universal and obligatory yes all right i not only that i think it in the very child slavery violates a specific universal and obligatory norm thank you and that don't we turn to the country that we're talking about but i think that if yes generally speaking the united states of america yes and fact that the it was the position united states government and both of the more most recent case law we know we didn't what our court did and oh one we had a couple more cases from the supreme court do you think they have changed the decision tree well if the if if the question is about is about whether the presumption against  understood that the touch and content concern test is the test that should be applied now having said that there's a dispute in the circuits over what the touch and concern test means the second circuit in the fifth circuit believe that degree in the ninth circuit take the position that there are more factors that are relevant to that decision and our position though is we satisfy even the most stringent test in the sense that we allege aiding and guarantee the lowest prices which had to be based on child slave labor and then they downed those farms for them by giving them financial assistance technical assistance in other words they were part of this system and from to go to the act which overlaps this and that that this radius and international and human rights and in the national criminal law is practical assistance or encouragement or moral support that has a substantial effect on the perpetuation of the underlying clime crime our position is that they gave assistance encouragement and moral support to these forums that engage in an endemic slave labor child slavery and that they did that from the united and for nestle thirty nine we have throughout the complaint alleges that everything was done with respect to bring in cocoa beans through these farms to the united states from  indonesian military and use it on achebe from the united states nothing else happened in the united states it was all decision making control and in fact in this case there's an even greater factual context for control because of their dominance of the market purposefully continue a system of child slavery that satisfies aiding and abetting for the actus reus under international law the council here's what would be helpful to me because you know opposing counsel is going to come to the podium and say of that kind of profit the ability to profit purposefully continuing relationships and giving assistance to farms that engage in that kind of behavior is  so and with respect to act this race and you mention the district court's opinion i think what happened the more i thought about it is that the district court misread what this court said in mohican in mohicans this court was that there was nothing that happened in the united states occidental petroleum didn't make any decisions from los angeles the decisions in the way it was a one off event the bombing of a village all the planning was done in colombia an at the price they need and that is on the backs of child slaves did they bring the product here yes yes and that's clearly we are well you say repeatedly is that the farmers are an exclusive relationship so i want to make sure i understand  farmers are in exclusive relationship so they're buying all of the crop from this or a particular farm or what it is so that so it is certainly allege that but those farms are entirely dependent upon these defendants i don't know if that's true of the domestic defendants as opposed to the foreign defendants it is you can see that those have to be part parsed but it's easier for cargo but that's right but i can't tell from your complaint the extent to which the defendants are dependent upon the source for their supply and i that our understanding is that they are dependent on this for the for the low price cocoa that that they get for the u s market that is why would our i guess that's the gist of our allegations do you allege that in addition commodity to supply its production to peace to to be concerned and supplying technical support to make sure that the supply lines are secured and quite different for a for profit corporation to give away to the point of actus reus and international law is that it's not just each of these individually it's the entire package of financial assistance and whether it has a substantial effect on the child slavery system that's and that allegation would satisfy international i would also satisfy even the narrowest test for touching concern and i would just argue that i we believe this court should adopt the broader multi factor test with and decision making at the highest level in the united states and the decisions that said technical assistance money people everything that you could think of that would make them a participant as an aider and abettor in this system in all candor it's hard for me to understand or to parse out from the existing complaint which defendant you think did what would you concede that on if the case is reminded we would need not only to have the foreign corporate entities removed of cases very much i love is the philosophy that was expressed by both kennedy and thomas in that case where they talked about a time when the court felt it needed to create a remedy and since congress really hasn't spoken here on whether unknown assen in the ninth circuit to have our own view of things so what i have to point to points in response to that one is that the court took cert twice now to decide the question of corporal liability generally  would suggest that they haven't made up their mind with respect to the more general question of corporate liability and they acted for specific reasons with respect to foreign corporations that had i think a lot to do with things like the protests that the united kingdom in the claims against foreign corporations