ORDER

Judge Rawlinson voted to grant the petition for rehearing and petition for rehearing en banc.

Judge Nelson and Judge Wardlaw voted to deny the petition for panel rehearing. Judge Wardlaw voted to deny the petition for rehearing en banc and Judge Nelson so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Judges Graber, Ikuta, Watford, Owens, and Friedland did not participate in the deliberations or vote in this case.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

Judge Bea's dissent from the denial of rehearing en banc is filed concurrently with this order.

BEA, Circuit Judge, with whom O'SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, M. SMITH, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Unfortunately, the panel majority here has substituted sympathy for legal analysis. I quite agree plaintiffs are deserving of sympathy. They are alleged former child slaves of Malian descent, dragooned from their homes and forced to work as slaves on cocoa plantations in the Ivory Coast. But they do not bring this action against the slavers who kidnapped them, nor against the plantation owners who mistreated them. Instead the panel majority concludes that defendant corporations, who engaged in the Ivory Coast cocoa trade, did so with the purpose that plaintiffs be enslaved, hence aiding and abetting the slavers and plantation owners. By this metric, buyers of Soviet gold had the purpose of facilitating gulag prison slavery.

How was the cocoa buyers' purpose shown? By their purchase of cocoa and their conduct of "commercial activities [such] as resource development," conduct one of our sister circuits has explained does not establish that a defendant acted with the required purpose.1 The panel majority's conclusion is wrong. Even the plaintiffs admit defendants intended only to maximize profits, not harm children through slavery.2 It also creates a circuit split with the Second and Fourth Circuits.

But the consequences of the majority's decision do not end there — the majority leads us into open conflict with Supreme Court doctrine interpreting the Alien Tort Statute ("ATS"). The Court unequivocally requires that federal judges who are fashioning federal common law torts for violations of customary international law under the ATS operate under a "restrained conception" of the extent of such liability. Sosa v. Alvarez-Machain, 542 U.S. 692, 725-26, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The panel majority flouts that requirement by permitting a broad expansion of liability under the ATS. The panel majority allows a single plaintiff's civil action to effect an embargo of trade with foreign nations, forcing the judiciary to trench upon the authority of Congress and the President. And in the process, the majority creates a second circuit split by misinterpreting the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum, ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), as creating a new test for when the presumption against extraterritorial application of United States law is rebutted, rather than incorporating the settled doctrine of Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010).

For these reasons, our court should have corrected the panel's mistake by granting a hearing en banc, and I respectfully dissent from the order denying rehearing.

I begin by bringing to mind the basic principles of ATS litigation. The text of the ATS gives the federal district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The Supreme Court has held that the ATS does not create a substantive tort action; instead, the statute is purely a grant of jurisdiction. Sosa v. Alvarez-Machain, 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). ATS actions thus sound in federal common law. Id. But because there are "good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind," an ATS claim must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." Id. at 725-26, 124 S.Ct. 2739.3 Those "good reasons" include the general presumption against judge-made law, the paucity of early cases utilizing the ATS's jurisdictional grant, the disfavoring of court-created private rights of action, the risk that ATS litigation poses to the foreign relations of the United States, and the absence of an affirmative congressional mandate to engage in "judicial creativity" by crafting new norms. Id. at 726-28, 124 S.Ct. 2739. Indeed, Sosa repeatedly emphasizes the need for restraint in extending liability to a defendant who is "a private actor such as a corporation or individual." Id. at 732 n. 20, 124 S.Ct. 2739.

As the majority opinion in this case recognizes, the Supreme Court's list of requirements for an ATS action is not exhaustive; instead, the Sosa opinion's standard "is suggestive rather than precise, and is perhaps best understood as the statement of a mood — and the mood is one of caution." Doe, 766 F.3d at 1019 (quoting Flomo v. Firestone Natural Rubber Co., LLC, 643 F.3d 1013, 1016 (7th Cir.2011)). In light of its recognition of these principles, the majority's errors are all the more curious.

I turn now to the particulars of this case. Plaintiffs, alleged former child slaves who worked on cocoa plantations in the Ivory Coast, have sued the defendant chocolate companies on the theory that by purchasing the chocolate produced by Ivorian plantations, providing technical assistance4 to the plantations, and lobbying Congress for a voluntary alternative to the mandatory "slave-free" licensing scheme Congress was considering, the defendants aided and abetted a violation of customary international law: child slavery.

