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Case number 21-7135, John Doe One, individually, and on behalf of proposed class members et al at balance, versus Apple Inc.

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et al.

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Mr. Collinsworth for the balance, Mr. Shumsky for the appellees.

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Morning, Council.

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Mr. Collinsworth, please proceed when you're ready.

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Thank you, Your Honor.

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May it please the Court, I'm Terry Collinsworth.

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I represent the appellates here.

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I'm reserving six minutes for my reply.

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Our complaint alleges that the appellees Apple, Tesla, Microsoft and Google were in a venture with their cobalt suppliers that involved mines in the Democratic Republic of Congo where my clients were either injured or killed.

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The plaintiffs were mining cobalt that supplied to the appellees.

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There are 11 plaintiffs who are children who were injured while mining and five who were killed while mining.

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And in every case, we've documented that they were working in mines, supplying the appellees.

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The district court issued a sweeping decision with six rulings, all of which are wrong as a matter of law.

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The district court found that there was no venture under section 1595A, that the appellants lacked standing to sue,

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and that the TBPRA does not apply extraterritorially.

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The court also found there was no forced labor, no trafficking, and no causation for the common law claims.

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Any one of the first three grounds for dismissal would have been dispositive, but the district court ruled on all of the issues in dismissing the case.

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Congress first passed the Trafficking Victims Protection Act, the TVPRA, in 2000, and since then has expanded it with various amendments, including the 2008 amendments, which created a broader civil claim for plaintiffs to sue for beneficiaries of any of the ventures under the trafficking statute.

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This statute has protected children from sex trafficking and migrant workers from trafficking schemes for years.

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The district court's sweeping decision would essentially repeal the TVPRA and have the consequences of ending all of its protections for all of these years for these people who have relied upon it.

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The appellees also urge the effective repeal

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because they're concerned that this case might reach their own supply chains, and we think that it does.

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I want to talk today about... Can we maybe start by talking about standing?

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So here the parties agree that there's injury and that there's redressability.

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And so I'm wondering what work causation does in the context of a TVPRA case.

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I mean, these...

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these defendants did not directly, in some tort way, cause these harms.

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Is causation created by the statute?

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You know, when a statute prohibits a venture that results in forced labor?

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I mean, what's the mechanism of causation?

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And is it a statutory mechanism?

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And is that sufficient?

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Thank you, your honor.

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Well, Article 3 standing is constitutional, but our position and I think the district court agreed that if there was a venture under 1595A that would then cause the appellees to be jointly and severally liable with their co-venturers,

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who in fact were the direct perpetrators, then there would be standing to sue the appellees as well.

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So the district court specifically at Joint Appendix 109 held that there was no standing because there was no venture.

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And I agree with that.

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If we have a venture

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then there would be standing.

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So do we have to find that there's a venture in order to find that they're standing or do the plaintiffs have to plausibly allege a venture in order for there to be causation?

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Well, your honor, in the Parker line of cases from this circuit, ordinarily you would have to assume the district court would have had to assume the merits in reaching the standing question.

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The district court did not do that here.

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So I think, though, that it would be almost a moot finding if we don't have a venture, we don't have a claim.

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So I want to show the court that we do, in fact, properly allege a venture and that we would then have standing.

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Can you talk about that?

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How is the venture plausibly alleged?

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There are allegations about direct knowingly forming long-term business relationships that the tech defendants formed long-term relationships with the mining companies.

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Can you say more about what you think comprises the core of

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the allegations in support of venture.

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Yes.

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Putting aside which test would be appropriate, and I think that's an important decision for this court to make of the various possible tests for what is a venture.

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You could start with that.

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Excuse me.

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You could start with that.

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Well, there are two common tests that have been applied for years by every court except the district court.

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The first one relies upon 1596, sorry, 1591 E6, which is a parallel sex trafficking statute and both the First Circuit and

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and the 10th Circuit in this line relied upon that rationale that it's in the same statutory scheme why not use the same definition which is any group of two or more individuals associated in fact whether or not a legal entity.

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Other courts have found that to be too narrow and have zeroed in on really the nature of the relationship and they're looking for a continuous business relationship

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or would be said to constitute a tacit agreement.

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Now in application, these tests are virtually identical because it seems in the cases we cite in our opening brief at 16 to 17, that even the cases applying the 1591 E6 definition are still looking at the nature of the relationship, whether there was a tacit agreement, whether there was a continuous business relationship.

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So I think that they're in practice essentially the same.

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And I think that would be the appropriate test to apply is sort of a hybrid of those two.

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But either one is fine.

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We can satisfy either one.

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Now, we allege in detail that the basic elements of our venture are one, there is a continuous business relationship.

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If we have allegations in the complaint that at least from 2016 forward,

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the appellees were dealing with the same mining companies, Glencore, Hwayu, and Eurasian Metals, and that they continue to do so.

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And when we did our research in 2019, looking at their disclosure forms and so on, they're doing the same business with these same mining companies.

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The problem really is, as the defendants argue, doing it very indirectly.

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Ultimately, what they buy, they're buying it

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Umicore, they're buying it from, you know, not directly from the mine.

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So that seems, it's not that they weren't eventually getting this product.

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It's what's the relationship?

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Well, if they have a direct relationship with the mines to purchase the cobalt coming out of the mines,

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then everyone understands it's going to make a trip.

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It's going to be refined and so on.

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But if they have a direct relationship with the mind and we say they do and their disclosure forms say they do, then that is enough of a direct relationship.

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And we don't even need a direct relationship.

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We need a

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In fact, they've been doing business for years with the very same mining companies, and that it is a direct relationship.

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Another strong indication of that direct relationship is that all of the appellees hold the district court.

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They tell the consumers, they tell the public, they tell regulators, and they've told this court that they have policies in place at the mine.

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That means that they have a direct relationship.

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They say they have the right to inspect

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because I don't have an agreement to allow me to do that.

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So we think that combination is sufficient to create a situation where they have a direct relationship.

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It's an ongoing business relationship.

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It's way more than a tacit agreement.

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And we can assume this is a reasonable inference to be drawn that across all of these years that they're getting their cobalt from these specific companies

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that they are paying money for that, that there's got to be some more formal agreement, although it's not required.

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Is being in a direct relationship the same thing as being in a venture?

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I mean, having a relationship, a commercial relationship, a supply chain relationship, it seems to me that the ordinary meaning of venture suggests something more than just some type of contractual or just some type of relationship.

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Well, again, Your Honor, the two major tests, an association in fact, so if they're dealing with each other for years, that's an association in fact, or the other test, a tacit agreement and a continuous business relationship.

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That's what the statute requires for venture.

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Don't you have to be associated in fact with respect to the wrongful conduct?

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It doesn't seem like you're in a venture with somebody just because you have some association with them.

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even if it's a business relationship, it would seem like the association would have to be more than just a business relationship.

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It would have to be an association with respect to the conduct of forced labor, whatever is wrongful about the venture that gives rise to the claim of liability.

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Sure, Your Honor.

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The statute itself, 1595A, merely requires that they knew or should have known of the forced child labor and trafficking.

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The district court didn't rule on that, but in our opposition to the motion to dismiss, we have significant evidence of that.

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So yes to your question that they need to have the relationship and they needed to have

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they had to know or should have known of the forced child labor and trafficking.

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And that's sufficient under 1595A.

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And again, the district court didn't reach that, so it's not in our appellate briefs.

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Why isn't the more plausible inference from your allegations that yes, they knew or should have known, I mean, there's worldwide reporting on the child labor at these mines and

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And also, why isn't it the most plausible inference that they lacked the power to stop it?

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They set up various initiatives which you disparage as cynical, but why wouldn't the more plausible inference be that they're trying, but that they really have not been able in the case of mines in a foreign sovereign nation where the

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involvement of children is sort of pushed into the shadows.

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You know, that the assumption that these defendants can wave a magic wand and resolve this if they want to is, I mean, I'm asking for your response to why that isn't implausible.

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Well, thank you, Your Honor.

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The statute doesn't have a defense that we tried to stop benefiting from

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forced child labor and trafficking, but we couldn't, so we just kept on doing it.

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The statute says if you benefit from forced child labor and you knew or should have known about it and you're in a venture, then you're liable under 1595A, which is in fact a very broad standard of liability.

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So under the terms of the statute, they are liable.

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And that brings up what I think I want to conclude on the venture issue is that throughout their argument, appellees weave in this notion that

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They actually say that if we could be liable, then a cell phone purchaser could be liable.

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Well, and that's really their defense here that this would be too broad.

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It would be it would end the global economy if we knew it, if if we were liable.

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But in fact, if you look at what our allegations are and then you look at what a cell phone purchaser does, no cell phone purchaser

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who may know or should know of the forced child labor has not associated with or entered into any tacit agreement with or even met with the cobalt mines that are abusing the child miners nor does such a consumer have an ongoing business relationship with the cobalt mines as the appellees do and no mobile phone purchaser has an agreement with the cobalt mines to allow inspections.

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So there's no, under no stretch could a cell phone purchaser or retail cell phone seller be in a venture

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could be liable is quite small and that is big tech companies that have the clout really to have a relationship directly with the cobalt mines and to have the ability to purchase cobalt across years directly from that cobalt.

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How are you measuring clout?

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Is it based on market share or something or what's the?

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Why are you saying big tech companies that have clout?

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Well, I think that the measure of cloud is their assertion that we have these policies that allow us to inspect.

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So that's what it turns on for your perspective is that their own comments.

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That's correct.

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I see a question about the statute.

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So the 1595A speaks in terms of knowingly benefiting from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.

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When it speaks in terms of engaging in an act, does that mean

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engaging in forced labor writ large or forced labor or trafficking?

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That's the statute covers the entire corpus.

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Yes, that engages in forced labor or trafficking writ large.

