In an order today (in Doe I v. Cisco Systems), the Ninth Circuit, over the dissent of six judges, denied en banc rehearing of a panel decision that allows Falun Gong members to sue Cisco Systems under the Alien Tort Statute for aiding and abetting China’s tortious violation of their human rights. Specifically, the Falun Gong members allege that the government of China subjected them to the torts of prolonged arbitrary detention, disappearance, extrajudicial killing, forced labor, cruel treatment, and crimes against humanity. They have not sued China or Chinese officials but have instead sued Cisco for aiding and abetting the torts by providing computer-networking hardware and software to China.
Writing in dissent for himself and five other judges, Judge Patrick Bumatay objects that the panel majority (opinion by Judge Marsha Berzon, joined by Judge Wallace Tashima) failed to assess whether accomplice liability attaches to the underlying conduct for each tort and instead found it sufficient that aiding-and-abetting liability exists as a general matter in international law. He also faults the panel majority for dismissing the serious foreign-policy concerns that the case raises: Even though China is not a defendant, the secondary liability that the Falun Gong members seek to impose on Cisco requires the district court to adjudicate China’s responsibility for alleged violations of international law.
Look for Cisco to seek Supreme Court review and to enlist the State Department’s support.