Nestle USA v. Doe I
Oral argument transcript · No. 19-416 · October Term 2020 · argued December 1, 2020 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Neal K. Katyal, Washington, D.C., for the petitioner
- Curtis E. Gannon, Deputy Solicitor General, amicus curiae supporting the petitioner
- Paul L. Hoffman, Hermosa Beach, California, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 19-416, Nestle USA versus Doe, and the consolidated case. Mr. Katyal. ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PETITIONERS
Neal K. Katyal: Thank you, Mr. Chief Justice, and may it please the Court: The Alien Tort Statute has been around since the earliest days of our nation, and yet this Court has never accepted the type of claim that the plaintiffs bring here. The claim plaintiffs bring alleges something horrific, that locators in Mali sold them as children to Ivorian farms where overseers forced them to work. The defendants are not the locators, not the overseers, and not the farms. Instead, they are two U.S. corporations, Nestle USA and Cargill. The plaintiffs do not allege that these two owned or operated any farms, and they do not allege that the companies bought anything Official 1 from farms that used child labor. Instead, the companies are an afterthought, a few of 101 paragraphs in their complaint. They claim the companies made decisions in the U.S. and that they had knowledge of child slavery. This lawsuit fails for two independent reasons. First, it's extraterritorial. You've said, when a statute gives no clear indication of an extraterritorial application, it has none. Here, the plaintiffs haven't alleged any domestic injury or even that they've been to the U.S. History and this Court's cases make clear that the ATS's focus is the injury or principal wrongdoing from a tort. Here, that occurred halfway across the globe. And, second, the ATS is about natural persons. Jesner recognized there is no specific universal and obligatory international law norm of corporate liability that fully applies to domestic corporations. It's not enough, as the Jesner plurality said, to show "liability might be permissible under international law in some circumstances." Rather, it must be, to use Sosa's language, "accepted by the civilized world and defined with a specificity comparable Official 1 to the features of the 18th century paradigm." These are some of the most fraught decisions government makes. To say Congress in 1789 made them is to read many difficult policy choices into vague statutory text. This Court has generally warned against doing that and specifically with the ATS every single time.
Chief Justice Roberts: Mr. Katyal, in this case, no foreign country has objected to the United States hailing its own citizens into its own courts. And why should we be cautious in terms of international relations in such a case? And what objection would foreign countries have to ensuring that U.S. corporations follow customary international law?
Neal K. Katyal: So, Your Honor, first of all, I don't think that that's the relevant test because, Nabisco, what you said was even if international friction is "not necessarily the result in every case," the potential for friction militates against recognizing foreign injury claims. And I think that's true generally. And then, with respect to here, I do think that there's three different impacts on Official 1 foreign policy that would be recognized -- that would -- that would occur if you were to recognize corporate liability in this case. One is, in Jesner, you talked about the surrogacy problem with the injury nation. The -- the plurality said that plaintiffs can still use corporations as surrogate defendants to challenge corporate governance and said that's what was going on in Kiobel.
Chief Justice Roberts: Well, we can always --
Neal K. Katyal: And that very case --
Chief Justice Roberts: -- we can always address that concern with addressing aiding and abetting.
Neal K. Katyal: I agree that that's one way to do this, but I think this Court in Jesner recognized that -- that doing it -- that if you were to recognize corporate liability, you would in some circumstances get this. And, in addition, the para nation concern, I think, would apply just as well, because it would be an end run around Jesner to permit foreign corporations like Nestle to be sued because of their domestic subs, like in Official 1 this case, but not others. And finally --
Chief Justice Roberts: Thank you. Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Katyal, the tote -- on a slightly different matter, do you agree with the D.C. Circuit and the Fourth Circuit that there is a universal norm on aiding and abetting liability?
Neal K. Katyal: We do not, Your Honor. We think that -- that if you were to reach that question, that for the reasons the Solicitor General said, there is no such norm. In Hamdan at Footnote 40, you said -- you said something similar. The domestic precedents, like Central Bank, I think, are clear on this. But I think our most important point, Justice Thomas, is that, here, aiding and abetting would translate to aiding an amorphous in this particular case because there's two axes here. One is extraterritoriality, which is already blinking red here because there is no U.S. injury or principal wrong. Official 1 And now the plaintiffs want to add this ambiguous concept of aiding and abetting, and you'd be left with an extremely broad statute with no congressional analog whatsoever if you were to accept their interpretation.
Justice Thomas: The -- what about the petition, the Respondents here say that even though there may not be an international norm or a universal norm on corporate liability, that that's different in the case of slavery -- slavery? What's your response to that?
Neal K. Katyal: Well -- well, first of all, Your Honor, I think that the norm that they're asserting is not child slavery but aiding and abetting child slavery. And they fail their own test. They have not a single case that says there is such a norm of aiding and abetting that. And I think this Court has recognized that the test is a more general one. It's not specific norm-by-norm. But, as Jesner and as the -- the language that you joined in Jesner indicates, it's a much more general test of is there a universal specific and obligatory norm. And, here, there isn't. The only Official 1 evidence they can even point to about child slavery in particular is one source, a 1930 Liberia report, that says, although government officials used their authority to force labor, there's no evidence that the only corporation in the country did so. That doesn't come close to meeting their burden, that high bar that you and the rest of the Court have talked about. You have to proceed with great caution. It's really their severe burden to produce evidence showing some sort of norm here, and they haven't. And so, Justice Thomas --
Justice Thomas: Thank you.
Chief Justice Roberts: Justice -- Justice Breyer.
Justice Breyer: Let me go back to the corporate liability. One of the three incidents that led to the statute, I take it, was the Marbois affair of 1784, and there was a French adventurer who assaulted the Secretary of the French Legion in Philadelphia and there was no legal remedy for the assault. Now that's so, isn't it? But this statute was designed, in part, to give a remedy. Official 1 But suppose instead of, I think Mr. Marbois, I'm not certain if he -- which -- which of the parties he is, but suppose instead of him going up and hitting the French Secretary, he had been the president of a corporation and they all sat around and said: I have a great idea. Let's hit the French Secretary. So they pass a resolution and went out and hit the French Secretary. Why should that make a difference?
Neal K. Katyal: So, Justice Breyer, three things. First, I think your example points to the ex -- the separate argument about extraterritoriality, and I just want to make clear that they are distinct. Marbois and the other incident really underscore that those are about injury in the United States, which you don't have here.
Justice Breyer: Well, that's true, but I'm not asking about that.
Neal K. Katyal: I understand.
Justice Breyer: I'm abstracting from that and just speaking of I don't see why exempt all corporations, including domestic Official 1 corporations, from this -- the scope of the statute.
Neal K. Katyal: Right. But, Your Honor, the difference is, in Marbois, under your hypothetical, there very well would be a remedy against the individual perpetrators, and that's exactly what international law requires time and again. You don't go after the corporation, but you absolutely have a remedy. We're not here seeking any sort of corporate impunity. We're just saying you have to go after the individual unless the statute and Congress makes a different choice. And most notably, Justice Breyer, in the TVPA, which is the most closely analogous statute, it is an ATS cause of action. And I'm just saying no corporate liability.
Justice Breyer: No, but I'm asking you really what's the reason why, if everything had been done in Marbois by a corporation, why would you want to make the corporation immune from the statute?
Neal K. Katyal: For -- for two reasons: One, because there's already a separate remedy Official 1 of going after the individuals, and second, because corporate liability, as Congress recognized in the TVPA, has any number of other difficulties, such as mens rea. This Court in Jesner cited Malesko for saying that if you go after corporations and imbue them with liability, then people don't go after individual wrongdoers and, as a matter of deterrence, you might want to go after them --
Justice Breyer: Oh, by the way, the individual also --
Chief Justice Roberts: Thank you, counsel. Justice -- Justice Alito.
Justice Alito: Mr. Katyal, many of your arguments lead to results that are pretty hard to take. So suppose a U.S. corporation makes a big show of supporting every cause de jure but then surreptitiously hires agents in Africa to kidnap children and keep them in bondage on a plantation so that the corporation can buy cocoa or coffee or some other agricultural product at bargain prices. You would say that the victims who couldn't possibly get any recovery in the courts Official 1 of the country where they had been held should be thrown out of court in the United States, where this corporation is headquartered and does business?
