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Nestle v. Doe

Nestle and Cargill Sued Over Child Slavery in the Ivory Coast; Ask Supreme Court For Jurisdictional Escape

In the United States Supreme Court

ArgumentDecember 1, 2020
DecisionJune 17, 2021
Opinion BelowNinth Circuit Court of Appeals
Petitioner BriefNestle USA; Cargill
Respondent BriefDoe, et al. (response to Nestle USA)
Doe, et al. (response to Cargill)

Case Decision

On June 17, 2021, the Supreme Court ruled for Nestle and Cargill. The Alien Tort Statute does not apply to the case.

Scroll down for our Decision Analysis.

Argument Analysis

November 30, 2020

Six former child slaves sued Nestle USA and Cargill alleging their complicity in human rights abuses in the Ivory Coast. The children are citizens of Mali who were trafficked and enslaved as workers on cocoa plantations in the Ivory Coast. From the plaintiffs’ briefing:

Between the ages of twelve and fourteen Respondents were forced to work on Ivorian cocoa farms for twelve to fourteen hours per day, at least six days per week. They were not paid and were given only scraps of food to eat. Respondents were beaten with whips and tree branches when their overseers felt that they were not working quickly enough. They were forced to sleep on dirt floors in small, locked shacks with other children, and were guarded by men with guns to prevent them from escaping. 

Nestle USA and Cargill don’t own the plantations. They don’t employ any of the individuals who abused the plaintiffs. But the plaintiffs allege the U.S. companies — through their buying power and their high-level control over the operations on the plantations — “aided and abetted” the abuses against the plaintiffs. 

The plaintiffs brought suits against Nestle and Cargill for “aiding and abetting” the child slavery and related human rights abuses of the plaintiffs.

The Alien Tort Statute

Congress passed the Alien Tort Statute in the nation’s early years to address some tiffs between foreigners on American soil. In one instance, a French adventurer assaulted a French diplomat in Philadelphia. And in another, a New York constable went into a Dutch diplomat’s home and arrested a servant. 

At the time, federal courts did not have jurisdiction to hear suits from foreigners. State courts did, but because diplomats were involved, the issues were of national importance. The federal government found itself embarrassed without a federal venue for foreigners to bring suits.

Congress passed the Alien Tort Statute in 1789 to give federal court jurisdiction to suits by foreigners for violations of international law. The violations must have a sufficient connection to the United States, an aspect which wasn’t an issue in the early years. In fact, the law was dormant for over a century, until 1980. Since then, the Supreme Court has addressed the types of disputes which people can bring under the bizarre law. 

Modern Supreme Court Rulings on the Alien Tort Statute

In recent years, the Supreme Court has told us: 

1) The ATS is for certain types of suit only (violations of safe conducts, infringement on the rights of ambassadors, piracy, and violations of the “present-day law of nations”). Sosa v. Alvarez-Machain (2004).

2) The ATS does not apply if the actions at issue happened entirely in foreign territory (the “presumption against extraterritoriality”). Kiobel v. Royal Dutch Petroleum (2013)

3) A person cannot use the ATS to sue a foreign corporation. Jesner v. Arab Bank (2018).

This case will urge the court to expand on what the ATS requires in terms of the U.S. connection. And whether someone can use the ATS to sue a domestic corporation.

Facts of the Case

The plaintiffs suffered grave human rights abuses from individuals operating cocoa plantations in the Ivory Coast. As children, they were forced to work; they were not paid; barely fed; whipped and otherwise physically abused; forced to sleep on dirt floors; and prevented from escaping. 

Relevant to this case is to what extent the U.S. companies were responsible for the abuses. Specifically, what actions did the U.S. companies take — actions that were done or controlled by its U.S. operations — that could subject the companies to suit under the ATS?

The defendants paint a different picture about their connectedness to the Ivorian plantations than the scene alleged by the plaintiffs. According to the Nestle and Cargill (Petitioners in the Supreme Court), they are merely cocoa purchasers. They don’t control what’s happening at the farms and don’t have much knowledge about it.

The plaintiffs, however, tell a different story. For example, alleging Nestle’s role: 

Petitioner [Nestle] had specific knowledge of the use of child slaves and the horrific conditions they endure on Ivorian cocoa plantations through Nestlé USA staff visits to plantations and widely circulated reports. From the United States, Petitioner had complete control over the farms’ labor practices, knew “that the farmers they were assisting were using and continued to use forced child labor,” and purposefully relied on the enslavement of children to increase profits by ensuring the flow of cheap cocoa.

