CAL and 18 other human rights organizations recently filed an amicus brief with the United States Ninth Circuit Court of Appeals in support of the plaintiffs in Keo Ratha, et al. v. Phattana Seafoods, Co. Ltd. et al. (Ratha). The Ratha plaintiffs, Cambodian villagers living in poverty, allege that several US and Thai companies violated US and international law by engaging in a joint venture that relied on trafficked and forced labor of plaintiffs and others to produce shrimp and seafood for export to the US market.
The amicus brief, written by Global Labor Justice-International Labor Rights Forum, supports the plaintiffs’ petition for rehearing en banc of a Ninth Circuit decision that would preclude them from seeking redress against the defendants and set dangerous precedent for other victims of trafficking and forced labor seeking justice in US courts.
This post provides an overview of the case and discusses the arguments made in the amicus brief and the importance of review before the Ninth Circuit.
The case
In June 2016, Keo Ratha and six other villagers from rural Cambodia filed suit in US federal court against Thai company Phatthana Seafood Co. Ltd., US company Rubicon Resources, LLC., and other related enterprises. The villagers claim that they were lured and trafficked from rural Cambodia by recruiters working for the defendants and taken to Thailand where they were forced to work in factories producing shrimp and seafood.
The recruiters allegedly promised the villagers good jobs with good pay and complimentary housing in Thailand. The villagers then paid exorbitant amounts to obtain passports and provide the recruitment fees to secure what they thought was decent work. In fact, each paid more than the average annual per capita income in Cambodia and went into debt against their future wages for what they could not afford to cover up front. Many sold property and took out loans, some backed by their families’ land.
According to the complaint, once the villagers arrived at the factories in Thailand (after harrowing journeys in which some were hidden under a tarp in the back of a truck and beaten if they moved), their passports were confiscated and they were not permitted to return home. The villagers were paid far less than promised and faced routine mandatory deductions for tools, supplies, housing, and transportation (whether or not they took the transportation). The plaintiffs’ remaining pay was below Thailand’s minimum wage at the time. This made it extremely difficult if not impossible to pay back the debts the villagers had incurred to secure the jobs, which they were required to do if they wanted to leave.
Factory life was brutal. Despite working long hours, the plaintiffs claim they did not make enough to afford food, leaving some to scavenge for washed up fish and snails on the beach. Two plaintiffs also report working with chlorine without proper protective gear, which has had long lasting effects on their health. The villagers also claim they were charged to live in unsanitary and overcrowded conditions. Several report sleeping on a concrete floor, that their rooms filled with rainwater and were crawling with insects, that they had no clean drinking water, and that they often lacked water to shower. Plaintiffs’ complaints and requests to return home resulted in beatings and threats of being reported to police for lacking documentation.
In their complaint, the plaintiffs argue that the defendant companies, directly and through their agents, knowingly subjected them and others to trafficking and forced labor, in violation of the Trafficking Victims Protection Reauthorization Act (TVPRA). They argue that the defendants took part in a joint venture to produce shrimp and seafood for the US market in which the defendants relied on and aimed to benefit from trafficked and forced labor.
In December 2017, a year and a half after the plaintiffs filed their complaint, the district court granted summary judgment for the defendants. The Ninth Circuit Court of Appeals affirmed the decision against the plaintiffs in February 2022, finding, among other things, that the defendants could not be held liable for attempting to benefit from the plaintiffs’ trafficked and forced labor.
The court’s reading of the TVPRA effectively eliminates so-called “attempt liability,” which refers to the ability to hold defendants liable for attempting to benefit from forced labor regardless of whether they were successful in that regard. This kind of liability is a key part of the comprehensive TVPRA framework aimed at eliminating human trafficking. The plaintiffs petitioned for a rehearing en banc for reconsideration of that issue along with other issues that directly impact the ability of these and other plaintiffs to recover damages from actors who have sought to benefit from labor trafficking. The dangerous implications of the Ninth Circuit’s decision are the focus of the amicus brief CAL joined supporting the call for rehearing.
The amicus brief
An estimated 25 million people are trapped in conditions of forced labor around the world. The US Congress has responded powerfully by providing several statutory tools designed to disincentivize labor trafficking and prevent goods produced by forced labor from entering the country. This comprehensive anti-trafficking framework includes the TVPRA (the statute named above that provides criminal and civil deterrents for trafficking) as well as Section 307 of the Tariff Act of 1930 and related laws (like the Uyghur Forced Labor Prevention Act (UFLPA) and Countering America’s Adversaries through Sanctions Act (CAATSA)) that allow US customs officials to prevent goods made with forced labor from entering the United States.
As the amicus brief CAL joined explains, the Ninth Circuit’s reading of the TVPRA to exclude “attempt liability” is out of sync with the rest of the US legal framework that is designed to counteract forced labor and undermines the government’s comprehensive strategy to eliminate human trafficking. Victims of forced labor should be able to hold companies accountable not only where they attempt and succeed in benefitting from the victims’ forced labor, but also where companies attempt and fail to benefit. Such failure could be for a variety of reasons, including company incompetence, actions by third parties, or denial of US customs entry of products made with forced labor.
This ruling puts the TVPRA at odds with Section 307, the UFLPA, and CAATSA, which, when fully enforced, prevent the importation of goods produced with forced labor and thereby negate companies’ attempts to benefit from these practices. The ruling would mean that if customs officials were to stop a product from entering the United States based on its production with forced labor, the victims of that labor practice could not recover damages under the TVPRA. This is certainly not what Congress intended when it envisioned the statute to work in tandem with statutory tools for stopping the importation of goods made with forced labor. It would effectively grant impunity under the TVPRA to some of the worst offenders– those whose products come to the attention of US customs officials.
In Ratha, Walmart refused to accept the goods that the defendants sought to sell it. Had Walmart not rejected the goods, the defendants would have proceeded with the sale and benefited financially from the victims’ forced labor. Companies should not be able to get away with using human trafficking and forced labor merely because they have failed for some reason to profit from it.
EarthRights International and the Center for Justice and Accountability also submitted amicus briefs in this case on the dangerous implications of the Ninth’s Circuit’s decision related to personal jurisdiction. EarthRights International’s brief, written on behalf of Civil Procedure law professors, and the Center for Justice and Accountability’s brief are available here and here.
Why this case and these arguments matter
This case is significant because the Ratha plaintiffs suffered from egregious abuse and deserve the opportunity to seek justice against the companies that exploited them. Their case represents but a small fraction of the many lives that have been harmed by trafficking in the Thai shrimp and seafood industry, an industry that is tightly integrated with international markets.
It is crucial for the Ninth Circuit to revisit its reading of “attempt liability” under the TVPRA because companies’ operation of ventures that attempt to benefit from forced labor should come at a cost, and it was never intended under US law to be treated with impunity.
Avery Kelly is a Staff Attorney at Corporate Accountability Lab.
