`
`Nos. 19-416 & 19-453
`
`IN THE
`Supreme Court of the United States
`NESTLÉ USA, INC.,
`
`Petitioner,
`
`v.
`
`JOHN DOE I, ET AL.
`
`
`
`Respondents.
`(For continuation of caption, see inside cover.)
`
`On Petitions for Writs of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`BRIEF FOR THE NATIONAL
`CONFECTIONERS ASSOCIATION,
`THE WORLD COCOA FOUNDATION, AND
`THE EUROPEAN COCOA ASSOCIATION AS
`AMICI CURIAE SUPPORTING PETITIONERS
`
`WILLIAM M. JAY
`ANDREW KIM
`GOODWIN PROCTER LLP
`901 New York Ave., N.W.
`Washington, D.C. 20001
`
`
`
`October 28, 2019
`
`KEVIN P. MARTIN
` Counsel of Record
`GOODWIN PROCTER LLP
`100 Northern Avenue
`Boston, MA 02210
`kmartin@goodwinlaw.com
`(617) 570-1000
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CARGILL, INC.,
`CARGILL, INC.,
`
`v.
`V.
`
`JOHN DOE I, ET AL.
`JOHN DOE I, ET AL.
`
`Petitioner,
`Petitioner,
`
`Respondents.
`Respondents.
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`B.
`
`PAGE
`INTEREST OF THE AMICI CURIAE ....................... 1
`SUMMARY OF ARGUMENT ..................................... 3
`ARGUMENT ............................................................... 5
`The court of appeals’ decision effectively
`A.
`negates the presumption against
`extraterritoriality, exposing a wide range of
`American companies to ATS lawsuits. ............ 5
`The Ninth Circuit’s decision undermines the
`political branches’ solution to the problem of
`forced child labor in other countries. ............... 9
`If allowed to stand, the court of appeals’
`decision will discourage American companies’
`involvement in the fight against forced child
`labor ................................................................ 17
`CONCLUSION .......................................................... 20
`
`
`
`C.
`
`
`
`
`
`
`
`
`ii
`
`
`TABLE OF AUTHORITIES
`
` PAGE(S)
`
`CASES
`Doe I v. Nestle USA, Inc.,
`766 F.3d 1013 (9th Cir. 2014) .............................. 19
`Doe I v. Nestle USA, Inc.,
`788 F.3d 946 (9th Cir. 2015) ................................ 20
`Doe v. Exxon Mobil Corp.,
`654 F.3d 11 (D.C. Cir. 2011) .................................. 8
`Jesner v. Arab Bank, PLC,
`138 S. Ct. 1386 (2018) .................................. 5, 8, 17
`Khulumani v. Barclay Nat’l Bank Ltd.,
`504 F.3d 254 (2d Cir. 2007) ................................... 7
`Kiobel v. Royal Dutch Petroleum Co.,
`569 U.S. 108 (2013) ...................................... 5, 6, 17
`Mastafa v. Chevron Corp.,
`770 F.3d 170 (2d Cir. 2014) ................................... 8
`Morrison v. Nat’l Austl. Bank Ltd.,
`561 U.S. 247 (2010) ................................................ 6
`
`Presbyterian Church of Sudan v.
