High court will hear alleged African slave case from 9th Circuit

The U.S. Supreme Court will consider on Tuesday the appeals of two corporations that argue they should not face liability for allegedly funding slavery on cocoa farms in West Africa under a federal statute as old as the U.S. Constitution.

The 9th U.S. Circuit Court of Appeals, in a sharply-divided en banc opinion, reversed U.S. District Judge Stephen V. Wilson and ruled lawsuits against Cargill Inc. and Nestle USA Inc. under the 1789 Alien Tort Statute could proceed.

Plaintiffs in the case say they are former child slaves who were kidnapped and forced to work without pay on the cocoa farms for up to 14 hours a day. Their lawyers allege the companies offered illicit payments to the Ivory Coast producers that run the farms.

Attorneys for the companies argue the complaint should be dismissed because all of the alleged conduct took place overseas. Nestle USA Inc. v. Doe 1 et al., 19-416; Cargill Inc. v. Doe 1 et al., 19-453 (U.S., filed Sept. 25, 2019).

"The complaint here fails at the outset because it does not allege that any of the 'relevant conduct' took place in the United States," wrote Andrew J. Pincus, a partner with Mayer Brown LLP in Washington, D.C. who represents Cargill.

Defense attorneys cite Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), which "held that the presumption against extraterritoriality applies to ATS suits," wrote Neal K. Katyal, a partner with Hogan Lovells US LLP.

Katyal and Theodore J. Boutrous Jr., a Los Angeles-based partner with Gibson, Dunn & Crutcher LLP, represent Nestle.

They argue the law, passed by Congress as part of the Judiciary Act, was intended for limited purposes such as infringement of the rights of ambassadors and piracy.

Attorneys for the companies argued that a 2018 Supreme Court decision which limited the liability of a foreign corporation should also apply to domestic companies. Jesner v. Arab Bank, PLC, 138 S. Ct 1386 (2018).

But lawyers for the plaintiffs, citing a different Supreme Court case, argue the only claims are against the companies and not a foreign government that would interfere with foreign relations.

"What happened was the result of actions at Cargill and Nestle in the United States," said Terrence Collingsworth, an attorney with International Rights Advocates who represents the plaintiffs.

The need to appeal to conservative justices on the court is obvious due to the dissent by eight judges on the 9th Circuit who were appointed by Republican presidents, Collingsworth acknowledged.

"It's a powerful argument to the conservative, textualism" justices on the court, he added, speaking of the court's ruling in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), which limited the law's application to cases with U.S. sufficient connections.

"If this case doesn't satisfy Kiobel, you've just repealed the Alien Tort Statute," Collingsworth said in a telephone interview Monday.

President Donald Trump's administration has sided with the corporations. Acting Solicitor General Jeffrey B. Wall argued in a brief the lawsuit should be dismissed because the complaints do not imply the companies "provided 'substantial' assistance to the perpetrators of child slavery."

"The allegations against us are neither grounded in the law nor supported by facts," a Nestle spokesperson said.