On August 21, 2023, attorneys at Corporate Accountability Lab (CAL), Global Labor Justice-International Labor Rights Forum (GLJ-ILRF), and the Law Offices of John Burton filed an amicus curiae brief with the Ninth Circuit Court of Appeals on behalf of more than twenty human rights organizations and U.S. shrimp producers supporting the plaintiffs in Ratha v. Rubicon Resources, LLC.
The Ratha plaintiffs were trafficked from Cambodia and suffered egregious abuses – including forced labor and degrading living conditions – at a facility in Thailand processing shrimp for export to the United States and other countries. Unfortunately, these victim-survivors represent millions of people around the world who are subjected to forced labor in global supply chains producing the food we eat, clothes we wear, and electronics we use every day. The Ratha plaintiffs’ employer confiscated and withheld their identity documents, prohibiting them from leaving. They worked excessively long hours for pay so low they were constantly hungry and even resorted to scavenging for scraps of dead fish. They saw their coworkers beaten, sometimes into unconsciousness, and were provided with bug-infested housing where they didn’t have enough water to drink or bathe. Conditions like these are completely unacceptable, but they are also features of many modern supply chains.
The Ratha plaintiffs’ lawsuit targets Rubicon Resources, LLC (Rubicon), a company that attempted to make money selling shrimp produced with this forced labor. Accountability for Rubicon is critically important because it directly addresses one of the root causes of forced labor itself: market demand.
This post briefly describes the plaintiffs’ case against Rubicon and the arguments that human rights organizations and shrimp producers in the United States made to the Ninth Circuit in their amicus brief.
The Case Against Rubicon
The Ratha plaintiffs sued Rubicon under the Trafficking Victims Protection Reauthorization Act (TVPRA), a U.S. federal law that allows victims of human trafficking and forced labor to seek civil damages from both those directly responsible for the harm and from others who participated in a “venture” in which the trafficking or forced labor took place. In this case, the plaintiffs allege that they were forced to work at a shrimp processing facility owned by the Thai company Phatthana Seafood Co., Ltd. (Phatthana). They further allege that Rubicon participated in a venture with Phatthana that relied on forced labor to source, and, in turn, sell shrimp produced with forced labor to Walmart. In fact, it is undisputed that in 2011, Rubicon ordered shrimp from Phatthana and attempted to sell that shrimp to Walmart in 2012. Walmart, on notice that the shrimp from Phatthana’s Thai facility was likely produced with forced labor, refused to accept the product from Rubicon. But forced labor had still occurred, and Rubicon had – regardless of whether its sale to Walmart was successful – contributed to a market rife with forced labor by purchasing the shrimp and attempting to profit from it.
Since filing this case in 2016, the Ratha plaintiffs have faced numerous obstacles in their pursuit of justice against those allegedly responsible for the abuses they suffered. In 2022, the Ninth Circuit affirmed dismissal of the plaintiffs’ case against all four companies they had sued – three Thai companies, including one registered to do business in California, and Rubicon, a U.S. company. (CAL signed on to a previous amicus brief to the Ninth Circuit at that stage, aiming to assist the court in its analysis of whether these companies could be held liable for attempting to profit from a venture where forced labor occurred.)
The Ninth Circuit affirmed dismissal of the claims against two of the Thai companies for lack of jurisdiction. It affirmed dismissal against the Thai company that was registered to do business in California based on its conclusion that there was insufficient evidence to support a reasonable inference that the company “knew or should have known” about the abuses being committed at the Phatthana factory. Finally, the plaintiffs’ claims against Rubicon, the U.S. company, were dismissed because the Court decided that the civil liability provisions of the TVPRA could only be applied to defendants who actually benefited from participation in a venture where forced labor took place, and that in this case, Walmart’s refusal to buy forced labor-tainted shrimp let Rubicon, who merely tried to benefit, off the hook.