Neal K. Katyal: Justice Alito, I have three buckets of answers to this, and this is really the heart of the case in many ways, so I'll try to briefly outline them and then hope to detail them. So the first is that that hypothetical is, of course, very far removed from the facts of this case, where they allege minimal U.S. conduct, not some sort of operation run from the United States. Second, I don't think your hypothetical states a violation of the Alien Tort Statute because there is no domestic injury. But third and most importantly, your hypothetical does violate other statutes. As you said and the Court said in Jesner, the ATS "will seldom be the only way to hold perpetrators liable." And in your hypothetical, there are five different mechanisms that would prevent any Official 1 abuse. First is foreign law, the law of the Ivory Coast. There are already criminal sanctions there, and the State Department and Department of Labor says those are being used. And, indeed, when Congress makes statutes extraterritorial, like the TVPA, they require exhaustion of those foreign remedies first before one can sue in the United States. Second, there's sometimes specific liability under specific statutes. Like the Genocide Convention in your hypothetical, it might violate the territorial -- Extraterritorial Criminal Force Labor Bar in 18 U.S.C. 1581 to 94. Third, you can bar goods from entering the United States under 19 U.S.C. 1307, and, indeed, the plaintiffs' attorneys are doing that against the defendants right now. Fourth, sometimes there's U.S. liability if an individual acts as a principal. And, lastly, if there's any doubt about this, Congress can specify a specific remedy, an alternative. They pass extraterritorial laws all the time. And, indeed, if the violation is so clear of Official 1 international law and the laws of nations, I would suspect that would be easy. But I think implicit in --
Chief Justice Roberts: Justice Sotomayor.
Justice Alito: Thank you, Mr. Katyal. My time is up.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, as I listen to you, I -- and your answers to Justice Alito's questions, it seems to me that his hypothetical all pointed to the fact that the aiding and abetting by the corporation happened in the United States. That's -- that's a serious question here about whether there were enough allegations that the acts of this corporation had a sufficient tie to the United States. I put that argument aside. But we know that under the ATS the first Congress wanted the ATS to cover piracy. We also know that those who provided assistance to pirates were themselves held liable, whether they committed it on land or the sea, as aiders Official 1 and abetters. And it boggles my mind to think that the aiding and abetting had to have happened on the sea and not on the land because the first -- the 1799 imposed criminal liability for wherever the assistance occurred. And so my difficulty is, in understanding your answer, why it is that the ATS would not have seen aiding and abetting as its own form of criminal liability and the issue being whether there were enough ties to the jurisdiction in which it occurred. I take -- I'm not -- I don't need an answer from you that says to me there wasn't enough here. I need an answer that says, why wouldn't the framers have seen aiding and abetting in this way?
Neal K. Katyal: So, Justice Sotomayor, we certainly don't think that the complaint does say anything like what they claim at the red brief at page 5. There's a huge delta between the two. But I understand --
Justice Sotomayor: I just said to you I know that there's a question about the allegations. Official
Neal K. Katyal: Right. So --
Justice Sotomayor: Go to the substance of the issue.
Neal K. Katyal: -- so then, with -- with respect to the law, first of all, I think piracy, as the Court recognized in Kiobel at 121, is a category unto itself because the high seas are jurisdictionally unique and governed by no single sovereign. And the reason why, I think --
Justice Sotomayor: But they're not jurisdictionally unique if it happens on land.
Neal K. Katyal: Well, then I think of what --
Justice Sotomayor: And aiding and abetting said, if you assist in any way on the sea or on land, you're liable.
Neal K. Katyal: But I think the problem is, when you translate anything from piracy -- I think the Court's been -- urged great caution in exercising -- in trying to draw too much from piracy because there isn't, of course, another sovereign involved there the way there is, for example, in this very case, where they're challenging the conduct in Ivory Coast and where Official 1 there's a remedy in the foreign country. And the reason why I think Congress hasn't always recognized aiding and abetting, even with specific statutes that deal with it, is because it does lead to an amorphous form of liability.
Chief Justice Roberts: Justice Kagan.
Neal K. Katyal: And so --
Justice Sotomayor: Mr. Katyal, would you --
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Katyal, is child slavery, not aiding and abetting it but the offense itself, is that a violation of a specific universal and obligatory norm?
Neal K. Katyal: We're -- we're not -- yes, I think we're not challenging that here. It's just the aiding and abetting.
Justice Kagan: Okay. So, if that's right, could a former child slave bring a suit against an individual slaveholder under the ATS?
Neal K. Katyal: So they -- if it were -- if it weren't extraterritorial and it wasn't a corporate action, yes.
Justice Kagan: Yeah, no problem Official 1 extraterritorial, no problem aiding and abetting, just a straight suit.
Neal K. Katyal: Correct.
Justice Kagan: Okay. And could this same child -- former child slave in the same circumstances bring a suit against 10 slaveholders?
Neal K. Katyal: You know, if they -- if they met the -- you know, the requirements under the -- the law, yeah, sure. I mean, if they --
Justice Kagan: Okay. So if --
Neal K. Katyal: -- if it was a plausible allegation.
Justice Kagan: -- if you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can't you bring a suit against the corporation?
Neal K. Katyal: Because the corporation requires an individual form of liability under a -- a -- a norm, a specific norm, of -- of -- under international law, which it doesn't exist here. I think Sosa in Footnote --
Justice Kagan: I -- I -- I guess what I'm asking is, like, what sense does this make? This goes back to Justice Breyer's question. Official 1 What sense does this make? You have a suit against 10 slaveholders, 10 slaveholders decide to form a corporation specifically to remove liability from themselves, and now you're saying you can't sue the corporation?
Neal K. Katyal: Justice Kagan, I think that's exactly the question you and others repeatedly asked in Jesner, and the Court found no foreign court liability because of these policy regs that what --
Justice Kagan: I'm just asking for a reason, Mr. Katyal.
Neal K. Katyal: Right. And the reason -- I think there are two different reasons. One is that when you -- the cite to Malesko from Jesner shows, when you go after individuals, you often can go after the -- the true wrongdoers. Once you go after the corporate form, you get bogged down with questions of mens rea in a collective enterprise --
Justice Kagan: There's an amicus brief --
Neal K. Katyal: -- which is difficult --
Justice Kagan: -- Mr. -- sorry to interrupt, Mr. Katyal. There's an amicus brief Official 1 by Professor Hathaway that details the long history of imposing liability on slave ships. Those were not individuals, were they?
Neal K. Katyal: No. And, Justice Kagan, we don't doubt that Congress can pass a statute to deal -- to -- to expand -- to have corporate liability, but notably in the TVPA, they didn't do that, which is the most closely analogous statute. And you could ask the same question --
Justice Kagan: Thank you, Mr. Katyal.
Neal K. Katyal: -- how does this make sense?
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Katyal. I -- I'd actually like to pick up on -- on this line of questioning. I don't see anything in the language of the statute and I don't believe you've pointed to anything that distinguishes between individuals and corporations. And the rationale which Justice Breyer was alluding to for the ATS I think that we've said many times is to ensure that the United States provides a mechanism for aliens to Official 1 remedy wrongs that would otherwise be held against the United States itself and perhaps be lawful causes for war against the United States. And on -- on -- on those two lines, on the language and on the rationale that this Court has long adopted, or recognized for the ATS, why would we exempt corporations?
Neal K. Katyal: So --
Justice Gorsuch: I understand your policy arguments.
Neal K. Katyal: -- so, Justice Gorsuch, the text refers to law of nations. And what you said -- what you said and others in -- in cases is that that requires looking into whether there's a specific obligatory norm. And, here, there isn't one. The question is not are you exempting corporations, but, rather, they're -- are they included as a subject of the law of nations, which is the text of the ATS. And you talked about the rationale about not letting things go unremedied, but as I just said to Justice Kagan, there are remedies. You can go after the individuals. So you don't need to go after the corporations, and, indeed, Official 1 doing so imposes lots of liability. And our fundamental -- or it imposes lots of problems, like mens rea and the like. And fundamental --
Justice Gorsuch: I don't believe you -- okay. I -- I -- I -- I understand your responses there. I don't believe you did get a chance to fully respond to Justice Kagan on their last point. I would like an answer to that. And that is we do know one thing about the ATS, is that it did permit in rem jurisdiction against things, in particular, pirate ships. If in rem jurisdiction was part of the ATS's contemplation, why wouldn't corporate liability, which then didn't exist, I mean, in serious -- in widespread form, but why wouldn't the same concept apply?
