Legal Docket: Nestle v Doe - S2.E7

JENNY ROUGH, HOST: Okay, so the red bar goes there, red foil goes there. Lavender foil goes there. Blue foil. And then purple and copper. Those bars wrapped in foil? One of the world’s most favorite foods. Chocolate. We ate up that chocolate. 

MARY REICHARD, HOST: Piles of chocolate. 

JR: Not mass produced industrial chocolate. Craft chocolate.

MR: This is like chocolate party in a box? 

JR: So this is from a company in Northern Virginia, where I live. And they ethically source their cocoa beans.

MR: Ethically source their cocoa beans? No slave labor. No child labor.

JR: We followed the instructions on the chocolate tasting kit. Step 1: So let’s start with this bar. Open it up. What does the chocolate bar look like?

MR: So the packaging is beautiful. It’s very inviting. It says Perth Peru, 72 percent chocolate. … It’s got ocean waves on it.

JR: Step 2: Break off a piece—What does it sound like when you break it?

MR: Very snap-y. Crisp.

JR: Crisp. That means that the chocolate is properly in temper. I’m going to have to Google that. Step 3: Smell it.

MR: Notes of mocha.

JR: Yes.

MR: Cedar.

JR: Huh? I’m not getting the cedar. Raspberry I get.

MR: And then the best part! Allow a bit of chocolate to melt slowly on the tongue and move chocolate around mouth. (MUFFLED) It’s really hard not to chew. Mmm, mmm, mmm. That is delicious.

JR: Before tasting the second bar, we neutralized our taste buds. All right, now you cleanse your palate with an oyster cracker.

AUDIO: BAG OF OYSTER CRACKERS

JR: But that first chocolate bar from Peru? So remember that taste, because supposedly not only every region has a different taste, but every cocoa tree.

We sampled chocolate from three companies. Two small hand-crafted places: River-Sea Chocolates and Goodnow Farms Chocolate. And one multinational company, Tony’s Chocolonely. You may have seen these bars in the grocery store. They’re huge with cartoon letters printed on colorful wrapping.

MR: So, that was the fun part of this story. Now for the not so fun part. The reason Tony’s Chocolonely was founded in the first place was because an investigative reporter from the Netherlands learned about a horrible situation: forced child labor in the cocoa industry. The reporter’s name is Tuen van de Keuken. And, well, here’s a TEDx talk that tells part of his story:

TEDEX: He bought chocolate bars from about 10, 15 companies of which he was sure there was slavery in the value chain somewhere. And he ate each of the bars and put a camera on himself and called the police. And he said, “I want to turn myself in as a chocolate criminal.… Because according to Dutch law, if I know of criminal activities in a value chain and I buy something, I’m responsible.”

JR: He actually tried to get a court to prosecute him. It didn’t work. The judge dismissed him—said he’d have to arrest every Dutch person because everyone eats chocolate!

MR: The three companies we just mentioned—and many more—are trying to change the system by sourcing beans from farms that don’t use forced child labor. Our case today involves six former child laborers from Mali who also want to change the chocolate industry. The child slaves escaped the West African cocoa farms. In 2005, they filed a lawsuit in the United States that included Nestle U.S.A. and Cargill. Large scale chocolate manufacturers.

JR: Are such cases allowed to proceed? American courts didn’t dismiss that question quite so easily as the Dutch. It’s been tied up in litigation for 15 years. And this past summer, the United States Supreme Court weighed in.

THEME

I Clarence Thomas...I Sonya Sotomayor...I Neil M. Gorsuch...I John G Roberts...I Elena Kagan...I Samuel Alito, Jr….I Steven Breyer...I Ruth Bader Ginsburg...I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]

JR: Welcome to Legal Docket, I’m Jenny Rough.

MR: And I’m Mary Reichard. This podcast is from the team that brings you The World and Everything in It.

The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!

JR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

All persons having business before the honorable Supreme Court...

