[00:00:00] Speaker 00:
Case number twenty five dash seventy forty six.

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Mohamed for had me individually and on behalf of proposed by members at out a balance versus Kimberly corporation at out.

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Mr. Collins worth for the balance is the science for the Apple is.

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Morning morning and start when you're ready.

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Good morning, your honors and may it please the court.

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I am Terry Collins worth and with the international rights advocates and we represent the 13 men who brought this case were among many victims of trafficking and forced labor being moved from Bangladesh to Malaysia to work in various factories, including the bright way factory at issue here.

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Kimberly Clark Corporation, I'll call them KCC, and Ansel have conceded that the 13 plaintiffs were trafficked and forced to work in the Brightway Group factory.

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And the issue here is whether they, KCC and Ansel, are liable with Brightway for the forced labor and trafficking.

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Overall, we're here to look at the scope of the Trafficking Victims Protection Act, the TVPRA.

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And in doing so, I'd like to read a brief quote from the sponsors of the TVPRA who filed a brief in the Supreme Court in Nestle, USA, versus Doe, speaking about the scope of the TVPRA.

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And they said,

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Quote, it is not enough to target the traffickers themselves.

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Effective anti-trafficking policy requires disincentives directed towards those who benefit from trafficking, including corporate actors who knowingly profit from trafficking in their supply chain.

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And that's at 2020 Westlaw 6322316 at 19.20.

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And we submit that that's the scope, the intended scope of the TBPRA applies to both KCC and ANSAL here because they, according to section 1595A of the Trafficking Victims Protection Act, they knowingly profited from forced labor in this case.

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Now we have a lot of issues here, whether I'm going to briefly list them, whether there is a 1595A venture, whether KCC and ANCEL should have known, knew or should have known of the forced labor and trafficking at Brightway, whether the statute applies extra-territorially in this case, and then we have common law claims for unjust enrichment and negligent supervision.

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I'd like to initially focus my limited time on the two factually intensive questions, whether there was a venture and the state of knowledge for KCC and ANCEL.

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The issue of extraterritorial jurisdiction, of course, I'm here to respond to any questions.

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But it's well briefed in our opening brief at 10 to 27 and the reply brief at 5 to 14.

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And we have an amicus brief filed by the legal scholars group.

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Before you move off of extraterritoriality,

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So under RJR and VSCO, there are two ways they get, they call them steps, not exactly steps, but either the statute as a whole applies extraterritorially or the focus of the statute could be domestic.

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So just assume for a minute that I don't think the statute applies extraterritorially.

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What is the best evidence that the plaintiffs have put forward that there is a domestic

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effect in the United States, because the forced labor all occurred abroad.

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Right.

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Thank you, Rhonda.

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Well, I hope we're not done with the issue of whether it does apply extraterritorially.

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I think that in the briefs and all of the cases, particularly in our opening brief at 10 to 11, we have about a dozen cases that say that it does extend entirely extraterritorially.

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But I think in terms of the domestic application, part two of R.J.

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Reynolds,

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1589B of the forced labor statute makes it an offense to benefit from the forced labor itself.

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And we think, in the amicus brief and our brief, both emphasize that 1589B clearly makes it a domestic violation if you benefit in the US from- So benefits, it's just sufficient for it to be just commercial benefits, just profits?

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Does there have to be some connection between those profits or some action that the defendants have taken to show that they're in a venture and that there shouldn't there have to be some greater effects domestically?

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Well, the question in 1595A itself is some form of benefit.

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And in this case, it is, in fact, financial.

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It's profit.

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They had low-cost gloves produced at a factory that was using forced labor and trafficked labor.

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So our argument under 1589B is that they, sitting in the US, received higher profits from the lower costs of that factory.

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And of course, that assumes they are in a venture, which I'm planning to cover.

[00:05:12] Speaker 01:
Do the plaintiffs allege anything other than profits occurred domestically?

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Well, they have the benefit of a steady supply source of cheap labor gloves from Brightway because of their long-term relationship with the factory.

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But at the end of the day, it is profit.

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They're benefiting from the cost savings of not having a factory that meets their own standards that they claim they try to apply.

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That's an argument that

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1589b, the substantive law, applies to knowingly benefiting in the United States from trafficking abroad.

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That's correct.

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And the lingo of extraterritoriality is to say that the focus of 1589b is on the knowingly benefiting.

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That's correct, Your Honor.

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But even if all of that is true,

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you still have to show that the cause of action applies.

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There's a step zero to RJR, which is you have to separately analyze substantive law and cause of action.

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And I don't, I mean, if you just,

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apply RJR, the focus, even if you have domestic conduct, the focus of the cause of action is on the injury.

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And here the injuries all happened abroad.

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But 1589B expands the focus, which we did plead, to also whether the companies benefited from the forced labor.

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So the forced labor absolutely occurred abroad.

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But whether you benefited from it in the United States, and it makes it a domestic application, it's in our complaint.

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And 1589B only exists.

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It would otherwise be redundant.

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to make sure that the person benefiting from it in the United States is equally liable to the direct perpetrator.

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And that's textual.

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That's just an argument that extending the geographic scope of the substantive law determines the geographic scope of the cause of action.

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That there's no separate requirement of a domestic injury for a cause of action.

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Well, the domestic injury is the profiting from... No, the domestic injury to the plaintiffs is being trafficked on the other side of the globe.

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Right, and that is their cause of... That is not domestic.

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None of the injuries is domestic.

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None of the injuries are, but 1589B explicitly makes it.

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1589B is substantive law.

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Yes.

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Just like in RJR, the substantive law of 1962 applied to domestic and extraterritorial conduct.

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And that didn't answer the question about the geographic scope of 1964, the cause of action,

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for which the court said you need a domestic injury.

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Why doesn't that logic equally govern here?

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Because they didn't have an explicit statute like we do, 1589B, which simply says, whoever knowingly benefits financially.

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And that's a case.

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They had RICO, which incorporated predicates, some of which were just as extraterritorial as 1589B, and some of which were exclusively extraterritorial.

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1589 B is exclusively domestic and that's what both we and the legal scholars established in our briefing on that that it exists solely to allow for that domestic injury and then if you look at the.

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Excuse me.

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The Rodriguez versus Pan-American Health Association specifically held at 29F4706 at 716 that the financial benefit, I'm quoting, the financial benefit that violates 1589B is itself wrongful conduct and occurred in the United States.

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And that case tends to support you on the proposition that 1589B

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offers domestic benefiting.

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Yes, absolutely.

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But that doesn't answer what's troubling me with your position, which is the difference between the substantive law and the cause of action, which is what RGR was all about.

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Well, again, RGR had two steps, and we think we satisfied the first step, but the second step... Is the cause of action here, 1595A, use the word injury?

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I guess this is talking about, because it did use injury to business or property in Rico.

[00:10:17] Speaker 06:
It simply says an individual who is a victim of a violation of this chapter.

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It doesn't require an injury in the United States.

[00:10:24] Speaker 04:
No, it does not.

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An injury to property or business.

[00:10:28] Speaker 04:
No, it does not.

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It requires that the plaintiff be a victim of a violation of this statute.

[00:10:34] Speaker 06:
That's correct.

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And I think a plaintiff can be a victim of a violation without an injury from the misconduct.

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They have to show that they were a victim of one of the substantive provisions of the chapter.

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And in this case, we're alleging they were both forced labor and trafficking.

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But 1589B does not require that we demonstrate that injury.

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It requires only that we demonstrate a benefit to KCC and Anselm.

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Can you be a victim if your injury occurred abroad rather than domestically?

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Yes, if it applies extra-territorially.

[00:11:10] Speaker 04:
Is there any question that any of these, I hadn't thought at this stage that there was any question that any of the plaintiffs here were severely injured by the forced labor and trafficking?

[00:11:21] Speaker 06:
In the allegations of the complaint, we show that they were subjected to slavery-like conditions.

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They suffered physically.

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They suffered mentally.

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They indeed were very much physically injured by the actions that occurred to them and that are really undisputed in this case.

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I see it really eating into my mind.

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Put aside geographic scope.

[00:11:41] Speaker 05:
Just do you agree that the cause of action, the word victim in the cause of action requires both some kind of injury and some kind of causal relationship between the misconduct and the injury to be a victim?

[00:12:03] Speaker 06:
Yes, you have to demonstrate that you were injured by, you were a victim of one of the substantive causes of action.

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1589 and 1590 are the two that are at issue here.

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I see that I only have three minutes left and I wanted to... Can I just ask you a question about that?

[00:12:18] Speaker 01:
Sure.

[00:12:18] Speaker 01:
Which is, even if we assume that the benefits could just be simply profits in the United States, why wouldn't the plaintiffs have to show that there was participation in a venture that occurred domestically?

[00:12:34] Speaker 01:
You know, something specific about how the companies participated in a venture domestically.

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I don't see any allegations of that sort in the plaintiffs' complaint.

[00:12:44] Speaker 06:
I don't think we have to show that.

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I think we have to show that we have to satisfy 1595A that they were participants in a venture that in fact engaged in the forest labor and trafficking.

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So their participation, they don't have to be sitting in Malaysia to participate in that venture.

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We allege that they participated in it by investing in this factory and by supporting it across the years and other indicia that we allege in the complaint of their support for that and their participation in the venture.

[00:13:14] Speaker 01:
So then there would be no limitation.

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I mean, basically any domestic corporation could be held liable for forced labor abroad.

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if they were participating in a venture.

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So there would be no extraterritorial limit at all under 14 to 1589B, no.

[00:13:30] Speaker 06:
But there's a huge limit.

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They have to have first been participants in the venture that did the wrongful acts.

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And then if they did, they can't sit in the US and say, we didn't do it because we're here in the US.

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No, you benefited from it here in the US.

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So that creates another form of liability.

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We do think that the entire statute, as we argue in our brief, is extraterritorial.

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which would remove that as a problem in any event, but we think that we can reach them in both prongs for extraterritorial life.

[00:13:59] Speaker 01:
But if it doesn't pass, if it's not extraterritorial under prong one, then your reading of prong two would make it extraterritorial in any case where there was a venture?

[00:14:09] Speaker 06:
Because of 1589B, yes, which is explicit.

