Inside the 14-Year Long Legal Battle Between Nestlé and Six Former Forced Laborers

There are an estimated 21 million victims of forced labor globally, generating an approximated 150 billion dollars in illegal profits each year, according to the International Labour Organization (ILO). [1] The criminal practice’s astounding profit-generation is largely attributed to its ability to be conveniently hidden within the long and murky supply chains of major corporations: in that Nike sneaker, morning Starbucks coffee, or H&M sweater that was just such a deal. [2]

The practice is not only incentivized by its profit-generating capabilities, but also through the shameless absence of punishment: apart from consumer backlash, the consequences against forced labor have traditionally been light relative to the magnitude of the crime. Even with the increased presence of forced labor legislation following the United Nations' passage of a protocol on human trafficking in 2000, actually enforcing such legislation in court has proven to be a major obstacle.

These complications often concern jurisdiction; because forced labor cases frequently transverse national borders, it is often unclear which country (of those involved) has jurisdiction over the crime, thus stalling the progression of cases. These stalls are not only frustrating on a logistical level: their role in preventing action against forced labor allows yet another generation of abused and tortured laborers to grow. Analyzing weaknesses in the judicial process that stalls forced labor prosecution is an important step to take in ensuring justice for these workers, but will also show where the judicial system may be unable to help, showing the action that all stakeholders in the supply chain need to take on in order to fight this criminal practice– farmers, corporations, and consumers alike.

Nestle et. al v. Doe et. al is an emblematic case, in its astounding fourteenth year, which demonstrates the complications in enforcing forced labor legislation in the United States. It was initiated by a group of six former Malian child slaves in 2005 when they sued Nestlè USA and Cargill USA for their role in aiding and abetting forced labor in Ivorian cocoa fields. Its extensive prolongment is largely due to complications over US court jurisdiction: while the forced labor practices were allegedly corroborated by Nestlé USA, the forced labor itself did not take place on US soil. [3] The all-female group filed their suit under the Alien Tort Statute (ATS), which allows federal courts to hear lawsuits filed by non-US citizens regarding US-affiliated violations of international law under the statute that there is a domestic “focus,” or aspect, to the alleged crime. [4] This ‘domestic focus’ statute was the basis of Nestlé’s argument for the dismissal of the case. The company claimed that the focus was solely on the Cote D'Ivoire, where the principle offense took place, rather than also on the alleged aiding and abetting that took place on US soil. [5]

Nestlé originally succeeded in dismissing the case under these claims in the Central District Court of California, which agreed with Nestle USA's claim that there was no intent to commit any offense, thus shifting the focus completely to the actual forced labor (which did not occur on US soil). However, upon two decisions made by the US Supreme Court in 2013 on the jurisdiction of ATS, the U.S. Court of Appeals for the Ninth Circuit remanded the case back to the District Court.

The first of these Supreme Court decisions came in Kiobel v. Royal Dutch Petroleum Co (2013), where 12 Nigerian Nationals sued the British and Dutch-based Royal Dutch Shell for aiding state-sponsored torture and murder. [6] The Supreme Court dismissed the case under the ruling that in the case of international law violations, ATS only covered violations that occurred in the US or, for violations not occurring on US soil, cases that “touch and concern” the US with a “sufficient force.” [7] The second case, Morrison v. National Australian Bank (2013), was initiated by a group of citizens when they sued the National Australian Bank (NEB) for stock inflation through deals with the US-based group HomeSide. [8] After enduring substantial losses from the inflation, they sued the NEB and HomeSide for fraud under the Securities Act (1933). The Court ruled to dismiss the case, ruling that the actual transaction had to have taken place on US soil. This ruling was based on the interpretation that Congressional concern when enacting the Securities Act was on actual transactions (which were in the Australian stock market) rather than dealings behind such transactions. [9]

The Ninth Circuit used both of these cases to remand Nestle back to the lower court: it ordered that a focus test similar to what the Court performed in Morrison be performed on ATS– whether aiding and abetting was a part of Congressional concern when they passed ATS. It also issued the remand in reference to Kiobel, asking the defendants to show a “concern of sufficient force” to the United States, essentially meaning that the defendants were required to show the active involvement of Nestle USA in forced labor practices. [10]

