Nestlé & Cargill v. Doe Series: Shielding American Corporations from Liability Undermines the United States’ Moral Authority

[Editor’s Note: This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which was argued before the Supreme Court on Dec. 1. The introduction to the series and all other articles can be found here.

This article summarizes the amicus brief submitted on behalf of 21 Members of Congress in the case of Nestlé USA, Inc. v. Doe I. The bi-partisan Congressional group includes Senator Richard Blumenthal, the Co-Chair of the Senate Caucus to End Human Trafficking and a member of the Senate Judiciary Committee; and Congressman Christopher H. Smith, Co-Chair of the Congressional Human Trafficking Caucus and author of the Trafficking Victims Protection Act. These 21 members of the House and Senate have developed and passed legislation on human trafficking over the last two decades. The Members filed the brief to inform the Supreme Court about the landmark Trafficking Victims Protection Act (TVPRA) and its subsequent reauthorizations, focusing on Congress’ creation of a comprehensive architecture to combat human trafficking and forced labor. The statutory framework that Congress has enacted through the TVPRA provides for corporate liability, aiding and abetting liability, and extraterritorial jurisdiction. The brief argues that Congress has already made the key policy decisions at issue in this case: trafficking victims should have a remedy in the U.S. federal courts, even for extraterritorial conduct.]

In their briefs, and at oral argument, Nestlé, Cargill, and their amici argue that the Supreme Court should defer to Congress on policy questions, including the question of corporate liability for human rights abuses abroad, rather than allowing the Alien Tort Statute (ATS) to provide a vehicle to hold corporations accountable for aiding and abetting child slavery. But Congress has already spoken on these policy questions. With the passage of the Trafficking Victims Protection Act in 2000, and subsequent reauthorizations, Congress created a civil remedy for trafficking and forced labor, including offenses committed abroad, in the U.S. federal courts. As the Congressional brief argues,  Nestlé and Cargill’s “warnings about [this] lawsuit interfering with Congressional prerogatives are misplaced.” Contrary to the corporations’ claims, recognizing aiding and abetting liability for child slavery that occurs abroad “does not interfere with Congress’ global approach to combating the scourge of human trafficking and forced labor.” Instead, it is consistent with Congress’ approach.

 The Trafficking Victims Protection Act as a Guidepost

 In enacting the Trafficking Victims Protection Act of 2000, a landmark law that directly addresses the violations at issue in Nestlé, Congress made clear policy choices about the scope of liability for these violations. But petitioners fail to acknowledge these explicit choices. Petitioners cite instead to the Torture Victim Protection Act (TVPA), a statute that does not provide for corporate liability, as the “most logical ATS analogue.” But this is not the most applicable parallel, nor indicator of Congressional policy choices.

The Trafficking Victims Protect Act of 2000 and its many subsequent reauthorizations and amendments, commonly referred to as the “TVPRA,” provide the clearest evidence of Congress’ policy choices in this area. Through the TVPRA, Congress provided civil redress to victims of trafficking abroad. The law creates corporate liability for human trafficking – including for those who financially benefit from trafficking. The TVPRA is designed to hold American corporations accountable for their complicity in human trafficking in global supply chains.

Members of Congress, as amici for respondents, detail Congress’ bi-partisan, multifaceted, and sustained efforts over two decades to enact the TVPRA’s statutory and regulatory regime to combat the scourge of human trafficking. The amicus brief, which includes extensive legislative history, points to early discussions of a Congressional response to trafficking. Congress recognized the “need for dramatic action and American leadership” to address “one of the most significant human rights challenges of the 21st century.” Congress initially focused exclusively on sex trafficking. But over time, Congress developed a greater understanding of the “breadth and horror of international labor trafficking,” as well as the role that forced labor plays in global supply chains.

Congress held comprehensive hearings in both houses while drafting and repeatedly reauthorizing the TVPRA. The brief contends that Congress determined, based on extensive testimony, that 1) human trafficking is a transnational issue, requiring global solutions; 2) addressing the global trafficking problem requires strong American leadership; 3) trafficking and forced labor are highly lucrative, inherently economic crimes, that put ethical businesses and American workers at a disadvantage; 4) effective antitrafficking policy requires disincentives directed toward those who would benefit from trafficking – including corporate actors who knowingly profit from trafficking in their supply chains; and 5) protecting victims requires monetary relief through restitution and civil damages.

