No. 23-55299 – 8-18

In the United States Court of Appeals
for the Ninth Circuit————————
Keo Ratha, et al.,Plaintiffs-Appellantsv.
Rubicon Resources, LLC
Defendant-Appellees.
————————ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA
No. 23-55299————————
BRIEF OF HUMAN AND WORKERS’ RIGHTS ORGANIZATIONS AND
U.S. SHRIMP PRODUCERS AS AMICI CURIAE IN SUPPORT OF
PLAINTIFFS-APPELLANTS————————
John Burton
THE LAW OFFICES OF JOHN
BURTON
128 North Fair Oaks Avenue
Pasadena, California 91103
jb@johnburtonlaw.com(626) 449-8300
Allison Gill
Johanna Lee
GLOBAL LABOR JUSTICEINTERNATIONAL LABORRIGHTS FORUM
1634 I St. NW, Suite 1000
Washington, DC 20006
allison@ilrf.org(202) 347-4100

Avery Kelly
Alicia Brudney
CORPORATE ACCOUNTABILITY
LAB
6214 N Glenwood Ave.
Chicago, IL 60660
avery@corpaccountabilitylab.org
allie@corpaccountabilitylab.org(773) 346-554
Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae hereby
submit the following corporate disclosure statements:
Amnesty International is a not-for-profit organization. It has no parent
corporation, it does not issue stock, and no publicly held corporation owns any
portion of Amnesty International.
Centro de los Derechos del Migrante, Inc. (“CDM”) is a not-for-profit
organization. It has no parent corporation, it does not issue stock, and no publicly
held corporation owns any portion of CDM.
Corporate Accountability Lab (“CAL”) is a not-for-profit organization. It
has no parent corporation, it does not issue stock, and no publicly held corporation
owns any portion of CAL.
The Environmental Justice Foundation ("EJF") is a not-for-profit
organization. It has no parent corporation, it does not issue stock, and no publicly
held corporation owns any portion of EJF.
Freedom Network USA (“FNUSA”) is a not-for-profit organization. It has
no parent corporation, it does not issue stock, and no publicly held corporation
owns any portion of FNUSA.

iGlobal Labor Justice-International Labor Rights Forum (“GLJ-ILRF”)
is a not-for-profit organization. It has no parent corporation, it does not issue stock,and no publicly held corporation owns any portion of GLJ-ILRF.
Greenpeace USA (“GPUS”) is a not-for-profit organization. It has no parent
corporation, it does not issue stock, and no publicly held corporation owns any
portion of GPUS.
Human Rights and Development Foundation (“HRDF”) is a not-for-profit
organization. It has no parent corporation, it does not issue stock, and no publicly
held corporation owns any portion of HRDF.
The Human Trafficking Institute (“HTI”) is a not-for-profit organization.
It has no parent corporation, does not issue stock, and no publicly held corporation
owns any portion of HTI.
The International Corporate Accountability Roundtable (“ICAR”) is a
fiscally sponsored project of the Tides Foundation, a not-for-profit organization.
The Tides Foundation has no parent corporation, it does not issue stock, and no
publicly held corporation owns any portion of it.
The Justice Defense Fund (“JDF”) is a not-for-profit organization. It has noparent corporation, does not issue stock, and no publicly held corporation owns
any portion of JDF.

ii

The Labor Rights Foundation (“LRF”) is an arm of the Migrant Workers
Rights Network (“MWRN”), which is a not-for-profit organization. It has noparent corporation, it does not issue stock, and no publicly held corporation owns
any portion of MWRN.
The Lantos Foundation for Human Rights & Justice (“LFHRJ”) is a notfor-profit organization. It has no parent corporation or company, it does not issue
stock, and no publicly held corporation or company owns any portion of LFHRJ.
The Law Office of Mary Joyce Carlson is a for-profit corporation. It has
no parent corporation, it does not issue stock, and no publicly held corporation
owns any portion of it.
Oxfam America is a not-for-profit organization. It has no parent
corporation, does not issue stock, and no publicly held corporation owns any
portion of Oxfam America.
Share (Asia Pacific) Limited (“Liberty Shared”) is a not-for-profit
organization. It has no parent corporation, it does not issue stock, and no publicly
held corporation owns any portion of Liberty Shared.
The Solidarity Center is a not-for-profit organization. It has no parent
corporation, it does not issue stock, and no publicly held corporation owns any
portion of the Solidarity Center.

iii

The Southern Shrimp Alliance (“SSA”) is a not-for-profit organization. It
has no parent corporation, it does not issue stock, and no publicly held corporation
owns any portion of SSA.
The State Enterprises Workers’ Relations Confederation (“SERC”) is
the national labor organization in Thailand. It is a not-for-profit organization. It has
no parent corporation, it does not issue stock, and no publicly held corporation
owns any portion of SERC.
Transparentsea Farm is a U.S. for-profit company. It has no parent
corporation, it does not issue stock, and no publicly held corporation owns any
portion of it.
The Uyghur Human Rights Project (“UHRP”) is a not-for-profit
organization. It has no parent corporation, it does not issue stock, and no publicly
held corporation owns any portion of UHRP.
The Worker Rights Consortium (“WRC”) is a not-for-profit organization.
It has no parent corporation, it does not issue stock, and no publicly held
corporation owns any portion of the WRC.

iv

TABLE OF CONTENTSTABLE OF AUTHORITIES ................................................................................... vi
INTEREST OF AMICI CURIAE ...............................................................................1
CERTIFICATE OF AUTHORSHIP .........................................................................6
SUMMARY OF ARGUMENT .................................................................................7
ARGUMENT ..........................................................................................................10
I.
Rubicon Knew, Recklessly Disregarded, and/or Should Have
Known of the Human Trafficking and Forced Labor Occurring at
Phatthana’s Factory when it Attempted to Sell Shrimp Produced There toWalmart. ............................................................................................................10
A. Human Rights Advocates Addressed Allegations of Labor Abuses at
Phatthana’s Factory Directly with Rubicon’s Venture Partners and Customers. ... 10
B. Knowledge of Human Trafficking and Forced Labor in the Thai Shrimp
Industry was Widespread Before and During the Time in Question. ..................... 12
1.

Reports by Human Rights Organizations ................................................................ 13

2.

Report by the International Labour Organization ................................................... 18

3.

Reports by the U.S. Government............................................................................. 20

4.

