UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION __________________________________________ BOIMAH FLOMO, et al., ) ) PLAINTIFFS, ) ) vs. ) Case No.: 1:06-cv-00627-DFH-JMS ) BRIDGESTONE AMERICAS HOLDING, ) INC. et al. ) ) DEFENDANTS. ) __________________________________________) PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ BRIEF AND SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT (DKT. NOS. 209 & 213)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
__________________________________________BOIMAH FLOMO, et al., )
)PLAINTIFFS, )
)vs. ) Case No.: 1:06-cv-00627-DFH-JMS
)BRIDGESTONE AMERICAS HOLDING, )INC. et al. )
)DEFENDANTS. )
__________________________________________)
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ BRIEF AND
SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS OR, IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
1. Plaintiffs Worked for Firestone Against their Will and Performed Hazardous Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
a. Firestone’s System of Production is Built on Child Labor: The Daily Quota Requires the Use of Multiple Unpaid Workers to Complete . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ii
b. Every Named Plaintiff has Performed Labor as a Young Child that Constitutes a Worst Form of Child Labor on the Plantation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
c. Firestone’s “Zero-Tolerance” Policy for Child Labor was a Paper Tiger: Un-enforced, Unimplemented, and a Post-litigation Tactic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
d. Firestone’s Perpetuation of the Plantation System: Limited Education with Limited Access Ensures a New Generation of Child Laborers who Become Uneducated Tappers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2. Plaintiffs Can Sue Firestone Directly for Forced Child Labor, But if Required, They Do Have Sufficient Evidence to Show that Firestone Acted Under “Color of Law.” . . . . . . . . . . . . . . . . . . . . . . 35
The Court rejected Firestone’s contention that child labor on the Plantation is no different than the situation “[i]n2
the United States where children are permitted to work with their parents on the farm. . .”Ex. 19, at 27. See 492 F.
Supp. 2d at 1021 (case is about liability of “huge multinational corporate family that hires the children’s parents and
then. . . encourages the parents to require their young children to do much of the work.”).
3
must draw this line, and Plaintiffs’ evidence will show that Firestone has yet to stop its long-
standing policy of exploiting children. On this basis, the Court should deny summary judgement.
II. ARGUMENT
A. The Law of the Case Doctrine Precludes Firestone’s Third Motion to Dismiss Plaintiffs’ATS Claims.
In Roe I, the Court denied dismissal of Plaintiffs’ child labor claims and held that the
allegations, if true, sufficiently set forth a claim under the ATS. In particular, the Court found
that “the allegations of child labor in Count Two meet the Sosa standard for ATS claims” where
“defendants are actively encouraging – even tacitly requiring – the employment of six, seven, and
10 year-old children,” 492 F. Supp. 2d at 1022. Thus, the Court determined that in light of ILO
Convention 182, at least some of the practices alleged – and now supported with abundant
evidence – could “violate specific, universal, and obligatory standards of international law . . .
[and] should not be dismissed on the pleadings.” Id. Recognizing the practical considerations1
of adjudicating claims of child labor under the ATS and international law, the Court noted, “[i]n
a sufficiently extreme case, however, such as plaintiffs have alleged here the court believes that
Sosa leaves the ATS door open.” Id. Finally, the Court cited – with approval – case law and
academic commentary concerning multinational corporations’ liability under the ATS for wrongs
committed in foreign countries – brought by foreign nationals. Id. at 1008.2
Unhappy with this result, Firestone moved for reconsideration. In its motion, it again
argued that 1) Plaintiffs had failed to allege state action; 2) the Court had improperly determined
4
that Plaintiffs sufficiently alleged violations of specific and universal norms governing child
labor, and 3) even if child labor violated a specific international norm, Plaintiffs cannot state a
claim against Defendants where parents “can control whether . . . any children are subjected to
the worst forms of child labor.” Dkt. 48, at 1-2, 6-8 (emphasis added). The Court denied
Firestone’s Motion for Reconsideration, holding that “Defendants’ arguments do not raise issues
that the Court has not already considered.” Dkt. 50, at 1.
Now, for the third time, Firestone seeks dismissal of Plaintiffs’ child labor claims on
identical grounds that had been twice rejected. See generally Dkt. 209. Its arguments amount to
nothing more than “post-Sosa” pseudo-academic musings with citations to law review articles,
dissenting opinions, and case law decided long before the Court’s June 26, 2007 Order. Def.
Mot. 13-21; 22-32. Further, Firestone cites no intervening change in the record that justifies any
alteration to the Court’s previous order.
The law of the case doctrine prohibits serial motions on the same issues on which the
Court has explicitly or implicitly rendered a determination in the course of that litigation before
final judgment. See, e.g., Starcon Int’l v. AFL-CIO, 450 F.3d 276, 278 (7 Cir. 2006) (doctrineth
“precludes reexamining a previous ruling in the same case unless it was manifestly erroneous.”).
