Dissenting Associate Justice Samuel Alito cites the Restatement Third of Torts: Liability for Economic Harm § 28 and Restatement Second of Torts § 876.

In Nestle USA, Inc. v. Doe, No. 19-416 (June 17, 2021), six individuals from Mali who were allegedly trafficked as child slaves to produce cocoa on farms in Ivory Coast—a West-African country also known as Côte d’Ivoire—filed claims under the Alien Tort Statute (ATS) against two U.S.-based companies that purchase, process, and sell cocoa from the farms, alleging that the companies’ provision of technical and financial resources to the farms, including training, fertilizer, tools, and cash, in exchange for the exclusive right to purchase cocoa constituted aiding and abetting child slavery.

The district court dismissed the suit after the U.S. Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108 (2013) that the ATS did not apply extraterritorially, reasoning that the only domestic conduct alleged here was general corporate activity. The Court of Appeals for the Ninth Circuit reversed in part, concluding that the complaint sufficiently pleaded a domestic application of the ATS, because the companies were alleged to have made every “major operational decision” in the United States.

In an opinion delivered by Associate Justice Clarence Thomas, the Supreme Court reversed and remanded, holding that the Court of Appeals improperly allowed the suit to proceed, because the respondents were improperly seeking extraterritorial application of the ATS. The court reasoned, in part, that, because making “operational decisions” is an activity common to most corporations, generic allegations of this sort did not draw a sufficient connection between the cause of action the respondents seek—aiding and abetting forced labor overseas—and domestic conduct.

Associate Justice Samuel Alito wrote a dissenting opinion in which he argued that it was premature to address whether the respondents’ complaint improperly sought extraterritorial application of the ATS, noting, among other things, that it was unclear whether it was appropriate to recognize an ATS aiding-and-abetting claim and, if so, whether the respondents’ complaint adequately alleged all of the elements of such a claim, including the requisite mens rea. Justice Alito pointed out that, under the Restatement Third of Torts: Liability for Economic Harm § 28 and the Restatement Second of Torts § 876, a claim for aiding and abetting requires the aider and abettor to have acted purposefully or knowingly.


Andrea K. Wooster

The American Law Institute


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