FLOMO v. FIRESTONE NATURAL RUBBER CO. LLC (July 11, 2011)
A subsidiary of the Firestone Natural Rubber Company operates a large rubber plantation in Liberia. The company employs many local laborers. The jobs pay well but are sometimes hazardous. Because of the relatively high pay and strict daily production quotas, some of the employees hire their own helpers. Some of the employees even bring their own children. A number of those children brought suit against Firestone under the Alien Tort Statute. Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to Firestone. The plaintiffs appeal.
In their opinion, Judges Bauer, Posner, and Manion affirmed. The Alien Tort Statute allows an alien to bring a claim in the United States federal courts for a tort "committed in violation of the law of nations." The two issues presented by the appeal are whether a corporate entity, rather than a natural person, can be liable under the statute and, if so, whether the plaintiffs have presented enough evidence of such a violation to get past summary judgment. The law of nations, or customary international law, derives from the customs and usages of civilized countries. When the statute was first enacted in 1789, it applied principally to piracy, ambassador mistreatment, and violation of safe conduct. But the statute was drafted and enacted to include additional international laws, as they developed. With respect to corporate liability, the Supreme Court has not spoken and most courts of appeals have assumed or held that they can be liable. The Second Circuit concluded that a corporation could not be liable under the Alien Tort Statute. It reasoned that corporate liability could not be customary international law since corporations have never been prosecuted under international law. The Court criticized the Second Circuit precedent because of its incorrect factual premise. It noted that German corporations that aided the Nazi effort were dissolved after World War II. The Court then considered whether there was a compelling reason for the few corporate prosecutions -- and found none. The Court ultimately distinguished between the substance of international law and its enforcement. The substantive obligations are imposed by international law but each nation must decide how to enforce those obligations. In the United States, it is common for corporations to be liable for the torts of its employees. That same principle applies to the United States enforcement of substantive violations of customary international law. The Court declined to define the outer reaches of corporate liability since it was not necessary for its decision. Having found potential corporate liability, the Court turned to the record to determine if there were genuine issues of material fact. Three international conventions helped the court to define customary international law in the case of child labor. The United Nations Convention on the Rights of the Child provides that a child need not perform work that is hazardous, that interferes with his education, or is harmful to his health or development. The Court found that statement much too vague to create an international legal norm. TheInternational Labour Organization Minimum Age Convention states that children under 14 should only do "light work." The Court also found that to be too vague. Finally, the International Labour Organization Worst Forms of Child Labour Convention states that the worst forms of child labor is work that is likely to harm the health, safety or morals of those children. Although a corresponding recommendation provided more detail to that statement, the Court still could not discern an agreed norm of conduct. The Court concluded that the plaintiffs failed to present concrete evidence of how different nations would impose liability for child labor. The Court also concluded that the plaintiffs failed to provide sufficient evidence that the specific conditions at the Firestone plantation were actionable. The record does not show how many children work on the plantations, how much work they do, how hard the work is, and how their lives compare to local children who do not live on the plantation. The Court surmised that the child of a plantation worker, even one who works himself, may be better off than the child of a non-plantation worker.