Friday, September 5, 2014
Court Says Child Slavery Suit Against Nestle USA May Proceed
Panel Says Company May Be Liable if It Knew of Conditions Under Which Cocoa Was Being Produced
By KENNETH OFGANG, Staff Writer
U.S.-based companies that sell African-made chocolate can be sued for importing cocoa harvested by child slave laborers in the Ivory Coast, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Recent case law narrowing the scope of the Alien Tort Statute isn’t necessarily fatal to the plaintiffs’ claims, the court said, saying they can prevail if they prove that the defendants acted with the “purpose” of facilitating slavery or other violations of international law.
The plaintiffs, Senior Judge Dorothy W. Nelson wrote, can prevail if they prove that the companies—including agricultural giants Archer Daniels Midland and Cargill—were aware that they were selling the products of child slavery, but insisted on “finding the cheapest sources of cocoa” rather than requiring that workers be properly paid.
The plaintiffs in the case, identified as three former slave laborers, worked without pay for up to 14 hours a day, six days a week, were given scraps to eat, were beaten and whipped by their overseers, and were locked in small rooms at night, plaintiffs allege. The suit covered the years between 1994 and 2000, when the plaintiffs’ ages ranged from 12 to 20.
The Ivory Coast produces 70 percent of the world’s cocoa supply, and the companies named in the lawsuit dominate the Ivorian market. Rather than trying to end child slavery, Nelson noted, the U.S. chocolate industry successfully lobbied Congress in 2001 to defeat a bill that would have required all U.S. importers and manufacturers to certify that their products were “slave free.”
In Kiobel v. Royal Dutch Petroleum Co. (2013) 133 S. Ct. 1659, the Supreme Court ruled that Shell Oil could not be sued for aiding the Nigerian government’s violent suppression of protesters against oil development. The court held that the Alien Tort Statute—which provides that “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”—does not broadly grant extraterritorial jurisdiction to U.S. courts.
Nelson wrote yesterday, however, that Kiobel left a number of questions unanswered, including how courts are to determine whether claims “touch and concern” the United States. Corporations can still be sued if their conduct on U.S. soil contributes substantially to human rights violations in a foreign country, she said.
‘Revenues Before Welfare’
In the Ivory Coast cocoa workers’ case, she said, evidence that the companies “placed increased revenues before basic human welfare” could suffice, because “[t]he prohibition against slavery is universal….”
Judge Kim M. Wardlaw concurred.
Judge Johnnie Rawlinson, dissenting in part, said none of the complaint’s allegations could show that the defendants “acted with the purpose to aid and abet child slave labor.” She agreed that the plaintiffs may amend, but expressed doubt they can prevail.
The suit had been dismissed by U.S. District Judge Stephen V. Wilson in Los Angeles, who said the Alien Tort Statute did not apply to U.S. corporations’ alleged involvement in illegal activities abroad.
American companies that abet human rights violations “reap the profits here,” Catherine Sweetser, a lawyer for the plaintiffs, told the San Francisco Chronicle. “It’s important to be able to hold corporations accountable where they are.”
Lawyers for the companies were unavailable for comment.
The case is Doe v. Nestle USA Inc., 10-56739.
Copyright 2014, Metropolitan News Company