MR: Today, a case about the dark side of chocolate. Children working on cocoa farms. And a legal question of corporate liability for human rights violations.

God save the United States and this honorable court.

UNDERWRITER: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at SamaritanMinistries.org/podcast.

CHOCOLATE COMMERCIALS: One, two, a-one, two, three, four. Gimme a break! Gimme a break! Break me off a piece... / Chocolate is s-crunch-ous, when it crunches... / Crispity. Crunchety. Peanut-buttery. The irresistible, one-of-a-kind...

JR: One friend of the court brief in this case quoted a cocoa farm slave who had been freed. He had never even tasted chocolate. When asked what he’d say to the millions of people who eat the chocolate made from his labor, he said: “Tell them when they eat chocolate, they are eating my flesh.” He’s not a party to this case, but other former slaves are. Let’s begin by meeting John Doe number 1 in our set of consolidated cases today: Nestle v. Doe and Cargill v. Doe. Doe means unnamed plaintiff. And there are six of them, although we learned the name of one man: Fousseing Malé. He lives in Mali in West Africa.

MALE: SPEAKING MALIAN WITH FRENCH VOICEOVER

JR: In this audio recording, he speaks a local dialect with an intermediary giving a voice over in French. We’ll translate the statement into English based on a transcript his lawyer gave us. 

MR: He says, I was trafficked from my home country, Mali, at age 14 to work on a large cocoa plantation in Côte d’Ivoire. The man who recruited me told me I’d get a good paying job harvesting cocoa. But when he arrived at the plantation, I didn’t get money. I was told if I worked hard, I’d be given food. If not, I’d starve. The plantation was heavily guarded. At night, I was kept in a locked room to prevent escape.

JR: He continues: If the guards felt I wasn’t working quickly enough, I was beaten with tree branches. I used a sharp machete to cut down and open the cocoa pods. I used dangerous chemicals like herbicides, pesticides, and fertilizer without any safety equipment. I finally escaped when I was 19 years old, but those days still haunt me.

MR: Terry Collingsworth is the director of International Rights Advocates and is one of the lawyers who represented Malé and the other John Does in this case.

COLLINGSWORTH: I started working on the cocoa issues in the late 1990s.

MR: Collingsworth said he sent researchers to West Africa who could speak the language and blend in with the local culture. He wanted them to find out what was really going on.

COLLINGSWORTH: And they came back with just a devastating report and photographs of the horrific child slavery that was going on in the cocoa sector.

JR: So Collingsworth and others went to Congress with what they’d learned. And Congress introduced a bill that would make it illegal to import chocolate harvested by children. The bill passed. But by that point, the final version was nothing more than a voluntary initiative called the Harkin-Engel Protocol. Not a mandatory law.

MR: In other words, compliance was optional. And the voluntary protocol didn’t do much to help the problem go away. That’s how we get this case. 

JR: I asked Collingsworth to walk me through how the child trafficking chain works. How a boy in Mali ends up on a cocoa farm in Ivory Coast... also called Cote d’Ivoire.

COLLINGSWORTH: The boys go to areas ... they’ll go to bus stations where there’s lots of odd jobs available. The biggest bus station near the border with Côte d'Ivoire is in Sikasso, and I’ve been there many times, and I’ve observed this phenomenon many times.

JR: He says that gangs of young teenage boys hang out, hoping to get an odd job. Maybe at the tea shop near the bus station. Or the bike repair shop. The vegetable market.

COLLINGSWORTH: They’re just wandering around looking for food and something to do that might get them a few pennies.

MR: When Collingsworth last traveled to Mali in November 2019, he went to a bus station and gathered about 20 young boys.

COLLINGSWORTH: And asked them some questions. Like, well, what are you here for? What are you doing? Are you in school? … And then I asked if they’d ever heard about this thing where some guy will promise a job in Côte d'Ivoire, get a big salary, and then you end up being enslaved there and can’t get back? And none of them had ever heard even that story. So I told them, don’t ever get into a van or vehicle with someone making that promise. It’s not true, you’re going to be enslaved.