Acknowledgment by Industry ................................................................................. 24

II.
Accountability for Those Who Attempt to Reap Benefits from
Forced Labor is Integral to the U.S. Government’s Comprehensive Strategy
to Combat Human Trafficking and Forced Labor Around the World. ...........25
A. Attempt Liability Under the TVPRA is and has been Essential to the U.S.
Government’s Comprehensive Strategy to Combat Forced Labor Around the World.
......................................................................................................................... 25
B. Failure to Recognize Attempt Liability under the TVPRA Helps Perpetuate
Forced Labor in Global Supply Chains. ................................................................. 28
C. Attempt Liability is Critical for Victims’ Access to Justice. .......................... 30

CONCLUSION ........................................................................................................31v

TABLE OF AUTHORITIES
Cases
Ratha v. Phatthana Seafood,
35 F.4th 1159 (9th Cir. 2022) ..............................................................................12
Rodriguez v. Pan Am. Health Org., 29 F.4th 706 (D.C. Cir. 2022) ........................29
Statutes
18 U.S.C. § 1595 ............................................................................................... 28, 30
18 U.S.C. § 1596 ......................................................................................................30
19 U.S.C. § 1307 ..................................................................................................9, 26
Abolish Trafficking Reauthorization Act of 2022,
Pub. L. No. 117-347, 136 Stat. 6199 (2023) ................................................. 26, 30
Trafficking Victims Protection Reauthorization Act of 2003,
Pub. L. No. 108-193, 117 Stat. 2875 (2003) ................................................ 20, 21
Trafficking Victims Protection Reauthorization Act of 2005,
Pub. L. No. 109-164, 119 Stat. 3558 (2005) .......................................................23
Trafficking Victims Protection Act of 2000, Div. A.,
Pub. L. No. 106-386, 114 Stat. 1464 (2000) ....................................................7, 20
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110-457, 122 Stat. 5044 (2008) ................................................ passim
Other Authorities
Alastair Leithead, Burmese ‘Slavery’ Fishermen are Trafficked and Abused, BBC(Apr. 25, 2011), https://www.bbc.com/news/world-asia-pacific-12881982 ...... 13
Brief of Members of Congress Senator Blumenthal, et al., as Amici Curiae
Supporting Respondents, Nestlé USA, Inc. v. Doe I, 141 S. Ct. 1931 (2021) ... 28vi

Ed Cropley, Child Laborers Toil in Thai Seafood Factories, Reuters (Apr. 24,
2007), https://www.reuters.com/article/us-thailand-childlabour/child-laborerstoil-in-thai-seafood-factories-idUSBKK26683020070424 ............................... 13
Environmental Justice Foundation, Smash & Grab: Conflict, Corruption and
Human Rights Abuses in the Shrimp Farming Industry (2003),
https://ejfoundation.org/resources/downloads/smash_and_grab.pdf .................. 14
Human Rights Watch, From the Tiger to the Crocodile: Abuse of Migrant Workers
in Thailand (2010),
https://www.hrw.org/sites/default/files/reports/thailand0210webwcover_0.pdf ...
....................................................................................................................... 16, 17
In Thai Shrimp Industry, Child Labor and Rights Abuses Persist, N.Y. Times (Apr.
25, 2007), https://www.nytimes.com/2007/04/25/business/worldbusiness/25ihtbaht.4.5438244.html ........................................................................................... 13
International Labour Organization, About the ILO,
https://www.ilo.org/global/about-the-ilo/lang--en/index.htm .............................. 9International Labour Organization, The Mekong Challenge–Underpaid,
Overworked and Overlooked: The Realities of Young Migrant Workers in
Thailand xvii (2006), https://www.ilo.org/wcmsp5/groups/public/---asia/---robangkok/documents/publication/wcms_bk_pb_67_en.pdf ................................ 18
International Trafficking in Women and Children: Hearing Before the Subcomm. on
Near E. & S. Asian Aff. of the S. Comm. on Foreign Rel., 106th Cong. 78 (2000)(statement of Hon. William R. Yeomans) .......................................................... 28
Jason Motlagh, Bad Cocktail: Burmese Migrants and the Thai Shrimp Industry,
Pulitzer Center (Nov. 2, 2012), http://pulitzercenter.org/reporting/bad-cocktailburmese-migrants-and-thai-shrimp-industry ...................................................... 13
Letter from Arvind Ganesan, Director, Business and Human Rights Division,
Human Rights Watch, to Phatthana Seafood Co. Ltd. (Apr. 20, 2012),
https://www.hrw.org/news/2012/04/20/letter-phatthana-seafood-co-ltd............ 11
Letter from Arvind Ganesan, Director, Business and Human Rights Division,
Human Rights Watch, to Mr. Mike Duke, President of Walmart Stores, Inc.
vii

(Apr. 16, 2012), https://www.hrw.org/news/2012/04/16/letter-mr-mike-dukepresident-walmart-stores-inchttps://www.hrw.org/news/2012/04/16/letter-mrmike-duke-president-walmart-stores-inc ...................................................... 11, 12
Letter from Arvind Ganesan, Director, Business and Human Rights Division,
Human Rights Watch, to Mr. Mike Duke, President of Walmart Stores Inc. (June
1, 2012), https://www.hrw.org/news/2012/06/01/response-letter-mr-mike-dukepresident-walmart-stores-inc............................................................................... 12Open Letter to Thai Prime Minister – Request to Eliminate Human Trafficking andForced Labour in the Thai Fishing Industry, Human Rights and Development
Foundation (Apr. 29, 2011), http://hrdfoundation.org/?p=478..................... 17, 18
Patrick Winn, Is your Seafood Harvested by Slaves?, The World (Orig. pub. Nov.
9, 2009, ed. May 30, 2010) https://theworld.org/stories/2009-11-29/yourseafood-harvested-slaves .................................................................................... 13
Paul Eckert, Shrimp Industry Blasted for Modern Day Slavery, Reuters (Apr. 23,
2008), https://www.reuters.com/article/uk-asia-shrimp-usa/shrimp-industryblasted-for-modern-day-slavery-idUKN2342204020080423 ...................... 13, 15
Solidarity Center, The Degradation of Work: The True Cost of Shrimp (2008),
https://www.solidaritycenter.org/wpcontent/uploads/2014/12/pubs_True_Cost_of_Shrimp.pdf .................... 14, 15, 16Southern Shrimp Alliance, Know Your Supplier Continued: Eliminating Child andForced Labor from the Shrimp Supply Chain (Sept. 28, 2012),
https://shrimpalliance.com/news-alert-know-your-supplier-continuedeliminating-child-and-forced-labor-from-the-shrimp-supply-chain/.................. 25
U.S. Customs and Border Protection, CBP Issues Detention Order on Central
RomanaCorporation
Limited(Nov.
23,2022),
https://www.cbp.gov/newsroom/national-media-release/cbp-issues-withholdrelease-order-central-romana-corporation. ........................................................ 27
U.S. Customs and Border Protection, CBP Releases Operational Fiscal Year 2021
Statistics (Jan. 3, 2022), https://www.cbp.gov/newsroom/national-mediarelease/cbp-releases-operational-fiscal-year-2021-statistics .............................. 26

