Nestlé USA, Inc. v. Doe

THE PRESUMPTION AGAINST EXTRATERRITORIALITY

Petitioner Nestlé argues that the Court determined in Kiobel II that a presumption against extraterritoriality, which denies jurisdiction to cases occurring outside of the United States, applies to the ATS. Brief for Petitioner, Nestlé USA (“Brief for Nestlé”) at 14–15. In order to overcome the presumption of extraterritoriality, Nestlé contends that the Court must determine the “focus” of John Doe’s ATS claim. Id. at 15. Petitioner Cargill asserts that the “focus” of the ATS is the “principal violation” of international law that directly injured John Doe. Brief for Petitioner, Cargill (“Brief for Cargill”) at 28. Similarly, Nestlé asserts that Court precedent and Congressional intent during the passage of the ATS indicate that the “focus” of the ATS relates to where the alleged injury occurred, not to action that may “initiate or further a foreign injury.” Brief for Nestlé at 21. Thus, Nestlé argues that, because the alleged harm of child slavery occurred completely outside of the United States in Mali and the Ivory Coast, there is no sufficient domestic injury to overcome the bar against extraterritoriality. Id. at 23. Cargill further argues that the alleged crime of aiding and abetting cannot be brought under the ATS because aiding and abetting could not have solely injured John Doe without the “principal violation” of child slavery. Brief for Cargill at 29–30.

Nestlé further argues that even if the “focus” test does not require limitation to the location of injury, John Doe did not assert “sufficient” domestic conduct to overcome the presumption against extraterritoriality. Brief for Nestlé at 23. Nestlé contends that John Doe only points to “corporate supervisory activity” and the corporation’s general awareness of a violation on international norms by “other parties” in “other countries” in order to establish domestic conduct. Id. at 26. Nestlé asserts that such corporate presence in the United States is not sufficient to overcome the bar against extraterritoriality. Id. at 24. Cargill claims that even if the domestic conduct of financing constituted aiding and abetting, such conduct is minimal in light of the numerous violations occurring in the Ivory Coast­—including the principal violation of child slavery and the alleged “actual provision of funds and other assistance to farmers.” Brief for Cargill at 35–36.

Respondent John Doe asserts that the correct test to apply when determining if the alleged conduct overcomes the presumption against extraterritoriality is not the “focus test;” rather, the Court in Kiobel II and in Jesner consistently applied a “touch and concern” test. Brief for Respondent, John Doe at 11, 14. John Doe explains that under the “touch and concern” test, claims brought under the ATS overcome the presumption against extraterritoriality if they sufficiently touch and concern United States territory. Id. at 11. Therefore, John Doe argues that “aid[ing] and abet[ting] child slavery and forced labor from the United States” sufficiently meets that standard, because the aiding and abetting in this case constituted a tort based on a violation of international law, committed largely on U.S. territory. Id. at 11–12. Further, John Doe contends that even if the Court requires the “focus” test to determine if the presumption against extraterritoriality is overcome, the claims brought sufficiently meet the requirements of that test because the true focus of the ATS is to permit a remedy for violations of international law. Id. at 24. In particular, John Doe alleges that the focus of the ATS is to provide a remedy for violations of international law that could provoke “foreign entanglement[s],” discernable from Court precedent in Jesner and the plain text of the statute. Id. at 21–22; 25. In this case, John Doe argues that aiding and abetting child slavery and forced labor is a tortious act, as understood by the writers of the ATS and in the plain text of the statute; thus, aiding and abetting is “itself a violation of the law of nations,” and comes within the focus of the ATS. Id. at 24–25.

Finally, John Doe contends that the Court must view the allegations of aiding and abetting favorably towards them, because they were unable to amend their complaint as ordered by the 9th Circuit to provide more detailed and specific descriptions of the actions taken by Nestlé and Cargill. Id. at 34. However, John Doe still argues that the action of Nestlé and Cargill of “maintaining the system of child slavery and forced labor on Ivorian cocoa plantations” is sufficient to establish aiding and abetting. Id. at 29. Finally, John Doe argues that Nestlé and Cargill’s actions are not too minimal to determine that aiding and abetting occurred: Nestlé and Cargill employees from the United States, inspected the plantations and provided trainings to the farmers, as well as funded and supplied the equipment for those contracted cocoa farms. Id. at 35. All this occurred while children were enslaved. Id. John Doe contends that, since similar actions have been deemed “substantial assistance” in many international courts, this case sufficiently presents evidence of aiding and abetting under the ATS. Id. at 35–36.