Neal K. Katyal: For -- for the exact reasons --
Justice Gorsuch: Briefly.
Neal K. Katyal: -- that the Court said in Jesner, Justice Gorsuch, which is -- you know, the same argument was made there. And what the Court said is that doesn't come close to meeting Official 1 the kind of specific universal obligatory norm, and the Court has to proceed with great caution because you're being asked to fashion a common law remedy --
Justice Gorsuch: Thank you, Mr. Katyal.
Neal K. Katyal: -- which is not something --
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Katyal. The Alien Tort Statute was once an engine of international human rights protection. Your position, however, would allow suits by aliens only against individuals, as you've said, and only for torts international law recognized that occurred in the United States. And Professor Koh's amicus brief on behalf of former government officials, for example, says that your position would "gut the statute." So why should we do that?
Neal K. Katyal: Well, I really feel like Official 1 that's some overheated rhetoric. You know, after all, for 200 plus years this statute's been around, there's not a successful example of a case like this ever, Justice Kavanaugh. All we're suggesting is to preserve the status quo as it's always been. I understand there's some policy arguments for why you might want something else, but that's really something addressed to a different branch of government. And for all the reasons the Court said in Jesner and you said in your dissent in Exxon versus Doe, recognizing corporate liability here or making it extraterritorial in the way that the plaintiffs want raises a host of really difficult intricate policy questions, which are best left handled by the other branch, not by courts. I mean, this is an extraordinary thing they're asking the Court to do in fashioning a common law remedy, and that's why every decision of this Court says proceed with great caution. They have the highest of bars, and they haven't come close to meeting it.
Justice Kavanaugh: Thank you. Official
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Mr. Katyal, a lot of the questions you've been asked thus far focus on whether there's a specific universal and obligatory norm here. And that, you know, as many of my colleagues have pointed out, raises some complications. Do you agree that this is a case that would be better resolved at Sosa step 2?
Neal K. Katyal: We think, you know, for -- just as the Jesner plurality said, you know, the -- the evidence bleeds over from step 1 to step 2. We think the evidence for step 1 on corporate liability is overwhelming, and we also think that the extraterritoriality, which is independent, is really pretty -- is very, very clear because, as the Court said in Morrison, there's always some U.S. conduct that can be pointed to in any case. And it'll be a craven watchdog if you can just use that to get out of the extraterritoriality bar. And this case is a perfect example of this. There's very limited U.S. conduct that is alleged in the complaint, and yet they want to Official 1 make the hugest of federal cases out of it.
Justice Barrett: Well, if we do resolve it at Sosa step 2, when would we ever recognize a cause of action? Because, you know, most cases will raise the same -- let's focus on the separation of powers prong. Most cases raise this question of the intricate policy questions that may be better left to Congress. I mean, we've been very restrained in the Bivens context about recognizing more causes of action. I mean, would this just kind of halt recognition of new causes of action altogether if we adopt your position?
Neal K. Katyal: No, Justice Barrett. We're not making the position -- we're not taking the position that Justice Scalia said -- you know, it's obviously available to you. But we certainly think that things outside of the Blackstone three that rise to the level of universality, to -- to use a prior form -- formulation of Justice Kavanaugh, things like torture, genocide, crimes against humanity, and war crimes, for example, would, I think, all meet that Sosa step 2 even though they're not part of the original Blackstone three. Official 1 We don't think you --
Justice Barrett: Just not if a corporation was -- was the perpetrator sued in any of those cases?
Neal K. Katyal: Right. We don't think that -- that --
Justice Barrett: Torture.
Neal K. Katyal: Right. Absolutely. It wouldn't be corporate liability. There's no international law norm that meets their burden there, but you could go after them as individuals. And, of course, Congress could pass a specific statute to deal with it, as they have sometimes. The very -- you know, like the TVPRA. And the very fact that --
Justice Barrett: Thank you, Mr. Katyal. My time's expired.
Chief Justice Roberts: A minute to wrap up, counsel.
Neal K. Katyal: Thank you. The hard hypotheticals I think shouldn't obscure the far easier task before this Court. Nestle USA and Cargill are not akin to Justice Alito's hypothetical of a direct enslaver or anything like that. The allegations in this complaint Official 1 don't allege anything close to that level of wrongdoing. And when there are those allegations of such wrongdoing, there are five different parts -- paths, apart from the ATS, to protect human rights. And this Court has always said great caution has to be exercised when recognizing a new cause of action, even in the face of hard facts. And our concern is that with -- even with -- without such great caution, further complaints like this will proliferate and go on for decades, with harm to our foreign policy, separation of powers, and other policy objectives. This Court's been clear that the bar against extraterritoriality is a high one. And the allegations in this complaint and other ATS suits don't come close to meeting it.
Chief Justice Roberts: Thank you, counsel. Mr. Gannon. 24 Official 1 ORAL ARGUMENT OF CURTIS E. GANNON FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
Curtis E. Gannon: Thank you, Mr. Chief Justice, and may it please the Court: The United States condemns child slavery and trafficking. Congress has expressly provided for criminal and civil liability for forced labor in certain circumstances. And the federal government has specifically supported efforts to eliminate the worst forms of child labor at cocoa farms in Cote d'Ivoire. But this Court should not extend the reach of the Alien Tort Statute to encompass Respondents' claims in this case for two principal reasons. First, the ATS does not authorize liability for domestic corporations for the same reasons that the majority and the plurality in Jesner found that foreign corporations are not liable. As the Jesner majority said, a decision to extend liability from natural persons to corporations must be made by Congress rather than the judiciary. And, second, the aiding and abetting Official 1 conduct alleged against defendants does not overcome the bar against extraterritorial application of the ATS.
Chief Justice Roberts: Counsel, I want to ask you the same question I asked Mr. Katyal. We don't have objections from foreign countries in this case. As far as we can tell, they're perfectly comfortable having U.S. citizens, U.S. corporations hailed into their U -- in U.S. courts. What should we make of that, and doesn't that suggest we ought to be a little more -- a little less cautious about finding a cause of action here?
Curtis E. Gannon: Well, in general, you've recognized correctly, I think, that you should be cautious about extending the cause of action. In previous cases, you've recognized that this is a question about whether there's a general threat posed by these types of cases, and whether or not there's a threat posed by this specific case, cases against domestic corporations can, indeed, be used as proxy challenges to foreign governments or to foreign parent or subsidiary corporations. Official 1 And the United States has raised specific foreign policy concerns in cases involving U.S. corporations, including Doe against Exxon, Polimeni and American Isuzu, other cases. But even in this case, the allegations are somewhat inchoate even though the case is 15 years old, but there are ways, as Mr. Katyal pointed out, that this case could still threaten foreign affairs interests if it comes to fruition because --
Chief Justice Roberts: Counsel, if -- if a United States corporation sent domestic employees to the Ivory Coast for the express purpose of setting up a cocoa farm that uses child slavery, would that conduct touch and concern the United States as we use those terms in Kiobel?
Curtis E. Gannon: Well, I think that it -- it depends on how much conduct happens in the United States and how much conduct happens overseas. We think that the Court has clarified that the way Kiobel is talking about that, it's whether the -- whether the conduct touches the territory of the United States. And we think Official 1 that it's the conduct in question, not the -- not the citizenship of the parties, and --
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Counsel, the -- I'm intrigued by my colleagues' questions on the corporate form and the -- but -- and I seem to remember that in the past the government has argued that the corporate form shouldn't make that difference as -- the difference in a case. And it's certainly not quite the argument or maybe even opposite argument that you're making now. I'd like you to -- if you can, to respond to some of the concerns raised by my colleagues with respect to the corporate form and to at least explain or correct me if I'm wrong about your prior positions, the government's prior positions, as to the coverage of the corporate form.