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Or is it the forced labor or trafficking that plaintiffs suffered from the incident?

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Again, the district court didn't rule on that.

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But in our briefing below, and I'm confident in saying

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that it is in fact that you have to have knowledge or should have known of the trafficking or forced labor occurring in that industry.

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You don't have to have been there when that kid in particular was injured.

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You are simply assessing whether because of their knowledge, they could have done something about it, let's say, but that in fact, there is general trafficking and forced labor going on in specific minds.

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So what if the knowledge is about trafficking and the complaint is about forced labor?

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Well, that's not the case here, Your Honor.

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I know it's not, but I'm just asking about the way the statute works.

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Is it that it covers, as long as there's knowledge of engaging in some act that could violate this chapter, that's enough to cover any act that did violate?

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No, I don't think so, Your Honor.

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I think you would need to have the specific violation in mind when we're assessing knowledge.

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I see I've eaten well into my rebuttal time and I did not even get to extraterritorial jurisdiction.

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That's right.

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We'll give you some rebuttal time.

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I did want to ask a question conceptually about standing and I think it's back to something that Judge Rao raised, which is we know from TransUnion that in the injury context, even if Congress wants to define an injury in a particular way, that Article 3

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then comes in and narrows the scope of the injury for purposes of standing.

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At least that's one gloss on trans-union.

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And I'm just wondering if causation works the same way, because I think the thrust of your argument, and I understand it, and I understand where it's coming from, is that, well, if the statute reads venture broadly, that's all we need to know for purposes of causation for standing.

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Then the statute already redefines causation in a way

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that matters for our purposes.

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And as long as we meet the venture standard under the statute, we've necessarily met the causation standard for standing purposes.

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And I'm just wondering whether that's right.

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I don't know that it's not.

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I'm just wondering whether that's right, because if you apply TransUnion to causation, it seems to me then there's a threshold question whether there's an Article 3 causation standard that might be narrower than the definition of venture for purposes of the statute.

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and then you'd have to meet not only the definition of venture under the statute, but also the definition of causation under Article 3, the conventional way we think about fair traceability.

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I don't think trans-union applies to causation, but I have a specific answer for you.

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If somehow a statute, whether it's this one or some other one, expands standing beyond the constitutional reach,

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then I think the challenger would have to challenge that statute as being unconstitutional because of that, which did not occur here.

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But in the opposite situation, the Supreme Court and this court have both held that you cannot make causation tougher in the standing analysis than it is for the statutory liability analysis of causation.

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And that's Friends of the Earth versus Laidlaw Environmental Services, 1528-US-167-181.

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That's their specific rule.

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And you can't use standing to make the bar higher than the statute itself makes it.

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But Mr. Collinsworth, they don't wave a challenge to the potentially unconstitutional application of

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causation or here the venture definition in the context of standing, because standing is a subject matter jurisdiction inquiry and non-wavable.

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So then we're back where we started, which is, I mean, I guess under TransUnion, is there some kind of common law or traditional precursor of the venture-based liability that the statute puts forward that would satisfy TransUnion?

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Yes, but the statute is not being challenged as being unconstitutional.

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Right, I understand that, but I'm just saying that if the inquiry comes to us through the lens of standing, I'm not sure that matters.

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But I am sure that the Supreme Court and this court in TOSI versus U.S.

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Department of Health and Human Services, 271F3301, that again, if we satisfy the causation requirement for the statute through a venture analysis, then

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you could not make the standing inquiry broader to require a higher form of causation.

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Do you think those cases are still good law after TransUnion?

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Because TransUnion suggests that a statutory injury is not sufficient, right?

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That you have to have some common law or historical analog for Congress to create an injury.

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So why wouldn't that reasoning apply to causation?

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I mean, because those are earlier cases you cite that they're trans union.

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Yes, but trans union dealt with injury.

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In fact, so they were saying that you can't create

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a statute that doesn't really require an injury in fact but here we're just looking at simple causation and it's the same analysis it hasn't changed trans unions said nothing about whether causation changed as a standard and i think that the dominant case should be friends of the earth which says you can't make it tougher let me let me shift a little bit and ask you about um if you know i understand that that at the pleading stage you don't have the benefit of

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of discovery, if you were to be allowed to take discovery into the venture question, what would you be looking for?

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I mean, it's a little troubling to rely on the ameliorative efforts of the defendants to show the connection.

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But what would be the now not available information that you would turn to?

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Yes, thank you, Your Honor.

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Well, first of all, we're not faulting them for having policies.

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We're faulting them for really using the policies as a public relations device, not as a preventive measure, and that they do show that there's a contractual relationship.

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But what would we get in discovery?

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We would like to see what contracts exist between them and the mining companies.

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What we know from the disclosure forms that many of them had to file with the state of California is that they list the mining company as the supplier.

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They don't list this chain of refiners.

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They say, why you?

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The land court.

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So we would want to see those contracts.

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We would also like to see, we know and it's in the complaint that we allege that Apple got a very bad report on their activities in the cobalt sector in the DRC and they fired that person who was there in charge of social responsibility.

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I'd like to see the reports each of them have showing their own information about what they know, about what's going on in the minds, their minds.

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And I'm pretty confident that'll show that kind of direct connection that we are alleging.

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So I think the contracts with the mines, what they knew about what was going on in each of the mines, and really what's behind those policies.

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Do they think those policies are going to do anything at all, or are they a public relations device?

[00:22:20] Speaker 08:
Don't you have to reach down further, not just to the mining companies, but to these labor brokers?

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I mean, that's where your complaint alleges that threats are occurring, is when the labor brokers who are dealing directly with children bring them on board.

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I mean, you're gonna need to know something about the involvement of the mining companies, the labor brokers and indeed the tech companies

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knowledge or reckless disregard of that final link to the alleged forced labor.

[00:22:55] Speaker 06:
Absolutely, Your Honor.

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I don't really view that going to the venture question as much as to the forced labor question and the trafficking question.

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Who coerced them, and then what's their relationship back to the mining companies?

[00:23:08] Speaker 06:
We allege in the complaint right now that they're agents of the mining companies, and I think that's fair at this point.

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Particularly, there's a gentleman named Ishmael who was involved with about nine of our plaintiffs.

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He recruited them, told them to work,

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They viewed him, at least from the plaintiff's perspective, as a manager or a supervisor of some sort at Glencore.

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So yes, we would want to get that information.

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But again, I think that goes to the forced labor and trafficking questions more than venture.

[00:23:36] Speaker 05:
What's, for example, Alphabet's relationship with Ishmael?

[00:23:41] Speaker 05:
How do you see that all the way through the statute?

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Alphabet doesn't need a relationship with Ishmael.

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Alphabet has a relationship with Glencore.

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But then Glencore, I mean, I'm just saying walk me through

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Ultimately, it might be somebody else who has a relationship with Ishmael, but you have to walk from Alphabet to Ishmael somehow.

[00:24:04] Speaker 05:
Can you just walk me through the route?

[00:24:06] Speaker 06:
Glencore owns the mine where nine or so of my kids were killed where Ishmael is in charge.

[00:24:13] Speaker 06:
So we're alleging that Ishmael is an agent of Glencore.

[00:24:16] Speaker 06:
So Glencore is responsible for Ishmael's actions.

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if alphabet or apple or any of them are in a venture under 1595a with Glencore, then they're jointly and separately liable for whatever Glencore did to injure these children.

[00:24:33] Speaker 05:
That's how joint and several liability works.

[00:24:36] Speaker 05:
And Glencore is responsible for Ishmael because Ishmael is an agent of Glencore and then Glencore is associated with

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Alphabet and Alphabet and other companies are currently set reliable all the way through to Israel.

[00:24:48] Speaker 06:
Yes, Your Honor.

[00:24:49] Speaker 06:
It's not a very complicated chain.

[00:24:50] Speaker 06:
It really is.

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Is each appellee in a venture under 1595A with either Glencore or Hwayu, which is directly responsible for hurting their children?

[00:25:03] Speaker 05:
Can I ask you on this question of whether there needed to be a challenge?

[00:25:07] Speaker 05:
This is back to the relationship between causation understanding and venture.

[00:25:13] Speaker 05:
that there needed to be a challenge to the statute as unconstitutional because it conceives a causation in a particular way that's too broad.

[00:25:21] Speaker 05:
That's what you were saying, I think.

[00:25:22] Speaker 06:
Sorry, Your Honor.

[00:25:24] Speaker 06:
What I meant to say was that

[00:25:26] Speaker 06:
The only way you could argue that, say, the TVPRA goes beyond constitutional standing is to challenge the constitutionality of the statute.

[00:25:36] Speaker 06:
That's not an issue here.

[00:25:37] Speaker 06:
I think we all agree that if there is a venture under the statute, that causation would be satisfied because of the joint and several liability of the co-venturers.

[00:25:47] Speaker 05:
I don't know if everybody agrees.

[00:25:48] Speaker 05:
I mean, I'll be curious to see if the other side agrees with that because I thought the way this is teed up

[00:25:52] Speaker 06:
I think that, excuse me, I think Judge Nichols agreed because he did turn his standing analysis directly on the lack of adventure.

[00:26:05] Speaker 05:
I think it's Nichols.

[00:26:10] Speaker 05:
But I thought what he was saying was that your argument is that venture satisfies causation and you're wrong as to venture and therefore your argument as to causation is wrong too.

[00:26:19] Speaker 05:
But then the way he'd done causation already is under the fair traceability test, conventional standing analysis, not that

[00:26:28] Speaker 05:
um everything stands or falls for causation purposes on whether there's a venture i thought i thought he was taking you on your terms and then saying that you're still wrong because in his view venture wasn't satisfied either well he did explicitly say that yes he said there is no venture and and therefore there is no standing but uh our position is that if there is a venture then the venture itself is

[00:26:51] Speaker 06:
that the injuries are fairly traceable to that venture, and all of the co-venturers, including the appellees, would be jointly and severally liable.

