UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

__________________________________________BOIMAH FLOMO, et al., )

)PLAINTIFFS, )

)vs. ) Case No.: 1:06-cv-00627-DFH-JMS

)BRIDGESTONE AMERICAS HOLDING, )INC. et al. )

)DEFENDANTS. )

__________________________________________)

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ BRIEF AND

SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR JUDGMENT ON THE

PLEADINGS OR, IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

(DKT. NOS. 209 & 213)

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Law of the Case Doctrine Precludes Firestone’s Third Motion to Dismiss Plaintiffs’ ATS Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Firestone’s Renewed Motion Seeking Dismissal of Plaintiffs’ Forced Child Labor Claims Should Once Again Be Denied on the Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The International Prohibition of Forced Child Labor Meets the Sosa “Law of Nations” Standard of Being “Specific, Universal, and Obligatory.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. International Instruments Defining Unlawful Child Labor Likewise Support Plaintiffs’ Assertion of a “Law of Nations” Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Firestone Can Be Liable For Its Direct Acts in Forcing the Child Laborers to Work and in Violating Norms Prohibiting Child Labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4. Firestone, as a Private Party, Can Be Sued for Using Forced Child Labor Regardless of State or Official Action . . . . . . . . . . . . . . . . . 11

5. Firestone is Not Immune From ATS Liability Because it is a Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

6. The ATS Applies Extraterritorially . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

7. There Are No “Practical Consequences” Justifying Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. Firestone’s Summary Judgement Motion Should Also Be Denied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Plaintiffs Worked for Firestone Against their Will and Performed Hazardous Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. Firestone’s System of Production is Built on Child Labor: The Daily Quota Requires the Use of Multiple Unpaid Workers to Complete . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

b. Every Named Plaintiff has Performed Labor as a Young Child that Constitutes a Worst Form of Child Labor on the Plantation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

c. Firestone’s “Zero-Tolerance” Policy for Child Labor was a Paper Tiger: Un-enforced, Unimplemented, and a Post-litigation Tactic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

d. Firestone’s Perpetuation of the Plantation System: Limited Education with Limited Access Ensures a New Generation of Child Laborers who Become Uneducated Tappers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. Plaintiffs Can Sue Firestone Directly for Forced Child Labor, But if Required, They Do Have Sufficient Evidence to Show that Firestone Acted Under “Color of Law.” . . . . . . . . . . . . . . . . . . . . . . 35

D. Firestone’s Supplemental Argument Regarding State Law Claims is Baseless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

iii

TABLE OF AUTHORITIES

CASES

Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Arias v. Dyncorp, 517 F. Supp. 2d 221 (D.D.C. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Bowoto v. Chevron Corp, 557 F. Supp. 2d 1080 (N.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 11, 13, 14

Brengettcy v. Horton, 423 F.3d 674 (7 Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 4

Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 35,37

Brown v. Sara Lee Corp., 2009 WL 995755 (S.D. Ind. Apr. 14, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,32

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 36

Chavez v. Carranza, 413 F. Supp. 2d 891 (W.D. Tenn.2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cornejo v. County of San Diego, 504 F.3d 853 (9 Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 11

Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

iv

Estate of Rodriquez v. Drummond Company, Inc., 256 F. Supp. 2d 1250 (N.D. Ala. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,12

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14

Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 38

Gentry v. Export Packaging Co., 238 F.3d 842 (7 Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 26

In re South African Apartheid Litigation, 2009 WL 960078 (S.D.N.Y. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In Re World War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160 (N.D. Cal. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D. N.J. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jackson v. Arvinmeritor, Inc., 2008 WL 64528 (S.D. Ind. Jan. 8, 2008) (Hamilton, J.) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jane Doe I v. Reddy, 2003 WL 23893010 (N.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Khulumani v. Barclay Nat’L Bank, Ltd., 504 F.3d 254 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Monteagudo v. Asociacion De Empleados Del Estado Libre Asociado De Peurto Rico, 554 F.3d 164 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

NCGUB v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

v

Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246 (7th Cir.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Santamarina v. Sears, Roebuck & Co., 446 F.3d 571 (7 Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 4

Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

Starcon Int’l v. AFL-CIO, 450 F.3d 276 (7 Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 4

Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Paquete Habana, 175 U.S. 677 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Turkmen v. Ashcroft, 2006 WL 1662666 (E.D.N.Y.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

