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Case number 22-7104.

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Ysouf Kabali, individually, and on behalf of proposed class members, et al, at balance, versus Cargill, incorporated, et al.

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Mr. Collingsworth, for the at balance.

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Mr. Boutrous, for the at police.

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Good afternoon, counsel.

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

[00:00:22] Speaker 06:
Thank you, your honors, and good afternoon.

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May it please the court?

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I'd like to reserve, if possible, five minutes for rebuttal.

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The sole issue appropriately before this court is whether the Apple decision requires reversal of the district court's holding that plaintiffs lacked standing.

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That was the only decision the district court made.

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Based on Apple, this is an easy question because the standing issues in both cases are identical.

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This case was dismissed almost two years before Apple decided

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and the dismissal was based on the second element of standing, whether there is causation.

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Applying Apple, the district court's denial of standing must be reversed since the court erred in two objective ways that Apple has now clarified as a matter of law.

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These issues were addressed by Apple in favor of the plaintiffs as they should be here.

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First, the district court held that no causation can be based on indirect liability.

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for co-venturers, the theory of causation here and that was advanced in Apple.

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The district court erroneously required direct causation.

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The court said, quote, plaintiffs must establish causation separately for each defendant.

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And that's at the Joint Appendix 115 to 16.

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Thus, no matter how detailed the allegations were about the venture itself between the Coco companies and the

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and the cocoa farmers, the district court would not have found that there was possibility of causation because the court denied any kind of liability except direct liability.

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The district court's requirement of direct causation conflicts directly with this court's holding in Apple, where the court said at page 11,

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or 11, excuse me, that the language in TVPRA section 1595A, establishing indirect liability for participation in a venture satisfies the constitutional minimum for causation because it mirrors the assistance required for historical aiding and abetting liability, which attributes liability to co-venturers.

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And they refer to the Halberstam case for that position.

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And 412.

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I think that doesn't mean that any time that a legislature calls something a venture, no matter how expansive the concept of venture it is, just by using the term venture, that means it's a close facsimile of aiding and abetting liability, and therefore satisfies the fair traceability floor of Article III.

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I agree, Your Honor.

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We don't need to go that far.

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We're just simply applying the exact manifestation of causation that the Apple Court did here.

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And I would quote the court at 412 saying that, in enacting the TVPRA, Congress recognized a causal link between the injury of forced labor and actors who indirectly facilitate it.

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And that legislative judgment accords with longstanding common law for aiders and abettors.

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Indirect venture liability loosens the causal chain, but there is still, quote, fairly traceable link

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between in that case, the miners and the tech companies.

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So on force 12, it also also said plaintiffs positively alleged that they were victims of forced labor in part because of the tech companies demand for cobalt and their business relationships with the offending cobalt suppliers.

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And we must be assumed for purpose of standing that this suffices of the latter part of it makes sense.

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And on the business relationship part of it, can I just give you one hypothetical and just to see how you would

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assess this under your theory.

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Absolutely.

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So suppose there's only two plantations in the Ivory Coast.

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Plantation A and Plantation B. And there's evidence and allegations that forced labor occurs at both of them.

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And then the plaintiff works at Plantation A. And then the defendant, who's a purchaser of cocoa downstream, purchases cocoa from the Ivory Coast.

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That's the only allegation about the defendant.

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We don't know whether the defendant purchases cocoa from plantation A. We just know they purchase cocoa from the Ivory Coast.

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And the Ivory Coast consists of two plantations, both of which involve the use of forced labor, but only one of which is the one that the plaintiff worked out.

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Would that be a situation in which the defendant is participating in a forced labor venture of the kind that would surpass the fair traceability requirement

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based on a claim by that plaintiff against that defendant?

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No, Your Honor, because there's no indication that there is a venture between any companies or any plantations because they're not related.

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So that's not the case here, where we... Why is this case not that?

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Because as I understand the allegations in the complaint, there's allegations that there are plaintiffs who suffered

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horrifying abuses and forced labor at identified plantations.

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And then there's allegations that the defendants have a relationship with suppliers and that they're in a venture with those suppliers.

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And let's even say that they're forced labor at some of those suppliers.

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But what I don't know that we have is a connection between

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the plantations at which the particular plaintiffs suffered forced labor and the plantations that are the ones that are in the direct supply chain with the defendants.

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That's where I'm not seeing a close of that.

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Sure.

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Well, first of all, these allegations about the venture and about the plantation, the relationship, the second error that the district court made was not assuming the merits are true.

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We have to assume the merits are true.

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And in our case, we've alleged a number of things that would get us there.

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First, again, these must be assumed as true.

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But there is a venture.

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There is a venture that includes the cocoa plantations that source to the defendants and the defendants.

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We allege for each plaintiff that they're working on a plantation where they were subjected to forced labor and that one or more of the defendants do source from that plantation.

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Then that's paragraphs, if I may, 127, 130, 133, 136, 139.

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Where's the one that says that the defendant's source from the plantations at which the plaintiffs?

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These are those paragraphs where what are they?

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Sorry, I'm sorry, could you could you name those again?

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Sorry, yeah, there's a. There's a series of them and there's a series of them because each paragraph that I'm going to enumerate relates to each specific plaintiff.

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So each specific plaintiff says I worked here.

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And this area or this plantation sourced for one or more of the defendants.

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Which is an area or plantation?

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Yes, sir.

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Same thing you were.

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What JA page are you at?

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What JA page are you at?

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This is the complaint.

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I'm sorry, I have the paragraph numbers.

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I think it's 71.

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Okay.

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127-130-133-136-139.

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Pick whichever one you think is the best one and we can look at that.

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All right.

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And I do think you can try to persuade us otherwise, but I think there's a potential distinction between saying that the plaintiffs worked in an area and that they worked actually at a plantation.

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And

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because they might have worked at an area that includes a plantation, but there may be other plantations in that same area who are the ones with which the defendants have a direct relationship.

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Well, we'll get that.

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That is a merits venture question of can we prove that the 70% purchasing that the defendants do is fairly attributable to the plantations where the plaintiffs worked.

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And again, I think we have to assume the truth of the merits, but let's look at paragraph

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127.

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That's the lead plaintiff Kublai.

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He was trafficked as a child and he went to an area called Daloa on the Uzuba plantation.

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We know and we allege that defendants Nestle, Cargill and Olam sourced from that area exclusively.

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from that area.

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Yes.

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And that it would include this plantation.

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When you say this, I think we're trying to clarify, when you say they source from that area, does that mean all the plantations in that area or that they source from plantations in that area, but there could be additional plantations in that area that did not provide them?

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Well, in our merits causation discussion, which again, for the purposes of standing, we have to assume is true.

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we assert that we alleged the fact that 70% of all of the cocoa purchases from any of the areas are attributable to the seven defendants here.

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I think that's answering my question though.

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When you say that you identify that in this paragraph, it's Nestle, Cargill, and Olin, and you say that area was primarily supplying cocoa to those three defendants,

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Does that mean, I thought you had just suggested this, but maybe not, that all of the plantations in that area, 100% of them, provide cocoa to these defendants?

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Well, we can't say 100 percent, but we do know that the three companies that I 70 percent of the plantation at least 70 percent.

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But in the areas that we've identified in the in the complaint are our understanding of what we actually alleged was that those areas provide to those three companies that I named.

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There are.

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Can I ask the question this way?

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Is there an allegation

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that the particular plantations at which, and I'm not saying that, you may have a legal argument that that's not necessary, but I'm just asking just as a factual matter about what's in the complaint.

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Is there an allegation anywhere that the particular plantations at which these plaintiffs worked are ones with which the defendants had a direct relationship?

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No, we don't feel we need that.

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We have the areas and we have the fact that these companies purchase exclusively from that area.

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And because they're joint ventures, one or more of them is responsible for every plantation in that area.

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And therefore they are jointly and separately liable.

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How do you know that at least one of these three defendants was, did you just say was associated or was responsible for each plantation in the area?

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We can't say 100% again, but I think when we get into a merits causation argument that it's at least 70% and that makes it more likely than not for purposes.

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establishing a preponderance of evidence that they are responsible for that particular plantation.

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Can I go back then to- My time is up, but I'd be happy to- No, no.

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You can keep going as long as we have questions for you.

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Okay.

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Thank you for that.

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Can I go back to the hypothetical that I started with, which was imagine the Ivory Coast has two plantations, only two plantations, Plantation A and Plantation B, or slave serves at both, plaintiff work to Plantation A, the defendant purchases

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cocoa from the Ivory Coast.

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And you agreed that that wouldn't be enough.

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That's correct, Your Honor.

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So then just shift the hypothetical a little bit.

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And instead of saying the Ivory Coast, say that's an area in the Ivory Coast.

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So the area in the Ivory Coast has two plantations, Plantation A and Plantation B. The plaintiff works at Plantation A. Both of them are plantations at which forced labor occurs.

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I'll give you that, too.

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And then what we know is that the defendant purchases cocoa from that area.

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Is that enough?

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Well, it would depend on the percentage, Your Honor.

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In this case, we have identified areas that we allege are exclusively sourcing to named defendants, and they're jointly and severely liable.

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We also allege, factually, that collectively, they purchased 70% of all cocoa.

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So that gives us a more probable- Okay, so make it that this defendant purchases 70% of the cocoa that comes out of this area.

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But all you know is that this defendant purchased 70% of the cocoa that comes from this area.

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There's two plantations in that area.

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One of them is the one at which the plaintiff works.

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The other one is one at which forced labor occurs, but it's not one where the plaintiff works.

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But what we know is that the defendant purchased 70% of the cocoa produced by both plantations combined.

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Well, I would say for the purposes of standing, if we allege that that particular company purchased sufficient cocoa to create a reasonable doubt that if we assume the merits of that, that we would have standing to sue.

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Reasonable doubt of what?

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What are we, I'm just giving you no doubt at all that the defendant purchases 70% of the cocoa produced by both of those plantations, which is all the plantations in this area.

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We know that.

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And if we know that the defendant does not purchase from the plantation where the plaintiff works, then we would not be able to sue that plantation.

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No, we don't know that they don't purchase from that plantation, but we don't know that they do either.

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What we know is they purchase 70% from that area.

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That area consists of two plantations.

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Only one of those plantations is the one at which the plaintiff worked.

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And the question is, is the defendant responsible for that?

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Do we know that the defendant doesn't buy?

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I think the question for standing purposes is, is that plaintiff's injury from forced labor fairly traceable to the defendant?

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For purposes of standing, yes.

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And why wouldn't the answer be the same if instead of the area, it was just the Ivory Coast?

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Because I thought we started out by saying that wouldn't be enough if it were the Ivory Coast that consisted of two plantations.

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Well, in this case, what we have is we had a map and we made the allegations based on that that there are areas where these defendants purchased from completely.

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And so our plaintiffs are within those areas and that that is sufficient for purposes of standing to say that assuming the merits of our allegation that the defendants purchased from that plantation.

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I think even in terms of the merits from that area, not from that plantation.

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Yes, from the area at which some of the plantations we have have names.

[00:15:04] Speaker 03:
Yeah, yeah, I'm sorry you have named.

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Corporate does one through 10 also in this complaint.

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And I'm trying to understand what they.

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Add is a theory that with the corporate does one through 10 added on top of the named.

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Defendants that you're covering.

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100% of the cocoa purchase from these areas?

[00:15:31] Speaker 06:
No, Your Honor.

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When we drafted the complaint, which was probably about four years ago, we had concerns about whether any of the defendants had subsidiaries that were unique to Cote d'Ivoire that we didn't know about, but we no longer need those doughs.

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They're irrelevant.

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just one quick point before I sit down your honor is that the defendants here in assessing standing and that's what the only reason I think we're here is standing.

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They know that the Apple decision on all fours.

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requires the same result here.

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The types of allegations about causation are exactly the same.

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And if we assume the merits of those, then we should be able to, like in the Apple case, have standing to sue to get to the merits.

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And we might lose, like the plaintiffs did in Apple.

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But I think we can do a better job in terms of the specific allegations.

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But the only thing the defendants say in endorsing the causation issue is at page six of their brief that plaintiffs, quote, plaintiffs never allege that any defendant

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was in a venture with any individual or entity that injured them.

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That's just not true.

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And the district court at page 119 of her opinion specifically said that we did.

