Administration Weighs in on Nestle SCOTUS Case

An amicus brief on behalf of the United States was filed Tuesday in a Supreme Court case appealed by Nestle USA Inc. The brief urged the Court to take up the case. On January 13, the Supreme Court specifically invited the Solicitor General to submit a brief “expressing the views of the United States.” The administration said the SCOTUS should rule that domestic corporations are not liable under the Alien Tort Statute (ATS), reversing the Ninth Circuit’s ruling against Nestle USA finding it liable.

The lawsuit against Nestle was passed to the Supreme Court after Nestle filed a Writ of Certiorari in September 2019. The case was filed in 2005 by six former slaves who claimed they were kidnapped from Mali and forced into slavery. They accused Nestle and Cargill of aiding and abetting slave labor by giving financial aid to Ivory Coast farmers while aware that the farmers were using child slavery to increase production. The administration claimed the focus of the lawsuit is domestic, not extraterritorial, because the focus of the claim is aiding and abetting.

Nestle USA, Inc. is represented by Hogan Lovells. The former slaves who are not named in the lawsuit are represented by Schonbrun Seplow Harris and Hoffman. Nestle, in its petition, argued the suit should be brought against the alleged malefactors who enslaved them and forced them to work on cocoa farms in West Africa, not against multinational cocoa suppliers.

“Over the last fourteen years, Plaintiffs have amended their allegations on multiple occasions, and various parties have been added to or dismissed from the case. But it is worth noting what has never been in dispute: Plaintiffs have never alleged that Nestle USA ever owned or operated farms in West Africa;  it has not. Plaintiffs have also admitted that they have not and cannot allege that Defendants ‘specifically intended the human rights violation at issue,’” Nestle argued in the petition.

The ATS allows individuals to file human rights cases for abuses that happened overseas. Nestle USA, in its appeal, said they condemn child slavery, and that the plaintiffs did not allege their injuries could be traced to the defendants. Nestle USA argues that the ATS should not impose liability on United States domestic corporations and that the allegations against them do not satisfy the extraterritoriality standard the Supreme Court has previously followed.

The Supreme Court ruled in 2013 that the ATS generally does not apply outside of U.S. borders, but the Ninth Circuit ruled in the Nestle case that the allegations might have enough connection to the United States. “The allegations paint a picture of overseas slave labor that defendants perpetuated from headquarters in the United States,” the appeals court said.

Other businesses including The Coca-Cola Company, the Chevron Company, and various chocolate associations filed amicus curiae briefs in favor of Nestle, arguing that the ninth circuit’s decision discourages American companies from involvement in the fight against child slavery and exposes multiple companies to ATS lawsuits.