U.S. v. King, 840 F.2d 1276 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Matta- Ballesteros, 71 F.3d 754 (9 Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 12

Wilkie v. Robbins, 127 S. Ct. 2588 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Woods v. Michigan City, 940 F.2d 275 (7th Cir.1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

vi

RULES

Fed. R. Civ. P. 56(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,37

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

STATUTES

28 U.S.C. § 1350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES

1 OP. ATT’Y GEN. 57, 58 (1795) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

26 OP. ATTY GEN. 250 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404 (1987) . . . . . . . . . . . . . . . . . . . . . . 12

Convention (No. 182) Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, June 17, 1999, 2133 U.N.T.S. 163 (entered into force Nov. 19, 2000). . . . . . . . . . . . . . . . . . . . . . . . . 3,5,6,10,11

Convention (No. 138) Concerning the Minimum Age for Admission to Employment, June 6, 1973, 1015 U.N.T.S. 297 (entered into force June 19, 1976). . . . . . . . . . . . . . . . . . . . 9,10

Convention on the Rights of the Child, G.A. Res. 44/25, 44 U.N. GAOR 3d Comm., 44th Sess., 61st Plen. Mtg., Supp. No. 49, at 165, U.N. Doc. A/44/736 (1989). . . . . . . . . . . . .10

I. INTRODUCTION AND BACKGROUND

The Firestone Plantation had a brutal genesis. In 1926, Harvey Firestone invaded the area

now known as Firestone’s Harbel Plantation in Liberia and forced the local population to convert

a vast rain forest to a rubber plantation. Complaint (“CT”) ¶¶ 60-61. Within a generation,

Firestone had created a plantation system that, on paper, appeared to be a system of employment.

In reality, it hid a calculated system of exploitation based on forced child labor. An individual

tapper was given a daily quota, a “task,” that could only be completed by several people, yet the

tapper received a single daily wage that was barely enough to avoid starvation. The tappers’

family members, including his children, were the only workers who could help him complete his

task and share the meager daily wage. This was a deliberate policy that Firestone implemented to

its economic windfall from 1926 until the present, without material change.

Every example Firestone now cites in an attempt to show this Court that it has finally

changed its policy is a mere cosmetic change made after Plaintiffs sued Firestone on November

17, 2005. Firestone is fighting to retain a system of exploitation that it has maintained and

benefitted from for over 80 years. Real change would mean paying tappers enough money to do

their job without children, and allowing children to get a real education, unshackled from the

burden of doing backbreaking work. Recognizing that it cannot face a jury with the

overwhelming evidence that it maintains a system of forced child labor, Firestone desperately

asks the Court for the third time to dismiss Plaintiffs’ case. After full briefing, the Court denied

Firestone’s first motion to dismiss. See John Roe I v. Bridgestone Corp. (“Roe I”), 492 F.Supp.

2d 988, 1019-22 (S.D. Ind. 2007). Firestone then made a motion to reconsider, which the Court

likewise denied. See Dkt. 50. As discussed infra, without justification for re-filing the same

motion, the law of the case doctrine precludes Firestone from forcing Plaintiffs and the Court to

2

use limited resources to re-litigate a decided issue. Even if the Court addresses, for the third

time, Firestone’s argument that Plaintiffs failed to state a claim under the Alien Tort Statute, 28

U.S.C. § 1350 (“ATS”), the law has only improved in Plaintiffs’ favor.

Firestone’s motion for summary judgement should also be denied based on the current

evidence in the record. Firestone has stonewalled on discovery, yet the evidence gathered even

thus far demonstrates there are material facts in dispute. To the extent that the Court finds this

evidence is insufficient to meet the low threshold on summary judgment, as per Fed. R. Civ. P.

56(f), Plaintiffs delineate the discovery they would take to obtain further evidence on the key

issues in dispute. Ultimately, summary judgement must be denied because there is substantial

evidence that Plaintiffs in this case are (or were) children who performed hazardous work against

their will on Firestone’s Plantation to the detriment of their health and education. To “explain”

the overwhelming evidence that, for more than 80 years, child labor has been a mainstay of

Firestone’s Plantation system, Firestone blames the fathers of the children. Firestone’s carefully-

crafted litigation defense is that, as of 2005, it has had a “zero tolerance” policy that prohibits

child labor, so that if any children were working on the Plantation, it was because the guardians

of the children were breaking the rules. This gets Firestone nowhere. The “zero tolerance” policy

was not issued until November 23, 2005, a week after the Complaint was filed on November 17,

2005. Obviously, the issuance of this paper policy has no impact at all on child labor claims prior

to the issuance of the policy beginning at the start of the liability period, November 17, 1995.