those factors don't apply to u s corporations in fact most of those protests said you have every right to regulate your own corporations with respect to the a t s but you shouldn't be able to regulate ours when i hear it whe in congress to act against forced labor and slavery in the world i don't think that what that means is that this case is in any way preempted by that i don't think there's anything in that act that says that other acts are preempted  unaware of anything in any of the provisions of the trafficking victims protection act that say this is the exclusive remedy or even in the legislative history that it's the exclusive remedy for this kind of problem well the a t f doesn't say that but those actually do sa obviously doesn't say anything it was it was passed it was the first that's what the congress passed in seven hundred eighty nine and so it's so so i think lays out the history as well as anyone will ever lay it out in terms of why it was passed and and the reasons for it and i think that in this case it fits the history and purpose in the sense that you have aliens that are seeking against us corporations that have violated international  but a couple of the questions so in the united states often have a culture is on the basis of producing a crop by the farmers and then you give it to a broker who brokers the crop and other people buy it to grocery stores department stores whatever so it's the direct involvement that you see in this case that you will lead state that they were directly involved and think there's been some questions about that but if there was an interest see an intermediary a broker where they simply bought all the cocoa from a broker and they didn't have that direct involvement even though they supplied money to the broker then i think that would be very different case for marcus and if pirates for example were successful in interceding and capturing the ships that brought the cocoa so to speak they went to the end they bought the crop from the cocoa from the pirates who were all successful so you had we're going back to the original the original reason is not going to meet the history and purpose of the yes because one of the things that everybody agrees is that piracy was covered and piracy is not territorial you know the supreme court didn't really deal with that problem and killed them because  but one of the reasons that the tension concern test i believe has to be broader than the second circuit and fifth circuit have founded is that congress was concerned about situations in which u s actors governmental  private might engage in acts that would create problems for the united states be there because of the u s citizenship of that person or because of where the x the place and that i think that's why the touching concern has cannot opposes slavery child labor vehemently and it's alleged in the complaint if you look at pages fifty for paris fifty three to fifty seven its policies are against slavery all think it's a point of course but the question here is whether this court should recognize a federal common law cause of action under the alien tort statute which the supreme court has said should be interpreted narrowly cautiously modestly  for a variety of reasons that i'll come back to but here the question is whether the whole a candy company nestle usa and cargill supplier of cocoa to nestle responsible for crimes perpetrated in west africa by an identified unknown foreign criminals and perpetrated against unnamed foreign plaintiffs in the question is can that be done and the answer is no and i was going to touch on three main reasons during my time first it's an improper extraterritorial application of the alien tort statute second the plaintiffs here lack standing to bring this action against nestle usa mr hoffman talked a lot about the general social problem the human rights problem but nothing in the complaint nothing says that nestle usa had any connection to the plaintiffs in this case if you just look at paragraph seventy of the complaint that's where they repeat the same allegation for all six plaintiffs but this close as they come to tying these plaintiffs to any defendant is the following allegation upon information and belief the cocoa cultivated on this plantation  supply the anyone and any more of the defendants carrying it doesn't say when it doesn't say that that happened while these individuals were in captivity under their obligations it doesn't say it's as i supplied which suggests now and it doesn't say which definitive nestle usa is based in the united states it's a candy company it doesn't have exclusive supplier contracts and there's only three allegations in the complaint against nestle u paragraphs one twenty and thirty five and in the third point i was going to i'm going to come back to is which project she was asking about the gender decision council is reading from a different history book statute we all agree human rights abuses are terrible but the purpose in effect intent of congress is laid out in sosa he'll bowl in jefferson or and it's the opposite of what coun saying it's a narrow statute that ted reeve very specific purposes safe conduct of ambassadors from foreign countries who were in the united states and piracy on the high seas were no other jurisdictions say there's an argument at least justice kennedy makes this point that this is probably as far as it goes but the court doesn't have to reach those issues a drumbeat to be very very cautious very cautious in part because of domestic strife the purpose of the entities have to be stripped out so that he's talking now about domestic defendants right yes which i think answers or at least goes to the point that you're making now and he's arguing domestic conduct as well let me turn to that that you you started out running with questions about the test it's absolutely clear that the state