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Supreme Court appears poised to limit human rights lawsuits against companies

WASHINGTON – The Supreme Court, which has placed strict limits on prosecutions in federal court for human rights violations abroad, appeared set on Tuesday to dismiss a lawsuit accusing two U.S. companies of complicity in slavery children in cocoa plantations in Côte d’Ivoire.

The case was brought by six Malian citizens who claimed to have been victims of trafficking in children as children. They sued Nestlé USA and Cargill, claiming the companies aided and profited from the practice of forced child labor.

“The plaintiffs are former child slaves seeking compensation from two US companies that maintain a system of child slavery and forced labor in their supply chain in Côte d’Ivoire as a corporate policy to obtain a competitive advantage in the US market, ”said Paul L. Hoffman, counsel for the plaintiffs.

Neal K. Katyal, a lawyer for the companies, said they “abhor child slavery” and are not involved in it.

“The complaint that the plaintiffs allude to is something horrible: tenants in Mali sold them as children to an Ivorian farm where supervisors forced them to work,” Katyal said. But, he added, “the defendants are not the locators, nor the guards, nor the farm”.

The plaintiffs brought an action under the Alien Tort Statute, a cryptic law of 1789 that allows federal district courts to hear “any civil action from an alien for a misdemeanor only, committed in violation of the law of nations or of ‘a treaty of the United States’.

The law was largely ignored until the 1980s, when federal courts began to enforce it in international human rights cases. A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to certain claims under the law, as long as they involve violations of international standards with “final content and acceptance among civilized nations”.

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

In 2013, in Kiobel v. Royal Dutch Petroleum, the court stated that there was a general presumption against the extraterritorial application of US law. He dismissed a lawsuit against a foreign company accused of aiding and abetting atrocities committed by Nigerian military and police forces against Ogoni villagers.

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

“Even when the claims touch and concern the territory of the United States,” he wrote, “they must do so with sufficient force to dispel the presumption against extraterritorial application.”

In 2018, in Jesner v. Arab Bank, the court ruled in favor of a Jordan-based bank that had been accused of processing financial transactions through a branch in New York for groups linked to terrorism. The court said that foreign companies could not be prosecuted under the 1789 law, but that it left open the question of the status of domestic companies.

In Tuesday’s case, Nestlé USA v. Doe, n ° 19-416, the societies sought to extend both types of limitations. They said the 1789 law did not allow prosecution even when the conduct of some of the defendants took place in the United States, and they urged the court to ban prosecutions under the law against all companies, whether foreign or national.

They seemed likely to succeed, but on a more limited basis. Judges of all ideological backgrounds questioned whether the plaintiffs’ trial had sufficiently linked the defendants to the abuse they said they had suffered.

“When I read your complaint,” Justice Stephen G. Breyer told Mr. Hoffman, “it seemed to me that all or almost all of your complaint was about dealing with these people. They help pay for the farm. And that’s about it. And they do it knowingly.

Judge Samuel A. Alito Jr. even said the questions were exaggerated because the lawsuit, first filed in 2005, only said that companies knew or should have been aware of the practices.

“After 15 years, is it too much to ask that you specifically allege that the defendants involved, the defendants who are before us here, knew precisely that forced child labor was used on the farms or agricultural cooperatives with which they did business? ? ” he asked Mr. Hoffman. “Is that too much to ask?”

These questions suggested that the court could rule for corporations without making a general declaration on corporate immunity. Indeed, Judge Alito said that some of the broader business arguments “lead to results that are quite difficult to accept.”

Suppose, he said, that a company “surreptitiously hires agents in Africa to kidnap children and keep them in bondage on a plantation so that the company can buy cocoa or coffee or some other agricultural product from the farm. unbeatable prices ”.

“You would say,” Judge Alito asked Mr. Katyal, “that the victims, who could not obtain redress in the courts of the country where they had been detained, should be deported from court in the United States, where this company is headquartered and does business? “

Mr. Katyal said there were ways to hold such a company accountable. But he said the 1789 law was not one of them.

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