Background & Case Timeline
This particular case is not a recent one and comes with a back catalogue of previous rulings that began in July 2005 when the three plaintiffs, who are originally from Mali, sued the defendants for using them to harvest cocoa. The boys alleged that they were trafficked and not only forced to work without pay 14 hours a day but also suffered repeated physical abuse including being beaten and whipped.
- August 2005 Nestlé filed a motion to force the disclosure of the names of the former child slave plaintiffs and a motion to dismiss the case.
- July 2006 the court ordered further briefings to be filed on various issues related to aiding and abetting standards.
- September 2010 the case was dismissed and could not be brought under the Alien Tort Claims Act due to existing authorities not demonstrating that corporate liability was sufficiently well established and universal to satisfy a claim under the Alien Tort Claims Act. The plaintiffs appealed the dismissal.
- December 2013 the 2010 ruling was overturned and the plaintiffs were allowed to refile the lawsuit.
- September 2014 the federal appeals court replaced its December 2013 opinion with an expanded one reversing and vacating the lower court’s dismissal of the case.
- September 2015 the defendants petitioned the Supreme Court to throw out the federal appeals court’s ruling and want it to decide if companies are subject to liability under the Alien Tort Claims Act.
Most Recent Developments
At the beginning of this year Nestle sought to have the case of Nestle Inc v. John Doe, U.S. Supreme Court, No. 15-349 thrown out yet failed in this bid.
The Supreme Court upheld the ruling of the lower court of September 2014 and has allowed the plaintiffs the opportunity to amend their case to see if they could meet the higher threshold that had been set out in the earlier case of Kiobel https://www.ardeainternational.com/legal-insight-the-latest-developments-on-corporate-liability-under-the-us-alien-tort-statute/
Part of this case has focused on the interpretation by lower courts of a 2013 judgment in Kiobel v. Royal Dutch Petroleum Co. which stated that the presumption in Alien Tort claims are only to cover violations of international law occurring in the United States. Violations elsewhere, Chief Justice John Roberts wrote, must “touch and concern” U.S. territory “with sufficient force to displace the presumption.”
The opinion in 2014 sets out the reasons for allowing the plaintiffs to amend their complaint to show the connection their claims have to the United States. The court found that the plaintiffs have standing to bring their Alien Tort case because of the universal prohibition against slavery.
Lessons to be learned
Nestle are not in unfamiliar territory having recently fought off another case of alleged slavery in their supply chains https://www.ardeainternational.com/barber-v-nestle/ No stone unturned might appear to be slightly unrealistic for a business when investigating their supply chains but in fact there are some key principles that we suggest business should embrace:
- Be upfront. If you find child labour or any form of modern slavery in your supply chains then acknowledge it. The increasing pressure for companies to disclose has been given a legal footing due to s.54 of the Modern Slavery Act 2015. (Organisations who need to comply)
Increasing public awareness is also key and the press and social media can be friend or foe in this fight. Choosing to be honest along with a plan of action speaks volumes.
- Map your supply chains. It is a phrase that is increasingly being used. If you do not know the genetic makeup of your supply chain then how can a business be sure of what is going on?
- Be proactive. Companies need to get moving and quickly. The Ivory Coast is notorious for the use of child labour in cocoa farming. The Guardian recently reported that ‘Children younger than 15 continue to work at cocoa farms connected to Nestlé, more than a decade after the food company promised to end the use of child labour in its supply chain’. Well-known high risk areas such as the Ivory Coast should sound alarm bells ringing for companies whose supply chains extend to such areas. What is the point in mapping supply chains if there is no follow up and actual action taken in tackling child labour and modern day slavery?
Nestle commissioned a report by the Fair Labor Association (FLA) who visited 260 farms used by the company in Ivory Coast from September to December 2014. The researchers found 56 workers under the age of 18, of which 27 were under 15. At one farm in the Divo district of the country, the FLA found evidence of forced labour, with a young worker not receiving any salary for a year’s work at a farm.
For now it is a waiting game. The 3 plaintiffs have time to adjust their case and should they do so, only then will they be able to proceed (This has recently been made so an additional update will follow).
In the mean time there are very clear lessons to be learnt by all companies (not just Nestle). ‘Are they willing to learn’ is the key question? Going on Nestlé’s past record (and those of many other well known brands) you could be cynical and say no. Cynicism is not unfounded as the issue of slavery and human rights violations have dogged Nestle for decades yet they, along with Carghill in this matter, still appear to be dragging their feet. Fortunately, the tide is turning and companies cannot sit by and continue to reap the profits from modern day slavery without legal ramifications.