Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe: The Twists and Turns of the Alien Tort Statute
Gerard C. and Bernice Latrobe Smith Professor of International Law and Counselor to the Dean, Yale Law School
Oona A. Hathaway[*]
For four decades now, the Alien Tort Statute (ATS) has been one of the most important tools for pursuing justice for human rights victims in the United States. The statute, enacted by the First Congress in 1789, states, “The district courts shall have 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.” Fewer than two dozen published opinions were issued in cases brought under the statute before 1980, when the U.S Court of Appeals for the Second Circuit awarded a ten-million-dollar judgment against former Paraguayan official Américo Norberto Peña-Irala in an ATS suit brought against him for his role in the kidnapping and torture of the son of a political dissident in Filártiga v. Pena-Irala. The decision ignited a new era in human rights advocacy, giving advocates a law that allowed them to sue in U.S. courts for human rights violations the world over.
Since then, the ATS has come before the U.S. Supreme Court four times. Beginning with its decision in Sosa v. Alvarez Machain (2004), through Kiobel v. Royal Dutch Petroleum (2013), and then Jesner v. Arab Bank, PLC (2018), the Court chipped away at the scope of the ATS. In each case, the death of the statute was prophesied, and in each case, the Court pulled back at the last moment, unwilling to deal the coup de grâce that would finally bring an end to the hopes of human rights victims seeking justice in U.S. courts.
The statute’s latest trip to the Supreme Court came in the October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, which were brought by former child slaves trafficked from Mali to Côte d’Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The decision, issued in June 2021 in the final weeks of the Term, never reached the issue. The Court held instead that the plaintiffs inappropriately sought to apply the ATS extraterritorially.
After providing some background on the cases, this essay will address three key issues that arose in the Court’s decision in the cases. First, it will consider the fight over Sosa’s legacy illuminated in an exchange between the opinion authored by Justice Clarence Thomas and the opinion authored by Justice Sonia Sotomayor. Second, it will examine the surprise win for the plaintiffs on the question of corporate liability. Third, it will examine the likely impact of the Court’s decision on extraterritorial application of the ATS. And, finally, it will argue that it is time for Congress to legislate to ensure accountability for human rights violations carried out by U.S. citizens and corporations even if carried out beyond the territory of the United States.
Child slavery has long plagued the cocoa sector in West Africa. A BBC documentary first aired in 2000 documented the abuses of the industry. In 2005, in an effort to stave off legislation, the Chocolate Manufacturers Association issued a voluntary Protocol (known as the “Harkin-Engel Protocol”) for the growing and processing of cocoa beans and their derivative products, that aimed to eliminate the “worst forms of child labor.” Human rights advocates denounced the commitments as insufficient, and on July 14, 2005, the International Labor Rights Fund filed a class action suit under the ATS on behalf of three former child slaves against American chocolate companies Nestlé, Cargill, and Archer Daniels Midland (ADM). The suit alleged that the companies had aided and abetted the trafficking of children, including the plaintiffs, from their home in Mali to the Ivory Coast. There they were put to work on Ivorian cocoa farms, where they were subject to forced labor, slavery, and torture. In depositions, the plaintiffs described being “beaten with whips and tree branches” and forced to work “twelve to fourteen hours per day, at least six days per week” without pay.
Fifteen years into the litigation, after a settlement between the plaintiffs and ADM removed that company from the suit, the Supreme Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. This was the same question the Court had promised to answer when it granted certiorari in Kiobel v. Royal Dutch Petroleum almost a decade earlier. Then, it had failed to reach the issue, deciding after ordering reargument on the extraterritorial application of the ATS that the situation at issue in the case did not sufficiently “touch and concern” the United States and thus was an inappropriate application of the statute to extraterritorial conduct. In Nestlé and Cargill, the majority opinion again failed to reach the issue on which the Court had granted certiorari. It again decided that the plaintiffs sought inappropriately to apply the ATS extraterritorially. While the decision was not as bad for either the individual plaintiffs or future ATS suits against corporate defendants as some had expected, commentators lamented that the decision could have broad implications for both the future of the ATS and for the extraterritoriality doctrine more broadly.