I agree with the majority and the plaintiffs that child slavery is a violation of customary international law. And I further agree that aiding and abetting a crime is itself a crime, with its own actus reus and mens rea elements. The parties in this case dispute what is the correct mens rea standard for ATS aiding and abetting liability. Defendants claim that a showing that they acted purposefully to bring about (or maintain) the use of slavery to produce cocoa is required to confer liability. Plaintiffs claim that knowledge that slavery was so employed, together with acts of defendants which circumstantially benefit the slaver, is enough; specific intent (purpose) that slavery be facilitated need not be alleged. Plaintiffs candidly admit they cannot in good faith allege defendants acted with the specific intent to promote slavery and thus harm children.

The panel majority did not accept plaintiffs' assertion that knowledge that cocoa growers employed slavery makes out the mens rea element of aiding and abetting liability. Rather, they recognized that "two of our sister circuits have concluded that knowledge is insufficient and that an aiding and abetting ATS defendant must act with the purpose of facilitating the criminal act...." Id. at 1023 (citing Aziz v. Alcolac, Inc., 658 F.3d 388, 399-400 (4th Cir.2011); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir.2009)). However, the majority decided that it need not reach the question whether knowledge was a sufficient mens rea, because plaintiffs' allegations met the purpose standard. In particular, though plaintiffs "conceded that the defendants did not have the subjective motive to harm children," and alleged only that "the defendants' motive was finding cheap sources of cocoa," the majority found that plaintiffs sufficiently alleged defendants had the purpose of aiding child slavery because of defendants' "myopic focus on profit over human welfare."5 Doe, 766 F.3d at 1025-26. Thus, pursuit of profit over human welfare, in the majority's eyes, allows a jury to find the defendants specifically intended not merely to buy cocoa cheap, but to promote slavery as a means of buying cheap.6

In so reasoning, regardless what the majority contends, it was most certainly not following Aziz. There, the Fourth Circuit noted that defendant Alcolac had sold chemicals that could be used to produce lethal mustard gas with full knowledge of that possible use, despite having been told that the chemical in question was subject to U.S. export restrictions. The chemical was sold to a company defendant Alcolac knew was a shell company designed to evade those export restrictions.

Through the shell company, the chemicals eventually reached Saddam Hussein's regime in Iraq, which used the chemicals to create mustard gas it then used to killed thousands of Kurds. Aziz, 658 F.3d at 390-91. Plaintiffs alleged, in sum, that Alcolac sold its chemicals "with actual or constructive knowledge that such quantities [of the chemicals] would ultimately be used by Iraq in the manufacture of mustard gas to attack the Kurds." Id. at 394. Nonetheless, the Fourth Circuit held plaintiffs had not adequately alleged purposeful violation of customary international law by Alcolac. Id. at 401. That is, the allegations that Alcolac knew how the chemicals would be used did not amount to an allegation that Alcolac harbored specific intent (i.e. purpose) that the Kurds be gassed, and thereby accomplish a form of genocide.

The contradiction with the majority's holding is obvious. If selling chemicals with the knowledge that the chemicals will be used to create lethal chemical weapons does not constitute purpose that people be killed, how can purchasing cocoa with the knowledge that slave labor may have lowered its sale price constitute purpose that people be enslaved? The majority replies that "the defendants [in Aziz] had nothing to gain from the violations of international law." Doe, 766 F.3d at 1024. Demonstrably not so — the more Saddam Hussein used chemical weapons to kill his opponents, the more of Alcolac's chemicals he would need and thus the higher the sales of Alcolac's products; the higher their sales, of course, the higher their profit.7

The majority fares no better with its characterization of the Second Circuit's decision in Talisman, which should come as no surprise since the Fourth Circuit's Aziz opinion explicitly relied on Talisman. Aziz, 658 F.3d at 398. Talisman Energy ("Talisman"), a Canadian oil corporation, was part of a conglomerate that had a business arrangement with the Sudanese government whereby Talisman extracted oil in several regions of Sudan. Talisman and its conglomerate worked closely with the Sudanese government: Talisman upgraded airstrips for the Sudanese government, who used the airstrips were used to conduct bombing raids on the ethnic South Sudanese; Talisman considered expanding its oil-exploration area into South Sudan despite knowing the government would kill the local inhabitants to give Talisman the land; Talisman paid royalties to the Sudanese government, knowing the money would go to the continuation of the ethnic genocide8 perpetrated by the government against the South Sudanese people; and, the conglomerate provided fuel to Sudanese government military aircraft taking off on bombing missions in pursuit of its genocidal aims. Talisman, 582 F.3d at 262. Nevertheless, the Second Circuit held that plaintiffs (Southern Sudanese victims of the government's attacks) had not shown Talisman had aided and abetted the Sudanese government's genocidal acts, because "[p]laintiffs d[id] not suggest in their briefs that Talisman was a partisan in regional, religious, or ethnic hostilities, or that Talisman acted with the purpose to assist persecution." Id. at 263. In distinguishing this case, the majority makes a point — Talisman was harmed by the government's genocidal conduct to the extent that it ultimately had to abandon its Sudanese venture, while Nestle continued its cocoa business.9 Doe, 766 F.3d at 1024. But the Second Circuit also noted that "if ATS liability could be established by knowledge of those abuses coupled only with such commercial activities as resource development, the statute would act as a vehicle for private parties to impose embargos or international sanctions through civil actions in United States courts." Talisman, 582 F.3d at 264.10

