Academic journal article American University Law Review

Mitigating Risk, Eradicating Slavery

Academic journal article American University Law Review

Mitigating Risk, Eradicating Slavery

Article excerpt

I.Forced Labor in the Supply Chain? Domestic Retailers Beware

Domestic retailers beware. Is there forced labor or slave labor in your supply chain? If so, your vulnerability as a target for litigation is on the rise. Recent changes in federal law make it more likely that such causes of action, whether brought by an individual or as a class, will be successful. consider the consumer who buys a bag of chocolate for distributing to her neighborhood children on Halloween. Would that person have bought the same chocolate had she known it was the product of child labor? is that a material fact that ought to have been disclosed to the ultimate purchaser, much like an ingredient that now taints the product? should the manufacturer bear civil liability to consumers for failing to disclose the probability of child labor in its supply chain, even if it did not force the hand of the laborers?1 it is no stretch to say that some states' consumer protection laws, at a minimum, prohibit giving a false impression that one sells ethically sourced products.2

Forced labor in the United States is illegal.3 It exists, but it is heavily regulated, at least in comparison to other developing countries.4 The problem is heightened when domestic entities acquire products or supplies from an international supply chain because labor is subject to a different set of rules and regulations, which may not be enforced.5 Some of the inexpensive products we buy come with a cost, a cost unknown to many of us. Domestic litigation is about, in part, exposing those external costs. In 2016, Professor David Snyder formed the Working Group to Draft Human Rights Protections in International Supply Contracts ("Working Group"), a part of the ABA Business Law Section.6 In the early stages of the Working Group, I was asked to research domestic litigation, in whatever form, involving the use of forced labor in the supply chain. We began with one case: Rahaman v. J.C. Penney Corp? But in the months and weeks that passed, the amount and complexity of the litigation involving these issues escalated. Research revealed an increasing mass of consumer class actions brought by those who were defrauded by the knowing, or at best, willfully ignorant use of forced labor in the supply chain. At the same time, viable legal theories brought by employees of foreign suppliers were developing under the Trafficking Victims Protection Reauthorization Act (TVPRA)8 and the Alien Tort Statute (ATS).9 The research revealed that many businesses would benefit from a model agreement designed to warrant against the use of forced labor in the supply chain and address remedies for breach.

In 2018, the work of the Working Group came to fruition with the publication of Model Contract Clauses ("MCCs") for domestic buyers to use in their international purchase agreements to guard against the use of forced labor in the supply chain.10 Every domestic company that sources from international entities should consider adopting the MCCs in some form.11 David Snyder and Susan Maslow have discussed the MCCs in their work, Human Rights Protections in International Supply Chains-Protecting Workers and Managing Company Risk.12

This Article discusses the emerging trends in domestic litigation involving forced labor in the supply chain and how the disclaimers that appear in MCCs were drafted with the intent of reducing litigation risk for the domestic entities that adopt them. Recent litigation against domestic retailers of goods involving alleged human trafficking in the supply chain generally falls into two areas: employee cases and consumer deceptive advertising cases. Part ii of this Article traces the origin of these cases beginning with the early employee negligence cases that form the backdrop of existing case law and the cornerstone of the Model Contract disclaimers. Part III turns to the evolving consumer class actions based on deceptive trade practices. Part IV addresses the complexities of employee-based cases alleging violations of the ATS, and by comparison, this Part also illustrates why the TVPRA extraterritorial jurisdictional grant may provide fertile ground for domestic litigation involving foreign forced labor in the supply chain. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.