Oral Argument in Doe v. Apple
December 13, 2022
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 case was well argued on both sides, with Terry Collingsworthrepresenting the plaintiffs and Eric Shumsky the defendants. The argument lasted for nearly an hour and a half, with all three members of the panel (Chief Judge Sri Srinivasan, Judge Nina Pillard, and Judge Neomi Rao) actively questioning counsel for both sides. In this post, I summarize the argument’s major themes and reflect on some of the more difficult issues.
The TVPRA is a complex statute. Since its original enactment in 2000, it has been amended and reauthorized several times with bipartisan support, as I described in an earlier post. For the purposes of this case, the key amendments occurred in 2008. In neighboring sections of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (sections 221 and 223 respectively), Congress expanded the TVPRA’s civil remedy and expressly provided that six of its provisions apply extraterritorially.
The 2008 amendments expanded the TPVRA’s civil remedy, 18 U.S.C. § 1595, in three ways. First, Congress extended the cause of action beyond the three original offenses of forced labor, trafficking for forced labor, and sex trafficking of children, so that it now applies to any violation of Chapter 77. Second, Congress broadened the class of potential defendants beyond perpetrators to include any person who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.” Third, Congress established a generous ten-years statute of limitations for civil claims. Today, § 1595(a) reads as follows:
(a) An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
In 2008, Congress also expanded the geographic scope of the TVPRA by enacting § 1596, the first part of which reads as follows:
(a) In General.—In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581 [peonage], 1583 [enticement into slavery], 1584 [sale into involuntary servitude], 1589 [forced labor], 1590 [trafficking for forced labor], or 1591 [sex trafficking of children] if—
(1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.
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.
Against this statutory background, the three-judge panel focused on three main issues: (1) the proper test for knowingly benefiting from participation in a venture; (2) the question of standing under Article III of the U.S. Constitution; and (3) whether the TVPRA’s civil remedy applies extraterritorially to the same extent as its criminal provisions.
The argument began with questions about what constitutes a “venture” for purposes of § 1595. The district court in this case adopted a test that requires the parties to have shared risks, an interpretation that the Eleventh Circuit later adopted as well. The First and Tenth Circuits, on the other hand, have applied a broader test borrowed from § 1591(e)(6), which defines “venture” for the purposes of child sex trafficking as “any group of two or more individuals associated in fact, whether or not a legal entity.” Several district courts have adopted a similar test requiring either a “direct association” or “continuous business relationship.” Although § 1591(e)(6) defines “venture” only for the purposes of that section, the usual presumption is that “words repeated in different parts of the same statute generally have the same meaning.”
Mr. Collingsworth argued for the plaintiffs that there was an association in fact between the defendants and the mines, as well as a continuous business relationship. He noted that the defendants have represented to the public and to the court that they have the right to inspect the mines and have procedures in place to prevent forced labor. He also emphasized that these tests of venture would not subject consumers who buy cell phones to liability (as I suggested in a prior post) because, unlike the defendants, consumers do not have any right to inspect labor practices at the mines. Mr. Shumsky, on the other hand, argued that “venture” requires a sharing of risk. He also emphasized the number of links in this supply chain between the defendants and the labor brokers who engaged in forced labor and trafficking.
Chief Judge Srinivasan asked Mr. Collingsworth whether § 1595 requires just a business relationship or an association in fact with respect to the wrongful conduct itself. Mr. Collingsworth responded, consistent with the text of the statute, that the defendants could be held liable for participating in a venture if they “knew or should have known” that the venture “engaged in an act in violation of this chapter.” Judge Pillard suggested that the most plausible inference from the complaint is that the defendants lacked the power to stop forced labor at the mines, to which Mr. Collingsworth responded that the statute doesn’t make trying and failing a defense.
The district court held that the plaintiffs lacked Article III standing because their injuries were not fairly traceable to the defendants’ actions. The Supreme Court has held that “the irreducible constitutional minimum of standing contains three elements”: (1) injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) redressability.
Judge Pillard asked how Mr. Collingsworth would try to establish causation with discovery, to which he responded that he would like to see the defendants’ actual contracts with the mines and read the reports they have received on forced labor. The labor brokers who engaged in forced labor and trafficking, he said, were agents of the mining companies.
When Mr. Shumsky’s turn came to discuss standing, Judge Rao asked if there were any cases dismissing for lack of standing based on causation alone, noting that the plaintiffs clearly suffered injuries in fact and that their injuries could be redressed with an award of damages. He conceded that there were few cases dismissing simply for lack of causation but emphasized that causation remains an independent requirement for standing.
