Nestle & Cargill’s Case Meet a Stony Supreme Court to Discuss Child Slavery

On the positive side, the candy companies in question do not claim to condone child slave trafficking. In fact, according to court filings, Nestle USA “firmly believes that traffickers deserve punishment.”

But, they stressed, “This case is not about any of that.”

Indeed, Nestle & Cargill v. Doe, heard in front of the U.S. Supreme Court on December 1, 2020, is not about whether it is right or wrong to traffic children and use them as slaves in cocoa plantations to supply candy manufacturers. The case is also not about whether corporate candy superstars Nestle USA and Cargill were aware of and complicit in child trafficking and slavery for profit, as the plaintiffs allege.

Instead, the case is to determine whether corporate candy superstars Nestle USA and Cargill should be held responsible for it. According to attorney Paul Hoffman, the plaintiffs seek “compensation from two U.S. corporations which maintain a system of child slavery and forced labor in their Ivory Coast supply chain as a matter of corporate policy.”

The food industry titans were hit with the class-action lawsuit in 2005 when victims alleged the companies’ Cote d’Ivoire (Ivory Coast) plantations exploited forced labor via child slaves trafficked from Mali—and that the companies not only knew but “aided and abetted their torture and ill-treatment,” largely controlling the plantation operations from overseas.

While Hoffman spoke of the companies’ responsibility for (knowingly) conducting business on the backs of child slaves, the defendants’ attorneys argued the “heavy legal and reputational burdens” cases like Nestle/Cargill could impose on corporations.

“The true wrongdoers,” Nestle and Cargill contended, “are the Malian and Ivorian traffickers, farmers, and overseers.”

The U.S. Department of Labor estimates the region’s cocoa industry exploits around 1.6 million children as slaves. To stop depending on pervasive child labor for cocoa would cost companies like Nestle and Cargill significantly more money; trafficked children are inexpensive options for cocoa farms, so going slave-free could adversely affect corporate profits.

For the past 15 years (during which time, child labor in the West African region spiked by at least 16 percent), the Nestle/Cargill case has seen its share of both dismissals and revivals in court. Backed by the Trump administration, the food giants claim that the law that would theoretically hold them liable—the Alien Tort Statute, or ATS—cannot be applied to corporations.

The statute originated in the Judiciary Act of 1789. It allows U.S. courts the jurisdiction to rule on international human rights cases brought by non-American citizens against a party in the U.S. Over the past decade, the Supreme Court’s decisions involving the ATS narrowed the statute’s range of potential corporate application, much to the delight of big businesses.

For U.S. companies that exploit cheap labor in poorer countries, of which there are many, the Nestle/Cargill case could stand to protect them from liability claims in the future, even if they violate international laws (such as operating with child slavery).

However, the Justices did not seem keen to resolve corporate liability in the candy makers’ favor last Tuesday, and they did not seem impressed with the corporations’ arguments. Attorney Neal Katyal declared corporations could not be held responsible under the ATS; instead, he said, damages should be sought from the “individuals” responsible. Victims could sue a slave owner, for example, or even ten slave owners, according to Katyal—just not a corporation.

“So, when those ten slave owners form a corporation, why can’t you bring a suit against a corporation?” Justice Elena Kagan asked, posing the notion that such logic would mean slave owners would just form corporations to skirt legal ramifications for owning slaves.

Hoffman condemned the larger corporations for choosing cheaper prices in light of their source, insisting the companies were “aiding and abetting” international laws of human rights violations.

“International norms prohibiting child slavery and forced labor are indisputably specific, universal, and obligatory,” Hoffman said. “The norms apply directly to private parties, including corporations.”

When Katyal said there was no such “norm” in international law for aiding and abetting, Justice Sonia Sotomayor countered him, asking, “There’s not an international law against aiding and abetting something as hideous as child slavery?”

The Supreme Court is expected to rule on the case by June. Until then, corporate liability for violating international laws will remain at large.