Further, the mere issuance of a paper policy begs the ultimate factual question in dispute, which

Firestone ignores – when, if ever, did Firestone take effective steps to change its prior policy and

practice of using child labor and effectively implement a no-child labor policy. The finder of fact

The standard governing 12(b)(6) motions is the same as for motions for judgment on the pleadings. See Jackson v.1

Arvinmeritor, Inc., 2008 WL 64528, at *1 (S.D. Ind. Jan. 8, 2008) (Hamilton, J.).

The Court rejected Firestone’s contention that child labor on the Plantation is no different than the situation “[i]n2

the United States where children are permitted to work with their parents on the farm. . .”Ex. 19, at 27. See 492 F.

Supp. 2d at 1021 (case is about liability of “huge multinational corporate family that hires the children’s parents and

then. . . encourages the parents to require their young children to do much of the work.”).

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must draw this line, and Plaintiffs’ evidence will show that Firestone has yet to stop its long-

standing policy of exploiting children. On this basis, the Court should deny summary judgement.

II. ARGUMENT

A. The Law of the Case Doctrine Precludes Firestone’s Third Motion to Dismiss Plaintiffs’ATS Claims.

In Roe I, the Court denied dismissal of Plaintiffs’ child labor claims and held that the

allegations, if true, sufficiently set forth a claim under the ATS. In particular, the Court found

that “the allegations of child labor in Count Two meet the Sosa standard for ATS claims” where

“defendants are actively encouraging – even tacitly requiring – the employment of six, seven, and

10 year-old children,” 492 F. Supp. 2d at 1022. Thus, the Court determined that in light of ILO

Convention 182, at least some of the practices alleged – and now supported with abundant

evidence – could “violate specific, universal, and obligatory standards of international law . . .

[and] should not be dismissed on the pleadings.” Id. Recognizing the practical considerations1

of adjudicating claims of child labor under the ATS and international law, the Court noted, “[i]n

a sufficiently extreme case, however, such as plaintiffs have alleged here the court believes that

Sosa leaves the ATS door open.” Id. Finally, the Court cited – with approval – case law and

academic commentary concerning multinational corporations’ liability under the ATS for wrongs

committed in foreign countries – brought by foreign nationals. Id. at 1008.2

Unhappy with this result, Firestone moved for reconsideration. In its motion, it again

argued that 1) Plaintiffs had failed to allege state action; 2) the Court had improperly determined

4

that Plaintiffs sufficiently alleged violations of specific and universal norms governing child

labor, and 3) even if child labor violated a specific international norm, Plaintiffs cannot state a

claim against Defendants where parents “can control whether . . . any children are subjected to

the worst forms of child labor.” Dkt. 48, at 1-2, 6-8 (emphasis added). The Court denied

Firestone’s Motion for Reconsideration, holding that “Defendants’ arguments do not raise issues

that the Court has not already considered.” Dkt. 50, at 1.

Now, for the third time, Firestone seeks dismissal of Plaintiffs’ child labor claims on

identical grounds that had been twice rejected. See generally Dkt. 209. Its arguments amount to

nothing more than “post-Sosa” pseudo-academic musings with citations to law review articles,

dissenting opinions, and case law decided long before the Court’s June 26, 2007 Order. Def.

Mot. 13-21; 22-32. Further, Firestone cites no intervening change in the record that justifies any

alteration to the Court’s previous order.

The law of the case doctrine prohibits serial motions on the same issues on which the

Court has explicitly or implicitly rendered a determination in the course of that litigation before

final judgment. See, e.g., Starcon Int’l v. AFL-CIO, 450 F.3d 276, 278 (7 Cir. 2006) (doctrineth

“precludes reexamining a previous ruling in the same case unless it was manifestly erroneous.”).

