Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.
In an 8-1 decision, the Supreme Court ruled that U.S. corporations Nestle and Cargill could not be sued for allegedly aiding child trafficking that occurred at cocoa plantations in the Ivory Coast.
Despite expressing disappointment in the decision, a lawyer for the alleged child-trafficking victims told Law&Crime in a statement that the decision was narrow enough to give his clients a glimmer of hope.
“We are disappointed that the Court’s decision makes it more difficult for our former child slave clients to obtain justice, but our claim is that the companies did more than engage in general corporate oversight from the U.S. So, the decision leaves open the possibility that we can satisfy the Court’s standard on remand,” lawyer Paul L. Hoffman, from the firm Schonbrun Seplow Harris & Hoffman LLP, wrote in an email.
“As important, the Court rejected the defendants’ broader arguments and makes it possible for future human rights claims to go forward,” Hoffman added.
Hoffman’s clients, six people from Mali, alleged in the Nestle v. Doe that they were trafficked as children and forced to work as slaves on plantations from which the corporations bought cocoa. They claimed the conditions under which they labored were horrific: “[T]hey worked as many as 14 hours a day, six days a week, without pay and with very little food; they were ‘beaten with whips and branches’ if they didn’t work fast enough,” according to a summary from SCOTUSblog. They said escape attempts were met with physical beatings and torture, which the other child slaves witnessed.
The alleged child slavery victims sued Nestle and Cargill, each separately, in federal court in California under the Alien Tort Statute (ATS), a centuries-old law passed during the First Congress which allows non-citizens to sue in federal court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The District Court dismissed the cases, saying the ATS could not apply because the plaintiffs’ injuries occurred overseas, and Nestle and Cargill’s involvement was considered “general corporate activity.” On appeal, the Ninth Circuit reversed and remanded, finding that the plaintiffs had successfully argued the domestic connection, because the corporations’ “major operational decisions” originated in the United States. The corporations appealed to the Supreme Court, which consolidated the cases for hourlong arguments.
Nestle and Cargill, represented by former Solicitor General and current litigator Neal Katyal, argued that corporations should not be held liable under the ATS. The majority opinion did not reach the issue of whether corporations could be sued under the ATS, which was a focus of much heated debate at oral argument, as Law&Crime noted at the time.
That said, the concurring opinions suggested most justices were skeptical of the proposition—to the relief of the alleged child-trafficking victims.
“In fact, it appears that a majority of the Court agrees that corporations can be sued under the Alien Tort Statute,” Hoffman said in his statement. “Thus, the decision allows human rights victims to continue to pursue remedies in US courts under the statute.”
Hoffman’s legal team has argued that the arrangement between the corporations and the cocoa plantations—in which the companies provided the farms with technical and financial resources, training, tools, and cash, in exchange for the exclusive right to buy cocoa—amounted to aiding and abetting child slavery. They also told the justices that the corporations “knew or should have known” that the farms were exploiting enslaved children.
Instead, Justice Clarence Thomas’s opinion said the plaintiffs’ argument improperly demanded that the ATS apply extraterritorially, and ATS didn’t apply to injuries that occurred outside the U.S.
The alignment among the justices is somewhat surprising. Chief Justice John Roberts, and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all joined, at least in part, in the majority opinion, written by Justice Thomas.
In what can be described as textbook examples of how “concur” and “agree” are not the same thing, however, Justices Gorsuch and Sotomayor each wrote a concurring opinion, which were more closely joined, respectively, more along ideological lines.
Gorsuch would have addressed the issue of whether corporations could be sued under the ATS, and he would have concluded that they could (Sotomayor praised this aspect of Gorsuch’s concurrence, in a footnote of her own). Gorsuch was joined by Justice Samuel Alito in this part of his concurrence, although Alito wrote a separate dissent. Gorsuch also would have more clearly determined that courts cannot create causes of action under the statute, and he was joined by Kavanaugh for that part of his concurrence.
In her concurrence, Sotomayor, who was joined by Breyer and Kagan, disagreed with Thomas nearly every step of the way, but still reached the same conclusion that plaintiffs’ case should be dismissed. Sotomayor reasoned that the plaintiffs had failed to allege a domestic application of the ATS, and because of that, the case could not proceed.
Sotomayor strongly disagreed with Thomas’ reasoning, and made that very clear in her concurrence. Thomas’ ruling would limit the ATS to the international law torts that were named at the time of the Act’s passing in 1789—violation of safe conduct, interference with ambassadors, and piracy—and Sotomayor called this a “gross overreaction to a manageable (and largely hypothetical) problem.” Sotomayor closed her concurrence by saying that she found “no support for Justice Thomas’ position in the ATS or in this Court’s precedents.”
Justice Alito, the lone dissenter, agreed with the first part of Gorsuch’s concurrence, which focused on whether corporations could be sued under the ATS. “Corporate status does not justify special immunity,” Alito wrote. He also argued that the court should not have decided whether the lawsuit sought an extraterritorial application of the statute.
Read the Court’s opinion, below:
[Image of justices via ERIN SCHAFF/POOL/AFP/Getty Images, image of Supreme Court building via Chip Somodevilla/Getty Images]
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