[00:27:01] Speaker 06:
Now, I still haven't mentioned extraterritorial jurisdiction.

[00:27:03] Speaker 06:
It's up to your honors.

[00:27:06] Speaker 08:
I can briefly... How is this any different from RJR Nabisco?

[00:27:11] Speaker 08:
I mean, there's underlying offenses that some of which apply extraterritorially,

[00:27:21] Speaker 08:
Uh, and in our Jared Nabisco, the court specifically said we have to look separately at the private right of action to see whether it has indicia of extraterritoriality.

[00:27:35] Speaker 08:
And, uh, I'm not sure what your claim is other than that there is a private right of action and there is extraterritoriality and some of the offenses apply extraterritorially.

[00:27:47] Speaker 08:
I'm just not sure how that's enough.

[00:27:50] Speaker 06:
Well, it is true that in RGR Nabisco, when looking at the civil claim under 1964 C of Rico, the Supreme Court found that there were no

[00:28:03] Speaker 06:
predicate acts that were incorporated into the civil provision, but it did find in the criminal provision 1962, which is much more similar to our situation here, that there were predicate acts that were incorporated and therefore the criminal portion of the statute was extraterritorial.

[00:28:22] Speaker 06:
I'll get to that, but we have an easier route to that because

[00:28:27] Speaker 06:
This case is much easier than RJR Nabisco because we have explicit extraterritorial language in 1596A.

[00:28:35] Speaker 06:
And that was the approach of the Fifth Circuit in Attaquari.

[00:28:38] Speaker 06:
They just looked at 1596A and said that it extends 1595 extraterritorially.

[00:28:45] Speaker 06:
The court said, quote, 1596A explicitly rebuts the presumption against extraterritoriality

[00:28:54] Speaker 06:
and that section 1595 unambiguously did not apply extraterritorially until section 1596 was enacted.

[00:29:03] Speaker 06:
So we have this direct extraterritorial language that RGR Nabisco did not have.

[00:29:09] Speaker 05:
In addition, however... How is that direct if the 1596 doesn't mention 1595 but mentions other statutes?

[00:29:16] Speaker 06:
1596A lists six predicate acts that is extending extra-territorially.

[00:29:24] Speaker 06:
All of those predicate acts allow you to sue under 1595A, and in this case we're using only two of the six, forced labor and trafficking, 1589 and 1590, which were both extended extra-territorially by 1596A.

[00:29:42] Speaker 06:
In addition, though, if we just do the straight predicate acts analysis of RGR and Nabisco, wholly apart from this direct extraterritorial language, the argument would be exactly that, that 1596A creates extraterritorial jurisdiction for six predicate acts.

[00:30:04] Speaker 06:
And they're all, you could sue for any of them under 1595A, which makes them extraterritorial for purposes of civil claims.

[00:30:12] Speaker 06:
I would direct your honors to a brief filed, an amicus brief filed by the legal scholars that I think they call themselves with expertise in extraterritorial jurisdiction, but it's the amicus brief we call the legal scholars brief at 11 to 16.

[00:30:28] Speaker 06:
They have a very deep, they had more pages than I did, but they have a very detailed analysis of this predicate acts and assessment from RJR Nabisco.

[00:30:39] Speaker 05:
Thank you council.

[00:30:39] Speaker 05:
We'll give you some time for rebuttal.

[00:30:41] Speaker 05:
Thank you.

[00:30:41] Speaker 05:
I appreciate the extra time, Your Honors.

[00:30:44] Speaker 05:
Mr. Chomsky, we'll hear from you now.

[00:31:10] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:31:12] Speaker 01:
I'm Eric Shumsky.

[00:31:13] Speaker 01:
I represent Microsoft, and I'll be arguing on behalf of all of the defendants.

[00:31:18] Speaker 01:
As my friend on the other side acknowledged at the outset, there are multiple separate reasons that the district court concluded the TVPRA claims must be dismissed.

[00:31:28] Speaker 01:
There is no constitutional traceability between defendants and plaintiffs' alleged harms.

[00:31:35] Speaker 01:
Plaintiffs' claims are impermissibly extraterritorial,

[00:31:39] Speaker 01:
and there were multiple problems with the pleading of the venture and the underlying predicate acts.

[00:31:47] Speaker 01:
I want to start with standing this morning, but before I do, I feel compelled at least to pause to note, I want to be clear that no one diminishes the problem with child mining in the Congo.

[00:32:00] Speaker 01:
The arguments here are simply that this lawsuit is not an appropriate solution for dealing with them.

[00:32:06] Speaker 01:
So let me start with stand.

[00:32:08] Speaker 01:
Plaintiffs lack standing because they have not plausibly alleged that defendants cause their harms.

[00:32:15] Speaker 01:
That is that the injuries are constitutionally traceable to defendants.

[00:32:21] Speaker 02:
Mr. Chomsky.

[00:32:22] Speaker 02:
So what about the fact that this statute, so Congress here has provided a causal mechanism.

[00:32:27] Speaker 02:
I mean, if the companies here are in a venture, then that would satisfy statutory causation, arguably.

[00:32:38] Speaker 02:
So is it your position that applying causation in that way under the statute is unconstitutional or it exceeds the bounds of article free standing?

[00:32:48] Speaker 01:
Judge Rao, I might conceive of the inquiry a little bit differently.

[00:32:52] Speaker 01:
It seems to me that the appropriate inquiry, given that is the Supreme Court has said numerous times that standing is an irreducible constitutional minimum, you have the factual allegations.

[00:33:04] Speaker 01:
You look at whether they satisfy the statute

[00:33:07] Speaker 01:
But you also look separately to determine whether you have constitutional standing, constitutional traceability.

[00:33:16] Speaker 01:
And what the court has said over and over, what this court said in the Anpanque decision in Florida, Autobahn, is that where you have a, to use the language of that case, a protracted chain of causation, then you have an Article III problem.

[00:33:31] Speaker 05:
So does that mean that even if, let's just hypothesize that the statutory test for venture is satisfied?

[00:33:37] Speaker 05:
because Congress meant for there to be a venture here.

[00:33:40] Speaker 05:
But it mean that the cause of action still can't go forward because causation for Article three purpose is not satisfied.

[00:33:46] Speaker 01:
So I want to be careful in answering the question in the following sense.

[00:33:51] Speaker 01:
Obviously, it would depend somewhat on what you think the statute means in terms of defining venture on

[00:33:59] Speaker 01:
plaintiff's conception of a venture, that is to say it is literally any tacit agreement to purchase goods, then yes, there would indeed be an Article III problem.

[00:34:11] Speaker 01:
You might meet the statute.

[00:34:14] Speaker 01:
You might meet the statutory test.

[00:34:16] Speaker 01:
Of course, we've argued that that is not the best understanding of venture, but you would still have a constitutional expressibility problem.

[00:34:24] Speaker 01:
I mean, to use a sort of more extreme example,

[00:34:27] Speaker 01:
If Congress said that we're going to draw lots to see who's liable under the statute, or if we're going to impose liability under this statute on everyone whose last name begins with the letter S, then you and I would be on the hook for there would be a defined injury, but no one would think that that would solve constitutional traceability.

[00:34:49] Speaker 05:
But there would be other constitutional problems with that statute.

[00:34:52] Speaker 05:
I mean, I think there'd be a pretty robust

[00:34:55] Speaker 05:
People with protection claim on behalf of all of us whose last name begins with S. But in terms of just the relationship between causation and standing, why isn't it the case that if Congress decides, for whatever reason, we want to allow for expansive liability, even in circumstances in which we want to enact essentially a worker's comp law, an insurance law that just says, I'm sorry, if you're in the purchase chain, you're on the hook.

[00:35:24] Speaker 05:
And even if that wouldn't be traditional causation, even for tort principles, we're just doing that as a matter of our assessment of what the best policy is to put into effect the best incentive scheme.

[00:35:35] Speaker 05:
That's what we're going to do as a matter of statutory liability and the way you're conceiving of it.

[00:35:40] Speaker 05:
And I'm not saying there's no foundation for it and that TransUnion doesn't suggest possible hook for it.

[00:35:47] Speaker 05:
your article three, but your conception of it would be that, well, still, that's too bad.

[00:35:51] Speaker 05:
Congress can't do that in a way that allows courts to adjudicate a cause of action under that statute because there's an independent article three causation component that would be satisfied.

[00:36:01] Speaker 05:
Oh, I'm sorry, Your Honor.

[00:36:02] Speaker 01:
No, that's okay.

[00:36:03] Speaker 01:
So I think the answer to your question is in part trans union and it's in part something Judge Pillard that you said earlier.

[00:36:09] Speaker 01:
So trans union and Spokeo tell us Congress has some flexibility

[00:36:15] Speaker 01:
But the Constitution still operates as a kind of bottom line, as a backstop to prevent going beyond cases and controversies in the traditional sense.

[00:36:28] Speaker 01:
And so what you often see in this, Judge Pillard, is where something you said a moment ago comes in.

[00:36:37] Speaker 01:
where you have traditional or common law precursors, I think it's the language you use Judge Pillard, when you have ordinary notions of causation of collective responsibility, then those tell you that that may be a way to move through a causal chain in a way that's constitutionally okay.

[00:36:58] Speaker 01:
But again, hypothesizing plaintiff's understanding of venture,

[00:37:02] Speaker 01:
this extraordinarily capacious idea that literally if you just buy the raw cobalt then you are in the chain and you are on the hook.

[00:37:12] Speaker 08:
I don't think that's the statutory theory and in terms of common law precursors I mean I know this this whole issue hasn't been briefed bringing it up here just I understand a little bit uh perhaps

[00:37:25] Speaker 08:
demanding.