viii

U.S.
CustomsandBorderProtection,
ForcedLabor,
https://www.cbp.gov/trade/forced-labor (last mod. July 25, 2023) .................... 26
U.S. Customs and Border Protection, Withhold Release Orders and Findings List
(last mod. July 26, 2023), https://www.cbp.gov/trade/forced-labor/withholdrelease-orders-and-findings ................................................................................. 27
U.S. Dep’t of Labor, List of Goods Produced by Child Labor or Forced Labor(2009),
https://www.dol.gov/sites/dolgov/files/ILAB/reports/TVPRA%202009_WEB_.p
df ......................................................................................................................... 23
U.S. Dep’t of Labor, List of Goods Produced by Child Labor or Forced Labor(2010), https://www.dol.gov/sites/dolgov/files/ILAB/reports/2010TVPRA.pdf 23
U.S. Dep’t of Labor, List of Goods Produced by Child Labor or Forced Labor(2011), https://www.dol.gov/sites/dolgov/files/ILAB/reports/2011TVPRA.pdf 23
U.S. Dep’t of Labor, List of Goods Produced by Child Labor or Forced Labor(2012), https://www.dol.gov/sites/dolgov/files/ILAB/reports/2012TVPRA.pdf.
............................................................................................................................. 23
U.S. Dep’t of State, Trafficking in Persons Report (2004), https://20092017.state.gov/documents/organization/34158.pdf ............................................ 21
U.S. Dep’t of State, Trafficking in Persons Report 2010 (2010), https://20092017.state.gov/documents/organization/142979.pdf ......................................... 22
U.S. Dep’t of State, Trafficking in Persons Report 2011: Country Narratives,
Countries
N
ThroughZ(2011),
https://20092017.state.gov/documents/organization/164458.pdf .......................................... 22
U.S. Dep’t of State, Trafficking in Persons Report 2012: Country Narratives T
ThroughZ
andSpecialCase,
https://20092017.state.gov/documents/organization/192598.pdf .......................................... 22
U.S.
Dep’t
of
State,
TraffickinginPersons
Report,https://www.state.gov/trafficking-in-persons-report/ ................................... 21, 22

ix

U.S. Dep’t of State, Trafficking in Persons Report: IV. Country Narratives – Tier 2(2001), https://2009--2017.state.gov/j/tip/rls/tiprpt/2001/3928.htm ................... 21
Zain Verge, et al., Report ties U.S. retailers to sweatshop shrimp, CNN, Apr. 24,
2008, https://www.cnn.com/2008/US/04/24/shrimp.retailers ............................ 15x

INTEREST OF AMICI CURIAE1
Amnesty International is a worldwide movement of more than ten million
people in more than 150 countries and territories working for the respect,
protection, and fulfillment of internationally recognized human rights.
Centro de los Derechos del Migrante, Inc. (“CDM”) supports migrant
workers to defend and protect their rights as they move between their homecommunities in Mexico and their workplaces in the United States.
Corporate Accountability Lab (“CAL”) is an independent organizationthat uses innovative legal strategies and advocacy to address corporate impunity
for human rights violations and environmental abuses.
The Environmental Justice Foundation (“EJF”) exists to protect thenatural world and defend our basic human right to a secureenvironment. EJF works internationally to inform policy and drive systemic,
durable reforms to protect our environment and defend human rights. EJF
investigates and exposes abuses and support environmental defenders, Indigenous
peoples, communities, and independent journalists on the frontlines ofenvironmental injustice.

1

All parties to this appeal have consented to the filing of this brief.
1

Freedom Network USA (“FNUSA”) is the largest alliance of advocatesagainst human trafficking in the United States, including ninety-five members thatserve more than 2,000 trafficking survivors per year in over forty cities.
Global Labor Justice-International Labor Rights Forum (“GLJ-ILRF”)
works transnationally to advance policies and laws that protect decent work,
strengthen workers’ ability to advocate for their rights, and hold corporations
accountable for labor rights violations in their supply chains.
Greenpeace USA (“GPUS”) is part of global Greenpeace, a network of
independent campaigning organizations that expose global environmental
problems and promote solutions that are essential to a green and peaceful future,including working to expose the nexus of forced labor and environmental
destruction pervasive in the commercial fishing industry.
Human Rights and Development Foundation (“HRDF”) promotes humanrights, democracy, and peace in Thailand and has played a leading role in addressing
human trafficking and forced labor in Thailand through strategic litigation, policy
advocacy, and drafting legislation since its founding in 2000.
The Human Trafficking Institute (“HTI”) works to stop human trafficking
at its source by empowering police and prosecutors to stop traffickers.

2

The International Corporate Accountability Roundtable (“ICAR”) is acoalition of over forty member and partner organizations committed to ending
corporate abuse of the people and the planet and preventing corporate wrongdoing.
The International Lawyers Assisting Workers Network (“ILAW”), a
program of the Solidarity Center, is a global network of lawyers and advocatesdedicated to the promotion and defense of workers’ rights worldwide, including
the elimination of forced labor.
The Justice Defense Fund (“JDF”) is a nonprofit organization dedicated toempowering survivors of sex trafficking, child sexual abuse material, and imagebased sexual abuse to pursue justice through civil litigation.
The Labor Rights Foundation (“LRF”) is an arm of the Migrant Workers
Rights Network (“MWRN”), a membership-based organization for migrant
workers from Myanmar residing and working mainly in Thailand.
The Lantos Foundation for Human Rights & Justice (“LFHRJ”) wasestablished to carry on Congressman Tom Lantos’ proud legacy as a leading
advocate for American engagement in human rights globally.
The Law Office of Mary Joyce Carlson specializes in domestic andinternational Public & Employment Law, with additional areas of practice inInternational Business Practices and Human Rights.

3

Oxfam America is a development and human rights organization with
operations across the globe. It pushes companies to weed out forced labor in its
agribusiness supply chains, with a particular focus on the seafood sector inSoutheast Asia.
Share (Asia Pacific) Limited (“Liberty Shared”) aims to prevent humantrafficking through legal advocacy, technological interventions, and strategic
collaborations with NGOs, corporations, and financial institutions globally.
The Southern Shrimp Alliance (“SSA”) is an organization of shrimp
fishermen, shrimp processors, and other members of the domestic industry in theeight warmwater shrimp producing states of Alabama, Florida, Georgia, Louisiana,
Mississippi, North Carolina, South Carolina, and Texas.
State Enterprises Workers’ Relations Confederation (“SERC”) is anational labor organization in Thailand, with more than 100,000 members. It works
on labor protections and rights to create decent work in the workplace.
Transparentsea Farm is a U.S. shrimp producer. It does not import orprocess shrimp from Thailand or any other foreign country.
The Uyghur Human Rights Project (“UHRP”) is a research-based
advocacy organization that promotes the rights of the Uyghurs and other Turkic
Muslim peoples in East Turkistan, referred to by the Chinese government as the
Xinjiang Uyghur Autonomous Region.
4

The Worker Rights Consortium (“WRC”) is an independent labor rights
monitoring organization that investigates working conditions in factories aroundthe globe. The WRC's purpose is to document and combat sweatshop conditions;
identify and expose the practices of global brands and retailers that perpetuatelabor rights abuses; and protect the rights of workers who make apparel and otherproducts.

5

CERTIFICATE OF AUTHORSHIP
Pursuant to Rule 29(a)(2) of the Federal Rule of Appellate Procedures, amici
curiae file this brief with the consent of Plaintiffs’ and Defendants’ counsel. Per
Rule 29(a)(4)(E), amici certify that no counsel for a party authored this brief inwhole or in part, and no party or counsel for a party contributed money intended tofund the preparation or submission of this brief. No one other than amici, theirmembers, or their counsel contributed money intended to fund the preparation or
submission of this brief.