has to state it in our jr and i think the plaintiffs are fighting so hard because they can't meet that test and literally are jr says and this is  let me tell you so the first part of the test is does the alien tort statute apply extraterritorial e we know the answer to that is no from the court explicitly said there's no indication congress intended that and  what's the focus of the statute that we're talking about here the only import statute and does the conduct that's relevant to the focus does it occur in the united states or does it occur in a foreign country here the conduct that is the focus of injury that occurred there it's the kidnapping the trafficking in the forced labor on the farms so that when and forgive me for noting that his argument is it's the aiding and abetting so i want to make sure i understand that your clients position is it your position that no courts of have said that the courts have in this court has already so i'm not fighting that issue for now but i want to preserve it ok so i couldn't find any quotes of that either but i do want to make sure that i understand your client's position that's not the position you're taking today and preserving it for to say i'm not making cargo have these policies against trial labor against slavery that's the main edition and that those policies were were disseminated in the united states i know no court has ever held that aiding and abetting to have a policy against the wrongful and and they want everybody to gather as kristen you know which you can't do those foreign companies were dismissed from the case by the judge district judge in the first go around in the appeal was abandoned i don't know how they could amend the complaint to leave them in there completely improper but the point is there's no allegation of any connection or any purpose or any direction to engage in trial labor or anything like that make it here for me is the most of course you know the position but among other allegations that that they're not just arguing that the defendants purchased the crop they're not just arguing that the defendants provided all kinds of aid to make sure the crop was successful and they had what they needed to to make their chocolate they're also arguing that among other actions the defendants gave spending money to farmers you know that are for profit corporations a parsonage that seems to be just giving away money giving away subsidies as opposed a making advance payments for the purchase of a of a commodity does not strike me to be consistent with running a for profit corporation or we've been we don't really know what they mean by that because it's an allegation and a complaint so saying it's completely conclus dealing with the farmers when i don't know that i have a problem with that with the plural yes and figure on who did what so i've signaled that but what is the best response and maybe i'll hear from europe co counsel about as to that allegation are you saying that it's conclus bad labor practices paragraph thirty seven the only mention of labor practices that the defendants give give training for appropriate labor practices so the can plain on its face if one reads it from start to finish doesn't hang together it doesn't tie nestle usa to the farms to the individual plaintiffs to the time frame and i think judge wilson got it exactly right the u s activities are u s decisions us pres us publications against child trafficking and child labor and it's completely conclusory for and i don't want to eat up all my colleagues i have a question for another guy wasn't there and allegations that they deserve the farms gave instruction and showed them how to grow those sorts of there are those generic malcolm made it allegations but one if there's nothing specific as to nestle usa and that is not enough here they don't say that they engaged in practices in training about how to engage in child labor it's the opposite they gave training about how to engage in proper labor practices it's completely speculative just announce and it's really not fair to companies to say oh they of course they knew when they were there on the ground there's no facts in the complaint that they saw child labor and the policies are against that so it's speculative and conclusory and again i go back to where i started we oppose trial labor the companies have strong policies against it there's no facts in the complaints that that allege otherwise it's complete conclusions and speculation and there's no basis for those sorts of allegation that he has about the allegation that you opposed statute that would prohibit child say we labor good send coming in two thousand and one your honor that's the statute first of all i think this is telling plaintiffs of misstated what the statute was it was a statute that would have given a two hundred fifty thousand dollar appropriation to the f d a to study the possibility of a voluntary labeling system that would have labeled companies could have labeled their products slave free that was in two thousand and one the same year the last plaintiff thankfully apparently was able to leave their captivity so there's no connection in terms of what it would have done totally speck of no causal chain from a standing perspective there's no causal link between those individual plaintiffs in that statu but what came in after that your honor was a voluntary agreement with the members of congress input the this protocol that the companies would take action in trying to help eliminate child labor and maybe i'll finish with this so i don't eat up kennedy noted in jazz singer and judge wilson noted here one of the policy determinations that congress and the executive branch can make on this foreign policy issue is that the best way to try to stamp out this kind of human rights abuse is to encourage economic investment by companies that have corporate social responsibility