By contrast, defendants here are alleged to have been aware that slavery was occurring on the cocoa plantations, but not to have done anything to assist directly in the enslavement of plaintiffs. Indeed, the plaintiffs in this case do not even allege that defendants could not have procured similar prices from the Ivorian plantations absent their use of slave labor-by technological innovations or the exercise of monopsony power, for instance.11 By contrast, Talisman was required to acquiesce in the Sudanese government's misdeeds if it wanted to make a profit. It bears emphasis that Alcolac and Talisman undoubtedly knew that their actions were contributing to great evils: the use of poison gas in Alcolac's case, and genocide in Talisman's. Nonetheless, the Second and Fourth Circuit's decisions absolved these companies of ATS aiding and abetting liability, because plaintiffs' allegations did not make it plausible that defendants specifically intended Kurd or Southern Sudanese killings.

Thus, the panel majority's claim to have adopted the Second and Fourth Circuit's analysis is simply incorrect. It has not done so, and has thus created a circuit split on the proper mens rea element for aiding and abetting liability under customary international law.

Moreover, the majority is on the wrong side of the circuit split it creates. Sosa requires that the federal courts accept as proper bases of a claim for relief only those violations of customary international law that have "definite content and acceptance among civilized nations." Thus, if there is conflict as to the proper scope of ATS liability, the narrower reading should be chosen, as no consensus can be said to exist on the broader one. Sosa, 542 U.S. at 732, 124 S.Ct. 2739. As the majority opinion recognizes, "the Rome Statute rejects a knowledge standard and requires the heightened mens rea of purpose, suggesting that a knowledge standard lacks the universal acceptance that Sosa demands."12 Doe, 766 F.3d at 1024. The conflict between the Rome Statute's rejection of knowledge and the panel majority's effective acceptance of knowledge is sufficient to eliminate the required consensus. In its assessment of our sister circuits and its reading of Supreme Court precedent, therefore, the panel majority is well off the mark.

I turn next to the question of extraterritoriality — an important one in this case, since all the acts of enslavement and maintenance of slavery are alleged to have occurred outside United States borders. While this case was pending before the panel, the Supreme Court announced its decision in Kiobel v. Royal Dutch Petroleum, ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). The Supreme Court held in Kiobel that the presumption against extraterritoriality applies to claims brought under the ATS; as usual, that presumption is rebuttable.13 Id. at 1669. To be viable, ATS claims must "touch and concern the territory of the United States" with "sufficient force to displace the presumption against extraterritorial application." Id. (citing Morrison v. National Australia Bank, 561 U.S. 247, 264-273, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)).

The plaintiffs claim Kiobel's "touch and concern" language announces a new test to determine when the presumption against extraterritoriality is rebutted, while defendants argue Kiobel simply adopts the test announced in Morrison. Morrison's text adopted a "focus" test, whereby courts must ask whether the defendants engaged in the conduct that is the focus of the statute at issue. Morrison, 561 U.S. at 266-67, 130 S.Ct. 2869.14 The panel majority adopted plaintiffs' view and held that "Morrison may be informative precedent for discerning the content of the touch and concern standard, but the opinion in Kiobel II did not incorporate Morrison's focus test." Doe, 766 F.3d at 1028. Respectfully, the majority is quite wrong.

First, the Supreme Court's opinion in Kiobel counsels against the majority's analysis. As the Supreme Court's majority opinion states, though Morrison dealt with acts of Congress, "the principles underlying the [Morrison] canon of interpretation [which counsel against the Exchange Act's extraterritorial application] similarly constrain courts considering causes of action that may be brought under the ATS." Kiobel, 133 S.Ct. at 1664. Moreover, the Court's explanation of the "touch and concern" language is encompassed in one citation to Morrison. Id. at 1669.15 The meaning is clear: the Supreme Court stated that the Morrison presumption against extraterritorial application of American statutes is to be applied to ATS cases. And, since the presumptions are the same, it follows that the very same evidence is needed to rebut either presumption. Moreover, the Kiobel opinion cannot have imparted any additional meaning to the "touch and concern" test; the Kiobel majority did not apply the test or provide any further guideposts as to its possible meaning. Against this evidence, the panel majority points to the mere use of different language, as well as some language in the concurrences of Justices Kennedy and Alito in Kiobel, to claim a new but undefined test was created by the Court. Doe, 766 F.3d at 1028. This is too thin a reed on which to support such an expansive argument.