[00:37:27] Speaker 08:
If you had back in England at common law, you had a group of miners and somebody who ran the local pub who was outraged about the way they were being treated and gathered them together and they got their nephews and cousins to come together and rise up against the mine owners.

[00:37:49] Speaker 08:
I mean, the fact that the

[00:37:51] Speaker 08:
person in charge is several lines removed from the ultimate people who are, you know, wielding pickaxes against someone who wouldn't, I don't see a common law causation problem with some kind of joint and several liability there, if there's a venture.

[00:38:12] Speaker 08:
And maybe we'd have to go back and look for common law analogs to the to the venture idea.

[00:38:17] Speaker 08:
But if there's some

[00:38:19] Speaker 08:
common ongoing activity with some degree of knowledge and power.

[00:38:30] Speaker 08:
Where's the flaw?

[00:38:31] Speaker 08:
And I recognize absolutely that you contest that that's alleged, but just for purposes of clarifying whether there is a constitutionally questionable element to this theory.

[00:38:47] Speaker 01:
So I'd say a couple of things about that, Judge Pillard.

[00:38:49] Speaker 01:
First of all, recall, of course, that we're talking about a very different set of alleged facts here.

[00:38:54] Speaker 01:
We're not just talking about the mind and the worker.

[00:38:57] Speaker 01:
We're talking about seven layers of separation.

[00:39:00] Speaker 01:
But doctrinally, what this court and the Supreme Court had said is that the injury has to be traceable from the defendants.

[00:39:08] Speaker 01:
all the way down to the plaintiff, you have to have some way to work through the causal chain.

[00:39:14] Speaker 01:
And I want to pause on the notion of joint and several liability because it's been invoked a few times.

[00:39:21] Speaker 01:
There is no allegation in this complaint that there is joint and several liability in the traditional sense.

[00:39:28] Speaker 01:
There has been no invocation to use the language of the restatement, a tortious act in concert, for instance,

[00:39:36] Speaker 01:
Again, that goes back to the point I was making about plaintiff's theory of venture.

[00:39:41] Speaker 01:
We are worlds apart from traditional

[00:39:44] Speaker 01:
joint liability in that sense.

[00:39:47] Speaker 01:
And if someone had actually, properly, plausibly pleaded joint liability, joint in the sense of joint and several liability, that might be a way to work through the causal chain.

[00:39:59] Speaker 01:
And there are others too.

[00:40:01] Speaker 01:
I mean, I don't want to be misunderstood as suggesting that our theory is overly demanding.

[00:40:06] Speaker 01:
There are other ways to work through a causal chain.

[00:40:09] Speaker 01:
There's the language of

[00:40:11] Speaker 01:
Determinative or coercive effect that benefit versus fear and the Turani decision that Judge Nichols pointed to have used.

[00:40:19] Speaker 01:
You could have alter ego, you could have conspiracy.

[00:40:22] Speaker 01:
I mean, there are ways to shorten a causal chain.

[00:40:26] Speaker 01:
The difficulty for plaintiffs here is that with all of these steps, they can't move all the way through it.

[00:40:33] Speaker 02:
Can you point to a case in which causation has been the grounds on which

[00:40:39] Speaker 02:
standing has failed, just pure causation where there was not a redressability problem or an injury in fact problem because it seems like in many of the cases, you know, causation is mentioned as one of the requirements for standing.

[00:40:52] Speaker 02:
But it's often talked about in terms that either substantially overlap with injury or with redressability.

[00:40:59] Speaker 02:
And there are very few cases, I was able to find only a couple, where causation was discussed in a separate way.

[00:41:06] Speaker 02:
So I'm wondering if you can point us to any such cases.

[00:41:11] Speaker 01:
So Judge Rao, we found the same thing.

[00:41:14] Speaker 01:
I think part of that is frankly because of the legal theory we're dealing with here, right?

[00:41:20] Speaker 01:
In an ordinary case where someone commits a tort against someone else, right?

[00:41:25] Speaker 01:
There's a traffic accident, causation is pretty clear.

[00:41:29] Speaker 01:
And if the person who is responsible for the accident is an agent or an employee,

[00:41:35] Speaker 01:
then it's pretty clear how you move the next step in the causal chain.

[00:41:38] Speaker 01:
Causation often isn't tested because you often aren't talking about the bare purchase of a fungible commodity at the other end of the earth.

[00:41:49] Speaker 01:
The cases that we have found are typically cases in this court about procedural injury.

[00:41:55] Speaker 01:
For instance, Florida auto bond.

[00:41:57] Speaker 02:
Those are very different, right?

[00:41:58] Speaker 02:
Because here there is a private farm.

[00:42:01] Speaker 02:
I mean, these plaintiffs have undoubtedly suffered

[00:42:05] Speaker 02:
you know, a concrete and particularized injury.

[00:42:08] Speaker 02:
And they are seeking money damages.

[00:42:10] Speaker 02:
I mean, also injunctive relief, but if you're just focusing on the money damages, which means there's redressability because, of course, this court can award money damages.

[00:42:18] Speaker 02:
And so then, you know, what work is the, like, I guess you have to have, I think, some theory about why Congress can't loosen that causal link.

[00:42:30] Speaker 02:
If you think it doesn't exist as a matter of sort of ordinary causation principles, why doesn't it exist under the statute?

[00:42:38] Speaker 01:
So a couple of thoughts.

[00:42:40] Speaker 01:
Absolutely agree with the observation that ordinarily you will have a redressability issue or an injury question.

[00:42:47] Speaker 01:
This is a bit unusual.

[00:42:50] Speaker 01:
A couple of things to say about that.

[00:42:51] Speaker 01:
First of all, of course, there is no case saying that causation drops out.

[00:42:55] Speaker 01:
On the contrary, there are dozens of cases saying that traceability is an independent constitutional requirement.

[00:43:02] Speaker 01:
I think the sort of structural reason for that relates to the same basic separation of powers questions that underlie a lot of standing doctrine.

[00:43:12] Speaker 01:
You need to make sure that you have the right parties before the court, and you need to make sure that the court is limited in addressing a concrete dispute and not a broader policy question.

[00:43:24] Speaker 02:
Congress has arguably addressed what's fairly traceable.

[00:43:27] Speaker 02:
They're saying if someone is an adventurer with people who engage in these

[00:43:33] Speaker 02:
then we will say this harm is traceable to them.

[00:43:38] Speaker 02:
So is it your view that Congress can't define that traceability?

[00:43:42] Speaker 02:
I understand you can test whether you are in a venture, right?

[00:43:44] Speaker 02:
But if you're in a venture, why isn't that legislative determination that that satisfies traceability sufficient?

[00:43:51] Speaker 01:
So again, I think the answer lies in cases like Ramirez, TransUnion, and Spokeo, which say Congress absolutely has some flexibility, but what those cases tend to do, and admittedly it's in the context of injury, is they tend to say there are limits on that, and it is up to the Article III courts to determine whether what Congress is doing.

[00:44:15] Speaker 01:
And again, here we're hypothesizing again this

[00:44:17] Speaker 01:
exceptionally capacious notion of a venture, but that what Congress is doing goes beyond traditional notions of causation or collective responsibility.

[00:44:30] Speaker 08:
Let me ask you, Mr. Schenke, about, you mentioned this incredibly capacious notion of responsibility, and you mentioned the bare purchase of a fungible commodity at the other end of the chain.

[00:44:43] Speaker 08:
And help me out, because I think one of the hardest things

[00:44:47] Speaker 08:
for your clients in this case is that they are major buyer of these minerals in the world.

[00:44:58] Speaker 08:
And these mines are the major extractors of these minerals.

[00:45:04] Speaker 08:
There's not a lot of fungibility actually.

[00:45:07] Speaker 08:
And I would assume, given the sophistication of your clients and the importance at this stage of these minerals to their products, that they aren't just waiting and buying a fungible commodity from Umacore.

[00:45:22] Speaker 08:
This is the thing that I think makes it more plausible than it might otherwise be, that actually there is a direct relationship between your clients and the mines, right?

[00:45:34] Speaker 08:
Because what responsible technology company

[00:45:37] Speaker 08:
would allow itself to be beholden to and wait and decide whether a Chinese company is going to favor them with their essential ingredients.

[00:45:51] Speaker 01:
So if you'll bear with me, I want to unpack a few predicates there because there's several and they're all very important.

[00:45:58] Speaker 01:
So first of all,

[00:45:59] Speaker 01:
Going back to a question Chief Judge Srinivasan that you asked, when you look at the relationship between, for instance, Alphabet and Ishmael, there are numerous steps.

[00:46:16] Speaker 01:
And my friend on the other side collapsed or conflated some of them.

[00:46:19] Speaker 01:
And everything I'm about to say is straight out of the complaint.

[00:46:23] Speaker 01:
It is from Ishmael,

[00:46:26] Speaker 01:
to CMKK, to Glencore, to Umicore, to Alphabet.

[00:46:33] Speaker 01:
So he said, my friend on the other side said a few times, for instance, that the defendants have direct relationships with the mining companies.

[00:46:43] Speaker 01:
That is not what the complaint alleges.

[00:46:45] Speaker 01:
What the complaint alleges is that they are going through multiple layers of intermediaries.

[00:46:50] Speaker 01:
And that assertion built into it is the notion that, for instance, Glencore and CMKK

[00:46:57] Speaker 01:
are the same thing, and that's not actually what the complaint alleges.

[00:47:02] Speaker 01:
Judge Pillard, going back to another aspect of your question, I don't think it is alleged that these five defendants are the major buyers of Cobalt or what is underlying that suggestion.

[00:47:15] Speaker 01:
that they have overwhelming market power such that at least if we're talking about constitutional control traceability, that they are controlling everything that happens all the way down this chain.

[00:47:28] Speaker 01:
On the contrary, if you look at, for instance, page five of the complaint, the allegation is cobalt is used by all other tech and electric car companies in the world.

