Doe v Nestle or should I say David v Goliath?
In the 11-year-long legal battle of Doe v Nestle, Archer-Daniels-Midland Co and Cargill Inc, there has been some movement towards this case finally being settled.
The case involves a lawsuit against Nestle and Cargill Inc filed by former victims of slavery. The plaintiffs, who were originally form Mali, contend that companies aided and abetted human rights violations through their active involvement in purchasing coco from the Ivory Coast. It is alleged that, despite being aware of the child slavery, the companies offered financial and technical assistance to the local farmers in a bid to guarantee the cheapest source of cocoa.
The court held that such an amendment should be allowed unless it is clear that the amendment would be futile. One of the points asserted by the court was that the ‘prohibition against slavery is universal’ (therefor not bound by US jurisdiction and the previous legal constraints in bringing this claim before a US court) and therefore could be asserted against the corporate defendants.
The court also evaluated whether the plaintiffs had properly alleged the elements of an aiding and abetting claim. It found that the ‘allegations explain how the use of child slavery benefited the defendants and furthered their operational goals in the Ivory Coast, and therefore the allegations support the inference that the defendants acted with the purpose to facilitate child slavery’. The court also found that the defendant’s failure to stop or limit child slavery supports an inference that they intended to keep the system in place’. Finally, the court found that the allegation that the companies had lobbied against the US federal legislation that would have required certification of chocolate as ‘slave free’ to ‘corroborate the inference of purpose’
In July of this year, the plaintiffs submitted their amended case. We now wait for the case to continue.
The case history is lengthy and displays an unrelenting pursuit of justice by former child slaves against some of the biggest global giants of the manufacturing world. They allege that their daily lives as child slaves were filled with whippings, malnourishment and a general disregard not only for their age but for their humanity. The boys allege that not only did Nestle and the other companies know about the child slaves being used to farm the cocoa beans but they continued to fund the cocoa farmers who used the child slaves.
This case of young boy verses giant is not the first of it’s kind and even with the recent favourable rulings in the Supreme Court these boys face an uphill battle to slay their giant. For those of us not directly involved but who sit watching and waiting in anticipation on the side-lines we must ask ourselves are we cheering or jeering?
This case reminded me of the Biblical story of David and Goliath. Young boy versus giant. David was a young boy who walked into a fight that would have had today’s bookies tripping over themselves with Goliath as the odds on favourite from all sides. However, we know how that turned out, but remarkably it was David’s brother’s that showed the least support and offered little in the way of belief in their brother. I have recently read similar cynical views regarding the young boys who bring their fight to Nestle’s door. Comments such as ‘it will only be a small victory’ or ‘even if the boys win it will do nothing in the grand scheme of things’. Why do we jeer in the face of such bravery?
A victory no matter how big or small is still a victory. To the young boys who are now young men the reality of a victory will be of epic proportions. To minimise any victory only perpetuates the untruth that these global giants appear to have supported robbing these children of their childhood and making their lives appear insignificant.
If the plaintiffs are successful in the US Supreme Court, then this will be yet another stone in the forehead of giants who seek to silence the little ones who dare speak out and pick up their sling shot. This is not a small victory, it is giant.
In the growing media coverage of child labour issues in supply chains, organisations need to consider some key principles that they should embrace. These are set out in our legislation update, below.
Colleen Theron, CLT envirolaw