With call for solicitor general's views, fight over corporate Alien Tort Statute liability pushed to future term

The U.S. Supreme Court on Monday sought the solicitor general's position on a closely-watched appeal testing the boundaries of the Alien Tort Statute and whether it may be used to hold corporate conglomerates liable for extreme labor abuses in their international supply chains.

Monday's request almost certainly delays until a future term potential high court review of a 2018 9th U.S. Circuit Court of Appeals decision permitting Ivory Coast plaintiffs who say they were child slaves to sue Nestle USA and Cargill Inc. Co. in U.S. court for "perpetuat[ing] a system built on child slavery" on cocoa farms in West Africa. The Alien Tort Statute provides a federal forum for certain plaintiffs harmed by violations of international law.

Senior Circuit Judge Dorothy W. Nelson wrote in that opinion that the corporate defendants "were well aware that child slavery is a pervasive problem in the Ivory Coast" but nonetheless cultivated supplier relationships in the region "even though they knew their acts would assist farmers who were using forced child labor."

The circuit's vote last summer not to rehear the matter elicited dissent from eight Republican-appointed judges, with most taking the view that recent Supreme Court precedent -- Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) -- foreclosed corporate liability under the Alien Tort Statute. The defendant in Jesner was a foreign firm but Circuit Judge Mark J. Bennett, a President Donald Trump appointee, said the high court's reasoning also protected domestic corporations.

"Applying the correct standard post-Jesner, corporations (foreign or not) are clearly not proper ATS defendants," Bennett wrote, joined by five of his colleagues. Two other judges supported a separate portion of Bennett's writing, which reasoned the relevant complained-over conduct occurred abroad and couldn't support standing.

Representing the proposed plaintiff class, Paul L. Hoffman of Schonbrun Seplow Harris & Hoffman LLP noted in an email Monday the Department of Justice in 2017, in a neutral filing in the Jesner case, argued corporations were appropriate Alien Tort Statute defendants.

"Both at the time of the ATS's enactment and now, corporations have been capable of suing and being sued," the filing read.

Two other prominent 9th Circuit appeals considered by the court last week saw no action. One is a challenge to a California law mandating certain donor information from charitable organizations. Another is a Department of Justice effort to enjoin California laws protecting residents from enforcement of federal immigration laws. Americans for Prosperity v. Becerra, 19-251; U.S. v. California, 19-532. Both have been set for further consideration when the court conferences Friday.