Coubaly v. Cargill, Inc.
| Citation | 610 F.Supp.3d 173 |
| Decision Date | 28 June 2022 |
| Docket Number | 21-cv-386 (DLF) |
| Parties | Issouf COUBALY, et al., Plaintiffs, v. CARGILL, INC., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Terrence P. Collingsworth, International Rights Advocates, Washington, DC, for Plaintiffs.
Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Defendants Cargill, Incorporated, Cargill Cocoa.
Perlette Michele Jura, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendant Nestle USA, Inc.
Henry Ben-Heng Liu, John Edward Hall, Carlton Eliot Forbes, Covington & Burling LLP, Washington, DC, Emily Johnson Henn, Covington & Burling LLP, Redwood Shores, CA, for Defendant Barry Callebaut USA, LLC.
Stephen David Raber, David Horniak, Williams & Connolly LLP, Washington, DC, for Defendants Mars Incorporated, Mars Wrigley Confectionary.
Bezalel Stern, Paul Charles Rosenthal, Kelley Drye & Warren LLP, Washington, DC, Lauri Anne Mazzuchetti, Pro Hac Vice, Kelly Drye & Warren, LLP, Parsippany, NJ, for Defendant Olam Americas, Inc.
Daniel Seth Ruzumna, Jonah M. Knobler, Pro Hac Vice, Steven A. Zalesin, Pro Hac Vice, Patterson Belknap Webb & Tyler LLP, New York, NY, for Defendant Hershey Company.
Craig Alan Hoover, David Martin Foster, Hogan Lovells US LLP, Washington, DC, for Defendant Mondelez International, Inc.
Issouf Coubaly and seven other citizens of Mali bring this suit under the Trafficking Victims Protections Reauthorization Act (TVPRA), 18 U.S.C. § 1595 et seq. , for claims of human trafficking and forced labor. See generally Compl., Dkt. 1. Before the Court is the defendants’ motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defs.’ Joint Mot. to Dismiss at 1, Dkt. 27. For the reasons that follow, the Court will grant the motion under Rule 12(b)(1).
Côte d'Ivoire is the world's largest exporter of cocoa and provides seventy percent of the world's supply. Compl. ¶ 41. Since the late 1990s, governmental and nongovernmental organizations have recognized the existence of child slavery in the Ivorian cocoa industry. Id. ¶ 36. These child slaves have frequently been trafficked into Côte d'Ivoire from the neighboring countries of Mali and Burkina Faso. Id. ¶ 37. On the cocoa plantations, the child slaves "burn[ ] and clear[ ] fields, cut[ ] down trees to expand [the] plantations, spray[ ] pesticides, us[e] sharp tools to break [cocoa] pods, and transport[ ] heavy loads of cocoa pods and water." Id. ¶ 39. The plantation owners frequently purchase the children from traffickers, hold them against their will, force them to work without payment, physically abuse them, and deny them sufficient food. Id. ¶ 40.
The defendants in this case are all American corporations that import, process, or sell cocoa or chocolate. They all have managers in Côte d'Ivoire, and they "send buyers and others to interact with the farmers, including to provide support and training." Id. ¶ 45. These corporations do not own the cocoa farms, but they nonetheless "maintain and protect a steady supply of cocoa by forming exclusive buyer/seller relationships with Ivorian farms." Id. ¶ 46 (quoting Doe I v. Nestlé USA, Inc. , 766 F.3d 1013, 1017 (9th Cir. 2014) ). They provide both "financial assistance and technical farming assistance." Id. (quoting Doe I , 766 F.3d at 1017 ). The former "includes advanced payment for cocoa and spending money for the farmers’ personal use." Id. (quoting Doe I , 766 F.3d at 1017 ); see also id. ¶ 51. The latter "includes equipment and training in growing techniques, fermentation techniques, farm maintenance, and appropriate labor practices." Id. ¶ 46 (quoting Doe I , 766 F.3d at 1017 ); see also id. ¶ 51. This technical support both "expand[s] the farms’ capacity and act[s] as a quality control mechanism." Id. ¶ 46 (quoting Doe I , 766 F.3d at 1017 ); see also id. ¶ 51. As part of this, "defendants or their agents visit farms several times per year." Id. ¶ 46 (quoting Doe I , 766 F.3d at 1017 ); see also id. ¶ 51.
These "exclusive buyer/seller relationships" between defendants and "local farms and/or farmer cooperatives in Côte d'Ivoire" allow the defendants "to obtain an ongoing, cheap supply of cocoa." Id. ¶ 50. Through "memorand[a] of understanding, agreements, and/or contracts, both written and oral, [d]efendants are able to dictate the terms by which" Ivorian cocoa "farms produce and supply cocoa to them, including specifically the labor conditions under which the beans are produced." Id. When the defendants or their agents visit the farms, they "witness illegal child labor." Id. ¶ 51.