DOMESTIC CORPORATE LIABILITY UNDER COURT PRECEDENT

Nestlé contends that the Court has already decided the issue of corporate liability and has indicated, for reasons of international relations, that it should not extend liability to domestic corporations under the ATS. Brief for Nestlé at 34. Cargill also argues that the reasoning of Jesner, which determined that ATS liability does not extend to foreign corporations, “compels the conclusion” that domestic corporations are immune from liability. Brief for Cargill at 40–41. Additionally, Nestlé argues that, under the Jesner and Sosa precedent, the conduct must be “specific, universal, and obligatory” under international norms, and must not interfere or seriously disrupt foreign affairs. Brief for Nestlé at 35. Nestlé further assets that the Court would err in extending the ATS to find corporate liability because there is no international norm that supports such a finding. Id. Cargill similarly argues that there is “no international law norm of corporate liability,” and that therefore corporate liability fails the Jesner analysis.

In response, John Doe contends that the tests set out in Jesner and Sosa do not create a blanket rule against corporate liability. Brief for Respondent at 37. Indeed, John Doe asserts that the Court did not “distinguish between classes of non-state actors,” because the ATS treats corporations and individuals the same. Id. Furthermore, John Doe argues that Nestlé and Cargill misinterpret Sosa’s “specific, universal, and obligatory” language. Id. at 44. Instead, John Doe contends that the Court can apply the ATS in this particular case because it passes the tests that the Court set out in Jesner and Sosa. Id. at 42. John Doe asserts, in particular, that the first step in the test refers to finding a violation of international law, which in this case relates to child slavery, not whether a corporation can be found liable. Id. In response to Jesner’s second step, John Doe contends that corporate liability would not offend other nations or result in retaliatory action, particularly because this case did not incite protest from the Ivorian government and, more broadly, other nations extend corporate liability in similar cases. Id. at 28, 54.

CONGRESSIONAL INTENT FOR DOMESTIC LIABILITY

Nestlé argues that the original Congress intended for the ATS to extend only to conduct that was in “violation of safe conducts, infringement of the rights of ambassadors, and piracy;” thus, the history of the ATS indicates that corporate liability was never considered under the ATS. Brief for Nestlé at 34–35. On this point, Nestlé claims that international norms traditionally only extended to sovereign nations themselves and later to individuals, not to corporations. Brief for Nestlé at 37. Nestlé also argues that a finding of “mens rea [for] a multimember [corporate] body” would be nearly impossible; thus, the international courts have been intentional in not extending corporate liability. Id. at 39.

Nestlé also looks to the Torture Victim Protection Act of 1991 (“TVPA”) to provide context to the ATS, explaining that Congress’s refusal to extend corporate liability under that statute parallels Congress’s intent to immunize corporations from the ATS. Id. at 42–43. In this case, Nestlé argues that allowing corporate liability and also extending it to a corporation’s subsidiaries would offend the rights of parent companies in contravention of the United States’ foreign policy. Id. at 45.

In response, John Doe argues that the plain language of the ATS gives the Court jurisdiction for tort claims; since corporations are a class of defendants in tort cases, the ATS must thus extend to corporations as well. Brief for Respondent at 38. John Doe asserts that corporate liability has been part of the laws of the United States since its inception. Id. at 36. John Doe argues that enforcing violations of international customary law comes from federal common law. Id. Because corporations can be found liable for various offenses in American federal courts, John Doe argues that Nestlé and Cargill may be found liable for the violation of international norms in this case. Id. at 43. Finally, John Doe argues that international norms prohibiting slavery apply to all private actors, including corporations; indeed, John Doe argues that the slave trade was a “quintessentially corporate activity.” Id. at 36–37, 45. Since multi-state conventions condemn slavery, John Doe argues that it would not violate international norms for the Court to hold Nestlé and Cargill liable. Id. at 46–47.

John Doe asserts that the TVPA is a secondary law under the ATS that applies to extraterritorial jurisdiction and that Congress made no action to replace or limit the ATS with the creation of this statute. Id. at 51. Furthermore, John Doe points out that Congress did not intend to replace the ATS with the TVPA, and the TVPA should therefore not be used to limit it. Id. at 52. Finally, John Doe argues that had Congress wanted to narrow the scope of the ATS, Congress would have specified that corporations could not face liability since Congress was intentional in choosing that ATS claims can be brought only “by aliens.” Id. at 39.