[00:47:38] Speaker 01:
And indeed there are also numerous minds and numerous suppliers.

[00:47:43] Speaker 01:
And so what we have,

[00:47:44] Speaker 01:
is instead this incredibly complicated web with no plausible allegation of constitutional control sort of all the way down it.

[00:47:53] Speaker 01:
I want to be cognizant of time.

[00:47:55] Speaker 05:
What do you mean by constitutional control when you use no plausible allegation of constitutional control?

[00:48:00] Speaker 05:
What would that require?

[00:48:01] Speaker 01:
Well, so again, I mean, to use the language of benefit versus fear, one way you would show that is that there is a determinative or coercive effect

[00:48:09] Speaker 01:
That's one test that courts have used to look at ways to move down a causal chain.

[00:48:17] Speaker 01:
And again, we don't have that here.

[00:48:19] Speaker 01:
We don't have any allegation, much less a plausible allegation that one of the defendants pick one, Apple, so controls Umicore and that Umicore so controls Glencore and that Glencore so controls CMKK that you can attribute the acts all the way at the bottom of the chain

[00:48:39] Speaker 01:
There was a suggestion before that you have to reach down to the labor brokers.

[00:48:44] Speaker 01:
There is no allegation, there is no suggestion that the acts of the labor brokers are paused in that sense of control as a constitutional traceability notion all the way down this.

[00:48:57] Speaker 05:
I guess what I'm asking is for what would be the allegation that would suffice?

[00:49:02] Speaker 05:
I mean, I'm not asking you to argue against yourself, but

[00:49:04] Speaker 05:
If suppose that it was there were allegations about market power and it was 90% at every stage that you go through seven letters and it's this entity has 90% ownership over this entity.

[00:49:16] Speaker 05:
This entity has 90% ownership of this entity.

[00:49:19] Speaker 05:
Is that the type of thing that would be?

[00:49:20] Speaker 05:
enough to get to the determination and control to meet constitutional control for your purposes.

[00:49:25] Speaker 01:
So I want to be a little bit cautious about talking about market share.

[00:49:28] Speaker 01:
We're sort of tiptoeing into antitrust sounding stuff that has that has its own pleading requirements.

[00:49:34] Speaker 01:
I think going back to a colloquy that we had earlier, you would be looking for these kinds of traditional notions of control or joint responsibility that are the ways you move through a causal chain.

[00:49:47] Speaker 01:
Like what?

[00:49:48] Speaker 01:
What's up conspiracy alter ego true I'm historical traditional joint and several liability if it were truly the to take an extreme example if everyone all the way down this chain sat down in a room together and said.

[00:50:06] Speaker 01:
let's do some forced labor, then that would look like traditional circumstances in which they are all in it together in the causal sense.

[00:50:17] Speaker 08:
And Congress knew in writing this statute that that's not what happens with sex trafficking.

[00:50:23] Speaker 08:
That's not what happens with human labor trafficking.

[00:50:25] Speaker 08:
That's not what happens with forced labor, forced child labor.

[00:50:29] Speaker 08:
Nobody sits in a room and says, we're doing this.

[00:50:32] Speaker 08:
It's very much head in the sand,

[00:50:35] Speaker 08:
not in a wink, benefiting.

[00:50:38] Speaker 08:
So I mean, I think that's part of the explanation of why there is a venture concept in the statute.

[00:50:45] Speaker 08:
And so you also mentioned a moment ago, and I'm really struggling with this question about how to understand the traceability given the unique situation of this is where the minerals are on the earth.

[00:51:05] Speaker 08:
And you said that there are many, not only many different tech companies, not just defendants, but many suppliers.

[00:51:12] Speaker 08:
And I guess then that raises the question, if the company is on notice, if there is this pervasive and difficult and illegal child labor going on, why not choose a different supplier?

[00:51:27] Speaker 01:
Well, so I offer a couple of thoughts, Your Honor.

[00:51:29] Speaker 01:
First of all, it is alleged in the complaint

[00:51:32] Speaker 01:
that defendants indeed are trying to make efforts to ameliorate the problem.

[00:51:38] Speaker 01:
That is, as Your Honor pointed out, a very separate question from whether someone is causally responsible for it.

[00:51:45] Speaker 01:
Going back to the beginning of Your Honor's question, I don't mean to suggest that the only way in which there could be venture liability or separately causation would be everyone sits down in a room.

[00:51:59] Speaker 01:
And there are examples in the cases

[00:52:02] Speaker 01:
of ventures.

[00:52:04] Speaker 01:
Rikio is sort of a classic example of it, one of the motel cases.

[00:52:11] Speaker 01:
The difficulty is that what we have here is something so far removed from that.

[00:52:17] Speaker 01:
It's as if in the motel cases,

[00:52:20] Speaker 01:
You were putting into a single venture, everyone who works in every single motel in the country, every single motel owner in the country, every single franchise or of a motel in the country and all of the sex traffickers who happen to use any one of those franchised motels.

[00:52:39] Speaker 01:
I don't at all mean, again, your honor, to diminish what Congress had in mind here or the danger of the existence of the underlying conditions.

[00:52:52] Speaker 01:
But again, that's a very separate question, which really just speaks to the question of knowledge.

[00:53:00] Speaker 01:
And obviously now we're moving over to the statutory question.

[00:53:03] Speaker 05:
But it is different from the Mattel one, even in the way that you described it, because

[00:53:10] Speaker 05:
Approprious acts that occur at motels, they happen, but they're not routine fair.

[00:53:18] Speaker 05:
And I thought part of what's going on here is the incidents, the extent to which people are on knowledge, anybody involved in this area is on knowledge that the source of abuses that are alleged in the complaint are part of what happens in mines.

[00:53:35] Speaker 05:
I apologize, Your Honor, I'm not sure I understood.

[00:53:38] Speaker 05:
So in other words, I mean, I take the point about motels that if you're in, it's not every motel, every franchise or a motel with respect to some particular incident that occurs in a motel because those seem like one-offs.

[00:53:52] Speaker 05:
You're participating in the enterprise of motels for all kinds of reasons, including legitimate lodging that happens all the time.

[00:53:57] Speaker 05:
Whereas with forced labor and abusive practices that occur in mines in the DRC, I thought part of what's going on here

[00:54:05] Speaker 05:
is that there's general knowledge that this happens.

[00:54:08] Speaker 05:
That's why your clients are engaged in efforts to root it out.

[00:54:14] Speaker 05:
You don't see that kind of effort going on in the motel industry because that's just not something that exists in the motel industry as regular fare.

[00:54:21] Speaker 01:
And I don't know a lot about the motel industry, but have read a bunch of these cases.

[00:54:26] Speaker 01:
I'm not sure that's actually necessarily true.

[00:54:28] Speaker 01:
I think there is some sense that this sort of thing does tend to happen with some level of pervasiveness.

[00:54:34] Speaker 01:
But I think the broader point, Your Honor, is that if that were enough, if it were enough to simply be anywhere in a global, use the term in a colloquial sense, venture, that every single supply chain in the world, if you sue enough people, you could impute to them some level of knowledge, right?

[00:54:55] Speaker 01:
That would be true of the entire cocoa industry and the entire rubber industry and on and on and on and on.

[00:55:01] Speaker 01:
And there would be no statutory limit on that.

[00:55:04] Speaker 01:
But at most, and this goes to a question, your honor, that you asked earlier, that would only speak to the knowledge question, right?

[00:55:10] Speaker 01:
That's the question of whether you have to have knowledge about acts or just knowledge broadly about problem.

[00:55:16] Speaker 01:
That doesn't answer the predicate question of what it means for there to be a venture and what it means to participate in a venture.

[00:55:24] Speaker 01:
And if I, if I could shift over to that, that just asked you one question about that.

[00:55:28] Speaker 02:
I mean, Mr. Trump, see, do you agree that if there is a venture that they're standing,

[00:55:34] Speaker 02:
that if this court were to think that there were a venture here that there would be standing?

[00:55:41] Speaker 01:
I want to answer the question very carefully.

[00:55:45] Speaker 01:
If the facts established a venture on the other side's understanding of what a venture is, that is to say a tacit agreement to purchase a good

[00:56:02] Speaker 01:
If that is the only thing that would satisfy the statutory element of a venture, then no, I do not think there would be constitutional traceability.

[00:56:14] Speaker 05:
Right, because you think there's an independent constitutional requirement.

[00:56:17] Speaker 05:
Exactly.

[00:56:18] Speaker 02:
Congress cannot loosen it.

[00:56:23] Speaker 01:
At some bottom line level, no, there isn't.

[00:56:27] Speaker 01:
Again, the line is sort of a cliche at this point, but if there is an irreducible constitutional minimum, there is something that Congress cannot go past and it has flexibility.

[00:56:39] Speaker 08:
But on... I was just going to interject that you characterized the other side's view as that a venture is a tacit agreement to purchase a good.

[00:56:49] Speaker 08:
But what I took Mr. Collingsworth to be arguing

[00:56:53] Speaker 08:
is that although he hasn't been able to gain access to any of the contracts, that it seems likely that there are actual agreements.

[00:57:01] Speaker 08:
And he points to the monitoring and that kind of stuff as sort of illustrative, that there's some direct interaction.

[00:57:10] Speaker 08:
And he says, you know, the likelihood is, and this is also illustrated by the Tesla direct, I gather, agreement with Glencore,

[00:57:19] Speaker 08:
that it's likely that all of these companies say, look, you're going to prioritize selling me X share of what you're producing mine.

[00:57:28] Speaker 08:
They're not waiting for it to go through your court and dealing only there.

[00:57:32] Speaker 08:
And if, if that were the case or if that were a alleged, which you may disagree with the proved that these defendants have agreements, even though they're ultimately buying the, uh, the refined

[00:57:49] Speaker 08:
Cobalt through Umacore, if they have agreements with these minds to say, look, reserve for me, you know, your best 50%, is that constitutionally inadequate for purposes of traceability?