JR: Collingsworth says the traffickers who do talk the boys into getting in a van take them across the border to a plantation in the middle of nowhere.

COLLINGSWORTH: They don’t have a single penny in their pocket. They speak a different dialect. They don’t know anyone, and they’re 11 or 12 years old. At that point, they’re told, well, actually, you’re going to work, and we’ll feed you. If you don’t work, we’re not going to feed you, and you’re going to starve. And that’s essentially the transaction. So, when they’re that young, most of these kids are crying.

JR: One thing about boys, though. They grow up. They get stronger. Eventually, they stop complying. They leave or escape.

MR: Let’s take a moment here to clarify some terms. With an expert. Alex Ferguson works for the World Cocoa Foundation. Ferguson explains the different categories of work performed by children as defined by the International Labor Organization.

FERGUSON: It doesn't say that all work for children is bad. There is also work where children can help at home, and also , you know, in the family business.

JR:  Yeah, like a family farm with kids pitching in at harvest time. Life in a rural area. But the work shouldn’t affect their development. If the child is too young, or the work is dangerous, that’s called child labor.

FERGUSON: Child labor is usually defined as something that damages a child by either stopping them from going to school, or it exposes them to dangerous work. 

JR: Sharp tools. Heavy lifting. Dangerous machines. And then: 

FERGUSON: And then there's also forced child labor .., and that's really where someone is working against their will.

MR: And finally, what we have here. The worst forms of child labor. The six men in this case claim they were trafficked as young boys as part of the child slave labor trade. Let’s listen to a clip from oral arguments at the Supreme Court, conducted by phone last December. Here’s Neal Katyal representing Nestle U.S.A. and Cargill. The food companies are the defendants.

KATYAL: This court has never accepted the type of claim the plaintiffs bring here. The claim plaintiffs bring alleges something horrific: That locators in Mali sold them as children to Ivorian farms where overseers forced them to work. The defendants are not the locators, not the overseers, and not the farms. Instead, they are two U.S. corporations. The plaintiffs do not allege that these two owned or operated any farm. And they do not allege the companies bought anything from farms that use child labor. They claim the companies made decisions in the U.S. and that they had knowledge of child slavery.

JR: On the flip side, Paul Hoffman represented the former trafficked children. Hoffman worked on this case with Collingsworth. We heard from him earlier. 

HOFFMAN: Few international norms are as fundamental as the prohibitions against child slavery and forced labor. Plaintiffs' claims fit squarely within the text, history, and purpose of the A-T-S.

JR: The A-T-S. Alien Tort Statute. The children, now grown men, brought their claims against Nestle and Cargill under that law. Way back in 1789, the very first Congress passed the Alien Tort Statute. So, an old statute...contained in only a single sentence. Here’s how it reads today:

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

MR: Let’s break that down into three parts. To help us do that is Julian Ku. He teaches international and constitutional law at Hofstra law school in New York. And, he joined a friend of the court brief in support of the companies. First part: The lawsuit must be brought by an alien.

KU: And aliens in that context, the non-US citizens.

JR: In this case, the former child slaves from West Africa.

MR: Second part: a tort. A tort is a personal injury. You’ve been harmed. Physically, financially. And you’re seeking a remedy—something to fix the harm. Usually money damages.

JR: Right, we learned in law school that a tort is a civil wrong. It’s not a criminal lawsuit, one in which the government would prosecute the companies. A tort lawsuit is couched in civil law.

KU: This was an attempt to give private individuals the right to bring private actions.

JR: And the third part: In violation of the law of nations or a treaty of the United States. Now, the law of nations isn’t a bunch of laws codified or recorded in a book or document that you can read. It’s unwritten.

KU: And so the law of nations we today usually call it customary international law. An unwritten set of norms that govern the behavior of governments and their relationship with other governments over international law.

