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.