John Doe v. Nestle, S.A. , 906 F.3d 1120 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, I; JOHN DOE, II; JOHN No. 17-55435
DOE, III; JOHN DOE, IV; JOHN DOE,
V; and JOHN DOE, VI, each D.C. No.
individually and on behalf of 2:05-cv-05133-
proposed class members, SVW-MRW
Plaintiffs-Appellants,
v. OPINION
NESTLE, S.A.; NESTLE USA, INC.;
NESTLE IVORY COAST; CARGILL
INCORPORATED COMPANY; CARGILL
COCOA; CARGILL WEST AFRICA,
S. A.; ARCHER DANIELS MIDLAND
COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted June 7, 2018
Pasadena, California
Filed October 23, 2018
2 DOE V. NESTLE
Before: Dorothy W. Nelson and Morgan Christen, Circuit
Judges, and Edward F. Shea,* District Judge.
Opinion by Judge D.W. Nelson;
Concurrence by Judge Shea
SUMMARY**
Alien Tort Statute
The panel reversed the district court’s dismissal of claims
alleging aiding and abetting slave labor that took place in the
United States under the Alien Tort Statute (ATS).
The plaintiffs, former child slaves who were forced to
work on cocoa farms in the Ivory Coast, brought the action
against large manufacturers, purchasers, processors, and retail
sellers of cocoa beans. The district court concluded that the
complaint seeks an impermissible extraterritorial application
of the ATS.
Rejecting the defendants’ argument that the focus of the
ATS is limited to principal offenses, the panel held that
aiding and abetting comes within the ATS’s focus on torts
committed in violation of the law of nations.
*
The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. NESTLE 3
The panel also held that a narrow set of specific domestic
conduct alleged by the plaintiffs is relevant to the ATS’s
focus – namely, that the defendants provided personal
spending money outside the ordinary business contract with
the purpose to maintain ongoing relations with the farms so
that the defendants could continue receiving cocoa at a price
that would be not be obtainable without child slave labor; and
that the defendants had employees from their United States
headquarters regularly inspect operations in the Ivory Coast
and report back to the United States offices, where these
financing decisions or arrangements originated.
The panel deemed it unnecessary at this time to reach the
issue of whether the plaintiffs have sufficiently alleged the
elements of aiding and abetting. In light of Jesner v. Arab
Bank, 138 S. Ct. 1386 (2018), which changed the legal
landscape on which the plaintiffs constructed their case, the
panel remanded to allow the plaintiffs to amend their
complaint to specify whether aiding and abetting conduct that
took place in the United States is attributable to the domestic
corporations in this case.
District Judge Shea concurred in the result.
COUNSEL
Paul L. Hoffman (argued), John Washington, and Catherine
Sweetser, Schonbrun Seplow Harris & Hoffman LLP, Los
Angeles, California; Terrence P. Collingsworth, International
Human Rights Advocates, Washington, D.C.; for Plaintiffs-
Appellants.
4 DOE V. NESTLE
Theodore J. Boutrous, Jr. (argued), Abbey Hudson, Matthew
A. Hoffman, and Perlette Michèle Jura, Gibson Dunn &
Crutcher LLP, Los Angeles, California; Christopher B. Leach
and Theodore B. Olson, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Colleen Sinzdak, David M. Foster, Craig
A. Hoover, and Neal Kumar Katyal, Hogan Lovells US LLP,
Washington, D.C.; for Defendant-Appellee Nestlé USA, Inc.
Andrew John Pincus (argued) and Kevin S. Ranlett, Mayer
Brown LLP, Washington, D.C.; Lee H. Rubin, Mayer Brown
LLP, Mayer Brown LLP, Palo Alto, California; for
Defendant-Appellee Cargill Incorporated.
Marc B. Robertson and Richard A. Stamp, Washington Legal
Foundation, Washington, D.C., for Amicus Curiae
Washington Legal Foundation.
