On October 21, 2020, Corporate Accountability Lab filed two amicus briefs in support of Respondents in the upcoming Nestle v. Doe case, about corporate liability under the Alien Tort Statute (ATS). Passed in 1789 by the First Congress, the ATS gives federal courts jurisdiction over tort claims, including for abuses of human rights brought by non-US citizens. Over the last thirty years, advocates and victims of human rights abuses overseas have sued private individuals, government actors, and powerful companies under the ATS. The statute’s applicability to transnational cases of corporate human rights abuse has been drastically narrowed over the years. Now Nestlé and Cargill, two of the most powerful corporate actors in the US (and the world), are arguing that, unlike natural persons, they should be exempt from ATS liability; and that if they are not exempted by their corporate nature, that aiding and abetting international law violations from their US headquarters should not be enough to impose liability on them.

CAL filed the two briefs on behalf of nineteen cocoa and chocolate companies. (One brief was filed on behalf of eighteen cocoa and chocolate companies and the other on behalf of a Dutch chocolate company, Tony’s Chocolonely.) All nineteen companies believe it’s unethical for companies to profit off cocoa produced with forced child labor and have structured their companies so that they source only slave-free cocoa. Moreover, these nineteen companies agree that corporate liability for human rights abuses is essential for a fair and equitable economy. They simply aren’t interested in companies having free reign to engage in abusive practices just because they are cheaper than rights-respecting alternatives.

This blog post first examines the forced labor claims against Nestlé USA and Cargill in the Nestle v. Doe case. It then discusses the two briefs that CAL filed on behalf of chocolate companies: one on behalf of eighteen cocoa and chocolate companies and another on behalf of  Dutch chocolate company Tony’s Chocolonely. 

The Case: Nestlé USA, Inc. v. Doe I

Malian plaintiffs who allege they were trafficked into Cote d’Ivoire and forced to work without pay on cocoa farms as children first filed suit against Nestlé USA and Cargill in a California district court in 2005. The plaintiffs allege that in addition to being forced to work, they were locked into rooms when not working and suffered physical abuse. They argue that Nestlé USA and Cargill aided and abetted the forced labor they endured by purchasing cocoa from and providing logistical support to farms and cooperatives that the companies knew or should have known used forced child labor.

After fifteen years of litigation, the Supreme Court decided to grant cert in this case this past June. On December 1, 2020, the Supreme Court will hear oral arguments on two legal questions from the case: (1) whether US corporations can be liable under the Alien Tort Statute and (2) whether the charges that Nestlé USA and Cargill aided and abetted forced labor satisfies the “touch and concern” test under Kiobel such that the case can move forward.

If the Court finds either that there is no corporate liability under the ATS, even for US based companies, or that the aiding and abetting charges do not overcome the presumption against extraterritoriality, the ability to regulate and hold corporations accountable under the ATS — for using forced child labor in cocoa supply chains or otherwise — would  be gutted or at least severely restricted. With few alternate legal options available, this would limit the ability for human rights advocates and potential plaintiffs to hold US corporations accountable in court.

Read more here.