MR: The worst crimes that most nations agree are illegal. Here’s Collingsworth.

COLLINGSWORTH: That is generally understood to be universally condemned acts. The list is pretty short. It’s slavery, genocide, war crimes, torture, extrajudicial killing.

JR: This case speaks directly to the first wrong in that list.

KU: In the Nestle case, there is no real dispute about that child slavery is a violation of international law. That’s widely accepted and everyone will agree that’s wrong.

MR: So, let’s recap: To bring a claim under the Alien Tort Statute, a non-U.S. citizen must be injured by those “worst” international wrongs.

JR: Let’s focus on that second part: Alien Tort Statute: the tort. The “wrong” alleged in this case is aiding and abetting international human rights violations.

KU: So then it just became a fight of, well, but wait a minute. Is aiding and abetting as a corporation effectively just signing contracts with state-owned companies in Ivory Coast? Is that a violation of international law of the same level, and everyone would agree, would reach the same level of acceptance that no country would ever object to this type of holding a corporation liable? So that’s where it got really dicey for the plaintiffs because aiding and abetting is not well-defined under international law.

JR: During oral arguments, Justice Stephen Breyer asked the child slaves’ lawyer Hoffman about that. What exactly did Nestle and Cargill do that amounted to aiding and abetting? What misconduct can he point to?

JUSTICE STEPHEN BREYER: What counts as aiding and abetting for purposes of this statute? When I read through your complaint, it seemed to me that all or virtually all of your complaints amount to doing business with these people. They help pay for the farm. And that’s about it. And they knowingly do it.

Hoffman, lawyer for the former slaves, said the defendants knew exactly what they were doing. The corporations set up a supply chain where they knowingly purchase cocoa beans from farms that use slave labor.

HOFFMAN: Um, they know that that’s where the cheap beans come from. They have used things like financing and payment—Yes. That sounds like a business. A business that does business, blinking their eyes or open eyes, with farmers and others throughout the world who use child labor.

MR: To answer that, Hoffman brought up Tony’s Chocolonely. And small and mid-sized chocolate companies. The chocolate bars we enjoyed earlier. He said these chocolate companies filed friend of the court briefs in support of the former child laborers. Those companies do do business without facilitating child labor from Ivory Coast. For example: Mariano and Krissee D’Aguiar, the owners of River-Sea. Some of the other chocolate Jenny and I tasted earlier.

JR: Let’s take a detour here before we return to oral argument. Let’s understand how chocolate is made. I visited Mariano and Krissee’s chocolate shop in Chantilly, Virginia. That same day, a huge shipment of cocoa beans arrived from all over the world. Mariano stands in front of burlap sacks bursting at the seams with cocoa beans.

MARIANO: So here’s India. Vietnam. Tanzania.

JR: He wears sweatpants, a t-shirt, and flip-flops and has big ideas of how the industry might change. Away from a handful of players distributing chocolate to the whole world. Toward a community-oriented approach.

MARIANO: The vision I have is people really connecting small farms to whoever wants to make chocolate. .... [13:15] So it’s always this relationship where the consuming markets are very far away from the producing markets. And that’s when you see all these imbalances that lingers from those days where you had lack of information and lack of exposure to now people being more transient and more aware. Yeah. So it’s just a matter of time, I’m very optimistic and hopeful that things do change.. [14:25] And that’s how we promote change, little by little. Acting local, but thinking globally.

JR: Chocolate doesn’t start out looking like...chocolate. It comes from a fruit called cacao. A cacao pod is about the size of a Nerf football. But with a hard exterior, like a pumpkin. In 2017, Mariano, Krissee, and their three kids spent the summer in Brazil, where Mariano grew up.

MARIANO: And there was a cocoa tree in my cousin’s backyard.

JR: Their 11-year-old son climbed the tree, picked a cacao pod, and brought it to Mariano and Krissee. He asked his Mom and Dad to make chocolate. Mariano realized even though he’d grown up around these trees, he had no idea how to do that.