OPINION
D.W. NELSON, Circuit Judge:
OVERVIEW
Plaintiffs-Appellants (“Plaintiffs”), former child slaves
who were forced to work on cocoa farms in the Ivory Coast,
filed a class action lawsuit against Defendants-Appellees
Nestle, SA, Nestle USA, Nestle Ivory Coast, Archer Daniels
Midland Co. (“ADM”),1 Cargill Incorporated Company, and
Cargill West Africa, SA (“Defendants”). In their Second
Amended Complaint, plaintiffs alleged claims for aiding and
1
Plaintiffs voluntarily dismissed ADM from this case.
DOE V. NESTLE 5
abetting slave labor that took place in the United States
under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). The
district court dismissed the claims below based on its
conclusion that plaintiffs sought an impermissible
extraterritorial application of the ATS. We reverse and
remand. In light of an intervening change in controlling law,
we think it unnecessary to consider the other issues this case
presents at this juncture.
BACKGROUND
I. Factual Background
We discussed much of the factual background of this case
in Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014)
(“Nestle I”). Child slavery on cocoa farms in the Ivory Coast,
where seventy percent of the world’s cocoa is produced, is a
pervasive humanitarian tragedy.
Plaintiffs are former child slaves who were kidnapped and
forced to work on cocoa farms in the Ivory Coast for up to
fourteen hours a day without pay. While being forced to
work on the cocoa farms, plaintiffs witnessed the beating and
torture of other child slaves who attempted to escape.
Defendants are large manufacturers, purchasers,
processors, and retail sellers of cocoa beans. Several of them
are foreign corporations that are not subject to suit under the
ATS. Jesner v. Arab Bank, 138 S. Ct. 1386, 1407 (2018).
The effect of Jesner in tandem with plaintiffs’ habit of
describing defendants en masse presents a challenge we
address below. For now, we describe the case as plaintiffs
present it. We take their plausible allegations as true and
6 DOE V. NESTLE
draw all reasonable inferences in their favor. See Nestle I,
766 F.3d at 1018.
Because of their economic leverage over the cocoa
market, defendants effectively control cocoa production in the
Ivory Coast. Defendant Nestle, USA is headquartered in
Virginia and coordinates the major operations of its parent
corporation, Nestle, SA, selling Nestle-brand products in the
United States. Every major operational decision regarding
Nestle’s United States market is made in or approved in the
United States. Defendant Cargill, Inc. is headquartered in
Minneapolis. The business is centralized in Minneapolis and
decisions about buying and selling commodities are made at
its Minneapolis headquarters.
Defendants operate with the unilateral goal of finding the
cheapest source of cocoa in the Ivory Coast. Not content to
rely on market forces to keep costs low, defendants have
taken steps to perpetuate a system built on child slavery to
depress labor costs. To maintain their supply of cocoa,
defendants have exclusive buyer/seller relationships with
Ivory Coast farmers, and provide those farmers with financial
support, such as advance payments and personal spending
money. 19 Malian child slaves were rescued from a farm
with whom Cargill has an exclusive buyer/seller relationship.
Defendants also provide tools, equipment, and technical
support to farmers, including training in farming techniques
and farm maintenance. In connection with providing this
training and support, defendants visit their supplier farms
several times per year.
Defendants were well aware that child slave labor is a
pervasive problem in the Ivory Coast. Nonetheless,
defendants continued to provide financial support and
DOE V. NESTLE 7
technical farming aid, even though they knew their acts
would assist farmers who were using forced child labor, and
knew their assistance would facilitate child slavery. Indeed,
the gravamen of the complaint is that defendants depended
on—and orchestrated—a slave-based supply chain.
II. Procedural History
Plaintiffs began this lawsuit over a decade ago, and we
had occasion to consider it once before in Nestle I. On
remand after Nestle I, defendants moved to dismiss the
operative complaint and the district court granted the motion.
In its order, the district concluded that the complaint seeks an
impermissible extraterritorial application of the ATS because
defendants engaged domestically only in ordinary business
conduct. The district court did not decide whether plaintiffs
stated a claim for aiding and abetting child slavery.