The standard is a high one, and Firestone has not even attempted to demonstrate a compelling

justification showing that there has been a change in the law “that makes clear the earlier ruling

was erroneous.” See, e.g., Santamarina v. Sears, Roebuck & Co., 446 F. 3d 571-71 (7 Cir.th

2006) (Posner, J.); Brengettcy v. Horton, 423 F.3d 674, 680-81 (7 Cir. 2005) (finding the lawth

of the case doctrine had been violated, the Court noted: “[t]he question is thus whether the new

evidence that Horton submitted with his motion for summary judgment provided a compelling

Firestone now tries to justify its present motion by asserting that it did not address the sufficiency of Article 3(d)’s3

definition of the “worst forms of child labor,” until the motion for reconsideration because Count II of the complaint

did not expressly mention Article 3(d). Def. Mot. 13, n. 25 (citing Dkt. 48, at 4-6). Plaintiffs’ original complaint

expressly referenced ILO 182, ¶ 86(f), and cross-referenced this paragraph in Count II at ¶ 96. Also, Plaintiffs

addressed the relevancy of this precise convention concerning the “worst forms of child labour” in their Opposition

to Defendants’ Motion to Dismiss. Dkt.36, at 13-14 (C.D. Cal. Docket). Defendants simply did not address this

issue in their Reply. Dkt. 45. The Court also raised ILO Convention 182 and the “worst forms of child labor,” in

the oral argument and Defendants’ responded. See Ex. 19, at 29-30. Additionally, at the Court’s request in oral

argument, Plaintiffs submitted and Defendants responded to, supplemental materials on ILO 182. Dkt. 31,32, 34.

The only issue the Court did not decide concerns whether state action is even an essential element for a child labor4

claim of the kind Plaintiffs allege in which young children engaged in hazardous work. Dkt. 50, at 1.

5

reason . . . to overturn . . . [the previous ruling on the motion to dismiss].”).

Without any justification that would support re-examining the sufficiency of Plaintiffs’

claims, Firestone makes excuses for why it did not do a better job briefing the issues in the first

and second instance. Dkt. 191, at 11 (stating in proposed case management plan that

“defendants’ motion to dismiss did not address all of the potentially dispositive legal grounds for

the child labor count.”). Defendants’ failure to adequately brief the issues is never a reason to3

re-open issues already decided in the case. See, e.g., Rothwell Cotton Co. v. Rosenthal & Co.,

827 F.2d 246, 251 (7th Cir.1987); Woods v. Michigan City, 940 F.2d 275, 280 (7th Cir.1991)

(motions for reconsideration may not raise legal theories or arguments that could have been

raised in the original motion).

The Court’s dismissal order decisively addressed each of the legal issues Firestone now

raises. Firestone cites no relevant or binding changes in the law, and the only changes to the4

record are that Plaintiffs have submitted abundant evidence that puts to rest any question – if

there ever was one – that Firestone encouraged and forced Plaintiffs to perform hazardous forms

of labor. See infra, Section II.C. On this basis alone – the violation of the law of the case

doctrine – the Court should deny Defendants’ motion. B. Firestone’s Renewed Motion Seeking Dismissal of Plaintiffs’ Forced Child Labor ClaimsShould Once Again Be Denied on the Merits.

6

Assuming the Court entertains Firestone’s third attempt to dismiss Plaintiffs’ forced child

labor claims, the motion should be denied on the merits. Any subsequent developments in the

law reinforce that this Court was correct in its initial ruling that the “law of nations” prohibits

forced child labor. See Roe I, 492 F.Supp. 2d at 1019-22.

1. The International Prohibition of Forced Child Labor Meets the Sosa “Law ofNations” Standard of Being “Specific, Universal, and Obligatory.”

In Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004), the Supreme Court, specifically

approving the approach of numerous lower courts in ATS cases, held that for a norm to be

actionable under the ATS it must be “specific, universal, and obligatory.” See generally

Declaration of Professor Ralph G. Steinhardt (“Steinhardt Decl.”), ¶¶ 5-9. Firestone does not

address the long-standing, international condemnation of forced child labor based on norms that

are “specific, universal, and obligatory.” Instead, Firestone focuses exclusively on ILO

Convention 182 and treats it as the sole source of international law banning forced child labor.

Def. Mot. 13-19, 21, 29-30, 32-34. Firestone ignores that based on Sosa, the “law of nations” is

not determined by a single source to be applied like a statute, but by extensive review of all

sources that could add content to international law: “[w]here there is no treaty, and no controlling

executive or legislative act or judicial decision, resort must be had to the customs and usages of

civilized nations; and as evidence of these, to the work of jurists and commentators . . . .” 542

U.S. at 734 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). See also, Filartiga v.