MR: Not a clue. He spent his childhood eating—you guessed it—Nestle chocolate imported from Switzerland!

JR: His cousin didn’t know what to do with the cacao pod either.

KRISSEE: As soon as we were like, how do you make chocolate from that, nobody knew. You know, we had to look it up on YouTube.

MR: That’s Krissee. Anyway...the family got to work: Crack the cacao pod open. Take out the fruit from inside. It’s called baba. Gooey white stuff. And that baba is the actual fruit that you can eat. But to make chocolate, the family left the baba to ferment. The fruit eats itself up so to speak, and leaves only its seeds, or beans. Put the beans in the sun to dry. Take off the husks with a knife. Then grind up the nibs of the beans in a blender with sugar.

KRISSEE: We broke a couple blenders and a food processor. And then you have to temper the chocolate. So, the first batch I made I didn’t temper it because I didn’t understand that that needed to happen.

MR: Temper. Temperature. Heating the ground nibs to melt them and then cooling it. Ta-da! Chocolate.

JR: They were hooked. Three months later, Mariano and Krissee decided to start a chocolate company. Today, in Virginia, they receive shipments of dried cocoa beans from farms around the world. They finish the process of bean-to-bar in their local shop. And also make hot chocolate.

SOUND: MAKING HOT CHOCOLATE

MR: They pay a higher price for their beans. Work with ethical brokers. Visit farms in-person and connect directly with the farmers.

MARIANO: Attentive to labor rights and human rights. … It is actually a must that we know where our beans come from, and how the fermentation protocols are followed, and if at the end, all those rights are being observed in terms of ensuring who to work with.

JR: Sometimes they even sail cocoa beans to America—avoiding dirty cargo ships. So this family really goes the extra mile. Well, I hate to leave the chocolate shop. Especially because their employee Bryce is wrapping bars.

SOUND: WRAPPING BARS

JR: But Mary, why don’t you take us back to oral arguments.

MR: It’s funny, Jenny, that you mention ships and cargo, because pirates came up at oral argument. You know, we left off with Justice Breyer questioning the attorney for the former slaves. He’d asked whether minimal business practices really aid and abet human rights violations. Well, assuming Nestle’s and Cargill’s actions did amount to aiding and abetting, Nestle’s attorney said the child slaves were harmed halfway across the globe. And the Alien Tort Statute shouldn’t apply outside the United States, extraterritorially. But Justice Sonya Sotomayor pointed out that one of the original purposes of the A-T-S was to address piracy.

JUSTICE SONYA SOTOMAYOR: We know that under the A-T-S, the first Congress wanted the A-T-S to cover piracy. We also know that those who provided assistance to pirates were themselves held liable, whether they committed it on land or the sea, as aiders and abetters. And it boggles my mind to think that the aiding and abetting had to have happened on the sea and not on the land.

MR: Translation: To argue that Nestle had to travel to Ivory Coast and aid and abet there in order for the Alien Tort Statute to apply didn’t make sense to her. Especially when the A-T-S applied to a United States citizen who aided and abetted a pirate—wherever the assistance occurred, at sea or on American soil.

JR: Another hurdle: The companies’ lawyer argued the A-T-S doesn’t allow for corporate liability. That, even assuming once again that Nestle’s and Cargill’s actions amounted to aiding and abetting. No corporate liability permitted in the law; only individual liability.  Justice Elena Kagan seemed suspect.

JUSTICE ELENA KAGAN: Could a former child slave bring a suit against an individual slaveholder under the ATS?

KATYAL: Correct.

KAGAN: Okay, and could this same former child slave, in the same circumstances, bring a suit against 10 slaveholders?

KATYAL: If they met, you know, the requirements under the law, yeah, sure.

KAGAN: If you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can’t you bring suit against the corporation?

KATYAL: When you go after the individuals, you often can go after the true wrongdoers.

MR: The true wrongdoers. The traffickers and farm owners. People closest to the wrong being done.

