The U.S. Court of Appeals for the Ninth Circuit last month dismissed Nestle’s motion for a rehearing en banc in a lawsuit brought by former child slaves who allege the Swiss giant chocolate firm, ADM and Cargill were complicit in their forced work on cocoa farms in West Africa.
In September 2014, the court allowed the case against the chocolate companies to proceed, but the defendants called for a rehearing en banc, whereby the case could be heard by all judges of the court. However, the rehearing was denied by majority, two to one, on May 8.
Ivorian cocoa ban?
The U.S. lawsuit was originally filed by three individuals from Mali in July 2005, known as John Doe I, II and II. They claim to have been trafficked as children into Côte D’Ivoire in the 1990s and forced to work unpaid on cocoa farms for 14 hours a day. They say they were fed scraps, were whipped and beaten and locked in small rooms at night. One of the claimants says he witnessed guards cut open the feet of children who tried to flee and another claimant says guards forced failed escapees to drink urine. Photo credit: 10 Campaign
Dissenting, Judge Rawlinson argued the court had done a disservice to the law by allowing sympathies to run afoul.
“I quite agree plaintiffs are deserving of sympathy. They are alleged former child slaves of Malian descent, dragooned from their homes and forced to work as slaves on cocoa plantations in the Ivory Coast. But they do not bring this action against the slavers who kidnapped them, nor against the plantation owners who mistreated them.” he said.
“Instead the panel majority concludes that defendant corporations, who engaged in the Ivory Coast cocoa trade, did so with the purpose that plaintiffs be enslaved, hence aiding and abetting the slavers and plantation owners. By this metric, buyers of Soviet gold had the purpose of facilitating gulag prison slavery,” the judge continued.
Judge Rawlinson argued: “An embargo by chocolate manufacturers on Ivory Coast chocolate farmers is precisely the predictable economic effect plaintiffs’ successful action would have.”
Case on hold
Later in May, Nestlé, ADM and Cargill successfully applied for the case to be stayed (put on hold) until they could apply for a writ of certiorari in the U.S. Supreme Court - this would mean the case would be held in the highest court in the country if allowed.
The parties dispute whether corporations can be responsible for aiding and abetting crimes outside the U.S. under the Alien Tort Statute. The firms also claim they lack the mens rea (the mental element or purpose) of the crime and say simply knowing child slavery exists on cocoa farms is insufficient.
Senior circuit judge DW Nelson said in an earlier ruling last September: “Driven by the goal to reduce costs in any way possible, the defendants allegedly supported the use of child slavery, the cheapest form of labor available.”
[John Doe I, et al v. Nestle, USA, et al - case no: 10-56739 ]