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She said, quote, in short, they argue that because the defendants are in a venture with each other and the cocoa plantations in their supply chain, they are jointly and severally liable.

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Now she ignored those because she didn't think venture merits mattered for standing, but that's one of the errors the district court made.

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And I think if we correct that error, we have exactly the same case as in Apple and we have standing to sue.

[00:17:12] Speaker 03:
Thank you.

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Do you read Apple as having rested the standing decision on a determination that the defendants in that case had actually just the standing part of Apple had actually purchased

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cobalt that came from one of those informal mines at which the plaintiffs were working?

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Or do you read Apple is not having required that showing?

[00:17:44] Speaker 06:
Apple did not require that showing since we alleged that the venture purchased cobalt from a particular mine where the plaintiffs was injured.

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That was an allegation.

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When we got to the merits in that case, the court found that we didn't actually show that trick, that chain of causation.

[00:18:01] Speaker 03:
Did your complaint in that case show that, because the point was there were some mines that were sort of more industrialized and regularized, but there were also a lot of, I think was referred to as informal mines where there was forced labor.

[00:18:17] Speaker 03:
Collectively, the

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So we call the non-forced labor mines and the forced labor mines were co-mingling their product and it would then go into these processors.

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And it was those people who would process it from which the cobalt would be purchased by the defendants.

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And so, but there was no, I did not,

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find in that decision a determination that it was even factually feasible to ensure that each defendant had in fact purchased cobalt that had been sourced from a mine that used forced labor because it was just impossible.

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It sort of all funneled into these processors.

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Is that right?

[00:19:02] Speaker 03:
So is that like this one?

[00:19:04] Speaker 06:
No, your honor.

[00:19:05] Speaker 06:
I think the reason that the main, one of the main reasons the court found there was no on the merits venture.

[00:19:11] Speaker 03:
I'm not talking about merits.

[00:19:12] Speaker 03:
I'm only talking about the standing part of that decision.

[00:19:15] Speaker ?:
Okay.

[00:19:15] Speaker 03:
All right.

[00:19:15] Speaker 03:
You've had some questions about whether you have alleged that one of these defendants purchased cocoa from plantation that was sourced

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sourced their cocoa from a plantation that used forced labor.

[00:19:28] Speaker 03:
And you said the best you can do is area and 70%.

[00:19:32] Speaker 03:
And I'm asking whether there was any more specific evidence at the standing stage of the Apple decision, or was it the same in that you had some non-forced labor sources and forced labor sources and it all sort of got mingled together into the processors from which the defendants purchased there?

[00:19:54] Speaker 06:
I think in Apple that it did not deter the standing finding that we had standing.

[00:20:00] Speaker 06:
But I think here our allegations are much sharper.

[00:20:03] Speaker 03:
I'm just asking the question, did standing there require a finding that in fact, Hobart had been purchased by these defendants from the very minds that use forced labor?

[00:20:16] Speaker 06:
We did allege that.

[00:20:17] Speaker 06:
And I think that assuming that the allegations were true, that that satisfied the court's prestige.

[00:20:22] Speaker 03:
that from this, from mine X, informal mine X, where so-and-so worked, that that very cobalt was purchased by defendant Y?

[00:20:35] Speaker 06:
We allege that the defendant X purchased cobalt from that mine where the child was injured or killed.

[00:20:44] Speaker 06:
OK.

[00:20:44] Speaker 03:
And you don't have that allegation in this case?

[00:20:47] Speaker 06:
Oh, I think we have more specific allegations here.

[00:20:49] Speaker 03:
You don't.

[00:20:50] Speaker 03:
You just said the best you have is areas.

[00:20:53] Speaker 06:
Your honor, we have much more than we had in Apple because you could not.

[00:20:58] Speaker 03:
I thought you just answered in response to Chief Judge Srinivasan that you in fact could not with certainty allege you have statistical probabilities, but you could not with certainty allege.

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That one of these plaintiffs worked.

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at a cocoa plantation from which the defendants had actually sourced their cocoa.

[00:21:18] Speaker 03:
So I'm trying to get you to compare the allegations and the two complaints, whether they had the same level of specificity or not.

[00:21:25] Speaker 06:
I think we have more specificity here, Your Honor, because one of the issues in the Apple case was we couldn't say, for example, if there was a mine

[00:21:35] Speaker 06:
how much of the output of that mine did apple purchase or did tesla purchase and and i think that was that any amount of it was purchased we just knew that it was purchased because of documentation that we had but here we don't have that documentation in this case in this case we have documentation that they purchased from the area and and that the cocoa plantation was in that area

[00:21:59] Speaker 06:
And I think that's more specific, but also what we have here.

[00:22:03] Speaker 03:
How is that more specific than having documentation that they purchased it from the precise mine at which someone worked?

[00:22:09] Speaker 06:
Because here we also have allegations that there are exclusive buyer relationships with the plantations.

[00:22:17] Speaker 03:
But that doesn't do any good if you don't know where the plaintiffs work.

[00:22:21] Speaker 06:
I understand.

[00:22:22] Speaker 06:
We certainly, for standing purposes, satisfy causation because we've identified the areas and at least 70% of all of the cocoa was purchased by the seven defendants.

[00:22:31] Speaker 07:
I didn't think in Apple there actually was those kind of, I thought what happened in Apple, I mean, I think this is helpful to you.

[00:22:37] Speaker 07:
I thought what happened, I don't know if it's helpful enough to you, carries you across the line.

[00:22:41] Speaker 07:
We'll hear from the defense counsel about that.

[00:22:44] Speaker 07:
But I thought this scenario in Apple was not that the cobalt

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that was purchased by one of the defendants could be traced all the way down to a mind at which the forced labor occurred.

[00:22:59] Speaker 07:
I thought what happened was what Judge Millett was hypothesizing, which is that

[00:23:04] Speaker 07:
the defendant had a relationship with a supplier.

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And that supplier got cobalt from such a mine and also cobalt from some other mines.

[00:23:15] Speaker 07:
And then it all came together from that supplier.

[00:23:17] Speaker 07:
And then that supplier gave cobalt to the purchaser.

[00:23:20] Speaker 07:
And so what you know is that the purchaser had a direct line with a supplier who also had a direct line to a mine of which forced labor occurs.

[00:23:30] Speaker 07:
But you didn't know for sure that a piece of cobalt

[00:23:34] Speaker 07:
went all the way from that particular mine at which forced labor occurred to the defendant.

[00:23:39] Speaker 07:
You just knew that it was combined with cobalt through the intermediate efforts of a supplier who then gave cobalt and purchaser.

[00:23:48] Speaker 07:
But I think what you did have in Apple beyond that, because that one seems like you didn't have the direct line.

[00:23:55] Speaker 07:
What you did have is that the intermediary who was doing the combining of the cobalt, they were affirmatively involved in fomenting forced labor.

[00:24:04] Speaker 06:
Yes, your honor, but we're almost at a point of comparing apples and oranges because there were problems with the chain of command, the chain of supply in Apple.

[00:24:13] Speaker 06:
And the court was concerned that we couldn't say that Tesla had 2%, 3%, 10% so that they didn't have that control aspect on the merits.

[00:24:22] Speaker 06:
But for purposes of standing in both cases, we have certainly sufficient evidence to get assumed as true that we can connect more likely than not each defendant to the areas where our plaintiffs were forced to labor.

[00:24:36] Speaker 06:
I think that the additional fact here is that these exclusive relationships that they had show that for the plantations they are working with, if plaintiffs are on those plantations,

[00:24:48] Speaker 06:
The defendants have complete control over what's going on in that plantation.

[00:24:52] Speaker 06:
That's what we lacked in Apple.

[00:24:56] Speaker 07:
OK, why don't we hear from thank you Ron Apple ease.

[00:25:06] Speaker 05:
Interest.

[00:25:07] Speaker 05:
Good afternoon, Your Honors.

[00:25:08] Speaker 05:
May it please the court, Theodore Butchers for Nestle and for all the defendants.

[00:25:12] Speaker 05:
Just to hone right in on this point, the big distinction between Apple and this case is that Apple standing analysis hinge on the fact, in the words of the court, the tech companies are in a venture with the specific companies and listed all the distributors and their subsidiaries in the DRC.

[00:25:31] Speaker 05:
responsible for the forced labor that harmed the plaintiffs.

[00:25:35] Speaker 05:
That's what we're lacking here.

[00:25:36] Speaker 05:
There's no, the venture here, if you look at paragraphs 154 to 158 of the complaint, the venture is just these defendants amongst themselves in the World Cocoa Organization and the like.

[00:25:49] Speaker 05:
On appeal, the plaintiffs have broadened it to say the suppliers, the farms were, if we give them that,

[00:25:57] Speaker 05:
And this goes to the questions the court was asking.

[00:26:01] Speaker 05:
There's no connection between the farms on which the plaintiffs worked and these defendants, none whatsoever.

[00:26:07] Speaker 05:
And counsel quoted the district court.

[00:26:10] Speaker 05:
The district court on page 116 of the joint appendix said, here the complaint does not connect the defendants to any specific cocoa plantations.

[00:26:19] Speaker 05:
Although the complaint alleges the defendant's agents visited Ivorian cocoa plantations and provided training and assistance,

[00:26:27] Speaker 05:
The complaint does not link the individual defendants to particular plantations, nor does it address the degree of influence the defendants had over the plantations in which the plaintiffs worked.

[00:26:36] Speaker 05:
We think that's dispositive under the Apple decision and under basic standing principles that here it's not enough to say there's a venture.

[00:26:46] Speaker 05:
If you can't connect the venture and trace it,

[00:26:49] Speaker 05:
in a fair way to the injuries suffered by the plaintiffs.

[00:26:53] Speaker 05:
And that's just undisputed.

[00:26:55] Speaker 05:
Council really had no answer because there is no answer.

[00:26:59] Speaker 05:
The area isn't enough.

[00:27:01] Speaker 05:
Summers versus Earth Island, the Supreme Court.

[00:27:03] Speaker 03:
Why isn't it for standing to have a likelihood that in fact, an allegation that there's a likelihood that in fact it was, COCO was purchased from these folks.

[00:27:17] Speaker 03:
These plantations aren't going to have records of who they enslaved.

[00:27:21] Speaker 03:
There's not going to be any records.

[00:27:22] Speaker 03:
And these are children who are not going to be able to have that level of precision.

[00:27:29] Speaker 03:
But if what the record shows, just for standing purposes, an allegation that they were sourcing from this area, plantations in this area, and this plaintiff was working, forced to work, in this area,

[00:27:45] Speaker 03:
Company X is buying up enormous amounts of cocoa from that area.

[00:27:51] Speaker 03:
Why is that not sufficient?

[00:27:54] Speaker 03:
understanding purposes of the 12 people on stage.

[00:27:56] Speaker 05:
Yes, Your Honor.

[00:27:57] Speaker 05:
First, yes, the allegations of what happened to these children are terrible.

[00:28:01] Speaker 05:
These companies have policies to try to combat it, working with the government, the US government.

[00:28:06] Speaker 03:
My question is why?

[00:28:08] Speaker 05:
Because, Your Honor, from a standing perspective and looking at the analogy with aiding and abetting, the court used in Apple, if you had an aiding and abetting

[00:28:19] Speaker 05:
If Ms.

[00:28:21] Speaker 05:
Hamilton in Halberstam was aiding and abetting her husband in this horrible burglary scam that resulted in a murder, but someone else in the neighborhood had been robbed, it wouldn't be enough to say she could be held liable for that robbery unless they connected that robbery to her husband and to the enterprise.

[00:28:42] Speaker 03:
Is there a case that says you can never hold an aider in a better liable unless you can precisely identify the defendant?

[00:28:48] Speaker 05:
Uh, no, your honor, but, but I think the cases are very clear that you can't hold.

[00:28:52] Speaker 03:
So you can be liable.

[00:28:54] Speaker 03:
without tying the aider and abetter to a specific defendant.

[00:28:57] Speaker 03:
Imagine a terrorism case.

[00:28:59] Speaker 05:
But the aider and abetter, you have to identify who they aided and abetted.

[00:29:04] Speaker 05:
Aiding and abetting is very specific.

[00:29:05] Speaker 03:
Then you're saying you do have to identify the principal.

[00:29:07] Speaker 03:
Yes.

[00:29:08] Speaker 03:
But I'm not sure that's true.