The eight plaintiffs in this case, Coubaly, Sidiki Bamba, Tenimba Djamoutene, Oudou Ouattara, Ousmane Ouattara, Issouf Bagayoko, Arouna Ballo, and Mohamed Traore, are Malian citizens who were trafficked as children to farms in Côte d'Ivoire to harvest cocoa beans. Compl. ¶¶ 2, 150. Although their respective stories differ, they all were children in Mali who were approached by unfamiliar men who offered to transport them to Côte d'Ivoire for paying jobs. Id. ¶¶ 127, 130, 133, 136, 139, 143, 146. The plaintiffs accepted these offers and wound up at cocoa plantations in Côte d'Ivoire: Coubaly at the Guezouba plantation managed or owned by Lassina Coubaly, id. ¶ 127; Bamba at the Karou plantation managed or owned by Madou Kone, id. ¶ 130; Djamoutene at the Yofla plantation managed or owned by Madou Kone's brother, id. ¶ 133; Oudou Ouattara at a plantation in Divo owned by Madou Kone, id. ¶ 136; Ousmane Ouattara and Bagayoko at a plantation near Souroudouga owned by Salif Djamoutene, id. ¶ 140; Ballo at a plantation near Grabo owned by Sidibe, id. ¶ 143; and Mohamed Traore at a plantation near Niama owned by Sekou Traore, id. ¶ 146. Over several years, the plaintiffs performed various plantation tasks—clearing brush with machetes, tending cocoa plants, harvesting the plants, opening the cocoa pods and removing the beans, and applying pesticides and herbicides—with the expectation that they would be paid for their labor at the end of each harvesting season. Id. ¶¶ 128, 131, 134, 137, 140–41, 143–44, 146–47, 150. But the cocoa farmers never paid the plaintiffs as promised, and they treated the children inhumanely. See id. ¶¶ 128, 131, 134, 137, 140–41, 143–44, 146–47, 150, 151. The farmers kept them isolated in squalid conditions and threatened them with no food if they did not work. Id. ¶ 151. Although they gave the children small deliveries of food, they never paid them for their labor. See id. ¶¶ 128, 131, 134, 137, 140–41, 143–44, 146–47, 150. Eventually, all of the children escaped and returned to Mali. See id. ¶¶ 128, 131, 134, 137, 141, 144, 147.
Nestlé USA, Inc., is the American subsidiary of Nestlé, S.A., and is headquartered in Virginia. Id. ¶ 24. It purchases, manufactures, and sells cocoa products. Id. Nestlé acknowledges that children and forced laborers work on the Ivorian farms "in areas where [they] source cocoa." Id. ¶ 62. Nestlé’s responsible sourcing standard prohibits the employment of children under the age of fifteen, but the company's known suppliers violate this standard by employing children, many of whom were trafficked from Mali and Burkina Faso. Id. ¶¶ 64–65. Nestlé claims to monitor only one-third of its supply chain for compliance with its standards. Id. ¶ 67. Nestlé relies on community auditors "to spot children engaged in labor activities," and it has neither independent monitors nor consequences for farmers using child slaves." Id. ¶ 71.
Cargill, Inc., is a Delaware corporation headquartered in Minnesota that processes cocoa and distributes it to food producers. Id. ¶ 25. Cargill Cocoa is a subsidiary of Cargill, Inc., that is incorporated in Pennsylvania. Id. ¶ 26. This subsidiary "is a major cocoa bean originator and processor." Id. Cargill has exclusive relationships with "numerous cocoa cooperatives." Id. ¶ 79. The owner of one cooperative in Duekoue said "that a local representative from Cargill visited his cooperative on a weekly basis and that a Cargill representative from the company headquarters visited about once a year." Id. Cargill has an "ongoing and continued presence on the cocoa farms in Côte d'Ivoire for purposes of quality control" and technical assistance such that "Cargill has first-hand knowledge of the widespread use of child slave labor in harvesting cocoa on the farms they were working with and purchasing from." Id. ¶ 80. Much like Nestlé, Cargill does not have an effective system for monitoring the use of child slaves, and it reaches only a small portion of Cargill's supply chain. Id. ¶ 86; see also id. ¶ 55, 89–90.
Barry Callebaut USA, LLC, is an American subsidiary of Barry Callebaut AG that is headquartered in Illinois. Id. ¶ 27. The American company "markets and sells cocoa produced in Côte d'Ivoire in the United States." Id. Barry Callebaut admits that there is currently child labor within its supply chain. Id. ¶ 94. Much like Nestlé and Cargill, Barry Callebaut does not effectively monitor its farmers and exacts no consequences upon farmers who use child slaves. Id. ¶ 96; see also id. ¶ 55, 86. Thus far, Barry Callebaut has "deployed monitoring and remediation in 21 farmer groups in Ghana and Côte d'Ivoire conjointly, covering a total of 12,018 farmers in 2017/2018," which "represents at most only 12 percent of the farmer groups from which they directly source in these two countries." Id. ¶ 96. Barry Callebaut "found 4,230 cases of child labor in its supply chain during 2017–18." Id. ¶ 97. There is no evidence that Barry Callebaut enforces its code of conduct that prohibits the use of child labor. Id. ¶ 98.
Mars, Inc. is an American corporation headquartered in Virginia that "sells and markets cocoa products all over the United States with cocoa produced in Côte d'Ivoire"...
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