[00:14:13] Speaker 06:
I have one minute left for my rebuttal.

[00:14:16] Speaker 06:
I think I should stop or record me additional time on the venture question.

[00:14:20] Speaker 04:
How do you distinguish Apple?

[00:14:23] Speaker 06:
Thank you.

[00:14:23] Speaker 04:
It feels like pretty similar.

[00:14:28] Speaker 06:
Well, as you well know, Apple has multiple prongs for how you can show participation in an adventure.

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You can show a common purpose, you can share profits and risks, you can show control, or a direct and continuous relationship.

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Any one of those will suffice.

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And the word or does indicate that.

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We think we satisfy all of the factors.

[00:14:50] Speaker 06:
And I can quickly run through the first one, which is a direct and continuous relationship.

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We have multiple allegations showing the simple fact of the years of KCC and Ansell using Brightway as a direct supplier.

[00:15:05] Speaker 06:
That's easy.

[00:15:06] Speaker 06:
But just briefly, paragraphs one, 29, 30, 48,

[00:15:11] Speaker 06:
6958, 101, 102 and 107 show that I get that you allege how long this relationship went on.

[00:15:19] Speaker 04:
I'm just trying to understand.

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I did not leave Apple as sort of saying it's just a question of time.

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As long as if you have the type of.

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Contractual relationship, the buyer-seller relationship that was going on in Apple.

[00:15:38] Speaker 04:
You have that and you just have to have it a certain amount of time.

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That's what you've alleged is how long, but I don't understand the relevance of that.

[00:15:49] Speaker 06:
Sure.

[00:15:49] Speaker 06:
Well, I think the actual wording of Apple was a direct and continuous relationship.

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And continuous, direct and continuous.

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That's a quote.

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But in this case, I acknowledge we could argue that that's enough.

[00:16:04] Speaker 06:
But I acknowledge that some other courts have said, well, you need a little something more like to show that they had skin in the game or they were participants in some way other than just simply across the years buying the product.

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And we have that here.

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Paragraph 103, I will quote,

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KCC provided Brightway with a significant amount of Brightway's machinery and molds used in manufacturing latex gloves.

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Also, at one point, KCC owned one of Brightway's factories and sold it to them at a great discount to allow them to continue to produce.

[00:16:37] Speaker 04:
I'm trying to understand, so if I've got the history right.

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KCC was at, Kimberly Clark was at one point operating in Malaysia and then decided to leave.

[00:16:48] Speaker 04:
Is that when they sort of sold the company, sold the factory to Brightway?

[00:16:53] Speaker 06:
My understanding from our pleadings is that Brightway, sorry, KCC owned a factory for a while and Brightway was using it and then it sold it to them at a discount.

[00:17:03] Speaker 04:
When Kimberly Clark left.

[00:17:05] Speaker 04:
Yes, yes, that was just for her.

[00:17:09] Speaker 04:
So it wasn't like they from their long distance relationship in the United States as a buyer seller that they said, oh, you need a factory.

[00:17:14] Speaker 04:
Let's buy a whole new factory for you.

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It's that they were leaving the country.

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They were selling and they wanted their factory was and they sold it to Brightway.

[00:17:25] Speaker 06:
and gave them a bunch of equipment and materials to make sure that they could boost right ways.

[00:17:30] Speaker 04:
They gave new stuff or was it what was left in the factory?

[00:17:33] Speaker 06:
Well, that we don't know.

[00:17:35] Speaker 06:
We know that they gave them a bunch of equipment.

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And that's my point here about that issue that paragraph one.

[00:17:40] Speaker 04:
I guess I can imagine it being different that if in addition to being a buyer seller, they were sort of sending in all kinds of equipment on an ongoing basis.

[00:17:49] Speaker 04:
But I'm trying to understand what your complaint alleges, because it seems to me it's

[00:17:54] Speaker 04:
Equally fairly read as if not more fairly read as Malaysia, Kimberly Clark had its factory in Malaysia, decided to leave the country and it sold what it was leaving behind to right way or to the highest bidder, which happened to be right way.

[00:18:12] Speaker 06:
Well, they were partnered with Brightway and other factories before that.

[00:18:15] Speaker 06:
But a reasonable inference is that they gave them this equipment, and they gave them materials, and they've sold them a cheap factory in order to continue to boost and build Brightway's business.

[00:18:25] Speaker 06:
But the error here is that the district court... They had to sell it to somebody.

[00:18:28] Speaker 06:
Well, they chose their venture partner to boost them, not anyone else.

[00:18:33] Speaker 04:
I understand why you're using that language, but I'm not sure.

[00:18:36] Speaker 04:
Well, that's the allegation.

[00:18:38] Speaker 01:
Isn't that just evidence, like the selling of the machinery?

[00:18:42] Speaker 01:
Isn't that just further evidence of a commercial relationship, an ordinary commercial relationship?

[00:18:47] Speaker 01:
It doesn't show that they were participating in a venture to benefit from forced labor.

[00:18:54] Speaker 06:
Well, they knew about the forced labor at the time, and it shows that they wanted to help the right way.

[00:18:59] Speaker 06:
And the legal error here is that the district court not only didn't take our allegation as true and give us the benefit of reasonable inferences, at page one

[00:19:10] Speaker 06:
at page 88 of the Joint Appendix, the District Court dismissed that allegation and said that they provided, quote, off-the-shelf materials and machinery.

[00:19:21] Speaker 06:
That degraded the allegation.

[00:19:23] Speaker 06:
It didn't give us the benefits.

[00:19:24] Speaker 01:
Explain to me why it's a reasonable inference that giving molds and machinery leads to an inference of participation of venture for forced labor.

[00:19:34] Speaker 06:
We have to show something more than a long-term and continuous relationship.

[00:19:38] Speaker 06:
So what we have shown is that KCC, much like in Salesforce, which provided direct assistance to the business that they were working with there.

[00:19:47] Speaker 01:
And here- But in Salesforce, they provided targeted help to assist them in their forced labor and trafficking advertisements.

[00:19:59] Speaker 06:
Well, here, again, we have allegations and well briefed that KCC and Ansel knew or should have known about the forced labor and trafficking when they were doing business in a long-term and continuous relationship.

[00:20:14] Speaker 06:
And instead of giving it to somebody else or giving somebody else a deal, they sold this equipment or they gave the equipment and gave a good deal on the factory to build and boost this very business that they knew was producing cheap gloves

[00:20:28] Speaker 06:
because it was using forced labor and traffic labor.

[00:20:32] Speaker 06:
And then in paragraphs 59 and 101, we have ANCEL providing assistance to Brightway by helping them with their remediation plans in order to try to get from behind the withhold release order that CBP imposed to keep them in business because they were also their long-term business partner in a venture.

[00:20:55] Speaker 04:
So in Salesforce, the provision of something beyond just buyer-sale relationship was itself on a continuous basis, right?

[00:21:07] Speaker 04:
The computer?

[00:21:08] Speaker 04:
Yes.

[00:21:08] Speaker 04:
Right.

[00:21:09] Speaker 04:
OK.

[00:21:09] Speaker 04:
But what you allege is a sort of one-off.

[00:21:13] Speaker 04:
Probably sold them the factory when they left the country, and very well it sold them the machinery and molds when they left the country.

[00:21:18] Speaker 04:
But you allege it happened.

[00:21:19] Speaker 04:
They provided it to them.

[00:21:20] Speaker 04:
You don't say they were every year sending them new machinery and new molds.

[00:21:25] Speaker 06:
Well, shortly after this, the WRO occurred and they then began trying to help Brightway to prepare remediation plans and also to be able to sell back in the United States.

[00:21:37] Speaker 06:
So that became their form of assistance, which obviously assumes that there was forced labor and trafficking.

[00:21:42] Speaker 06:
The WRO occurred.

[00:21:44] Speaker 04:
I'm not sure that just doesn't mean if you want to stay in business with us, we've got to get you got to clean up your act here.

[00:21:49] Speaker 06:
Well, they were directly helping them.

[00:21:51] Speaker 06:
And if it was by doing remediation plans, by showing them how to do it.

[00:21:56] Speaker 04:
Remediation plan, what do you mean?

[00:21:57] Speaker 06:
Well, in their own reporting in paragraph 59 and 101, Ansel said to the WRO, to the CBP that they're, don't worry, we're helping with the remediation plans.

[00:22:08] Speaker 06:
We're going to get them back up to speed.

[00:22:09] Speaker 04:
I just don't know what that means.

[00:22:09] Speaker 04:
I don't think setting standards for them.

[00:22:12] Speaker 06:
better forms of enforcement, better forms of monitoring so that there would not be forced labor and trafficking in the future.

[00:22:20] Speaker 06:
And if they were just mere purchasers of these gloves from Brightway, they could have gone to anybody else.

[00:22:26] Speaker 04:
I thought your complaint alleged that the forced labor and trafficking issue here sort of ended at the time of the WRO.

[00:22:36] Speaker 04:
Am I wrong?

[00:22:37] Speaker 04:
As to these plaintiffs?

[00:22:39] Speaker 06:
As to the plaintiffs, yes.

[00:22:40] Speaker 04:
So what happened after that?

[00:22:42] Speaker 04:
The plaintiffs know what you're you're all you're talking to all this stuff about remediation is something that post states.

[00:22:49] Speaker 04:
Right, that's just in their asserted injuries and so.

[00:22:54] Speaker 06:
That's just evidence, Your Honor, that they had more than a mere buyer-seller relationship.

[00:22:58] Speaker 06:
They were working with Brightway to get them back online so they could continue doing business with them.

[00:23:04] Speaker 06:
If they were mere purchasers and didn't care who they bought their gloves from, they could have gone down the street to XYZ factory instead.

[00:23:10] Speaker 06:
But they stuck with Brightway because they had a long-term relationship with them and they were in a venture together.

[00:23:17] Speaker 04:
in that relationship with the buyer-seller relationship, long-term buyer-seller relationship.

[00:23:22] Speaker 06:
With the kind of assistance that Salesforce pointed to to show that it was more than that.

[00:23:26] Speaker 06:
If it was not more than that, they could have gone anywhere else and bought gloves from anybody else.

[00:23:31] Speaker 06:
They didn't.

[00:23:34] Speaker 05:
One or two questions on just enrichment.

