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13 Dic 2022

William S. Dodge, Transnational Litigation Blog (TLB)

Oral Argument in Doe v. Apple

Last week, the D.C. Circuit heard oral argument in Doe v. Apple, a case brought by victims of forced labor and human trafficking against five U.S. technology companies. The plaintiffs are children or family members of children who were injured or killed mining cobalt in the Democratic Republic of the Congo. The defendants—Apple, Alphabet, Microsoft, Dell, and Tesla—are major buyers of cobalt, which is a key component in lithium batteries. At issue is the scope of the Trafficking Victims Protection Reauthorization Act (TVPRA), which creates a civil remedy against perpetrators and others who knowingly benefit from slavery, forced labor, and human trafficking. The case has broad implications for the availability of civil damages in other contexts, from child sex trafficking to forced labor involving migratory workers.

I joined an amicus brief in support of the plaintiffs, along with several other TLB editors and advisors, and attended the oral argument last Thursday...

The plaintiffs alleged that the defendants knowingly benefited from participating in a venture with cobalt mining companies that they knew or should have known were violating two provisions of Chapter 77: (1) § 1589 on forced labor; and (2) § 1590 on trafficking with respect to forced labor. Section 1596 expressly extends these provisions extraterritorially when the alleged offender is a national or lawful permanent resident of the United States or is present in the United States...

Whatever the panel decides with respect to this case, however, one hopes that the court will resolve the questions of venture, standing, and extraterritoriality in ways that preserve the possibility of civil suits for forced labor and human trafficking abroad in which U.S. nationals participate directly. Since its enactment in 2000, Congress has repeatedly expanded the TVPRA with bipartisan support. Congress knows that human trafficking is an international problem. In 2008, it amended the Act both to apply extraterritorially when the offenders are Americans and to make participation in a venture a basis for civil liability. Whether Congress made its intention to extend the TVPRA’s civil remedy abroad sufficiently clear is something we will find out when the D.C. Circuit hands down its decision.

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