II. The Fight Over Sosa’s Legacy
When advocates of the ATS first opened the decision in Nestlé and Cargill and saw that Justice Thomas was the author of the majority opinion, their hearts undoubtedly sank. After all, Justice Thomas has consistently voted against plaintiffs in the ATS suits that have reached the Court, and he has voted in every case to restrict the statute’s scope. Perhaps, however, his strong views got the better of him, for even as he was assigned the majority opinion, he retained the majority only for Part I—which describes the facts and background of the case—and Part II—which spends just over two pages concluding that that respondents improperly sought extraterritorial application of the ATS. He lost the majority for Part III, retaining only two votes other than his own and provoking a powerful rebuke from an equal number of justices in a concurrence authored by Justice Sotomayor.
In Part III, Justice Thomas argues that the suit should fail not only because it is an improper extraterritorial application of the ATS, but also because “[w]e cannot create a cause of action that would let them sue petitioners.” Justice Thomas grounds his argument in a narrow reading of the Court’s opinion in Sosa. There, the Court determined that the ATS is a jurisdictional statute, but it nonetheless concluded that courts could exercise common-law authority to create private rights of action under the ATS. The Court outlined a two-part test for determining whether a claim is actionable: First, when considering ATS claims “based on the present-day law of nations,” a court must determine that the claim “rest[s] on a norm of international character accepted by the civilized world” that is defined with the same specificity as claims accepted at the time of the ATS’s inception. The international norm at issue must be “specific, universal, and obligatory.” Second, a court must determine whether recognizing the claim is a proper exercise of judicial discretion, looking to the “practical consequences of making that cause available to litigants in the federal courts.”
Justice Thomas argues that the Sosa Court only acknowledged three violations of international law recognized in 1789: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Since then, he notes, the Court has not created any new cause of action under the ATS. The allegations in the current case, aiding and abetting forced labor and child slavery, fall outside those three violations. Hence, he concludes, the case does not meet the first step of the Sosa test because the plaintiffs’ claims do not fit within the narrow set of international law violations for which there is a cause of action under the ATS. For good measure, he concludes that the case does not meet the second step of Sosa either, for it has foreign policy implications that counsel against creating a cause of action. Specifically, “the allegations here implicate a partnership (the Harkin-Engel Protocol and subsequent agreements) between the Department of Labor, petitioners, and the Government of Ivory Coast.”
Justice Sotomayor writes separately to express her disagreement with Part III of the opinion, which she notes “would overrule Sosa . . . in all but name.” She points out that “the domestic and international legal landscape has changed in the two centuries since Congress enacted the ATS.” Sosa had not limited claims under the ATS to the three historical torts it specifically mentioned. Rather, those law-of-nations violations provide a reference point. Sosa explained that “courts should require any claim based on the present-day law of nations to 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.” Justice Thomas’s reading, Justice Sotomayor explains, is accordingly much too narrow.
The same is true, Justice Sotomayor argues, of Justice Thomas’s interpretation of Sosa’s second step. Congress was concerned with avoiding democratic strife, yes, but the strife it feared was strife that could be “best avoided by providing a federal forum to redress those law-of-nations torts that, if not remedied, could bring international opprobrium upon the United States.” Hence, the Sosa Court concluded that the statute “is best read as having been enacted on the understanding that the common law would provide a cause of action” for widely recognized torts in violation of “the law of nations.” Justice Thomas’s extraordinarily narrow reading of the ATS, she explains, is not consistent with the First Congress’s legislative determination that “a remedy should be available under the ATS to foreign citizens who suffer ‘tort[s] . . . in violation of the law of nations.’” Indeed, she argues, Justice Thomas “misconceives the judicial task in asking whether courts may ‘create’ causes of action under the ATS.” Their task is more “modest”: “Courts must, based on their interpretation of international law, identify those norms that are so specific, universal, and obligatory that they give rise to a ‘tort’ for which Congress expects federal courts to entertain ‘causes’—or, in modern parlance, ‘civil action[s],’ 28 U.S.C. § 1350—for redress.” She concludes that because Justice Thomas applies “the wrong standard” at Sosa’s second step, he arrives at the wrong answer.
Perhaps what is most notable about this exchange is that there are three justices favoring each position, and three justices sitting it out. Justice Thomas is joined in Part III by just Justices Neil Gorsuch and Brett Kavanaugh. In his concurring opinion, joined in part by Justice Kavanaugh, Justice Gorsuch further elaborates, making clear that he would endorse overturning Sosa (decided before he and Justice Kavanaugh joined the Court): He acknowledges that the Sosa Court held that “the door is still ajar subject to vigilant doorkeeping.” But he would reverse course: “[T]he truth is this is a door Sosa should not have cracked.” On the other side of the debate, Justice Sotomayor is joined by Justice Stephen Breyer and Elena Kagan. Three justices, meanwhile, declined to join either side: In his dissenting opinion, Justice Samuel Alito expressly declines to reach the issues.  Chief Justice John Roberts and Justice Amy Coney Barrett, meanwhile, declined to join Part III of Justice Thomas’s opinion without explanation.