The standard is a high one, and Firestone has not even attempted to demonstrate a compelling
justification showing that there has been a change in the law “that makes clear the earlier ruling
was erroneous.” See, e.g., Santamarina v. Sears, Roebuck & Co., 446 F. 3d 571-71 (7 Cir.th
2006) (Posner, J.); Brengettcy v. Horton, 423 F.3d 674, 680-81 (7 Cir. 2005) (finding the lawth
of the case doctrine had been violated, the Court noted: “[t]he question is thus whether the new
evidence that Horton submitted with his motion for summary judgment provided a compelling
Firestone now tries to justify its present motion by asserting that it did not address the sufficiency of Article 3(d)’s3
definition of the “worst forms of child labor,” until the motion for reconsideration because Count II of the complaint
did not expressly mention Article 3(d). Def. Mot. 13, n. 25 (citing Dkt. 48, at 4-6). Plaintiffs’ original complaint
expressly referenced ILO 182, ¶ 86(f), and cross-referenced this paragraph in Count II at ¶ 96. Also, Plaintiffs
addressed the relevancy of this precise convention concerning the “worst forms of child labour” in their Opposition
to Defendants’ Motion to Dismiss. Dkt.36, at 13-14 (C.D. Cal. Docket). Defendants simply did not address this
issue in their Reply. Dkt. 45. The Court also raised ILO Convention 182 and the “worst forms of child labor,” in
the oral argument and Defendants’ responded. See Ex. 19, at 29-30. Additionally, at the Court’s request in oral
argument, Plaintiffs submitted and Defendants responded to, supplemental materials on ILO 182. Dkt. 31,32, 34.
The only issue the Court did not decide concerns whether state action is even an essential element for a child labor4
claim of the kind Plaintiffs allege in which young children engaged in hazardous work. Dkt. 50, at 1.
5
reason . . . to overturn . . . [the previous ruling on the motion to dismiss].”).
Without any justification that would support re-examining the sufficiency of Plaintiffs’
claims, Firestone makes excuses for why it did not do a better job briefing the issues in the first
and second instance. Dkt. 191, at 11 (stating in proposed case management plan that
“defendants’ motion to dismiss did not address all of the potentially dispositive legal grounds for
the child labor count.”). Defendants’ failure to adequately brief the issues is never a reason to3
re-open issues already decided in the case. See, e.g., Rothwell Cotton Co. v. Rosenthal & Co.,
827 F.2d 246, 251 (7th Cir.1987); Woods v. Michigan City, 940 F.2d 275, 280 (7th Cir.1991)
(motions for reconsideration may not raise legal theories or arguments that could have been
raised in the original motion).
The Court’s dismissal order decisively addressed each of the legal issues Firestone now
raises. Firestone cites no relevant or binding changes in the law, and the only changes to the4
record are that Plaintiffs have submitted abundant evidence that puts to rest any question – if
there ever was one – that Firestone encouraged and forced Plaintiffs to perform hazardous forms
of labor. See infra, Section II.C. On this basis alone – the violation of the law of the case
doctrine – the Court should deny Defendants’ motion. B. Firestone’s Renewed Motion Seeking Dismissal of Plaintiffs’ Forced Child Labor ClaimsShould Once Again Be Denied on the Merits.
6
Assuming the Court entertains Firestone’s third attempt to dismiss Plaintiffs’ forced child
labor claims, the motion should be denied on the merits. Any subsequent developments in the
law reinforce that this Court was correct in its initial ruling that the “law of nations” prohibits
forced child labor. See Roe I, 492 F.Supp. 2d at 1019-22.
1. The International Prohibition of Forced Child Labor Meets the Sosa “Law ofNations” Standard of Being “Specific, Universal, and Obligatory.”
In Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004), the Supreme Court, specifically
approving the approach of numerous lower courts in ATS cases, held that for a norm to be
actionable under the ATS it must be “specific, universal, and obligatory.” See generally
Declaration of Professor Ralph G. Steinhardt (“Steinhardt Decl.”), ¶¶ 5-9. Firestone does not
address the long-standing, international condemnation of forced child labor based on norms that
are “specific, universal, and obligatory.” Instead, Firestone focuses exclusively on ILO
Convention 182 and treats it as the sole source of international law banning forced child labor.
Def. Mot. 13-19, 21, 29-30, 32-34. Firestone ignores that based on Sosa, the “law of nations” is
not determined by a single source to be applied like a statute, but by extensive review of all
sources that could add content to international law: “[w]here there is no treaty, and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations; and as evidence of these, to the work of jurists and commentators . . . .” 542
U.S. at 734 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). See also, Filartiga v.