[00:29:09] Speaker 03:
If you had somebody who was in the business of producing fake passports, offering real lessons to people on how to plot by planes,

[00:29:21] Speaker 03:
But you couldn't, because the terrorists all died in the attack, ever tie them to a particular defendant.

[00:29:30] Speaker 03:
You mean those people could not be held liable for aiding and abetting, even if we don't know which terrorists flew into which building?

[00:29:37] Speaker 05:
Well, Your Honor, maybe under those circumstances, if you could tie the

[00:29:42] Speaker 05:
alleged aider and abetter to the enterprise.

[00:29:46] Speaker 05:
But you then have to show that a plaintiff that was injured by those terrorists.

[00:29:52] Speaker 05:
So here, you don't have that.

[00:29:54] Speaker 05:
And it's not enough.

[00:29:54] Speaker 05:
The court said in Summers versus Earth Island, the Supreme Court, statistical probability is not enough for Article III standing.

[00:30:01] Speaker 05:
And traditional tort principles, you have to be able to allege that the individual you're suing is the one that injured you.

[00:30:09] Speaker 03:
Traditional tort principles goes to the merits.

[00:30:12] Speaker 03:
Not good as standing, but there have been standing cases that really turn on, that include tort cases, and people have been held liable for torts, let alone have standing, where it's really based on a probabilistic risk of causing harm.

[00:30:28] Speaker 03:
There have been medical products that were released that ended up causing terrible, terrible harm to people.

[00:30:35] Speaker 03:
Multiple companies produce those products, and it was impossible to tell

[00:30:40] Speaker 03:
which person's pill was the one that actually went into which person.

[00:30:43] Speaker 03:
And yet they've been able to recover based on a market power concept of tort liability.

[00:30:50] Speaker 03:
And of course, if you have enough of a probabilistic connection to establish viability, you have enough to establish standing.

[00:30:58] Speaker 03:
I think that's their theory here.

[00:30:59] Speaker 05:
I don't think, Your Honor, that I'm aware of any federal cases that have applied a market share liability theory like that and found that there was Article III standing.

[00:31:08] Speaker 05:
We've cited this court's decision in the Eli Lilly.

[00:31:10] Speaker 03:
Are there any that have not?

[00:31:12] Speaker 05:
Well, the Eli Lilly case that we cite from this circuit, the ethical antitrust litigation from the first circuit, both said that even where like 90% of the class may have used the drug and 10% were uninjured,

[00:31:26] Speaker 05:
The First Circuit said that's not permissible for Article 3 standards.

[00:31:30] Speaker 03:
That's to injury.

[00:31:32] Speaker 03:
That wasn't to causation, to fair traceability.

[00:31:35] Speaker 05:
Is that correct?

[00:31:36] Speaker 05:
That's correct.

[00:31:37] Speaker 03:
Both of those were correct.

[00:31:38] Speaker 03:
Fair traceability, if it's sufficient for tort liability, why for purposes of standing under this statute

[00:31:52] Speaker 03:
which they read and could be read as supporting sort of market power liability.

[00:31:58] Speaker 03:
We should have a separate question whether the statute does in fact, but if we assume at this stage that it does, and this isn't just the, given the allegations of complaint, this isn't just the long arm purchases that they had in Apple, they alleged actual involvement on the farms.

[00:32:13] Speaker 03:
So we're not covered by Apple on the merits, assume that for this question.

[00:32:17] Speaker 03:
All right, so if they're alleging

[00:32:19] Speaker 03:
that the market power here is so powerful, this venture of these defendants who control the drive to produce cocoa and to produce it at the cheapest price possible have created a market that depends entirely on having slave labor of children.

[00:32:45] Speaker 03:
Why could that not be sufficient for standing purposes?

[00:32:49] Speaker 03:
Not talking about merits.

[00:32:50] Speaker 05:
First, I don't think the complaint plausibly alleges what your honor just talked about.

[00:32:53] Speaker 03:
That's exactly what they're alleging.

[00:32:55] Speaker 03:
You guys have the power, 70%, and in these particular areas, so it's not just generically across the country.

[00:33:02] Speaker 03:
In these areas, you guys are driving

[00:33:05] Speaker 03:
the demand for production and controlling prices that is forcing people to do low prices, which generates a slavery.

[00:33:12] Speaker 03:
I thought they can tell me if they're wrong.

[00:33:13] Speaker 03:
I thought that was exactly the theory.

[00:33:14] Speaker 05:
They make what Pickball and Twombly talked about as unadorned accusations that they were injured by the defendant's wrongful conduct.

[00:33:22] Speaker 05:
What they focus on.

[00:33:23] Speaker 03:
Wait, wait, unadorned allegations of injury.

[00:33:26] Speaker 03:
Injury is accepted in this case.

[00:33:27] Speaker 05:
I'm focusing on the market power and the fact that the allegations these companies are trying to cause child labor in order to increase their profits.

[00:33:40] Speaker 03:
There's no specific- They don't have to be trying to.

[00:33:43] Speaker 03:
In their efforts to obtain the cheapest price in this area where these people work, and knowing that there is an existing problem as a result of that demand for the cheapest labor possible.

[00:33:56] Speaker 03:
putting those two together, that the force of the defendant's presence and demand for cheapest prices has caused this market of child slave labor to develop.

[00:34:09] Speaker 05:
That's just too attenuated, Your Honor, for Article 3 standing.

[00:34:11] Speaker 05:
It has to be traceable to the injury.

[00:34:13] Speaker 05:
And again, if I can go back to this allegation point, with the courts focusing on these allegations of

[00:34:17] Speaker 05:
assistance and technological assistance, financial assistance.

[00:34:23] Speaker 05:
There's no allegation that that was happening in order to increase child labor.

[00:34:27] Speaker 05:
In fact, the more likely inference is that they were doing it as part of the Harkin-Engel protocol as the Supreme Court, as Justice Thomas said in the Supreme Court in the Doe versus Nestle case, in partnership with the United States government and the Ivory Coast government to minimize child labor, including forced labor.

[00:34:44] Speaker 05:
So it's not

[00:34:46] Speaker 05:
for standing or any other purposes appropriate under Iqbal and Twomley to assume the truth of these accusations.

[00:34:54] Speaker 03:
There are also allegations here.

[00:34:56] Speaker 03:
And again, we can clarify the specificity.

[00:35:00] Speaker 03:
So for my question, just assume this and it'll be wrong.

[00:35:03] Speaker 03:
That will take care of the problem.

[00:35:05] Speaker 03:
That the defendants are providing supplies, training, equipment to the farms in this area.

[00:35:12] Speaker 03:
Now,

[00:35:14] Speaker 03:
If he means all the farms in the area.

[00:35:18] Speaker 03:
So they're encouraging here's you develop more, even if you ended up not buying from that farm for the three years or whatever that someone was there with the fact that you were involved in encouraging the farming there.

[00:35:33] Speaker 03:
without any reference to getting rid of slave labor, would that matter?

[00:35:38] Speaker 05:
Absolutely not.

[00:35:39] Speaker 05:
We would not provide grounds for standing.

[00:35:42] Speaker 05:
If they could allege that these farms where these children allegedly worked, sold cocoa to- Why does it have to be sold cocoa?

[00:35:54] Speaker 03:
I'm not sure I'm even reading the complaint right, so we'll just say Company X. So Company X is on the ground saying,

[00:36:03] Speaker 03:
You know, we love buying cocoa from this area.

[00:36:05] Speaker 03:
There's something about the soil.

[00:36:06] Speaker 03:
This is the best stuff.

[00:36:09] Speaker 03:
But, you know, we're only going to do it at X price.

[00:36:12] Speaker 03:
And here's what we definitely want you to stay in business and be part of the regional area economy that supplies us.

[00:36:20] Speaker 03:
Here's some technique.

[00:36:22] Speaker 03:
Here's some special tools.

[00:36:23] Speaker 03:
Here's some training.

[00:36:24] Speaker 03:
Why would that not be enough to show that you were engaged in a venture that

[00:36:33] Speaker 03:
that knowingly or with reckless disregard

[00:36:37] Speaker 05:
Um, by slave labor, because your honor, again, so Congress can try to create, obviously, causes of action and go beyond what traditional tort might be, can create standing, can identify causes of action that can be brought.

[00:36:53] Speaker 05:
But as this court said in Apple's screams, court said in TransUnion, there are limits to that in Article three, provide those.

[00:37:00] Speaker 07:
So Salesforce is a case that we talked about in Apple.

[00:37:02] Speaker 07:
Yes.

[00:37:03] Speaker 07:
And in Salesforce that the description sounds a little bit like what Judge Millett is talking about.

[00:37:08] Speaker 07:
If you have a relationship and then you're doing things like supporting the venture, it doesn't mean that you necessarily want the underlying wrongful conduct to occur.

[00:37:15] Speaker 07:
But you're doing more than just an arm's length purchasing relationship.

[00:37:18] Speaker 07:
You're actually giving guidance and help and tutorials and things of that nature.

[00:37:23] Speaker 07:
And at least Apple assumes that that is a participation adventure.

[00:37:30] Speaker 07:
Now, I suppose you could have an argument, even though it's participation in a venture, actually, Salesforce should have never gone down that road because it should have dropped out on fair traceability grounds at the standing stage.

[00:37:40] Speaker 07:
And that seems, that seems...

[00:37:45] Speaker 07:
curious, I guess.

[00:37:46] Speaker 07:
But if that's where you're going, then that's analytically possible.

[00:37:49] Speaker 07:
But if the fact that that's conceivable on the merits means, like it usually does, that that means it's definitely enough to get past standing.

[00:37:59] Speaker 07:
Now, that's not to say that that's been alleged here.

[00:38:02] Speaker 07:
But in terms of the theory that underlies the question that Judge Mollett's asking, why is that not basically what was going on?

[00:38:09] Speaker 05:
I think it really proves my point that in Salesforce, the allegations were that Salesforce

[00:38:14] Speaker 05:
was helping a specific notorious sex trafficking operation, that it helped it expand and that that caught and grow that sex.

[00:38:24] Speaker 05:
It wasn't helping individuals.

[00:38:25] Speaker 07:
It wasn't talking about particular people who were engaging in conduct so that you could, it wasn't the crime of a particular person engaging in particular conduct against a particular victim.

[00:38:37] Speaker 05:
It was about this marketplace, but it was, but it was traceable to sales for two back page the what happened to the poor victim there to back page.

[00:38:47] Speaker 05:
And because Salesforce allegedly had helped grow, help showing that the support that was provided there.

[00:38:54] Speaker 03:
actually contributed or not to the victimization of that particular woman.

[00:38:58] Speaker 05:
Yes, so the analogy would be here if they were able to show that there were suppliers like in Apple or a specific child labor forced operation in the Ivory Coast and these companies were helping that organization and then you could trace to that organization a child labor violation, then you might have standing.

[00:39:20] Speaker 05:
But that's not what's happening here.

[00:39:21] Speaker 03:
I thought you said no to me.

[00:39:22] Speaker 03:
So now it sounds like you said yes to me.

[00:39:24] Speaker 05:
Well, if it was the back page analogy, we're jumping around between analogies.

[00:39:31] Speaker 03:
I didn't think we were.

[00:39:31] Speaker 03:
I thought we were making the same point.

[00:39:33] Speaker 03:
And that is, apart from purchasing, can the provision of support, assistance, expert guidance for the farming operations themselves cause, create traceability

[00:39:51] Speaker 03:
the injuries that are then caused by those who are forced to work on that farm.

[00:39:54] Speaker 05:
Not with identifying the specific farms who are being helped.

[00:39:57] Speaker 05:
That's the problem here.

[00:39:58] Speaker 03:
Well, that's why this is why my company X thing.

[00:40:01] Speaker 03:
If you read their complaint as saying all come all plantations in that area,

[00:40:07] Speaker 03:
right they have those allegations about area i don't think they say all your honor they say that's what i will clarify with them that's why i said i just say they did business that could be the answer to this i'm just seeing a word that's why i preface well that's why i preface this but if that's if that's a fair inference from their complaint if that's a fair and reasonable inference from their complaint that it's all or if they say that's what we meant and we'll amend it on remand to say that then i thought

[00:40:31] Speaker 03:
I thought then you just answered the chief judge and that could be enough.

[00:40:35] Speaker 05:
If there was an allegation that it was being factual, specific factual allegation, that it was being done to facilitate forced labor.