Curtis E. Gannon: Well, Justice Thomas, we did previously not urge the Court to adopt a categorical rule eliminating corporate liability Official 1 under the ATS. But we're trying to be consistent with the Court's precedents here, and Jesner rejected key parts of our argument there and key parts of our reasoning, and it reinforced a connection between the ATS caution that the Court should have about recognizing new forms of liability and extensions of liability and other areas such as Bivens. It reinforced that connection in Hernandez. And we've consistently opposed corporate liability in the context of Bivens, and under that rubric, we think that the same answer applies here. And we -- the question that the Court is asking is whether there is reason to doubt whether Congress would want this damages remedy to be available for artificial persons. And we know that there are times when Congress makes that decision. It did so in the Torture Victim Protection Act. This Court did so in Malesko. And now that Jesner has made foreign corporations not liable, it would be especially incongruous to discriminate on the basis of the defendant's nationality in the corporate context Official 1 because we know that that's not happening in the context of natural persons. The Marbois incident that Justice Breyer brought up has been discussed by Sosa and Kiobel, and in both cases, the Court assumed that both the Frenchman and the New York constable who assaulted an ambassador in the United States would be liable. So, if both foreign and U.S. natural persons are liable, we think that Congress should be the one that makes the decision that U.S. corporations would be discriminated against in a way that foreign corporations are not.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: I'd like to hear, if you would, the government's answer to the same question that I think Justice Thomas -- everybody's been asking, use Justice Kagan's example if you want or my example, what's new about suing corporations? When I looked it up once, there were 180 ATS lawsuits against corporations. Most of them lost but on other grounds. So why not sue Official 1 a domestic corporation? You can't sue the individual because, in my hypothetical, the individuals have all moved to Lithuania. All you have is the corporate assets in the bank and minutes that prove it was a corporate decision. What's new about it? Why is it creating a form of action? What's the reason it shouldn't be there? I mean -- I -- I don't see -- is it a different rule again for partnerships? Different rule again for, I don't know, limited liability companies or -- I mean, there are many forms of doing business. Why?
Curtis E. Gannon: Well, we think that in Jesner and in Malesko the Court recognized that extending liability to a corporate -- corporation is a marked extension of liability.
Justice Breyer: Then you missed my question unless you're going to answer it there. What's extending it? As I said, there have been -- there are suits abroad. I think I've seen citations to them. And suits, many -- tens, hundreds perhaps, 200, 180, brought against corporations under the ATS.
Curtis E. Gannon: Yes. But many of those Official 1 suits now need to be thrown out under Jesner because they were foreign corporations.
Justice Breyer: Yeah, yeah.
Curtis E. Gannon: And Malesko demonstrated that merely having an underlying form of civil liability for individuals doesn't necessarily mean that it should be extended to corporations. And you're right, there may be a background rule that corporations are generally liable for the torts of their agents. But we're not looking at this at Sosa step 1. We think this is controlled by Sosa step 2. And Congress has used two different models. They've used the Torture Victim Protection Act, where they ruled out all artificial persons. Only natural persons can be sued. So that takes care of all your questions about corporations or limited liability companies or partnerships or anything else. Only natural persons can be sued under the Torture Victim Protection Act for something that everybody understands is a violation of the law of nations. Now Congress did take a different route in the Trafficking Victims Protection Act Official 1 where they ultimately recognized a civil remedy, but it departs from the ATS in multiple ways. It didn't make the civil provision retroactive. It doesn't discriminate between a U.S. corporation and a foreign corporation found in the United States. It's arguably extraterritorial at Morrison step 1 in a way that the ATS is not. And it provides a specific cause of action with details that are tailored to the particular violations at issue. So --
Chief Justice Roberts: Justice Alito.
Justice Alito: Are you aware of ATS suits based on conduct that occurred in the United States? Why would someone bring such a claim?
Curtis E. Gannon: Well, if the -- I think that the canonical example would have been something like the Marbois incident. If the only cause of action was something that needed to be brought under the law of nations, then the ATS would have provided jurisdiction for that.
Justice Alito: Yeah, that -- I mean, that was -- that was necessary under domestic law as it existed at the time. But, under current circumstances, have there been ATS suits Official 1 based on conduct in the United States?
Curtis E. Gannon: It -- it -- I'm not aware of suits that are -- that are entirely U.S.-based, Justice Alito.
Justice Alito: Won't your arguments about aiding and abetting and extraterritoriality all lead to essentially the same result as holding that a domestic corporation cannot be sued under the ATS? Corporations always act through natural persons, so if a corporation can't aid and abet, there -- there will be only a sliver of activity where they could be responsible under respondeat superior, isn't that true?
Curtis E. Gannon: Well, I think, whether or not the Court recognizes aiding and abetting liability, there will be a separate question about whether respondeat superior type of liability should apply. I think Sosa as -- and in other cases, the Court has suggested that there could be other limits. And, obviously, Congress knows how to impose those sorts of limits. And in the civil action it provided in 1595 for -- for crimes associated with slavery and forced labor, Official 1 it specifically extended that action to whoever knowingly benefits financially or receiving anything of value from a venture that engaged in that underlying conduct. And so I think part of the question is going to be whether you recognize aiding and abetting liability or whether you're going to require the corporation to commit the actual tort or its agents to commit the actual underlying tort.
Justice Alito: All right. Yeah. Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, I -- I'm -- I think I'm reading your brief right, that you don't think there's an aiding and abetting liability at all under international law. But both Blackstone and the first Congress recognized that facilitating piracy was a crime, and this Court reaffirmed that in nine -- 1795 in the Talbot case. Post-World War II, military tribunals held individuals liable for assisting the German government's war crimes. The international criminal tribunals for the Official 1 former Yugoslavia and for Rwanda, the Special Court for Sierra Leone all have imposed aiding and abetting liability. So I'm having a very hard time accepting that if an individual aided and abetted in the United States or anywhere else that we couldn't hold that individual liable. Could you explain to me why -- I'm going to set aside the corporate for a moment. Could you set aside for me why you think international law -- there's not an international law against aiding and abetting something as heinous as child slavery?
Curtis E. Gannon: We -- we are not disputing the international law level of this analysis, Justice Sotomayor. Just as with the question about corporate liability, we think that this is something that a court, if it wants to reach the question, could do entirely at step 2 of Sosa. And so even assuming that there's a sufficiently defined norm at international law at step 1, the question is still going to be whether the Court would recognize an extension of -- Official
Justice Sotomayor: All right. Now --
Curtis E. Gannon: -- liability for aiding and abetting that --
Justice Sotomayor: -- now let me stop at Sosa step 2. I'm -- I -- I don't know if I misread your brief or it's become more nuanced now, but however, your answer's more nuanced now.
Curtis E. Gannon: Okay.
Justice Sotomayor: It doesn't make sense to me -- it might make sense to me in accordance with our rule in Jesner that we shouldn't hold corporations liable for -- foreign corporations liable for conduct that they conduct in foreign countries. I see all of the foreign and domestic conflicts that could occur there. I do not see the same conflict with holding an American corporation liable for the acts -- for acts it commits here, putting aside that -- the allegations and their sufficiency in this case, taking the hypothetical that Justice Alito set forth where most of the conduct was -- aiding and abetting conduct occurred here, it just -- I do not understand why international Official 1 law would not have seen that as proper exercise of our power to say that our domestic corporations cannot aid and abet in the United States and be held liable under the ATS.
Chief Justice Roberts: Briefly, counsel.
Curtis E. Gannon: Yes, briefly, our reason is not one of international law. It is that under Central Bank of Denver, the Court has recognized that when Congress recognizes primary civil liability, that doesn't incorporate the expansion associated with aiding and abetting liability, unless Congress separately provides for that.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Gannon, one of the amicus briefs in this case says that many of the countries around the world with the strongest rule of law systems do hold their own corporations civilly liable for the kinds of actions at issue here. And the amicus brief says that's true of the United Kingdom, France, Germany, Japan, Canada. Do you know of anything that suggests otherwise?
