[HillRat]

(In reply to Icebraining (https://news.ycombinator.com/item?id=9030542))

I think the key here is whether the ATS requires a cause of action to arise in the US in order to enable a claim under ATS (any international-law specialists in the audience?). In the mid-1980s, IBM created a "sanctions-buster," ISM, that was its South African subsidiary under a different flag; activist shareholder efforts to stop sales to ISM in the 1980s were defeated. ISM, in turn, didn't sell directly to the Apartheid state (something that IBM's James C. Reilly used to defend the company's behavior in South Africa), but it did form a joint enterprise with Barlow Rand, which was a major munitions supplier to the South African state.

The problem is that all this was well-known at the time, and no actions were taken against IBM for what was effectively (if not legally, in a technical sense) an evasion of section 304 prohibition (and, perhaps -- not knowing what controls were in place at IBM -- also a more direct violation of 304(b)(1) end-user verification requirements). If the plaintiffs have to argue IBM's violation of US law in order to get to the ATS argument, this could be a very difficult path to take.