Pena-Irala, 630 F.2d 876, 882-84 (2d Cir. 1980); Steinhardt Decl. ¶¶ 39-40.

Here, there is extensive evidence establishing that the prohibition of forced child labor is

one of the most well-established norms of international law. Every single court that has

considered the issue has found forced labor to be within the scope of the “law of nations.” See,

See also Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 441 (D. N.J. 1999) (“the case law and statements of the5

Nuremberg Tribunals unequivocally establish that forced labor violates customary international law.”); In Re World

War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) Estate of Rodriquez v.

Drummond Company, Inc., 256 F. Supp. 2d 1250, 1260 (N.D. Ala. 2003); Jane Doe I v. Reddy, 2003 WL

23893010, at *8 (N.D. Cal. 2003).

Lettered exhibits are attached to the Collingsworth Declaration and Numbered Exhibits are attached to the Levesque6

Declaration.

7

e.g., Doe I v. Unocal Corp., 395 F.3d 932, 945-47 (9th Cir. 2002); NCGUB v. Unocal, Inc., 176

F.R.D. 329, 348-49 (C.D. Cal. 1997).5

Indeed, in the context of the adult forced labor claims, this Court found that forced labor

was a norm within the law of nations, but declined to apply that finding to the adult laborers. Roe

I, 492 F. Supp. 2d at 1017, n.11. As the Court found the child labor claims sufficient on an

alternative ground, it did not rule on the forced labor claim of the child laborers. If forced labor is

performed by children, this renders the act even more egregious and subject to universal

condemnation. The law is clear that children cannot consent to labor, nor can anyone, including

parents, do so on their behalf. See, e.g., U.S. v. King, 840 F. 2d 1276, 1282-83 (6th Cir. 1988),

cert. denied, 488 U.S. 894 (1988). That forced child labor is an egregious form of forced labor

was specifically noted by the ILO in its 2005 report, a Global Alliance Against Forced Labor.

Ex. A, at 6, ¶ 17 (excerpt attached to Collingsworth Declaration). The ILO concluded: “[c]hild6

labour amounts to forced labour not only when children are forced, as individuals to work in

their own right, by a third party to work under the menace of a penalty, but also when a

child’s work is included within the forced labour provided by the family as a whole” Id.

(emphasis added). See also Declaration of Professor Virginia Leary, ¶¶ 26-27. While there are

also numerous international instruments that focus specifically on the regulation of child labor,

discussed infra Section B.2., Plaintiffs emphasize that these rules define the circumstances under

which children may or may not be employed, and are not primarily concerned with a situation of

8

forced child labor. Without addressing this distinction, Firestone trivializes Plaintiffs’

allegations of serious human rights crimes and seeks to convert this to a case about conditions

under which children may work. This transparent ploy is highly improper in the context of a

(third) motion to dismiss. Among Plaintiffs’ allegations, which must be taken as true, are that:

(¶ 4) They are forced by poverty and coercion to work full-time under hazardous conditions with their fathers in order to meet the daily quota of tapped trees that theDefendants impose upon each family knowing that the quota can only be met if childrenjoin their fathers, and in many cases, mothers, and work from dawn to dusk. Firestoneoverseers not only know about the pervasive use of child labor on their Plantation, theyactively encourage it. Plantation Workers are told by their overseers that if they can’tmake their daily quota, which allows them to be paid their pittance of a salary, theyshould put their children to work. The Plantation Child Laborers begin their day at 4:30a.m. by cleaning the 1,500 or more tapper cups their family will need to meet their dailyquota. They then go to work with their families doing everything from tapping trees witha sharp tool, exposing their eyes to the blinding potential of raw latex, to applying byhand various dangerous pesticides and fertilizers to the rubber trees, to carrying, two at atime, 75-pound buckets filled with the latex that gets their family its food for the day.

(¶ 65)The Plantation Child Laborers are forced to work to avoid the starvation of theirfamilies. These young children have not reached the legal age of consent by anydefinition, and therefore could not possibly agree to become laborers for the FirestonePlantation. They suffer daily the deprivations of living a slave-like existence, includingmalnutrition, disease, physical ailments from exposure to chemicals, and the lack ofdecent educational opportunities.