[00:23:41] Speaker 05:
Do you handle the case in the Ninth Circuit against Walmart, Doe versus Walmart?

[00:23:46] Speaker 05:
I did, Your Honor.

[00:23:47] Speaker 05:
So the unjust enrichment

[00:23:51] Speaker 05:
claim in that case seems similar to the one here.

[00:23:55] Speaker 05:
Do you think in order to rule in our favor, in your favor, would we have to conclude that the Ninth Circuit misunderstood the law of unjust enrichment or can you distinguish it?

[00:24:12] Speaker 06:
Well, I think the main difference is that here, with the Walmart case, we had a number of different settings.

[00:24:19] Speaker 06:
Here, we're focused on one factory where there's no doubt at all that across the long-term relationship with Ansell and KCC, that they benefited from this cheap labor coming out, sorry, cheap gloves coming from the Brightway factory because of forced labor and trafficking.

[00:24:36] Speaker 06:
I think that direct relationship

[00:24:38] Speaker 06:
the ongoing benefiting from it is different than Walmart, which was really more of a one-off situation.

[00:24:50] Speaker 05:
there's no participation in a venture here.

[00:24:54] Speaker 05:
Does that change your answer?

[00:24:56] Speaker 06:
No, we specifically do not require that there be a venture.

[00:25:00] Speaker 06:
That doesn't mean that if there's not a venture because it was just a long-term relationship where they were buying the gloves and getting them cheap, that would be one thing.

[00:25:09] Speaker 06:
But it would not mean that they're not unjustly enriched if they are receiving the benefits of those cheap gloves that are cheap because of forced labor and trafficking of

[00:25:18] Speaker 06:
our plaintiffs and others similarly situated.

[00:25:22] Speaker 06:
Okay, thank you.

[00:25:22] Speaker 04:
Was the 9th Circuit interpreting DC law?

[00:25:24] Speaker 06:
No, it was not.

[00:25:25] Speaker 06:
That's, I was going to add that.

[00:25:27] Speaker 06:
Thank you.

[00:25:27] Speaker 06:
We do cite DC cases for the unjust in Richmond elements.

[00:25:32] Speaker 05:
What's your best case, D.C.

[00:25:35] Speaker 05:
or otherwise for applying unjust enrichment law in a context where the benefit flows from a seller to a buyer to a downstream buyer.

[00:25:53] Speaker 05:
Thank you, your honor.

[00:25:54] Speaker 05:
Things that at least superficially look like market transactions.

[00:25:58] Speaker 06:
Can I give you that case when I stand back up, assuming you're trying to give me one minute or some more for rebuttal?

[00:26:03] Speaker 06:
How much time could I have for rebuttal, please?

[00:26:05] Speaker 04:
Well, we'll set that up.

[00:26:06] Speaker 04:
Is there anything more you want to say in response to the question now or you just want to answer it on rebuttal?

[00:26:10] Speaker 06:
No, I have good cases.

[00:26:11] Speaker 06:
I want to just go get them and I'll instead of wasting your time now.

[00:26:14] Speaker 06:
Thank you.

[00:26:15] Speaker 01:
That's all right.

[00:26:15] Speaker 01:
Any other questions?

[00:26:17] Speaker 01:
Maybe when you stand up, you can also say something about choice of law and why DC law is the correct law to apply here.

[00:26:26] Speaker 04:
Is that disputed in this case?

[00:26:29] Speaker 06:
No.

[00:26:29] Speaker 06:
That would be my short answer.

[00:26:30] Speaker 06:
It's not disputed.

[00:26:31] Speaker 06:
And DC is where we filed the case.

[00:26:35] Speaker 06:
And the defendants have not challenged jurisdiction or venue.

[00:26:39] Speaker 06:
And that's where the case is cited.

[00:26:41] Speaker 01:
And are there cases in DC holding that DC common law claims apply extraterritorially?

[00:26:47] Speaker 06:
There's no challenge on that basis either, Your Honor.

[00:26:52] Speaker 06:
And they do.

[00:26:52] Speaker 06:
The common law, the rule of the presumption against extraterritorial jurisdiction has not been applied to D.C.

[00:27:01] Speaker 06:
vote state law, and defendants have not raised that here.

[00:27:05] Speaker 04:
Is the unjust enrichment extraterritorial?

[00:27:08] Speaker 04:
Or put aside your venture theory, I had thought it was simply benefiting from domestic benefit, much like your 1589B argument.

[00:27:18] Speaker 06:
No, that is correct.

[00:27:19] Speaker 06:
But just in the abstract, I don't think there's an issue of whether these laws apply extraterritorially.

[00:27:26] Speaker 04:
There might be issues about state common law applying extraterritorially.

[00:27:31] Speaker 04:
All right.

[00:27:32] Speaker 04:
Thank you very much.

[00:27:32] Speaker 04:
We will give you some time.

[00:27:33] Speaker 04:
Thank you.

[00:27:52] Speaker 02:
Morning, Your Honor.

[00:27:53] Speaker 02:
May it please the court.

[00:27:54] Speaker 02:
I'd like to come back to the extraterritoriality issue, which was a focus of a number of the court's questions.

[00:28:00] Speaker 02:
But if I could start with a question of participation and adventure.

[00:28:02] Speaker 02:
And Judge Millett, you asked, doesn't this seem very similar to the Apple case?

[00:28:07] Speaker 02:
And it does.

[00:28:08] Speaker 02:
The plaintiffs had an opportunity after Apple to amend their complaint to try to meet the standard that this court set in Apple.

[00:28:15] Speaker 02:
What they came up with was eight paragraphs, said paragraphs 99 to 107.

[00:28:19] Speaker 02:
Mostly, they recite several times that this is a buyer-supplier relationship.

[00:28:25] Speaker 02:
What Apple held is that a buyer-supplier relationship is not enough.

[00:28:29] Speaker 02:
Plane of say, you had leverage.

[00:28:30] Speaker 02:
You could have withheld your purchases.

[00:28:33] Speaker 02:
You had audit rights.

[00:28:34] Speaker 02:
Apple addressed those things.

[00:28:35] Speaker 02:
It says you can exhort your supplier.

[00:28:37] Speaker 02:
That's not enough.

[00:28:38] Speaker 02:
You can have audit rights.

[00:28:40] Speaker 02:
That's not enough.

[00:28:41] Speaker 02:
for Ansell, which is one of the defendants here, that's it.

[00:28:44] Speaker 02:
It's just the buyer-supplier relationship.

[00:28:47] Speaker 02:
With Kimberly-Clark, all they add is this incredibly cursory allegation at paragraph 103.

[00:28:52] Speaker 04:
Pursery is okay at this early stage.

[00:28:53] Speaker 02:
Pursery is okay, but it only gets you as far as you're able to allege.

[00:28:58] Speaker 02:
So the question is, what is a plausible inference that you can draw from the allegation that, for example, some machinery was provided, even a

[00:29:07] Speaker 02:
I don't want to shortchange the allegation.

[00:29:09] Speaker 02:
A significant amount of machinery was provided.

[00:29:13] Speaker 02:
How much exactly, how did that help Brightway?

[00:29:16] Speaker 02:
Was that integral to its business?

[00:29:19] Speaker 02:
The plaintiffs have been shorthanding this idea.

[00:29:21] Speaker 04:
They had alleged the provision of, I assume there was only one factory or more than one?

[00:29:26] Speaker 02:
I can only go based on the allegation.

[00:29:28] Speaker 02:
They said at one time, Kimberly Clark sold a factory.

[00:29:34] Speaker 04:
Are the machinery and molds provided on an ongoing basis updated equipment?

[00:29:38] Speaker 02:
Your Honor, this is, I think, why we're getting to the issue of the cursory nature of the allegation.

[00:29:42] Speaker 02:
I don't know.

[00:29:43] Speaker 04:
Well, what's a fair inference from the allegation?

[00:29:47] Speaker 02:
A fair inference is that at some point, significant amounts of machinery were provided.

[00:29:51] Speaker 02:
I think even if that was ongoing and in a continuous way, I think the only natural inference I can think of is that, as Judge Rouse suggested earlier, this is what happens in buyer-supplier relationships.

[00:30:03] Speaker 02:
It's one thing to say, I want a bunch of blood.

[00:30:04] Speaker 04:
That's not what was going on in Apple.

[00:30:06] Speaker 04:
It's a big difference from Apple.

[00:30:08] Speaker 04:
Apple wasn't providing anybody machinery, let alone factories.

[00:30:13] Speaker 02:
No, Your Honor, so I think that the question is, you know, what Apple said is you need more than a buyer-supplier.

[00:30:18] Speaker 04:
By computer services, continually.

[00:30:20] Speaker 04:
You're in trouble under Salesforce.

[00:30:22] Speaker 04:
If you provide equipment continually, that's OK.

[00:30:26] Speaker 04:
That would seem an odd distinction.

[00:30:27] Speaker 02:
Your Honor, I don't read Salesforce as saying if you continually provide computer services, period, then you are participating in a venture.

[00:30:35] Speaker 02:
Salesforce had incredibly detailed allegations about the growth.

[00:30:39] Speaker 04:
I get that it did.

[00:30:40] Speaker 04:
What makes you think Salesforce is the bare minimum as opposed to an easy case?

[00:30:46] Speaker 02:
Your honor, I'm not suggesting that it's a bare minimum.

[00:30:49] Speaker 02:
I'm following what the court said in Apple.

[00:30:52] Speaker 02:
The plaintiffs have said, if you have a direct and continuous relationship, boom, you're a participant in a venture.

[00:30:59] Speaker 02:
I don't think that's what Apple said.

[00:31:00] Speaker 02:
It said, if you have the type of relationship, that was at issue in Salesforce.

[00:31:04] Speaker 02:
And so I'm not saying that Salesforce is the bare minimum.

[00:31:07] Speaker 02:
But when you look at what it was about at this court, it was about Salesforce involving itself in the operations of a sex trafficking website.

[00:31:15] Speaker 04:
If you are constantly providing, put aside the factory, the equipment, updating and sending new stuff every year, plus the buyer-seller relationship, your position is that that's what normal buyer-seller contracts do?