`Talisman Energy, Inc.,
`582 F.3d 244 (2d Cir. 2009) ................................... 8
`
`
`
`
`
`
`
`
`iii
`
`
`
`Ratha v. Phatthana Seafood Co.,
`No. 16-4271, 2017 WL 8293174
`(C.D. Cal. Dec. 21, 2017) ...................................... 15
`Sosa v. Alvarez-Machain,
`542 U.S. 692 (2004) ................................................ 5
`STATUTES AND REGULATIONS
`18 U.S.C. § 1589 ........................................................ 14
`18 U.S.C. § 1595 ........................................................ 14
`18 U.S.C. § 1596 ........................................................ 14
`28 U.S.C. § 1350 .......................................................... 2
`Food, Conservation, and
`Energy Act of 2008, § 3205,
`Pub. L. No. 110-246, 122 Stat. 1838 .................... 15
`
`Consultative Group to Eliminate the Use of
`Child Labor and Forced Labor in
`Imported Agricultural Products,
`76 Fed. Reg. 20,305 (Apr. 12, 2011) .............. 15, 16
`OTHER AUTHORITIES
`147 Cong. Rec. 12,269 (2001)
`(statement of Rep. Engel) .................................... 11
`148 Cong. Rec. 370 (2002)
`(statement of Sen. Harkin) .................................. 11
`
`
`
`
`
`
`
`
`iv
`
`
`
`Convention (No. 182) Concerning the
`Prohibition and Immediate Action for
`the Elimination of the Worst Forms of
`Child Labour, June 17, 1999,
`2133 U.N.T.S. 161 .................................................. 2
`Elke de Buhr & Elise Gordon,
`Bitter Sweets: Prevalence of Forced
`Labour & Child Labour in the Cocoa
`Sectors of Côte d’Ivoire & Ghana ......................... 10
`
`Forest- and Farmer-Friendly Cocoa in West
`Africa, The World Bank (Dec. 19, 2017),
`https://www.worldbank.org/en/news/
`feature/2017/12/19/forest-and-farmer-
`friendly-cocoa-in-west-africa. .............................. 10
`H.R. Rep. No. 106-939 (2000) .................................... 14
`Joint Statement from
`U.S. Sen. Tom Harkin, Rep. Eliot Engel,
`and the Chocolate Cocoa/Industry on
`Efforts to Address the Worst Forms of
`Child Labor in the Cocoa Growing
`Protocol (July 1, 2005) ......................................... 12
`Joint Statement from U.S. Senator
`Tom Harkin, Representative Eliot Engel,
`and the Chocolate and Cocoa Industry
`on the Implementation of the Harkin-
`Engel Protocol (June 16, 2008) ............................ 12
`
`
`
`
`
`
`
`
`v
`
`
`
`Paul C. Rosenthal & Anne E. Hawkins,
`Applying the Law of Child Labor in
`Agricultural Supply Chains:
`A Realistic Approach, 21 U.C. Davis J.
`Int’l L. & Pol’y 157 (2015) .................................... 10
`U.S. Dep’t of Labor,
`2018 CLCCG Annual Report ................... 11, 13, 14
`U.S. Dep’t of Labor,
`2018 List of Goods Produced by Child
`Labor or Forced Labor ........................................... 7
`U.S. Dep’t of Labor, Bureau of Int’l Affairs,
`Child Labor in the Production of Cocoa,
`https://www.dol.gov/agencies/ilab/our-
`work/child-forced-labor-trafficking/child-
`labor-cocoa ...................................................... 12, 13
`U.S. Dep’t of Labor,
`Declaration of Joint Action to Support
`Implementation of the Harkin-Engel
`Protocol (Sept. 13, 2010),
`https://www.dol.gov/
`sites/dolgov/files/ILAB/legacy/files/
`GhanaSignedDeclaration.pdf .............................. 13
`
`
`
`
`
`
`
`
`
` INTEREST OF THE AMICI CURIAE1
`The National Confectioners Association (“NCA”) is
`the leading trade organization for the $35 billion Amer-
`ican confectionary industry. NCA’s members are locat-
`ed across 40 states, and they collectively employ ap-
`proximately 54,000 workers in more than 1,300 facili-
`ties across the country. NCA’s mission is to advance,
`protect, and promote the American confectionary in-
`dustry.
`The World Cocoa Foundation (“WCF”) is an interna-
`tional membership organization that promotes sus-
`tainability in the cocoa sector. WCF catalyzes public-
`private action to help farmers prosper, empower cocoa-
`growing communities, respect human rights, and con-
`serve the environment. WCF’s members include cocoa
`and chocolate manufacturers, processors, supply-chain
`managers, and other companies worldwide, represent-
`ing more than 80% of the global cocoa market.