[00:58:07] Speaker 01:
Oh, I thought your honor was going to ask a different

[00:58:09] Speaker 01:
So for constitutional traceability purposes, then obviously that would collapse the causal chain quite a bit.

[00:58:21] Speaker 01:
Let me finish answering the question by focusing on the statutory piece.

[00:58:26] Speaker 01:
The question is, what is the agreement?

[00:58:30] Speaker 01:
What is an agreement?

[00:58:31] Speaker 01:
What is it an agreement for and with whom?

[00:58:35] Speaker 01:
So the allegations here are that

[00:58:38] Speaker 01:
It is an agreement to purchase a good not with a mine.

[00:58:43] Speaker 01:
That is not what has been alleged.

[00:58:45] Speaker 01:
But with someone farther up the chain, there is your honor alluded to the bit about Glencore and Tesla.

[00:58:54] Speaker 01:
The other side is acknowledged that that post states any of the allegations here.

[00:58:59] Speaker 01:
But if you look carefully at the complaint, the allegations are that these purveyors, Glencore and HUIU, that they are not themselves the mine owners.

[00:59:12] Speaker 01:
And so again, there are multiple layers built in there.

[00:59:17] Speaker 08:
But more fundamentally- Does it not matter that the power is with

[00:59:25] Speaker 08:
certain players and the fact that they may have some layers of subsidiaries, just layers of subsidiaries with their agents and will do what they want.

[00:59:35] Speaker 01:
Now, there is no allegation that they are agents.

[00:59:38] Speaker 01:
There is no allegation that they have control over them.

[00:59:41] Speaker 01:
There is no allegation of alter ego that that says you could push them together and pausing on the notion of alter ego.

[00:59:49] Speaker 01:
Even if they had alleged alter ego, alter ego is when you sue one company, you can when it doesn't deserve corporate formalities, go after its parents.

[00:59:59] Speaker 01:
But there's no doctrine of alter ego that I'm aware of that says you can go through to a third party who might not even know about the alter ego issue with regard to the intervening ones.

[01:00:10] Speaker 01:
There is no plausible allegation here that there is a kind of power that, that I think your honor was just, do you think so?

[01:00:19] Speaker 05:
Do you think that the complaint based just based on the allegations of a divorce from what we know about the world is the same as if the complaint were against some company we'd never heard of that bought

[01:00:31] Speaker 05:
that uses Cobalt in a product itself.

[01:00:36] Speaker 01:
I'm not quite sure how to answer that.

[01:00:38] Speaker 01:
There is no allegation of market power here.

[01:00:41] Speaker 01:
There is no allegation that these companies control.

[01:00:45] Speaker 01:
I think it's really important to focus on what the complaint alleges.

[01:00:49] Speaker 01:
The complaint alleges that they have

[01:00:52] Speaker 01:
Purchased a good and going back to the language of the 11th Circuit and Red Roof ends merely having a supply contract, nearly purchasing.

[01:01:01] Speaker 05:
Then I don't know why the answer to my question isn't yes.

[01:01:03] Speaker 05:
I don't know why it's hard to answer it if that's because I think all I'm trying to get at is if there's no allegation about market share, if there's no allegation about control in the way that you're talking about, then the fact that we all know what Tesla does

[01:01:15] Speaker 05:
and Apple does, is it the same thing as if the allegations were against a company who was alleged to have purchased products that use, I'm sorry, manufactured products that use cobalt, but we've never heard of the company?

[01:01:28] Speaker 05:
Is that your submission?

[01:01:30] Speaker 01:
Yes, I say misunderstood the thrust of the question.

[01:01:33] Speaker 01:
Yes, then I think it is the same.

[01:01:37] Speaker 01:
I think it's important to go back to the statutory term, the language of a venture,

[01:01:44] Speaker 01:
And remember, the 11th Circuit and Red Roof Inns

[01:01:48] Speaker 01:
looking back at a variety of sources sought to define that term and that that ordinary notion of a venture is taking part in a common undertaking or enterprise involving risk and potential profit.

[01:02:01] Speaker 01:
It typically looks like a partnership where, as Judge Nichols put it, you're in a commercial enterprise together, buying something in an arm's length negotiated transaction.

[01:02:14] Speaker 01:
It is worlds apart from the ordinary understanding of the term venture.

[01:02:20] Speaker 01:
And certainly it isn't participating in a venture within any sense of that language.

[01:02:27] Speaker 01:
I think this court's decision in Papano is really instructive on that.

[01:02:31] Speaker 01:
It talks about what the term participation ordinarily means.

[01:02:36] Speaker 01:
And it's a form of active involvement.

[01:02:38] Speaker 01:
It's not just mere assistance.

[01:02:41] Speaker 01:
Of course, I mean, buying could be.

[01:02:43] Speaker 05:
It could be a venture.

[01:02:45] Speaker 05:
It's just that, well, your point is it's not a loan enough to constitute a venture.

[01:02:48] Speaker 05:
I mean, you could have buyers that have control over seller in a way that constitutes every bit of a venture in the conventional.

[01:02:55] Speaker 01:
Yes, your honor, I think you would need to know a lot more and you'd have to have pretty far reaching allegations to show you that it wasn't just a buy sell purchase that in fact they had control over their supplier.

[01:03:08] Speaker 01:
But again, we just don't have that.

[01:03:10] Speaker 02:
Does the ordinary meeting of venture require some concept of shared risk?

[01:03:15] Speaker 01:
Yes, Your Honor, I believe it does.

[01:03:17] Speaker 01:
And that was what the 11th Circuit held.

[01:03:19] Speaker 01:
I mean, the most traditional sense of the term is something that looks a lot like partnership, right?

[01:03:24] Speaker 01:
And there are a lot of different ways in which you could have that.

[01:03:27] Speaker 01:
Someone contributes capital, someone contributes labor, they open up a coffee shop together, right?

[01:03:32] Speaker 01:
Someone's funding it and someone's pouring the coffee.

[01:03:35] Speaker 02:
Do you think on the ordinary meaning of venture, as you're defining it here, that would be sufficient for standing?

[01:03:42] Speaker 02:
That would be sufficient for causation?

[01:03:44] Speaker 02:
if someone could show there was shared risk and participation in a venture on that definition of venture that meet the Article 3 requirements for causation?

[01:03:55] Speaker 01:
I think ordinarily it would, Your Honor.

[01:03:57] Speaker 01:
I think that would be the type of, again, to borrow Judge Pillard's term, or a language that type of

[01:04:09] Speaker 01:
ordinary common law or traditional precursor that looks like the sort of thing that ordinarily gives rise to standing, it would be the sort of ordinary collective responsibility.

[01:04:19] Speaker 01:
But again, it's exactly the thing that plaintiffs have, have avoided here that they have said they don't have to show.

[01:04:27] Speaker 01:
And I think that that's really telling.

[01:04:29] Speaker 01:
I mean, part of the reason that we're in this

[01:04:32] Speaker 01:
Um, as you put it, your honor, sort of unusual situation about, um, the outer reaches of standing and why there is this kind of push and pull here between standing and venture.

[01:04:46] Speaker 01:
It is because of this extraordinarily broad notion of venture that has been alleged here that puts the pressure on both the venture definition, but also on article three standing.

[01:04:59] Speaker 01:
But you can imagine lots of other ventures, Rikio, again, being a perfect example of it, where, you know, you have neat questions about how far the venture goes.

[01:05:10] Speaker 01:
You don't really have any meaningful particle three problem because you're just talking about a step or two of removal.

[01:05:17] Speaker 01:
Red Roof Inn says, all right, now we're looking a step farther and it starts getting harder when, as here, the idea is we are going to throw in

[01:05:26] Speaker 01:
five huge manufacturers at the opposite end of the world, that is the thing that puts extraordinary pressure on on all of these concepts.

[01:05:37] Speaker 08:
How much does it matter?

[01:05:38] Speaker 08:
I mean, it feels intuitively almost like it does.

[01:05:41] Speaker 08:
But I but I think that might be an error.

[01:05:44] Speaker 08:
How much does it matter that it's at the opposite end of the world?

[01:05:47] Speaker 08:
I mean, if if they were companies that were

[01:05:53] Speaker 08:
aware of and benefiting from and having some kind of direct negotiated flow of goods from a child labor sweatshop in Los Angeles.

[01:06:07] Speaker 08:
It feels like it might be different, but I'm not sure conceptually that it is.

[01:06:14] Speaker 08:
And if a business at the end of the supply chain, a retailer, was careful to put

[01:06:23] Speaker 08:
some subsidiaries and some, and some agents into the line of the supply chain.

[01:06:31] Speaker 08:
To me, that feels more likely to be treated as a venture.

[01:06:39] Speaker 08:
And I take it, I feel like that might be your impulse too, but I'm not sure why.

[01:06:43] Speaker 08:
And I, I'm not, I'm not asking you a very clear question, but you, you mentioned several times that this is on the other side of the world.

[01:06:50] Speaker 08:
And I'm just trying to,

[01:06:52] Speaker 08:
isolate that factor and bring it closer to home.

[01:06:56] Speaker 01:
I don't want to overdo the point, your honor.

[01:06:58] Speaker 01:
I don't think it's dispositive.

[01:07:00] Speaker 01:
I think it's just illustrative of the extraordinary breadth of the theory here.

[01:07:05] Speaker 01:
I do want to be cautious again, your honor talked a moment ago about, um, interposing agents into our subsidiaries within then again, going back to this same discussion we've been having,

[01:07:19] Speaker 01:
then you would look at whether it truly is an agent in the traditional sense.

[01:07:23] Speaker 01:
And ordinarily you are responsible for the actions of your agents within the scope of their employment.