Plaintiffs further allege that they were directed by various levels of Firestone supervisors

to work with the fathers to meet the family quota. Id. ¶ 55. These allegations of forced child labor

cannot simply be ignored, as Firestone attempts to do. There is complete agreement in the

international community that forcing children to do hazardous work violates the “law of nations.”

Firestone does not assert otherwise, nor could it. As Professor Leary concludes, “[t]he

prohibition of forced labor is included in numerous widely ratified treaties and international

agreements, is prohibited in a number of constitutions and has been expressly accepted as a

fundamental norm by states at the ILO. To my knowledge, no country has stated that it has the

9

right to used forced labor.” Leary Decl.¶ 10.

2. International Instruments Defining Unlawful Child Labor Likewise SupportPlaintiffs’ Assertion of a “Law of Nations” Violation.

In addition to Plaintiffs’ claims based on forced labor, they allege that the work they

performed for Firestone was hazardous and that the long hours required prevented them from

attending school. CT ¶¶ 4, 51, 65. As Sosa directs, 542 U.S. at 734, Plaintiffs have provided the

opinions of two distinguished experts on child labor norms in international law, and they agree

that the child labor alleged by Plaintiffs herein constitutes a separate violation of the law of

nations. Professor Leary notes that in 1997, the U.S. Department of State, in its annual Report on

Human Rights Violations (Ex. B), declared: “[a]n international consensus exists, based on

several key [ILO] Conventions that certain worker rights constitute core labor standards. These

include . . . “freedom from forced and child labor.” Leary Decl. ¶ 20. The sole, operative ILO

Convention on child labor in 1997, when the State Department recognized an existing

international consensus condemning child labor, was No. 138. See Declaration of Lee Swepston,

¶ 9; Ex.C (Convention 138, the Minimum Age Convention, adopted in 1973). According to

Professor Swepston, who spent most of his career at the ILO focused on forced and child labor

issues (id. ¶ 1), ILO Convention 138 itself “evidences the international consensus on this

subject.” Id. ¶ 15. That Liberia (or the U.S.) did not ratify this Convention does not mean that it

is not an indication of universal acceptance of the norm. See,e.g., Ex. D (Wiwa v. Royal Dutch

Petroleum, Order of 23 April 2009, p. 5-7 (relying upon non-self-executing treaties to which the

United States is not a party to give content to the definition of crimes against humanity));

Steinhardt Decl. ¶¶ 39-41. Firestone’s counsel made this very argument in Bowoto v. Chevron

Corp, 557 F. Supp.2d 1080, 1090-91 (N.D. Cal. 2008), and the Court rejected it.

Firestone’s effort to convert this case to a statutory claim under ILO Convention 182 is a thinly-veiled effort to7

limit the period of liability. Firestone argues that if Convention 182 is applied, the earliest date of liability could be

the effective date of November 2000. Def. Mot. 21. As Plaintiffs establish herein, Convention 182 merely affirmed a

long-standing consensus prohibiting child labor, going back to at least the adoption of Convention 138 in 1973.

10

In total, 150 nations have ratified Convention 138, showing a high degree of universality.

See Swepston Decl. ¶ 16. Further, Liberia ratified the U.N. Convention on the Rights of the Child

(“CRC”) in 1993, and it provides in Article 32 that all parties acknowledge the “right of the child

to be protected from economic exploitation and from performing any work that is likely to

be hazardous or to interfere with the child's education, or to be harmful to the child's

health or physical, mental, spiritual, moral or social development.” Supplemental Decl. of

Lee Swepston, ¶¶ 13-14. Article 32 of the CRC was based on and tracks the language of ILO

Convention 138. Id. ¶ 15. Finally, as this Court recognized, see Roe I, 492 F. Supp.2d at 1020,

Liberia prohibits children under 16 from working if it interferes with their education. See Ex. E

(§ 74 of the Liberian Labor Code). Likewise U.S. labor legislation includes provisions that are

consistent with the Convention. See Roe I, 492 F. Supp.2d at 1020. State legislation and practice

are the “oldest and the original source” of customary international law. Flores v. Southern Peru

Copper Corp., 414 F. 3d 233, 248 n. 22 (2d Cir. 2003).