Second, the two circuits to consider this issue agree that Kiobel simply directs application of the Morrison test; the panel majority's contrary conclusion thus creates another circuit split. In Baloco v. Drummond Co., Inc., 767 F.3d 1229 (11th Cir. 2014), the Eleventh Circuit noted that "[t]he Court in Kiobel looked to Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), for a discussion of when claims that `touch and concern the territory of the United States' do so `with sufficient force to displace the presumption against extraterritorial application.'"16 Id. at 1236-37 (quoting Kiobel, 133 S.Ct. at 1669). Similarly, in Mastafa v. Chevron Corp., 770 F.3d 170, 182-86 (2d Cir.2014), the Second Circuit applied the Morrison "focus" test in a post-Kiobel ATS case to determine if the presumption against extraterritoriality had been rebutted.17

The panel majority's analysis thus puts our court on one side of yet another circuit split; yet again, the majority has taken the minority, incorrect side.18

Finally, I note that this case squarely presents the question whether ATS liability should extend to corporations.19 Our court's earlier affirmative answer to this question in the panel was vacated by the Supreme Court, making this a question of first impression in this circuit. Sarei v. Rio Tinto PLC, 671 F.3d 736, 748 (9th Cir.2011) (en banc), vacated by ___ U.S. ___, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013).20 The panel majority chose to "reaffirm the corporate liability analysis" of Sarei. Doe, 766 F.3d at 1021. Here again, the majority has erred.

The Sarei analysis, as the majority adopts it today, comes in three parts. First, the analysis of customary international law is norm-by-norm, as "there is no categorical rule of corporate immunity or liability" in ATS cases. Id. Second, corporate liability can be imposed in the absence of "international precedent enforcing legal norms against corporations."21 Id. Third, norms that are "`universal and absolute,' or applicable to `all actors,' can provide the basis for an ATS claim against a corporation." Id.

There are many problems with this approach. Our court was wrong enough in Sarei to join those circuits which held that corporate liability could exist under the ATS. But even amongst those circuits that erroneously conclude that corporate liability can exist under the ATS, the Sarei approach resuscitated by the panel majority distinguishes itself as particularly erroneous, in two ways.

First, the Court has explained that a norm cannot give rise to ATS liability unless it is "specific, universal, and obligatory." Sosa v. Alvarez-Machain, 542 U.S. 692, 733, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir.1994)). Well and good. In this case, the panel majority finds that the norm against slavery is sufficiently specific, universal, and obligatory to give rise to ATS liability. Doe, 766 F.3d at 1022. I agree. The majority then says that because of the "categorical nature of the prohibition on slavery and the moral imperative underlying that prohibition," corporations must be liable for aiding and abetting slavery. Doe, 766 F.3d at 1022. But this is circular reasoning: by the panel's reasoning, any norm "categorical" enough to give rise to an ATS claim based on customary international law necessarily gives rise to corporate liability for violation of that norm. And worse yet, the majority's reasoning contradicts the Supreme Court's teaching in Sosa that there must be a meaningful inquiry — not a mere labeling of norms as `categorical' — as to whether the particular international norm at issue, which is assumed to confer liability under the ATS generally, would allow for corporate liability in particular. Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739.

Second, the Sarei opinion rested its analysis on common sense inference about "congressional intent when the ATS was enacted." Sarei, 671 F.3d at 761. Because Congress could not have anticipated the "array of international institutions that impose liability on states and non-state actors alike in modern times," the Sarei panel refused to be bound "to find liability only where international fora have imposed liability." Id. But this approach is forestalled by Sosa's reminder that federal courts have "no congressional mandate to seek out and define new and debatable violations of the law of nations." Sosa, 542 U.S. at 728, 124 S.Ct. 2739. In light of the cautious mood expressed by Sosa, therefore, a desire to "get ahead" of international law cannot be followed.

In sum, the majority's error violates the Supreme Court's commands and opens our doors to an expansive vision of corporate liability.22

We do the law a disservice when we allow our sympathies, no matter how well-founded, to run our decisions afoul of the Supreme Court's unequivocal commands. Because this court has done such a disservice by refusing to take this case en banc, I respectfully dissent.