Have the defendants engaged in sufficient U.S.-connected actions tying them to the human rights abuses at the plantations in the Ivory Coast? The ATS requires that the claims in the case “touch and concern” U.S. territory with “sufficient force” (Kiobel).

The “Touch and Concern” Test

Are the claims in the case sufficiently connected to the United States? Kiobel is the most recent Supreme Court case addressing the question.

In Kiobel, the Court rejected ATS claims by Nigerian nationals because the actions in issue happened entirely on foreign territory. In the case, a group of Nigerian nationals sued Nigerian, Dutch and British oil companies alleging complicity in (“aiding and abetting”) human rights abuses of the Nigerian government.

The Court said that to overcome the presumption against extraterritoriality, the claims must “touch and concern” the territory of the United States, and they must do so with “sufficient force to displace the presumption against extraterritorial application.” The Court didn’t clarify “sufficient force,” but it did state that the mere corporate presence doesn’t suffice.

In this case, the plaintiffs are alleging more than mere corporate presence. It’s not just that Nestle and Cargill have presences in the U.S. According to the plaintiffs, the companies’ corporate headquarters undertook actions to approve of and support the human rights abuses at the plantations. Even though all of the physical abuse happened in the Ivory Coast, the defendants merely “outsourced” it through their U.S. operations. 

Suing a Domestic Corporation Under the ATS

The other question in the case is whether the ATS allows suits against domestic corporations. 

The Supreme Court clarified in 2018 that the ATS does not allow suits against foreign corporations (Jesner). The ATS is meant to resolve potential issues of foreign diplomacy, and pulling a foreign corporation into a U.S. court may do the opposite. 

In this case Petitioners ask the Court to determine whether Congress intended for the ATS to pull domestic corporations into court.

The Supreme Court will hear arguments on December 1, 2020.


Decision Analysis

On June 17, 2021 the Supreme Court ruled in favor of Nestle and Cargill, U.S. corporations sued by citizens of Mali for alleged human rights abuses which took place in the Ivory Coast.

Case Background

Six former child slaves sued Nestle USA and Cargill alleging their complicity in human rights abuses in the Ivory Coast. The children are citizens of Mali who were trafficked and enslaved as workers on cocoa plantations in the Ivory Coast. They claimed horriffic treatment at the plantations, from being overworked to barely having any food to eat and being imprisoned. 

Nestle and Cargill did not run the plantations, nor did they employ any of the individuals who abused the plaintiffs. But the plaintiffs allege the U.S. companies — through their buying power and their high-level control over the operations on the plantations — “aided and abetted” the abuses against the plaintiffs. 

Question in the Case

The question before the Justices was whether the Alien Tort Statute (ATS), a U.S. law, would allow foreign citizen victims of human rights abuses to recover for their injuries in United States courts. 

The ATS was originally passed to address human rights abuses against foreign citizens on American soil, so allowing foreign citizens to recover for actions that happened outside of the country was an open question. 

Supreme Court Analysis 

The Supreme Court ruled no – the ATS does not apply to actions abroad. The opinion evaluated the question of “extraterritoriality” using a two-step framework outlined in Supreme Court precedent. First, is the law clear that it applies abroad? If not, the Court must presume the law does not apply extraterritorially. Next, if the law applies only domestically, did the actions “relevant to the statute’s focus” occur in the United States, even if other conduct happened abroad? 

The plaintiffs alleged the U.S. corporations — from their posts inside the country — violated the law. According to the plaintiffs, the companies were “complicit” in these human rights abuses that occurred abroad. But the Supreme Court held that those were not the actions that are “relevant to the statute’s focus.”

The Supreme Court ruled that:

Nearly all the conduct they allege aided and abetted forced labor—providing training, equipment, and cash to overseas farmers—occurred in Ivory Coast. Pleading general corporate activity, like “mere corporate presence,” does not draw a sufficient connection between the cause of action respondents seek and domestic conduct. 

The Court held that the plaintiffs would have had to plead more than just “general corporate activity common to most corporations” to have a claim for domestic application of the ATS. Thus, the Court discarded the case, ruling the ATS does not apply.

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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