[00:40:43] Speaker 03:
Why would it have to be forced labor?

[00:40:44] Speaker 03:
Just to force continued operations?

[00:40:48] Speaker 03:
That wouldn't be enough.

[00:40:49] Speaker 07:
That wouldn't be enough, Your Honor.

[00:40:52] Speaker 07:
I'm sorry.

[00:40:53] Speaker 07:
I don't think in Salesforce there was an allegation that the reason that Salesforce was helping Backpage was because it wanted the prostitution to occur It was it was part of the commercial relationship which is similar to helping the farming occur

[00:41:09] Speaker 05:
That's correct, Your Honor, but there you had a specific relationship, and I know I keep jumping back and forth, but I think it really is crucial.

[00:41:16] Speaker 05:
There you had, in all these cases, a specific relationship between the venturers, and there it was backpaged.

[00:41:24] Speaker 05:
Here, we don't have a back page.

[00:41:26] Speaker 07:
Yeah, I think that may be true, but that depends on whether it's in fact all the, and I thought they already disavowed that it was all the farms in the area, but we can definitely get clarification on that.

[00:41:37] Speaker 07:
It goes to that issue, not to the kind of activity that's being conducted by the ultimate defendant.

[00:41:47] Speaker 07:
If the defendant is conducting activity that consists of assistance beyond just purchasing, and there's obviously going to be material questions about how much assistance is enough, but the kind of stuff that Salesforce was talking about and the way it was characterized in Apple, which is

[00:42:03] Speaker 07:
The alleged business relationship is more than just a purchasing agreement.

[00:42:06] Speaker 07:
The defendant sales force provided direct support, specific business advice, and productivity enhancing software.

[00:42:11] Speaker 07:
So that kind of stuff, which you can readily imagine with a plantation too, that could be enough for standing as long as you do have the direct relationship such that the victim is victimized by the enterprise as to which the defendant is supplying assistance.

[00:42:33] Speaker 05:
Theoretically, it could be.

[00:42:34] Speaker 05:
But what we don't have is the identification of some farm that was being assisted in any manner.

[00:42:41] Speaker 03:
Well, they agreed that they couldn't identify where individuals worked, at least the paragraph 51 allegation.

[00:42:48] Speaker 03:
And this will require clarification to be clear from their side.

[00:42:51] Speaker 03:
I hope you'll be ready to answer this.

[00:42:53] Speaker 03:
It does not seem to have that qualification.

[00:42:56] Speaker 03:
By operating within code divorce,

[00:42:59] Speaker 03:
and local farmers.

[00:43:00] Speaker 03:
And I don't know that that list is necessarily the same as if those are the ones they were actually, I don't know if they even know exactly which farms they were getting the cocoa from.

[00:43:12] Speaker 03:
So I don't, but if- It's another problem.

[00:43:14] Speaker 03:
No, no, it's not a problem if they say, well, actually in this area for all the farms.

[00:43:19] Speaker 03:
they were doing.

[00:43:19] Speaker 05:
And they don't say that, Your Honor.

[00:43:21] Speaker 05:
But it's their burden to allege standing, and they don't come close, Your Honor.

[00:43:27] Speaker 05:
What if they did say all the farms in the area?

[00:43:30] Speaker 04:
Would that just be game over they have standing?

[00:43:33] Speaker 05:
I don't think so, Your Honor.

[00:43:35] Speaker 05:
I think, again, I go back to the analogy with aiding and abetting that this court used.

[00:43:41] Speaker 05:
And if you look at the Twitter versus Tomna case, if aiding and abetting

[00:43:46] Speaker 05:
is the analogy for whether Congress could broaden standing to this broad market share, market power.

[00:43:53] Speaker 05:
The answer is no.

[00:43:54] Speaker 05:
The court in Tomna versus Twitter said that there must be culpable assistance.

[00:44:01] Speaker 05:
Exactly, to the wrong, not to farming.

[00:44:05] Speaker 07:
How does that square with the way the Salesforce was described in Apple?

[00:44:10] Speaker 07:
Does the kind of stuff that Salesforce did vis-a-vis Backpage constitute conscious culpable

[00:44:17] Speaker 05:
participation in the wrongful act which is the prostitution I don't I don't acknowledge your reckless disregard is the TVPA standard correct but for purposes of the analogy that I'm using with aiding and abetting there at least you had the specific knowledge of the person you were assisting and the notorious behavior

[00:44:41] Speaker 05:
that they were allegedly involved in.

[00:44:43] Speaker 05:
And again, as Chief Judge, as you mentioned, standing wasn't the issue there.

[00:44:47] Speaker 05:
I may try to get to the merits here if you'll allow me.

[00:44:51] Speaker 05:
But there, I don't think that if Salesforce had been alleged to have been providing support to a lot of different entities and someone was sex trafficked,

[00:45:07] Speaker 05:
that they could sue Salesforce even if they didn't know whether Salesforce had helped the entity that injured them.

[00:45:13] Speaker 05:
That's the theory here.

[00:45:15] Speaker 07:
That's the difference between some or all, I think.

[00:45:17] Speaker 07:
I mean, all might bridge that gap, if that's true.

[00:45:20] Speaker 07:
And then you still have a question as to whether, for Article III purposes, if Article III traceability depends on a close enough facsimile to aiding and abetting liability, does the type of stuff that we're talking about, including the type of stuff at Salesforce, suffice for that?

[00:45:34] Speaker 07:
That still could conceptually be a question.

[00:45:36] Speaker 07:
But it does seem like if you bridge the sum to all,

[00:45:41] Speaker 07:
Even I mean, I know your position is that the complaint can't be read that way and has been read that way so far.

[00:45:45] Speaker 07:
And we'll get clarification on that.

[00:45:47] Speaker 07:
But if you bridge that, then it seems like it does boil down to whether the kinds of stuff that was going on in Salesforce is a facsimile of the kinds of stuff that would be an issue here.

[00:45:59] Speaker 07:
And if so, whether that's enough for fair traceability purposes, it's possible that we were talking about the merits there and we just bypassed

[00:46:07] Speaker 07:
their face ability and actually turns out that we're talking about something that should never been talked about because you shouldn't have gotten past the standing gate to be in with that's possible conceptually that may be where you go but that's what that's where you'd have to be I think.

[00:46:18] Speaker 05:
And I would just say that with respect to this causation point, I think during the Apple argument, one of the questions was, had these principles ever been applied to causation as opposed to injury and as opposed to the other elements?

[00:46:31] Speaker 05:
We now have a case, the Murthy case from the Supreme Court.

[00:46:35] Speaker 05:
And there, the question was, was there a concrete link between the plaintiff's injuries and the defendant's conduct?

[00:46:42] Speaker 05:
That's what we're missing here.

[00:46:44] Speaker 05:
There's no concrete link.

[00:46:46] Speaker 05:
You can speculate.

[00:46:47] Speaker 05:
You can say, this might have happened.

[00:46:49] Speaker 05:
Maybe there was an injury.

[00:46:50] Speaker 03:
If it's all farms in the area being aided, and that's hepele, hepele.

[00:46:58] Speaker 03:
It just doesn't have the area limitation that they did for the workers, which is why I have the question.

[00:47:03] Speaker 05:
They had every option.

[00:47:04] Speaker 03:
They do.

[00:47:04] Speaker 03:
And why is that not sufficient connection?

[00:47:06] Speaker 03:
We would have to find Salesforce was wrong?

[00:47:10] Speaker 05:
Well, it wasn't a standing decision, Your Honor, so they didn't address stand.

[00:47:15] Speaker 03:
I know, but if they thought that was enough for Merritt's liability, I'm not quite sure.

[00:47:19] Speaker 03:
That's surely more than enough.

[00:47:22] Speaker 05:
I do think Salesforce is overly broad.

[00:47:24] Speaker 05:
The court doesn't have to disagree with it here.

[00:47:26] Speaker 03:
Do you think there was not standing in Salesforce?

[00:47:31] Speaker 05:
You're right.

[00:47:32] Speaker 05:
I'd have to look at it carefully, but I do think there the difference is there was a specific perpetrator who was part of the venture who was being assisted.

[00:47:44] Speaker 03:
Without that, no assistance of the specific individual that was harmed.

[00:47:48] Speaker 03:
And that's the difference between this assistance was provided to a website, an entity.

[00:47:55] Speaker 03:
There was no showing.

[00:47:57] Speaker 03:
There was no showing, as I understand the case, and I only have the opinion to do that, that that assistance itself was shown to have been the cause or even contributed to the harm to that particular individual, particular woman in that case.

[00:48:14] Speaker 05:
Yeah, I think it's a real stretch for Article III standing under those circumstances, but the court assumed it.

[00:48:19] Speaker 05:
But here, there is a crucial difference.

[00:48:22] Speaker 05:
The court doesn't have to disagree with Salesforce.

[00:48:24] Speaker 05:
It doesn't have to do anything different than Apple.

[00:48:26] Speaker 05:
The missing link for causation is that there's no, they don't say all.

[00:48:32] Speaker 05:
They had every opportunity to say all.

[00:48:33] Speaker 05:
They never asked women their complaint after the standing ruling against them, or even after the Apple District Court ruling.

[00:48:40] Speaker 05:
If they could say all, they would have said all.

[00:48:42] Speaker 07:
I take it conceptually that it is possible, I would think, under your view, that even if a statute allowed for causation, that that doesn't mean that Article III fair traceability is satisfied.

[00:48:57] Speaker 07:
If Article III fair traceability requires some tether to aiding and abetting liability, and you have a statute that goes, common law, traditional aiding and abetting liability, and you have a statute that goes significantly beyond that, then

[00:49:10] Speaker 07:
I guess you could have a situation in which the statute's satisfied for merits purposes but actually standing wouldn't be satisfied.

[00:49:16] Speaker 05:
Correct.

[00:49:18] Speaker 05:
I do want to make clear, we understand that in Apple the court held that you accept the theory of venture and then determine whether there's at least Article 3 standing.

[00:49:32] Speaker 05:
Here, if we accept their venture theory,

[00:49:35] Speaker 05:
There is not article three standing because it misses the crucial point.

[00:49:39] Speaker 05:
The court could not have been clear in Apple, but it was because the venture included the perpetrators who were responsible for the child forced labor.

[00:49:49] Speaker 05:
We don't have that here.

[00:49:51] Speaker 05:
It's fatal to the court.

[00:49:54] Speaker 03:
If you could just spin that out for me from Apple, because in that case, you had the refiners or processors or whatever the

[00:50:02] Speaker 03:
ones from which the cobalt was purchased by the defendants.

[00:50:07] Speaker 03:
But they were bringing it, they were obtaining cobalt from a mixture of entities.

[00:50:15] Speaker 03:
Some of which, when we had forced labor, and it's not crystal clear from this complaint actually, they were even charging forced labor as opposed to just child labor.

[00:50:25] Speaker 03:
But if we assume that, and some that was not, was there a specific allegation in that complaint

[00:50:32] Speaker 03:
with possible factual support that those entities, those intermediary entities knew that the cobalt being purchased by those defendants included forced labor produced cobalt.

[00:50:49] Speaker 03:
Or was it just a statistical guess because you had, shall we call it good labor cobalt coming in and bad labor cobalt coming into this funnel?

[00:50:58] Speaker 05:
I think for standing purposes, the way the court looked at it in Apple was the way the chief judge was describing it, that the defendants at least had knowledge that these distributors and these big companies and their subsidiaries were allegedly engaged in this conduct.

[00:51:17] Speaker 03:
The subsidiaries were not the actual minds.

[00:51:20] Speaker 03:
Their subsidiaries were the companies that sort of got the stuff from the mines, but the mines were not the subsidiaries.

[00:51:25] Speaker 03:
And that's why I say you have mines that had a mix of what do I say, good labor cobalt and evil labor cobalt.

[00:51:33] Speaker 03:
And it's just that it funneled through these entities to be processed and then sold to the defendants.

[00:51:41] Speaker 03:
And so I'm back to saying if the venture was between these processors and defendants,

[00:51:48] Speaker 03:
What evidence is there in our decision or the complaint in that case that, in fact, those processors could trace any particular sale of cobalt to the evil labor minds?

[00:52:01] Speaker 05:
I think the allegation was, and the court cited it in the Apple decision, that it was not possible to trace.

[00:52:06] Speaker 05:
And that's the allegation.