`The European Cocoa Association (“ECA”) is a trade
`association composed of the major companies involved
`in cocoa-bean trade, processing, warehousing, and oth-
`er logistical activities in Europe. ECA monitors and
`reports on regulatory and scientific developments af-
`fecting the cocoa sector. In addition, ECA is actively
`engaged in European and international forums in
`working toward a sustainable cocoa economy. Over the
`
`1 All parties have consented to the filing of this brief. Amici curiae
`timely provided notice of intent to file this brief. No counsel for a
`party authored any part of this brief, and no such counsel or party
`made a monetary contribution intended to fund the preparation or
`submission of this brief. No person other than amici curiae, their
`members, or their counsel made a monetary contribution to the
`brief’s preparation or submission.
`(1)
`
`
`
`
`
`2
`
`
`
`years, ECA has worked closely with its members and
`partners (which includes national governments and
`civil-society organizations) to understand, communi-
`cate, and address the root causes of child labor in
`smallholder farming.
`One of amici’s shared objectives is to promote sus-
`tainable and responsible cocoa-farming practices
`around the world. Amici and their members have
`partnered with cocoa-producing and cocoa-consuming
`governments, international development organizations,
`famer groups, and civil society organizations to im-
`prove the income and livelihood of cocoa-farming fami-
`lies, enhance community institutions and infrastruc-
`ture, promote environmentally sustainable land-use
`and farming practices, and ensure human rights are
`protected in cocoa-growing communities, including
`elimination of labor practices recognized as the worst
`forms of child labor.2 In line with their member com-
`pany sustainability programs, and with the encour-
`agement of members of Congress, the Department of
`Labor, and the governments of the leading cocoa-
`producing countries, amici and their members have in-
`vested hundreds of millions of dollars in these efforts.
`The decision of the court of appeals represents the
`worst form of judicial intrusion into foreign relations
`under the Alien Tort Statute (ATS), 28 U.S.C. § 1350.
`It would treat cocoa-using companies’ efforts in coordi-
`
`2 An international Convention defines the “worst forms of child
`labor” as “forced or compulsory” labor or labor that “is likely to
`harm the health, safety or morals of children.” Convention (No.
`182) Concerning the Prohibition and Immediate Action for the
`Elimination of the Worst Forms of Child Labour, art. 3, June 17,
`1999, 2133 U.N.T.S. 161.
`
`
`
`
`
`
`
`3
`
`
`
`nation with the political branches to combat overseas
`forced child labor as evidence of aiding and abetting
`forced child labor and subject the companies to ATS
`liability. If left to stand, the decision risks undoing the
`progress achieved under the collaborative framework
`the political branches chose to address forced child la-
`bor on overseas cocoa farms, and discouraging Ameri-
`can companies from participating in future efforts.
`SUMMARY OF ARGUMENT
`The Ninth Circuit’s decision will inevitably have
`chilling effects in many areas of foreign commerce.
`Allegations of forced child labor have been made not
`only with respect to cocoa farmers in West Africa, but
`against some of the United States’ largest trading
`partners and against numerous industries. The Ninth
`Circuit’s virtual nullification of the presumption
`against extraterritoriality, which conflicts with two
`other circuits’ proper applications of the presumption,
`inevitably will be used to hale into court numerous
`U.S.-based corporations that merely do business and
`invest
`in economic development
`in developing
`countries. The Court should grant the petitions for
`writs of certiorari to resolve the split on how to apply
`the ATS’s presumption against extraterritorial
`application. In doing so, it should put an end to the
`Ninth Circuit’s disruption of the political branches’
`solution to the problem of forced labor in overseas
`industries.
`For nearly two decades, the makers of cocoa-based
`products (which includes amici’s members) have
`worked with the federal government, members of
`Congress, the governments of the leading cocoa-
`producing
`countries,
`international development
`organizations, non-government organizations (NGOs),
`
`
`
`
`
`
`4
`
`
`and foreign cocoa farmers to combat the worst forms of
`child
`labor
`in the cocoa supply chain.
` This
`collaboration has been encouraged and supported by
`the Harkin-Engel Protocol. The political branches
`elected this voluntary agreement and framework to
`address the problem of forced child labor on overseas
`cocoa farms, rather than a mandatory certification
`process. To the extent Congress has enacted laws
`providing civil claims against those involved in forced
`child labor, they would not reach the U.S. cocoa
`industry under the allegations in this case.
