaintiffs filed a Proposed Third Amended Class Action 10 Complaint. In denying plaintiffs’ motion to amend, the 11 district court explained that the Second Amended Complaint 12 sought to hold Talisman liable for its own acts, while the 13 proposed pleading, “[w]hen stripped to its essentials, . . . 14 seeks to hold Talisman liable for the actions of GNPOC.” 15 Presbyterian Church of Sudan, 453 F. Supp. 2d at 679. Thus, 16 while the Second Amended Complaint alleged that Talisman 17 aided and abetted the Government, the Third Amended 18 Complaint alleged that Talisman aided and abetted GNPOC and 15 Plaintiffs also rely on Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 128 (S.D.N.Y. 1990), in which the district court denied summary judgment on a sexual harassment claim. Halbrook is inapposite because the court in that case deferred ruling on trial evidence given its denial of summary judgment. The court did not articulate a general rule for considering evidence on summary judgment. 63 1 Greater Nile. Id. 2 The district court ruled that, to plead new theories of 3 liability three years after the deadline for amendment 4 specified in the scheduling order, plaintiffs were required 5 to show good cause for delay and the exercise of due 6 diligence. Id. at 680 (citing Fed. R. Civ. P. 16; 7 Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 8 2003); In re Wireless Tel. Servs. Antitrust Litig., 02 Civ. 9 2673(DLC), 2004 WL 2244502, at *5 (S.D.N.Y. Oct. 6, 2004)). 10 The court found that plaintiffs failed to show good cause, 11 and that “[i]t could even be said that the plaintiffs acted 12 in bad faith in waiting until the eve of summary judgment 13 practice to file the motion to amend.” Id. at 680. 14 Once the deadline for amendment in a scheduling order 15 has passed, leave to amend may be denied “where the moving 16 party has failed to establish good cause.” Parker v. 17 Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). 18 “[A] finding of ‘good cause’ depends on the diligence of the 19 moving party.” Id. We review a district court’s denial of 20 leave to amend for abuse of discretion. 21 Plaintiffs argue that they filed the Third Amended 22 Complaint as promptly as they could at the conclusion of 64 1 discovery. But the district court concluded that it was 2 unreasonable for plaintiffs to hold the proposed amendment 3 until discovery ended. Plaintiffs also argue that the 4 proposed amendment would not have required new discovery and 5 that the dates in the scheduling order were irrelevant 6 because the theories pled in the Third Amended Complaint 7 were already in the case. However, the Second Amended 8 Complaint reads as if Talisman operated directly in the 9 Sudan with no intervening subsidiaries and it does not 10 allege that Talisman acted through GNPOC. While references 11 to GNPOC are sprinkled throughout the Second Amended 12 Complaint, the gravamen is that Talisman conspired directly 13 with the Sudanese government. Thus, the Third Amended 14 Complaint, which alleged that Talisman aided and abetted 15 GNPOC and that it conspired with Greater Nile, substantially 16 revised plaintiffs’ theory. 17 It is true that the issue of joint venture liability 18 was mentioned early in the case by Judge Schwartz in a 2003 19 decision denying Talisman’s motion to dismiss on the ground 20 that GNPOC was a necessary party. In that decision, the 21 district court considered and rejected a number of arguments 22 as to why the litigation could not proceed without GNPOC. 65 1 Judge Schwartz explained that “nearly every paragraph 2 describes alleged unlawful acts by Talisman, not GNPOC.” 3 Presbyterian Church of Sudan, 244 F. Supp. 2d at 352. In a 4 footnote, the district court added that “[t]o the extent 5 that the Amended Complaint alleges acts by GNPOC, . . . 6 Talisman may potentially be held liable for the acts of 7 other GNPOC members under a theory of joint venture 8 liability.” Id. at 352 n.50 (citation omitted) 9 Plaintiffs cite this footnote as evidence that the 10 district court and Talisman were aware from early in the 11 litigation that plaintiffs might proceed against Greater 12 Nile and GNPOC on theories of joint liability. But Judge 13 Cote observed that the Third Amended Complaint “dramatically 14 alter[ed] the plaintiffs’ theories of liability and the 15 focus of the entire case,” Presbyterian Church of Sudan, 453 16 F. Supp. 2d at 680, and Talisman vigorously contests the 17 idea that the substance of the amended complaint was already 18 understood to be part of the case. The district court 19 supervised this case for three years before the filing of 20 plaintiffs’ motion and was thoroughly familiar with the 21 facts and allegations, having written several lengthy 22 opinions in the matter. We owe deference to the district 66 1 court’s analysis. 2 The district court also denied leave to amend on the 3 alternative ground that amendment would be futile. The 4 court assessed whether plaintiffs could pierce the corporate 5 veils of GNPOC and subsidiaries between GNPOC and Talisman: 6 the court held plaintiffs could not pierce and that Talisman 7 could not be liable on theories of joint venture or agency. 8 Id. at 683-89. 9 We have not considered what law would be applied in 10 seeking to pierce a corporate veil in the ATS context, and 11 this case does not require us to reach the question. The 12 district court discussed the issue in an abundance of 13 caution; but we have no occasion to do so given our 14 affirming the denial of leave to amend on good-faith 15 grounds. 16 Finally, plaintiffs argue that even absent amended 17 pleading, the district court should have considered their 18 agency, joint venture, and veil piercing theories. We 19 disagree. The district court concluded that these theories 20 were insufficiently pled, and our independent review of the 21 Second Amended Complaint supports the district court’s 67 1 conclusion. 16 2 3 CONCLUSION 4 For the foregoing reasons, the judgment of the district 5 court is affirmed. 16 Plaintiffs also appeal from the denial of their motions for class certification. Because we affirm the district court’s grant of summary judgment as to all claims against Talisman, we do not reach that issue. 68