Cocoa Plantation Survivors Take On Candy Giants at High Court

Children play soccer in Mali’s Dogon region on December 29, 2007,. (Credit: Jelle Jansen/Flickr via Courthouse News)

WASHINGTON (CN) — Six Africans who say they were kidnapped as children, then beaten and starved as they toiled on cocoa plantations fought against the limits of corporate liability Tuesday at the Supreme Court. 

Hanging over the dispute is the Alien Tort Statute, a piece of 18th century legislation that allows foreign individuals to sue in domestic court when the alleged crime is deemed a major violation of international law or treaty.

In the consolidated cases Nestle USA v. Doe I and Cargill Inc. v. Doe I, a group of Mali citizens allege that Nestle USA and Cargill met that standard by aiding and abetting vast human rights abuses unfolding in the cocoa industry from which they profited.

Enslaved as children in the 1990s, the plaintiffs contend that their captors made them work 14 hours a day, six days a week, from sunup to sundown. In addition to being kept starved, the captives were purportedly beaten and whipped with tree branches, as well as locked in shacks overnight. Escape attempts would be met with torture. The pleadings describe one child who was forced to drink urine as punishment, and how the captives tied another to a tree, cut the child’s feet open and then rubbed chili pepper into the wounds. 

Representing Nestle and Cargill on Tuesday, Neal Katyal was emphatic that, while neither company supports forced labor, the case before the justices was not one on the merits of child slavery or corporate impunity. 

All that is at issue, the Hogan Lovells firm partner argued, is the language of the statute and the territory to which it applies.

“The Alien Tort Statute’s focus is the injury or principle wrongdoing from a tort,” Katyal said. “Here, that occurred halfway across the globe, and there is no specific and universal law for corporate liability that applies to a domestic corporation.”

Justice Clarence Thomas asked if a universal norm might exist that defines aiding and abetting liability.

Katyal said there was not and even if the court were to reach that question, the results would likely be too “amorphous” or leave room for “extremely broad” interpretations on corporate liability at the detriment of diplomacy and the economy. 

Though slavery is universally rejected in treaties and conventions the world over, Katyal insisted that the plaintiffs case still does not fit the criteria of the Alien Tort Statute.

“The norm is not child slavery but aiding and abetting child slavery,” he said. “They have failed their own test.”

But this hairsplitting drew sharp questioning from the bench. Justice Stephen Breyer was unsure why any corporation, domestic or not, should be exempt from lawsuits on such thin criteria.

“We’re not seeking corporate impunity, we’re just saying you have to go after the individual unless Congress makes a different choice,” Katyal said.

Justice Samuel Alito described Katyal’s arguments as “pretty hard to take” and offered a hypothetical.

“Suppose a U.S. corporation makes a big show of supporting every cause du jour but surreptitiously hires agents in Africa to kidnap children and keep in bondage on a plantation so the corporation can buy cocoa or coffee or some other agricultural product at bargain prices,” Alito said. “You might say the victims couldn’t possibly get any recovery in the courts of the country where they have been held, so why should their case be thrown out of court in the U.S. where this corporation is headquartered to do business?”

Calling that scenario “far removed” from Tuesday’s case, Katyal said that corporate liability remains ill-defined even in that hypothetical. This is especially true because other mechanisms already exist to prevent abuse like foreign laws and criminal sanctions, he argued. But beyond that, where there is doubt on how liability is determined, Katyal contended it was Congress’ duty to sort that out not the court.

Justice Elena Kagan later issued a challenge: Would a former child slave be able to bring a lawsuit against a slaveholder under the statute? Further, what if it wasn’t just one slaveholder being sued, but 10. Would that lawsuit be valid under the statute? 

“If they’ve met the requirements under the law, sure,” Katyal said.

Kagan responded: “So if you can bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can’t you bring a suit against the corporation?”

“Because the corporations require an individual form of liability under specific norms and under international law which doesn’t exist here,” Katyal said.

“What sense does this make? You have a suit against 10 slaveholders,” Kagan pressed. “Ten slaveholders decided to form a corporation specifically to remove liability from themselves and now you’re saying you can’t sue the corporation?”

“When you go after individuals,” Katyal replied, “you often go after the true wrongdoers. Once up to the corporate forum, you get bogged with questions of mens rea and collective enterprise.”

Representing the ex-Mali captives, Schonbrun Seplow attorney Paul Hoffman argued the statute provides the right workaround to deliver justice for foreigners who find themselves entangled in a net of international exploitation. 

Hoffman argued his clients’ case was little different from other transnational litigation. Discovery was a breeze, and not even the Ivory Coast objected to the lawsuit when given the chance. 

“Congress already decided that forced labor and slavery, generally, in supply chains is something for which damage remedies are appropriate,” Hoffman added.

Their issue, he argued, was that Nestle and Cargill set up supply chains where they knew cocoa beans were being cultivated by child slave labor.

“They know that’s where cheap beans come from; they have used things like financing and payment,” Hoffman trailed off as his telephone connection wavered.

To Justice Stephen Breyer, the description sounded like that of a typical business.

“A business that does business blinking their eyes or open eyes with farmers and others throughout the world who use child labor,” Breyer said.

Hoffman pushed ahead, telling the court: “In terms of international principles of aiding and abetting… these corporate defendants have crossed the line from merely doing business to facilitating the system.”

As has been the case for months during the Covid-19 pandemic, Tuesday’s hearing was held remotely. Hoffman’s firm is based in Hermosa Beach, Calif.

According to the Bureau of International Labor Affairs, nearly 60% of the world’s cocoa is produced in Ivory Coast and nearby Ghana, and estimates from 2018 have pegged about 1.56 million children engaged in “hazardous work” in that industry.

A decade ago, the Child Labor Cocoa Coordinating Group was formed to root out abusive practices in the global cocoa supply chain. With congressional, federal, international and corporate cooperation, a declaration was signed by a slew of chocolate manufacturers — including Nestle and Cargill — to implement protocols eliminating “the worst forms of child labor.”

The U.S. Chamber of Commerce, the National Association of Manufacturers, the Coca-Cola Company and Chevron Corporation, among others, have filed briefs in support of Nestle and Cargill arguing liability challenges like these burden development in burgeoning nations and harm reputation globally.

Agnieszka Fryszman, head of the human rights practice and partner at the Washington, D.C.-based firm Cohen Milstein said in an email Tuesday that it should not be surprising that the justices appeared to agree that U.S. companies “who aid and abet child slavery should be held to account in the courts.”

“Past international human rights cases have foundered at the Supreme Court because of concerns about foreign policy impact or about stepping on Congress’ toes, but here the Congress has already taken steps to fight child labor in global supply chains and made clear that our foreign policy goals include stamping out child slavery wherever it occurs,” Fryszman said.

Nestle and Cargill’s appeal is expected to be decided next year.

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