The Supreme Court on Tuesday questioned claims that U.S. companies should be held responsible for alleged African child slave labor.
Justice Samuel Alito drilled into a claim brought forward from six former child slaves in Mali, who accused the food manufacturers Nestle and Cargill of buying cocoa from farms when they “knew or should have known” that it was produced with child labor.
“Is it too much to ask that you allege specifically that the defendants … specifically knew that forced child labor was being used on the farms or farm cooperatives with which they did business?” Alito asked the former slaves’ attorney Paul Hoffman.
Alito’s question came amid arguments over whether the six plaintiffs have the ability to sue Nestle and Cargill, the latter of which is one of the largest privately-held American companies, in U.S. courts. It arose in 2005 when human rights advocates sought damages against the companies for aiding and abetting African companies in perpetuating forced child labor. The case has been dismissed several times for not meeting requirements in the 1789 Alien Tort Statute, a congressional act that allows, under certain circumstances, for noncitizens to seek legal damages.
The court has historically protected businesses from the threat of suit from individuals outside the United States. Still, Alito, along with the other justices, were wary of siding with the corporations, arguing that if there was evidence of human rights abuses, the court would have to consider it. Justice Stephen Breyer raised similar concerns, saying that while human rights are a major concern, the lawsuit did not clearly show that either company had explicit knowledge of child slavery.
“What counts as aiding and abetting for purposes of this statute?” Breyer said. “When I read through your complaint, it seemed to me that all or virtually all of your complaint amounts to doing business with these people. They help pay for the farm. And that’s about it.”
The company’s defense attorney, Neal Katyal, seized on the uncertainty to emphasize that his client, Nestle, “abhors” child slavery. Along with Deputy Solicitor General Curtis Gannon, he also argued that allowing the suit to play out could create future foreign affairs fiascoes.
“But this case isn’t about that,” Katyal said in reference to the child slavery claims, arguing that the Supreme Court should not allow it to proceed on the grounds that the non-American plaintiffs do not meet federal requirements to sue in U.S. courts.
Justice Brett Kavanaugh argued that it is likely not the court’s place to decide on an issue that is governed by a centuries-old congressional act.
“This case really is a case, I think, about the proper role of the judiciary as compared to the proper role of Congress here in fleshing out the Alien Tort Statute,” he said.
The California-based 9th Circuit Court of Appeals in 2018 put the case on the path to the Supreme Court following allegations that the companies of paid African farmers to employ any means, possibly including child labor, to keep the price of cocoa as low as possible. Various news outlets since the 1990s have uncovered evidence of child labor on West African farms. A 2019 Washington Post investigation revealed that Mars, Nestle, and Hershey are unable to guarantee that their products are made without child labor.
The court is expected to reach a decision by next summer.