Plaintiffs timely appealed.
STANDARD OF REVIEW
We review a dismissal for lack of jurisdiction de novo.
Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007)
(citing Arakaki v. Lingie, 477 F.3d 1048, 1056 (9th Cir.
2007)). “A dismissal for failure to state a claim is reviewed
de novo. All factual allegations in the complaint are accepted
as true, and the pleadings construed in the light most
favorable to the nonmoving party.” Nestle I, 766 F.3d at
1018 (quoting Abagninin v. AMVAC Chem. Corp., 545 F.3d
733, 737 (9th Cir. 2008) (internal citations omitted)).
8 DOE V. NESTLE
DISCUSSION
The legal landscape has shifted since we last considered
this case, including during the pendency of this appeal. The
Supreme Court’s decisions in Jesner and RJR Nabisco, Inc.
v. European Community,136 S. Ct. 2090 (2016), require us to
revisit parts of Nestle I.
I. Corporate Liability Post-Jesner
In Nestle I, we held that corporations are liable for aiding
and abetting slavery after applying three principles from our
en banc decision in Sarei v. Rio Tinto, PLC, 671 F.3d 736,
746 (9th Cir. 2011) (en banc), vacated on other grounds by
Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013). Nestle I,
766 F.3d at 1022. Our court in Sarei adopted a norm-specific
analysis that determines “‘whether international law extends
the scope of liability for a violation of a given norm to the
perpetrator being sued.’” Sarei, 671 F.3d at 760 (quoting
Sosa, 542 U.S. at 732 n.20). “First, the analysis proceeds
norm-by-norm; there is no categorical rule of corporate
immunity or liability.” Nestle I, 766 F.3d at 1022 (citing
Sarei, 671 F.3d at 747–48). Under the second principal,
“corporate liability under an ATS claim does not depend on
the existence of international precedent enforcing legal norms
against corporations.” Id. (citing Sarei, 671 F.3d at 760–61).
“Third, norms that are ‘universal and absolute,’ or applicable
to ‘all actors,’ can provide the basis for an ATS claim against
a corporation.” Id. (citing Sarei, 671 F.3d at 764–65). We
reaffirmed these principles in Nestle I and held that since the
prohibition of slavery is “universal,” it is applicable to all
actors, including corporations. Id. at 1022.
DOE V. NESTLE 9
As we have noted, the Supreme Court in Jesner held that
foreign corporations cannot be sued under the ATS. Jesner,
138 S. Ct. at 1407. Jesner thus abrogates Nestle I insofar as
it applies to foreign corporations. But Jesner did not
eliminate all corporate liability under the ATS, and we
therefore continue to follow Nestle I’s holding as applied to
domestic corporations. See Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc).
II. Extraterritorial ATS Claim
In Kiobel v. Royal Dutch Petroleum Co. (Kiobel II), the
Supreme Court held that the ATS does not have
extraterritorial reach after applying a canon of statutory
interpretation known as the presumption against
extraterritorial application, which counsels that “[w]hen a
statute gives no clear indication of an extraterritorial
application, it has none.” 569 U.S. 108, 115 (2013) (citing
Morrison v. National Australia Bank Ltd., 561 U.S. 247, 248
(2010)). The Court acknowledged that the canon is not
directly on point given that the ATS “does not directly
regulate conduct or afford relief.” Id. But given the foreign
policy concerns the ATS poses, the Court stated that “the
principles underlying the canon of interpretation similarly
constrain courts considering causes of action that may be
brought under the ATS.” Id.The Court in Kiobel II left the door open to the
extraterritorial application of the ATS for claims made under
the statute which “touch and concern the territory of the
United States . . . with sufficient force to displace the
presumption.” Id. at 123 (citing Morrison, 561 U.S. at264–73). Because “all the relevant conduct” in Kiobel II took
place abroad, the Court did not need to delve into the
10 DOE V. NESTLE
contours of the touch and concern test. Id. The only
guidance the Court provided about the “touch and concern”
test was that “mere corporate presence” would not suffice to
meet it. Id.In announcing the “touch and concern” test, the Supreme
Court cited to its decision in Morrison v. National Australia
Bank Lt. In Morrison, the Supreme Court undertook a two-
step analysis, known as the “focus” test, to determine whether
Section 10(b) of the Securities Exchange Act of 1934 applies
extraterritorially. Morrison, 561 U.S. at 262. Under the first
analytical step, the Court asked if there is any indication that
the statute is meant to apply extraterritorially, and concluded
there is not. Id. at 265. Under the second step, the Court
asked what the “‘focus’ of congressional concern” was in
passing Section 10(b). Id. The Court found that the “focus
is not on the place where the deception originated, but on
purchases and sales of securities in the United States. Section
10(b) [therefore] applies only to transactions in securities
listed on domestic exchanges and domestic transactions in
other securities.” Id. at 249.