6

SUMMARY OF ARGUMENT
Plaintiffs, who allege that they are victims of forced labor, from which
Defendant Rubicon Resources (“Rubicon”) attempted to benefit, are entitled to their
day in court. In this brief, amici urge this Court to reverse the District Court’s denialof Plaintiffs’ motion to reopen the judgment against Rubicon. We argue that Rubiconknew, recklessly disregarded, and/or should have known that forced labor was
occurring at former defendant Phatthana Seafood Co. Ltd.’s (“Phatthana”) factoryin Songkhla, Thailand when Rubicon tried to sell products made there to Walmart.
Additionally, amici argue that attempt liability under the Trafficking Victims
Protection Act of 2000 and its progeny, the Trafficking Victims Protection
Reauthorization Acts (“TVPRA”), is essential to the comprehensive framework
under federal law to combat human trafficking and forced labor.
Amici include organizations that have investigated and publicized thepervasiveness of human trafficking and forced labor in the Thai seafood sector prior
to and during the period set out in Plaintiffs’ complaint. Plaintiffs’ allegations thatthey are victims of forced labor are supported by publicly available data
demonstrating that these practices were commonplace in the Thai shrimp industry
during the relevant period. Plaintiffs allege that they were trafficked from Cambodia
to Thailand, beaten and otherwise abused during the journey, and then forced towork at Phatthana’s shrimp processing facility in Songkhla. There, they worked
7

excessively long shifts for wages so low they rarely had enough to eat and often
became faint (some had to scrounge for fish scraps washed up on the beach forsurvival); they were exposed, unprotected, to hazardous chemicals (one Plaintiff was
hospitalized for coughing up blood after handling chlorine); they had their pay
docked when they became ill; they were continually threatened with punishment andarrest; they were forced to live in squalid, bug-infested quarters made of plywood
and concrete where they had no water to bathe; and they were unable to leave. 10ER-2154-2191 at paras. 1-13, 84; 2-ER-177-183 at para. 14.
Rubicon knew, recklessly disregarded, and/or should have known that forcedlabor was occurring at Phatthana’s Songkhla factory when Rubicon tried to sell
packaged shrimp it procured from Phatthana to Walmart because human rights
groups had raised the issue of labor abuses occurring at that factory directly tocompanies in the supply chain that Rubicon was part of, including to Phatthana andWalmart. Furthermore, there was widespread knowledge of human trafficking andforced labor in the Thai shrimp industry before and during the time frame set out in
Plaintiffs’ complaint. Human rights groups, including amici, the International
Labour Organization (“ILO”),2 and the U.S. government have extensively

2

The International Labour Organization is one of the oldest intergovernmentalorganizations in the world. It is a UN agency mandated to promote labor standards
and combat human rights abuses, including forced labor. It has a tripartite structurein which employers, governments, and workers are represented. See International8

documented labor rights abuses in the industry since the early 2000s. Even industry
sources demonstrate that knowledge on these issues was widespread.
Additionally, attempt liability under the TVPRA is integral to the U.S.
government’s multi-layered anti-trafficking framework to combat human trafficking
and forced labor. This framework includes civil liability for offenders and federal
criminal enforcement under the TVPRA, as well as import prohibitions on goods
made with forced labor abroad under Section 307 of the U.S. Tariff Act of 1930(“Section 307”), 19 U.S.C. § 1307. Mechanisms to target those who attempt tobenefit from trafficking and forced labor are essential to this framework, and failure
to recognize attempt liability undermines Congressional intent. For example, where
U.S. Customs and Border Protection (“CBP”) prohibits goods produced with forcedlabor from entering the United States under Section 307, CBP prevents implicatedcompanies from benefiting from forced labor; their acts remain “only” attempts orconspiracies to benefit from these abuses. Without attempt liability under the
TVPRA, victims of forced labor by some of the worst offenders, namely those thatcome to CBP’s attention and whose products CBP prohibits from accessing the U.S.
market, would be precluded from seeking civil remedy.

Labour Organization, About the ILO, https://www.ilo.org/global/about-theilo/lang--en/index.htm.
9This Court should therefore reverse the District Court’s denial of Plaintiffs’
motion to reopen the judgment against Rubicon. Plaintiffs are entitled to seek
remedy under the TVPRA from Defendant Rubicon, who knew, recklessly
disregarded, and/or should have known of the egregious abuses occurring at
Phatthana’s factory and attempted to benefit from those abuses. Reopening thisjudgment is necessary for the TVPRA to effectively protect victims, punish
offenders, and deter would-be offenders, as Congress intended.
ARGUMENTI.

Rubicon Knew, Recklessly Disregarded, and/or Should Have Knownof the Human Trafficking and Forced Labor Occurring at
Phatthana’s Factory when it Attempted to Sell Shrimp Produced
There to Walmart.
A. Human Rights Advocates Addressed Allegations of Labor Abuses at
Phatthana’s Factory Directly with Rubicon’s Venture Partners andCustomers.
Rubicon’s venture partners and customers were informed directly of theprevalence and severity of the abuses at Phatthana’s Songkhla factory. Before
Rubicon attempted to sell shrimp processed at this factory to Walmart, which it did
indisputably from June to September 2012 (7-ER-1558; 6-ER-1294), human rights
advocates corresponded with Rubicon’s venture partners and customers, raisingconcerns about conditions indicating forced labor. For example, advocates contacted
Phatthana in April 2012, when Human Rights Watch wrote a letter to Mr. Paiboon
Dussadeevutikul, Phatthana’s Managing Director, informing the company that it had
10

“received credible allegations indicating that serious labor rights abuses have been
occurring at the Songkhla factory, as well as in connection with recruitmentcompanies who supply workers to the factory.” See Letter from Arvind Ganesan,
Director, Business and Human Rights Division, Human Rights Watch, to Phatthana
Seafood Co. Ltd. (Apr. 20, 2012), https://www.hrw.org/news/2012/04/20/letterphatthana-seafood-co-ltd. In the letter, Human Rights Watch raised multiple serious
allegations, including migrant worker recruitment fees, retention of identity
documents, payment below the minimum wage, failure to provide housing as
promised, and excessive working hours. Id. The letter noted that Phatthana’s
Songkhla factory was a major supplier to Walmart and that Walmart’s “Standards
for Suppliers” proscribed the alleged abuses. Id. Phatthana acknowledged receipt ofthe letter in a response to Human Rights Watch on May 4, 2012. Id.
Human rights advocates also raised concerns with Walmart about the Thai
shrimp supply chain involving the Phatthana factory at issue. Human Rights Watch
sent a letter in April 2012 to Mike Duke, Walmart’s President and CEO, regarding
labor abuses in Phatthana’s Songkhla factory. Letter from Arvind Ganesan, Director,
Business and Human Rights Division, Human Rights Watch, to Mr. Mike Duke,
PresidentofWalmartStores,

Inc.

(Apr.