programs to eliminate it and judge justice kennedy said the danger of this broad application of a t s would be to deter companies from making those foreign investments and it would be enjoyed wilson noted if if having policies against the practice is going to is going to implicate you in the practice then companies will be concerned about having the social responsibility of corporate sponsibility program that would try to on these practices and that's a policy issue for congress and the executive branch it's an important one that everybody needs to seek to achieve but the only import statute if not the means for doing that and look i will sit down thank you nestle i just want to make clear cargill pours forced labor and is working to stop it but federal common law does not create the remedy the plaintiffs seek if they believe a private cause of action is the right way to address this issue they have to seek that remedy from without identifying ever provided farmers and or cooperatives with ongoing financial support including advance payments and personal spending money to maintain the farmers and or the cooperatives loyalty as exclusive suppliers so it makes quite clear that the spending money and the training and the supplies are all part of the commercial arrangement to maintain the relationships with mass transit and i have to maintain the relationship and this is the problem i happy that i forgive me for interrupting but perhaps to maintain it to the to the tune of just buying the entirety of the crop and but what working so hard to keep the price as low as possible that that that the press haps another word subsidizing an enterprise that otherwise would not be economically viable well i don't think so because if they're spent given where it is that there does a profit for profit corporation what can you show me that that's consistent with a typical activity for papa corporation to give spending money to farmers other secrets the from the corporations this is all part of a commercial relationship the company is on one side the farmers on the other the deal is we'll give you certain things in return for your cocoa the certain thing typically you buy it at the market rate or maybe there's a technical assistance but i have a hard time with cash subsidies well i don't think there's any difference between care subsidies and paying and giving fertiliser for example i think it's all about a additional commercial induce an economic inducement for the farmers to enter into it but if i think i just part of a commercial arrangement if you could you could say no personal spending money and you could say support to buy farming supplies and it would be exactly the same thing the fact that they've characterized this is very  crop it's very different in my assessment i really want to give you an opportunity because for me this is the crux of it it's it's really different than then if they're a crop had been produced and they're just buying at the market rate but one of the thing that's not the allegation in the complaint the allegation the complaint i think fairly read is that is that and i am not i'm not making a judgment about that of course have to take these allegations as true for our pleading rules at this early stage of the litigation and i and i appreciate it it's been going on for many if you are sorry and if you read the rest of the paragraph i've read it training capacity building and growing and for mentation the idea here is to build relationships so that the quality of the cocoa that's being produced and to build a relationship that on the company side encourages the farmer to use good techniques so that the quality of the cocoa that's produced will be what the company needs and that requires a long term relationship and that requires economic inducements to maintain that long term relationship which are all the things we talk about i truly don't believe your honor but that characterizing it as spending money as opposed to saying additional subsidies for purchasing fertilizer makes a difference in in what's happening but but if that is asked about that they're visiting every few months are you saying they had no idea there was shall slavery here well there's no allegations about what happened on the visits in the complaint but if i could back up your honor i think one of the things to think about here is what is the text the test that we're applying to determine the inquiry which i think are jr and and key about direct which is is this application of the a t s domestic because if it's not domestic then it's impermissible and i think going beyond our position that the locus of the injurious is the term that is certainly the locus of the injury  significant and the aiding and abetting activity much of it alleged was in west africa the paying of the money the purchasing of the cocoa all of that for the providing of the training so what happened in the us to counterbalance that and the only thing in the complaint that took that even begins to counterbalance that is decisions being made in the us about these particular programs and i think if the court looks at the drum and case it's very instructive because it's a case in which the argument was conduct being directed from the us conduct there to enter into a conspiracy the allegation was officials in the us entered into a conspiracy to engage in  extrajudicial killings directed that that happen and supplied the equipment specifically for the extradition of killings and horded my case said that is not enough these general allegations of control from the us do not counterbalance the fact that all these other things relevant to the case occurred outside the us and therefore we have to find that the claim there is extra territorial contrast that with a case like al should marry in the fourth circuit where the court said here we have people higher in the us that were then