III. The Question of Corporate Liability
The Court granted certiorari to consider whether the ATS could be used to seek compensation from U.S. corporations. When the Court agreed to hear the case, many expected that it did so to finish the job it began in Jesner v. Arab Bank, PLC. There, a majority of the Court held that the ATS does not permit lawsuits against foreign corporations. While that decision formally addressed only the question of foreign corporate liability, language in the majority opinion indicated a clear reluctance to apply the ATS to corporations at all. Justice Anthony Kennedy, writing for the majority, stated that “Sosa is consistent with this Court’s general reluctance to extend judicially created private rights of action. . . . This caution extends to the question whether the courts should exercise the judicial authority to mandate a rule that imposes liability upon artificial entities like corporations.” He further explained that, “Whether corporate defendants should be subject to suit was ‘a question for Congress, not us, to decide.’” He concluded, “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”
It was something of a surprise, then, that although the Court granted certiorari in Nestlé and Cargill to address the question of domestic corporate liability under the ATS, the majority opinion authored by Justice Thomas dodged the issue, deciding instead on the grounds that the ATS did not extend to extraterritorial conduct. (More on that below.) Nonetheless five justices—a majority of the Court—expressed a view on the matter. And all five made clear that they would reject corporate immunity from liability under the ATS—a surprise win for ATS advocates.
Let’s begin with Justice Gorsuch. In something of an about-face, given that he joined the majority in Jesner, Justice Gorsuch sides squarely with the plaintiffs on the issue of corporate liability. In Part I of his opinion, in which he is joined by Justice Alito (who was also in the majority in Jesner), he explains: “Nothing in the ATS supplies corporations with special protections against suit.” The statute specifies who may sue (“aliens”), and the claims they can bring (torts in “violation of the law of nations or a treaty of the United States”) but it does not specify or otherwise limit who may be sued. There’s no reason to think, he notes, that the First Congress meant to exclude corporations. Generally speaking, “the law places corporations and individuals on equal footing when it comes to assigning rights and duties,” and that was true even before the ATS was adopted. That is also true in the specific context of the ATS: “Congress enacted the statute as part of a comprehensive effort to ensure judicial recourse for tortious conduct that otherwise could have provided foreign nations ‘with just cause for reprisals or war.’” Such violations could be committed not just by individuals but also by corporations. As Justice Gorsuch puts it, “If early Americans assaulted or abducted the French Ambassador, what difference would it have made if the culprits acted individually or corporately?” Either way, there would have been just cause for war against the United States, if the United States did not repair the damage. “All of which underscores,” Justice Gorsuch emphasizes, “the ATS has never distinguished between defendants.”
Justice Sotomayor, joined by Justices Breyer and Kagan, agrees. She addresses the issue only in a footnote but is nonetheless clear about her view. She begins by pointing out that Justice Thomas’s opinion does not answer “the question this Court granted certiorari to address, i.e., whether domestic corporations are immune from suit under the ATS.” For reasons she explained at length in her dissent in Jesner v. Arab Bank, PLC, she would answer the question “in the negative.” To foot stomp the point, she states, “So would four other Justices.” She then endorses Justice Gorsuch’s explanation that “there is no reason to insulate domestic corporations from liability for law-of-nations violations simply because they are legal rather than natural persons.”
Hence on the question on which the Court granted certiorari—the question of corporate liability under the ATS—five justices make clear their view that corporations can be held liable under the ATS, and the other four are silent on the issue. It’s a significant about-face for a Court that only three years earlier ruled against foreign corporate liability and cast serious doubt on corporate liability altogether.
IV. The Holding on Extraterritoriality
This brings us to the main holding of the case, one joined by eight of the nine members of the Court: The U.S Court of Appeals for the Ninth Circuit erred in allowing the case to proceed because “respondents improperly seek extraterritorial application of the ATS.”