ILO Convention 182, adopted in 1999, and ratified by both Liberia and the U.S.,

represents a confirmation of the long-standing consensus on the prohibition of the worst forms of

child labor, but it did not change the substantive standard of Convention 138. Rather, it provided7

tougher requirements to implement the prior international consensus on the standard. Swepston

Supp. Decl.¶ 18. Indeed the second paragraph of Convention 182 provides that its purpose is “to

complement [Convention 138 and its Recommendation] which remain fundamental instruments

on child labor . . .” Ex. F. Thus, while Convention 182 does provide additional evidence of a

universal norm, it is properly viewed as affirming an existing consensus, going back to at least

That Plaintiffs are not attempting to sue based on Convention 182 likewise dispenses with Firestone’s argument that8

this Convention cannot be used to assert universal jurisdiction. Def. Mot. 29-30. Plaintiffs’ claims are brought under

the ATS, and Convention 182 is but one indicia of the universal consensus that international law prohibits Firestone

from forcing young children to perform hazardous labor.

Issues of enforceability of a source of international law, or whether an international instrument is “self-executing,”9

are irrelevant to whether there is a sufficient basis for a “law of nations” norm. Firestone’s assertion that all

international sources must be self-executing is based on a single case, Cornejo v. County of San Diego, 504 F. 3d

853 (9 Cir. 2007), that has nothing whatever to do with the law of nations. See Def. Mot.14. Cornejo stands for theth

unremarkable proposition that to directly sue to enforce a treaty, it must be self-executing. 504 F.3d at 856. As

Professor Steinhardt notes, “Defendants studiously ignore the Second Circuit’s recent analysis of non-self-executing

treaties under the ATS. Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009). [There the court held] that ‘[a]greements

that are not self-executing or that have not been executed by federal legislation … are appropriately considered

evidence of the current state of customary international law.’ 562 F.3d, at 176.” Steinhardt Decl ¶ 40. See also, id. ¶

39 (discussing other cases finding that non-binding instruments are probative of international law).

11

Convention 138, adopted in 1973, and providing an improved enforcement process.

3. Firestone Can Be Liable For Its Direct Acts in Forcing the Child Laborers to Work and in Violating Norms Prohibiting Child Labor.

Firestone’s argument that ILO Convention 182 does not allow a cause of action for

damages against Firestone, a private party (Def . Mot. 16-20), simply fails to address Plaintiffs’

actual legal claims. Convention 182 is not Plaintiffs’ sole source of the “law of nations” in their

ATS case. As demonstrated supra Sections B.1. and B.2., Plaintiffs allege that they were forced8

to work in violation of universal norms prohibiting forced child labor. Further, Plaintiffs allege

that while they were under 18 (or 16), they were required by Firestone to perform hazardous

work for long hours that prevented them from going to school. This type of child labor violates

international customary law as evidenced by international conventions, and Liberian and U.S.

domestic law. The ATS, not individual sources of the “law of nations,” which need not

themselves be binding or self-executing, provides the cause of action and the right to sue. See,9

e.g. Abdullahi, 562 F.3d. at 176-77; Bowoto, 557 F. Supp.2d at 1090-91; Ex. D (Wiwa, at 5-7).

4. Firestone, as a Private Party, Can Be Sued for Using Forced Child LaborRegardless of State or Official Action.

Ignoring Plaintiffs’ actual allegations of forced child labor, Firestone argues that

Application of this standard to the facts is discussed in Section II.B.2., infra.10

12

Plaintiffs cannot sue Firestone directly and the case can only proceed against state officials. Def.

Mot. 9. As the landmark decision in Kadic v. Karadzic, 70 F.3d 232, 239-40 (2d Cir. 1995), held,

“certain forms of conduct violate the law of nations whether undertaken by those acting under the

auspices of a state or only as private individuals.” Such conduct, the Court made explicit,

involves those offenses considered to be of “universal concern,” including piracy, slave trading,

genocide, and war crimes. Id. at 240. See also Tel Oren v. Libyan Arab Republic, 726 F.2d 774,

794-95 (D.C. Cir. 1984). Forced labor, as modern slavery, is one of the norms of international

law, along with crimes against humanity and genocide, that is of “universal concern,” and does

not require “state action.” See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404 (1987).

See also United States v. Matta- Ballesteros, 71 F.3d 754, 764 n. 5; NCGUB, 176 F.R.D. at 348-

49; Estate of Rodriquez; 256 F. Supp. 2d at 1260; Steinhardt Decl. ¶ 11.