Here, there is extensive evidence establishing that the prohibition of forced child labor is
one of the most well-established norms of international law. Every single court that has
considered the issue has found forced labor to be within the scope of the “law of nations.” See,
See also Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 441 (D. N.J. 1999) (“the case law and statements of the5
Nuremberg Tribunals unequivocally establish that forced labor violates customary international law.”); In Re World
War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) Estate of Rodriquez v.
Drummond Company, Inc., 256 F. Supp. 2d 1250, 1260 (N.D. Ala. 2003); Jane Doe I v. Reddy, 2003 WL
23893010, at *8 (N.D. Cal. 2003).
Lettered exhibits are attached to the Collingsworth Declaration and Numbered Exhibits are attached to the Levesque6
Declaration.
7
e.g., Doe I v. Unocal Corp., 395 F.3d 932, 945-47 (9th Cir. 2002); NCGUB v. Unocal, Inc., 176
F.R.D. 329, 348-49 (C.D. Cal. 1997).5
Indeed, in the context of the adult forced labor claims, this Court found that forced labor
was a norm within the law of nations, but declined to apply that finding to the adult laborers. Roe
I, 492 F. Supp. 2d at 1017, n.11. As the Court found the child labor claims sufficient on an
alternative ground, it did not rule on the forced labor claim of the child laborers. If forced labor is
performed by children, this renders the act even more egregious and subject to universal
condemnation. The law is clear that children cannot consent to labor, nor can anyone, including
parents, do so on their behalf. See, e.g., U.S. v. King, 840 F. 2d 1276, 1282-83 (6th Cir. 1988),
cert. denied, 488 U.S. 894 (1988). That forced child labor is an egregious form of forced labor
was specifically noted by the ILO in its 2005 report, a Global Alliance Against Forced Labor.
Ex. A, at 6, ¶ 17 (excerpt attached to Collingsworth Declaration). The ILO concluded: “[c]hild6
labour amounts to forced labour not only when children are forced, as individuals to work in
their own right, by a third party to work under the menace of a penalty, but also when a
child’s work is included within the forced labour provided by the family as a whole” Id.
(emphasis added). See also Declaration of Professor Virginia Leary, ¶¶ 26-27. While there are
also numerous international instruments that focus specifically on the regulation of child labor,
discussed infra Section B.2., Plaintiffs emphasize that these rules define the circumstances under
which children may or may not be employed, and are not primarily concerned with a situation of
8
forced child labor. Without addressing this distinction, Firestone trivializes Plaintiffs’
allegations of serious human rights crimes and seeks to convert this to a case about conditions
under which children may work. This transparent ploy is highly improper in the context of a
(third) motion to dismiss. Among Plaintiffs’ allegations, which must be taken as true, are that:
(¶ 4) They are forced by poverty and coercion to work full-time under hazardous conditions with their fathers in order to meet the daily quota of tapped trees that theDefendants impose upon each family knowing that the quota can only be met if childrenjoin their fathers, and in many cases, mothers, and work from dawn to dusk. Firestoneoverseers not only know about the pervasive use of child labor on their Plantation, theyactively encourage it. Plantation Workers are told by their overseers that if they can’tmake their daily quota, which allows them to be paid their pittance of a salary, theyshould put their children to work. The Plantation Child Laborers begin their day at 4:30a.m. by cleaning the 1,500 or more tapper cups their family will need to meet their dailyquota. They then go to work with their families doing everything from tapping trees witha sharp tool, exposing their eyes to the blinding potential of raw latex, to applying byhand various dangerous pesticides and fertilizers to the rubber trees, to carrying, two at atime, 75-pound buckets filled with the latex that gets their family its food for the day.
(¶ 65)The Plantation Child Laborers are forced to work to avoid the starvation of theirfamilies. These young children have not reached the legal age of consent by anydefinition, and therefore could not possibly agree to become laborers for the FirestonePlantation. They suffer daily the deprivations of living a slave-like existence, includingmalnutrition, disease, physical ailments from exposure to chemicals, and the lack ofdecent educational opportunities.
Plaintiffs further allege that they were directed by various levels of Firestone supervisors
to work with the fathers to meet the family quota. Id. ¶ 55. These allegations of forced child labor
cannot simply be ignored, as Firestone attempts to do. There is complete agreement in the
international community that forcing children to do hazardous work violates the “law of nations.”
Firestone does not assert otherwise, nor could it. As Professor Leary concludes, “[t]he
prohibition of forced labor is included in numerous widely ratified treaties and international
agreements, is prohibited in a number of constitutions and has been expressly accepted as a
fundamental norm by states at the ILO. To my knowledge, no country has stated that it has the
9
right to used forced labor.” Leary Decl.¶ 10.
2. International Instruments Defining Unlawful Child Labor Likewise SupportPlaintiffs’ Assertion of a “Law of Nations” Violation.