In failing to address the question presented—the question of corporate liability under the ATS—and choosing instead to decide the case on the ground that the ATS does not extend extraterritorially, the majority opinion follows a playbook the Court first used in 2013 in Kiobel v. Royal Dutch Shell. In Kiobel, the Court had granted certiorari on the question of corporate liability and then ordered reargument on the question of extraterritoriality, the grounds on which it ultimately decided the case. In Nestlé, the Court did not order new briefing on extraterritoriality, because, unlike in Kiobel, the issue was briefed by the parties.
In Kiobel, the Court held that courts could not give extraterritorial reach to a cause of action judicially created under the ATS. The majority applied a presumption against extraterritoriality and concluded that it was not rebutted because “nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.” It found, moreover, that “the historical background against which the ATS was enacted” also did not overcome the presumption. Hence it concluded, “On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” This came to be known as the “touch and concern” test.
The decision in Kiobel slammed the door on “foreign cubed” cases—cases in which there was a foreign plaintiff suing a foreign defendant for acts committed on foreign soil. But there remained the possibility that it might leave the door open to “foreign squared” cases—cases in which the defendant is a U.S. national or the harm occurred on U.S. soil. Kiobel, after all, involved a foreign defendant as well as a foreign forum—making it more likely that “far from avoiding diplomatic strife, providing such a cause of action could have generated it.” Yet observers hoped that the Court might later find that the same concerns would not arise if the United States was holding a U.S. corporation responsible for its actions abroad.
The Nestlé Court dashed those hopes. Justice Thomas, writing for eight justices (only Justice Alito declined to join), did not apply the “touch and concern” test from Kiobel, but instead relied on an intervening decision, RJR Nabisco, Inc. v. European Community, in which the Court articulated a two-step framework. First, “we presume that a statute only applies domestically” and ask “‘whether the statute gives a clear, affirmative indication’ that rebuts this presumption.” Second, where the statute does not overcome the presumption against extraterritorially, “plaintiffs must establish that ‘the conduct relevant to the statute’s focus occurred in the United States.’” Here, Justice Thomas writes, the statute does not apply extraterritorially, so the question is whether the conduct meets the second step of RJR. Justice Thomas, joined by seven other justices, says no: “Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast.” The Ninth Circuit had allowed the case to proceed because plaintiffs—respondents here—pleaded that “every major operational decision by both companies is made in or approved in the U.S.” But “general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.” In Kiobel, the Court had held that it was not enough to simply allege “mere corporate presence.” Here, Justice Thomas writes, “Pleading general corporate activity is no better.” He elaborates, “generic allegations of this sort do not draw a sufficient connection between the cause of actions respondents seek—aiding and abetting forced labor overseas—and domestic conduct.” He concludes, “[t]o plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity.”
Now, what are we to make of this explanation? The entire discussion of extraterritoriality spans no more than two and half pages of the opinion. The many possible meanings of those two and a half pages may help explain why that part of Justice Thomas’s opinion garnered eight votes.
William Dodge, writing shortly after the Court decided Nestlé, observes that “the decision has potentially broad implications for ATS suits against individuals and for the extraterritorial application of federal statutes in other areas.” The language in RJR about “conduct relevant to the statute’s focus” was dictum. The Nestlé Court’s reliance on it, he notes, gives that dictum the stamp of a majority on a matter decisive to the outcome of the case. Dodge worries that this could have broad implications not just for ATS cases, but for extraterritoriality more generally. To begin with, cases against individual perpetrators for violations outside the United States will almost certainly fail the Nestlé test. The Filártiga case, for example, might have met the “touch and concern” test but “seems unlikely to satisfy Nestlé’s requirement of relevant conduct in the United States.”
Dodge is clearly right about cases in the Filártiga model. After all, few individuals plan their foreign law of nations violations in the United States. That loss, however, is dampened by the availability of the Torture Victim Protection Act, which provides federal courts with subject matter jurisdiction over claims against individuals for extraterritorial torture or extrajudicial killing, and the Trafficking Victims Protection Reauthorization Act, which provides jurisdiction over claims of extraterritorial trafficking and forced labor.
