Jackson H. Day
Columbia, Maryland
December 10, 1998
Arthur Leavitt, Chairman
U. S. Securities and Exchange Commission
450 Fifth Street, N. W.
Washington, D. C., 20549
Re: Proposed Mobil and Exxon Merger
Dear Chairman Leavitt:
Mobil and Exxon have announced plans to combine into one entity. As a stockholder in Exxon, I am looking forward to an opportunity to review the issues involved and to cast my vote one way or another.
I have recently become aware of the Alien Tort Claims Act of 1789, the subject of a recent article by Joseph D. Pizzurro and Nancy E. Delaney, "Litigation: New Peril for Companies Doing Business Overseas" in the New York Law Journal, November 24, 1997. This article highlights the ruling in Doe v. Unocal Corp, which held that U. S. corporations are liable to affected aliens for "violations of the law of nations or a treaty of the United States." In Doe v. Unocal, the violations of the law of nations consisted of a program of violence, torture, rape, forced relocation and forced labor against Burmese farmers living on the route of a planned pipeline. These human rights violations were undertaken by the Burmese government, which was acting on behalf of, and with the knowledge of, Unocal and Total. While the Burmese government enjoyed sovereign immunity for these actions, Unocal and Total did not.
I believe that Mobil may have a potential liability of considerable magnitude under the Alien Tort Claims Act, due to the many countries in which Mobil has pipelines and refineries and works closely with local governments, including local governments which are known human rights abusers, to protect its investment. In Nigeria, for instance, all oil companies are required to pay the salaries and expenses of a special armed and uniformed national police force tasked with guarding oil industry facilities. These are not company security guards but national security forces answerable to the dictatorship, and therefore, Mobil and other oil companies are deeply and structurally connected to the repressive apparatus of the state.
"A Proposal to Impose Sanctions on Nigeria," by Jennifer Davis, The Africa Fund, Presented to the Council on Foreign Relations, New York, January 30, 1998"
At a recent Mobil stockholders meeting there was a shareholder resolution pressing Mobil to review its investments in Nigeria in the light of continuing human rights violations there. The resolution requested taht that the board of directors review and develop
guidelines for company investments in countries where "there is a pattern of
ongoing and systematic violation of human rights; a government is
illegitimate; there is a call by human right advocates, pro-democracy
organisations or legitimately elected representatives for economic sanctions; and Mobil's long-term financial performance may be potentially threatened by international criticism,
economic sanctions and boycotts by consumers and local governments." The Mobil stockholder resolution noted that all of these factors are in place in Nigeria.
Mobil is in direct partnership with the state-owned Nigerian National
Petroleum Corporation and has made payments, including royalties, fees and
taxes, to the military government. The resolution further notes that the
UN's International Labour Organisation has found Nigeria in violation of
internationally-accepted labor standards and has demanded the release of persons held incommunicado without charge or trial. Nigerian Detainees: Mobil Mobilizes. It would therefore appear that Mobil is subject to a considerable liability under the Alien Tort Claims Act.
In order to permit me to cast my vote on an informed basis, I request that you direct Mobil to obtain and disseminate to all shareholders an independent assessment of the degree of potential liability which could apply to Mobil under the Alien Tort Claims Act, if persons injured by Mobil or by governments working with Mobil were to file actions under the ATCA for these human rights abuses.
Thank you very much.
Jackson H. Day
cc: Exxon
Mobil
Interfaith Center for Corporate Responsibility
ICEM
The SEC Response
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
January 12, 1999
Division of Corporation Finance
Dear Mr. Day:
The Chairman has forwarded your December 10, 1998, letter to this Division for its review and response. Your letter expresses concern that Mobil Corporation may be liable under the Alien Tort Claims Act for alleged human rights violations in Nigheria. You ask that the Commission direct Mobil to obtain and disseminate to shareholders an independent assessment of the degree of potential liability that it could face under the act if claims were brought against the company.
The Commission administers the Federal securities laws, which are intended to provide the investing public with full and fair disclosure of material information on which to base informed voting and investment decisions. These laws require, among other things, disclosure of material threatened or pending litigation, and disclosure of known trends or uncertainties that may have a material impact on the company's financial condition and results of operations. If you are aware of any proceedings involving Mobil or Exxon that may cause them to have liability under the act, feel free to bring that to our attention. The Commission does not, however, have authority to instruct a company to conduct spcific studies or to disseminate reports to shareholders apart from the reports and other information that are required by the Federal securities laws.
Thank you for taking the time to write regarding this matter.
Sincerely,
/s/
William E. Morley
Senior Associate Director
Return to Virtual Truth Commission: Mobil