Statement of EarthRights General Counsel Marco Simons
December 1, 2020, Washington, D.C — Today, the U.S. Supreme Court heard Nestlé USA Inc. v. John Doe 1 and Cargill Inc. v. John Doe 1, which accuse U.S.-based Nestlé and Cargill of benefiting from, and abetting, child labor on cocoa plantations in West Africa. The plaintiffs allege that as 12-to-14-year-olds, they were trafficked from Mali to Côte d’Ivoire, where they were enslaved on cocoa farms and forced to work without pay for up to 14 hours a day, six days a week. They are suing Nestlé and Cargill, who sourced cocoa from those farms, under the Alien Tort Statute (ATS). EarthRights International, which submitted an amicus brief in support of the plaintiffs last month, today issued the following statement from its General Counsel, Marco Simons:
“Today, Nestlé and Cargill claimed that they cannot be sued for child slavery because they are corporations. But corporations have a long track record of claiming that they are ‘persons’ when it suits them. They can’t have it both ways. Corporations do not get immunity from lawsuits for ordinary harms like negligence. They should not be entitled to immunity for the most serious human rights violations.
“The Justices seemed to recognize the far-reaching implications of these companies’ arguments. Justice Alito, for example, suggested that these arguments would ‘lead to results that are pretty hard to take.’ Justice Kavanaugh, noting that legal scholars indicated that the companies’ position would ‘gut’ the ATS, asked, ‘why should we do that?’ We, therefore, hope that the Supreme Court recognizes that holding corporations liable for serious human rights abuses is an important principle.
“Nestlé and Cargill have both pledged to eliminate slave labor from their supply chains but admit they have not met that goal. Neither company has compensated the victims whose labor they benefited from. The majority of the world’s cocoa supply – 70 percent – is grown in West Africa, supplying vast amounts to companies like Nestlé and Cargill. The U.S. State Department, the International Labor Organization, and UNICEF, among others, have documented the existence of child slavery in Côte d’Ivoire. A recent report commissioned by the U.S. Department of Labor report found that child labor among agricultural households in cocoa-growing areas of Côte d’Ivoire and Ghana actually increased from 31 percent to 45 percent between 2008 and 2019.
“As leading manufacturers of chocolate, Nestlé and Cargill hold vast influence over the industry and should be leading by example. Instead, these plaintiffs allege, they abetted the abuse: The corporations were major buyers of cocoa from these plantations, holding exclusive contracts and regularly providing logistical support, training, and supplies; they knew about, benefited from, and had the power to stop the abuse.
“In an earlier slave labor case against a corporation, respected conservative Judge Richard Posner observed that ‘Businesses in countries that have and enforce laws against child labor are hurt by competition from businesses that employ child labor in countries in which employing children is condoned.’ Other chocolate companies echoed that concern here. In October, Corporate Accountability Lab filed two amicus briefs on behalf of nineteen cocoa and chocolate companies, all of which asserted that it is unethical for companies to profit from cocoa produced with forced child labor. These companies have structured their operations to only use slave-free cocoa. If they can do it, so can Nestlé and Cargill.
“The outcome of the combined cases will have profound implications for future victims of human rights abuses seeking justice against business in U.S. courts. A victory for Nestlé and Cargill would set a dangerous precedent, moving corporations one step closer to total impunity for profiting from human rights abuses.
“We urge the U.S. Supreme Court to deliver justice to plaintiffs suing Nestlé and Cargill for their role in this abuse. Doing so would send a clear message to corporations that they can’t expect to profit from human rights violations and get away with it. The court should reject Nestlé and Cargill’s claims and their blatant attempt to gut the Alien Tort Statute.”
In 2005, with the help of the U.S. NGO International Rights Advocates (IRA), the plaintiffs – who have used pseudonyms for safety reasons – sued Nestlé USA and Cargill in U.S. courts. The U.S. Court of Appeals for the Ninth Circuit ruled in October 2018 that Nestlé and Cargill couldn’t avoid the lawsuits. In July 2020, The U.S. Supreme Court agreed to hear the cases at the request of the two companies, the Trump administration, and the U.S. Chamber of Commerce, among others. In October, EarthRights and over a dozen other advocacy groups, legal scholars, former government officials, and responsible businesses filed amicus briefs in support of the plaintiffs. In addition to IRA, the plaintiffs are represented by Paul Hoffman of Schonbrun Seplow Harris Hoffman & Zeldes LLP, who argued the case at the Supreme Court today. Nestlé and Cargill were represented at the Supreme Court by attorney Neal Katyal.
Kate Fried, EarthRights International