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Wednesday, October 21, 2020
YLS Faculty and Students File Amicus Briefs in Nestle USA, Inc. v. Doe
This week, Yale Law School faculty and students worked to submit two amicus briefs with the U.S. Supreme Court in the cases of Nestle USA, Inc. v. Doe and Cargill, Inc. v. Doe. The case raises questions about what civil actions can be brought against a U.S. domestic corporation under the Alien Tort Statute (ATS) and whether the judiciary has the authority under the state to impose liability on those corporations.
The first brief was filed on October 20, 2020 by Gerard C. and Bernice Latrobe Smith Professor of International Law Oona Hathaway ’97 on behalf of the Center for Global Legal Challenges at Yale Law School. The second brief was filed on October 21, 2020 by Yale Law School’s Peter Gruber Rule of Law Clinic (ROLC) under the direction of Sterling Professor of International Law Harold Hongju Koh and Visiting Lecturer Phil Spector ’00. The ROLC brief was filed on behalf of 16 former high-ranking U.S. government officials, including former Secretaries of State Madeleine Albright and John Kerry, former Deputy Secretaries of State Strobe Talbott and William Burns, and former Undersecretaries Thomas Pickering and Wendy Sherman.
Both Yale Law groups filed their amicus briefs in support of the respondents, former child slaves from Mali. The Nestle and Cargill cases mark another procedural step in a litigation saga that dates back to 2005, when the respondents in this case first filed a complaint with the United States District Court for the Central District of California under the Alien Tort Statute (ATS). The respondents are former child slaves from Mali who were trafficked and forced to work on cocoa plantations in the Ivory Coast. Petitioners Nestle USA and Cargill are both U.S.-based corporations. The respondents allege that petitioners aided and abetted child slavery, forced labor, and human trafficking committed by cocoa growers in the Ivory Coast through financial contributions and technical support originating from their U.S. offices, all while aware that these international law violations were taking place on these plantations. Most recently, the Ninth Circuit held that respondents could assert a claim under the ATS against petitioners for aiding and abetting the international law violations at issue in the case because the relevant conduct was domestic and within the focus of the ATS, meeting the standard set by the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum (2013). Moreover, the Ninth Circuit held that U.S. domestic corporations are not exempt from suit under the ATS, contrasting the case with Jesner v. Arab Bank (2018), where the Supreme Court held that foreign corporations are improper defendants under the ATS because imposing such liability would unduly interfere in foreign affairs. The Supreme Court granted the petitioners’ writ of certiorari on July 2, 2020 and the case is scheduled for oral argument on December 1, 2020.
The Center for Global Legal Challenges (GLC) brief argues that the legal violations alleged by the children on whose behalf the suit was filed — slavery, forced labor, and human trafficking — are among the most deeply established norms of international law. In Sosa v. Alvarez-Machain (2004), the Supreme Court held that for a claim to be filed under the ATS, a plaintiff must demonstrate that the alleged conduct violates “a norm that is specific, universal, and obligatory” and that the norm extends “to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” The Global Legal Challenges brief establishes that if any international law norms meet the test set forth in Sosa, they are the norms at issue here. These norms also unequivocally bind both natural and juridical persons, according to the Center. The brief’s historical analysis shows that these norms are rooted in the international prohibition on the slave trade, which has for centuries entailed enforcement against private companies. As international law has developed on slavery, forced labor, and human trafficking, corporations have never been exempted from these norms and they should not be excluded now, the brief asserts.
In preparing the amicus brief, Professor Hathaway was assisted by several Yale Law School students who collaborated in the researching and drafting of the brief during the fall semester. The team included Herbert J. Hansell Student Fellows Alasdair Phillips-Robbins ’22, Chris Ewell ’22, Ellen Nohle ’21 LLM, and Nicole Ng ’22. The brief follows its submissions of similar amicus briefs regarding corporate liability in Jesner and Kiobel. The Yale Law School Center for Global Legal Challenges is an independent Center that bridges the divide between the legal academy and legal practice on global legal issues.
On behalf of the Former U.S. Government Officials, the Peter Gruber Rule of Law Clinic points out the historically aberrant nature of the current administration’s claims. As their brief notes, the Trump Administration’s position runs counter to longstanding executive branch views, legislative efforts to ensure civil remedies for U.S. entities’ violations, and consistent judicial precedent on the matter. No prior administration has ever argued that U.S. corporations in particular should be categorically barred from civil liability for human rights violations under the ATS’ jurisdiction, the brief asserts. Yet the Trump Administration now asks the Supreme Court to grant such a jurisdictional exemption to American companies, regardless of how egregious and direct their overseas offenses may be. In its recent submission to the Supreme Court, the Trump Administration took a position diametrically opposite of that taken in a brief filed by the same Administration in the Jesner case before the Supreme Court just three years ago. Furthermore, amici warn that barring U.S. corporate liability under the ATS will undermine U.S. foreign policy by counteracting legislative and executive efforts to promote U.S. corporate leadership abroad, specifically in preventing such human rights violation as forced labor. As Peter Gruber Rule of Law Clinic law student intern Alisa White ’22 observes, “it is entirely inconsistent with settled law and U.S. foreign policy interests that U.S. corporations would be given a free pass when committing human rights abuses abroad, including forced and child labor in the cocoa industry.”
The Yale Law School Peter Gruber Rule of Law Clinic, cofounded in 2017 by Koh, Spector, William O. Douglas Professor Michael Wishnie ’93, and Hope Metcalf, Executive Director of the Orville Schell Center for International Human Rights Law, addresses issues of national security, antidiscrimination, climate change, and democracy through litigation, policy advocacy, and strategic planning. The team of Yale Law students who worked on the Former Government Officials’ brief, led by Mark Stevens ’21, are Hirsa Amin ’21, Key’Toya Burrell ’21, Wynne Graham ’22, Michael Loughlin ’21, and Alisa White ’22.