[00:31:37] Speaker 02:
Well, your first and I take that maybe to be a hypothetical because the constantly point is not played.

[00:31:43] Speaker 04:
But if that is a question that I asked, I thought you were saying not good enough under Apple.

[00:31:48] Speaker 04:
And that's what I'm that is the very question I'm asking you.

[00:31:51] Speaker 02:
Sure.

[00:31:52] Speaker 02:
And I think it would depend on on on all of the facts that were alleged.

[00:31:55] Speaker 02:
And the reason I say that is because, you know, I take the North Star of

[00:32:00] Speaker 02:
of Apple to be that the plain, ordinary meaning of participation in a venture is that you are in a shared enterprise.

[00:32:06] Speaker 02:
You are sharing opportunities for risk, for profit, and you are sharing in the risk of loss.

[00:32:11] Speaker 04:
So I think the question is- I mean, they were investing money in this, apart from their buyer-seller contract.

[00:32:19] Speaker 04:
I mean, that's at some level, but put that aside.

[00:32:21] Speaker 04:
They also were investing money

[00:32:25] Speaker 04:
every year in the company, whether in the form of just giving them capital or giving them equipment or giving them high-tech computer services.

[00:32:34] Speaker 04:
I'm just curious as to why you are resisting that that would be different.

[00:32:42] Speaker 02:
I think it might be with enough facts alleged.

[00:32:46] Speaker 04:
I'm telling you the facts.

[00:32:48] Speaker 04:
It seems as alleged and whether that could be good enough for a complaint.

[00:32:51] Speaker 04:
And that is, if they said on an annual basis, they are sending in

[00:32:56] Speaker 04:
capital investments, equipment, physical manufacturing equipment, high-tech computer services.

[00:33:04] Speaker 02:
I think it would depend.

[00:33:05] Speaker 02:
Is it only to use for the particular products that Kimberly-Clark wants, in which case it sounds- They're not making factory.

[00:33:11] Speaker 04:
As far as we know, that's all they do.

[00:33:13] Speaker 02:
Well, but is it because Kimberly-Clark wants their gloves made to a particular specification?

[00:33:17] Speaker 02:
And so the same way, for example, if you had a t-shirt factory.

[00:33:20] Speaker 04:
So you think that's what matters.

[00:33:22] Speaker 02:
I think it's relevant.

[00:33:22] Speaker 02:
I think because I think it's relevant to sharing a brisket.

[00:33:24] Speaker 04:
Someone could be doing this, but it's not specialized.

[00:33:26] Speaker 04:
It doesn't have a Kimberly-Clark embossment on it or anything.

[00:33:31] Speaker 04:
But someone could be actually sort of co-running this business and throwing money and equipment and technology at it.

[00:33:39] Speaker 02:
Well, Your Honor, I think once you're able to plausibly infer that you are co-running the business, then I think that's right.

[00:33:47] Speaker 04:
That's my label on what this is when you are providing lots of, let's say, a significant percentage of the equipment, assuming they're the high-tech services and a significant capital contribution.

[00:34:00] Speaker 04:
I don't know why you're resisting that.

[00:34:02] Speaker 02:
Your Honor, I guess where I'm

[00:34:08] Speaker 02:
I guess the question is just whether it's possible at that point to refer your revenue together.

[00:34:11] Speaker 04:
What does it mean to have, you know, at risk, be at risk?

[00:34:14] Speaker 04:
I mean, that's a lot of sunk costs if this business goes belly up.

[00:34:19] Speaker 03:
Sure.

[00:34:19] Speaker 04:
Well, I think- It's a WRO against them.

[00:34:21] Speaker 04:
That's a lot of stuff you've invested there that's gone.

[00:34:23] Speaker 04:
That's not a venture?

[00:34:26] Speaker 02:
I think I would say that I will acknowledge that at some point, if you have enough in there and you have enough writing on this and your profits- That's just enough.

[00:34:35] Speaker 02:
I guess I'm not sure, but it's not the one sentence, a significant amount of machinery.

[00:34:41] Speaker 02:
I think these things get done on a case to case basis.

[00:34:45] Speaker 02:
I think Salesforce is instructive.

[00:34:47] Speaker 04:
If they've said a significant amount of machinery and it's unclear from the complaint whether it was continuous or not, it's just not specified.

[00:34:56] Speaker 04:
We have to write the opinion and say we infer it wasn't continuous.

[00:35:00] Speaker 04:
We infer that against plaintiffs.

[00:35:02] Speaker 04:
And so we won't find a venture here.

[00:35:05] Speaker 02:
I think you're on a good point.

[00:35:06] Speaker 04:
did say continuous, then we would infer otherwise.

[00:35:10] Speaker 02:
I don't think continuous is the be all and end all.

[00:35:13] Speaker 02:
I think what does it do to the ultimate relationship?

[00:35:17] Speaker 02:
I think the question would be, I think what your honor asked, that it rises to the level of basically operating the business together.

[00:35:24] Speaker 02:
I think that could be a workable standard.

[00:35:26] Speaker 04:
And the question is- That's sort of the conclusion that comes from being a venture, is that you're

[00:35:31] Speaker 04:
You could be both godskin in the game.

[00:35:33] Speaker 04:
So I don't think you can say that that's the test.

[00:35:36] Speaker 04:
I think that's the conclusion.

[00:35:37] Speaker 04:
And so I'm trying to understand what you think the test is in an opinion where we do have different allegations than Apple.

[00:35:47] Speaker 04:
what it should be for a venture in this context.

[00:35:50] Speaker 02:
I think, are you, is the amount of machinery that is being provided so significant?

[00:35:58] Speaker 02:
One, is this sort of- They use significant.

[00:36:02] Speaker 02:
They use that word.

[00:36:03] Speaker 02:
They do use the word significant.

[00:36:04] Speaker 02:
I think that's a conclusion they put in there in their one sentence allegation.

[00:36:08] Speaker 02:
Is it so significant?

[00:36:09] Speaker 04:
It's an adjective describing volume is actually another way to think about it.

[00:36:13] Speaker 04:
It's a factual allegation.

[00:36:14] Speaker 02:
Sure, Your Honor.

[00:36:15] Speaker 02:
And in Apple, the court referred to unspecified amounts of purchases.

[00:36:20] Speaker 04:
That was just buyer-seller.

[00:36:23] Speaker 04:
I think there was even another in-between person there.

[00:36:25] Speaker 04:
That's not what was going on here.

[00:36:27] Speaker 02:
Sure, Your Honor.

[00:36:28] Speaker 02:
I think it would look to a couple of things.

[00:36:30] Speaker 02:
Are there allegations that this is something that ordinary buyers and sellers don't do?

[00:36:34] Speaker 02:
That's not alleged.

[00:36:36] Speaker 04:
I'm not over on businesses.

[00:36:37] Speaker 04:
I didn't know that ordinary buyer-sellers

[00:36:42] Speaker 04:
Arms length relationships a la Apple are sending, donating, giving significant amounts of machinery and molds to the manufacturer.

[00:36:56] Speaker 04:
Is that, am I wrong?

[00:36:57] Speaker 04:
Is that normal?

[00:36:59] Speaker 04:
Does Kimberly-Clark do that or Ansel?

[00:37:01] Speaker 04:
You said Ansel didn't do it.

[00:37:02] Speaker 04:
It seems like it's part of their business.

[00:37:04] Speaker 04:
Does Kimberly-Clark, I mean, one thing you should know is whether your client does that routinely to say domestic manufacturers.

[00:37:09] Speaker 02:
As I understand it, it is normal to have a sort of bailman arrangement where someone is making products for you and you provide a particular piece of equipment to use to make that product to a particular specification.

[00:37:23] Speaker 02:
It's like if you want to mass produce t-shirts.

[00:37:27] Speaker 02:
We're now getting past beyond the complaint, but Your Honor asked if my understanding as to whether this is normal.

[00:37:35] Speaker 02:
My understanding is that in these business operations it is, but there's certainly no allegation that it's not.

[00:37:41] Speaker 02:
Well, Apple is a different industry, that mass production of commodity.

[00:37:44] Speaker 02:
I'm not here to say that Apple has exactly the same facts.

[00:37:48] Speaker 02:
I certainly wouldn't say that.

[00:37:49] Speaker 02:
What it does is have the test.

[00:37:50] Speaker 04:
So where the molds?

[00:37:52] Speaker 04:
Well, I know, but that's why I'm struggling with trying to apply that test to different facts.

[00:37:56] Speaker 04:
That's what this case is about on the venture issue.

[00:38:00] Speaker 04:
Were the molds, were they Kimberly-Clark specific then?

[00:38:03] Speaker 04:
Did it have a little Kimberly-Clark design on it?

[00:38:05] Speaker 04:
Is that why they gave them, I don't know how much of a mold you need for a glove.

[00:38:09] Speaker 04:
If they had their own specific gloves, it sounds like then what is maybe normal is you give them equipment for manufacturing your gloves, but not Ansel's gloves or anyone else's gloves.

[00:38:20] Speaker 04:
Is that what is meant by the?

[00:38:22] Speaker 02:
The short answer is I don't know from the one sentence what exactly they think was provided, what they think that it was used for.

[00:38:34] Speaker 02:
We don't know the amount.

[00:38:35] Speaker 02:
We don't know the purpose.

[00:38:37] Speaker 02:
So is it ordinary or is it not ordinary?

[00:38:41] Speaker 02:
And we don't know, again, I think Salesforce is instructive in the sense of, are you sort of so enmeshed in the business that you are having an effect on the ability for Brightway to run its business?

[00:38:51] Speaker 02:
Not just can you fulfill the contract for Kimberly-Clark?

[00:38:54] Speaker 02:
Is this rising to the level that you are enmeshing yourself in the way that Brightway is running its business?

[00:38:59] Speaker 02:
So I think you could have had allegations.

[00:39:01] Speaker 02:
So for example,

[00:39:02] Speaker 02:
Was Kimberly-Clark the only customer?

[00:39:04] Speaker 02:
Was there a five-fold growth like there was in Salesforce, or even double growth when this factory was sold or when these machinery was provided?

[00:39:14] Speaker 04:
We thought Bancel were two-thirds of the purchasers of the gloves from this factory.

[00:39:17] Speaker 02:
I don't think that's been alleged, Your Honor.

