(Bloomberg) -- Six men forced into slavery as boys to harvest cocoa pods have a second chance to go after some of the world’s biggest chocolate companies in U.S. court, saying the companies should have known their suppliers used forced labor.
They’re asking a federal judge in Los Angeles to allow their 12-year-old case to go ahead, even though their alleged captivity was in Ivory Coast. They say Nestle SA and Cargill Inc. employees in the U.S. knew of the forced labor but didn’t take steps to stop it, so they should be able to sue in an American court.
Allowing the former slaves to sue in the U.S. over human rights abuses overseas would reverse years of precedents won by Chevron Corp., Coco-Cola Co. and other multinationals. If Nestle and Cargill can’t get the case thrown out, other companies might face a new wave of expensive, drawn-out lawsuits over suppliers’ alleged misdeeds.
“You can see that would open the door to a flood of new cases,” said John Bellinger III, who as a lawyer for the U.S. Chamber of Commerce unsuccessfully asked the U.S. Supreme Court to block the six from revising their lawsuit.
Nestle and Cargill contend a series of Supreme Court rulings bar foreigners from bringing human rights cases under a law that had lain dormant for almost 200 years, until activists re-purposed it to sue over abuses in places such as Colombia, Nigeria and Myanmar. Terry Collingsworth, the cocoa workers’ lawyer, contends the justices left just enough room to get a foot in the door if the alleged aiding and abetting occurred in the U.S.
“The decision to continue to take advantage of cheap labor occurred here,” Collingsworth said. “They controlled the market from here.”
Switzerland-based Nestle’s U.S. unit argues the claims don’t add up because there were no allegations it owned farms, contracted with the farmers or conducted operations in Ivory Coast. Nestle said its policies to reduce child labor aren’t, as the plaintiffs contend, evidence of its complicity.
“Plaintiffs cannot convert Nestle’s efforts to help bring about positive social change into wrongful conduct through their own say-so,” the company said. Cargill made similar arguments that the claims against it are barred.
More than 1 million children, some as young as 5, pick cocoa pods and then crack them open in the Ivory Coast under sometimes hazardous conditions. Thousands of children, some recruited by “locators” and sold into slavery, have labored under especially harsh conditions, according to the lawsuit.
The six plaintiffs were taken to Ivory Coast from Mali and sold to plantations in the 1990s, according to the lawsuit. They worked 14-hour days under armed guard without pay six days week. Sleeping on the floors of locked rooms and given only food scraps, those caught trying to escape were severely beaten or forced to drink urine, according to the complaint. Some had their feet cut open, with salt or pepper sprinkled on their wounds.
Lawyers for the six, now in their 20s or 30s, claim U.S. importers knew of the abuses yet provided farmers with funding, supplies and training. The companies should have used their market dominance to make sure the cocoa they bought was grown and harvested without child labor, they said.
In 2010, U.S. District Judge Stephen Wilson concluded Nestle and Cargill couldn’t be sued under the 1789 Alien Tort Statute. The U.S. Court of Appeals in San Francisco reversed that decision but required the plaintiffs to revise their allegations in light of a 2013 Supreme Court ruling that Nigerian refugees suing Royal Dutch Petroleum Co. had to show proof of a U.S. connection to the misconduct.
On Friday, Wilson said he will decide whether to dismiss the amended claims in the chocolate case without further courtroom arguments.
The Supreme Court’s requirement that the underlying wrongdoing must “touch and concern” the U.S. creates a new obstacle for cases under the Alien Tort Statute, a law that wasn’t designed for such lawsuits, said Julian Ku, a constitutional law professor at Hofstra University. The Nestle case may determine how hard it will be for foreign plaintiffs to meet that requirement, Ku said.
Before the Supreme court ruling, some companies opted to settle rather than spend years fighting in court. Since then, defendants including Chiquita Brands International Inc., BNP Paribas and KBR Inc. have so far gotten such cases thrown out.
Nestle, Cargill See Ex-Slave Case as Precluded by Other Rulings
To survive cocoa importers’ bid to toss their case again, the Malians have to give a plausible account of how the aiding and abetting of slavery occurred in the U.S. The judge won’t rule on the merits of the claims, only whether the lawsuit falls within the court’s jurisdiction.
The case is Doe v. Nestle SA, 05-05133, U.S. District Court, Central District of California (Los Angeles).
--With assistance from Isis Almeida To contact the reporter on this story: Edvard Pettersson in federal court in Los Angeles at firstname.lastname@example.org. To contact the editors responsible for this story: Michael Hytha at email@example.com, Peter Blumberg
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