`Respondents brought ATS claims alleging that
`petitioners’ efforts to combat forced child labor in West
`Africa actually aided and abetted forced child labor in
`violation of international law. The Ninth Circuit
`concluded that
`it was plausible to
`infer that
`petitioners’ payments
`to
`impoverished African
`farmers—provided as part of standard agreements to
`purchase cocoa—actually constituted “kickbacks” to
`encourage the use of forced child labor. Nestlé Pet.
`App. 43a-44a. According to the court of appeals,
`because petitioners’ U.S. headquarters exercised
`normal corporate oversight of
`their overseas
`operations, this is enough to overcome the presumption
`against extraterritoriality. That decision represents an
`error of law. Allowing ATS claims to go forward under
`such an expansive theory and on such vague
`allegations will encourage further lawsuits against
`U.S. companies in the cocoa industry. This will
`discourage industry participation in the ongoing fight
`against forced child labor at a time in which such
`participation is crucial—much progress has been made,
`but there is still much work to be done.
`
`
`
`
`
`
`
`
`5
`
`
`
`
` ARGUMENT
`A. The court of appeals’ decision effectively
`negates the presumption against
`extraterritoriality, exposing a wide range of
`American companies to ATS lawsuits.
`The Constitution unquestionably vests authority
`over foreign relations not in the judiciary, but in the
`executive and legislative branches. Accordingly, and as
`this Court has cautioned, courts should be wary of
`“craft[ing] remedies for the violation of new norms of
`international law [that] would raise risks of adverse
`foreign policy consequences.” Sosa v. Alvarez-Machain,
`542 U.S. 692, 727-28 (2004). “[T]he potential implica-
`tions for the foreign relations of the United States of
`recognizing such causes should make courts particular-
`ly wary of impinging on the discretion of the Legisla-
`tive and Executive Branches in managing foreign af-
`fairs.” Id. at 727. Even if there is a “specific” and “con-
`trolling” norm of international law that can serve as
`the basis for an ATS claim, “it must be determined . . .
`whether allowing [a] case to proceed under the ATS is
`a proper exercise of judicial discretion, or instead
`whether caution requires the political branches to
`grant specific authority before corporate liability can be
`imposed.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386,
`1399, 1403 (2018).
`This case presents an instance in which the need for
`judicial restraint from interference in the political
`branches’ foreign-policy choices is at its greatest:
`“when the question is whether a cause of action under
`the ATS reaches the conduct within the territory of an-
`other sovereign.” Kiobel v. Royal Dutch Petroleum Co.,
`569 U.S. 108, 116-17 (2013). The presumption against
`
`
`
`
`
`
`6
`
`
`
`extraterritoriality does not “retreat[] . . . whenever
`some domestic activity is involved in the case.” Morri-
`son v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 266 (2010).
`While the ATS requires that claims “touch and concern
`the territory of the United States . . . with sufficient
`force to displace the presumption against extraterrito-
`rial application,” Kiobel, 569 U.S. at 124-25, the Ninth
`Circuit has lowered that bar to require only some mod-
`icum of conduct that touches the territory of the United
`States, full stop.
`It is not difficult to see how many other industries
`might be exposed to ATS liability under the court of
`appeals’ relaxed standard for applying the ATS to es-
`sentially foreign conduct. A plaintiff looking to hold a
`U.S. corporation responsible for some violation of in-
`ternational law that occurs entirely abroad can survive
`a motion to dismiss if he alleges that: (1) an agent of a
`U.S. corporation made some payment overseas that
`went beyond the market price of specific goods re-
`ceived, for example a payment to secure an “exclusive
`supplier” relationship in a foreign market, (2) the de-
`fendant superintended that payment from its head-
`quarters in the United States, and (3) somewhere in
`the foreign supply chain forced labor was used. Nestlé
`Pet. App. 43a-44a (nexus to United States consisted of
`“financing decisions” or “financing arrangements”
`“originat[ing]” in “United States offices”). No allega-
`tion that the U.S. defendant even intended or directed
`the overseas human rights abuse is necessary.