Curtis E. Gannon: Well, I'm not sure about Official 1 other countries, but I do think that one point is that they are doing that as a matter of domestic law and not always with an analogy that is like the ATS. And, here, the United States Congress has actually provided for liability, civil liability, for many violations of international law.
Justice Kagan: I guess the point I'm making here, Mr. Gannon, is -- you know, the Chief Justice started out by saying that other countries have not objected here. And that's true, but one might make a broader point, that the first Congress enacted the ATS in response to its concerns about other nations being offended by our failure to remedy international law violations. And one might ask why one would think that another country would be less offended by leaving a foreign victim without a remedy when that victim is injured by a U.S. corporation rather than by a U.S. -- a U.S. individual and, indeed, that most of the countries around the world with which we're usually associated as a rule of law nation do not make that distinction. Official
Curtis E. Gannon: One reason is because we don't think that civil liability under the ATS is the only way that Congress has to ensure that we are holding U.S. persons accountable for violations of human rights. Under the Torture Victim Protection Act, Congress didn't think that corporations needed to be held liable in order for us to effectuate our obligations to prevent torture. And, similarly, Congress has provided for other remedies besides the TV -- besides the ATS. It has criminal consequences, the types of things that Justice Sotomayor was talking about for piracy, those were originally criminal cases.
Justice Kagan: Thank you, Mr. Gannon. Thank you.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: I have no questions. Thank you, Chief.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. Official 1 And good morning, Mr. Gannon. Footnote 21 in Sosa instructs the courts to pay attention or give serious weight to the executive branch's view of the case's impact on foreign policy. In your view, are you -- does this case have an impact on foreign policy, or are you making a more general argument about the ATS?
Curtis E. Gannon: We're primarily making a more general argument about the ATS under step 2 of the Sosa analysis.
Justice Kavanaugh: Okay. So are you making any Footnote 21 argument at all about this particular case having an impact on foreign policy?
Curtis E. Gannon: Not specifically. We are saying that there are allegations in the complaint that if this case were ultimately brought to fruition, that, like the other types of cases that have previously presented concerns, may well point up a particular foreign relations problem because they implicate the actions of foreign officials potentially. And separately we do say that there is Official 1 a potential interaction here between the allegations of liability here and efforts that the executive branch, Congress, other governments are making in order to help solve and ameliorate the human rights situation in forced labor chains, that the Harkin-Engel protocol is used by plaintiffs here as evidence of liability rather than an instance where a U.S. corporation is in -- is engaging in good faith in efforts to try to ameliorate human rights abuses.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Counsel, I have a question about aiding and abetting liability and extraterritoriality. You say that the focus of the tort should be the primary conduct, so, here, what was happening in Cote d'Ivoire, rather than the aiding and abetting, which you characterize as secondary. But why should that be so? I mean, let's imagine you have a U.S. corporation or even a U.S. individual that is making plans to facilitate the use of child slaves, you know, Official 1 making phone calls, sending money specifically for that purpose, writing e-mails to that effect. Why isn't that conduct that occurs in the United States something that touches and concerns, you know, or should be the focus of conduct, however you want to state the test?
Curtis E. Gannon: Well, I -- I think that there are two different ways of looking at that. We do think that the focus test requires us to look at the object of the statute's solicitude, including the conduct that the statute seeks to regulate. And to the extent that the U.S. corporation in your hypothetical is going to engage in all of this conduct overseas, even though some planning efforts -- activities happen in the United States, if the actual tort and the victims are happening and are located in Cote d'Ivoire, then we think that that's where the focus of the conduct associated with the -- with the tort is. Now, if you just want to focus on the aiding and abetting allegations or just say we're only going to look at the -- at the conduct by the U.S. corporation instead of the Official 1 people on the ground who are engaging in the underlying tort, we still think that the allegations in this case don't specifically state enough in order to state a claim that would not be extraterritorial.
Justice Barrett: Thank you.
Chief Justice Roberts: A minute to wrap up, Mr. Gannon.
Curtis E. Gannon: Thank you, Mr. Chief Justice. Concerns that the political branches have not moved quickly enough to resolve forced labor problems in corporate supply chains in this industry or elsewhere are not a license for this Court to expand tort liability under the ATS. Having already ruled out ATS liability for foreign corporations, the Court should not adopt a different rule for U.S. corporations. The contrast between the Torture Victim Protection Act and the Trafficking Victims Protection Act show that is a policy choice that could go either way and the decision should be made by Congress. And if the Court reaches the question Official 1 of extraterritoriality, then even assuming that aiding and abetting is actionable, the focus of any forced labor tort here was overseas. That's where the injury happened and where any substantial assistance was provided. So plaintiffs' claims call for an impermissibly extraterritorial application of the ATS. We urge the Court to reverse.
Chief Justice Roberts: Thank you, counsel. Mr. Hoffman. ORAL ARGUMENT OF PAUL L. HOFFMAN ON BEHALF OF THE RESPONDENTS
Paul L. Hoffman: Thank you, Mr. Chief Justice, and may it please the Court: The first Congress in the Alien Tort Statute provided a federal forum for foreign citizens to bring cases for law of nations violations without limitation as to defendants for a series of tort liability. Plaintiffs are former child slaves seeking compensation from two U.S. corporations which maintain a system of child slavery and forced labor in their Ivory Coast supply chain as a matter of corporate policy to gain a Official 1 competitive advantage in the U.S. market. The international norms prohibiting child slavery and forced labor are indisputably specific, universal, and obligatory. The norms apply directly to private parties, including corporations. Unlike Kiobel and Jesner, this case does not seek to assert U.S. jurisdiction over foreign corporations for actions against other foreign citizens they took on foreign soil. This case alleges violations of long-established norms prohibiting child slavery and forced labor by U.S. corporations from the United States. The founders were particularly concerned about actions of U.S. citizens that might lead to foreign entanglements, and their response was to provide for a federal judicial forum to resolve such disputes based on the rule of law. The recent discovery of legal opinions written by Thomas Jefferson and Edmund Randolph in the 1790s make it clear that the ATS applied when U.S. citizens violated the law of nations on foreign soil and that the ATS's broad language applied to violations beyond the Official 1 Blackstone norms without any need for further congressional action. These claims fit comfortably within the text, history, and purpose of the ATS and this Court's holding in Sosa, and it should be allowed to proceed.
Chief Justice Roberts: Counsel, this case, of course, involves United States citizens and United States courts. But, in the context of that action, much of the focus is going to be on conduct overseas, and those responsible for that can be brought into court either as witnesses or for aiding and abetting. So why doesn't this type of action present the same international relations concerns that we've noted in -- in the prior cases in this area?
Paul L. Hoffman: Well, the -- this -- this case is not different in many respects from any transnational litigation. There -- there certainly have been no problem with discovery and other matters in most of these cases that have gotten to discovery. The Ivory Coast has -- has not objected to the case at any point, hasn't said Official 1 anything about it. I think Mr. Gannon has said that the United States has no particular objection about this particular case on foreign policy grounds within the Footnote 21 context or others. So there really is no evidence that that's true. Moreover, Congress already decided in the Trafficking Victim Protection Act that forced labor and child slavery and -- or slavery generally in supply chains is something for which damage remedies are appropriate. And -- and, obviously, the Congress doesn't think that those issues present any -- any of those problems.
Chief Justice Roberts: The -- the TVPRA that you just mentioned, I think, is -- is pertinent here. Congress is addressing the sort of questions that you would have the Court resolve as a matter of, I suppose, federal common law. And doesn't what Congress did in the TVPRA suggest that they are cognizant of these questions, they are active in the area, and it's -- it's time for the Court to get out of the unusual situation where it's -- it's making Official 1 rather than just interpreting law?
Paul L. Hoffman: Well, our -- our response to that, Mr. Chief Justice, is that our case arose, at least for these six former child slaves, at a time when the TVPRA was not deemed to be explicitly extraterritorial.
Chief Justice Roberts: So -- so going --
Paul L. Hoffman: And so I think --
Chief Justice Roberts: -- well, then -- then going forward, in other words, has -- has Congress sort of take -- taken the ball down going -- going forward, whatever the precise consequence may be in your litigation?