[00:52:07] Speaker 03:
That's the same thing here then, isn't it?

[00:52:09] Speaker 05:
But there's a big difference, Your Honor.

[00:52:11] Speaker 05:
The difference would be here if there was an allegation that the farms or some intermediary was engaged in child forced labor.

[00:52:19] Speaker 05:
Ishmael was the recruiter, I think, in Apple.

[00:52:23] Speaker 05:
And there was a link between them and these defendants with respect to the farms.

[00:52:27] Speaker 03:
Ishmael was part of the venture?

[00:52:29] Speaker 05:
Ishmael was part of the subsidiaries and the recruiting effort.

[00:52:34] Speaker 03:
Was Ishmael alleged to be part of the venture?

[00:52:36] Speaker 03:
I thought Ishmael was someone who fed stuff.

[00:52:39] Speaker 05:
I think he was someone who was an agent of the venture there.

[00:52:43] Speaker 05:
We don't have anything like that here.

[00:52:44] Speaker 05:
There's no connection.

[00:52:46] Speaker 05:
And again, if there's an 80 and abandoning venture, like I said, in Halberstam, if we have the venture and someone was robbed, you don't get just to say, I get to sue

[00:52:56] Speaker 03:
Let's look at the paragraph 51 then in the complaint.

[00:53:00] Speaker 03:
Okay.

[00:53:01] Speaker 03:
29 I think.

[00:53:02] Speaker 03:
I hope the bottom number is a day.

[00:53:04] Speaker 05:
Page 29 of the AA.

[00:53:07] Speaker 03:
Yep, I've got it.

[00:53:07] Speaker 03:
Page 27 of the complaint.

[00:53:09] Speaker 03:
Yep.

[00:53:09] Speaker 03:
The last two sentences.

[00:53:12] Speaker 03:
The training and quality control visits, so this is by the, beginning again, the defendants went to these farms and provided stuff.

[00:53:18] Speaker 03:
The training and quality control visits occur several times per year and require frequent and ongoing visits to the farms, either by defendants directly or via their contracted agents.

[00:53:28] Speaker 03:
Defendants and their agents constantly witness illegal child labor on the plantations under their control.

[00:53:33] Speaker 03:
Now, I know there's still the all or some, right?

[00:53:37] Speaker 03:
But if it's all, how's that different?

[00:53:41] Speaker 03:
Well, first of all, they have agents that are witnessing the child labor.

[00:53:45] Speaker 05:
Again, that's where a group lumping everyone in together, defendants, we don't know who they're talking about, which farms they're talking about.

[00:53:54] Speaker 03:
Well, if these are the farms in the area.

[00:53:57] Speaker 03:
This is just for standing.

[00:53:58] Speaker 05:
Yeah, I understand your honor and I just think though from standing purposes.

[00:54:04] Speaker 03:
You said there's no agents but of course there are allegations about agents here and they were the people who were right but it doesn't say that it doesn't allege that.

[00:54:11] Speaker 05:
Those agents were recruiting children to force them into labor.

[00:54:14] Speaker 05:
That would be horrible.

[00:54:16] Speaker 05:
These companies don't do that.

[00:54:18] Speaker 05:
And also, I want to make one point here.

[00:54:20] Speaker 05:
You've kind of reminded me of something.

[00:54:23] Speaker 05:
You actually may have alluded to it, that a lot of the allegations in this complaint mix in child labor, which these companies are against.

[00:54:32] Speaker 05:
But they mix it in with forced labor.

[00:54:34] Speaker 05:
This is a case about forced labor.

[00:54:36] Speaker 03:
There was an apple where it wasn't actually even clear to me looking on the complaint that it was.

[00:54:39] Speaker 03:
That's how it is here.

[00:54:40] Speaker 03:
They talk about forcing people based on hunger and need, whereas here it's quite clear and they say illegal child labor.

[00:54:45] Speaker 05:
Yeah, but they threw out the complaint mix in the child, just child labor.

[00:54:51] Speaker 05:
And again, I'm not, I'm, we abhor that too.

[00:54:53] Speaker 03:
This one seemed cleaner to me on that point.

[00:54:55] Speaker 03:
that than the Apple complaint.

[00:54:57] Speaker 05:
But again, Your Honor, I would just go back to the fact that this doesn't say that their agents were, you know, recruiting children.

[00:55:05] Speaker 03:
No, they were supporting these farms.

[00:55:07] Speaker 03:
And again, which these farms, it's a big question.

[00:55:09] Speaker 03:
I'm holding that for you.

[00:55:11] Speaker 03:
But they were at these farms.

[00:55:12] Speaker 03:
This sounds a lot like

[00:55:15] Speaker 03:
uh, you know, the sales force, sorry, I'm thinking my senior moment here.

[00:55:20] Speaker 03:
Um, sales force in that, um, if they're, they are aware, they know, and they're here supporting these farms operations.

[00:55:28] Speaker 03:
That's my only point.

[00:55:29] Speaker 05:
The, the, the level, maybe I, maybe I will move to the merits, but if I have a few minutes, but because that's where sales force comes in, they're not even remotely comfortable here.

[00:55:39] Speaker 05:
They are, they allege and they're in, in its,

[00:55:42] Speaker 03:
And or the paragraphs on the mirrors versus whether we should, if we were to get to it, whether we should decide it because, um, you know, there's now a new standard under the law.

[00:55:53] Speaker 03:
First of all, secondly, um, they have these more particularized complaints about an ongoing business relationship that seemed to be missing.

[00:56:03] Speaker 03:
in Apple.

[00:56:04] Speaker 03:
Apple turned on the fact that it was just an arm's length purchaser-seller relationship.

[00:56:10] Speaker 03:
But this is definitely not crediting, of course, at this stage of the litigation, their allegations and the complaint.

[00:56:18] Speaker 05:
It absolutely is an arm's length relationship.

[00:56:20] Speaker 03:
No, there's not.

[00:56:21] Speaker 03:
There was no allegation there that the defendants in Apple were going out to the mines and providing them with technology and supplies and equipment and counsel and advice.

[00:56:31] Speaker 03:
If there had been,

[00:56:33] Speaker 03:
I have no basis for concluding that Apple would have come out the same way it did on the merits.

[00:56:37] Speaker 05:
Well, there were allegations of inspections and audits and exhortations about labor practices.

[00:56:43] Speaker 03:
By the defendants and their agents?

[00:56:44] Speaker 05:
Yes.

[00:56:44] Speaker 03:
Yes, absolutely.

[00:56:46] Speaker 03:
In the cobalt case?

[00:56:46] Speaker 05:
In the cobalt case, absolutely.

[00:56:48] Speaker 05:
And then one of the arguments was because they had control, because they could inspect,

[00:56:51] Speaker 05:
that that somehow created a shared enterprise.

[00:56:54] Speaker 05:
And Your Honor, that doesn't, the court didn't apply a continuous relationship test in Apple.

[00:56:59] Speaker 05:
It cited Salesforce.

[00:57:02] Speaker 03:
So there's an equivalent to paragraph 51 in the, I just didn't, what page is that?

[00:57:05] Speaker 05:
I mean, let me find you in, throughout.

[00:57:11] Speaker 03:
You can just show me where there's an equivalent to paragraph 51.

[00:57:13] Speaker 05:
I'm just gonna look for the spot in where the court talks about this in Apple.

[00:57:21] Speaker 05:
But it starts really back on pages 415, 416, where the court talks about the inspections, the audits, the... You're talking about the opinion of the complaint, is that right?

[00:57:33] Speaker 05:
Right, the Apple.

[00:57:35] Speaker 03:
Okay, sorry, I was asking about the Apple complaint, but that's okay.

[00:57:39] Speaker 03:
No, we said what it says.

[00:57:41] Speaker 05:
Yeah, I mean, this court talked about what the allegations were.

[00:57:46] Speaker 07:
Well, we clearly thought that the allegations in Apple weren't tantamount to what was going on in Salesforce.

[00:57:51] Speaker 07:
Otherwise, because we assumed Salesforce, but then we still said Apple stink.

[00:57:56] Speaker 05:
And if I can't, I would like to address this because those paragraphs regarding the assistance and technological assistance, if you read them, they don't allege any nefarious behavior.

[00:58:09] Speaker 05:
They say that there was help with technology, fertilizer, how to make the

[00:58:15] Speaker 05:
the farming succeed.

[00:58:17] Speaker 05:
They don't allege that this and couldn't allege that it was meant to foster forced child labor.

[00:58:22] Speaker 05:
You could say the same thing about Salesforce.

[00:58:24] Speaker 05:
Well, there the court in Salesforce assumed

[00:58:27] Speaker 05:
that the entire back page business model was sex trafficking.

[00:58:31] Speaker 05:
And in fact, the allegations were much more egregious that when the government was going to seize a back page, the Salesforce assisted it to go overseas.

[00:58:41] Speaker 05:
And these were the allegations.

[00:58:42] Speaker 05:
I'm not endorsing them.

[00:58:43] Speaker 03:
But so it was just- If I can get you back to our pages here.

[00:58:46] Speaker 03:
I mean, this is-

[00:58:48] Speaker 03:
There's something here that helps you, let me know.

[00:58:50] Speaker 03:
But on 415, we say, something more than engaging in an ordinary buyer-seller transaction is required to establish participation in unlawful venture.

[00:59:03] Speaker 03:
The alleged business relationship is nothing more than a purchasing agreement.

[00:59:09] Speaker 03:
And then on 416, by contrast, plaintiffs here have not alleged a factual basis to infer

[00:59:15] Speaker 03:
common purpose, shared profit, blah, blah, blah, but down to the type of direct and continuous relationship that existed.

[00:59:22] Speaker 03:
Talking about Salesforce.

[00:59:24] Speaker 03:
Purchasing a commodity without more is not participation in a venture.

[00:59:28] Speaker 03:
There's more alleged here.

[00:59:29] Speaker 03:
But Your Honor, first- We're not characterizing the complaint as saying that there was an ongoing business relationship, an ongoing advice, supply, equipment providing relationship.

[00:59:39] Speaker 05:
Your Honor, let me just give you an example.

[00:59:41] Speaker 05:
This is page 22 of the slip opinion in Apple.

[00:59:44] Speaker 03:
Plaintiffs are going to help me.

[00:59:45] Speaker 03:
You're going to have to give me.

[00:59:46] Speaker 03:
I don't have a slip.

[00:59:47] Speaker 05:
Let me see if I can if I can piece it together for you.

[00:59:49] Speaker 05:
I think we're jumping between the complaint.

[00:59:53] Speaker 05:
Let me just grab.

[00:59:54] Speaker 03:
I'm sorry.

[00:59:55] Speaker 05:
No, no, it's not you.

[00:59:56] Speaker 03:
It's me.

[00:59:57] Speaker 03:
Section because the Roman Roman section.

[01:00:00] Speaker 03:
Let's see here.

[01:00:01] Speaker 05:
Hold on.

[01:00:01] Speaker 05:
I'll find it for you.

[01:00:05] Speaker 05:
I'll find the page.

[01:00:06] Speaker 05:
But the court says that the plaintiffs in Apple maintain that the tech companies are different from ordinary buyers because they have a contractual right to inspect and control the cobalt suppliers.

[01:00:23] Speaker 05:
And then it goes on to point to the third party audit.

[01:00:28] Speaker 05:
And then the court says that third party investigation.

[01:00:30] Speaker 03:
But that wasn't in the mind.

[01:00:32] Speaker 03:
That was a third party audit.

[01:00:34] Speaker 03:
Forgive me.

[01:00:35] Speaker 03:
Huawei, Huawei.

[01:00:39] Speaker 03:
That's of the people within your within adventure with the buyers.

[01:00:43] Speaker 05:
They don't have that here.

[01:00:45] Speaker 05:
They don't have any evidence that the farms that are the wrongdoers, the perpetrators, were given any assistance at all in this case.

[01:00:52] Speaker 03:
That's their allegation on paragraph 51.

[01:00:54] Speaker 05:
Page 51, they don't.

[01:00:56] Speaker 03:
Paragraph 51.

[01:00:56] Speaker 07:
They don't identify the farms where the plaintiffs were.

[01:00:59] Speaker 07:
Well, that's the whole question, whether it's some or all, but you're right that 51,

[01:01:04] Speaker 07:
Let's put it this way.