But what about corporate cases? It’s possible that the Court means exactly what it says—it’s not enough to assert “general corporate activity.” Instead, the pleadings should have done more to connect the dots between the human rights violations that took place in Ivory Coast and the corporate decisions made in the United States. An exchange in oral argument between respondents’ attorney Paul Hoffman and Justice Alito supports this view. Justice Alito asked questions that reflected skepticism that the complaint had made allegations sufficient to support aiding and abetting liability. The complaint, he pointed out, alleges the defendants “not only purchased cocoa from farms and/or farm cooperatives which they knew or should have known relied on forced child labor.” But “should have known” is “basically recklessness,” Justice Alito argued. In response, Hoffman pointed out that the Ninth Circuit had found the complaint satisfied both knowledge and purpose standards. That did not satisfy Justice Alito, who asked, “So, after 15 years, is it too much to ask that you allege specifically that the—the defendants involved—the defendants who are before us here specifically knew that forced child labor was being used on the farms or farm cooperatives with which they did business?”
Some or all of the justices (though, interestingly, not Justice Alito himself) may have come away from this exchange convinced that the pleadings were not sufficiently specific to establish that corporate conduct that supported aiding and abetting liability took place in the United States. If that is correct, then the impact of Nestlé might be less significant, at least for corporate cases. It would simply mean that plaintiffs must more specifically allege that the corporate conduct in the United States specifically aided and abetted the human rights violations abroad. Indeed, the respondents’ lawyers have already stated their intention to amend their complaint and continue to litigate the case under the ATS. As a press statement explains, “Plaintiffs maintain that virtually all specific decisions that established, maintained, supported, and preserved Nestlé and Cargill’s system of cocoa production that is dependent upon the cheap labor of child slaves were made at the company’s corporate offices in the United States.” This reading seems to be supported by the concurrence in this part of Justice Thomas’s opinion of Justices Sotomayor, Breyer, and Kagan. Indeed, Justice Breyer’s concurrence in Kiobel, which Justices Kagan and Sotomayor joined, endorsed the result in Kiobel but not the majority’s reasoning. There, Justice Breyer embraced a less constrained view of extraterritoriality. That he joined the majority opinion in Nestlé suggests that the narrower reading of the Nestlé ruling may be the more plausible one.
Moreover, it’s far from clear that the differences between Kiobel and RJR are so stark. The RJR Court itself attempted to reconcile the Kiobel decision, noting that it did not reach the “focus” step in Kiobel only because “‘all the relevant conduct regarding those violations ‘took place outside the United States.’” Moreover, Kiobel’s “touch and concern” test has already been devastating to ATS cases. An analysis of all published opinions issued in ATS suits after 2013 shows that over forty percent of those that failed cited Kiobel’s “touch and concern” test as a reason the case could not proceed. This far overshadowed every other reason given by courts for those years—including immunity bars, failure to establish an international law violation, political question doctrine, and aiding and abetting. Whether Nestlé’s endorsement of RJR makes matters worse or not, the situation was already quite dire indeed.
V. Time for Congress to Act
The ATS has long been a statute of last resort for people seeking justice for human rights violations. Even before Nestlé and Cargill, access to U.S. courts for such claims had already declined as a result of the Court’s earlier ATS decisions, especially Kiobel, and other decisions that restricted access to U.S. courts for human rights violations committed abroad. These decisions already caused ATS suits to tumble from a high of forty published decisions in 2009 to four in 2020, the lowest number since 1995. Nestlé and Cargill might serve as the final blow.
It is time for Congress to step in, as it did in 1991 in enacting the Torture Victim Protection Act and in 2000 in enacting the Trafficking Victims Protection Act, to ensure basic protections for victims of human rights. There are a number of options that Congress could consider.
A narrow, simple, and straightforward fix would be to amend the ATS to expressly provide for extraterritorial reach. Congress could use the language it enacted in the 2008 amendment of the Trafficking Victims Protection Reauthorization Act (the “TVPRA”). The amendment reads, “In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under [the Act’s provisions]” if an offender is either a U.S. national, resident alien, or located in the United States regardless of nationality. Indeed, the amendment could be included in the renewal of the TVPRA, which is expected to proceed in fall 2022. Such legislative action would overrule the limitations placed on the ATS in Kiobel and reaffirmed in Nestlé. Courts have uniformly upheld the extraterritorial application of the TVPRA for cases involving corporate defendants as well as individuals, in accordance with the clear language of the statute. As the District Court for the Central District of California explained in Ratha v. Phatthana Seafood Co., Ltd., “Section1596 use[s] the term ‘person’ which, like ‘offender,’ indisputably applies to both corporate and natural persons.” It therefore agreed with “the overwhelming majority of courts and concludes that Section 1596 of the TVPRA applies to corporations.”