16,

2012),

https://www.hrw.org/news/2012/04/16/letter-mr-mike-duke-president-walmartstores-inc. This letter included the information about labor rights abuses provided to11

Phatthana and inquired about “Walmart’s possible role in this situation.” Id. Human
Rights Watch noted that Phatthana was a “member of the Rubicon Group, a leading
supplier of seafood and shrimp to Walmart and Sam’s Club stores across the UnitedStates and other countries.” Id. Walmart responded to Human Rights Watch on April
19, 2012, and Human Rights Watch sent follow up correspondence about the alleged
abuses and Walmart’s role on June 1, 2012. Id; Arvind Ganesan, Letter in Response
to Mr. Mike Duke, President of Walmart Stores Inc., Human Rights Watch (June 1,2012),

https://www.hrw.org/news/2012/06/01/response-letter-mr-mike-duke-

president-walmart-stores-inc.
Additionally, Rubicon and Wales, a Thai company doing business in the
United States and a former defendant in this case, admitted to knowing about abuses
at Phatthana’s factory when a whistleblower report was issued in February 2012. See
Ratha v. Phatthana Seafood, 35 F.4th 1159, 1176 (9th Cir. 2022).
B. Knowledge of Human Trafficking and Forced Labor in the Thai Shrimp
Industry was Widespread Before and During the Time in Question.
As evidenced by countless public reports, there was widespread knowledge ofhuman trafficking and forced labor in the Thai shrimp sector before and during thetime period in which Plaintiffs allege they suffered from human trafficking andforced labor and when Rubicon attempted to sell shrimp produced at Phatthana’s
factory to Walmart. The breadth and depth of awareness is demonstrated by the12diverse sources on this subject, including extensive reporting by human rights
groups, the ILO, and the U.S. government, as well as industry knowledge.3
1. Reports by Human Rights Organizations
Organizations, including amici, have been investigating and publicizing thepervasiveness of human trafficking and forced labor in the Thai shrimp sector foryears, both prior to and during the time frame plaintiffs allege they were subjected
to human trafficking and forced labor. These and other organizations have reportedon labor abuses in the Thai shrimp sector since the early-mid 2000s.
In 2003, amicus the Environmental Justice Foundation (“EJF”) published areport raising red flags about poor working conditions associated with the productionof shrimp globally, explaining: “Employment on shrimp farms and processing plants

3

Labor abuses in the Thai seafood industry have also been extensively documented
by credible news sources since at least 2007. See, e.g., Ed Cropley, Child Laborers
Toil in Thai Seafood Factories, Reuters (Apr. 24, 2007),https://www.reuters.com/article/us-thailand-childlabour/child-laborers-toil-in-thaiseafood-factories-idUSBKK26683020070424; In Thai Shrimp Industry, Child
Labor and Rights Abuses Persist, N.Y. Times (Apr. 25, 2007),https://www.nytimes.com/2007/04/25/business/worldbusiness/25ihtbaht.4.5438244.html; Paul Eckert, Shrimp Industry Blasted for Modern Day
Slavery, Reuters (Apr. 23, 2008), https://www.reuters.com/article/uk-asia-shrimpusa/shrimp-industry-blasted-for-modern-day-slavery-idUKN2342204020080423;
Patrick Winn, Is your Seafood Harvested by Slaves?, The World (Orig. pub. Nov.
9, 2009, ed. May 30, 2010), https://theworld.org/stories/2009-11-29/your-seafoodharvested-slaves; Alastair Leithead, Burmese ‘Slavery’ Fishermen are Traffickedand Abused, BBC (Apr. 25, 2011), https://www.bbc.com/news/world-asia-pacific12881982; Jason Motlagh, Bad Cocktail: Burmese Migrants and the Thai Shrimp
Industry, Pulitzer Center (Nov. 2, 2012), http://pulitzercenter.org/reporting/badcocktail-burmese-migrants-and-thai-shrimp-industry.
13

is frequently linked to very poor working conditions and exploitation of workers.”
Environmental Justice Foundation, Smash & Grab: Conflict, Corruption and Human
RightsAbusesintheShrimp

FarmingIndustry2(2003),

https://ejfoundation.org/resources/downloads/smash_and_grab.pdf. EJF reported
shifts of up to twenty hours a day and that in some shrimp processing factories,
women had to “stand all day and [. . .] ask permission to visit the toilet.” Id. at 22.
Additionally, EJF reported that in southern Thailand (where Songkhla is located),
migrant workers alleged they were locked in factories “unable to leave the premises
24 hours a day – where average wages are half the legal minimum and where strikeactivity has been met with violence and harassment.” Id. The report also presented
information on serious retaliatory violence against migrant workers: “in November
2001, two Burmese migrant workers (Nai Myo Win, a 37-year old man, and Mi Tin
Shwe, a 46- year old woman) were beaten to death in front of co-workers at the Wat
Jed shrimp processing factory, apparently having been accused of stealing prawns.”
Id.
In 2008, amicus the Solidarity Center published a report on abusive labor
conditions and the “true cost” of shrimp production in Thailand and Bangladesh.
Solidarity Center, The Degradation of Work: The True Cost of Shrimp (2008),
https://www.solidaritycenter.org/wpcontent/uploads/2014/12/pubs_True_Cost_of_Shrimp.pdf (“Solidarity Center 2008
14

Report”) (8-ER-1815-1854). See also Zain Verge, et al., Report ties U.S. retailers tosweatshop

shrimp,

CNN,

Apr.

24,

2008,

https://www.cnn.com/2008/US/04/24/shrimp.retailers/; Eckert, supra. The report
described the global demand for cheap shrimp as being met only by means of thebrutal exploitation of workers: “The costs are borne largely by workers in the shrimp
processing plants. They are integral to the profitability of companies along theshrimp supply chain, yet the world largely ignores their hardships.” Solidarity Center2008 Report at 7. The Solidarity Center included cases in which workers were forced
to live in deplorable conditions on site, where companies had control over workers’
movements and could keep them from leaving. Employers often charged workers
for room and board, equipment, and other items migrant workers need to survive.
See id. at 19, 22. In fact, Thai police had found that “managers demanded months of
unpaid work to meet debts to labor agents, or to pay for basic safety equipment,
housing, even food and medicine.” Id. at 20. One woman who was interviewed
reported peeling about 40 pounds of shrimp each day and that “she worked for threemonths without pay and even then received only 200 baht ($5.60) the fourth month,after 500 baht ($14.10) was deducted from her wages to pay her labor agent’s fee
and to cover meals, housing, and safety equipment.” Id. The Solidarity Center notedthat migrant workers in Thai seafood processing plants often did not have written
contracts for their jobs and that even when they did, employers generally ignored
15

contract terms, subjecting workers to abusive working and living conditions, andused threats, intimidation, and consistent dehumanization and degradation to keepthem working. Id. at 19, 27.
The report included a harrowing case study on conditions at the Ranya Paew
shrimp processing factory in Samut Sakhon, Thailand, which was raided by police
in 2006:
Ranya Paew was more like a fortress than a factory, with 16-foot-highbarbed-wire capped walls, an armed guard force, and an extensive
internal closed-circuit television system. Behind the walls, the police
found a scene that one report described as “little short of medieval,”with hundreds of workers literally trapped inside the compound, living
in squalid conditions, forced to work long hours, and subjected tophysical, emotional, and sexual intimidation and abuse. Workers whoangered the employer were often “put to shame” in front of others byhaving their hair cut or shaved in patches. Women and girls were
stripped naked and publicly beaten as a form of discipline.
Id. at 19-20. Workers at the Ranya Paew factory reported that “if they made a
mistake on the shrimp peeling line, asked for sick leave, or tried to escape, they could
expect to be beaten, sexually molested, or publicly tortured.” Id. at 20.
In 2010, Human Rights Watch published a report on abusive conditions that
migrant workers faced in Thailand, where the seafood processing industry and others
had become completely reliant on workforces dominated by migrants who “face anexistence straight out of a Thai proverb – escaping from the tiger, but then meetingthe crocodile – that is commonly used to describe fleeing from one difficult or deadly
situation into another that is equally bad, or sometimes worse. Migrant workers are16