Paul L. Hoffman: It -- it is certainly true that the TVPRA is broader than the ATS claims that we are making in this case and that it is -- seems very likely that any case from 2008 on would use the -- the Trafficking Victim Protection Act rather than the ATS in making these kinds of claims. So our case is really an exceptional case that arises before that. And I think that the TVPRA answers the Sosa step 2 problems that have been raised by the defendants and by -- by Official 1 the United States in its submissions to date.
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. But the -- but the TVPA seems to suggest that Congress does not see the ATS the way you do. Obviously, there, you don't have corporate liability and you don't have aiding and abetting liability. So why shouldn't we take that as an indication that Congress sought limitations on -- on the ATS jurisdiction?
Paul L. Hoffman: Well, for one, the Congress made it very clear when it passed the TVPA that it was complementary to the Alien Tort Statute and was not meant to displace it in any way. And the language of the TVPA is different from the ATS both in terms of its language, its history, and its purpose. It's not clear that -- that aiding and abetting is not available under the TVPA, but -- but this Court certainly decided in Mohamad that corporate liability is not available. But the Court has said that it looks Official 1 to the most analogous statute. And what we contend is that the Trafficking Victim Protection Act, which deals specifically with forced labor and slavery in supply chains, is the most analogous. And so whatever Congress thought about corporate liability for claims of torture or extrajudicial execution, Congress has made it very clear that they believe that there should be corporate liability when it comes to knowingly benefiting from forced labor and slavery in -- in the supply chain.
Justice Thomas: Are you -- just as a matter of curiosity, you bring this under the ATS, but could you have brought the same cause of action or a similar cause of action under different provisions or a different law or the -- I'm -- I'm just thinking of whether or not you could -- this could have been in diversity or something else.
Paul L. Hoffman: I -- I -- I think that this particular case in the way that it was originally framed could not have been brought under diversity jurisdiction because it -- it -- it included both citizens and non-citizens on Official 1 the other side. So diversity was not available, but -- but the ATS directly applied --
Justice Thomas: Yeah.
Paul L. Hoffman: -- under these terms.
Justice Thomas: On a separate matter, there seems to be some suggestion in the arguments, the -- in some of the other arguments that there's no new -- even though there's no universal norm for aiding and abetting in the civil context, it may well be in the criminal context. What's your reaction to that?
Paul L. Hoffman: Well, I think, first of all, our position is that aiding and abetting or accessory liability in tort was widely available at the time --
Justice Thomas: Yeah.
Paul L. Hoffman: -- it was passed. But -- but, on the international level, it is our position that the international community has come up with specific universal and obligatory norms with respect to aiding and abetting serious violations of international human rights law, which would include these norms for sure. And, in fact, that's -- all the circuits that have decided this question have Official 1 found that there is aiding and abetting liability in ATS claims. They have differed sometimes about the standards, sometimes adding requirements that don't appear to be in the customary international law norm, but they all have recognized that there's -- that there are aiding -- that there is aiding and abetting under international law.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: I'd like your views on the following: Assume that there is corporate liability for domestic corporations. Assume that there is aiding and abetting liability. Now what counts as aiding and abetting for purposes of this statute? When I read through your complaint, it seemed to me that all or virtually all of your complaints amount to doing business with these people. They help pay for the farm. And that's about it. And they knowingly do it. Well, unfortunately, child labor, it's terrible, but it exists throughout the world in Official 1 many, many places. And if we take this as the norm, particularly when Congress is now working in the area, that will mean throughout the world this is the norm. And I don't know, but I have concern that treating this allegation, the six that you make here, as aiding and abetting falling within that term for purposes of this statute, if other nations do the same, and we do the same, could have very, very significant effects. I'm just saying I'm worried about that. And I -- I want you to explain to me how this should work.
Paul L. Hoffman: Well, Your Honor, we are not taking the position that -- we're just saying cocoa beans -- did enough to satisfy aiding and abetting. Our position is that what's really going on here is that these corporations have set up a supply chain where they know where cocoa beans are being made by means of child slave labor and forced labor. They know that that's where the cheap beans come from. They have used things like financing and payment --
Justice Breyer: Yes, that sounds like Official 1 a business, a business that does business blinking their eyes or open eyes with farmers and others throughout the world who use child labor.
Paul L. Hoffman: But -- but --
Justice Breyer: Now, in this case, do we want a judge to say you can't do that anymore?
Paul L. Hoffman: Well, what -- what we're saying is that a court should decide based on the international principles of aiding and abetting whether the -- these corporate defendants have crossed the line between merely doing business and facilitating that system. The -- the amicus brief filed for Tony's Chocolonely and the small and mid-sized chocolate companies indicate exactly how companies do business without facilitating child slave labor in the Ivory Coast. It can be done. There are requirements by -- by our allies in Europe about how it should be done. Who is doing it and not imposing aiding and abetting liability for this high-level kind of corporate decision-making and policy would give these companies an unfair Official 1 competitive advantage on child labor that violates these fundamental norms in ways that -- that our allies and others urge to eliminate.
Justice Breyer: Thank you.
Chief Justice Roberts: Justice Alito.
Justice Alito: Mr. Hoffman, I'm interested in what your complaint alleges about the mens rea of these particular defendants regarding forced child labor. You've had 15 years now to refine your complaint, and I assume you've chosen your words with care. In paragraph 50 on page 319 of the Joint Appendix, you allege that "Defendants" in general "not only purchased cocoa from farms and/or farm cooperatives which they knew or should have known relied on forced child labor." So even putting aside the question of which defendants you're referring to, you don't even allege that they actually knew about forced child labor. Do you go further any place in the complaint? And, if not, is "should have known," which is basically recklessness, enough for aiding and abetting liability under either international law or U.S. law? Official
Paul L. Hoffman: Your Honor, I don't think that "should have known" would -- would satisfy, but knowledge would satisfy the international standards for aiding and abetting, and we do -- we do contend that these defendants knew exactly what they were doing in that supply chain.
Justice Alito: Yeah, where -- where do you -- where do I look in the complaint to find that?
Paul L. Hoffman: Well, Your Honor, we -- we have alleged knowledge. The Ninth Circuit interpreted our complaint as satisfying both knowledge and purpose standard in terms of the -- our aiding and abetting allegations.
Justice Alito: Yeah. Well, I -- I read the complaint. Where do I find an allegation of knowledge?
Paul L. Hoffman: Sorry, Your Honor. I have to make sure to find this for you. You know, we have -- I -- I think when you -- if you take the allegations -- I don't have the paragraph. What we have alleged is that these defendants are intimately involved in the cocoa-growing area and that they're not -- they Official 1 have knowledge because of the reports that have been issued, because they -- they -- they send their own people to investigate, and -- and -- and they file their reports back to the headquarters, that they're intimately involved with what goes on in their supply chain. So we have alleged knowledge. Whether we, you know -- the "should have known" is superfluous, I think, to that, to the -- we've alleged that they actually know about these things --
Justice Alito: See now, this is an important point, and this is something you have to allege even under notice pleading. And I assume you're really careful -- you were careful about what you alleged because you don't want to incur Rule -- Rule 11 liability. So, after 15 years, is it too much to ask that you allege specifically that the -- the defendants involved -- the defendants who are before us here specifically knew that forced child labor was being used on the farms or farm cooperatives with which they did business? Is that too much to ask?
Paul L. Hoffman: And -- and -- and we've Official 1 -- we've been given an opportunity to amend our complaint, as the Ninth Circuit has given us that ability to lay this out. We have more information, actually, since the second amended complaint based on continuing investigation and trips to the region. And -- and, yes, we -- we can allege that they knew that they were involved with the farms in the region that supply child -- that supply -- that involve child slave labor, including the -- the -- the six former child slaves who are plaintiffs in this case.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, just so I understand, you believe that the aiding and abetting exists if they knew -- simply if they knew that child labor was being used to produce the cocoa beans and they bought the product?
Paul L. Hoffman: No, that's -- that's not our position, Your Honor.
