This week, the Ninth Circuit Court of Appeals decided John Doe I, et al v. Nestlé, USA, et al. While the holding itself may not have been a game-changer, the court’s thoughtful analysis of the problems with the “myopic focus on profit over human welfare” offered some hope for corporate liability post-Kiobel.
The case was brought by three former child slaves in the Ivory Coast. Aside from 14-hour, 6-day workweeks with only scraps to eat, the children faced regular beatings and torture, and were locked up in tiny spaces. If they tried to leave, they risked, among other things, getting their feet sliced open. The plaintiffs accuse the defendants, Nestle USA, Inc., Archer Daniels Midland Company, Cargill Incorporated Company, and Cargill Cocoa, of aiding and abetting child slavery through their ongoing financial assistance and technological support. The companies “effectively control[ed]” the cocoa from the Ivory Coast, having exclusive buyer-seller relationships with many of these farms, and importing most of the Ivory Coast’s cocoa. The United States District Court for the Central District of California originally dismissed the case in 2010, holding that the defendant corporations could not be sued under the ATS, and that the plaintiffs had not alleged the elements of aiding and abetting. The dismissal was vacated, then that order was withdrawn and replaced with this decision.
While this case was on appeal, the Supreme Court handed down the Kiobel decision. Kiobel marked a change in ATS litigation by introducing a “touch and concern” test to decide whether plaintiffs can sue in a U.S. court for actions committed abroad. They do not clarify the test, but simply say that there is a presumption that statutes are not meant to apply outside of the U.S., and ATS claims must “touch and concern” the U.S. with “sufficient . . .