JR: Nestle’s attorney argued if Congress wanted to hold corporations liable? It could make that happen.

KATYAL: We don’t doubt Congress can pass a statute to deal, to expand, to have corporate liability.

MR: Justice Neil Gorsuch challenged that answer. He pointed to the one-sentence plain language of the Alien Tort Statute.

JUSTICE NEIL GORSUCH: I don’t see anything in the language of the statute, and I don’t believe you’ve pointed to anything that distinguishes between individuals and corporations. And the rationale for the ATS is to ensure the United States provides a mechanism for aliens to remedy wrongs that would otherwise be held against the United States itself. And on those two lines, on the language and on the rationale why would we exempt corporations? 

KATYAL: The question is not are you exempting corporations, but rather are they included as a subject of the law of nations, which is the text of the A-T-S. And you talked about the rationale, about not letting things go unremedied. … There are remedies. You can go after the individuals.

JR: Over the years, Alien Tort Statute cases have been all over the map. In the most recent wave of cases, the court has been refining its approach to A-T-S lawsuits. In 2013, a case came before the court where a Nigerian individual sued a Dutch company for human rights abuses in Nigeria. Here’s what the court said in that case.

KU: In order for you to bring a case to the United States under the Alien Tort Statute, they said it must touch and concern the territory of the United States.

MR: The touch-and-concern test. Legal scholars predicted that would be the test the court would look at to analyze the facts of this case.

JR: Well, back at oral arguments, the Justices barely touched on that test. Justice Brett Kavanaugh continued to press on the question of whether corporate liability is appropriate here. Child labor lawyer Hoffman tried to convince the court the statute doesn’t distinguish between individuals and corporations.

JUSTICE BRETT KAVANAUGH: Foreign law does impose corporate liability, of course, as does U.S. law in many circumstances. But international law and the international tribunals have not seemed to do so. 

HOFFMAN: The Alien Tort Statute is basically a tort statute. It’s a civil tort statute. … Corporate liability is a general principle of law. It applies in all legal systems. It has applied in our legal system from the beginning. It applied in Britain before we were a nation. In other words, corporate tort liability is the norm. It’s not the exception.

JR: Both Nestle and Cargill have programs dedicated to making chocolate from responsibly-sourced ingredients. Like the Nestle Cocoa Plan and the Cargill Cocoa Promise.

MR: Collingsworth said programs like these do help a few people. But not nearly enough. Here’s his take.

COLLINGSWORTH: They pick a few plantations, a small handful, a small percentage of their total, and they’ll clean them up a little bit, and they’ll maybe fund a school in the neighborhood and buy the kids some books, and then if someone comes and they want to show them their dog and pony show, they can say, look at this, and we’re going to do this everywhere, but they’re not. It’s a very, very limited program.

JR: I reached out to Nestle and Cargill multiple times. I wanted to speak with someone in their corporate responsibility office about these programs, this case. Crickets. However, Alex Ferguson of the World Cocoa Foundation did speak with me. You heard from him earlier. He’s the one who explained the difference between child labor and forced child labor. Well, the World Cocoa Foundation, W-C-F, works to empower farmers and combat child and forced labor.

MR: So it may be surprising to learn WCF filed a friend of the court brief in support of the companies, Nestle and Cargill. The brief said to allow a claim like this to succeed under the Alien Tort Statute would encourage lawsuits and discourage industry participation in fighting child labor. Instead, the industry must address the root of the problem: poverty. Here’s Ferguson:

FERGUSON: Child labor is associated with poverty. If you're poor, you will often, you won't be able to hire a laborer to work on your farm, and then, your children will end up, could end up, doing that work.

MR: He said helping farmers turn their farms into prosperous businesses is no easy fix and requires multiple changes.

