February 4, 2011

Child Labor in Liberia: Clinic Files Amicus Curiae Brief In Firestone Case

Posted by Susan Farbstein

The International Human Rights Clinic filed another amicus curiae brief in a major corporate Alien Tort Statute (ATS) case today.  The case, Boimah Flomo v. Firestone Natural Rubber Co., brings claims for child labor on Firestone’s rubber plantation in Liberia, alleging that children as young as five were forced to work long hours; to use dangerous tools and hazardous chemicals that often caused serious injury; and that many were unable to pursue their education as a result of this forced labor.

The Clinic’s amicus brief, filed with the Seventh Circuit on behalf of professors of legal history, argues that the history and purpose of the ATS support what the text explicitly provides: jurisdiction extends to all causes in which an alien sues for a tort in violation of international law, including cases against corporate defendants.  Two other amicus briefs in support of the appeal were filed on behalf of Nuremberg scholars and international law scholars.

As usual, our brief was a team effort.  Tyler Giannini and I worked with clinical students Poppy Alexander, JD ’12, Michael Gibaldi, JD ’12, Ryan Mitchell, JD ’12, Lina Peng, JD ’12, and Marissa Vahlsing, JD ’11, who all contributed to the process.

Back in October, the district court “Kiobeled” the case, granting Firestone’s motion for summary judgment.  By “Kiobeled,” we mean that the court relied on the rationale of the Second Circuit’s opinion in Kiobel v. Royal Dutch Shell Petroleum Co., handed down last September.  Yes, we’re seeing the case name used as a verb.  As Tyler observed, it’s exceedingly rare for any noun to turn into a verb (think “googled”) and reinforces the importance of the decision.  Take this as just one more sign of the profound implications of this case for survivors of corporate abuse who seek redress in U.S. courts.  After 15 years of litigation against corporate actors under the ATS—in which no federal court had limited who can be sued under the statute—the Second Circuit departed from this jurisprudence and ruled that corporations could not be held liable under the ATS.

Until Kiobel, the Second Circuit had permitted a long line of cases to proceed against corporations for egregious human rights abuses including torture, extrajudicial killing, and forced labor.  The Firestone decision, which adopted the Second Circuit’s reasoning, shows how widely the repercussions of Kiobel—in which a petition for rehearing is still pending—are already being felt.

Let’s hope that the Seventh Circuit correctly recognizes that the drafters of the ATS placed no limit on who was a proper defendant under the statute.  Survivors of corporate misconduct should not be deprived of this valuable tool for seeking justice.