`On the issue of forced child labor alone, U.S. com-
`panies in a number of industries potentially could be
`exposed to ATS liability under the Ninth Circuit’s rea-
`soning. For example, the U.S. Department of Labor
`
`
`
`
`
`
`7
`
`
`
`reports that forced and child labor exists in the Chi-
`nese toy and electronics industries. U.S. Dep’t of La-
`bor, 2018 List of Goods Produced by Child Labor or
`Forced Labor 8. The same problem exists with respect
`to cattle and sugarcane from Brazil; textiles and gar-
`ments from India; tomatoes from Mexico; carpets from
`Pakistan; and shrimp from Thailand. Id. at 11-14.
`The burden of defending an ATS suit—even if the
`lawsuit is ultimately unsuccessful on the merits—is a
`heavy one. ATS lawsuits involve complex issues and
`often require discovery from foreign sources, making
`litigating a case even to summary judgment prohibi-
`tively expensive and practically impossible. As the 14-
`year history of this case demonstrates, ATS cases also
`can drag on for years. And in those years of defending
`what should have been an easily-dismissed suit about
`extraterritorial conduct, a company may suffer signifi-
`cant reputational harm. The combination of these fac-
`tors will increase pressure on a defendant to settle the
`lawsuit. See Khulumani v. Barclay Nat’l Bank Ltd.,
`504 F.3d 254, 295 (2d Cir. 2007) (Korman, J., concur-
`ring in part and dissenting in part) (describing an ATS
`lawsuit as a “vehicle to coerce a settlement”), aff’d for
`lack of quorum sub nom. Am. Isuzu Motors, Inc. v.
`Ntsebeza, 553 U.S. 1028 (2008).
`The ATS was not intended to put American compa-
`nies at risk of expensive and damaging litigation mere-
`ly because they are engaged in international commerce
`with major U.S. trading partners. As another court of
`appeals has recognized, the ATS is not a “vehicle for
`private parties to impose embargos or international
`sanctions through civil actions” by alleging a combina-
`tion of “knowledge of . . . abuses coupled only with
`
`
`
`
`
`
`8
`
`
`
`. . . commercial activities.” Presbyterian Church of Su-
`dan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d
`Cir. 2009). Much less was the ATS intended to raise
`the specter of litigation should—as here—U.S. compa-
`nies merely provide financial support to impoverished
`foreign suppliers as part of a long-recognized type of
`commercial arrangement that is, in addition, con-
`sistent with Congressionally-approved policies.
`Tellingly, respondents all but admit that they
`brought their claims in the United States because
`“such claims cannot be maintained in their home coun-
`try of Mali as currently there is no law in Mali” for
`such claims, and (they allege) their claims cannot be
`brought in Côte d’Ivoire because “the judicial system
`. . . would likely be unresponsive to” respondents’
`claims. Second Am. Compl. ¶ 2. But the ATS does not
`exist to remedy flaws in foreign legal systems. The
`ATS is a “strictly jurisdictional” statute that allows for
`a federal court’s consideration of a “limited category of”
`claims “of torts in violation of the law of nations,” Jes-
`ner, 138 S. Ct. at 1397; see also Mastafa v. Chevron
`Corp., 770 F.3d 170, 178 (2d Cir. 2014) (“[T]he ATS’s
`‘reference to the law of nations must be narrowly read
`if the section is to be kept within the confines of Article
`III.” (citation and internal quotation marks omitted));
`Doe v. Exxon Mobil Corp., 654 F.3d 11, 75 (D.C. Cir.
`2011) (Kavanaugh, J., dissenting) (“‘Foreign conduct is
`generally the domain of foreign law,’ and ‘courts should
`assume that legislators take account of the legitimate
`sovereign interests of other nations when they write
`American laws.’” (quoting Microsoft Corp. v. AT&T,
`550 U.S. 437, 455 (2007))).