Congress could also amend the TVPA to expand the international law violations covered under that Act. The TVPA, at present, gives rights to U.S. citizens and non-citizens to bring claims against natural persons for torture and extrajudicial killing committed in foreign countries. That could be amended to include liability for the crime of genocide, slavery, war crimes, and crimes against humanity. This would not be a complete replacement for the ATS, however. TVPA claims may only be brought against natural persons acting under actual or apparent authority of a foreign nation. Hence all private conduct—including corporate conduct—would be free from liability.
While the safest bet with Congress is that it will not act to correct errors made by the courts, this might prove a rare exception. The Nestlé and Cargill decisions threaten to leave the courts unable to reach human-rights violations carried out by domestic corporations outside the United States. This conflicts with a growing trend around the world in which states are increasingly taking to hold their domestic corporations accountable for the harms they do abroad. It’s time for the United States to join them.
[*] Gerard C. and Bernice Latrobe Smith Professor of International Law and Counselor to the Dean, Yale Law School.
 28 U.S.C. § 1350.
 Filártiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980). The case was the twenty-fourth brought under the statute to result in a published opinion—and the first one that was successful. This is calculated from the ATS Database, described infra note 80.
 Sosa v. Alvarez Machain, 542 U.S. 692 (2004).
 Kiobel v. Royal Dutch Petroleum, 569 U.S. 108 (2013). As explained in more detail below, the case was argued before the Court twice. See infra notes 12–13 and accompanying text.
 Jesner v. Arab Bank, PLC 28 S. Ct. 1386 (2018).
 The authors of this article co-authored an amicus brief in the case in support of Respondents. Brief of Yale Law School Center for Global Legal Challenges as Amicus Curiae in Support of Respondents, Nestlé USA, Inc. v. Doe, Cargill Inc. v. Doe, 141 S. Ct. 1931 (2021) (No. 19‒416 & 19‒453).
 Nestlé, 141 S. Ct. at 1931.
 Liz Blunt, The Bitter Taste of Slavery, BBC News (Sept. 28, 2000).
 Chocolate Mfr. Assoc. Protocol for the Growing and Processing of Cocoa Beans and Their Derivative Products in a Manner That Complies with ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (2000). The Protocol was called the “Harkin-Engel Protocol” after Congressman Eliot Engel (D-NY) and Senator Tom Harkin (D-IA), who had been working on legislation to develop a “no child slavery” label for chocolate products sold in the U.S. and who agreed to drop the legislative reform and replace it with the voluntary protocol. Tiaji Salaam-Blyther et al., Cong. Research Serv., RL 32990, Child Labor in West African Cocoa Production: Issues and U.S. Policy 1 (2005).
 Doe v. Nestlé, S.A., 748 F. Supp. 2d 1057, 1063 (C.D. Cal. 2010). The plaintiffs also alleged violations of the Torture Victim Protection Act (“TVPA”) and California state law claims, with human rights group Global Exchange joining as an additional plaintiff only on the state law claims. Id.; see also Lise Colyer, Class Action Against Chocolate Giants Could Win Damages For 50,000 Child Slaves, Quota (Mar. 4, 2021).
 Brief in Opposition on Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit at 3, Nestlé, 141 S. Ct. 1931 (Nos. 19‒416 & 19‒453).
 Nestlé, 141 S. Ct. at 1936.
 See, e.g., William S. Dodge, The Surprisingly Broad Implications of Nestlé USA., Inc. v. Doe for Human Rights Litigation and Extraterritoriality, Just Security (June 18, 2021).
 Nestlé, 141 S. Ct. 1937 (plurality opinion).
 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
 Id. at 732 (citing In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)).
 Id. at 732–33.
 Nestlé, 141 S. Ct. at 1937 (plurality opinion) (quoting Sosa, 542 U.S. at 724).
 Id. at 1939.
 Id. at 1944 (Sotomayor, J., concurring in part and concurring in the judgment).
 Id. at 1945 (quoting Sosa, 542 U.S. at 725).
 Id. at 1946 (quoting Sosa, 542 U.S. at 719).
 Id. (quoting 28 U.S.C. § 1350).
 Id. at 1947.
 Id. at 1943 (Gorsuch, J., concurring) (internal quotation marks omitted) (quoting Sosa, 542 U.S. at 729).