Despite the remand, the District Court once again dismissed the case in 2017, ruling that the complaint did not ‘touch and concern’ the United States with sufficient force, again referring to the ‘domestic focus’ clause. [11] However, upon appeal, the Ninth Circuit recently reopened the case: in a more broad interpretation of ATS, the Court rejected the claim that only principle offenses fall under ATS. This ruling was in reference to Morrison, where the court considered aiding and abetting to have been a Congressional concern. The court further ruled that Nestlé not only actively engaged in activities on US soil that encouraged forced labor but also knowingly depended on these practices to ensure low cocoa prices, which the court ruled as a reasonable domestic “concern of sufficient force” with reference to Kiobel. [12]

Reopening the case has set the precedent for a more hardline stance on forced labor through the broader interpretation of ATS. Despite this, the substantially prolonged nature of the case has enabled US corporations to continue their indirect forced labor practices with the knowledge that there is little risk for punishment, given the lack of action in this case. More importantly, the length of the case has forced the torture, the trauma, and the abuse to remain fresh in the minds of the six Malinese plaintiffs. To put the case’s length into perspective, it is older than some of the girls were when they were first kidnapped and forced into labor.

No matter what decision is made or when it is made, this case and associated cases show the limits of judicial power in regulating forced labor: few forced laborers have the opportunity to raise a suit, let alone successfully sue in a timely fashion, emphasizing the roles that corporate, governmental, and civilian stakeholders in supply chains must take on in order to effectively take action against the criminal, inhumane practices of forced labor.

Sources:

[1] “21 million people are now victims of forced labour.” International Labour Organization. June 1, 2012. Accessed February 28, 2019. https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_181961/lang--en/index.htm

[2] Fortin, Jamie. “5 Companies That Still Use Slave Labor.” Odyssey. June 6, 2017. Accessed February 28, 2019.

https://www.theodysseyonline.com/5-companies-using-slave-labor

[3] “Nestlé U.S.A., Inc. v. Doe.” SCOTUSblog. January 11, 2016. Accessed February 28, 2019. https://www.scotusblog.com/case-files/cases/nestle-u-s-a-inc-v-doe/

[4] “The Alien Tort Statute.” The Center for Justice and Accountability. Accessed February 28, 2019.

https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/

[5] “On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.” SCOTUSblog. December 2015. Accessed February 28. 2019.

https://www.scotusblog.com/wp-content/uploads/2015/12/Nestle-Reply.pdf

[6] "Kiobel v. Royal Dutch Petroleum." Oyez. Accessed March 1, 2019. www.oyez.org/cases/2011/10-1491

[7] “Kiobel v. Royal Dutch Petroleum.” SCOTUSblog. June 13, 2013. Accessed March 1, 2019.

https://www.scotusblog.com/case-files/cases/kiobel-v-royal-dutch-petroleum/

[8] "Morrison v. National Australia Bank." Oyez. March 1, 2019. www.oyez.org/cases/2009/08-1191

[9] Morrison v. National Australian Bank (Supreme Court of the United States. June 24, 2013)       

https://www.supremecourt.gov/opinions/09pdf/08-1191.pdf

[10] Nestle et. al v. Doe et. al (9th Circuit. October 23, 2018)

https://www.chamberlitigation.com/sites/default/files/cases/files/18181818/Petition%20for%20Rehearing%20--%20Doe%20I%20v.%20Nestle%20USA%2C%20Inc.%20%28Ninth%20Circuit%29.pdf

[11] Bellinger, John. “Doe v. Nestle ATS Case Dismissed (Again).” Lawfare. March 16, 2017. Accessed February 28. 2019.

https://www.lawfareblog.com/doe-v-nestle-ats-case-dismissed-again

[12] Nestle et. al v. Doe et. al (9th Circuit. October 23, 2018) http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/23/17-55435.pdf