Many of the panel’s questions for Mr. Shumsky explored whether there are constitutional limits to Congress’s ability to define causation. Chief Judge Srinivasan asked why Congress could not constitutionally depart from traditional tort principles, for example by enacting a workers compensation statute. Judge Rao observed that Congress had arguably defined traceability in § 1595 by specifying that liability can arise from participating in a venture. Mr. Shumsky replied that Article III establishes a constitutional minimum for causation and that plaintiffs’ definitions of “venture” fail to satisfy it.
Although Mr. Shumsky repeatedly emphasized the number of links in the supply chain, Judge Pillard questioned how much this mattered given the nature of the cobalt market. Because these defendants are the major buyers of cobalt in the world and these mining companies are the major suppliers, she said, there is necessarily a direct relationship. She also returned to the possibility of discovery, noting that there might be “actual agreements” that would demonstrate traceability. Chief Judge Srinivasan seemed to agree that powerful buyers could exercise control over the labor practices of their suppliers in at least some cases.
The panel spent relatively less time on whether the TVPRA’s civil remedy applies extraterritorially, but the arguments still raised some interesting and important points. Judge Pillard began by asking how this case is different from RJR Nabisco v. European Community (2016), in which the Supreme Court held that RICO’s criminal provisions apply extraterritorially but its civil cause of action does not. Like RICO, the TVPRA creates a civil cause of action for victims of criminal violations. Mr. Collingsworth responded that the TVPRA’s civil remedy was more analogous to RICO § 1962, which the Supreme Court said applies extraterritorially, because it refers directly to extraterritorial predicate acts. This was the conclusion the Fourth Circuit reached in Roe v. Howard (2019).
Chief Judge Srinivasan asked about the fact that TVPRA § 1596, which extends six offenses extraterritorially, does not list § 1595’s civil cause of action. Mr. Collingsworth answered that § 1596 extends extraterritorially the predicate acts to which § 1595 refers, precisely the same structure that the RJR Nabisco court found to provide a clear indication of extraterritoriality. He also referred the panel to the legal scholars amicus brief(which I joined). That brief notes that, because § 1596 refers to “offenses,” it would have been odd for Congress to list the TVPRA’s civil remedy here. By the end of the argument, Chief Judge Srinivasan was pressing Mr. Shumsky to acknowledge that § 1595’s reference to offenses that apply extraterritorially by virtue of § 1596 is an argument that “could work.”
The Chief Judge began the discussion of extraterritoriality with Mr. Shumsky by asking why Congress would have decided to provide extraterritorial jurisdiction for criminal but not civil cases. Mr. Shumsky responded by invoking RJR Nabisco’s observation that civil claims can create international friction and are not subject to prosecutorial discretion. Judge Pillard seemed impressed by this point, later referring to the “powerful difference” between civil and criminal cases. But, as I have previously noted, the Supreme Court invoked this distinction in RJR Nabisco to justify applying the presumption against extraterritoriality separately to civil causes of action. The Supreme Court has never suggested, however, that a different presumption against extraterritoriality applies to civil claims.
Mr. Shumsky went on to argue that § 1596(b) imposes specific limitations on extraterritorial prosecutions, requiring approval by the Attorney General or Deputy Attorney General in certain cases, limits that would be rendered moot if the TVPRA permitted civil suits without similar checks. But this seems wrong. Section 1596(b) states:
(b)Limitation on Prosecutions of Offenses Prosecuted in Other Countries.—
No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated.
As one can plainly see, this provision is about double jeopardy. Approval of the Attorney General or Deputy Attorney General is required only to prosecute an offender for a second time. The fact that Congress did not extend this approval requirement to extraterritorial prosecutions more generally suggests that Congress was not terribly concerned about the extraterritorial application of the TVPRA creating friction with other countries.
Moreover, as Mr. Collingsworth observed in rebuttal, Congress limited the possibilities for international friction by providing in § 1596(a) that the six listed offenses apply extraterritorially only when the alleged offender is a U.S. national, lawful permanent resident, or present in the United States. Criminal prosecutions of, and civil claims against, U.S. defendants are far less likely to raise foreign relations concerns than proceedings against foreign defendants.
At the end of the argument, Mr. Collingsworth pointed out that the district court’s dismissal must be reversed if there is any theory on which the plaintiffs could plausibly recover. It seems that there are tests for participation in a “venture” that the panel could adopt without running afoul of Article III. And Judge Pillard, in particular, seemed to think that further discovery might reveal greater knowledge or involvement by the defendants than is now apparent.
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.