effectively bonded to their employers [. . .].” Human Rights Watch, From the Tiger
to the Crocodile: Abuse of Migrant Workers in Thailand 1 (2010),
https://www.hrw.org/sites/default/files/reports/thailand0210webwcover_0.pdf(4-ER-573-688). The report identified “many serious abuses of migrants’ rights atwork,” including “intimidation and threats, especially in cases when workers seek
to organize and collectively assert their rights, and cases of retaliation when workers
filed grievances with Thai authorities against their employers.” Id. at 52, 53. Human
Rights Watch also noted the widespread practice of paycheck deductions that often
left workers in cycles of debt bondage: by charging workers for their food,accommodations, and equipment, employers “leav[e] migrants in situations where
they cannot repay the escalating debt.” Id. at 53. Additionally, the report found that“[c]orruption and criminal behavior by local police and other officials fuels a systemof impunity in which rights violations by the authorities and common crimes against
migrants frequently are either not investigated or fail to receive proper follow-up.”
Id. at 5.
In 2011, amicus Human Rights and Development Foundation wrote an open
letter to the Prime Minister of Thailand, asking him to take steps to eliminate humantrafficking and forced labor in the Thai fishing industry – including seafood
packaging and processing factories. See, e.g., Open Letter to Thai Prime Minister –Request to Eliminate Human Trafficking and Forced Labour in the Thai Fishing17

Industry, Human Rights and Development Foundation (Apr. 29, 2011),
http://hrdfoundation.org/?p=478.
This extensive reporting on labor abuses in the Thai shrimp industry before
and during the time period set out in Plaintiffs’ complaint indicate that Rubiconknew, recklessly disregarded, and/or should have known of the abuses occurring at
Phatthana’s factory by 2012.
2. Report by the International Labour Organization
In 2006, the ILO issued a significant report documenting human trafficking
and forced labor practices in Thailand, especially perpetrated against migrant
workers, who were “often prohibited from leaving their place of employment – they
are effectively imprisoned and indentured slaves.” International Labour
Organization, The Mekong Challenge – Underpaid, Overworked and Overlooked:
The

Realities

of

Young

Migrant

Workersin

Thailandxvii(2006),

https://www.ilo.org/wcmsp5/groups/public/---asia/---robangkok/documents/publication/wcms_bk_pb_67_en.pdf. The ILO report was
based on interviews with migrant workers in Thailand, and it documented labor
exploitation in several sectors, including in the seafood processing sector. Seafood
processing workers reported numerous internationally recognized indicators offorced labor to the ILO, including employers retaining their identity documents andrequiring them to live on site, verbal abuse during work, excessively long working
18hours and mandatory overtime, and payment of less than the minimum wage. Id. at
34, 83-86. In comparing exploitative conditions across several industries inThailand, the report found that “[f]ish processing workers [. . .] suffered from worse
working conditions, more confinement and constraints related to employer coercion
than workers in agriculture or domestic work,” and that workers in seafood
processing generally earned only 60 percent of the minimum wage. Id. at 32, 48.
The ILO report highlighted that debt bondage, a key indicator of forced labor,
was common in industries including seafood processing. Debt from early-incurred
recruitment fees and subsequent deductions by employers often followed workers
for months or even years, bonding them to work, no matter how deplorable theconditions. Id. at 83-86. The report also noted that many migrant workers in the Thai
seafood processing sector were undocumented and that even migrant workers who
were legally present in Thailand were sometimes forced to remain working inseafood processing due to documentation vulnerabilities – employers commonly
withheld workers’ identity documents, such as passports, to prevent them fromleaving. Id. at 38. This practice is consistent with Plaintiffs’ testimony that they
asked their employers multiple times to return their identity documents, to no avail.
2-ER-181; 3-ER-538 at 21. The ILO quoted a seafood processing employer who
explained: “We’d better keep (the original copy). If it is with them (workers), theywould change jobs. They would think they were the same as Thais, and could go
19

anywhere independently.” Id. at 38. The ILO’s report is evidence of widespreadknowledge on human rights abuses, showing that Rubicon knew, recklessly
disregarded, and/or should have known of the abuses occurring at Phatthana’s
factory.
3. Reports by the U.S. Government
The U.S. government has also repeatedly documented widespread abuses in
the Thai shrimp industry. Since passing the Trafficking Victims Protection Act of
2000, Congress has required the Department of State to compile an annual list
classifying countries based upon their compliance with national and international
standards, called the Trafficking in Persons Report (“TIP Report”). The TIP Reportdesignates three tiers: Tier 1 countries where governments “fully comply” withapplicable minimum standards for eliminating human trafficking; Tier 2 countries
where governments “do not yet fully comply with such standards but are making
significant efforts to bring themselves into compliance;” and Tier 3 countries “whose
governments do not fully comply with such standards and are not making significant
efforts to bring themselves into compliance.” [Tier 3]. Div. A., Pub. L. No. 106-386,§ 110(b)(1), 114 Stat. 1464.
The TVPRA later established a “Special Watch List,” identifying countries inwhich trafficking is of particular concern because “the absolute number of victimsof severe forms of trafficking is very significant or is significantly increasing,”
20and/or “there is a failure to provide evidence of increasing efforts to combat severe
forms of trafficking in persons from the previous year [.]” Pub. L. No. 108-193, §6(e)(3), 117 Stat. 2875 (2003).
In the 2001 TIP Report, the first year the report was issued, Thailand was
designated as Tier 2 and identified as “a destination, source, and transit country for
trafficked persons,” with many victims trafficked from Cambodia. U.S. Dep’t ofState, Trafficking in Persons Report: IV. Country Narratives – Tier 2 (2001),
https://2009-2017.state.gov/j/tip/rls/tiprpt/2001/3928.htm. The report indicated thatthe weak rule of law, corruption, and insufficient training of law enforcement on
combating human trafficking exacerbated levels of these abuses in Thailand. Id. In
the 2004 TIP Report, the first year that the “Special Watch List” was implemented,
Thailand was downgraded to the Tier 2 Watch List and identified as a source, transit,
and destination country for persons trafficked for forced labor. U.S. Dep’t of State,
TraffickinginPersons

Report39,

109(2004),

https://2009-2017.state.gov/documents/organization/34158.pdf.
Thailand continued to be ranked Tier 2 or Tier 2 Watch List every year from2004 to 2012 to the present.4 See U.S. Dep’t of State, Trafficking in Persons Report,

4

In fact, Thailand has been designated a Tier 2, Tier 2 Watch List, or Tier 3
country every year dating back to the first TIP Report released through the present.
21

https://www.state.gov/trafficking-in-persons-report/ (website hosting twenty years
of TIP reports).
The 2010, 2011, and 2012 TIP reports each designated Thailand as a Tier 2
Watch List state. All three of those reports acknowledged that most victims in
Thailand were trafficked from neighboring countries. U.S. Dep’t of State,
TraffickinginPersons

Report2010(2010),

https://2009-2017.state.gov/documents/organization/142979.pdf; U.S. Dep’t of State, Trafficking
in Persons Report 2011: Country Narratives, Countries N Through Z (2011),
https://2009-2017.state.gov/documents/organization/164458.pdf; U.S. Dep’t ofState, Trafficking in Persons Report 2012: Country Narratives T Through Z andSpecialCase(2012)(“2012