In addition to Plaintiffs’ claims based on forced labor, they allege that the work they
performed for Firestone was hazardous and that the long hours required prevented them from
attending school. CT ¶¶ 4, 51, 65. As Sosa directs, 542 U.S. at 734, Plaintiffs have provided the
opinions of two distinguished experts on child labor norms in international law, and they agree
that the child labor alleged by Plaintiffs herein constitutes a separate violation of the law of
nations. Professor Leary notes that in 1997, the U.S. Department of State, in its annual Report on
Human Rights Violations (Ex. B), declared: “[a]n international consensus exists, based on
several key [ILO] Conventions that certain worker rights constitute core labor standards. These
include . . . “freedom from forced and child labor.” Leary Decl. ¶ 20. The sole, operative ILO
Convention on child labor in 1997, when the State Department recognized an existing
international consensus condemning child labor, was No. 138. See Declaration of Lee Swepston,
¶ 9; Ex.C (Convention 138, the Minimum Age Convention, adopted in 1973). According to
Professor Swepston, who spent most of his career at the ILO focused on forced and child labor
issues (id. ¶ 1), ILO Convention 138 itself “evidences the international consensus on this
subject.” Id. ¶ 15. That Liberia (or the U.S.) did not ratify this Convention does not mean that it
is not an indication of universal acceptance of the norm. See,e.g., Ex. D (Wiwa v. Royal Dutch
Petroleum, Order of 23 April 2009, p. 5-7 (relying upon non-self-executing treaties to which the
United States is not a party to give content to the definition of crimes against humanity));
Steinhardt Decl. ¶¶ 39-41. Firestone’s counsel made this very argument in Bowoto v. Chevron
Corp, 557 F. Supp.2d 1080, 1090-91 (N.D. Cal. 2008), and the Court rejected it.
Firestone’s effort to convert this case to a statutory claim under ILO Convention 182 is a thinly-veiled effort to7
limit the period of liability. Firestone argues that if Convention 182 is applied, the earliest date of liability could be
the effective date of November 2000. Def. Mot. 21. As Plaintiffs establish herein, Convention 182 merely affirmed a
long-standing consensus prohibiting child labor, going back to at least the adoption of Convention 138 in 1973.
10
In total, 150 nations have ratified Convention 138, showing a high degree of universality.
See Swepston Decl. ¶ 16. Further, Liberia ratified the U.N. Convention on the Rights of the Child
(“CRC”) in 1993, and it provides in Article 32 that all parties acknowledge the “right of the child
to be protected from economic exploitation and from performing any work that is likely to
be hazardous or to interfere with the child's education, or to be harmful to the child's
health or physical, mental, spiritual, moral or social development.” Supplemental Decl. of
Lee Swepston, ¶¶ 13-14. Article 32 of the CRC was based on and tracks the language of ILO
Convention 138. Id. ¶ 15. Finally, as this Court recognized, see Roe I, 492 F. Supp.2d at 1020,
Liberia prohibits children under 16 from working if it interferes with their education. See Ex. E
(§ 74 of the Liberian Labor Code). Likewise U.S. labor legislation includes provisions that are
consistent with the Convention. See Roe I, 492 F. Supp.2d at 1020. State legislation and practice
are the “oldest and the original source” of customary international law. Flores v. Southern Peru
Copper Corp., 414 F. 3d 233, 248 n. 22 (2d Cir. 2003).
ILO Convention 182, adopted in 1999, and ratified by both Liberia and the U.S.,
represents a confirmation of the long-standing consensus on the prohibition of the worst forms of
child labor, but it did not change the substantive standard of Convention 138. Rather, it provided7
tougher requirements to implement the prior international consensus on the standard. Swepston
Supp. Decl.¶ 18. Indeed the second paragraph of Convention 182 provides that its purpose is “to
complement [Convention 138 and its Recommendation] which remain fundamental instruments
on child labor . . .” Ex. F. Thus, while Convention 182 does provide additional evidence of a
universal norm, it is properly viewed as affirming an existing consensus, going back to at least
That Plaintiffs are not attempting to sue based on Convention 182 likewise dispenses with Firestone’s argument that8
this Convention cannot be used to assert universal jurisdiction. Def. Mot. 29-30. Plaintiffs’ claims are brought under
the ATS, and Convention 182 is but one indicia of the universal consensus that international law prohibits Firestone
from forcing young children to perform hazardous labor.