This reading of the TVPRA was out of sync with the U.S. government’s broader anti-trafficking framework, in which liability for those who attempt or conspire to benefit from forced labor is key. Following the Ninth Circuit’s decision, Congress passed a “technical and clarifying” amendment to the TVPRA, expressly acknowledging that attempt liability is cognizable in civil actions under the TVPRA. After Congress acted, a number of the Ratha plaintiffs moved to reopen judgment against Rubicon, since the Ninth Circuit had dismissed their claims against this company only because it had attempted to, but not succeeded in, financially benefiting from the sale of goods tainted with forced labor. The district court rejected the plaintiffs’ motion to reopen judgment. Thus the plaintiffs have once again found themselves before the Ninth Circuit, where they are seeking reversal of the lower court’s decision not to reopen judgment against Rubicon.
Amicus Brief by Human Rights Organizations and U.S. Shrimp Producers
CAL and partners submitted the amicus brief this week on behalf of human rights organizations including the Solidarity Center, Greenpeace USA, and Amnesty International and U.S. domestic shrimp producers including the Southern Shrimp Alliance. The brief aims to assist the Ninth Circuit in its analysis of whether Rubicon knew or should have known about the forced labor conditions occurring at the Phatthana facility. It also underscores the importance of attempt liability in the broader anti-forced labor framework that Congress has enacted, showing that this form of accountability under the TVPRA is, and has always been, essential to the fight against forced labor.
Rubicon knew or should have known about the forced labor
The amicus brief demonstrates that Rubicon “knew, recklessly disregarded, and/or should have known” that forced labor was occurring at Phatthana’s shrimp processing facility – the facility in which plaintiffs were working under conditions of forced labor, when Rubicon attempted to sell shrimp produced at that facility to Walmart in 2012.
First, amici point to documentation that multiple actors in Rubicon’s supply chain – including Phatthana and Walmart – knew about the ongoing abuses at the Phatthana factory in question in the months before Rubicon tried to sell the shrimp to Walmart. Additionally, other players in the U.S. shrimp industry, including representatives of the Southern Shrimp Alliance and Louisiana Shrimp Association, have testified that shrimp imported from Thailand at the time was notorious for undercutting the domestic shrimp market with shrimp produced cheaply and under egregious conditions, including forced labor. Additionally, amici point to a large number of detailed reports by human rights organizations, the U.S. government, the International Labour Organization, and the media about the pervasiveness of human trafficking and forced labor in the Thai shrimp industry at the time the plaintiffs allege they were harmed and at the time that Rubicon procured, and then tried to sell, shrimp produced at Phatthana’s facility.
Attempt liability is part and parcel of the U.S. government’s overarching strategy to combat forced labor
Amici also provide an analysis of the U.S. government’s multi-pronged framework to address forced labor globally, which includes and relies on attempt liability under the TVPRA. Amici demonstrate how attempt liability is inextricable from this broader framework, how failure to recognize attempt liability under the TVPRA helps perpetuate forced labor in global supply chains, and that attempt liability is critical for victims’ access to justice.
A particularly clear example demonstrating these points is the interaction between civil liability under the TVPRA and Section 307 of the Tariff Act of 1930. Under the latter, Customs and Border Protection (CBP) can issue withhold release orders (WROs) against goods CBP reasonably suspects to have been made with forced labor abroad, prohibiting those goods from entering the U.S. market. CBP can and does issue WROs against products from particular companies and even from entire regions and countries, based on a reasonable suspicion of forced labor. WROs stop companies from actually benefiting from that forced labor by prohibiting their goods from entering and being sold within the U.S. market. Without attempt liability under the civil provision of the TVPRA, victims of forced labor would not be able to seek damages from companies whose products CBP has blocked from entering the the U.S. market. Ironically, this would result in exempting from civil liability some of the worst actors: those that CBP has identified as relying on forced labor and who drive the market for forced labor produced goods.
It is critically important that the Ratha plaintiffs get their day in court. As this brief shows, the Ninth Circuit has every reason to order the reopening of their case.
Access the amicus brief here.
Avery Kelly is a staff attorney at Corporate Accountability Lab.