In the first appeal of this case, we reasoned that
“Morrison may be informative precedent for discerning the
content of the touch and concern standard, but the opinion in
Kiobel II did not incorporate Morrison’s focus test. Kiobel II
did not explicitly adopt Morrison’s focus test, and chose to
use the phrase ‘touch and concern’ rather than the term
‘focus’ when articulating the legal standard it did adopt.”
Nestle I, 766 F.3d at 1028.
Defendants argue that the Supreme Court’s recent
decision in RJR Nabisco requires us to apply the focus test to
claims under the ATS. In RJR Nabisco, the Court applied the
DOE V. NESTLE 11
Morrison focus test to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) and reiterated that Morrison
reflects a two-step inquiry regarding extraterritoriality. Id. at
2103. The Court further stated that “Morrison and Kiobel
[also] reflect a two-step framework for analyzing
extraterritoriality issues.” Id. at 2101.
Because RJR Nabisco has indicated that the two-step
framework is required in the context of ATS claims, we apply
it here. See Miller v. Gammie, 335 F.3d at 893. First, we
determine “whether the [ATS] gives a clear, affirmative
indication that it applies extraterritorially.” RJR Nabisco,
136 S. Ct. at 2101. The Court in Kiobel II already answered
that the “presumption against extraterritoriality applies to
claims under the ATS, and that nothing in the statute rebuts
that presumption.” Kiobel II, 569 U.S. at 185.
Because the ATS is not extraterritorial, then at the second
step, we must ask whether this case involves “a domestic
application of the statute, by looking to the statute’s ‘focus.’”
RJR Nabisco, 136 S. Ct. at 2101. Defendants insist that any
acts of assistance that took place in the United States are
irrelevant because the extraterritoriality analysis should focus
on the location where the principal offense took place or the
location the injury occurred, rather than the location where
the alleged aiding and abetting took place. We disagree.
The focus of the ATS is not limited to principal offenses.
In Mastafa v. Chevron Corp., the Second Circuit held that
“the ‘focus’ of the ATS is on . . . conduct of the defendant
which is alleged by plaintiff to be either a direct violation of
the law of nations or . . . conduct that constitutes aiding and
abetting another’s violation of the law of nations.” 770 F.3d
at 185 (emphasis added); see also Adhikari v. Kellogg Brown
12 DOE V. NESTLE
& Root, Inc., 845 F.3d 184, 199 (5th Cir. 2017) (stating that
aiding and abetting conduct comes within the focus of the
ATS). We also hold that aiding and abetting comes within
the ATS’s focus on “tort[s] . . . committed in violation of the
law of nations.” 28 U.S.C. § 1350.
As part of the step two analysis, we then determine
“whether there is any domestic conduct relevant to plaintiffs’
claims under the ATS.” Adhikari, 845 F.3d at 195. Under
RJR Nabisco, “if the conduct relevant to the statute’s focus
occurred in the United States, then the case involves a
permissible domestic application even if other conduct
occurred abroad.” RJR Nabisco, 136 S. Ct. at 2101
(emphasis added).