TIP

Report”),

https://2009-2017.state.gov/documents/organization/192598.pdf. The 2012 report stated that “[a]significant portion of labor trafficking victims within Thailand are exploited incommercial fishing [and] fishing-related industries, [. . .]” 2012 TIP Report, supra
at 338. In fact, the report noted that the majority of workers in the seafood industry
experienced conditions of forced labor and that foreign workers in Thailand were at
the greatest risk of being trafficked. Undocumented workers were “particularly
vulnerable to trafficking, due to their economic status, education level, language
barriers, and lack of knowledge of Thai law.” Id. The 2012 report also noted thatwidespread corruption of police and other public authorities and weak rule of law
22

had facilitated human trafficking and forced labor of migrants in the Thai seafood
processing sector: “[d]irect involvement in and facilitation of human trafficking by
law enforcement officials reportedly remained a significant problem in Thailand.”Id. at 339.
The U.S. Department of Labor’s periodic reports on goods produced by forced
or child labor around the world, which the TVPRA requires the Bureau ofInternational Labor Affairs to publish each year, have also pointed to the prevalenceof forced labor in the Thai seafood industry for years, including before and during
the time frame in which Plaintiffs allege they were subject to such abuse. See Pub.
L. No. 109-164 § 105(b)(2), 119 Stat. 3558 (2005). Thai shrimp has consistently
appeared on the forced labor list since it was first released in 2009. See e.g. U.S.
Dep’t of Labor (“DOL”), List of Goods Produced by Child Labor or Forced Labor
20(2009),

https://www.dol.gov/sites/dolgov/files/ILAB/reports/TVPRA%202009_WEB_.pdf; U.S. DOL, List of Goods Produced by Child Labor or Forced Labor 16 (2010),
https://www.dol.gov/sites/dolgov/files/ILAB/reports/2010TVPRA.pdf; U.S. DOL,
List of Goods Produced by Child Labor or Forced Labor 14 (2011),
https://www.dol.gov/sites/dolgov/files/ILAB/reports/2011TVPRA.pdf; U.S. DOL,
List of Goods Produced by Child Labor or Forced Labor 24 (2012),
https://www.dol.gov/sites/dolgov/files/ILAB/reports/2012TVPRA.pdf. These U.S.
23

government reports are yet another indicator of widespread knowledge of abuses in
the Thai shrimp industry during the time in question, indicating that Rubicon knew,
recklessly disregarded, and/or should have known of the abuses occurring at its
supplier’s factory in Thailand at the time it attempted to benefit from the sale ofshrimp produced there.
4. Acknowledgment by Industry
In fact, the U.S. shrimp industry was aware of reports and media coverage offorced labor in the Thai shrimp industry before and during the time frame inquestion. The long-standing President of the Louisiana Shrimp Association testified:“[. . .] I have seen report after report about human trafficking by the Thai shrimp
industry. With all of the information out there about human trafficking and forcedlabor in Thailand, including the 2009 placement of Thai shrimp on the Departmentof Labor’s list of goods produced with forced labor, I cannot believe that anyone in
the shrimp industry could have been unaware of these problems by 2010.” 6-ER1392-1397 at para. 10.
Amicus the Southern Shrimp Alliance (“SSA”), a trade association of Gulf
Coast shrimpers, has known about forced labor in the Thai shrimp industry since
before 2008, when it responded to a Department of Labor request for evidence andcomments on labor abuse in the Thai shrimp industry. 6-ER-1398-1405 at para. 17.
The SSA continued to monitor and advocate around this issue and even published24

an article on forced labor in the Thai shrimp industry in 2012. Southern Shrimp
Alliance, Know Your Supplier Continued: Eliminating Child and Forced Labor fromthe Shrimp Supply Chain, (Sept. 28, 2012), https://shrimpalliance.com/news-alertknow-your-supplier-continued-eliminating-child-and-forced-labor-from-theshrimp-supply-chain/. Actual knowledge by the U.S. shrimp industry of the abuses
occurring in the processing of shrimp in Thai factories is another indicator that
Rubicon knew, recklessly disregarded, and/or should have known of the ongoingabuses at Phatthana’s processing facility when it sought to profit from the sale ofproducts made there.
II.

Accountability for Those Who Attempt to Reap Benefits from Forced
Labor is Integral to the U.S. Government’s Comprehensive Strategy
to Combat Human Trafficking and Forced Labor Around the World.

A. Attempt Liability Under the TVPRA is and has been Essential to the U.S.
Government’s Comprehensive Strategy to Combat Forced Labor Around
the World.
Forced labor is a feature, not a bug, of global supply chains, entrenched assuch by its corporate beneficiaries. The United States leads the fight to eliminate
human trafficking globally, and Congress has established a comprehensive strategy
to combat human trafficking and forced labor that includes initiatives to target direct
perpetrators and those who benefit and attempt to benefit from these practices. This
is indisputable following the passage of the Abolish Trafficking Reauthorization Act(“ATRA”), which clarified that Congress intends for those who try but do not25

succeed in reaping benefits from forced labor to be held accountable under the
TVPRA. See Pub. L. No. 117-347, § 102, 136 Stat. 6199 (2023).
This is also in line with the U.S. government’s broader anti-trafficking
framework that includes these interlocking parts: civil liability for offenders, federal
criminal enforcement, and CBP detention orders on the importation of goods madewith forced labor.
For example, Section 307 of the Tariff Act of 1930 is a powerful tool to fightforced labor abroad. It permits CBP to issue detention orders (Withhold Release
Orders, or “WROs”) to prevent foreign merchandise produced in whole or in partusing forced labor from being imported into the United States. 19 U.S.C. § 1307. In
FY2021 alone, CBP detained 1,469 shipments of goods valued at nearly $500
million pursuant to Section 307 of the Tariff Act; between October 1, 2022 and June30, 2023, CBP stopped 3,455 shipments of goods tainted with forced labor fromentering the United States. CBP, CBP Releases Operational Fiscal Year 2021
Statistics

(Jan.

3,

2022),

https://www.cbp.gov/newsroom/national-media-

release/cbp-releases-operational-fiscal-year-2021-statistics; CBP, Forced Labor,
https://www.cbp.gov/trade/forced-labor (last mod. July 25, 2023).
CBP issues WROs against goods from a range of industries and targets someof the worst offenders in rooting out forced labor in global supply chains. For
example, because of reasonable suspicions of forced labor, CBP has issued WROs
26

on cotton produced both in the Xinjiang Uyghur Autonomous Region of the People’s
Republic of China (“Uyghur Region”) and Turkmenistan; sugar and sugar products
produced by Central Romana in the Dominican Republic; seafood from numerous
Taiwanese flagged fishing vessels; and all tobacco from Malawi. CBP, Withhold
ReleaseOrdersandFindings

List

(last

mod.