[01:01:08] Speaker 07:
If the plantations in 51 are plantations at which the plaintiffs were injured, just assume that.

[01:01:20] Speaker 07:
Because I think you're pointing out that there's a gap, because those plantations, it's not all.

[01:01:24] Speaker 07:
Actually, all we know is that they had this kind of relationship with some plantations, but they might not have been the plantations in which the plaintiffs were injured.

[01:01:30] Speaker 07:
But if these plantations are the ones at which the plaintiffs were injured, then it starts to look like the kind of things that were being described.

[01:01:38] Speaker 04:
At least for purposes of standing, not for the merits.

[01:01:43] Speaker 04:
Again, even on standing, imagine in paragraph 51 that it did use the word all.

[01:01:50] Speaker 04:
That may be an allegation that's good enough, but it doesn't seem like it'll be a plausible allegation.

[01:01:57] Speaker 04:
I mean, how could Nestle, I think there are like 2 million farms.

[01:02:01] Speaker 04:
So imagine it said all the training and quality control visits occur several times per year and frequent and ongoing visits to, and I'm going to add, all 2 million farms in the Ivory Coast, either by defendants directly or via their contracted agents.

[01:02:17] Speaker 04:
That just seemed like an implausible allegation.

[01:02:19] Speaker 04:
I still think that's not standing.

[01:02:21] Speaker 05:
I agree.

[01:02:21] Speaker 05:
I mean, that's the problem with this complaint.

[01:02:22] Speaker 03:
No, but they're talking about an area.

[01:02:23] Speaker 03:
We don't know how big the area is.

[01:02:25] Speaker 05:
Well, that's not our fault.

[01:02:27] Speaker 05:
That's the plaintiff's fault.

[01:02:29] Speaker 03:
No, no, no.

[01:02:29] Speaker 03:
But it's going to be a lower number than 2 million.

[01:02:31] Speaker 03:
It was 2 million in the country.

[01:02:32] Speaker 03:
So imagine it said 200.

[01:02:34] Speaker 05:
Your Honor, that would still be not plausible.

[01:02:37] Speaker 05:
And you need specific facts.

[01:02:38] Speaker 03:
Those are just- That's a pretty cool rule for these complaints, particularly when we're talking about a statute that is meant

[01:02:43] Speaker 03:
to stop horrible harms against in this case children who are just not going to you're not going to have there's not going to be records i would bet an awful lot of money that these farms don't have records of which slave children they hired and what years they were there your honor again if you get it down to like they were this was this is their favorite area to purchase from so we're smaller than the entire country

[01:03:09] Speaker 03:
We don't have a sense of the farms, but if they say all the farms there for purposes, there's two questions, for purposes of a complaint for standing, but certainly for purposes of, should we send it back to the district court to address the merits and see if they need to amend the complaint to be more particularized?

[01:03:25] Speaker 03:
Because it certainly seems that they, if actually all or something, if that's true, that they would have

[01:03:33] Speaker 03:
basis for that would seem quite premature for us to kick them out.

[01:03:37] Speaker 05:
Well, Your Honor, A, they never asked to amend when they lost on standing.

[01:03:40] Speaker 03:
Yeah, but the law has changed materially while this case.

[01:03:43] Speaker 05:
The law has not changed.

[01:03:44] Speaker 03:
We put this case on hold for a reason.

[01:03:46] Speaker 05:
The court didn't remand in the Apple case where it announced what plaintiffs viewed as a new law.

[01:03:50] Speaker 03:
The 12b6 question was decided by the district court in that case.

[01:03:53] Speaker 03:
It hasn't been decided by this court in this case.

[01:03:54] Speaker 03:
And here, Your Honor, we... It hasn't been fully briefed before us in this case, and the law has changed.

[01:03:59] Speaker 05:
Well, we briefed it.

[01:04:00] Speaker 03:
They didn't.

[01:04:02] Speaker 03:
Well, they only have a reply brief.

[01:04:04] Speaker 03:
to do it, so understand where there was a limit.

[01:04:05] Speaker 03:
They did do a little bit, but it's not fully done.

[01:04:07] Speaker 03:
But my point more importantly is that they have the very types of allegations that we flagged in Apple as being potentially relevant.

[01:04:18] Speaker 03:
They have those, and on the reading of them, they have those.

[01:04:21] Speaker 03:
And the law has materially changed.

[01:04:23] Speaker 03:
It seems to me, and the district court never addressed the question, so it seems to me quite an extraordinary situation for us to go ahead and kick the case out of court.

[01:04:33] Speaker 03:
I think the court should do that because case where it wasn't addressed by the district court and the law changed while spending appeal and the case was specifically held for that potential change in law while it was pending appeal.

[01:04:43] Speaker 03:
And they had particularized allegations that were flagged in our opinion as relevant to stating a claim.

[01:04:49] Speaker 03:
And yet we said we're not going to give you the chance.

[01:04:51] Speaker 05:
I don't have a case with all of those elements, your honor, but there there we've cited a half.

[01:04:56] Speaker 05:
Well, let me let me back up that.

[01:04:58] Speaker 05:
First of all, we have at least a half dozen cases from this court where

[01:05:01] Speaker 05:
district court has ruled on standing this court has said we can go ahead this is a question of law we've got the complaint number one number two they didn't even seek to remand for amendment after our brief in their reply we briefed these very issues we argued for the exact standard i haven't even got to the standard discord actually applied in apple which was not continuous business relationship and helping

[01:05:24] Speaker 05:
them succeed as farms.

[01:05:25] Speaker 05:
It was a shared enterprise like a partnership where both sides are sharing the risks and benefits and the upside and the downside.

[01:05:33] Speaker 05:
We have nothing like that here.

[01:05:34] Speaker 03:
Continuous business relationship language is right there in Apple.

[01:05:36] Speaker 05:
It's right there in Apple talking about Salesforce.

[01:05:39] Speaker 05:
That wasn't the test this court adopted.

[01:05:40] Speaker 05:
The court adopted explicitly at page 416

[01:05:44] Speaker 05:
taking part or sharing in an enterprise or undertaking the most danger, uncertainty, or risk and potential gain.

[01:05:50] Speaker 05:
That's the test this court applied.

[01:05:53] Speaker 05:
And that did not endorse, that paragraph on Salesforce did not endorse the Salesforce.

[01:05:59] Speaker 03:
You said multiple times you need something more than an arm's length buyer-seller relationship.

[01:06:05] Speaker 03:
If their paragraph, and maybe we should, we'll hear from them whether it's all or some, but if they have something more,

[01:06:14] Speaker 05:
It's too late for all at this point.

[01:06:16] Speaker 05:
In fact, in paragraph 67 of their complaint, they say the opposite of all.

[01:06:21] Speaker 05:
They say that 70% of the cooperatives that supply the small amount of traceable cocoa bought by Nestle, only 22 cooperatives that employ any of the standards, and they go on to say,

[01:06:35] Speaker 07:
Where's your 70% figure of which page?

[01:06:37] Speaker 05:
This is on page 38 of the Joint Appendix.

[01:06:41] Speaker 05:
They're basically saying the opposite of all, that they can't trace it.

[01:06:45] Speaker 05:
And that Nestle and the other companies were not involved with all of the plantations.

[01:06:49] Speaker 05:
But if I can go back to Judge Malek, your point about ordinary contractual relationship.

[01:06:54] Speaker 05:
First of all, on page 35 of their opening brief, they say that the foundation of this version of the venture is, quote, the supplier agreements.

[01:07:04] Speaker 05:
This is a contractual relationship.

[01:07:05] Speaker 05:
These companies are buying a commodity just like in the Apple case.

[01:07:10] Speaker 05:
These other features do not convert a contractual relationship to buy cocoa into a shared enterprise where both sides are in it together.

[01:07:20] Speaker 05:
They're investing.

[01:07:21] Speaker 05:
There's upside and downside.

[01:07:22] Speaker 05:
It's a commercial relationship, and it's not unusual in a commercial relationship for one side to provide guidance, assistance, and the like.

[01:07:29] Speaker 05:
And those paragraphs, going back to plausibility, where they allege in this generic fashion, in a vague fashion, this providing assistance to unnamed farms,

[01:07:41] Speaker 05:
It's, as I said earlier, the most plausible, the only plausible interpretation is that they were doing this in order to combat child labor, including forced labor.

[01:07:52] Speaker 05:
As Justice Thomas pointed out in Nestle, there is this protocol with the governments of the two countries.

[01:07:59] Speaker 05:
And so yes, this is a terrible problem, Your Honor, but there's a governmental protocol to deal with it.

[01:08:04] Speaker 05:
And this lawsuit is really, this kind of goes to extraterritoriality, that it's exactly why courts, why we need clear congressional indications.

[01:08:15] Speaker 07:
We don't even have briefing on both sides on extraterritoriality.

[01:08:18] Speaker 07:
So it's one thing to even talk about the merits at all, but extraterritoriality may be another step still.

[01:08:23] Speaker 07:
I'm pushing it.

[01:08:25] Speaker 07:
Let me make sure there's no further questions at this point.

[01:08:28] Speaker 05:
And I think I've managed to cover all my points, and I very much appreciate the time.

[01:08:32] Speaker 05:
Thank you.

[01:08:33] Speaker 07:
Thank you, counsel.

[01:08:38] Speaker 07:
We'll give you three minutes for rebuttal and we'll see where it goes.

[01:08:41] Speaker 07:
Excuse me, you're out of three?

[01:08:43] Speaker 07:
Three.

[01:08:43] Speaker 07:
Thank you.

[01:08:43] Speaker 03:
Can you start by answering my question about your paragraph 51 allegation?

[01:08:48] Speaker 03:
The allegations that these defendants have provided support, payment, supplies, equipment, advice, counsel, whatever, to farms.

[01:09:03] Speaker 03:
Talking only about the farms in the area.

[01:09:06] Speaker 03:
in the area where these plaintiffs work?

[01:09:11] Speaker 03:
Are you alleging that all farms in that area are only the farms from which they actually purchased, had these supply arrangements?

[01:09:20] Speaker 06:
with all of their farms, most of which are in the areas that we- Their farms.

[01:09:25] Speaker 06:
They're the ones that the defendants deal with.

[01:09:27] Speaker 06:
That's correct.

[01:09:27] Speaker 07:
Okay, so then that's not all the farms in the area, let alone, I'm not even understanding, is 51, is it limited to all farms in an area?

[01:09:34] Speaker 07:
Because it's talking about within Cote d'Ivoire.

[01:09:38] Speaker 06:
All of their farms in Cote d'Ivoire.

[01:09:40] Speaker 07:
Which is the Ivory Coast.

[01:09:41] Speaker 07:
Yes, the Ivory Coast.

[01:09:42] Speaker 07:
But it's not an area in the Ivory Coast, throughout the Ivory Coast.

[01:09:45] Speaker 06:
Well, I, again- All of the farms with which the defendants

[01:09:49] Speaker 06:
And virtually all of them are in the areas that we have identified where the plaintiffs were working.

[01:09:54] Speaker 03:
But you don't claim that these defendants had any kind of ongoing supply relationship, the paragraph 51, techniques, equipment, relationship with all farms in that area?

[01:10:11] Speaker 06:
Only the farms, they had a direct relationship.

[01:10:14] Speaker 03:
And so you don't claim that they had any

[01:10:19] Speaker 03:
relationship like the allegations in 51 with the exact farms that these plaintiffs worked on.

[01:10:27] Speaker 06:
Well, we do, Your Honor.

[01:10:29] Speaker 03:
You only say that they were in the area, but you haven't been able to say anything more than those farms were in the area.

[01:10:34] Speaker 03:
So you haven't been able to put the two together.

[01:10:36] Speaker 03:
It's like you've got the circle here of here's the farms in the area and there's some subset of farms within that area that they have this ongoing business relationship with.

[01:10:44] Speaker 06:
Your Honor, I think a fair reading of the complaint and taking our allegations is true with all reasonable inferences.

[01:10:50] Speaker 06:
For example, Paragraph 127, that's again for the lead plaintiff Kublai.

[01:10:56] Speaker 06:
We say he was taken to this area, Deloah, and a specific plantation.

[01:11:02] Speaker 06:
And then we say defendants Nestle, Cargill, and Olam sourced from that area.

[01:11:08] Speaker 06:
Now, on the maps that I've seen and the information that we use to draft this complaint,

[01:11:14] Speaker 06:
I don't want to be dishonest.