[01:07:30] Speaker 01:
And that would be a traditional way to work your way up the chain, both for constitutional causation purposes and probably separately for purposes of thinking about who's in the venture together.

[01:07:41] Speaker 01:
And so the forced labor is in

[01:07:48] Speaker 01:
Los Angeles as opposed to in the Democratic Republic of Congo, we might imagine that there are fewer layers.

[01:07:55] Speaker 01:
But I don't know that there's something doctrinal that answers that.

[01:08:00] Speaker 05:
Well, one way that other side of the world fits into it is extraterritoriality to some extent.

[01:08:04] Speaker 05:
And can I just ask you one question about that?

[01:08:06] Speaker 05:
So why would Congress have specifically decided that there is going to be jurisdiction extraterritorially for criminal purposes?

[01:08:18] Speaker 05:
but then not have extraterritorial reach for U.S.

[01:08:22] Speaker 05:
companies in a civil way?

[01:08:25] Speaker 01:
So I think the answer is in RJR Nabisco.

[01:08:28] Speaker 01:
RJR says, and this is at page 347, defining a cause of action based on conduct within the territory of another sovereign carries with it significant foreign policy implications.

[01:08:39] Speaker 01:
And so it then says, a couple of pages later, the presumption against extraterritoriality must be applied separately to both the substantive prohibitions and the private right of action.

[01:08:52] Speaker 01:
And that's exactly what, as Your Honor noted earlier, that's exactly what happened with RICO, right?

[01:08:57] Speaker 01:
I mean, the holding of RJR Nabisco is that Congress applied criminal RICO extraterritorial in an extraterritorial fashion, but not civil

[01:09:10] Speaker 01:
And one reason for that is given the potential for international friction in criminal cases, you have the mediating effect of prosecutorial discretion.

[01:09:26] Speaker 01:
And in fact, in this statute, we have clear textual evidence that Congress was attentive to that.

[01:09:33] Speaker 01:
In 1596, the provision that renders extraterritorial

[01:09:40] Speaker 01:
some of the underlying offenses.

[01:09:43] Speaker 01:
There are specific limitations on who can be prosecuted and the unusual requirement that only certain very high ranking DOJ officials, the deputy attorney general and the attorney general can authorize those prosecutions.

[01:10:02] Speaker 01:
And Congress even says that's a non-delegable decision.

[01:10:06] Speaker 01:
I think that Congress was attentive to

[01:10:10] Speaker 01:
exactly the risk of the situation where any private plaintiff can go after conduct that occurred outside of the country.

[01:10:21] Speaker 08:
And on your reading of the statute, the Roe v. Howard extraterritorial application would also be far.

[01:10:29] Speaker 01:
I think it's very hard to swear Roe v. Howard with RJR in a disco.

[01:10:33] Speaker 01:
Roe, the sort of rationale for it is this suggestion that in RJR there was a gap, as they put it, between the predicates and the civil cause and function.

[01:10:51] Speaker 01:
It's just not a fair reading of RJR.

[01:10:53] Speaker 01:
When you look at what RJR was focused on,

[01:10:57] Speaker 01:
It talked about, again, this potential for international friction.

[01:11:00] Speaker 01:
And that's what drove the courts holding that you need something more where you're talking about a civil cause of action.

[01:11:09] Speaker 01:
Yeah.

[01:11:09] Speaker 08:
And that's a powerful difference.

[01:11:12] Speaker 08:
And it really is a powerful difference between criminal where the government has discretion and control.

[01:11:18] Speaker 08:
And they're really quite rare, those actions and civil where anybody can raise a claim.

[01:11:25] Speaker 08:
It might not even be meritorious.

[01:11:27] Speaker 01:
Right, and the, oh, I'm sorry, Your Honor.

[01:11:30] Speaker 08:
And the difficulty, I find it hard to think that Congress actually didn't intend the civil action to apply overseas.

[01:11:41] Speaker 08:
They enacted the 2008 amendment before Ardera and Nabisco.

[01:11:47] Speaker 08:
And one thing that's different about RICO from this statute is this statute has

[01:11:54] Speaker 08:
the explicit extra-territoriality provision.

[01:11:58] Speaker 08:
In RICO, the court was dealing entirely with the underlying criminal, the definitions of those crimes.

[01:12:08] Speaker 08:
Does it make a difference that here there is

[01:12:12] Speaker 08:
an explicit separate section talking about extra-territoriality?

[01:12:16] Speaker 01:
I think, if anything, that makes our argument stronger rather than weaker.

[01:12:20] Speaker 01:
Both RJR at page 339 and Morrison at page 265 say that where you have a statute and Congress has made certain provisions explicitly extra-territorial, that tells you that they probably intended the opposite for the ones that aren't explicitly denominated as extra-territorial.

[01:12:39] Speaker 01:
And beyond that,

[01:12:41] Speaker 01:
Not only does 1596 not list 1595 as an extraterritorial provision, Congress amended 1595 at the very same time that it enacted 1596.

[01:12:56] Speaker 01:
So this isn't one of those situations where, rare as they are, one might say, well, maybe Congress wasn't really thinking about this.

[01:13:02] Speaker 01:
Congress was looking at these particular provisions at exactly the same time.

[01:13:07] Speaker 01:
And when they did it, when they enacted 1596, they used the language of criminal law.

[01:13:13] Speaker 01:
Congress referred to an offense, which

[01:13:16] Speaker 01:
Kellogg Brown and Root tells us the Office of the Solicitor General couldn't find a single statute in which offense was used in a civil sense.

[01:13:26] Speaker 08:
Although curiously also the Civil Remedy Provision talks about victims bringing suits against perpetrators.

[01:13:32] Speaker 08:
And a perpetrator is typically not a tort user.

[01:13:34] Speaker 08:
It's a criminal perpetrator.

[01:13:37] Speaker 08:
So there's a little bit of

[01:13:39] Speaker 08:
loose language in that civil remedy provision, too.

[01:13:42] Speaker 01:
Fair enough, Your Honor.

[01:13:43] Speaker 01:
I don't think that overcomes that broader problem.

[01:13:46] Speaker 01:
And it's also noteworthy that all of the listed provisions in 1596 are criminal, that 1596 talks about prosecution of offenses, and again, that 1596 has these built-in extra safeguards beyond ordinary prosecutorial discretion.

[01:14:04] Speaker 01:
If plaintiffs' theory were correct,

[01:14:07] Speaker 01:
that 1596 made, for instance, 1589 extraterritorial and 1589 flows through 1595, those protections that Congress explicitly put in 1596 would be out the window.

[01:14:23] Speaker 05:
I think that the claim would be not that 1596 makes made 1595 extraterritorial, but that 1596 defines the parameters of extraterritorial application in the criminal context against a backdrop of

[01:14:36] Speaker 05:
extraterritorial application in the civil context.

[01:14:40] Speaker 01:
So I think the argument, well, I won't speak for the other side.

[01:14:44] Speaker 01:
My understanding is that the argument is as I've characterized it.

[01:14:48] Speaker 05:
Yeah, I didn't mean to suggest that that was necessarily their argument.

[01:14:51] Speaker 05:
I think that would be an argument in the air that would work, because it could work, notwithstanding your points, understandable points about the terminology of 1596, would be that that operated against a backdrop of

[01:15:05] Speaker 05:
extraterritorial application that already exists in the civil complex.

[01:15:11] Speaker 05:
Because of the context of trafficking and forced labor, everybody knows that what Congress is looking at involved an international dynamic.

[01:15:20] Speaker 01:
Well, to be sure, the statute involves an international dynamic.

[01:15:24] Speaker 01:
But remember, both the TVPA and the TVPRA have tons and tons of provisions.

[01:15:30] Speaker 01:
These are omnibus statutes.

[01:15:32] Speaker 01:
And in fact, the TVPRA, if you look at

[01:15:36] Speaker 01:
the language of the bill itself, it has a whole title combating international trafficking in persons that doesn't relate to the provisions here.

[01:15:49] Speaker 01:
So to be sure, everyone understood that aspects of this are international.

[01:15:54] Speaker 01:
I think that's sort of weak tea to show something more that the Supreme Court has said we need to find if we're going to take a civil provision.

[01:16:04] Speaker 01:
Why?

[01:16:04] Speaker 08:
Why?

[01:16:06] Speaker 08:
I mean, RICO is very much thought of as domestic.

[01:16:10] Speaker 08:
It's organized crime oriented.

[01:16:12] Speaker 08:
It's responding to problems that were at least initially perceived to be principally domestic.

[01:16:18] Speaker 08:
But I do think that the findings and the hearings and the attention on the matters that this act covers has been very much international.

[01:16:32] Speaker 08:
So why isn't that something more?

[01:16:36] Speaker 08:
Or it said, could be, doesn't have to be explicit.

[01:16:40] Speaker 01:
So I think that that cannot overcome the fact that, again, Congress was enacting 1595 and 1596 at the same time and said nothing about extraterritoriality in 1595.

[01:16:54] Speaker 01:
And again, to go back to Chief Judge Srinivasan, where you and I started, there are other provisions of the statute that are absolutely explicitly extraterritorial.

[01:17:04] Speaker 01:
and always have been.

[01:17:05] Speaker 01:
In 1586, about transporting slaves from one foreign country to another on a boat, as I read it, I think it may be only extraterritorial.

[01:17:18] Speaker 01:
But against that background.

[01:17:19] Speaker 08:
But only criminal, in your view.

[01:17:22] Speaker 01:
Yes, Your Honor.

[01:17:22] Speaker 01:
I mean, it is a criminal provision.

[01:17:24] Speaker 01:
My point is simply that in a statute in which there are explicit indications of extraterritoriality, Congress chose not to do any such thing when it

[01:17:33] Speaker 01:
and it enacted the civil provision.