Justice Sotomayor: All right. So knowledge that child labor was being used you don't claim is enough. Official
Paul L. Hoffman: That's right.
Justice Sotomayor: Your complaint, as I see it, alleges that there was some decision-making in the United States to buy these products from these kinds of farms. I presume that's knowing that they're child labor. But I don't see an allegation other than sending representatives to look at the farms so that knowledge could be imputed that there's any other actual acts of aiding and abetting that you have alleged against the particular U.S. corporations that you're suing.
Paul L. Hoffman: Well, our position is that the -- these corporations from their headquarters have controlled every aspect of the supply chain.
Justice Sotomayor: But I don't understand what "control" means.
Paul L. Hoffman: Well, "control" means --
Justice Sotomayor: They -- I -- have you shown that they directed a foreign corporation, even if it's a subsidiary?
Paul L. Hoffman: Well, I think it actually acted directly from corporate headquarters. They sent people from corporate Official 1 headquarters in terms of getting information on the ground, setting up cooperatives, providing --
Justice Sotomayor: If you were given leave to amend, you could actually show that they transmitted the money, that they directly -- I'm not talking about their subsidiaries -- that the American corporations actually directed the money to go --
Paul L. Hoffman: Yeah, our current understanding is that -- is that these are controlled by the corporate defendants and that we would -- and we've been -- been asked to get allegations particularly, separating out the foreign corporations that have to be dismissed after Jesner, to identify exactly what we contend these domestic corporations have done. And we think we do have enough information to -- to link the decision-making and corporate policy and the issue of getting these cocoa beans from farms that --
Justice Sotomayor: Counsel, you're -- you're -- you're equivocating on my question. It's not just a decision-making because we've often said that decision-making is not enough Official 1 aiding and abetting, that you have to follow it with an affirmative act.
Paul L. Hoffman: Right.
Justice Sotomayor: And so -- so that's what I'm trying to get out of you.
Paul L. Hoffman: But the decision --
Justice Sotomayor: Can you show that the affirmative act was actually sending money to those places, that they're the funders, direct funders of the farms, et cetera?
Paul L. Hoffman: Yes, no, I mean, what -- what -- what we've said is there are exclusive marketing relationships that are -- that are controlled by headquarters, that people are sent from headquarters, money is sent from headquarters, equipment is arranged from headquarters, training is arranged for by headquarters. Our allegation is that these U.S. companies control the aspects -- all the aspects of the supply chain that leads directly to harms that our plaintiffs were enslaved on and where many thousands of other children are enslaved.
Justice Sotomayor: Thank you, counsel. Official
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. -- Mr. Hoffman, on the question of corporate domestic liability, the government makes the argument that Jesner changed everything. It originally took the same position that you're taking now on corporate domestic liability. It said that that position is now untenable, that once the Court held that foreign corporations weren't liable, the Court really can't hold that domestic corporations are. What -- what is your response to that?
Paul L. Hoffman: Well -- well, first of all, I think that the -- the evidence that justified using Sosa step 2 to eliminate liability against foreign corporations really does exist with respect to domestic corporations sued under the ATS. And, actually, Jesner and Kiobel are of a piece in a way. With what -- what this Court has said is that ATS jurisdiction should not be used to police the actions of foreign corporations, particularly when they act primarily on foreign soil, whereas our case is completely different in the sense that the United States has its own responsibilities in Official 1 these provisions. That was the original plan that founded together the ATS, that we were saying to the world we will enforce the law of nations. And I think that the Jefferson and Randolph opinions recently underscored that, that we made a commitment to the world that when our citizens violate the law of nations, even if it's outside U.S. territory, that we will provide a forum for foreign citizens to do that. Both Kiobel and Jesner deal with completely different situations where there's minimal contact with the United States and where it's really the responsibility of other countries to police their own corporations. In Kiobel, for example, the Netherlands has -- has allowed for a case on behalf of the Kiobel plaintiffs against the same defendants for the same allegations. So the Netherlands has stepped up to police its own corporations. What we're saying is that the United States has that obligation according to the founders' original promise under the Alien Tort Statute. Official
Justice Kagan: But, you know, as you note, Jesner is a -- is a fractured decision. There's a majority in some places, only a plurality in other places. If you look at that decision, what do you think it tells us about the approach that we need to use to answer the question of domestic corporate liability for child slavery? I mean, what is controlling, do you think, with respect to how we go about answering that question?
Paul L. Hoffman: I don't think that there is a controlling majority in Jesner about how to approach that question. The plurality does discuss the question of whether there needs to be a specific and universal and obligatory norm of corporate liability. I think, for the reasons that the Solicitor General's Office gave in the Kiobel case and in Jesner, that corporate tort liability is -- is well established and was understood, I think, to the founders and certainly has been a part of U.S. domestic common law tort liability from the beginning, as soon as there were corporations. And before that, there were ships. Official 1 So we think that that's not -- that basically what international law provides, are the prohibitive norms, in this case, child slavery and forced labor. But the means of enforcing them are up to individual states. And in the ATS, our first Congress said that tort liability using common law methods were something that our courts would enforce the law of nations. And there's no requirement that -- that there be mandatory corporate liability. It's up to states. And many states --
Justice Kagan: Thank you, Mr. Hoffman. Thank you.
Paul L. Hoffman: Sorry.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Hoffman. I'd like to --
Paul L. Hoffman: Good morning.
Justice Gorsuch: -- put aside for purposes of my question the corporate versus individual nature of the defendant and focus solely on the cause of action.
Paul L. Hoffman: Yes. Official
Justice Gorsuch: And -- and, here, you're asking us to infer a new cause of action for aiding and abetting. And I guess I want to understand why I should be creating new causes of action as a Judge today. We have abandoned federal common law in every other area after Erie, or at least we proclaim to do so. And I'm not sure I understand why the ATS should be different, especially when Congress stands able and ready to create new causes of action, as the Chief Justice has pointed out it's done elsewhere. That would be the appropriate -- more appropriate place to create new legislation, it would seem, and in every respect, what you're asking us to do is a form of legislation. And then finally I throw into the mix Central Bank, which underscores that aiding and abetting liability is a different thing and that often there are good reasons not to have aiding and abetting liability even when there's primary liability. So whatever I think about the question, I have to at least acknowledge there are good arguments for a lawmaker to consider on Official 1 both sides of that question, which, again, takes me back to my question wondering whether I'm the right person to be making this pitch to rather than a legislator. Can you help me with that?
Paul L. Hoffman: Sure, Your Honor. The -- I think the -- the main answer is that this Court in -- in Sosa decided that the original authorization that the first Congress made to the courts to enforce the law of nations using common law methods was still viable, notwithstanding Erie and notwithstanding many of the arguments that -- that the defendants make in this case, and that if there was a specific universal and obligatory norm of the same degree of definiteness and consensus as the -- the norms that applied in the 18th century, that it was appropriate for this Court to recognize the ability to enforce those norms by tort liability in our courts. And -- and, basically, the -- the norms about child slavery and forced labor are as -- as quintessential Sosa qualifying norms as could possibly be imagined. Now, with respect to aiding and Official 1 abetting liability, for one, I think that if the Court wants to reach that issue, I think it would benefit from full briefing and argument on that issue specifically because those were not exactly in the questions presented, but -- but our position on aiding and abetting liability is that, in fact, the founders understood aiding and abetting liability. There was aiding and abetting liability in British common law that was received in our law. The Bradford opinion talks about U.S. defendants -- U.S. nationals aiding and abetting French -- the French in terms of their attack on Sierra Leone. The Talbot decision, I think, as Justice Sotomayor noticed, deals with aiding and abetting liability. So it's not -- the idea in the Alien Tort Statute was to provide a remedy and reparations when U.S. citizens violated the rights of -- of foreign citizens. And the -- the first Congress was not looking to restrict the -- the nature of liability. They were -- they would not want to exempt corporations and give them immunity. They would not want to limit the -- the decision to a place of injury. Official 1 What they were looking to do was to provide the --
Justice Gorsuch: Mr. Hoffman, I'm afraid my -- my time's expired. Thank you very much.
Paul L. Hoffman: I'm sorry.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. And good morning and welcome, Mr. Hoffman.