`
`
`
`
`
`
`
`
`9
`
`
`
`
`So long as the Ninth Circuit’s decision stands, it
`will encourage litigation not only against American
`members of the cocoa industry, but against any Ameri-
`can company doing business in a foreign market where
`forced labor exists. This will necessarily discourage
`American companies from investing in economic devel-
`opment and supporting the achievement of the United
`Nations Sustainable Development Goals in developing
`countries, including achieving needed labor reforms
`abroad. The Court should grant the petitions for cer-
`tiorari, reverse the court of appeals’ decision, and
`thereby confirm that normal corporate oversight of
`overseas operations from a U.S. corporate headquar-
`ters does not suffice to overcome the presumption
`against extraterritoriality under the ATS.
`B. The Ninth Circuit’s decision undermines the
`political branches’ solution to the problem
`of forced child labor in other countries.
`The need for caution is particularly acute in this
`case because the political branches already have given
`considerable thought to the best means for advancing
`our nation’s interest in combatting the use of forced
`child labor on overseas cocoa farms, and it is not
`through litigation. Allowing suits against American
`companies under the ATS for what is effectively their
`mere involvement in the international cocoa trade and
`efforts to combat forced child labor will upend the bal-
`ance struck by the political branches. The judiciary
`has neither the resources nor the institutional compe-
`tence to second guess the political branches on this -
`subject.
`1. Forced child labor on farms in overseas cocoa-
`producing regions is an acknowledged problem that
`
`
`
`
`
`
`10
`
`
`
`governments in West Africa and industry have been
`working together to address for decades. These efforts
`have been greatly complicated by the fragmented na-
`ture of the cocoa farming economy. In Ghana and Côte
`d’Ivoire, two of the largest exporters of cocoa, over 90
`percent of the cocoa beans are grown on small, family-
`owned farms that are usually no larger than 7-10
`acres. Paul C. Rosenthal & Anne E. Hawkins, Apply-
`ing the Law of Child Labor in Agricultural Supply
`Chains: A Realistic Approach, 21 U.C. Davis J. Int’l L.
`& Pol’y 157, 177 (2015); Forest- and Farmer-Friendly
`Cocoa in West Africa, The World Bank (Dec. 19, 2017),
`https://www.worldbank.org/en/news/feature/2017/12/19
`/forest-and-farmer-friendly-cocoa-in-west-africa.
`Unsurprisingly, children on small, family-owned
`farms, particularly in capital-poor regions, often work
`alongside their parents. The vast majority of children
`working on cocoa farms are not forced laborers. See
`Elke de Buhr & Elise Gordon, Bitter Sweets: Preva-
`lence of Forced Labour & Child Labour in the Cocoa
`Sectors of Côte d’Ivoire & Ghana 28 (estimating that
`less than 1% of child laborers on Ivorian cocoa farms,
`and 2% of child laborers on Ghanaian cocoa farms, are
`forced laborers). The mere presence of children on a
`West African cocoa farm is therefore no indication of
`forced child labor.
`Against this backdrop, the Harkin-Engel Protocol,
`formally known as the Protocol for the Growing and
`Processing of Cocoa Beans and Their Derivative Prod-
`ucts in a Manner that Complies with ILO Convention
`182, is the means by which the political branches have
`opted to address the worst forms of child labor in over-
`seas cocoa production for the past two decades.
`
`
`
`
`
`
`11
`
`
`
`
`The Protocol was implemented in 2001 as a “re-
`sponse to reports of child labor in West African cocoa
`production.” U.S. Dep’t of Labor, 2018 CLCCG Annual
`Report 2, available at https://www.dol.gov/sites/
`dolgov/files/ILAB/legacy/files/CLCCG2018AnnualRep
`ort.pdf. One of the Protocol’s sponsors, Congressman
`Eliot Engel, had initially proposed an appropriations
`rider that would have required the U.S. Food and Drug
`Administration (FDA) to “develop labeling require-
`ments indicating that no child slave labor was used in
`the growing and harvesting of cocoa.” 147 Cong. Rec.
`12,269 (2001) (statement of Rep. Engel). As the FDA
`itself explained, however, such a labeling program was
`“unrealistic and impossible to attain.” 148 Cong. Rec.
`370 (2002) (statement of Sen. Harkin).