sent to work under a us government contract there torture activities were supervised from the us hover up close to acted from the us and the fourth circuit said that's enough that's a very different case from the allegations here and i think that's a very critical distinction i want to also my colleague addressed some of the aspects of the lobbying your honor reference but i think the nor pennington principles very significant here i think the courts have said in a variety of contexts that applying basing allege wrongfulness on protected first amendment contact is impermissible and that's exactly what would happen here if the court said the basis for finding this claim that is is it your position that the allegations of the complaint are really insufficient because they don't say that the american companies made strategic decisions funded those decisions by sending people clear instructions to do thus and so in order to ensure that they got their crop so that's not enough in your mind i think the allegations in the complaint are not and again i would urge the court to compare them to the allegations in drummond which  at court said were not enough and the allegations there were just the fact that the from the u s the directions were to engage in extra judicial killings what courts have said uniformly in these cases is we need some wrongful conduct in the us the a address the question in light of jazz nor of whether it's prior decisions about aiding and abetting can stand in light of what the supreme court said in jest or because i think just dinner is relevant as your honor said it's not just about foreign corporate liability it's about a mode of analysis here it's a higher bar here because of the foreign policy issues involved so i think that consideration is an account so what foreign policy issues are involved as any government object is has our government objected well in the r j our case your honor what the supreme court said because of course that was a case where the foreign governments were actually the plaintiffs and seeking an extra territorial application of the statute in the supreme court said the fact that the foreign governments wanted extra territorial application in this case is not dispositive we look at u s law and decide what the right answer is whether or not someone's complaining justice kennedy in jazz near sighted aiding and abetting claims something that are particularly problematic because they allow claims against corporations to be used as a way to get at arguments about foreign individuals or foreign governments as in this case not doing the right thing and that that threatens their very foreign policy  tention that this statue to start with him again just now says there should be claims under the a t s when the claim is necessary because foreign governments would say would object to the us not providing a remedy there's no way  if there is no relevant content in he'll what therefore there is no need to move on to the second  think as i said at the minimum that test requires looking at where the locus where where is there sufficient weight to this claim in the acts alleged to have occurred in the united states to counterbalance the acts that occurred abroad and i think involve actual specific allegations that the specific wrongful conduct was directed in the us and that does not exist here at any other question now thank you thank you thank you c i columbia was being used to delouse the usual use the ordinary business use was acquitted the defendant that knew that this i cloned b was being used to kill human beings was it was found guilty same act this res supplying a ordinary business thing to talk to a government one was was a violation of international law because of the mens rea or the other one was not the same thing with respect to giving money and financial assistance the defendant sidemen of the ministry's case where roush was acquitted for just giving money but they don't cite the flick case where flic was convicted for giving money and he was convicted for  asking for more workers for his company knowing that there would be forced labor use our allegations go far beyond that and our allegations are first that they're engaged in a purposeful series of kind of controlled from the united states from their headquarters to supply a cheap continuous source of cocoa beans that are based on slave labor so they have put they are in bed with the slave holders and they give them money they give them money for personal things they give them money for advances they give them technical assistance of course they want they want good cocoa beans and they want to cheap and that's what their purposes that is aiding and abetting under international law there's nothing in chester that says that there's no waiting in abetting just or didn't change sosa didn't overrule it and sosa has all the same words about caution in foreign relations and the whole analysis and every circuit has found that aiding and abetting applies and there's no there's no principle that ordinary business practice is not act this rance there's no principle in international law that says that the acts for actus reus have to be wrongful in themselves there's no thing nothing in the international law that says they have to be a but for a cause for what happens so we have alleged much more than that i acknowledge judge chris than that we would have to amend their complaint to make it more specific in our number of ways i agree with that but in terms of the core allegations in this case we have alleged and international law violation that is touches and concerns the us territory substantially because of the control and i think the diverse is excellent example is and it's more modern example of where that kind of control from the united states was found to satisfy the touching concern test which is the test that he openly use and which