Issues of enforceability of a source of international law, or whether an international instrument is “self-executing,”9
are irrelevant to whether there is a sufficient basis for a “law of nations” norm. Firestone’s assertion that all
international sources must be self-executing is based on a single case, Cornejo v. County of San Diego, 504 F. 3d
853 (9 Cir. 2007), that has nothing whatever to do with the law of nations. See Def. Mot.14. Cornejo stands for theth
unremarkable proposition that to directly sue to enforce a treaty, it must be self-executing. 504 F.3d at 856. As
Professor Steinhardt notes, “Defendants studiously ignore the Second Circuit’s recent analysis of non-self-executing
treaties under the ATS. Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009). [There the court held] that ‘[a]greements
that are not self-executing or that have not been executed by federal legislation … are appropriately considered
evidence of the current state of customary international law.’ 562 F.3d, at 176.” Steinhardt Decl ¶ 40. See also, id. ¶
39 (discussing other cases finding that non-binding instruments are probative of international law).
11
Convention 138, adopted in 1973, and providing an improved enforcement process.
3. Firestone Can Be Liable For Its Direct Acts in Forcing the Child Laborers to Work and in Violating Norms Prohibiting Child Labor.
Firestone’s argument that ILO Convention 182 does not allow a cause of action for
damages against Firestone, a private party (Def . Mot. 16-20), simply fails to address Plaintiffs’
actual legal claims. Convention 182 is not Plaintiffs’ sole source of the “law of nations” in their
ATS case. As demonstrated supra Sections B.1. and B.2., Plaintiffs allege that they were forced8
to work in violation of universal norms prohibiting forced child labor. Further, Plaintiffs allege
that while they were under 18 (or 16), they were required by Firestone to perform hazardous
work for long hours that prevented them from going to school. This type of child labor violates
international customary law as evidenced by international conventions, and Liberian and U.S.
domestic law. The ATS, not individual sources of the “law of nations,” which need not
themselves be binding or self-executing, provides the cause of action and the right to sue. See,9
e.g. Abdullahi, 562 F.3d. at 176-77; Bowoto, 557 F. Supp.2d at 1090-91; Ex. D (Wiwa, at 5-7).
4. Firestone, as a Private Party, Can Be Sued for Using Forced Child LaborRegardless of State or Official Action.
Ignoring Plaintiffs’ actual allegations of forced child labor, Firestone argues that
Application of this standard to the facts is discussed in Section II.B.2., infra.10
12
Plaintiffs cannot sue Firestone directly and the case can only proceed against state officials. Def.
Mot. 9. As the landmark decision in Kadic v. Karadzic, 70 F.3d 232, 239-40 (2d Cir. 1995), held,
“certain forms of conduct violate the law of nations whether undertaken by those acting under the
auspices of a state or only as private individuals.” Such conduct, the Court made explicit,
involves those offenses considered to be of “universal concern,” including piracy, slave trading,
genocide, and war crimes. Id. at 240. See also Tel Oren v. Libyan Arab Republic, 726 F.2d 774,
794-95 (D.C. Cir. 1984). Forced labor, as modern slavery, is one of the norms of international
law, along with crimes against humanity and genocide, that is of “universal concern,” and does
not require “state action.” See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404 (1987).
See also United States v. Matta- Ballesteros, 71 F.3d 754, 764 n. 5; NCGUB, 176 F.R.D. at 348-
49; Estate of Rodriquez; 256 F. Supp. 2d at 1260; Steinhardt Decl. ¶ 11.
Even if Plaintiffs are required to allege that Firestone acted under “color of law,” they
assert both that the Liberian government is a joint participant in the Firestone Plantation and
government officials provided security for the Plantation. CT ¶¶ 90-91, 97,103,108. These
allegations are more than sufficient to establish that Firestone was acting under color of state law.
See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 723-25 (1961); Brentwood
Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 298-299 (2001). 10
Firestone is objectively wrong that “every” post-Sosa Court has abandoned the use of
“color of law” jurisprudence to link private actors to state officials. Def. Mot. 20. Quite the
contrary, most cases, post-Sosa, continue to use this methodology, which was carefully
articulated by Kadic, 70 F.3d at 243-45, one of the key ATS cases cited by Sosa with approval.
See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d. 163, 209 (2d. Cir. 2009); Aldana v. Del Monte Fresh Produce, N.A.,11
him working and gave him medicine to apply); Ex. 1B, 53:13; 54:6-7, 62:15-18; 63:4. Daniel34
Flomo testified that at the end of 2005, without explanation as to why, the headman and overseer
told the children to hide when they see a car. Ex. 7A, 216:7-218:12. This lasted for about a35
week only. Id. Another Plaintiff explained: “they can’t be looking out for children working on
the farm . . . because they know the workers suffering and they alone can’t do the work. . .” Ex.
3A, 38:3-19. Only the month before Saah Foryor’s deposition, his headman said, “the work is so
much” that when the children come to work, let them hide. Ex. 1, 68:19-25. Similarly, George
Firestone states that if a headman told the fathers to hide their children, this would be a violation of its policy. Def.36
Mot. 12, n.20. It says it investigated such reports based on this testimony “and found no support for such claims.”
