A divided appeals panel has ruled California-based tech company Cisco, which is accused of helping China's ruling Communists crack down on a religious group, can be sued for its alleged involvement in that persecution. \
But a dissenting judge warned such a suit could imperil already tense relations between China and the United States.
"The foreign policy consequences that will result from this suit could be very significant," cautioned Judge Morgan Christen in his dissent.
The recent decision was penned by Judge Marsha Berzon, with concurrence from Judge A. Wallace Tashima, of the U.S. Court of Appeals for the Ninth Circuit. Judge Morgan Christen partially dissented. The decision favored more than one dozen Chinese nationals, who are practitioners of the Falun Gong religion, in their action against digital technology company Cisco Systems and Cisco executives John Chambers and Fredy Cheung.
Cisco is headquartered in San Jose.
Plaintiffs are Ivy He, Charles Lee, Liu Guifu, Weiyu Wang and nine others anonymously identified as either Doe or Roe. All are Chinese citizens, except for one who is American. They filed their putative class action suit in 2011 in U.S. District Court for the Northern District of California.
Plaintiffs' creed of Falun Gong originated in the early 1990s, preaching compassion, tolerance and nonviolence. According to court papers, the Chinese Communist Party and Chinese government officials have worked to suppress the religion. In doing so, the Communists allegedly coordinated with Cisco to use Cisco products to detect Falun Gong practitioners through their online and other activities, and assemble databases on them. The end goal was to arrest and then torture the adherents into converting to Communist beliefs, plaintiffs alleged.
The U.S. government and international human rights groups have documented the persecution of the Falun Gong, with the New York Times reporting in 2009 at least 2,000 of its adherents have been murdered.
Plaintiffs cited the Alien Tort Statute in suing Cisco on grounds the company allegedly violated international law by aiding and abetting crimes against humanity.
In 2014, Judge Edward Davila dismissed the case, finding Cisco's alleged acts did not sufficiently touch the United States and the suit did not rise to the level of warranting American judicial incursion into China's power over its citizens. Proceedings had been held up since, while the Ninth Circuit Court of Appeals awaited rulings in two relevant U.S. Supreme Court cases.
On appeal, Judge Berzon pointed out neither China nor any U.S. executive branch agency has objected to the suit, so she did not fear the litigation will disturb relations between the two nations.
With that issue out of the way, Berzon determined plaintiffs made a plausible case Cisco was allegedly an accomplice of Chinese forces bent on snuffing out Falun Gong.
"Cisco’s technological products and assistance greatly enhanced the capacity of Party and Chinese security officers to coordinate their monitoring and forced conversion — torture — of Falun Gong practitioners, and so substantially assisted the perpetration of alleged human rights abuses," Berzon said.
Berzon continued: "We conclude that Plaintiffs have plausibly alleged that Cisco provided assistance with substantial effect on Chinese authorities’ violations of international law."
Berzon pointed out Cisco went beyond allegedly furnishing assistance, but also seemed to buy into Chinese Communism's view of Falun Gong. According to Berzon, a company training session characterized Falun Gong followers as "viruses" and a "pestilence." Berzon added that one Cisco shareholder divested from the corporation because of human rights concerns.
In dissent, Judge Christen did not weigh in on the question of whether Cisco abetted the oppression of Falun Gong, but rather found the suit itself worrisome.
"Federal courts were not designed to play a leading role in our nation’s international affairs. We are ill-equipped to serve as instruments of foreign policy," Christen wrote.
Christen further noted the suit's continuation "could have serious ramifications for Sino-American relations, fraught as they already are."
Plaintiffs has been represented by Paul L. Hoffman, Catherine Sweetser and John C. Washington, of Schonbrun Seplow Harris & Hoffman, of Hermosa Beach, as well as by Terri E. Marsh, of the Human Rights Law Foundation in Washington, D.C.
Cisco has been defended by Kathleen M. Sullivanj Isaac Nesser and Todd S. Anten, of Quinn Emanuel Urquhart & Sullivan, New York City.
Friend-of-the-court arguments in support of plaintiffs were filed by David J. Scheffer, former U.S. ambassador-at-large for war crimes issues, as well as by EarthRights International and the Center for Constitutional Rights.
Arguments in favor of plaintiffs were also lodged by Electronic Frontier Foundation, Article 19, and Privacy International.