Nestlé USA, Inc. v. Doe I

No. 19-416 - Argued December 1, 2020
At Issue

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?

  • 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
Background and Case Commentary


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:

Key Questions from Oral Argument

Justice Barrett to Petitioners (1:20:48): Counsel, in response to a question by Justice Kagan, you said that the ATS was a statement by the First Congress that we will enforce the law of nations and provide a forum for foreign citizens to do that. But, of course, the ATS also did it to protect the --you know, the --the policy interests of the United States and to protect the United States from retaliation by other countries in circumstances in which it failed to provide such a forum. So we've talked a little bit about the foreign policy implications or lack thereof of our recognizing a cause of action against domestic corporations for violations of international law norms, but could you say a little bit about any foreign policy implications that might be the result of our failing to recognize such a cause of action?

Oona Hathaway: As you rightly point out, Justice Barrett, the ATS was a statement by the First Congress that the United States would enforce international law and provide a forum for foreign citizens to enforce their rights under international law. In passing the ATS, the members of Congress aimed, at least in part, to ensure that the United States would have a reputation as a law-abiding nation. But the ATS was also about much more than that—it was a key tool for keeping the nation out of war. At the time, after all, violations of international law were considered “just causes” for war. Indeed, just over forty percent of war manifestos issued by sovereigns from the fifteenth to the early twentieth centuries cited violations of the law of nations as a cause of war. As Alexander Hamilton put it in The Federalist Papers, an “unredressed” wrong on a foreign national was “an aggression upon his sovereign.” The last thing the members of the First Congress wanted to do was to give European nations a just cause for going to war against the United States. There could have been other forms of retaliation as well—including refusal to enter into treaties with the United States. After all, if the United States tolerated violations of international law, could it be trusted to make good on its treaty obligations?

Today, nations rarely go to war over violations of international law, but there are still significant foreign policy implications that can arise from failing to “take appropriate steps to prevent, investigate, punish and redress private actors’ abuse,” which is widely recognized as an obligation of states now, just as it was at the time of the First Congress. Turning a blind eye to international law violations by U.S. citizens, particularly a violation as egregious as child slavery, can harm diplomatic relations not only with countries whose citizens are directly harmed but with countries who value the international law norm that has been violated. The failure to hold our citizens accountable for violating human rights may also make them vulnerable to penalties abroad. And it will undermine the United States’ credibility when it encourages other states to abide by their own human rights obligations.