The Supreme Court heard orally on Tuesday in two cases, Nestlé USA v Doe I and Cargill, Inc. v Doe I, asking whether there are lawsuits against American companies under the Alien Tort Statute that allow foreigners to bring lawsuits in US courts for serious violations of international law, may continue. The plaintiffs in the case are six former child slaves in Ivory Coast who claim that the defendants, both US food giants, facilitated human rights violations on the cocoa plantations where the young people worked. Although the Supreme Court has noted in the past that the types of claims that can be made under the ATS are relatively limited, after nearly 90 minutes of debate today, some judges did not seem to rule that US companies like Nestlé and Cargill can never be sued for the statute. At the same time, it appeared that the two companies could still make a tight profit on this case, as some judges looked skeptical that the plaintiffs’ allegations were enough to keep the case going.
The former child slaves are citizens of Mali. They claim that as children they were sold to cocoa plantations in Ivory Coast, where they were forced to work long hours without pay, and beaten if they didn’t work fast enough. They claim Nestlé and Cargill supported and facilitated this forced labor by buying their cocoa from plantations in Ivory Coast and providing assistance to others, even though they knew the plantations were practicing child slavery. The U.S. Court of Appeals for the 9th Circuit allowed the teens to advance the lawsuit.
Attorney Neal Katyal, who argued for Nestlé and Cargill, agreed that the plaintiffs’ allegations were “terrible”. He stressed, however, that the companies’ complaint was merely an “afterthought” claiming that the companies had made decisions in the US and knew something about child slavery in Ivory Coast. Katyal asked the judges to dismiss the case for two reasons: the ATS does not apply to US companies like Nestlé and Cargill; or the ATS does not apply if, as Katyal alleged, the conduct was the focus of the case outside of the United States.
Two and a half years ago, the Supreme Court ruled in the Jesner v Arab Bank case that foreign companies could not be sued under the ATS. Several judges on Tuesday appeared reluctant to expand this rule and also remove liability for US companies under the ATS. Chief Justice John Roberts, who is usually the first judge to ask questions in the format judges use to argue over the phone, noted early on that the Jesner ruling was based in part on concerns about the ramifications of allowing lawsuits against overseas on the external relations based company. But in this case, according to Roberts, no foreign country objects to a lawsuit against a US company in a US court. Why, Roberts asked, should the court be careful about international relations in such cases? What objection would overseas have to ensure that US companies comply with international law?
Katyal replied that the potential for friction still militates against the recognition of ATS claims for injuries abroad. In particular, the plaintiffs could make an “end run” for Jesner by suing the US subsidiary of a foreign company in a US court.
Judge Brett Kavanaugh had a similar question for Curtis Gannon, the US assistant attorney general, who argued on behalf of the federal government as a “friend of the court” in support of the companies. The Supreme Court has stated that the courts should give “serious weight” to the executive’s view of how a case will affect foreign policy. Does this case have an impact, asked Kavanaugh, or do you argue that the impact of the ATS is more general?
Gannon replied that the federal government’s argument was a more general argument.
Justice Sonia Sotomayor reiterated Roberts’ point of view. She told Gannon that it made sense for her not to hold foreign companies liable for their overseas conduct under the ATS. But she added she hadn’t seen the same conflict for US companies.
Other judges appeared to want to leave open the possibility that US companies could be held liable under the ATS. Justice Elena Kagan showered Katyal with a series of questions that culminated in her question of why, if a child slave could bring a lawsuit under the ATS against 10 individual slave owners, he could not also sue a society that the 10 slave owners had established to do evade liability. She noted that after the abolition of the transatlantic slave trade, there was also a long history of ships – and not individuals – carrying slaves being held liable, suggesting that there was a norm of corporations liable under international law close.
Judge Neil Gorsuch followed suit, telling Katyal that he had seen nothing in the text or purpose of the ATS that would force the court to work out a corporate exemption. In addition, Gorsuch added, we know that the ATS allowed the seizure of pirate ships. Why wouldn’t this result in corporate liability that did not exist at the time?
Kavanaugh was next. He told Katyal that while the ATS was once a “motor” for protecting human rights, the company’s position would only allow individuals to be sued for wrongdoing in the US. A “friend of the court” who supported the plaintiffs alleged that the rule the companies proposed would “exempt” the ATS, Kavanaugh said. Katyal called this claim “overheated rhetoric”.
Judge Stephen Breyer also appeared to express his sympathy for the idea that plaintiffs should be able to sue US companies under the ATS. He found that he had found 180 such lawsuits against companies. In a scenario where you cannot sue the person responsible for your injury because that person “moved to Lithuania”, Breyer asked why you should not be able to sue the company. “What’s new about it?” And is there another rule, asked Breyer, for other companies such as partnerships or limited liability companies?
Even if the judges were generally inclined to allow lawsuits against US companies, it was less clear whether the lawsuit would survive. Judges from both sides of the ideological spectrum were doubtful whether the plaintiffs’ allegations were specific or concrete enough to move the case forward. Justice Samuel Alito was the staunchest advocate of this position. He asked Paul Hoffman, who represented the plaintiffs, whether it was “asking too much” that, in the 15 years since the plaintiffs first filed the complaint, they specifically claimed that the companies knew – and not just “should have known” . – This forced child labor was used on the cocoa plantations they did business with. “This is an important point,” repeated Alito.
Sotomayor urged Hoffman to clarify the details of the plaintiffs’ allegations. It is not enough for companies to have supported and facilitated human rights abuses to refer to US companies’ decision-making. “You have to follow it with positive action,” Sotomayor said.
Breyer was concerned that the plaintiffs’ allegations were too broad. In his view, the allegations were limited to allegations that the companies supported and facilitated human rights abuses by doing business with the cocoa plantations. If that were enough to support a claim, he told Hoffman, and other nations followed suit, it would have “very, very significant effects.”
A third theme that ran through the argument was the suggestion that any expansion of the ATS beyond the narrow norms of international law it should cover – such as combating piracy and protecting the rights of ambassadors – should be by Congress rather than by the Congress should come courts. Roberts noted that Congress had passed a law to protect victims of human trafficking. Doesn’t that mean, he told Hoffman that Congress is addressing the same issues plaintiffs are asking the court to resolve and that it “is time for the court to get out of the unusual situation it is in, rather than just interpret , Law ”?
Gorsuch repeated this point a few minutes later. He complained to Hoffman that the plaintiffs are asking the court to derive a new plea under the ATS in support of and support for human rights abuses. But why should the Supreme Court do that, Gorsuch asked, when it has refused to create grounds for action elsewhere and Congress can do so?
Kavanaugh made the argument even clearer. In this case, he said to Hoffman, it is “really about the right role of the judiciary versus the right role of Congress here in drawing up the ATS”. And the role of the courts is limited, stressed Kavanaugh.
In his counter-argument on Tuesday, Katyal described the plaintiffs’ complaint as “thin and accusatory” and called on the judges to “oppose Congress”. When the argument ended a few minutes later, it seemed likely that Nestlé and Cargill would prevail, even if ultimately they could not achieve the sweeping victory they are seeking. A decision in this case is expected by summer.
This post was originally published on Howe on the Court.
Amy Howe, Argument Analysis: Judges Send Mixed Corporate Liability Messages for Allegedly Supporting Child Slavery Abroad.
SCOTUSblog (December 1, 2020, 5:46 pm), https://www.scotusblog.com/2020/12/argument-analysis-justices-send-mixed-messages-on-corporate-liability-for-allegedly-aiding – Child Slavery Abroad /