Of Child Slavery And Chocolate

“The use of child slave labor in the Ivory Coast is a humanitarian tragedy.”  

So wrote Senior Judge Dorothy Nelson, joined by Judge Kim Wardlaw, in a Ninth Circuit panel opinion back in 2014. The opinion reinstated a case by three anonymous (alleged) former child slaves relying on the Alien Tort Statute to seek damages from mega-chocolatiers Nestle, Archer Daniels Midland, and Cargill. These companies, the plaintiffs say, pursued the bottom dollar with such zeal that they ignored cocoa producers’ use of child slave labor to reduce costs. (Yes, add a little more guilt to your guilty-pleasure chocolate bar — it very well might have been the product of tiny, enslaved hands.) Over the case’s tortuous passage through the federal court system, some nine federal judges disagreed with Judges Nelson and Wardlaw. But yesterday the nine highest judges in the land declined to take up the case.  

The three plaintiffs filed suit all the way back in July 2005, alleging a horrendous set of facts. They claim that they were trafficked from Mali to Cote D’Ivoire as children. There, at least according to the Ninth Circuit’s recitation of their allegations, “they 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.” And it gets worse. They say that “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.” For example, “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 plaintiffs said that the defendants knew that child slave labor was rampant in the Ivorian cocoa industry but nevertheless provided financial and other forms of assistance to Ivorian cocoa farmers, conduct that they argued amounted to aiding and abetting slave labor. Under customary international law, aiding and abetting slave labor is an understandable no-no, so — argued the plaintiffs — the defendants opened themselves up to Alien Tort Statute liability in United States court. That is to say that the defendants, United State corporations, could be responsible for paying damages to citizens of another country for conduct that took place in that other country and was carried out not by the defendants but by citizens of that other country.

It’s not hard to imagine the defendants’ response. They moved to dismiss, arguing: (1) that they didn’t actually do anything — sure, they bought cocoa from cocoa farms, but they didn’t affirmatively intend for their money to support child slavery; (2) that the Alien Tort Statute requires a much closer connection to the United States than the plaintiffs alleged here; and (3) that corporations can’t be sued under the Alien Tort Statute for aiding and abetting slavery.

I mentioned above that this case had a tortuous passage through the federal courts. Here’s the long-story-short(ish) version: The district court dismissed the case. A panel of the Ninth Circuit reversed in a per curiam decision, over a partial dissent by Judge Johnnie Rawlinson. The defendants filed a petition for rehearing and en banc review. Apparently while that petition was pending, the original panel withdrew its original opinion and issued a revised one, again over a partial dissent by Judge Rawlinson. An order accompanying that opinion stated that “with the original order withdrawn, we deem the petition for rehearing and rehearing en banc moot.”  

The revised opinion held that: (1) the plaintiffs’ allegations were sufficient to “support the inference that the defendants acted with the purpose to facilitate child slavery”; (2) the plaintiffs should be allowed to amend their complaint to address the Supreme Court’s discussion of extraterritorial Alien Tort Statute Claims in Kiobel v. Royal Dutch Petroleum Co.; and (3) corporations can indeed be sued under the Alien Tort Statute where international law allows for corporate liability — like in this case, given that customary international law’s prohibition against slavery “applies to state actors and non-state actors alike, and there are no rules exempting acts of enslavement carried out on behalf of a corporation.”

So of course the defendants apparently again requested rehearing or en banc review. This time their request was denied, over a dissent joined by eight Ninth Circuit judges.  

A petition for certiorari followed.

This sounds like the kind of case the Court might take up, right? A squishy liberal opinion delivered by the Ninth Circuit? So the cert petition argued. Aptly assembled by Supreme Court dynamos Neal Katyal and Andrew Pincus (among others), the petition requests the Court’s intervention “urgently,” paints the Ninth Circuit as an outlier, draws deep circuit splits, and counsels that companies will withdraw from developing nations, damning many human rights efforts to failure.

But the plaintiffs’ brief in opposition to certiorari counters the cert petition’s stridency with soothing tones: the Ninth Circuit really isn’t such an outlier, it’s not clear there really are any circuit splits at issue here, and, let’s face it, the world isn’t going to end if you let these former child slaves seek recompense for the harm that befell them as cogs in the great machinery of chocolate.  

And in the end, thanks in part to the work of public interest lawyers — the opposition brief lists as counsel Terry Collingsworth and Christian Levesque of the nonprofit group International Rights Advocates — the Supreme Court declined the opportunity to rein in the Ninth Circuit and denied the defendants’ cert petition.

So let’s hope this case turns out to be a blow against child slavery — and a step toward guilt-free chocolate consumption to boot.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].