[01:17:37] Speaker 01:
If I could just add one finishing thought on this point, Judge Pillard, you started by asking about Roe.

[01:17:43] Speaker 01:
And we were talking about this question of a gap that reportedly was an issue in RJR.

[01:17:51] Speaker 01:
But leaving aside the fact that in RJR, that was really the icing on the cake.

[01:17:55] Speaker 01:
I mean, if you read the decision, I think the introductory languages, if anything, meaning if that gap means anything at all,

[01:18:03] Speaker 01:
There's a similar gap here, too, in the sense that 1595, through the parenthetical, the benefiting from participating, expands the underlying predicates in a way that most of them wouldn't already apply.

[01:18:21] Speaker 01:
And so you have, if anything, an even more powerful signal

[01:18:25] Speaker 01:
through that kind of gap that you would need something more for Congress to have indicated that it intended to go broader.

[01:18:34] Speaker 08:
You're saying it's a gap that goes in the other direction.

[01:18:37] Speaker 08:
The gap in RJR was that the claims, RICO claims could only be civilly brought for loss of personal property and excluded frauds, securities frauds.

[01:18:50] Speaker 08:
So the civil claim there was narrower, whereas here you're saying this is a broader

[01:18:55] Speaker 01:
Yes, and so it implicates even more powerfully the concerns about international friction that motivated the decision in RJR.

[01:19:06] Speaker 08:
Although it's interesting to me that the court, and I'm not sure I entirely understand why the court seemed to think that was important, that somehow if the civil cause of action was authorized for everything that was

[01:19:23] Speaker 08:
subject to criminal prosecution, that somehow that would indicate that the civil claim should or was intended to reach extraterritorially.

[01:19:34] Speaker 08:
I'm not sure I entirely follow that logic, but that's why I took the court to ice that cake, as you put it.

[01:19:40] Speaker 01:
So I think what the court was getting at in OVAR-JR was

[01:19:47] Speaker 01:
obviously dealing with Rico and it's this sort of multi-layer thing, right?

[01:19:50] Speaker 01:
So you have the predicates and then those filtered through the criminal provision, and then they also can give rise to civil liability.

[01:19:58] Speaker 01:
And the court says the predicates, they're sort of, they define the criminal offense, right?

[01:20:05] Speaker 01:
They're absolutely made it up.

[01:20:07] Speaker 01:
There's like a one-to-one.

[01:20:08] Speaker 01:
And I think what the court was saying is once you, once you move away from that to the civil domain,

[01:20:14] Speaker 01:
where it's calibrated differently than if anything, it tells us it's not that same kind of pairing.

[01:20:21] Speaker 01:
It's not a definitional match between the two.

[01:20:24] Speaker 01:
And that's a way that the court sort of looked at a difference between the criminal and the civil incorporation.

[01:20:31] Speaker 01:
Again, I share the feeling that I sense is underlying the puzzled look on your honor's face.

[01:20:40] Speaker 01:
I mean, obviously the court was a bit at pains to figure out

[01:20:44] Speaker 01:
to work through that.

[01:20:45] Speaker 01:
But I think it applies absolutely squarely here for the reasons we've been talking about.

[01:20:52] Speaker 01:
Thank you, Council.

[01:20:53] Speaker 05:
Thank you.

[01:20:54] Speaker 05:
Mr. Collingsworth will give you four minutes for rebuttal.

[01:21:11] Speaker 06:
Thank you, Your Honors.

[01:21:13] Speaker 06:
Just briefly on extraterritorial jurisdiction, since that was the last topic you all were discussing.

[01:21:20] Speaker 06:
I do want to pick up on the fact that 1595 and 1596 were enacted at the same time, as was pointed out.

[01:21:28] Speaker 06:
1596 was enacted for the first time in 1595 was amended in the 2008 William Wilber for trafficking Victims Protection Act amendments and in 1595 be so that you think they're working together.

[01:21:43] Speaker 06:
They created a scheme of some sort at the same time that made sense.

[01:21:48] Speaker 06:
1595b makes the only distinction in the entire scheme between criminal and civil action.

[01:21:55] Speaker 06:
It says, any civil action filed under this section shall be stayed during the pendency of a criminal action arising out of the same occurrence in which the claimant is the victim.

[01:22:06] Speaker 06:
That shows that if they wanted to make that distinction between criminal and civil, they could, they did, at the very same time they enacted the statute.

[01:22:14] Speaker 06:
If they wanted offense in 1596,

[01:22:18] Speaker 06:
to only mean criminal and create all of this confusion they could have easily said an offense is a criminal action or there are other ways they could have done it but it makes perfect sense that they didn't make any distinction of what kind of offense because the underlying statutory provisions for example 1589 for forced labor

[01:22:38] Speaker 06:
The elements are identical, whether it's criminal or whether you're going to use that as a civil basis.

[01:22:44] Speaker 05:
But 1596 then has the limitation on prosecution, prosecutor in other countries, and it talks about the deputy attorney general.

[01:22:51] Speaker 05:
That has nothing to do with civil.

[01:22:54] Speaker 05:
That's correct.

[01:22:55] Speaker 05:
So that it doesn't apply to the civil actions.

[01:22:58] Speaker 05:
But what does apply?

[01:22:59] Speaker 05:
It tells you that an offense, I think, is conceived of in 1596, is what we traditionally think of as a criminal offense.

[01:23:04] Speaker 06:
And that's specific to the criminal cases.

[01:23:07] Speaker 06:
But 1596,

[01:23:10] Speaker 06:
in the main provision, it requires that the alleged offender be a national of the United States or an alien lawfully admitted, et cetera, which indicates that that was their way of assuring that civil cases or any case brought would not have the great potential for foreign relations problems because they were limited the target to US nationals or those present in the US.

[01:23:36] Speaker 08:
Isn't it most plausible that

[01:23:39] Speaker 08:
Congress may indeed have thought that it was writing the statute for the civil provision to apply extra-territorially.

[01:23:49] Speaker 08:
It was deciding this before RJR Nabisco.

[01:23:51] Speaker 08:
And it just did not do what it needs to do under the Supreme Court's RJR Nabisco analysis to make that clear.

[01:23:59] Speaker 06:
Well, as both the legal scholars brief, which really focuses on that issue, and as we mentioned in our reply, if you go through the predicate acts analysis of our J.R.

[01:24:10] Speaker 06:
Reynolds, it fits perfectly with.

[01:24:13] Speaker 06:
that that assessment that 1596 makes those predicate acts extraterritorial and 1595 allows you to bring the claim that is now made extraterritorial that and again they passed these at the same time and it fits together beautifully.

[01:24:31] Speaker 06:
And I didn't hear the other side mention the cases involved.

[01:24:35] Speaker 06:
Like Adhikari, the Fifth Circuit went right to the explicit grant of extraterritorial jurisdiction, had no problem saying that that is what it did.

[01:24:44] Speaker 06:
So I think that that is at least we support that position.

[01:24:49] Speaker 06:
I wanted to also just briefly talk about the venture issue because my time is quickly ending.

[01:24:55] Speaker 06:
Again, as I said in my opening remarks, their venture argument depends entirely on a cartoon notion of what we're saying about a venture.

[01:25:07] Speaker 06:
It repeated, repeated, repeated that we just mean you purchased something.

[01:25:12] Speaker 06:
That's the argument they were making about the mobile cell retail buyer.

[01:25:17] Speaker 06:
That's not our argument at all, and we're not inventing a venture standard.

[01:25:21] Speaker 06:
We're applying the case law that we cite in our briefs for both of those tests, either the association and fact tests from 1591 E6 or the continuous business relationship with the tacit agreement.

[01:25:35] Speaker 06:
We are applying those tests and they fit perfectly here.

[01:25:39] Speaker 06:
They show that there's an ongoing business relationship.

[01:25:42] Speaker 06:
There clearly is some kind of agreement between the companies and the cobalt mines.

[01:25:47] Speaker 06:
And the fact of these policies shows a contractual relationship.

[01:25:51] Speaker 06:
So that is a perfect fit for the tests that already exist.

[01:25:56] Speaker 06:
We're not making those up.

[01:25:57] Speaker 06:
Numerous cases have used those tests and we're simply applying those.

[01:26:01] Speaker 06:
I wanted to also just briefly mention that

[01:26:04] Speaker 06:
In terms of the chain of production, every chain of command here, every single time we mentioned Glencore and the mines, we include that Glencore owns or controls those mines.

[01:26:17] Speaker 06:
That was our research.

[01:26:19] Speaker 06:
We determined that that was a fact, and that's in the complaint.

[01:26:23] Speaker 06:
And similarly, when we talk about Ishmael, for example, we call them an agent or an operator for the mine.

[01:26:30] Speaker 06:
So that chain is pretty small.

[01:26:31] Speaker 06:
It goes Ishmael, the mine, Glencore, and then they're in a venture with the companies.

[01:26:38] Speaker 06:
Finally, I would just like to point out that it sounds like in all of the argument here,

[01:26:48] Speaker 06:
We're talking about possibly competing theories, but I want to stress this was a motion to dismiss.

[01:26:54] Speaker 06:
Our theory is plausible and that in this court's decision in Banneker Ventures versus Graham at page 16 of our reply brief, this court said if there are alternative theories that make sense that are plausible,

[01:27:10] Speaker 06:
The plaintiffs prevail on a motion to dismiss.

[01:27:13] Speaker 06:
We don't need to be the only theory.

[01:27:15] Speaker 06:
Our theory is plausible on all of these issues.

[01:27:18] Speaker 06:
We ask the court to reverse the district court on all six of the rulings that are wrong as a matter of law.

[01:27:24] Speaker 06:
Thank you, Your Honor.

[01:27:26] Speaker 05:
Thank you, counsel.

[01:27:26] Speaker 05:
Thank you to both counsel.

[01:27:27] Speaker 05:
We'll take this case under submission.