July

26,

2023),

https://www.cbp.gov/trade/forced-labor/withhold-release-orders-and-findings.
CBP is conscientious about fighting forced labor and stopping goods
produced with forced labor from reaching the U.S. market. After issuing a WRO
against raw sugar and sugar-based products from the notorious Dominican company
Central Romana Corporation Limited, CBP Acting Commissioner Troy Miller said:“This [WRO] demonstrates CBP’s commitment to protect human rights
and international labor standards and to promote a fair and competitive
global marketplace […] The agency will continue to set a high global
standard by aggressively investigating allegations of forced labor in
U.S. supply chains and keeping tainted merchandise out of the UnitedStates.”
CBP, CBP Issues Detention Order on Central Romana Corporation Limited (Nov.
23,2022),

https://www.cbp.gov/newsroom/national-media-release/cbp-issues-

withhold-release-order-central-romana-corporation.
This Circuit’s reading eliminating attempt liability under the TVPRA would
mean that forced labor victims who produced goods that CBP blocks from entry into
the U.S. market would be precluded from civil recovery, as the U.S. government’s
determination not to admit the goods would prevent the defendant corporation from27

actually profiting. This carve-out for “attempt” would have far-reaching anddamaging implications. Ironically, it would protect some of the worst actors: those
who have come to CBP’s attention because of their egregious conduct. It would
effectively repeal § 1595 of the TVPRA, which Congress passed to provide victims
of forced labor a civil remedy, see 18 U.S.C. § 1595, with respect to any victims
forced to produce goods or merchandise that CBP prohibits from entering the U.S.
market. When this Court erroneously read attempt liability out of the statute,
Congress quickly acted to make its intentions clear with the passage of the ATRA,
so that these victims and others with pending cases would not be stripped of a
remedy.
B. Failure to Recognize Attempt Liability under the TVPRA Helps Perpetuate
Forced Labor in Global Supply Chains.
In amending the TVPRA to expand liability to those who knowingly benefit
from a violation of the statute, Congress recognized that forced labor and humantrafficking represent the “dark side of globalization.” Brief of Members of Congress
Senator Blumenthal, et al., as Amici Curiae Supporting Respondents, Nestlé USA,
Inc. v. Doe I, 141 S. Ct. 1931 (2021) at 9 (quoting H.R. Rep. No. 101-430, Pt. 1 at
33 (2007)). Moreover, it recognized that the law must not “provide a liability shield
between the direct oppressor and the economic beneficiary of the slave labor.”
International Trafficking in Women and Children: Hearing Before the Subcomm. on

28

Near E. & S. Asian Aff. of the S. Comm. on Foreign Rel., 106th Cong. 78 (2000)(statement of Hon. William R. Yeomans).
Accountability for companies that attempt to benefit from the sale of goods
made with forced labor is essential to eliminating human trafficking in global supply
chains because attempts are part of what creates the market for goods made withforced labor. Companies continually try to sell goods made with forced labor andare often not deterred by an unsuccessful attempt, such as those caused by a retailer’s
rejection or the implementation of a WRO. Even at that point, companies are
incentivized by the balance of risk and potential reward to continue to market theillicitly produced goods. This, in turn, disadvantages ethical businesses with fairlabor practices, as unscrupulous businesses using forced labor inject low-priced
goods into the market and gain a competitive commercial advantage. See Rodriguez
v. Pan Am. Health Org., 29 F.4th 706, 716 (D.C. Cir. 2022).
Without any meaningful consequences, companies will continue to attempt,
and to conspire, to benefit financially from the sale of goods made with forced labor.
When the profits to be made are so high and the risk of being held accountable solow, the cost of attempting to benefit from forced labor is worth it for thesecompanies. Put plainly, the ability to hold intermediary companies accountable
under the TVPRA, when they attempt to benefit from the sale of goods made withforced labor, is essential to fighting forced labor in global supply chains. Requiring29

as a prerequisite for victims’ civil recovery that companies actually profit from theabuses would insulate businesses that perpetuate human trafficking by attempting tobenefit from it.
C. Attempt Liability is Critical for Victims’ Access to Justice.
Remedy is a critical component of ensuring that victims have avenues toaccess justice, and it is core to the legislative purpose of the TVPRA. Forced labor
has a devastating impact on victims, who suffer a variety of long-lasting physical,
psychological, social, and financial difficulties after they escape from theirtrafficking situation.
Since 2000, Congress has passed a series of amendments to the TVPRA tobetter protect victims. For example, the 2003 reauthorization provided for a civil
remedy in § 1595 so that victims can directly sue their traffickers; and the 2008
reauthorization amended § 1595 to extend civil liability to those who benefit from aviolation of the TVPRA and added § 1596 to codify extraterritorial jurisdiction. See
18 U.S.C. § 1595-1596.
Most recently, in response to this Court’s failure to recognize attempt liability
under the TVPRA, Congress passed the ATRA, clarifying that those who “attempt
or conspire to benefit” from ventures where human trafficking occurs are – and havealways been – just as much targets for accountability as those who actually benefit.
See Pub. L. No. 117-347, § 102, 136 Stat. 6199 (2023).
30

Notably, even where a company like Rubicon attempts to benefit financiallyfrom forced labor but fails to achieve its objective because the goods are seized or
rejected, the company has already caused real harm to victims. Rubicon was
involved in a long-term commercial venture with a supplier that it knew relied onforced labor, recklessly disregarded information of such reliance, and/or should have
known of such reliance, and it procured products created by forced labor from that
supplier. Failure to recognize attempt liability deprives the victims of this abuse of
any remedy – simply because external forces were successful in blocking the sale of
the goods created by means of their forced labor.
CONCLUSION
For the foregoing reasons, this Court should reverse the District Court’s denialof Plaintiffs’ request for relief from dismissal of claims against Defendant Rubicon
and allow these victims of forced labor and human trafficking to have their day incourt.
Dated: August 21, 2023

Respectfully submitted,/s/ John Burton_______________________
John Burton
THE LAW OFFICES OF JOHN
BURTON
Avery Kelly
Alicia Brudney
CORPORATE ACCOUNTABILITY
LAB
31

Allison Gill
Johanna Lee
GLOBAL LABOR JUSTICEINTERNATIONAL LABORRIGHTS FORUM
Attorneys for Amici Curiae

32

CERTIFICATE OF COMPLIANCE
I certify that:
This brief complies with the length limitations of Fed. R. App. P. 29(a)(5)and Ninth Circuit Rule 32-1 because this brief contains 6,356 words, excluding theparts of the brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because thisbrief has been prepared using Microsoft Word in 14-point Times New Roman
font.
Dated: August 21, 2023

Respectfully submitted,/s/ John Burton_______________________
John Burton
Avery Kelly
Alicia Brudney
Allison Gill
Johanna Lee
Attorneys for Amici Curiae

33

CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2023, I electronically filed the foregoingwith the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. Participants in the case who are
registered CM/ECF users will be served by the appellate CM/ECF system.

Respectfully submitted,/s/ John Burton_______________________
John Burton
Avery Kelly
Alicia Brudney
Allison Gill
Johanna Lee
Attorneys for Amici Curiae
Dated: August 21, 2023

34

STATEMENT OF RELATED CASES
Counsel for amici is unaware of any related cases, as defined in Ninth
Circuit Rule 28-2.6.
Respectfully submitted,/s/ John Burton_______________________
John Burton
Avery Kelly
Alicia Brudney
Allison Gill
Johanna Lee
Attorneys for Amici Curiae

Dated: August 21, 2023

35