Advance of Cocoa-Slavery Case Divides 9th Circuit

(CN) - Eight Ninth Circuit judges accused their colleagues of "substitut[ing] sympathy for legal analysis," in a ruling permitting former child slaves to sue Nestle USA, and dissented from the full court's decision not to rehear the case.

Circuit Judge Carlos Bea wrote an 18-page dissent of the full court's decision not to rehear Doe v. Nestle en banc.

Bea was joined by Circuit Judges Diarmuid O'Scannlain, Ronald Gould, Richard Tallman, Jay Bybee, Consuelo Callahan, Milan Smith, and N. Randy Smith.

The plaintiffs, named as John Does in a 2009 first amended complaint filed against Nestle USA and others in Los Angeles, claim that as children they were forced to work on Ivorian cocoa plantations for up to 14 hours per day, six days a week, given only scraps of food to eat, and endured whippings and beatings.

Children who tried to escape were forced to drink urine or had their feet cut open, the plaintiffs say.

At issue is whether Nestle, a major cocoa purchaser, knew about and supported the conditions in the name of profit.

The amended majority opinion, written by Judge Dorothy Nelson, ruled that the violation of universal norms may be a basis for an Alien Tort Statute claim against a corporation.

"The prohibition against slavery is universal and may be asserted against the corporate defendants in this case," Nelson wrote. "Private, non-state actors were held liable at Nuremberg for slavery offenses. Moreover, the statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia are broadly phrased to condemn 'persons responsible' for enslavement of civilian populations. The prohibition against slavery applies to state actors and non-state actors alike, and there are no rules exempting acts of enslavement carried out on behalf of a corporation."

In his dissent, Bea said he sympathized with plaintiffs' plight, but "unfortunately, the panel majority here has substituted sympathy for legal analysis."

"I quite agree plaintiffs are deserving of sympathy," he continued. "But they do not bring this action against the slavers who kidnapped them, nor against the plantation owners who mistreated them. Instead the panel majority concludes that defendant corporations, who engaged in the Ivory Coast cocoa trade, did so with the purpose that plaintiffs be enslaved, hence aiding and abetting the slavers and plantation owners. By this metric, buyers of Soviet gold had the purpose of facilitating gulag prison slavery."

Bea said the ruling creates a circuit split with the Second and Fourth Circuits.

In Aziz v. Alcolac, the Fourth Circuit ruled that Alcolac, a company that makes chemicals used to produce lethal mustard gas could not be held liable when it knowingly sold the chemicals to a shell company designed to evade export restrictions.

The chemicals eventually reached Saddam Hussein's regime in Iraq, which used them to create mustard gas and kill thousands of Kurds.

"If selling chemicals with the knowledge that the chemicals will be used to create lethal chemical weapons does not constitute purpose that people be killed, how can purchasing cocoa with the knowledge that slave labor may have lowered its sale price constitute purpose that people be enslaved?" Bea asked.

And the Second Circuit in Presbyterian Church of Sudan v. Talisman Energy, Inc. ruled that a Canadian oil company could not be held liable for paying royalties to the Sudanese government, knowing the money would be used to perpetrate ethnic genocide against the South Sudanese people.

"It bears emphasis that Alcolac and Talisman undoubtedly knew that their actions were contributing to great evils: the use of poison gas in Alcolac's case, and genocide in Talisman's," Bea wrote. "Nonetheless, the Second and Fourth Circuit's decisions absolved these companies of Alien Tort Statute aiding and abetting liability, because plaintiffs' allegations did not make it plausible that defendants specifically intended Kurd or Southern Sudanese killings."

The Ninth Circuit panel also misinterpreted the Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum, which barred Alien Tort Statute torture claims against Shell Petroleum, according to the dissenting judges.

"We do the law a disservice when we allow our sympathies, no matter how well-founded, to run our decisions afoul of the Supreme Court's unequivocal commands. Because this court has done such a disservice by refusing to take this case en banc, I respectfully dissent," Bea concluded.

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