 Id. at 1951 (Alito, J., dissenting) (“To be sure, Part III of Justice Thomas’s opinion and Part II of Justice Gorsuch’s opinion make strong arguments that federal courts should never recognize new claims under the ATS. But this issue was not raised by petitioners’ counsel, and I would not reach it here.”). His reluctance is a bit of a surprise given that he called Sosa into question in Jesner: “For the reasons articulated by Justice Scalia in Sosa and by Justice Gorsuch today, I am not certain that Sosa was correctly decided.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1409 (2018) (Alito, J., concurring in part and concurring in the judgment).
 Jesner, 138 S. Ct. at 1386.
 Id. at 1402 (Justice Kennedy wrote the opinion for the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch).
 Id. at 1403 (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)).
 Justice Gorsuch also wrote separately in Jesner, primarily to express the view that the Court should not create new causes of action under the ATS. Id. at 1412 (Gorsuch, J., concurring in part and concurring in the judgment).
 Nestlé USA, Inc. v. Doe, 141 S. Ct. 1831, 1941 (2021) (Gorsuch, J., concurring).
 Id. (quoting Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445, 476–77 (2011)).
 Id. at 1942.
 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1419 (2018) (Sotomayor, J., dissenting).
 Nestlé, 141 S. Ct. at 148 n.4 (Sotomayor, J., concurring in part and concurring in the judgment) (Justice Sotomayor, joined by Justice Breyer and Justice Kagan, states that she and “four other Justices” would reject corporate immunity).
 In addition to joining Justice Gorsuch on the relevant portion of his concurring opinion, Justice Alito separately writes to say, “I would hold that if a particular claim may be brought under the ATS against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation.” Id. at 1950.
 Id. at 1936.
 Kiobel v. Royal Dutch Petroleum Co, 569 U.S. 108 (2013).
 Id. at 108.
 Brief of Respondents at 31, 34, Nestlé, 141 S. Ct. 1931 (No. 19‒453); Reply Brief for Petitioner Cargill, Inc. at 3, Nestlé, 141 S. Ct. 1931 (Nos. 19‒416 & 19‒453); Reply Brief for Petitioner Nestlé USA, Inc. at 3, Nestlé, 141 S. Ct. 1931 (Nos. 19‒416 & 19‒453).
 Kiobel, 569 U.S. at 108.
 Id. at 118.
 Id. at 109.
 Id. at 124–25.
 See, e.g., Rodger Alford, Kiobel Inst-Symposium: Interpreting “Touch and Concern,” Opinion Juris (Apr. 13, 2019).
 Oona Hathaway, Kiobel Commentary: The Door Remains Open to “Foreign Squared” Cases, SCOTUSblog. (Apr. 18, 2013).
 Kiobel, 569 U.S. at 124.
 RJR Nabisco, Inc. v. European Cmty., 579 U. S. 325, 337 (2016).
 Nestlé U.S.A., Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (quoting RJR Nabisco, 579 U. S. at 337).
 Id. (quoting RJR Nabisco, Inc., 136 S. Ct. at 2090).
 Id. at 1937.
 Id. (citation omitted).
 Id. at 1936–37.
 Dodge, supra note 13.
 Torture Victim Protection Act, Pub. L. No. 102–256, 106 Stat. 73 (March 3, 1992) (codified as amended at 28 U.S.C. § 1350 note).
 18 U.S.C. § 1596 (providing jurisdiction over both individuals and corporations).
 Transcript of Oral Argument at 62, Nestlé, U.S.A., Inc. v. Doe, 141 S. Ct. 1931 (2021).
 Id. at 64.
 Press Release, Int’l Rights Advocates, U.S. Supreme Court Dismisses Claims Against Nestlé and Cargill and Remands to Trial Court, (June 17, 2021).
 See generally Nestlé, 141 S. Ct. at 1931, 1936–37.
 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 127 (2013) (Breyer, J., concurring in the judgment).
 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101 (2016) (quoting Id. at 126 (Alito, J., concurring)).
 Calculated from Oona A. Hathaway et al., ATS Database (unpublished database) (September 1, 2021).
 Particularly Daimler AG v. Bauman, 571 U.S. 117 (2014), which held that a court cannot exercise jurisdiction over a foreign company based on the fact that a subsidiary of the company acts on its behalf in the forum state.
 Oona A. Hathaway, Chris Ewell & Ellen Nohle, Has the Alien Tort Statute Made a Difference? A Historical, Normative, and Empirical Assessment, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 15–16).
