Nestlé & Cargill v. Doe: Introduction to a Symposium

[Editor’s Note: This article introduces a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, to be argued before the Supreme Court on Dec. 1. All subsequent articles in the series can be found here.]

The U.S. Supreme Court will hear arguments on Dec. 1 in the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which could redefine the limits of corporate liability under the Alien Tort Statute (ATS).

In anticipation of the oral argument, Just Security is pleased to host an online symposium dedicated to exploring legal and policy issues in the consolidated cases, brought against two major chocolate manufacturers for their alleged use of child slave labor in West Africa. (The litigation originally involved a third defendant, Archer Daniels Midland, who was voluntarily dismissed from the suit after reportedly settling with the plaintiffs). In the run up to the oral arguments we will feature posts by a number of stakeholders, many of whom filed “friends of the court” briefs (amici curiae). We have invited amici from all sides—on behalf of the Plaintiffs and the Defendants—to participate.

The ATS allows foreign nationals to bring civil suits against U.S. and foreign defendants for torts committed in violation of international law. This litigation marks the third in a series of recent Supreme Court cases probing whether corporations (as opposed to individuals) can be held liable under the ATS for human rights violations committed abroad.  In its 2013 decision in Kiobel v. Royal Dutch Petroleum Co., the Court affirmed the dismissal of claims against Royal Dutch Petroleum Company because the alleged conduct on which the case was based, which occurred in Nigeria, did not “touch and concern” the United States with sufficient force to displace the presumption against extraterritorial application of a U.S. statute. This resolution left the issue of corporate liability under the ATS unresolved.  In 2018, a fractured Court held in Jesner v. Arab Bank, PLC that it could not extend liability to foreign corporations under the ATS without congressional authorization, but the Court did not resolve the question of domestic corporate liability. Just Security hosted a similar symposium on Jesner when it was argued in 2017.

Nestlé brings the ATS within the Court’s aperture once again. Questions presented by the parties include:

(1) whether claims of aiding and abetting crimes committed abroad, alleged against a domestic corporation, can overcome the general presumption against extraterritoriality, and

(2) whether the Court can impose liability on domestic corporations under the ATS.

The Trump administration has also intervened in the case to make an additional argument, not raised by the parties: the briefs filed by the Acting Solicitor General urged the Court to consider whether aiding-and-abetting liability claims are ever permissible under the ATS. The Court declined to take this issue up at the cert stage; nonetheless, the Acting Solicitor General pressed the issue again at the merits phase. All the briefs are available here.

This symposium opens with a backgrounder by Chris Moxley, a student in Stanford Law School’s Human Rights and International Justice Policy Lab. We follow with an exceptional piece by legal historian David Golove, who has uncovered previously overlooked historical documents that shed extraordinary new light on the contemporary understanding of the scope and purpose of the ATS.  Subsequent contributions will present the arguments made by various amici to the Court. Previous Just Security posts have covered the lead-up to this case;  see, in particular, Bill Dodge’s description of the Trump administration’s flip-flopping position on the cognizability of corporate liability under the ATS, and his discussion of human rights litigation against corporations in foreign courts. Through this symposium, we hope to provide a rich understanding of the issues at stake in the Nestlé/Cargill case as the Court prepares to hear this newest iteration of ATS litigation.

Image: People collect cocoa beans at a cocoa exporter’s in Abidjan, Côte d’Ivoire, on July 3, 2019. (SIA KAMBOU/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).

Chris Moxley

Chris Moxley is a JD candidate at Stanford Law School (class of 2022) and a member of the Stanford Human Rights and International Justice Policy Practicum.