FERGUSON: We run training programs on increasing productivity, so that they grow more cocoa on less land. Another area is crop diversification. Then they can also earn income from other crops that they sell, or indeed, feed themselves from those crops. We're also promoting Village Savings and Loan Associations. So, the issue really is one of finding ways to help the farmer and his family improve their income because that's going to, you know, once they have more disposable income, that is, they have more choice.

JR: In support of the other side, the former child slaves, Tom and Monica Rogan. They joined the friend of the court brief for chocolate companies that use ethically sourced beans. About 10 years ago, they MacGyver-ed their first batch of chocolate in their kitchen.

TOM ROGAN: We just got really interested in it and started doing it as a hobby, as Monica was saying, and that grew over time, and then my company got bought in 2010, and at that point people had been telling us, Hey, you guys make amazing chocolate. You should sell this.

They knew chocolate comes from a fruit. Fruit has to be harvested. Who was doing that?

TOM ROGAN: We learned that there were a lot of issues with the cacao supply chain.

MR: They wanted to compensate farmers fairly.

TOM ROGAN: We go down to these farms so we can see their process and know what they’re doing and understand it and also by visiting the farmers, talking to the farmers, we can see what their labor practices are on the farms. We can examine their books in person. Because Monica is fluent in Spanish, too, we have direct conversations with farmers, with workers, so we can get things firsthand. 

MONICA ROGAN: So this ability to have this direct connection and to know the hands that it all passes through to when it gets to us, this traceability, this is important to us. Seeing all the benefits that go along with that from a social impact, economic impact on their level to a flavor impact on our level.

MR: But how realistic is this on a big scale?

TOM ROGAN: Well, not only is it possible, but it’s actually more doable than on a small scale. … When a consumer is paying a dollar or two dollars for a chocolate bar, that is an artificially low price, so there is room for that number to go up.

JR: A Goodnow Farms chocolate bar: $12. River-Sea: $6 to $8. Those prices may not be realistic for the average consumer. But Rogan says ethical sourcing is still possible, even at the lower prices consumers pay.

TOM ROGAN: These companies are extremely profitable so there are many different approaches these companies could take to be more ethical, and be more sustainable, and there’s no one-size-fits-all.

MR: The companies have the deep pockets to have a person or team on the ground on the farms, monitoring, Rogan says.

JR: Well, the lower district and appellate courts bandied this case back and forth for years. The Ninth Circuit had found the claims, as pleaded, could proceed under the ATS. Here, the Supreme Court reversed that decision, but it remanded the case for further proceedings. In doing so, it tinkered with the proper scope of ATS claims again. Again it refined the way courts should look at lawsuits filed under the Alien Tort Statute. In the end, the court applied its ruling from a 2016 case, RJR Nabisco v. The European Community. That case also involved a question about a statute’s extraterritorial application. But the case had nothing to do with the Alien Tort Statute. It centered on a different one.

Still, the court said that the RJR ruling applies to the question here: When can a federal statute be applied outside the United states? Law professor Ku summarizes the test from RJR:

KU: And the general rule is that unless it clearly states that it’s meant to apply outside the United States, the court should not do so unless the focus of the statute and the conduct in the particular case is such that it would make sense to assert jurisdiction. So there’s essentially a new precedent that came in. Now it was not at the time understood necessarily to apply to the Alien Tort Statute, but now the court tells us it is.

The decision came down 8-1 in favor of Nestle and Cargill in the sense that the new test is harder to meet. Justice Clarence Thomas authored the opinion. Justice Samuel Alito filed a dissent. Eight justices agreed on the extraterritoriality question: The Alien Tort Statute doesn’t expressly state it applies outside the United States, so the presumption is it doesn’t.

The court said the ATS covers certain misconduct, and that misconduct must occur in the United States. Here, the allegations didn’t meet that requirement. Again, professor Ku.

KU: There was no misconduct in the United States. There was just typical corporate conduct. We’re going to buy cocoa from this farm. There’s no evidence that it was part of a plan to use forced labor or anything like that. This was just we’re buying cocoa from this farm and they probably shouldn’t have, they probably should’ve investigated more the should’ve done things. But none of that is the misconduct at issue here that would rise of the level of a violation of law of nation.