[00:39:20] Speaker 04:
I thought it was in the record that the only other purchaser was the National Health Service.

[00:39:25] Speaker 02:
The plaintiffs don't allege anything about how many other buyers there were.

[00:39:30] Speaker 02:
We know from a press report that it was incorporated into the complaint that the National Health Service of the UK was another buyer.

[00:39:36] Speaker 02:
I don't see anything in that article or in the complaint that says those were the only three buyers.

[00:39:41] Speaker 02:
That's just more and more and more.

[00:39:43] Speaker 02:
So one thing I was suggesting was before Kimberly Clark was involved was Brightway's operation not at scale.

[00:39:53] Speaker 02:
And then we also have an allegation that Kimberly Clark and Ansel stopped buying gloves.

[00:39:59] Speaker 02:
Did Brightway collapse?

[00:40:01] Speaker 02:
What happened?

[00:40:01] Speaker 02:
That would have been very, very relevant to understanding what is exactly the nature of this supposed dependency on the factory, on the machinery.

[00:40:09] Speaker 02:
so little here and I do think I completely appreciate your honor that you want to write the opinion and know exactly where to draw the line.

[00:40:18] Speaker 04:
Be careful because at some level you know these are victims of slavery, forced labor, trafficking,

[00:40:25] Speaker 04:
There has to be a line between they've said enough to get past the 12-by-6 stage, but the other stuff is information that they're not going to know.

[00:40:36] Speaker 04:
It's lots of economic injury.

[00:40:39] Speaker 04:
Business information is not often shared with your forced employees.

[00:40:43] Speaker 02:
I want to say Kimberly Clark and Ansel take allegations like this very seriously.

[00:40:49] Speaker 02:
The point here is not should there be any response to these allegations of forced labor and supply chains.

[00:40:56] Speaker 02:
Congress has taken a number of steps.

[00:40:59] Speaker 02:
You know, the system working with the withhold release order here, and immediately as the plaintiffs allege, Kimberly Clark and Ansel cut off their ties and stopped buying the gloves.

[00:41:12] Speaker 02:
The question here is, you know, this is a statute that Congress enacted, and we've got to give it its faithful interpretation.

[00:41:18] Speaker 02:
At times I heard Mr. Collingsworth basically describe a form of liability where if you know that something is going on in your supply chain and you buy from that supplier, then you're liable.

[00:41:30] Speaker 02:
It would not have been that hard for Congress to write a statute like that.

[00:41:32] Speaker 02:
It used a very particular formulation, participation, and adventure.

[00:41:36] Speaker 02:
So I do think the court was right and apple and should hear demand that the plaintiffs

[00:41:43] Speaker 02:
um you know really make us showing that this goes beyond a buyer-supplier relationship into something where it looks like it is as your honor well put it same business together the same venture test would apply domestically to a domestic blood manufacturer um yes yes your honor i think you know that's the venture test that was applied that was you know succeeded in richio was succeeded in sales force so i don't think you know our approach here we're not suggesting they were wrong

[00:42:09] Speaker 04:
that's back to the yeah it succeeded there those things seemed like if anything was a venture that was but we need to understand is what is the distinguishing line here and it can't be that you have to have all that much of a show the same showing that seemed to be

[00:42:24] Speaker 04:
More than enough in those two cases.

[00:42:27] Speaker 02:
That was certainly enough in those cases.

[00:42:28] Speaker 02:
I agree.

[00:42:29] Speaker 02:
This case is somewhere in between, say, Salesforce and Apple.

[00:42:32] Speaker 02:
I think it is a lot closer to Apple than it is to Salesforce.

[00:42:36] Speaker 02:
And of course, case by case, judging, there will be distinctions.

[00:42:41] Speaker 02:
You have to decide which side of the line it falls on.

[00:42:45] Speaker 02:
But I will say, the question of under Twombly and Iqbal, it is the burden of the plaintiffs to allege enough.

[00:42:50] Speaker 02:
And I think these two sentences about some machinery in a factory at one time is not enough to say under this standard, the plane meeting standard this court adopted in Apple, that's not enough to say you were fundamentally in business together, you were in it together, your risks and your profits were rising and falling together.

[00:43:07] Speaker 02:
I see I'm out of time.

[00:43:09] Speaker 02:
I was hoping to address extra-territoriality, but I'll let the courts say.

[00:43:13] Speaker 05:
I just have a question or two on unjust enrichment, which I think is a tougher claim for you, because there does seem to be some authority for the proposition that if a plaintiff confers a benefit on a defendant and that gets passed down a chain, the plaintiff can sue

[00:43:42] Speaker 05:
an indirect beneficiary.

[00:43:44] Speaker 05:
For purposes of this question, suppose I think your colleague on the other side is right that knowledge was adequately pleaded.

[00:43:59] Speaker 05:
So you have Brightway being unjustly enriched through this forced labor, and then the defendants here knowingly taking advantage of that and being, they say, unjustly enriched through buying these products at a discount, reflecting the forced labor.

[00:44:25] Speaker 05:
I mean, there's a lot of factual assumptions in that.

[00:44:29] Speaker 05:
There might be hard questions about how the markets work and stuff, but I didn't see an obvious legal roadblock in unjust enrichment law to prevent them from trying to make an indirect

[00:44:49] Speaker 05:
on just enrichment claims.

[00:44:50] Speaker 02:
So help me out with that.

[00:44:51] Speaker 02:
Sure, Your Honor.

[00:44:52] Speaker 02:
And so I think the way I would think about this is not direct versus direct, but is there confer... Not direct versus... Versus indirect.

[00:44:58] Speaker 02:
It was their conferral of a benefit from the plaintiff to the defendant.

[00:45:04] Speaker 02:
So I'm interested to hear what case Mr. Collingsworth comes up with as his best case.

[00:45:09] Speaker 02:
I suspect it will be a case that's about money.

[00:45:11] Speaker 02:
A pays a premium to B. B kicks it over to C. A is able to sue C to recover that premium that was paid.

[00:45:21] Speaker 02:
B and C are in a scheme together.

[00:45:23] Speaker 02:
They managed to build A out of some money.

[00:45:28] Speaker 02:
B is the one who initially collects it, gives C their share.

[00:45:32] Speaker 05:
Then A sues C. We're not talking- Easier case if B and C are in the scheme.

[00:45:38] Speaker 02:
It might be a much easier case if they're in the scheme, even if you allow.

[00:45:41] Speaker 05:
Even if they're not in the scheme.

[00:45:43] Speaker 05:
I mean, I was really trying to think like what is the right legal doctrine to decide how far down the chain you can go.

[00:45:51] Speaker 05:
And like one possibility might be is see a bona fide purchaser.

[00:45:58] Speaker 05:
And that would seem to turn on.

[00:46:01] Speaker 05:
Did C have notice of that it was acquiring something illicit?

[00:46:07] Speaker 05:
And on this hypothetical, I'm assuming knowledge.

[00:46:11] Speaker 02:
Sure, Your Honor.

[00:46:13] Speaker 02:
So let me suggest maybe another way of thinking about it, which is to distinguish the money cases.

[00:46:19] Speaker 05:
Why is that way of thinking about it wrong, too?

[00:46:21] Speaker 02:
Sure.

[00:46:22] Speaker 02:
Let's think about what is the benefit that's conferred.

[00:46:26] Speaker 02:
In these cases where you're following the money downstream, it's money.

[00:46:30] Speaker 02:
You can trace, A paid $1,000, and maybe it stopped with B, or maybe it's C. It's a discount reflecting

[00:46:42] Speaker 05:
horrible conditions.

[00:46:43] Speaker 02:
Yes, but I think it becomes different when you're asking about the way that the unjust enrichment doctrine is phrased is in terms of conferral of a benefit.

[00:46:55] Speaker 02:
So the question is, what did the plaintiffs here confer on anyone?

[00:46:59] Speaker 02:
What they conferred on Brightway was their labor.

[00:47:03] Speaker 02:
And they alleged that they did that under horrible conditions.

[00:47:06] Speaker 02:
And we absolutely are condemning that.

[00:47:09] Speaker 02:
benefit from the conferral of labor by the plaintiff.

[00:47:13] Speaker 02:
So the question is, if the plaintiffs had given $1,000 to Brightway and then Brightway shared some of that with Kimberly Clark and Ansel, maybe we're talking something else.

[00:47:24] Speaker 02:
I don't think it quite works to say the labor was then conferred from Brightway.

[00:47:32] Speaker 02:
Brightway received the labor and then they sort of conferred down the chain that labor onto Kimberly Clark.

[00:47:39] Speaker 05:
I'm not an economist.

[00:47:43] Speaker 05:
It doesn't seem unreasonable to think of it that way.

[00:47:49] Speaker 05:
I'm not sure if it's the supply curve or the demand curve, but unless there's complete price inelasticity, some of that is going to get passed on, right?

[00:48:01] Speaker 05:
I think that's right.

[00:48:03] Speaker 05:
But some of that value will be passed on to the indirect purchaser of the labor note.

[00:48:09] Speaker 02:
And I'm just not familiar with any unjust enrichment case, certainly not one that the plaintiffs have cited that goes that far.

[00:48:16] Speaker 05:
I'm not either.

[00:48:16] Speaker 05:
I can't think of the legal magic bullet to say that there can't be one.

[00:48:22] Speaker 05:
That's why I'm struggling.

[00:48:23] Speaker 02:
Because I think now we're very much in the realm of common lawmaking.

[00:48:28] Speaker 02:
And I think the fact that there

[00:48:31] Speaker 02:
what we're now getting into these complicated econometrics and things like that is a pretty good reason sitting in diversity, I guess this would be supplemental jurisdiction.

[00:48:41] Speaker 02:
I think the court, if it reaches that question, would have to ask, is that really a step that the common law is supposed to go when adjudicating that claim really would require you, require

[00:48:53] Speaker 02:
a common law court to ask these questions about inelasticity of markets and prices and supply and demand curves, it gets really complicated.

[00:49:00] Speaker 02:
And I think it gets into questions we haven't at this stage raised extraterritoriality issues.

[00:49:05] Speaker 02:
I think those do loom here.

