The U.S. Supreme Court on Tuesday appeared reluctant to strip away the ability of victims of overseas human rights abuses to sue U.S. corporations, but also expressed skepticism about a 15-year-old case brought against Cargill and Nestlé.
The plaintiffs, six former child laborers trafficked from Mali to Ivory Coast, and human rights advocates allege Minnetonka-based Cargill and Nestlé USA Inc. enabled and profited from their enslavement on cocoa farms in a suit that has been working its way up and down federal and district courts since 2005.
The court took the case at the corporations’ behest following a lower-court ruling that revived the lawsuit in 2018.
Cargill sources and sells cocoa to the world’s chocolate industry, much of which is farmed in Ghana and the Ivory Coast. The global trade of cocoa relies on a decentralized network of smallholder farmers, some of whom use forced child labor to more cheaply harvest the beans and clear the land.
The plaintiffs’ lawyers argue that Cargill and Nestlé continued doing business with farmers who were knowingly using child labor. Both Cargill and Nestlé say they have taken steps to combat child slave labor and have policies expressly forbidding it.
Tuesday’s hearing hinges on the Alien Tort Statute, a federal law established in 1789 in part to deal with cases of piracy. The law sat dormant for nearly 200 years but in recent decades has resurfaced as a tool of human rights activists seeking redress for victims abroad.
Cargill and the U.S. arm of Switzerland-based Nestlé asked the justices to put an end to the lawsuit, arguing that the statute should only apply to individuals, not corporations.
But several of the justices expressed concern about making such a sweeping decision.
“Many of your arguments lead to results that are pretty hard to take,” conservative justice Samuel Alito told the corporations’ lawyer.
Brett Kavanaugh, also a more conservative justice, cited an amicus brief filed in the case that said shielding U.S. companies from litigation involving overseas atrocities would “gut the statute.” He then asked the corporations’ counsel, “So why should we do that?”
Cargill and Nestlé argued that the individual perpetrators of these crimes can and should be prosecuted.
And while the justices appeared reluctant to water down the centuries-old law, many questioned whether this particular case has sufficient evidence of wrongdoing.
Justices Alito and Sonia Sotomayor questioned whether the plaintiffs’ complaint proves Cargill and Nestlé had knowledge of the forced child labor and still directed monetary payments to those farms.
Apart from decisionmaking at the U.S. headquarters, Sotomayor asked the plaintiffs’ lawyer for further proof that Cargill and Nestlé played an active role in violating human rights.
“I don’t see an allegation other than sending representatives to look at the farms — so that knowledge [of the child labor] could be imputed — that there’s any other actual acts of aiding and abetting that you have alleged against the particular U.S. corporations that you’re suing,” said Sotomayor, who is aligned with the bench’s liberal voting bloc.
The plaintiffs’ lawyer alleges the corporations have exclusive relationships with many of these farms and therefore have the oversight and power to stop such activity.
The Supreme Court loosely supported use of the Alien Tort Statute in 2004 but left many questions of liability unanswered. Beginning in 2013, the justices began scaling back the statute’s power, first ruling that people or entities sued under the law must have a real connection to the U.S. Five years later, the Supreme Court held that foreign corporations could not be sued under the Alien Tort Statute.
Cargill and Nestlé are asking the court to further curtail use of the Alien Tort Statute by ruling U.S. corporations cannot be liable for overseas human rights abuses.
“They want corporations to have all the rights of individuals but no responsibilities,” said Terrence Collingsworth, the lead lawyer for the plaintiffs, in an e-mail. “I think the justices grasped how scandalous it would be if the same Supreme Court that said in Citizens United that corporations are people too now says that corporations are immune from child slavery.”
Both Cargill and Nestlé issued statements expressing hope the Supreme Court would end this long-running lawsuit.
“We continue to actively combat any such practices in our supply chains and to address the root causes of child labor, including poverty and lack of education access,” Cargill said. “We are proactively working to monitor, identify and remediate any instances of child labor through our Child Labor Monitoring and Remediation System.”