Id. This investigation is irrelevant and only demonstrates there is a material issue of fact in dispute. Indeed, any
credibility findings concerning the veracity or accuracy of statements must be left to a jury to decide and is not
appropriate for adjudication by the Court on summary judgment. See Brown, 2009 WL 995755, at *1 (citing
Anderson, 477 U.S. at 242). Similarly, any contradictions in testimony – to the extent they exist and are not grossly
exaggerated by Firestone, must be left to a jury. Id.
George Peter was born on the Plantation and worked as a child laborer on the Plantation with his father who did37
exactly the same work George does today. He never saw any punishment for children working when he was growing
up. Ex. 11, 90:18-25, 91:1-6. Joseph Fayiah similarly grew up on the Plantation, never went to school, and helped
his father do the same work Joseph does today as an adult. Ex. 2, 13:16-17; 22:14-17. See also, e.g., Ex. 8, 16:21-
25; Ex. 10, 10:14-20; 24:21-24 (only attended Bible school and learned to read there); Ex. 10, 123:15-24 (came to
Plantation when he was 13 and worked as a child laborer). Many of the guardians are illiterate. See supra, Section
II.C.1.d.
32
Peter testified that his headman said the work “is very heavy, tedious” so if his son works he
should do so in the corner. Ex. 11, 82:21-83:5. Even after the policy came out in 2005, the
supervisors told one Plaintiff to work freely and “they had the power on the plantation, whatever
they say, that’s what we go by.” Ex. 9A, 118:25-121:5. 36
d. Firestone’s Perpetuation of the Plantation System: Limited Education withLimited Access Ensures a New Generation of Child Laborers who BecomeUneducated Tappers.
Virtually every guardian was born on the Firestone Plantation and grew up as a child
testified, “there was no way that I could go to school. Because every time my father leaving to
go to work on the farm, he took me there,” and he cannot read. Ex. 4, 15:2-8. When Fayiah’s
father retired, he took over his tapping job. Ex. 4, 8:5-11. Daniel Flomo, a child Plaintiff,37
succinctly explained the entrenched system of child labor and its passage from generation to
generation: “when the father is a tapper, his children become tappers; when the father is an
overseer, his children become overseers.” Ex. 7A, 189:13-190:1. Firestone uses this to its
advantage. Firestone managers enlist older boy children to assume the father’s tapping job when
they notice the father aging and nearing retirement. Id. at 188:7-189:9; 202:19-204:6.
Firestone touts the so-called virtues of its “free” education system on the Plantation. Def.
33
Mot. 9-10. As late as 2004, Firestone only operated 15 schools for the entire Plantation. See Ex.
27. For a Plantation that covers approximately 240 square miles, Firestone admits that it operates
only one high school, which was only recently opened in 2006 after this lawsuit was filed. Ex.
20 (No. 58). In reality, the education system has been structured to maximize the children’s
availability for work and it is inaccessible to many children. Some Plaintiffs have never attended
a Firestone school, or their start was delayed because they do not have registration cards. See,
e.g., Ex. 5A, 70:18-20; Ex. 11A. Fathers reported that if a child is not born in a Firestone
hospital, they must go to Monrovia to obtain a birth certificate, which costs $25.00 U.S. dollars,
plus $10.00 for the Firestone registration card. See, e.g., Ex. 4, 46:12-24; Ex. 11, 127:22-25;
128:1-10; Ex. 11A, 44:4-21. Guardians must also pay for school uniforms and school supplies.
See, e.g., Ex. 9, 17:24-18:11. As an example, Elijah Peter did not start school until he was
approximately 16 years old because he was not born in the Firestone hospital and therefore did
not have a registration card. Ex. 11, 128:12-23; 213:10-15; 127:22-128:1-10. Elijah worked
with his father prior to starting school in 2007, but after he continued to get up very early to
collect the cup lump and then returns home to get ready for school. Ex. 11A, 42:8-43:18. He
also works on Saturdays and Sundays. Ex. 11, 235:12-236:16. He often arrives late to school
and he is “usually put outside” and punished. Ex. 11A, 38:21-39:9; 47:25-48.
Many Plaintiffs’ education has been interrupted or delayed because the work was so hard.
Andrew Fayiah was forced to drop out of Harbel Junior High School in the 9 grade becauseth
there was no time for him to study his subjects and work. Ex. 2, 39:8-11; Ex. 2A, 39:12-24;
103:3-7; 103:13-22; 103:9-13. He was late sometimes two or three days a week when he was
working in the fields. Id. at 103: 15-21. When he was late, his teacher would strike him or make
Martha Kollie, at the age of 19, is unable to read and is currently enrolled in the 4 grade. She was forced to slash38 th
grass at school, which she knew how to do from her work on the Plantation. See Ex. 6B, 27:18-29:1.