[00:49:07] Speaker 02:
And the other thing that I would say is that we have a statute, Congress passed a statute that says

[00:49:13] Speaker 02:
we don't think there should be a sort of general abstract, unjust enrichment concept for supply chains where lots of people down the chain might be buying something that could be tainted at the start.

[00:49:28] Speaker 02:
I think the question is, I think a reasonable question for a common law court to ask, should we extend the common law to do all of these complicated economic things in an area

[00:49:39] Speaker 02:
that gets into questions of foreign relations.

[00:49:42] Speaker 02:
And Congress has taken a different approach and a narrower approach.

[00:49:46] Speaker 02:
I think that there's a lot of reason for caution before extending a common law claim into something that really hasn't been seen in the common law before.

[00:49:54] Speaker 04:
Well, do you know if the DC Court of Appeals follows the restatement?

[00:49:59] Speaker 02:
I think it does.

[00:50:01] Speaker 04:
Restatement third says,

[00:50:04] Speaker 04:
If the claimant renders to a third person a contractual performance for which the claimant does not receive the promised compensation, and the effect of the claimant's uncompensated performance is to confer a benefit on the defendant, the claimant is entitled to restitution from the defendant as necessary to prevent unjust enrichment.

[00:50:24] Speaker 04:
That sounds like exactly this case.

[00:50:26] Speaker 04:
Your statement is restating common law.

[00:50:30] Speaker 04:
Right.

[00:50:32] Speaker 04:
whether those factors are met, whether the inversion was unjust or not.

[00:50:36] Speaker 04:
In fact, knowledge, innocent by, or those things.

[00:50:39] Speaker 04:
But it seems to me, at least the principle of law that Judge Katz has been asking about, that I agree with you.

[00:50:46] Speaker 04:
I think the DC Court of Appeals does follow the restatement.

[00:50:48] Speaker 04:
The restatement articulates in the exact terms of this situation.

[00:50:52] Speaker 04:
an underpayment to the laborer that allows for a cheaper product to the purchaser, that allows for a claim against a bond just in Richmond against the purchaser.

[00:51:03] Speaker 02:
Sure.

[00:51:04] Speaker 02:
Well, Your Honor, I may have missed part of the quote as you're reading.

[00:51:08] Speaker 02:
I didn't hear anything specific to a laborer.

[00:51:11] Speaker 02:
Maybe I missed that.

[00:51:14] Speaker 04:
It's a contractual performance for which they're not compensated.

[00:51:18] Speaker 02:
Sure.

[00:51:18] Speaker 02:
And I think that could be the sale of land in any number of things.

[00:51:21] Speaker 04:
I guess what I'm saying is just... But they don't limit it to that.

[00:51:25] Speaker 02:
Sure.

[00:51:25] Speaker 04:
And so I think a restatement is a good place to start and then one... Well, you were just saying you weren't aware of any common law principle and it just seems to me that... Right.

[00:51:32] Speaker 04:
...sent the restatements saying that, making that point in a number of different ways.

[00:51:39] Speaker 04:
It's only something...

[00:51:42] Speaker 04:
one would need to at least take into account.

[00:51:44] Speaker 04:
I mean, the district court's ruling here was simply a flat can't ever happen.

[00:51:48] Speaker 04:
And if that's incorrect, then that's an error.

[00:51:53] Speaker 04:
Without an analysis of whether DC Court of Appeals follows a statement and then whether the restatement articulation must cover the situation.

[00:52:05] Speaker 04:
You think there might be a difference between wages and land?

[00:52:08] Speaker 02:
I think common law adjudicating is all about how these things apply to different sets of facts.

[00:52:16] Speaker 02:
And I can think of a lot of situations where labor is provided.

[00:52:26] Speaker 02:
For example, Fair Labor Standards Act, someone doesn't pay overtime.

[00:52:31] Speaker 02:
The chicken farmer doesn't pay their workers overtime.

[00:52:35] Speaker 02:
You could have an FLSA claim against the producer.

[00:52:42] Speaker 02:
Could you have an unjust enrichment claim against your giant supermarket and say the laborer conferred a benefit on the poultry manufacturer, and they passed that along as in the form of cheaper prices at the grocery store?

[00:52:58] Speaker 02:
If they knew about it.

[00:52:59] Speaker 02:
I suppose you're on it.

[00:53:00] Speaker 02:
That just happened.

[00:53:01] Speaker 04:
I'm just asking you.

[00:53:02] Speaker 04:
I'm not saying that's what happened here.

[00:53:03] Speaker 04:
If they knew about it.

[00:53:06] Speaker 04:
The two of them were, all right, we won't pay them that so that your gloves will be cheaper and then you'll have a higher profit margin when you sell them to hospitals and doctor's offices.

[00:53:16] Speaker 04:
If there were such knowledge of that sort of passing along a financial benefit, knowledge and intent, what's the objection?

[00:53:27] Speaker 02:
I think the objection is just how complicated it would be to trace benefits.

[00:53:32] Speaker 04:
Court law does intent all the time and knowledge all the time.

[00:53:34] Speaker 04:
It also deals with innocent owners.

[00:53:36] Speaker 04:
It deals with bona fide purchasers and not bona fide purchasers.

[00:53:38] Speaker 04:
I don't want it so complicated.

[00:53:39] Speaker 04:
This is what happens in the law all the time and you want to make some global rule.

[00:53:44] Speaker 04:
But even if someone intentionally knowingly engaged in this contractual relationship where you cheat them and that will let you give me a lower price and I am untouchable, the law can't handle that.

[00:54:00] Speaker 02:
I think the law can handle.

[00:54:02] Speaker 02:
I think some version of what Your Honor just said starts to look like a scheme.

[00:54:08] Speaker 02:
And that starts to look like these cases where the premiums are collected, and you're all agreeing to bilk someone.

[00:54:15] Speaker 04:
Adding more factors in makes it more workable?

[00:54:18] Speaker 02:
You have a scheme now?

[00:54:20] Speaker 02:
No, Your Honor, I think the.

[00:54:21] Speaker 04:
I mean, your case is a little more complicated because you talked about a statute.

[00:54:24] Speaker 04:
So there are all kinds of issues about common law related to that.

[00:54:27] Speaker 04:
But let's just assume instead it was a common law.

[00:54:29] Speaker 04:
Oh, underpaid this person, grossly underpaid them.

[00:54:34] Speaker 02:
I think the law promised them.

[00:54:37] Speaker 02:
I'm not disputing the courts can't handle knowledge and intent.

[00:54:40] Speaker 02:
I'm talking about when you start tracing the value of labor through a supply chain.

[00:54:47] Speaker 02:
And does it stop?

[00:54:49] Speaker 04:
Enrichment has been around for a very long time, as have labor supply chains.

[00:54:55] Speaker 04:
And it hasn't been a problem.

[00:54:56] Speaker 04:
So why is it suddenly a problem now?

[00:54:58] Speaker 02:
Your honor, I think it hasn't been a problem because I'm not aware of cases like this.

[00:55:04] Speaker 04:
You're talking about the TVPRA.

[00:55:06] Speaker 04:
I'm talking about... No, your honor.

[00:55:08] Speaker 04:
I'm sorry.

[00:55:10] Speaker 04:
No, no.

[00:55:10] Speaker 04:
So I think one is an awful lot of times it's an innocent buyer that cuts it off right then and there.

[00:55:16] Speaker 04:
You don't have to knowledge.

[00:55:18] Speaker 02:
I think that could be one way out in this case because we don't think what they allege here is that the audits didn't.

[00:55:27] Speaker 04:
They definitely are not alleging.

[00:55:28] Speaker 04:
There's no allegation here that suggests that in their view, Kimberly Clark and Ansel are innocent purchasers.

[00:55:35] Speaker 04:
Exactly, they allege exactly the opposite.

[00:55:37] Speaker 02:
Well, respectfully, they don't.

[00:55:39] Speaker 02:
If you take the complaint as a whole, including what the district court found unchallenged to be materials incorporated by reference, the audits, the third-party audits that were provided to Anselm Kimberly-Clark found there was not forced labor.

[00:55:53] Speaker 01:
OK.

[00:55:53] Speaker 01:
We might read the complaint differently.

[00:55:55] Speaker 01:
Can I just ask you a question on extraterritoriality?

[00:55:58] Speaker 01:
If we are operating under the second prong of our JR Nabisco,

[00:56:06] Speaker 01:
Is there any way for the plaintiffs to allege that the focus of the statute has a permissible domestic effect?

[00:56:17] Speaker 01:
What would they have to allege to show that?

[00:56:20] Speaker 02:
Well, Your Honor, what the Supreme Court has said is you look at what is the focus of the statute?

[00:56:24] Speaker 02:
What is the object of its solicitude?

[00:56:26] Speaker 02:
Who is it trying to protect?

[00:56:28] Speaker 02:
I think the obvious thing that this statute is focused on is forced labor, and it's trying to protect people who are victimized by forced labor in trafficking.

[00:56:37] Speaker 02:
So then you would look to where does the conduct relevant to that focus happen?

[00:56:41] Speaker 02:
I appreciate the plaintiffs want to say it's the benefit.

[00:56:44] Speaker 02:
I have a couple of things to say about that.

[00:56:47] Speaker 01:
Doesn't Congress in part say it is the benefit?

[00:56:49] Speaker 01:
They don't want companies benefiting from participation in a venture that involves forced labor or trafficking.

[00:56:57] Speaker 02:
Sure, Your Honor.

[00:56:57] Speaker 02:
And in that, I agree that is an element of the statute.

[00:57:01] Speaker 02:
But that's not the end of the focus analysis.

[00:57:06] Speaker 02:
I think Your Honor asked the good question before.

[00:57:08] Speaker 02:
Why is the focus the benefit and not the participation?

[00:57:12] Speaker 02:
That natural statutory phrase does not knowingly benefit from the forced labor.

[00:57:16] Speaker 02:
It's knowingly benefit from participation in a venture that has engaged in the forced labor.

[00:57:22] Speaker 01:
So perhaps plaintiffs here have not alleged enough.

[00:57:25] Speaker 01:
But do you think it's possible where the forced labor occurs abroad for there to be liability for a US company domestically?

[00:57:36] Speaker 01:
Your Honor.

[00:57:36] Speaker 01:
Is it possible?

