The Supreme Court appears ready to limit human rights lawsuits against companies

WASHINGTON – The Supreme Court, which imposed strict limits on federal court lawsuits for human rights abuses abroad, appeared to have dismissed an action on Tuesday accusing two U.S. companies of complicity in child slavery in Côte d’Ivoire’s cocoa farms.

The case was initiated by six Malian citizens who said they had been enslaved as children. They sued Nestlé USA and Cargill, saying the companies helped and benefited from the practice of forced child labor.

“The plaintiffs are former child slaves who have claimed damages from two U.S. companies that maintain a system of child slavery and forced labor in the Ivorian supply chain as part of a corporate policy to gain a competitive advantage in the U.S. market,” said Paul L. Hoffman, the plaintiffs ’attorney.

Neal K. Katyal, a lawyer for the companies, said they “hate child slavery” and did not participate in it.

“The plaintiffs allege something horrible: that in Mali, the locators sold them as children to a farm in Côte d’Ivoire, where the inspectors forced them to work,” Mr Katyal said. But he added, “the defendants are not the detectives, not the supervisors and not the economy.”

The plaintiffs sued under the Alien Tort Statute, a mysterious law of 1789 that allows federal district courts to “hear only civil lawsuits brought by a foreign person for civil damages that are governed by nation law or Committed in violation of the United States Treaty. “

The law was largely ignored until the 1980s, when federal courts began to apply it in international human rights cases. The Supreme Court’s 2004 ruling, Sosa v. Álvarez-Machain, left the door open for certain claims under the law, as long as they involved violations of international norms “accepted among civilized nations with normal content and accepted”.

Since then, the Supreme Court has narrowed the law in two ways, saying it does not apply where the conduct in question took place almost entirely abroad or where the defendant was a foreign company.

In 2013, in Kiobel v. Royal Dutch Petroleum, the court ruled that there was a general presumption against the extraterritorial application of U.S. law. He dismissed an action against a foreign company accused of supporting atrocities against Ogon villagers by Nigerian military and police forces.

Chief Justice John G. Roberts Jr., written for the majority, said even minimal contact with the United States would not be enough to overcome the presumption.

“Even if the claims affect and affect U.S. territory,” he wrote, “they must do so with sufficient force to displace the presumption of extraterritorial use. “

In 2018, in the case of Jesner v. Arab Bank, the court ruled in favor of a Jordanian-based bank accused of processing financial transactions for terrorist-linked groups through a branch in New York. The court ruled that foreign companies could not be sued under the 1789 Act, but left open the question of the status of domestic companies.

Tuesday, Nestlé USA v. Doe, 19–416. In case no, the companies sought to extend both restrictions. They said the 1789 Act did not allow litigation even when the defendants were allegedly behaving in the United States and asked the court to prohibit lawsuits against all foreign or domestic companies under the Act.

They seemed likely to succeed, but for narrower reasons. Judges within the ideological spectrum questioned whether the plaintiffs ’lawsuit had sufficiently tied the defendants to the abuses they had suffered.

“When I read your complaint,” Justice Stephen G. Breyer told Mr. Hoffman, “it seemed to me that your complaint was doing business with these people, in whole or in part.” They help pay for the farm. And that’s all. And they do it consciously.

Judge Samuel A. Alito Jr. even said the facts were exaggerated because in the first lawsuit filed in 2005, all they said was that the companies knew or should have known about the practice.

“After 15 years, is it too much to ask to claim explicitly that the defendants involved, the defendants before us here, specifically knew that forced child labor was being used on the farms or agricultural cooperatives with which they did business?” Mr. Hoffman asked. – Too many questions?

These questions suggested that the court could decide on companies without making a comprehensive statement on corporate immunity. Alito Justice said the companies ’broadest arguments“ lead to quite difficult results ”.

Suppose a company “secretly employs agents in Africa to kidnap children and enslave them in a plantation so that the company can buy cocoa, coffee or other agricultural produce at a reasonable price”.

“Would you say,” Judge Alito asked Katya, “that victims who could not get a cure in the court of the country where they were held are thrown out of court in the United States, where this company is headquartered and doing business?”

Mr Katyal said there was a way to hold such a company accountable. But he said the 1789 Act is not one of them.