MR: The focus of the ATS is violation of the law of nations. So it’s now back to the lower courts to figure out if the former child slaves can amend their complaint to show the misconduct, or violations of the law of nations, occurred in the United States. Merely making contracts and decisions about buying cocoa isn’t enough. As far as whether a corporation can be sued under the ATS? Five justices said yes, we see no reason why not. But the majority opinion didn’t officially reach that issue.

JR: Terry Collingsworth says he and former child slaves aren’t giving up. In the time since they filed this lawsuit 15 years ago, Congress has passed the William Wilberforce Trafficking Victims Protection Reauthorization Act. A mouthful, but named after the Christian and British politician who dedicated his life to abolishing slavery.

MR: It creates a private cause of action for victims of trafficking and forced labor. In February, eight former child slaves sued Nestle, Cargill and others under that act. Collingsworth:

COLLINGSWORTH: I hope that the companys received a message loud and clear that we’re just never going away. I mean, we’re going to continue to pursue this as long as we’re breathing air.

JR: Before we end today, listen to one last clip from oral arguments. A comment from Justice Breyer.

JUSTICE STEPHEN BREYER: Well, unfortunately, child labor, it’s terrible, but it exists throughout the world in many, many places. And if we take this as the norm … I have concern that treating this allegation … as aiding and abetting falling within that term for purposes of this statute … could have very, very significant effects. I’m just saying I’m worried about that.

JR: The problem doesn’t start and stop with chocolate. One amicus brief pointed out child labor problems exist in clothing, carpeting, sugarcane, shrimp … you get the idea.

MR: Not to mention the mining of materials that goes on with our smartphones and computers that we used to create this very program.

JR: Foregoing industrial chocolate is one thing. Technology is harder to walk away from. Collingsworth focuses his legal efforts in that area as well. I asked him what he does.

COLLINGSWORTH: Well, I didn't throw my iPhone away or my Dell laptop when I sued these companies for using forced child labor to harvest cobalt. And I don’t expect anyone else to, either. This is such an essential thing now. So, what I ask consumers to do is, again, contact the companies and tell them I won’t be upgrading, I won’t be buying any more of your stuff until you fix this. We have the right, as consumers, to be sure that you’re not injuring or killing children in the manufacture of these products.

MR: Tom and Monica Rogan contemplate the difficulty, and importance, of not only corporate responsibility, but consumer responsibility.

TOM ROGAN: How do you get people to take action and what should they do? Oftentimes, the response is, well, just stop buying that chocolate. And that isn’t the answer because these farmers still need these companies to buy the cacao, they’re the one who are there now. So it’s more about the harder choice of you need to engage, you need to contact the company, you need to make your voice heard.

MR: As we open our eyes to labor practices, we’ll begin to see global inequalities all around us. So much work to be done. It can be paralyzing. But?

MONICA ROGAN: Instead of being overwhelmed and saying I can’t do anything, there are things that we can do better. Let’s just chip away at it, one step at a time. And you know, what better way to do that than eating delicious chocolate?

​​JR: Good idea! We don’t need to quit chocolate. But we can be discerning. How’s your belly doing? Should we keep going?

MR: I have a high tolerance for sugar. Mmm, mmm, mmm!

JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.

MR: And I’m Mary Reichard. We’re the hosts each week. Our script editors are Nick Eicher and Paul Butler, who is also our producer. Technical engineer is Rich Roszel.

JR: Thanks go to Terry Collingsworth, Krissee and Mariano D’Aguiar, Alex Ferguson, Julian Ku, and Monica and Tom Rogan. Source material in this episode included TEDx and oral arguments from SupremeCourt.gov.

MR: We’ve been so encouraged by the ratings and reviews you’ve left for us! We’re a small team competing with some really big players! Your reviews help others find us, and get the word out about this very special podcast.

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