[00:57:39] Speaker 01:
I don't think that could be like if there was if there was evidence say of participation, like if there were venture activities that occurred domestically, would that bring it?

[00:57:50] Speaker 01:
Would that make it possible to sue a company in the United States?

[00:57:53] Speaker 02:
Your Honor, my position is that the focus of this statute is the forced labor.

[00:57:56] Speaker 02:
And so the question is where that came in.

[00:57:58] Speaker 02:
I don't think the court necessarily has to reach that question today, because I think you could leave open the question of whether participation in a venture is enough.

[00:58:07] Speaker 02:
I think you'd have to wrestle with things like Doe versus Nestle, where the court says, well, it's not enough to have corporate decision making in the US that causes these harms abroad.

[00:58:17] Speaker 02:
I think that might be a complicated issue with that.

[00:58:20] Speaker 02:
But if you had real significant, perhaps one could say that the focus of this provision is the participation in the venture.

[00:58:29] Speaker 02:
And so if you had a lot of participation activity in the US, again, this is not my position.

[00:58:34] Speaker 02:
I think the focus is the forced labor.

[00:58:36] Speaker 02:
But I could imagine that position, and it still wouldn't be good enough for the plaintiffs here.

[00:58:41] Speaker 05:
Are you running away from your other argument that the focus of the cause of action is the injury?

[00:58:49] Speaker 02:
No, you're right.

[00:58:50] Speaker 02:
I think the injury is being subject to forced labor.

[00:58:54] Speaker 02:
So I think that is maybe just another way of phrasing what I was trying to say, or at least I hope so.

[00:58:59] Speaker 04:
Oh, you said the focus was being a victim of forced labor.

[00:59:03] Speaker 02:
Yes, that's right.

[00:59:05] Speaker 04:
So if the focus is on, when I say forced labor, so the statutory violates forced labor victimhood.

[00:59:12] Speaker 04:
That's what the cause of action is focused on.

[00:59:15] Speaker 02:
I think that's right.

[00:59:15] Speaker 02:
That's what, I mean, just from top to bottom, that's what everything about the statute is focused on.

[00:59:22] Speaker 02:
Who is the object of Congress's solicitude?

[00:59:25] Speaker 02:
It says it, your honor quoted this language before, the victim of the violation.

[00:59:29] Speaker 02:
So I think, who is the victim?

[00:59:31] Speaker 02:
Where were they victimized through forced labor?

[00:59:34] Speaker 01:
That is the exclusive focus of the statute or the primary focus of the statute under

[00:59:39] Speaker 01:
the way we think about that under RJR and Nabisco, then there would never be liability for a US company for forced labor that occurred abroad, because the victim, you know, the victim, the injury and the victimization would all speak.

[00:59:53] Speaker 02:
I think that's right.

[00:59:55] Speaker 02:
I mean, I could imagine one thing that Congress was very focused on when it passed this law, there's a lot of immigration-related provisions.

[01:00:01] Speaker 02:
So I can imagine transnational cases where there's sort of trafficking that overlap, that happens, kind of continues from one country, starts in the United States and somewhere else starts in a different country and comes into the United States.

[01:00:13] Speaker 02:
So I think that could be, right?

[01:00:15] Speaker 02:
But I agree, Your Honor.

[01:00:16] Speaker 01:
I think what this- And then there would only be liability for US companies where the forced labor occurred domestically.

[01:00:22] Speaker 02:
I think that's the consequence of what the Supreme Court has applied time and time again, a muscular presumption against secretariality for very good reasons.

[01:00:31] Speaker 02:
As Judge Katz was alluding to before, it is a very big step to go from a substantive offense that is criminally prosecuted by a United States attorney who is accountable to the executive branch.

[01:00:43] Speaker 02:
In some circumstances, by statute, you're supposed to have the express sign off with the attorney general and the deputy attorney general.

[01:00:49] Speaker 02:
Supreme Court said it's a very big step to then turn this over to private plaintiffs to sue over things that happened in different countries.

[01:00:57] Speaker 01:
I think that's just the pronged one of our JR Nabisco.

[01:01:01] Speaker 02:
It does, Your Honor, but not to whether there could ever be

[01:01:05] Speaker 01:
you know, permissible domestic application of the statute.

[01:01:08] Speaker 02:
No, Your Honor, the only thing I would I would just add to that is what is because the court, you know, at applying this step to what it has said a couple of different times that the presumption would be a craven watchdog indeed if you're retreated into its kennel as soon as you have sort of any hint of something domestic.

[01:01:25] Speaker 02:
So I think in applying the focus standard and giving it its due, the court is very much

[01:01:30] Speaker 02:
focused on making sure that you don't just throw out the presumption and the important work that it's doing by being too lax about looking to domestic conduct that you say would meet the focus.

[01:01:46] Speaker 02:
I think that's why.

[01:01:47] Speaker 02:
And I guess my broader point here is this is fundamentally a decision for Congress.

[01:01:52] Speaker 02:
And that is something Congress could decide.

[01:01:55] Speaker 02:
Did it think that actually private plaintiffs should be doing these things?

[01:01:58] Speaker 02:
And if Congress thinks that that's not the right result, the Supreme Court has told it what to do.

[01:02:04] Speaker 02:
Speak more clearly.

[01:02:05] Speaker 04:
Just to be clear, so if you had a company that was in the venture of all ventures with a bright way,

[01:02:19] Speaker 04:
kicked their employees, had their own employees on the ground there, gave them all the equipment they need, kinds of contractual connections between them, ongoing.

[01:02:33] Speaker 04:
I mean, it puts Salesforce to shame, essentially, that I'm hypothesizing to you.

[01:02:38] Speaker 04:
And we've got the memos from the company here in the US saying, gosh, too bad, we're going to have to pay just wages.

[01:02:45] Speaker 04:
Wait, how about we outsource it?

[01:02:48] Speaker 04:
to this company we're going to set up over here.

[01:02:50] Speaker 04:
So we are a venture of all ventures.

[01:02:54] Speaker 04:
And your position is, we don't think Congress wanted that?

[01:02:59] Speaker 04:
You stop that?

[01:03:00] Speaker 04:
My position is, is it yes or no at an extraterritoriality?

[01:03:04] Speaker 04:
Does the statute apply to that situation or not?

[01:03:07] Speaker 02:
The civil cause of action does not.

[01:03:10] Speaker 02:
That company needs a very good white collar lawyer because they are in a lot of trouble under criminal laws.

[01:03:14] Speaker 02:
They can be enforced.

[01:03:15] Speaker 04:
Maybe not.

[01:03:18] Speaker 04:
You know, it's a lot where our prosecutors have a lot, Tony Johnson have a lot on their plates for prosecutions.

[01:03:25] Speaker 04:
So maybe, maybe not.

[01:03:27] Speaker 02:
Right.

[01:03:28] Speaker 04:
But Congress didn't mean to stop that through civil cause of action, only through criminal enforcement.

[01:03:34] Speaker 04:
That's how you read the statute.

[01:03:36] Speaker 02:
I think Congress did not speak clearly enough to overcome the presumption against extra territoriality to reach that result.

[01:03:41] Speaker 04:
You did that because you said the way you were defining focus was solicitude.

[01:03:46] Speaker 04:
Who does Congress have solicitude for these little victims?

[01:03:51] Speaker 04:
I feel bad for victims.

[01:03:53] Speaker 04:
Why isn't the focus inquiry

[01:03:57] Speaker 04:
What did Congress want to stop?

[01:04:00] Speaker 04:
What did it want to use every tool at its disposal to stop?

[01:04:05] Speaker 04:
Well, thankfully we're at a point where maybe what they wanted to stop was slavery, trafficking, sex trafficking, peonage, and those companies in the United States, President of the United States, Nationals of the United States,

[01:04:24] Speaker 04:
who knowingly engage in a venture and profit from this process.

[01:04:30] Speaker 04:
And you wanna say, no, that's not what, it was just one, if you feel bad for victims in the United States.

[01:04:37] Speaker 04:
Now, if I look at the statute as being the focus being make this stop, we are not going to, the United States is not gonna be a part of this system and we are using criminal and civil tools at our disposal.

[01:04:54] Speaker 04:
Does that change the extraterritorial analysis?

[01:04:58] Speaker 04:
Or not the extraterritorial, the prong to analysis of RJR?

[01:05:01] Speaker 04:
If you look at it as a cut it off.

[01:05:05] Speaker 02:
I guess the question is, what is the it?

[01:05:08] Speaker 02:
Is the forced labor?

[01:05:09] Speaker 04:
Forced labor, slavery, sex trafficking, all of the criminal offenses.

[01:05:15] Speaker 04:
It's pretty clear what Congress wants to stop.

[01:05:18] Speaker 04:
It's a lot for Congress to say we're going to apply this overseas.

[01:05:22] Speaker 04:
It's a lot I do and to say we wanted to stop and then to say it numerous points in the statute and you can't wash your hands of it in this country.

[01:05:33] Speaker 04:
You can't outsource it that will be stopped too and we will use both.

[01:05:40] Speaker 04:
the government's own enforcement capacities and private enforcement, because that is a very effective way of making conduct that is reprehensible to the United States, stuck.

[01:05:54] Speaker 02:
Your Honor.

[01:05:54] Speaker 04:
That's what the statute does.

[01:05:56] Speaker 04:
I think we're right in the core of the gravamen.

[01:05:58] Speaker 04:
Tell me why I'm wrong.

[01:05:59] Speaker 02:
Well, I would say the question is focus, not gravamen.

[01:06:02] Speaker 02:
When I was using the phrase object of solicitude.

[01:06:06] Speaker 02:
Focus.

[01:06:07] Speaker 04:
Stop this.

[01:06:08] Speaker 04:
Yeah, in the question do not benefit from it in this country.

[01:06:13] Speaker 02:
Your honor, I think there's two different parts to it.

[01:06:15] Speaker 02:
There's the this conduct and then there's the benefiting from it.

[01:06:18] Speaker 02:
I am totally with you.

[01:06:19] Speaker 02:
Congress thought this was absolutely atrocious conduct and I agree with them.

[01:06:24] Speaker 02:
Kimberly Clark and Ansel agree with that.