34
him cut grass around the campus with a hook. Id. at 103:23-106:25. Boimah Flomo is38
approximately 13 and only in the second grade. Ex. 7B, 76:17-78:19. Boimah stopped going to
school in 2003 because the work was too hard. Ex. 7, 87:11-90:10, 43:22-49:16. Matu Fayiah
only recently started school in 2007, and she goes to school after she works with her father, but
missed school to do more work, just a few days before her deposition to collect cup lump and
ring weed. Ex. 2, 38:22-39:22. Another Plaintiff, Joshua Thomas, was approximately 18 years
old at the time of his deposition, but only in the 6 grade. Ex. 10B, 6:11-7:8. He helped histh
father before school in the morning, and was sometimes late to school because he “was in the
bush and work was so hard.” Id. at 39:22-40:6. He worked about 45 minutes to an hour from his
house and had to go home before school started to get ready. Id. at 56:20-21-57:5-8. He was
sometimes switched, whipped or sent home when he was late. Id. 40:5-19. Samuel Thomas was
about 19 years old at the time of his deposition, but only in the 8 grade. Ex. 10A, 6:15-7:1. th
Saah Foryor, Jr. summed up in his own words the relationship between the child labor
policy, the workload, and education: Regardless of the policy, there is too much work for his
father to complete alone, but “[w]hen you help your father, you wouldn’t be serious in school
because of the job.” Ex. 1A, 57:10-13; 57:20-21.
Plaintiffs have provided evidence not only to dispute Firestone’s simplistic
characterization of the case, but to support their own legal theory, which Firestone has not even
addressed. In the event the Court finds Plaintiffs’ evidence on any of the factual issues discussed
herein insufficient, the summary judgement ruling should be deferred. See Plaintiffs’ Rule 56 (f)
Motion, with supporting declaration, filed concurrently herewith. Plaintiffs have yet to have
35
discovery from any Firestone supervisors on any issues. Plaintiffs intend to depose Firestone’s
headmen, overseers and supervisors to establish, among other issues, the historical and current
systematic use of child labor on the Firestone Plantation, and that the child labor policies are a
sham and were not implemented.
2. Plaintiffs Can Sue Firestone Directly for Forced Child Labor, But if Required, They DoHave Sufficient Evidence to Show that Firestone Acted Under “Color of Law.”
As demonstrated in Section II.A.4., Plaintiffs need not demonstrate Firestone acted under
“color of law” because a private party can be sued directly for participating in forced child labor.
If, however, the Court concludes that Plaintiffs must show that Firestone acted under “color of
law,” Plaintiffs have sufficient evidence to survive summary judgment on this point. As the
Court recently pointed out, “the standard for surviving summary judgment is a low one – far less
than what is required at trial.” Dkt. 215, at 8 (citing Fed. R. Civ. Pro. 56(c)). Moreover, the state
action inquiry is highly fact-specific and requires “sifting and weighing [of] circumstances
[before] the nonobvious involvement of the State in private conduct can be attributed its true
significance.” Id. at 8-9 (citation omitted); see also Brentwood Academy, 531 U.S. at 296.
Thus far in the discovery process, Defendants have produced the 1976, 2005, and 2008
Concession Agreements. These agreements demonstrate multiple ways in which the government
of Liberia has a partial stake in the Harbel Plantation. In fact, Firestone admits that the Liberian
National Police (“LNP”) and the Firestone Plant Protection Department (“PPD”) together
provide security on the Plantation, which Firestone purports includes the duty to patrol for the
use of child labor on the Plantation. Ex. 20 (No. 92); Ex. 25 (Supp. Rog. Response. No. 2).
Additionally, Firestone has the right to establish security checkpoints within the Production area
while the Government “has the right to assign security personnel to join with Firestones’ Plant
36
Protection Department to monitor any such security gates and checkpoints . . .” Ex. 26, (2008
Concession Agreement, at DEFS 00000188). Similarly, Firestone PPD must coordinate with the
Government’s police, law enforcement, and security authorities and periodically report to the
Ministry of Justice on the activities of the PPD. See id. at DEFS 00000192. Firestone and the
Government have established a “Coordination Committee” “for the purpose of discussing
Firestone’s “social obligations,” such as medical, health, safety, educational, environmental,
labor, personnel and any other matters related to Firestone Activities, in order to coordinate the
needs and plans of Firestone Liberia with the needs and plans of Government in matters affecting
or related to any of the above matters.” Id. at DEFS 00000201. In fact, Firestone is exempt from
import duties, prior to January 1, 2042, on “goods and materials to meet its social obligations
including approved medical and educational materials.” Id. at DEFS 00000204.
It is clear from the 2008 Concession Agreement, with similar provisions in the previous
agreements, that the Government of Liberia has knowledge of conditions on the Plantation and it
daily ratifies the acts that are at issue in this case. This involvement makes the government a co-
venturer with Defendants. Moreover, as described above, the Plantation has been protected by
government officials either through the provision of security services or payments made to such
officials, which has allowed the Plantation to continue the use of forced child labor.