 Torture Victim Protection Act, Pub. L. No. 102–256, 106 Stat. 73 (March 3, 1992) (codified at 28 U.S.C. § 1350 note § 2(a), et seq.); Trafficking Victims Protection Act, P.L. No. 106–386, 114 Stat. 1466 (Oct. 28, 2000) (codified as amended at 22 U.S.C. § 7101–14). The law was first enacted in 2000 and has been reauthorized repeatedly since then. See generally 22 U.S.C. § 7101 notes.
 In addition to these direct ATS fixes and substitutes, there are a range of other possible reforms discussed in Hathaway, Ewell & Nohle, supra note 82 (manuscript at 61–78). In addition, there has been a proposal for a Crimes Against Humanity Act under discussing since at least 2010. That proposed Act provides for criminal liability for crimes against humanity and would amend the TVPA to expand its reach. See, e.g., Beth Van Schaack, Crimes Against Humanity: Repairing Title 18’s Blind Spots in Arcs of Global Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman & Diane Marie Amann, eds. 2017).
 18 U.S.C. § 1596(a)(1)‒(2). See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110‒457, 122 Stat. 5067, 5071, § 223 (Dec. 23, 2008), amended by Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114‒22, 129 Stat. 247, 247, § 120 (May 29, 2015).
 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115–17 (2013).
 Nestlé U.S.A., Inc. v. Doe, 141 S. Ct. 1931, 1936–37 (2021). A similar approach would be to tie subject matter jurisdiction to personal jurisdiction, providing: “(b) Extraterritorial Jurisdiction.—In addition to any domestic or extraterritorial jurisdiction otherwise provided by law, the district courts of the United States have extraterritorial jurisdiction over any tort described in subsection (a) if a defendant is subject to personal jurisdiction in the United States.”
 See, e.g., Aguilera v. Aegis Commc’ns Grp., 72 F. Supp. 3d 975, 979 (W.D. Mo. 2014); Jean-Charles v. Perlitz, 937 F. Supp. 2d 276, 288–89 (D. Conn. 2013); Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674, 679, 684 (S.D. Tex. 2009).
 18 U.S.C. § 1596(a)(1)–(2).
 Ratha v. Phattana Seafood Co., Ltd., No. CV 16-4271-JFW, 2016 WL 11020222, at *6 (C.D. Cal. Nov. 9, 2016).
 Id. While courts have upheld the applicability of § 1596 to corporations in general, whether the requirement that “an alleged offender is present in the United States,” 18 U.S.C. § 1596(a)(2), necessitates that a foreign corporation be physically present in the United States rather than merely have minimum contacts with the United States in order for U.S. courts to exercise jurisdiction over their extraterritorial conduct has been a subject of contention. Two courts have held that the “present in the United States” language requires physical presence for the courts to exercise subject matter jurisdiction over the defendant. Adhikari v. Daoud & Partners, No. 09-cv-1237 2013 WL 4511354, at *9 (S.D. Tex.); Ratha, No. 16-4271-JFW, 2017 WL 8292922 at *4–7. Ratha has been appealed, but a decision has not been issued. Ratha, No. 16-4271-JFW, 2017 WL 8292922., appeal docketed, No. 18‒55041 (9th Cir. Dec. 3, 2018). One court has tied the extraterritoriality provision in § 1596 to personal jurisdiction. C.T. v. Red Roof Inns, Inc., No. 2:19-CV-5384, 2021 WL 602578, at *4 (S.D. Ohio 2021) (“Section 1596(a) allows foreign plaintiffs to bring suit for conduct occurring outside of the United States, so long as a court has personal jurisdiction over the defendants, as shown by “minimum contacts” with the United States.”).
 Mohamad v. Palestinian Authority, 566 U.S. 449 (2012) (holding that the TVPA applies exclusively to natural persons and does not impose liability against any organizational entity).
 There are other limitations to the TVPA that do not apply to the ATS: Those seeking redress under the TVPA must also exhaust all “‘adequate and available’ remedies in the country where the offense occurred.” 28 U.S.C. § 1350 note § 2(b). In addition, the TVPA requires foreign state action. Id. § 1350 note § 2(a).
 See Hathaway, Ewell & Nohle, supra note 82 (manuscript at 64–69) (describing new foreign case law on corporate accountability and the emerging effort in Europe to require corporations to exercise due diligence to ensure no human-rights violations take place in their supply chains).