Support for the Trafficking Victims Protection Act and subsequent reauthorization has been nearly unanimous. Since the law’s initial passage in 2000, Congress has expanded protections for trafficking victims. In its 2003 reauthorization, for example, Congress created a private right of action for trafficking victims, allowing survivors to file federal lawsuits against their traffickers. It is undisputed that corporations are liable under the statute. It is also undisputed that aiders and abetters are liable. And in its 2008 reauthorization, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Congress expanded liability to encompass any defendant who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in” conduct prohibited under the federal trafficking statutes. In so doing, Congress widened the net to create venture liability broader than existing aiding and abetting provisions. In that same year, Congress clarified that the TVPRA could reach extraterritorial conduct.

Congress has never raised concerns that too many civil suits are being brought by victims. In fact, quite the contrary. At one hearing, Senator Durbin asked why there were “so few civil [trafficking] lawsuits?” Nor has Congress raised any concerns about corporate liability under the TVPRA. In a 2011 hearing before the Commission on Security & Cooperation in Europe, NGO representatives pointed to “a number of companies that are now facing civil lawsuits.” Congress is well aware that domestic corporations face civil lawsuits – and criminal liability –  under the TVPRA. Indeed, as the Congressional brief points out, more than 66 percent of all civil cases filed under the TVPRA private cause of action have named corporations as defendants.

Foreign Policy Concerns: A Nonstarter

Nestlé and Cargill also raise the specter of foreign policy concerns. But Congress has spoken on this issue as well. As the brief points out, the TVPRA mandates that the State Department publish an annual Trafficking in Persons (TIP) report ranking the performance of every country’s antitrafficking efforts. Through its TIP report, the State Department has reported on child forced labor in Côte d’Ivoire. Indeed, the 2020 TIP report’s country narratives include statements that “traffickers forc[e] West African children to work on Ivoirian cocoa plantations” and “Malian children endure forced labor on cotton and cocoa farms in Côte d’Ivoire.” Similarly, the TVPRA mandates that the Department of Labor publish an annual list of goods believed to be created with forced or child labor and to identify the countries where those goods are produced. The 2020 list includes Ivoirian cocoa as a good produced by child labor and forced labor. Both reports explicitly condemn the use of forced child labor in Côte d’Ivoire, indicating Congress’ profound interest in the issue of trafficking and determination to eliminate it. This renders it unlikely that exercising jurisdiction in a case like the one presently before the Court would result in “risks of adverse foreign policy consequences.” Indeed, at oral argument, in response to a question from Justice Kavanaugh asking whether there were any foreign policy impacts arising from the case at hand, the Deputy Solicitor General was forced to concede “not specifically.”

Congress has not sought to shield American corporations from liability for aiding and abetting human trafficking or forced labor abroad. On the contrary, doing so would undermine the United States’ moral authority to “promote antitrafficking and other human-rights values abroad.” Congress has repeatedly placed a high priority on combating human trafficking in its foreign policy choices. The determination that the TVPRA impose corporate liability for aiding and abetting trafficking abroad is consistent with Congress’ foreign policy goals. It is implausible to suggest that permitting the same form of liability under the ATS is contrary to these established foreign policy choices.  As Members of Congress said in their brief, “the transnational nature of human trafficking makes it even more necessary and appropriate for the United States to provide a forum for victims of trafficking by U.S. defendants.”

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Nestlé and Cargill press the Court to look to the Torture Victims Protection Act (TVPA) for guidance. But it is the TVPRA, not the TVPA, that is the proper guidepost for assessing Congress’ policy choices on forced labor. Congress has explicitly created broad civil remedies for victims of forced labor, even when that conduct is extraterritorial. Those remedies sweep in corporate defendants, for direct conduct as well as for aiding and abetting. Congress has opened the doors of the federal courts to these victims. Slamming those doors on children who allege that they were held in slavery would be entirely inconsistent with twenty years of Congressional action.  The question is whether the children deserve a day in court. And Congress, with passage of the TVPRA, has answered that question with an emphatic yes.

Image: People carry bags of cocoa at a cocoa exporter’s in Abidjan, Ivory Coast, on July 3, 2019. –  (Photo credit SIA KAMBOU/AFP via Getty Images)

 

About the Author(s)

Sarah Bessell

Sarah L. Bessell is the Deputy Director at The Human Trafficking Legal Center, where she provides training and technical assistance for immigration and civil human trafficking cases.

Bekah Carey

Bekah Carey is a Legal Fellow at The Human Trafficking Legal Center, where she is researching use of the CEDAW Optional Protocol to hold states accountable for failure to protect trafficking victims’ human rights.