`Congressman Engel, joined by Senators Tom
`Harkin and Herb Kohl, therefore determined that the
`best means for ensuring that cocoa products “have been
`produced without any of the worst forms of child labor”
`would be an “unprecedented framework agreement”
`that would “result in a credible, public certification sys-
`tem.” Id. The Protocol reflected a decision by lawmak-
`ers to “set[] out a specific, finite timetable” during
`which “the capacity to publicly and credibly certify” co-
`coa and cocoa products would be built “incrementally.”
`Id.
`Over the past eighteen years, the political branches
`maintained their commitment to the Protocol as the
`framework for addressing child labor in the West Afri-
`can cocoa sectors. In 2005, Senator Harkin and Con-
`gressman Engel issued a joint statement that said
`“[t]oday, the Protocol stands as a framework for pro-
`gress, bringing together industry, West African gov-
`
`
`
`
`
`
`12
`
`
`
`ernments, organized labor, non-governmental organi-
`zations (NGOs), farmer groups and experts in a con-
`certed effort to eliminate the worst forms of child labor
`and forced labor from the growing, processing and sup-
`ply chain of cocoa in West Africa.”3 Likewise, in 2008,
`they issued another joint statement that said “[s]ince
`its signing, the Protocol has been a positive and im-
`portant catalyst for change, driving a number of im-
`portant achievements.”4
`The U.S. Department of Labor has provided exten-
`sive oversight and support to the implementation of
`the Protocol—DOL describes its role as “a driving force
`in bringing people together to coordinate efforts, share
`ideas, and foster new collaborations to alleviate child
`labor in cocoa.” U.S. Dep’t of Labor, Bureau of Int’l Af-
`fairs, Child Labor in the Production of Cocoa,
`https://www.dol.gov/agencies/ilab/our-work/child-forced
`-labor-trafficking/child-labor-cocoa. Since 2002, it has
`awarded government contracts worth more than $55
`
`
`3 Joint Statement from U.S. Sen. Tom Harkin, Rep. Eliot Engel,
`and the Chocolate Cocoa/Industry on Efforts to Address the Worst
`Forms of Child Labor in the Cocoa Growing Protocol (July 1,
`2005), available at https://votesmart.org/public-statement/111420/
`joint-statement-from-u-s-sen-tom-harkin-rep-eliot-engel-and-the-
`chocolatecocoa-industry-on-efforts-to-address-the-worst-forms-of-
`child-labor#.XbRbVehKjIV.
`4 Joint Statement from U.S. Senator Tom Harkin, Representative
`Eliot Engel, and the Chocolate and Cocoa Industry on the Imple-
`mentation of the Harkin-Engel Protocol (June 16, 2008), available
`at https://www.csrwire.com/press_releases/14132-Joint-Statement-
`from-U-S-Senator-Tom-Harkin-Representative-Eliot-Engel-and-
`the-Chocolate-and-Cocoa-Industry-on-the-Implementation-of-the-
`Harkin-Engel-Protocol-.
`
`
`
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`
`
`13
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`
`
`million to different organizations to support the im-
`plementation and monitoring of the Protocol. Id.
`In 2010, the Department of Labor, the governments
`of Ghana and Côte d’Ivoire, and the U.S. National Con-
`fectioners Association signed a Declaration of Joint Ac-
`tion to Support the Implementation of the Harkin-
`Engel Protocol. U.S. Dep’t of Labor, Declaration of
`Joint Action to Support Implementation of the Harkin-
`Engel Protocol (Sept. 13, 2010), https://www.dol.gov/
`sites/dolgov/files/ILAB/legacy/files/GhanaSignedDecla
`ration.pdf. The signatories, which included Senator
`Harkin and Congressman Engel as witnesses, both re-
`affirmed a commitment to the Protocol and agreed to a
`“Framework of Action.” 2018 CLCCG Annual Report
`at 49-55 (providing the text of the Framework).
`The Framework set out the following areas in which
`the signatories would seek improvement with new or
`expanded initiatives:
` Provision of education and vocational training ser-
`vices to children as a means to remove children
`from, or prevent them from entering into the worst
`forms of child labor;
` Application of protective measures to remove work-
`place hazards from cocoa farming to allow children
`of legal working age to work under safe conditions;
` Promotion of livelihood services for the households
`of children working in the cocoa sector;
` Establishment and implementation of community-
`based child labor monitoring systems in cocoa grow-
`ing areas; and
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`14
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` Conducting of national representative child labor
`surveys at least every five years.
