Where the Eleventh Circuit dismissed a claim under the Alien Tort Claims Act last month, the Ninth Circuit -- under different, but similar, circumstances -- reversed a dismissal. The case before the Ninth Circuit was originally filed by former child slaves forced to harvest cocoa in Ivory Coast. The defendants were Nestle USA, Cargill, and Archer Daniels Midland -- all American food companies that made chocolate products from Ivory Coast cocoa.
Like the victims in the "Chiquita terror" cases, the child slaves from Ivory Coast alleged that the American companies provided assistance to farmers employing slave labor in an attempt to keep costs down.
A Grim Set of Facts
It's not a pretty picture: Plaintiffs "were forced to work on Ivorian cocoa plantations for up to fourteen hours per day six days a week, given only scraps of food to eat, and whipped and beaten by overseers. They were locked in small rooms at night and not permitted to leave the plantations, knowing that children who tried to escape would be beaten or tortured. Plaintiff John Doe II witnessed guards cut open the feet of children who attempted to escape, and John Doe III knew that the guards forced failed escapees to drink urine."
The defendant food companies continued to provide financial and technical assistance to the farmers even though they knew these atrocities were going on; having visited the plantations themselves, they knew firsthand what was happening. They've also spent company money lobbying Congress not to curb child slave labor.
There's Definitely a Claim Here
Where the district court found that the plaintiffs hadn't stated a claim, the Ninth Circuit reversed. The relevant question was whether the defendants had violated "customary international law." Their arguments were three-fold: (1) there's no international custom prohibiting corporations from aiding and abetting slave labor; (2) the complaint didn't meet the elements of aiding and abetting; and (3) like Kiobel, all the actions happened abroad.
The court found it immaterial that a specific prohibition against corporations aiding and abetting child slave labor didn't exist. What's relevant is that there's a prohibition on child slavery, period. "Indeed, it would be contrary to both the categorical nature of the prohibition on slavery and the moral imperative underlying that prohibition to conclude that incorporation leads to legal absolution for acts of enslavement."
As to the criminal elements, the court found they were satisfied not only by the defendants' knowledge, but the fact that the use of slave labor was part of their business plan to make costs as low as possible. Finally, unlike the Eleventh Circuit, the Ninth Circuit didn't dismiss outright under Kiobel, but remanded to allow plaintiffs to amend their complaint to describe how defendants' actions abroad "touched and concerned" the United States.
Half Concurring, Half Dissenting
Judge Johnnie Rawlinson concurred in part and dissented in part. He disagreed with the court's mens rea analysis, finding that the plaintiffs hadn't pleaded that the defendants had the proper state of mind to support "aiding and abetting," relying instead on inferences that didn't meet the Iqbal standard. Rawlinson also believed that remand to amend was unnecessary, as he didn't think the plaintiffs would be successful in overcoming Kiobel's extraterritoriality presumption. Though child slave labor is reprehensible, he said, it remained to be seen whether these defendants could be held legally responsible for it.