[01:06:26] Speaker 02:
Congress wanted to stop this horrible forced labor, peonage, trafficking, slavery.

[01:06:32] Speaker 02:
So the Supreme Court says, if that is the focus, where did the conduct that is relevant to that focus happen?

[01:06:38] Speaker 02:
And it happened in Malaysia, in Bangladesh.

[01:06:40] Speaker 02:
Where I disagree is to say also the focus in that core sense where what the Supreme Court has told us is this is not a... That core sense is there's two.

[01:06:51] Speaker 04:
There's another focal point, and that is nationals of the United States

[01:06:57] Speaker 04:
that knowingly benefit by participation in a venture that's doing this.

[01:07:03] Speaker 04:
That's a focus too.

[01:07:05] Speaker 04:
They added it in multiple locations.

[01:07:08] Speaker 04:
That is a focus too.

[01:07:10] Speaker 04:
It's stopping not just Malaysia from having companies that do it, but having companies here knowingly financially benefit from it.

[01:07:22] Speaker 04:
I don't know how you can say that is not part of the focus.

[01:07:25] Speaker 02:
It's certainly part of this statute.

[01:07:28] Speaker 02:
But it's not part of Congress's focus.

[01:07:30] Speaker 02:
I would say when you look at the statute as a whole, when Congress added this in 2008, it added the knowing beneficiary liability to 1595.

[01:07:38] Speaker 02:
At the exact same time, it added 1596 and extended extraterritorial criminal prosecution.

[01:07:44] Speaker 02:
So I think when you look at the focus of what Congress is doing, you put aside the step one, step two, just look at a hole at the statute.

[01:07:52] Speaker 02:
You know, at the very same time that Congress was expanding civil liability to beneficiaries.

[01:07:56] Speaker 04:
We don't have to do the solicitude test.

[01:07:58] Speaker 04:
Look at the focus.

[01:07:58] Speaker 04:
We have to look and see whether, so what your test is, we have to look and see whether this, and thou shall not benefit from it financially, knowingly, in this country.

[01:08:10] Speaker 04:
We have to say that wasn't part of the focus.

[01:08:14] Speaker 02:
Your honor, I think what I'm applying is the Supreme Court's standard for how you determine.

[01:08:20] Speaker 04:
Can you please?

[01:08:21] Speaker 04:
So your analysis says that was not part of Congress's focus.

[01:08:26] Speaker 02:
The focus of the statute is the forced labor is my position.

[01:08:30] Speaker 04:
OK.

[01:08:30] Speaker 04:
All right.

[01:08:30] Speaker 04:
Not all hands on deck to get rid of it.

[01:08:33] Speaker 02:
A lot of hands on deck criminal prosecution, withhold release orders, a lot of the force of the federal government coming to bear on this.

[01:08:41] Speaker 02:
Not the private right of action that the Supreme Court has said causes a risk of international friction and that Congress needs to be clear if that's what is going to do.

[01:08:49] Speaker 04:
This friction is nothing like the friction the Supreme Court has talked about.

[01:08:54] Speaker 04:
The friction they've talked about is when trouble damages, which aren't allowed here,

[01:09:01] Speaker 04:
Friction is, well, other countries might have their own way of regulating these things, which are predominantly economic activities in our general VSCO, Morrison, Empigram.

[01:09:12] Speaker 04:
I disagree.

[01:09:14] Speaker 04:
We think Congress here was worried.

[01:09:16] Speaker 04:
I mean, it's not, first of all, foreign affairs is something we defer to the political branches.

[01:09:20] Speaker 04:
Congress passed this, the president signed it.

[01:09:23] Speaker 04:
Congress strengthened it, the president signed it.

[01:09:25] Speaker 04:
And so when we start emptying it,

[01:09:28] Speaker 04:
We're stepping out of our role when we start emptying it of the force that we can tell that Congress, or that we discern Congress intended.

[01:09:37] Speaker 04:
That's not our role either.

[01:09:41] Speaker 04:
And if we assume there's no solicitude on Congress's part, assumption that it's okay for other countries to make a different choice about forced labor, slavery, sex trafficking,

[01:09:56] Speaker 04:
That's not an area, unlike the other cases Springboard has talked about, where they want to be solicited of other countries.

[01:10:03] Speaker 04:
If they wanted to be solicited of other countries, they would not be authorized in the federal government to go into those other countries and start prosecuting people.

[01:10:09] Speaker 02:
Well, Your Honor, they authorize the federal government to do that, you know, with particular checks on prosecutorial discretion involving the express sign off of the attorney general and the deputy to attorney general.

[01:10:20] Speaker 04:
They're always responsible for criminal prosecution by United States.

[01:10:23] Speaker 04:
Yes, that's a big deal.

[01:10:26] Speaker 04:
It sure doesn't suggest solicitude for other countries making different regulatory judgments about whether

[01:10:33] Speaker 04:
to come down hard on these practices, unlike the other cases before the Supreme Court.

[01:10:38] Speaker 02:
Sure, Your Honor.

[01:10:38] Speaker 02:
I think all I will say is I don't think the Supreme Court, when it talks about international friction, it is not just disagreement about she's this bad conduct or not.

[01:10:52] Speaker 04:
It's been a lot of time on treble damages.

[01:10:54] Speaker 04:
I think what I've talked about is a regulatory decision.

[01:10:58] Speaker 04:
The tension was, well, other countries are regulating this conduct, but they have different line drawing, different ways of bringing that to bear.

[01:11:08] Speaker 04:
But no one's arguing here that that's what's being stepped on.

[01:11:12] Speaker 02:
And I think there's also questions of capacity building and bringing things into the United States as opposed to abroad.

[01:11:18] Speaker 02:
When you look top to bottom at this statute, there is federal foreign assistance to countries to help them investigate and prosecute.

[01:11:27] Speaker 02:
There's sticks.

[01:11:28] Speaker 02:
There's penalties on countries that don't conduct proper actions.

[01:11:33] Speaker 02:
There's a lot of foreign relations in this statute.

[01:11:35] Speaker 02:
And again, I think ultimately it just comes down to a presumption

[01:11:39] Speaker 02:
Congress said, you know, it may be right that the right answer that the political branches would give is that we want private rights of action here.

[01:11:47] Speaker 02:
We want people enforcing this through a private right of action.

[01:11:51] Speaker 02:
That's something that Congress needs to speak clearly about.

[01:11:53] Speaker 02:
That's our only point.

[01:11:54] Speaker 04:
All right.

[01:11:56] Speaker 04:
Thank you very much, Council.

[01:11:57] Speaker 04:
We kept you all through a long time.

[01:11:59] Speaker 04:
Thank you.

[01:12:00] Speaker 04:
We'll give you three minutes, Mr. Collinsworth.

[01:12:07] Speaker 06:
Thank you, Your Honor.

[01:12:12] Speaker 06:
Where to begin?

[01:12:13] Speaker 06:
I would just remind the court again that in terms of the scope of the statute, I read to you the quote of the sponsors of the bill and they certainly thought that they were going to stop forced labor and trafficking in the global economy with the amendments to the TVPRA.

[01:12:33] Speaker 06:
In that same Nestle case, Justice Thomas, who wrote the opinion, was contrasting the alien tort statute with the TVPRA in terms of its scope.

[01:12:45] Speaker 06:
And he said, quote, in 2008, Congress created the present right of action in the TVPRA, allowing plaintiffs to sue defendants who are involved indirectly with slavery.

[01:12:56] Speaker 06:
And that's Nestle versus Doan, 593 US at 638.

[01:13:01] Speaker 06:
all of the legislative history indicates a broad plan to have a tool that would actually stop forced labor and trafficking.

[01:13:09] Speaker 06:
And with the three minutes, I cannot go into the details of our substantive argument on extraterritorial jurisdiction.

[01:13:17] Speaker 06:
But I will note that in our opening brief at 10 to 27, our reply brief at 5 to 14, and the entire amicus brief filed by the legal scholars,

[01:13:27] Speaker 06:
We think that 1596 extended these extraterritorial predicates and that that caused 1595's exact same extraterritorial predicates to apply extraterritorially.

[01:13:40] Speaker 06:
And if they don't, then certainly 1589B applies here both to extend it extraterritorially because 1596 extends all offenses, or 1589B makes the focus of just that, forced labor,

[01:13:57] Speaker 06:
benefiting from forced labor, domestic.

[01:14:01] Speaker 04:
The damages you seek, are they the same for the forced labor and trafficking?

[01:14:08] Speaker 06:
We did not break out the different categories of damages, just that they were damaged.

[01:14:14] Speaker 04:
Forced labor claim could allow for full compensation of your clients.

[01:14:19] Speaker 06:
Yes, Your Honor, certainly.

[01:14:21] Speaker 06:
I was asked about unjust enrichment.

[01:14:25] Speaker 06:
Let me say that

[01:14:29] Speaker 06:
The two best cases we have, we cited page 50 of our opening brief, the JSC Brands Mash holding case, 70F sub 3rd.

[01:14:41] Speaker 06:
And that one in Campbell?

[01:14:43] Speaker 06:
Yes, both of them deal with indirect liability, the kinds of issues we're discussing here.

[01:14:50] Speaker 06:
And we certainly also discuss section 47 of the restatement, which Judge Millett pointed out as well.

[01:14:58] Speaker 06:
That applies directly here.

[01:15:00] Speaker 06:
Now, let me just say that, first of all, we have many allegations showing or alleging that Kimberly Clark and Ansel are benefiting from the forced labor and trafficking by cheap gloves.

[01:15:13] Speaker 06:
That's the whole point.

[01:15:15] Speaker 06:
Forced laborers don't get paid, so the price of gloves goes down.

[01:15:19] Speaker 06:
That's paragraphs 47, 108, and 109.

[01:15:22] Speaker 04:
We also show...

[01:15:25] Speaker 04:
Okay, I think you are over your rebuttal time and we're aware of what you're saying.

[01:15:29] Speaker 04:
Yes, I'm assuming.

[01:15:31] Speaker 06:
Thank you for your attention.

[01:15:32] Speaker 06:
Your honors.

[01:15:33] Speaker 06:
I appreciate it.

[01:15:34] Speaker 04:
Thank you.

[01:15:34] Speaker 04:
The case is submitted.