Paul L. Hoffman: Good morning.
Justice Kavanaugh: I have a different flavor of Justice Gorsuch's broader question about separation of powers. And this case really is a case, I think, about the proper role of the judiciary as compared to the proper role of Congress here in fleshing out the Alien Tort Statute. As you know, Sosa and Jesner and our other cases have said the court -- the courts should not be out in front in fleshing out the cause of action here. It didn't go -- it didn't Official 1 reject it entirely. It didn't take Justice Scalia's position, but it shouldn't be out in front. And two sources in particular the Court has said to look to to constrain the cause of action to make sure, as Justice Gorsuch said, we're not creating it ourselves, and one is, of course, making sure the norm is sufficiently rooted in international law, as you know. And my concern on that is the language of Sosa doesn't just talk about the norm, as you know, but Footnote 20 specifically directs us to look at the particular perpetrator being sued and the category of perpetrator, whether it's a corporation or individual. And I've looked at this before, as you know, and looked at it again, and I think it's hard to argue that corporate liability in international law is a specific universal and obligatory -- or specific and universal. Foreign law is different. Justice Kagan rightly points that out. And there may be debatable policy reasons for drawing a line between individual and corporate liability, but it's -- but it's hard to argue that it's there Official 1 in international law. That's my concern in this case, stems on the question presented on corporate liability stems from Footnote 20 and the content, as I see it, of international law. So I'll give you an opportunity to respond to that.
Paul L. Hoffman: Well, Your Honor, I think that the -- the -- the question I think we would argue at Footnote 20 was addressed to the distinction between norms that applied directly to private parties, including corporations, versus norms that required some connection to state action. I think that the citations there make that fairly clear. I don't think it was saying that corporate liability had to be a specific universal and obligatory norm because that's really not the way the international system works. Many governments do impose corporate liability for violations of international law. For example, in a --
Justice Kavanaugh: That's a -- I think that's a different question, though, and that gets to Justice Kagan's point, which I think is a good one, that foreign -- foreign law Official 1 does impose corporate liability, of course, as does U.S. law in many circumstances, but international law and the international tribunals have not seemed to do so.
Paul L. Hoffman: Yeah, it's correct that in -- in certain international tribunals for -- for reasons specific to those tribunals, did not impose liability on corporations, but the Alien Tort Statute's basically a tort statute. It's a civil tort statute. And I think the international human rights amicus indicates that corporate liability is a general principle of law. It applies in all legal systems. It has applied in our legal system from the beginning. It applied in -- in Britain before we were a nation. In other words, corporate tort liability is the -- is the norm. It's not the exception.
Justice Kavanaugh: Well, except -- then the second constraint that the Court has said to look to, of course, is Congress. And you don't see it in the things like the TVPA. You've responded to that, though. And my time's up, so I'll let -- let it go there. Official
Paul L. Hoffman: Thank you, Your Honor.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: 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?
Paul L. Hoffman: Well, I think that, certainly, the original idea -- and -- and -- and this is reflected in the -- the Jefferson Official 1 and Randolph opinions and in the Bradford opinion with respect to the attack on Sierra Leone -- other countries did protest in those instances acts by U.S. citizens in their territory that violated the law of nations and -- and that the idea of the ATS was to provide that forum so to avoid that kind of protest. It -- it didn't require a --
Justice Barrett: But -- but would we -- I -- I guess my question is, do you think that the United States would face such protest in this circumstance, in this suit?
Paul L. Hoffman: Well, it hasn't. I mean -- and -- and for one thing, it's not clear whether there's a forum or there isn't a forum. So the Ivory Coast wouldn't have reason at this point to -- to protest. You know, it's not clear whether, in today's world, there would be protests of the same nature, but it seems to me that the -- that the -- the purpose of the statute was to provide that kind of forum. And Sosa interpreted that to -- to limit it in some respects to certain fundamental international human rights norms without the -- Official
Justice Barrett: Let's return to the question of the potential foreign policy implications of extending liability to domestic corporations in this circumstance. So Mr. Katyal was pointing out that domestic corporations often have relationships with foreign subsidiaries or parent corporations and, therefore, that many of the same concerns that we identified in Jesner would be implicated by the recognition of liability in this context as well. So what do you have to say to that? Would recognizing liability here against a domestic corporation with foreign -- foreign relatives just permit an end run around Jesner?
Paul L. Hoffman: I think that in this particular instance, Cargill and Nestle USA are in different circumstances. Cargill is obviously only a U.S. corporation and doesn't raise those issues. The issue with Nestle, I think, if -- if it is, in fact, the case that Nestle Switzerland, the parent, is actually the one controlling and that we're wrong, I think that, in fact, under Jesner, probably there can't be a Official 1 viable ATS claim against Nestle USA. That's not what we believe, but if, in fact, the facts turn out that way, then I think it probably is in conflict with Jesner.
Justice Barrett: Thank you.
Chief Justice Roberts: Mr. Hoffman, you can take a few minutes to wrap up.
Paul L. Hoffman: Thank you, Mr. Chief Justice. Few international norms are as fundamental as the prohibitions against child slavery and forced labor. Plaintiffs' claims satisfy every Sosa requirement and fit squarely within the text, history, and purpose of the ATS. The ATS represents a commitment to enforce the law of nations in our courts, a commitment Congress has never withdrawn or restricted, and certainly not with respect to child slavery. This Court should reaffirm that commitment and should allow these former child slaves to have their day in court. Thank you, Mr. Chief Justice.
Chief Justice Roberts: Thank you, Official 1 counsel. Mr. Katyal, rebuttal? REBUTTAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PETITIONERS
Neal K. Katyal: Four points, Your Honor. First, Nestle and Cargill abhor child slavery. This case isn't about that. It's about whether this old statute applies extraterritorially and who can be sued. When asked by Justices Alito and Sotomayor where in the complaint is there any knowledge of slavery by the defendants, my friend couldn't answer. Zilch. This case is an easy one on extraterritoriality where there is no U.S. injury and little U.S. conduct. Accepting the complaint would create the craven watchdog problem of Morrison. Indeed, a breathtaking kennel of problems, as my friend's opening line admitted that, lawsuits "without limitation on defendants or theories of tort liability." And even if aiding and abetting liability exists, Justice Sotomayor, it doesn't get around extraterritoriality. Rather, its ambiguity highlights the problem, as Justice Official 1 Breyer's worry to my friend shows. The ATS's focus is still the injury or principal wrongdoing. Otherwise, it's truly aiding and amorphousness. Second, my friend suggests our view guts human rights law. But ours was a law for at least the first 200 years with no practice of ATS liability. Indeed, Congress knows how to fashion specific remedies for the extreme hypotheticals and already has. I heard no answer from my friend to the five mechanisms to prevent abuse. Third, my friend's arguments never grapple with Justice Kavanaugh's point that in every case -- that every case has said that this Court shouldn't be out in front. It's his high burden under Sosa to convince you a specific universal norm exists. He doesn't. Fourth and finally, for corporate liability, Justice Breyer, in your query what's new, this Court's majority, not the plurality, Justice Kagan, in Jesner, said there are harms to separation of powers and hard policy choices about how to maximize deterrence, foreign investment, and foreign policy. Official 1 Congress sometimes uses corporate liability and sometimes doesn't, like the TVPA. The queries today about how can we exempt corporations, it makes no sense, could be said about torture, but in the TVPA, Congress said there was no liability for corporations. The fact that there are two reasonable choices shows you should defer to Congress. Same with extraterritoriality. Sometimes Congress extends a statute that way, like genocide, other times it doesn't. Nothing in the ATS says it reaches an injury halfway across the globe. And the new Jefferson and Randolph letters are about U.S. conduct, bringing people to the U.S. as slaves, and they're about alienage jurisdiction under Article III. Neither says the ATS overcomes the extraterritoriality bar. Justice Breyer, you asked, do we want a judge deciding this? This thin and accusatory complaint and my friend's admission of just how open-ended and transformative his liability would be answers that question.
Chief Justice Roberts: Thank you, Official 1 counsel. The case is submitted. (Whereupon, at 11:28 a.m., the case was submitted.)