In Mastafa, the Second Circuit held that the following
constituted “specific, domestic conduct”: “Chevron’s [Iraqi]
oil purchases, financing of [Iraqi] oil purchases, and delivery
of oil to another U.S. company, all within the United States,
as well as the use of a New York escrow account and New
York-based ‘financing arrangements’ to systematically enable
illicit payments to the Saddam Hussein regime that allegedly
facilitated that regime’s violations of the law of nations.”
Mastafa, 770 F.3d at 195.
In Licci by Licci v. Lebanese Canadian Bank, SAL, the
Second Circuit again held that the Lebanese Canadian
Bank’s (“LCB”) “provision of wire transfers between
Hezbollah accounts” through a United States bank constituted
domestic conduct which rebutted the presumption against
extraterritoriality. 834 F.3d 201, 214–15, 219 (2d Cir. 2016).
There, LCB made “numerous New York-based payments and
‘financing arrangements’ conducted exclusively through a
DOE V. NESTLE 13
New York bank account.” Id. at 217 (citing Mastafa,
700 F.3d at 191).
Like in Mastafa and Licci, plaintiffs have alleged that
defendants funded child slavery practices in the Ivory Coast.
Specifically, plaintiffs allege that defendants provided
“personal spending money to maintain the farmers’ and/or the
cooperatives’ loyalty as an exclusive supplier.” Because we
are required to “draw all reasonable inferences in favor” of
plaintiffs, Mujica v. Airscan, Inc., 771 F.3d 580, 589 (9th Cir.
2014), we infer that the personal spending money was
outside the ordinary business contract and given with the
purpose to maintain ongoing relations with the farms so that
defendants could continue receiving cocoa at a price that
would not be obtainable without employing child slave labor.
Contrary to the district court’s reasoning, providing personal
spending money to maintain relationship above the contract
price for cocoa is not ordinary business conduct, and is more
akin to “kickbacks.” Mastafa, 770 F.3d at 175. Defendants
also had employees from their United States headquarters
regularly inspect operations in the Ivory Coast and report
back to the United States offices, where these financing
decisions, or “financing arrangements,” originated. Licci by
Licci, 834 F.3d at 217 (citing Mastafa, 770 F.3d at 191). In
sum, the allegations paint a picture of overseas slave labor
that defendants perpetuated from headquarters in the United
States. “This particular combination of conduct in the United
States . . . is both specific and domestic.” Id. at 191. We thus
hold that foregoing narrow set of domestic conduct is relevant
to the ATS’s focus.
14 DOE V. NESTLE
III. Aiding And Abetting Claim
Defendants invite us to rule in the alternative that
plaintiffs have not sufficiently alleged the elements of aiding
and abetting. We think it unnecessary to reach that issue at
this time. As we have explained, Jesner changed the legal
landscape on which plaintiffs constructed their case. The
operative complaint names several foreign corporations as
defendants, and plaintiffs concede those defendants must be
dismissed on remand. The operative complaint also discusses
defendants as if they are a single bloc—a problematic
approach that plaintiffs would do well to avoid. In light of
Jesner, it is not possible on the current record to connect
culpable conduct to defendants that may be sued under the
ATS.
As we observed in Nestle I, “[i]t is common practice to
allow plaintiffs to amend their pleadings to accommodate
changes in the law, unless it is clear that amendment would
be futile.” See Nestle I, 766 F.3d at 1028 (citations omitted).
We are mindful that this case has lingered for over a decade,
and that delay does not serve the interests of any party. But
we cannot conclude that amendment would be futile, so we
remand with instructions that plaintiffs be given an
opportunity to amend their complaint. On remand, plaintiffs
must remove those defendants who are no longer amenable
to suit under the ATS, and specify which potentially liable
party is responsible for what culpable conduct.
CONCLUSION
For the reasons set forth above, we REVERSE the
district court and REMAND to allow plaintiffs to amend
their complaint to specify whether aiding and abetting
DOE V. NESTLE 15
conduct that took place in the United States is attributable to
the domestic corporations in this case.
SHEA, District Judge:
I concur in the result.