[01:11:15] Speaker 06:
I don't want to say 100% of the plantations in that area source for Nestle, Cargill, and Olam.

[01:11:22] Speaker 06:
But I think they do.

[01:11:23] Speaker 06:
I mean, that's certainly what we meant, that there is an area that is on a map that identifies cocoa farm sources.

[01:11:30] Speaker 06:
And it says Nestle, Cargill, and Olam.

[01:11:33] Speaker 06:
I think it's a fair inference to say virtually all of the plantations in that area source to those three.

[01:11:39] Speaker 07:
And even the fair inference you're saying is virtually all.

[01:11:45] Speaker 07:
I mean, so we're not.

[01:11:47] Speaker 07:
Yes, but for purposes of a standing complaint.

[01:11:50] Speaker 07:
And can you just point to what?

[01:11:52] Speaker 07:
I'm not seeing the exact words you're reading from.

[01:11:55] Speaker 07:
Where are they?

[01:11:59] Speaker 07:
I mean, it's just my oversight, but.

[01:12:01] Speaker 06:
I'm grabbing the complaint, Your Honor, over my notes of what the complaint said.

[01:12:07] Speaker 07:
I'd like to know what the complaint says so I can decide whether it's a fair reading of the complaint.

[01:12:14] Speaker 07:
To know whether it's a fair reading, I need to know the thing that I'm reading.

[01:12:18] Speaker 07:
Yes, sure.

[01:12:25] Speaker 06:
The last,

[01:12:27] Speaker 06:
Sentence of paragraph 127.

[01:12:32] Speaker 06:
Talking about the plaintiff Kubeli.

[01:12:33] Speaker 06:
He was isolated and was the only worker there while all defendants in the venture specifically defined in 154, 58, et cetera.

[01:12:40] Speaker 06:
are jointly and severally liable for the illegal forced labor and trafficking of plaintiffs and other children described herein.

[01:12:47] Speaker 06:
The area this plaintiff worked in was primarily supplying cocoa to defendants Nestle, Cargill, and Olip.

[01:12:53] Speaker 06:
So yes, the word primarily is there.

[01:12:55] Speaker 06:
We were hedging because we don't want to say 100%.

[01:12:57] Speaker 06:
We really honestly can't say if there's one or two plantations.

[01:13:01] Speaker 06:
But we are.

[01:13:02] Speaker 07:
In that direction, it doesn't matter because that's just whether all of their

[01:13:08] Speaker 07:
Coco was going to be defendants.

[01:13:10] Speaker 07:
I think the relevant question is whether all the defendants Coco was coming from this area.

[01:13:15] Speaker 07:
I think I think that's right.

[01:13:17] Speaker 06:
Well, if you look at the other for each plaintiff.

[01:13:21] Speaker 06:
For each plaintiff, we identified the area they were in and identified which of the seven defendants was sourcing from that area.

[01:13:29] Speaker 03:
sense of in this area which doesn't really get defined in the complaint?

[01:13:34] Speaker 06:
It below is like a province it's a small subset of a geographic area.

[01:13:38] Speaker 03:
You say area you mean a particular province?

[01:13:40] Speaker 06:
Or a subset of that province.

[01:13:43] Speaker 03:
Okay do you have a sense of how many plantations or farms some may not qualify as plantations would be in that area that you're talking about?

[01:13:54] Speaker 06:
Not as I stand here, Your Honor, but we are saying that in these areas, we can say that these three companies go there, regardless of how many farms are there, and then we identify the specific plaintiffs.

[01:14:05] Speaker 03:
I can't say that they buy from all those farms.

[01:14:09] Speaker 06:
I think a fair reading of the complaint based on the information we have is that those three companies essentially share the output of that area.

[01:14:16] Speaker 06:
But I'm not willing to say with my rule 11 obligations that is 100%.

[01:14:21] Speaker 06:
But if we go to the merits, sorry, if we go to causation issues, even on the merits,

[01:14:27] Speaker 06:
We don't have to be 100% right.

[01:14:30] Speaker 06:
We say 70% in the entire country.

[01:14:33] Speaker 06:
And I think we can say primarily from the regions that we have identified.

[01:14:38] Speaker 04:
I think Ivory Coast and Ghana have 2 million farms.

[01:14:40] Speaker 04:
That's somewhere in the record.

[01:14:42] Speaker 06:
It's a large number.

[01:14:42] Speaker 04:
The area where Kublai worked, how many farms are in that area?

[01:14:47] Speaker 06:
That I don't know, Your Honor, because to me, in drafting the complaint, whether it was 100 or 1,000, if virtually all of them are supplying those three defendants, that's the issue.

[01:14:57] Speaker 06:
It's likely then that one or more of the defendants are responsible for the plantation in that area where the plaintiff was injured.

[01:15:05] Speaker 06:
That's our argument.

[01:15:06] Speaker 04:
Even if it's on the low side and it's 100 farms in the area instead of 1,000, you know, Kublai was at one farm.

[01:15:14] Speaker 04:
Yes, Your Honor.

[01:15:15] Speaker 06:
It seems.

[01:15:17] Speaker 06:
Well, that's even if we apply the 70% that the odds of 70%.

[01:15:22] Speaker 04:
So I'm not saying that this works for you, but that would that would suggest a 70% chance that at the at the lowest you can because it's what what happened to the very unfortunate thing that happened to Kublai.

[01:15:34] Speaker 06:
You could trace that.

[01:15:35] Speaker 06:
That's right.

[01:15:36] Speaker 06:
And it pages 19 to 20 of our supplemental brief.

[01:15:40] Speaker 06:
We cite cases like Emmer Fetty versus Obama that say more probable than not is the standard, that even if we were on the merits, we could argue that it's more probable than not, with 70% of control of the entire industry, that any given plantation is within that 70%.

[01:15:59] Speaker 06:
That's more than 51%.

[01:16:02] Speaker 04:
Kublai's farm was eight hectares.

[01:16:05] Speaker 04:
Do you have a sense of how big eight hectares is?

[01:16:08] Speaker 04:
That's a small farm.

[01:16:09] Speaker 04:
I don't know the equivalency.

[01:16:11] Speaker 02:
I think he was the only worker.

[01:16:12] Speaker 02:
Yeah, it does.

[01:16:13] Speaker 02:
Yes.

[01:16:13] Speaker 02:
This would be really, really small.

[01:16:14] Speaker 04:
Yeah, certainly.

[01:16:15] Speaker 04:
I think you would have to think that no matter how small the farm, even a farm that's only eight hectares and has only one worker, no matter how small the farm,

[01:16:27] Speaker 04:
that these defendants bought from every farm, no matter how small it is?

[01:16:33] Speaker 06:
Yes, Your Honor, every farm sells to somebody, and 70% of that goes to the seven defendants collectively.

[01:16:40] Speaker 06:
Every farm sells to somebody, and if we... And 30% don't sell to these defendants.

[01:16:48] Speaker 06:
That's correct.

[01:16:48] Speaker 04:
In the entire country, though, there's lots of areas that are not on... We have no idea for this province, this area, we have no idea for this area whether it's 70%

[01:16:58] Speaker 04:
whether the defendants buy from 70% of the farms or from 99% of the farms or 50% of the farms.

[01:17:04] Speaker 04:
There's nothing in this complaint to let us know that.

[01:17:06] Speaker 06:
It's 70% or more.

[01:17:08] Speaker 06:
And again, I think that's 70%.

[01:17:09] Speaker 04:
It can't be 70% more if it's 70% nationwide.

[01:17:13] Speaker 04:
That means in some areas it's less, in some areas it's more.

[01:17:17] Speaker 06:
That's correct.

[01:17:18] Speaker 06:
There are areas on the map.

[01:17:19] Speaker 06:
This area could be less.

[01:17:21] Speaker 06:
It cannot because it was one of the areas that were specifically identified as supplying to those three companies.

[01:17:28] Speaker 06:
There are areas on the map of Cote d'Ivoire that don't identify anybody who is buying their cocoa.

[01:17:35] Speaker 06:
Some of these areas are free areas.

[01:17:37] Speaker 03:
The map that I'm- You say they primarily supply these defendants.

[01:17:41] Speaker 03:
You don't say that the defendants primarily obtained their cocoa from this area.

[01:17:46] Speaker 03:
because you could have a whole bunch of small farms that primarily, in fact, almost exclusively supply these defendants, but they're so small that collectively they provide 0.5% of all the cocoa that's purchased.

[01:18:01] Speaker 03:
In fact, there's other areas where they primarily purchase from.

[01:18:04] Speaker 03:
I had read this as saying these farms, their big customer is these companies, correct?

[01:18:11] Speaker 03:
And if you don't say that these companies

[01:18:13] Speaker 03:
consider this area to be their big source of cocoa.

[01:18:17] Speaker 06:
The areas that we describe in the complaint and the paragraphs aligned with the plaintiffs, those are the main cocoa producing areas.

[01:18:24] Speaker 06:
So it is significant, and it makes no difference to causation.

[01:18:29] Speaker 06:
If they're collecting a little bit from 20 farms or a lot from one farm, the fact is that that area produces for those three companies.

[01:18:36] Speaker 04:
Can I ask you about page 74 of your complaint?

[01:18:40] Speaker 04:
Or paragraph 74, rather, it's JA 41.

[01:18:47] Speaker 04:
So maybe when you're there.

[01:18:55] Speaker 04:
Yes, your honor.

[01:18:56] Speaker 04:
It says, Nestle, like the other defendants, has been forced to admit that the vast majority of Nestle's cocoa is sourced through untraceable channels.

[01:19:07] Speaker 04:
We've been talking for an hour and a half about traceability.

[01:19:11] Speaker 04:
It seems like to get standing, you need traceability.

[01:19:15] Speaker 04:
And yet, you're saying,

[01:19:17] Speaker 04:
The cocoa was untraceable.

[01:19:20] Speaker 06:
But not in the areas where the plaintiffs work.

[01:19:22] Speaker 06:
And that's why the 70% figure exists.

[01:19:25] Speaker 06:
There are areas that are sort of off the map and the companies do buy from them.

[01:19:29] Speaker 06:
And that's what the allocation is.

[01:19:31] Speaker 03:
It says the vast majority, their cocoa, not this is a one off thing.

[01:19:34] Speaker 03:
The vast majority is untraceable.

[01:19:36] Speaker 06:
then that raises the percentage of the places where we do identify where the plaintiffs were working.

[01:19:40] Speaker 06:
And that's what matters here.

[01:19:41] Speaker 06:
Where were the plaintiffs working?

[01:19:43] Speaker 06:
And were they in an area that bought from the defendants?

[01:19:46] Speaker 06:
That makes that percentage go up from 70%.

[01:19:49] Speaker 06:
If there's larger areas that they're not buying, my plaintiffs weren't in and weren't identified here.

[01:19:57] Speaker 06:
And I think, again, these areas that you don't know how big they are.

[01:20:01] Speaker 06:
No, Your Honor, but what we have to know is that in the areas we identify the plaintiffs worked, we are able to say that those are supplying to the named defendants in those paragraphs.

[01:20:13] Speaker 06:
What goes on over there in the uncharted territories is not relevant to the question of, is it likely that in an area that they do buy from that is on our map, that the plaintiff was working there while he was a slave?

[01:20:28] Speaker 06:
There was a lot of other things said.

[01:20:29] Speaker 06:
I just would like to point out that

[01:20:31] Speaker 06:
The defendants can't have it both ways.

[01:20:36] Speaker 06:
They're claiming that they visit all their farms, that they're ending child labor, but when it comes to being responsible for what's happening on those farms, in paragraphs 50 and 51, we allege, they go there.

[01:20:50] Speaker 04:
Even if they visit all of their farm, doesn't mean they visited Hubelheim's farm.

[01:20:56] Speaker 03:
or any of the other planters.

[01:20:57] Speaker 06:
Well, it's a reasonable inference.

[01:20:58] Speaker 06:
If they say they're visiting their farms and they're working hard to end child labor, that it wouldn't have any reason to visit a farm they don't source from, right?

[01:21:07] Speaker 06:
Well, we're alleging they do source from not plausibly and with specific.

[01:21:11] Speaker 06:
Well, again, if if it's only 70% and we're able to say with certainty that in that area of Deloa, we're we're who will they worked that these companies are sourcing from there that

[01:21:23] Speaker 06:
that if it's only 70%, that's more probable than not.

