Nestlé USA, Inc. v. Doe I
These cases present two issues: First, is the presumption against extraterritorial application of the Alien Tort Statute overcome in cases where a U.S. company conducted oversight of its foreign operations at its headquarters in the United States? Second, is a domestic corporation exempt from liability in a private action under the Alien Tort Statute when it violates international law—in these cases by subjecting children to slavery, forced labor, and human trafficking?Advocates
- Neal Kumar Katyal on behalf of the petitioners
- Curtis E. Gannon for the United States, as amicus curiae, supporting the petitioners
- Paul L. Hoffman for the respondents
Oona Hathaway: The respondents in these cases are all children who were, they maintain, trafficked from Mali and subject to slavery and forced labor on cocoa plantations in Côte d’Ivoire in violation of some of the most deeply rooted norms of international law. In two separate cases, they sued petitioners Nestlé and Cargill, private corporations headquartered in the United States, under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, for knowingly aiding and abetting these international law violations. Both companies, they argued, had complete control over their cocoa production operations in Côte d’Ivoire from their U.S. headquarters. The Supreme Court consolidated these cases when it granted certiorari.
In the most recent case before the U.S. Supreme Court involving the ATS, Jesner v. Arab Bank, PLC., 138 S. Ct. 1386 (2018), the Court decided that foreign corporations could not be sued under the ATS for violations of international law that take place abroad. The Court did not reach the issue of domestic corporate liability and did not determine whether the law of nations provides for corporate liability. Instead, the Court exercised its judicial discretion under the second step of the analysis set forth by the Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), deciding that foreign corporations should be exempt from ATS liability based on the potential disruption imposing liability might cause to U.S. foreign relations.
Neal Katyal, arguing for petitioners, confronted several difficult lines of questioning. He sought to emphasize that the harm to respondents took place abroad and thus was outside the reach of the ATS, but several justices pressed back. Chief Justice Roberts noted that no foreign country had objected to the “United States haling its own citizens into its own courts,” signaling that the Justices would not be so easily persuaded to come to the same result they had regarding foreign corporations in Jesner.
Curtis Gannon, arguing for the United States in support of petitioners, affirmed that no state had raised concerns with the U.S. government about the case. He nonetheless expressed concerns that similar cases might in the future present foreign relations problems.
Paul Hoffman, arguing for respondents, emphasized that while the child slavery took place abroad, the planning and oversight of the companies’ foreign operations took place in the United States. Hoffman’s toughest questioning concerned the specificity of the complaint, particularly when Justice Alito asked whether the allegations were sufficient to establish aiding and abetting liability.
Justice Amy Coney Barrett is the newest member of the Court and likely an essential vote if respondents are to sustain the favorable judgment below. Her question to Hoffman returned to an issue of clear concern to many justices (and a possible basis for differentiating between these cases and Jesner)—the foreign policy implications of allowing the case to proceed. What’s so intriguing about the question is that she recognizes that in a case involving U.S. corporations (rather than foreign ones), there may be foreign policy consequences for failing to recognize a cause of action when they commit egregious international law violations abroad.Nestlé USA, Inc. v. Doe I on Oyez: https://www.oyez.org/cases/2020/19-416