`Reflecting the public-private partnership at the
`heart of the Protocol, the Framework’s “key stakehold-
`ers” include cocoa growing communities, producer gov-
`ernments, industry, foreign donors, social partners and
`civil society, and implementing organizations. The
`Framework established the Child Labor Cocoa Coordi-
`nating Group in 2010, a coordination and steering
`group convened by the U.S. Department of Labor that
`has brought together the U.S. Department of Labor,
`the offices of Senator Harkin and Congressman Engel,
`the producer governments, and industry on an annual
`basis to review progress under the Protocol. Id. at 50.
`2. In addition to the Harkin-Engel Protocol’s specif-
`ic approach to addressing forced child labor on overseas
`cocoa farms, Congress also has enacted legislation
`more generally aimed at the problem of forced labor
`abroad. In 2000, Congress passed the Victims of Traf-
`ficking and Violence Protection Act of 2000 (“TVPA”), a
`law intended to combat the “transnational crime” of
`“forced labor,” such as “involuntary servitude [and] pe-
`onage,” which “substantially affects interstate and for-
`eign commerce.” H.R. Rep. No. 106-939, at 4 (2000).
`The Act makes it an offense to, inter alia, “knowingly
`benefit[], financially or by receiving anything of value,
`from participation in a venture which has engaged in
`the providing or obtaining of” forced labor. 18 U.S.C.
`§ 1589(b). Congress specifically made this offense ex-
`traterritorial when it renewed the Act in 2008, id.
`§ 1596. The Act allows victims to seek civil remedies.
`Id. § 1595. Thus, to the extent that forced labor abroad
`can be the subject of a damages suit in the United
`
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`15
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`States, Congress has prescribed a specific statutory
`scheme for it.
`Notably, respondents’ allegations against petition-
`ers would not have stated a claim under the TVPA.
`The TVPA does not impose liability for receiving (and
`selling) goods that may have been made with involun-
`tary child labor. The TVPA instead requires participa-
`tion in the “venture” of the forced labor. E.g., Ratha v.
`Phatthana Seafood Co., No. 16-4271, 2017 WL
`8293174, at *4 (C.D. Cal. Dec. 21, 2017) (granting
`summary judgment to defendants on the TVPRA claim
`previously allowed at the motion-to-dismiss stage be-
`cause defendants were passive beneficiaries and took
`no “action to operate or manage the venture,” such as
`“directing or participating in” “labor recruitment,”
`“employment practices,” or “working conditions at [the]
`factory”), appeal filed No. 18-55041 (9th Cir. Jan. 1,
`2018). The vague allegations of corporate oversight
`over financial and technical support provided to foreign
`farmers found in respondents’ complaint are plainly
`insufficient to state a TVPA claim.
`In addition to the TVPA, in 2008, Congress estab-
`lished the Consultative Group to Eliminate the Use of
`Child Labor and Forced Labor in Imported Agricultural
`Products, which developed standards later adopted by
`the Department of Agriculture for importers to follow
`in production, processing, and distribution. Consulta-
`tive Group to Eliminate the Use of Child Labor and
`Forced Labor in Imported Agricultural Products, 76
`Fed. Reg. 20,305 (Apr. 12, 2011); see also Food, Conser-
`vation, and Energy Act of 2008, § 3205, Pub. L. No.
`110-246, 122 Stat. 1838 (establishing the Consultative
`Group). Under the Group’s guidelines, companies were
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`16
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`encouraged to “engage with governments, international
`organizations, and/or local communities to promote the
`provision of social safety nets that prevent child and
`forced labor and provide services to victims and per-
`sons at risk.” 76 Fed. Reg. at 20,307.
`3. As detailed above, the political branches have
`carefully crafted both voluntary solutions (the Harkin-
`Engel Protocol and subsequent Framework) and man-
`datory
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