[01:21:27] Speaker 06:
And that's the standard that we have to meet for causation.

[01:21:30] Speaker 06:
Even that's for merits, not for purposes of standing where the allegations have to be assumed as true.

[01:21:37] Speaker 03:
And I- What's your best case that just statistical probability, just a statistical probability.

[01:21:43] Speaker 03:
I understand that's the legal test, but that's normally applied in cases where there's an identified connection between

[01:21:50] Speaker 03:
the plaintiff and the person accused of causing the harm.

[01:21:54] Speaker 03:
What is your best case that if from this court or Supreme Court or another court of appeals that we have no, we're not certain who hurt this person, but there's a 70% chance the defendant did that was sufficient for standing.

[01:22:11] Speaker 06:
Well, most of the statistical cases, as you know, your honor, are trying to identify

[01:22:16] Speaker 06:
The injury, whether this person was injured.

[01:22:20] Speaker 06:
But these people were injured.

[01:22:23] Speaker 06:
And then the question is, what is the probability that the defendants are responsible for that?

[01:22:28] Speaker 03:
What's your best case that just alleging a statistical probability is sufficient at this stage, the very early stage?

[01:22:37] Speaker 06:
Well, we have several.

[01:22:39] Speaker 06:
Again, this was in our supplemental brief at 19 to 20, but the Elmer Fetty case versus Obama, where the court said, this is this court 654 F third one at page five, the civil preponderance of the evidence standard merely requires the plaintiff support his position with the greater weight of the evidence.

[01:22:59] Speaker 06:
And then we cite chain site a bunch of other cases involve a scenario like this, where

[01:23:05] Speaker 03:
for understandable reasons, it's very hard to tie a defendant to a particular plaintiff.

[01:23:12] Speaker 03:
I mean, it's not just, it's not the words that matter to me.

[01:23:15] Speaker 03:
It's this similar factual context like this.

[01:23:20] Speaker 06:
Well, I think Chapman versus American Cyanide Company, which we cite, H61, F2, 15.

[01:23:26] Speaker 03:
What was going on in there?

[01:23:27] Speaker 03:
What happened in that case?

[01:23:28] Speaker 06:
They're trying to figure out whether several companies were manufacturing vaccines and the plaintiffs were injured by a vaccine.

[01:23:36] Speaker 06:
And the court used a statistical analysis to determine that this particular company could be liable based on the statistical probability, given the percentage of the total vaccine that they produced.

[01:23:47] Speaker 06:
And I think that is fairly applicable to this situation.

[01:23:51] Speaker 06:
And that's again, American Sinai 861F2nd 1515 at 15.

[01:23:57] Speaker 03:
I'm not 100% sure.

[01:23:59] Speaker 06:
So let me be clear 861F2nd 1515.

[01:24:04] Speaker 06:
And the quote is at 1517 to 20.

[01:24:07] Speaker 06:
And that's 11th Circuit 1988.

[01:24:09] Speaker 03:
Just one last word, Your Honor, if I could.

[01:24:16] Speaker 03:
861.

[01:24:16] Speaker 03:
Do you have that citation?

[01:24:22] Speaker 06:
Yes, I got it.

[01:24:24] Speaker 03:
I'm sorry.

[01:24:24] Speaker 03:
I'm not.

[01:24:24] Speaker 03:
I'm not as fast.

[01:24:26] Speaker 06:
861 F second 1515 at 1517 to 20.

[01:24:32] Speaker 06:
11 surfe.

[01:24:36] Speaker 03:
And is that cited in one of your briefs?

[01:24:38] Speaker 06:
I'm not.

[01:24:38] Speaker 06:
I'm not 100% sure.

[01:24:39] Speaker 06:
I should be, but it's the case that you asked for.

[01:24:44] Speaker 03:
I appreciate that I asked.

[01:24:46] Speaker 06:
If it is, it's in the supplemental brief at 19 to 20.

[01:24:51] Speaker 04:
Can I go back to

[01:24:57] Speaker 04:
And a moment ago, it seemed like you were saying that the defendants inspected all of their farms.

[01:25:04] Speaker 04:
And we were kind of going back and forth a little bit about, well, even if they inspected all of their farms, it doesn't necessarily mean they inspected Kublai's farm.

[01:25:11] Speaker 04:
But I'm now looking at, I think it's JA37 paragraph 67 complaint.

[01:25:20] Speaker 04:
And it looks like you don't allege that these companies visit all of their farms or inspect all of their farms.

[01:25:28] Speaker 04:
You say Nestle's COCO plan admits that at best, its monitoring activities extend to one third of its supply chain.

[01:25:38] Speaker 04:
Officials at the WCF and the ICI and the FLA admitted the number is high and that at most 20% to 30% of any members' COCO supply chain is with any of their programs.

[01:25:50] Speaker 04:
Out of 70 cooperatives in Cote d'Ivoire,

[01:25:55] Speaker 04:
Only 22 have implemented CLMRS.

[01:25:58] Speaker 04:
It just seems like from this paragraph.

[01:26:01] Speaker 04:
The defendants don't inspect.

[01:26:05] Speaker 04:
All of their farms.

[01:26:07] Speaker 06:
Well, I don't.

[01:26:08] Speaker 06:
That's that's that's correct, Your Honor.

[01:26:10] Speaker 06:
That's a lot of farms.

[01:26:12] Speaker 04:
They expect the farms that are not there either.

[01:26:15] Speaker 06:
That's correct.

[01:26:15] Speaker 06:
They probably do it on a rolling basis, but if the question is, do they have knowledge and that that's the angle for when they inspect, they see what's there.

[01:26:24] Speaker 06:
But in paragraphs 45 to 58, we have quite a bit of information about other sources of their knowledge, including years and years and years of reporting to them that there was child slavery on their plantations.

[01:26:37] Speaker 06:
And it remains about the same.

[01:26:39] Speaker 06:
And I would point out, Your Honors, that in paragraph 157, we do point out that across the years when these companies in 2001 said, all right, we're going to fix this.

[01:26:52] Speaker 06:
Don't regulate us.

[01:26:52] Speaker 06:
We're going to fix this.

[01:26:54] Speaker 06:
23 years later, it's worse.

[01:26:57] Speaker 06:
And in 2020, the US Department of Labor did a study that said there's 1.56 million children working today on these cocoa farms.

[01:27:07] Speaker 06:
And that's in paragraph 155.

[01:27:09] Speaker 06:
So that goes to our theory that, as Judge Millett was alluding to.

[01:27:14] Speaker 04:
That statistic strikes me as two things.

[01:27:17] Speaker 04:
One, number one, beyond tragic.

[01:27:19] Speaker 04:
Extremely, extremely tragic.

[01:27:21] Speaker 04:
Number two, it's that widespread.

[01:27:24] Speaker 04:
It seems like it should have been easier for you to find a farm that definitely sold cocoa that wound up at Nestle or Cargill or wherever.

[01:27:33] Speaker 06:
Your Honor is very dangerous for someone who looks like me to be wandering around those plantations.

[01:27:39] Speaker 06:
The way we found our plaintiffs is that they had been trafficked from Mali, enslaved for a period of years,

[01:27:46] Speaker 06:
They then escaped at some point and went back to Mali.

[01:27:49] Speaker 06:
So I interviewed them in Mali after they had been through this horrific ordeal.

[01:27:54] Speaker 06:
And that was the extent of information they were able to give me.

[01:27:58] Speaker 06:
They could not say, well, a guy with a Nestle outfit came, but I think it's more probable than not that Nestle or one of the other seven sold that company's, that plantation's cocoa to them.

[01:28:08] Speaker 06:
That's what we allege.

[01:28:09] Speaker 06:
And that at this point is the best we can do.

[01:28:13] Speaker 06:
But I think it's very important to stress again

[01:28:17] Speaker 06:
The defendants' allegations are, the defendants' claims are, we're good companies.

[01:28:23] Speaker 06:
We're there inspecting all the time.

[01:28:24] Speaker 06:
How can you say that we're using child slaves?

[01:28:26] Speaker 06:
Well, the number went up after 23 years of them claiming that they're fixing that.

[01:28:32] Speaker 06:
And they are the leaders, as Judge Millett was alluding to, of using and protecting a system that uses forced child labor or child slavery.

[01:28:43] Speaker 06:
And I think that is a good place to conclude.

[01:28:46] Speaker 03:
I can ask you one more question.

[01:28:48] Speaker 03:
I'm sorry.

[01:28:48] Speaker 03:
In paragraph 51, you talk about defendants and their agents having these ongoing relationships with their agents.

[01:28:57] Speaker 06:
Well, thank you, your honor.

[01:29:00] Speaker 06:
Two categories of agents based on my knowledge.

[01:29:02] Speaker 06:
One is their employees.

[01:29:04] Speaker 06:
They send people over there that there are people based there for these companies.

[01:29:08] Speaker 06:
This is such an important source of cocoa for them in the world.

[01:29:12] Speaker 06:
And then some of them do hire a middleman company to sort of manage their supervision of the plantations.

[01:29:20] Speaker 06:
That's not in this complaint.

[01:29:21] Speaker 06:
It gets a level of detail we didn't need for purposes of standing, but that is a fact based on my knowledge.

[01:29:27] Speaker 04:
Thank you.

[01:29:29] Speaker 04:
A second ago, I think you just said

[01:29:31] Speaker 04:
You know, you haven't been to Cote d'Ivoire for the reasons that you gave and that it would be very, very difficult.

[01:29:36] Speaker 04:
But I think paragraph one of your complaint says that you do have a research team that spent three years in Cote d'Ivoire.

[01:29:47] Speaker 06:
Yes, Your Honor.

[01:29:50] Speaker 06:
First of all, I have been to Cote d'Ivoire many, many times.

[01:29:52] Speaker 06:
What I'm not doing is just heading off into the fields looking for things.

[01:29:57] Speaker 06:
My searches are more targeted.

[01:29:59] Speaker 06:
I have a team on the ground.

[01:30:01] Speaker 06:
But what's very difficult even for them to do is to walk up to a farm where a child is working and enslaved and start asking questions.

[01:30:11] Speaker 06:
The overseer has a machete, maybe even a gun.

[01:30:14] Speaker 06:
So that's not very practical.

[01:30:15] Speaker 06:
That makes total sense.

[01:30:16] Speaker 06:
Thank you.

[01:30:17] Speaker 06:
I get that.

[01:30:17] Speaker 07:
Any other questions?

[01:30:20] Speaker 07:
I do actually.

[01:30:21] Speaker 07:
Sorry.

[01:30:22] Speaker 07:
And I just keep going back to the same hypothetical.

[01:30:24] Speaker 07:
I have all day, Your Honor.

[01:30:25] Speaker 07:
I just want to make sure I understand the statistical likelihood.

[01:30:28] Speaker 07:
So let's go back to the same scenario.

[01:30:30] Speaker 07:
Two plantations, one of which is the one at which the plaintiff is subjected to forced labor.

[01:30:37] Speaker 07:
And what we know is that the defendant purchases cocoa from the Ivory Coast, which consists of two plantations, one of which has the forced labor going on within it that affected the plaintiff.

[01:30:49] Speaker 07:
If that plantation produces 70% of the cocoa in Ivory Coast and the other plantation produces 30%, but all you know about the defendant is that they buy cocoa from the Ivory Coast, is it right that under your statistical likelihood theory, then you would say that's fair traceability?

[01:31:07] Speaker 06:
Is it that the defendant, the company that isn't using the forced labor of the victim buys 70% of the cocoa?

[01:31:19] Speaker 07:
Produces 30% of the cocoa in the Ivory Coast.

[01:31:21] Speaker 07:
The company, the plantation at which forced labor occurs produces 70% of the cocoa produced by Ivory Coast, together 100.

[01:31:29] Speaker 07:
And what we know is that the defendant purchases cocoa from the Ivory Coast.

[01:31:33] Speaker 06:
If the defendant is only producing

[01:31:37] Speaker 06:
Well, based on a statistical analysis, I would have to say yes, that that would be traceable for purposes of standing as it would not survive merits.

[01:31:47] Speaker 07:
The court has no further questions.

[01:31:48] Speaker 07:
Thank you.

[01:31:49] Speaker 07:
Thank you very much.

[01:31:51] Speaker 07:
Thank you, Senator submission.