This evidence, therefore, shows the required level of linkage between Liberian officials
and Firestone. As in Burton, where the state itself had a financial stake in a restaurant that
engaged in race discrimination and the Court allowed plaintiffs to sue the owners of the
establishment, 365 U.S. at 723-25, here the government of Liberia has ongoing financial
participation in the Firestone Plantation. See also, Brentwood Academy, 531 U.S. at 298-299
The Court recently granted in part Plaintiffs’ Motion to Compel. Dkt. 215. Among the categories of documents39
the Court ordered Firestone to produce are those related to state action. Id. at 7-9. These documents will not be
produced until approximately June 20, 2009.
37
(private association was sufficiently "entwined" with the public school system as evidenced by
the fact that the association, which provided "an integral element of secondary public schooling,"
was composed of public officials and financially supported by the public schools).
In the event that the Court finds Plaintiffs’ evidence on this point insufficient, Plaintiffs
have yet to have discovery on the linkages between Firestone and Liberian officials, and a
summary judgement ruling should be deferred until discovery on this issue is complete. See
D. Firestone’s Supplemental Argument Regarding State Law Claims is Baseless.
Firestone’s supplemental submission argues that if Plaintiffs are able to amend their
Complaint to add Liberian state law claims, this would provide a basis to dismiss Plaintiffs’ ATS
claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Firestone’s
sole “authority” for applying to ATS cases the Bivens standard for creating new federal remedies
for Constitutional violations that would otherwise go unremedied is a 2006 law review article.
See Def. Supp. Mot. 2. Bivens does not control ATS claims; Sosa does, and there is not a single
court or any other authority that supports merging ATS claims with Bivens principles. Bivens
deals with the unique situation when federal courts are faced with Constitutional violations, but
such violations do not come with a remedy. Under limited circumstances, federal courts are
empowered by Bivens to fashion a remedy. One clear limitation is that no such remedy will be
created if there is an existing remedy that could be applied. See Wilkie v. Robbins, 127 S. Ct.
2588, 2600-01 (2007). Sosa, in sharp contrast, is not creating new causes of action or remedies. It
is applying a specific test, whether a particular norm of international law is “specific, universal,
38
and obligatory” such that it can be recognized as within the “law of nations.” 542 U.S. at 732.
The Sosa process for recognizing “law of nations” violations is designed to suit its unique
purpose and is necessarily restrictive in allowing claims to proceed. Steinhardt Decl. ¶¶ 3-9.
Unlike the Bivens situation, in an ATS analysis, the existence of substantive law similar to the
international norm at issue and applicable in the jurisdiction where the wrongful act occurred,
rather than being a barrier to a claim, is instead strong evidence of “state practice” that supports a
finding of universality. See Flores, 414 F. 3d at 248 n. 22.
Sosa’s sole expression of concern about overlapping remedies was to acknowledge that
the issue of exhaustion of administrative remedies might be applied in the appropriate case. 542
U.S. at 733, n.20. While the application of exhaustion of remedies to ATS cases continues to be
debated, see, e.g., Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008) (en banc), it was not raised
here as Plaintiffs could not have brought their claims in Liberia. See CT ¶¶ 7-8.
In short, the situations presented by Bivens cases versus ATS cases with respect to the
existence of alternative sources of law to be applied are very different. This Court should not be
the first to consider, let alone accept, that the unrelated requirements of Bivens should be grafted
upon the already-complex formula worked out in Sosa for ATS cases.
III. CONCLUSION
For all the forgoing reasons, this Court should deny in their entirety Defendants’ Motion
and Supplemental Motion for Judgment on the Pleadings or, in the Alternative, Motion for
Summary Judgment (Dkts. 209 & 213).
Dated: June 1, 2009Respectfully Submitted by:
s/Kimberly D. JeselskisKimberly D. JeselskisBarry A. Macey MACEY SWANSON AND ALLMAN
445 North Pennsylvania Street, Suite 401Indianapolis, Indiana 46204Phone: (317) 637-2345Fax: (317) [email protected]
Terry CollingsworthChristian Alexandra LevesqueNatacha ThysCONRAD AND SCHERER731 8th Street, SEWashington, DC 20003Phone: (202) 543-4001 Fax: (202) [email protected]@conradscherer.com
Nicole Nehama Auerbach Patrick J. Lamb Mark D. Sayre Hugh J. Totten THE VALOREM LAW GROUP35 East Wacker Drive, Suite 2900Chicago, IL 60661
Benjamin Schonbrun Paul L. Hoffman SCHONBRUN DESIMONE SEPLOW HARRIS& HOFFMAN723 Ocean Front Walk, Suite 100Venice, CA 90291