Even if Plaintiffs are required to allege that Firestone acted under “color of law,” they

assert both that the Liberian government is a joint participant in the Firestone Plantation and

government officials provided security for the Plantation. CT ¶¶ 90-91, 97,103,108. These

allegations are more than sufficient to establish that Firestone was acting under color of state law.

See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 723-25 (1961); Brentwood

Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 298-299 (2001). 10

Firestone is objectively wrong that “every” post-Sosa Court has abandoned the use of

“color of law” jurisprudence to link private actors to state officials. Def. Mot. 20. Quite the

contrary, most cases, post-Sosa, continue to use this methodology, which was carefully

articulated by Kadic, 70 F.3d at 243-45, one of the key ATS cases cited by Sosa with approval.

See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d. 163, 209 (2d. Cir. 2009); Aldana v. Del Monte Fresh Produce, N.A.,11

Inc., 416 F.3d 1242, 1248-49 (11th Cir. 2005); Arias v. Dyncorp, 517 F.Supp.2d 221, 228 (D.D.C. 2007); Chavez

v. Carranza, 413 F.Supp.2d 891, 899 (W.D.Tenn.2005); Turkmen v. Ashcroft, 2006 WL 1662666 *50 (E.D.N.Y.).

The opposing cases cited by Firestone represent a minority view, and in the two that actually provided analysis, the

courts found an alternative avenue to allow the private party to be sued. In Bowoto, the court held that Chevron

could be liable for aiding and abetting crimes against humanity, which was one of the law of nations violations (like

forced child labor in this case) for which private parties could be liable. See 2006 WL 2455752, at *3. In Exxon, the

Court ultimately held that Exxon could be liable for acts of the Indonesian as the company’s independent contractor.

See Doe I v. Exxon Mobil Corporation, Slip Opp at 6-8 (D.D.C. March 2, 2006)(Ex G). Firestone’s last case, Saleh

v. Titan Corp., 436 F. Supp. 2d 55, 57-58 (D.D.C. 2006) appears to hold that Plaintiffs did not, rather than could not,

properly allege “color of law” due to unique political implications of that case.

Indeed, more than a hundred years ago, the ATS was interpreted by the Attorney General of the U.S. to provide for12

a remedy against corporations. 26 OP. ATTY GEN . 250 (1907)(concluding that Mexicans who had been harmed by

private company’s diverting the channel of the Rio Grande in violation of treaty between Mexico and the United

States could sue the company under the ATS).

13

See 542 U.S. at 732. Further, regardless of a “color of law” analysis, Plaintiffs’ allegations also11

link Firestone to state actors in a co-venturer or agency relationship. CT ¶ 91.

5. Firestone is Not Immune From ATS Liability Because it is a Corporation.

Ignoring controlling law and relying upon a dissenting opinion and a single law review

article, Firestone makes the stunning assertion that it is immune from ATS liability for using

forced child labor because it is a corporation. Def. Mot. 22-24. Firestone was obligated to inform

this Court that every decision on point disagrees with its position.

The Supreme Court in Sosa specifically stated that in ATS cases federal common law

would need to address the application of the “law of nations” to “a private actor such as a

corporation or individual.” 542 U.S. at 732 n.20. Every court since then has held that the ATS12

allows for corporate liability. See Abdullahi, 562 F.3d.at 174; Khulumani, 504 F.3d at 282

(Katzmann, J., concurring); Romero v. Drummond Co., 552 F. 3d 1303, 1315 (11th Cir. 2008)

(citing Aldana, 416 F.3d at 1242); Bowoto, 312 F. Supp. 2d at 1247; Presbyterian Church of

Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 335-37 (S.D.N.Y. 2005); In re South

African Apartheid Litigation, 2009 WL 960078, at *7 (noting there has never been a hint that

corporations were not subject to liability under the ATS). See also Steinhardt Decl. ¶¶ 12-15.

In one of the earliest ATS cases, the Attorney General stated “there can be no doubt” that the victims of an attack13

on a British settlement in Africa “have a remedy by a civil suit” under the ATS. 1 Op. Att’y Gen. 57, 58 (1795).

Firestone’s additional argument that only “aliens” who reside in the U.S. can utilize the ATS likewise has no14

support in the case law. See Def. Mot. 26-27. This would overturn virtually every ATS case as most are brought by

non-resident aliens. As the Bowoto Court noted, “[c]ourts have consistently permitted the extraterritorial application

of the ATS to non-U.S. nationals . . .” 557 F. Supp.2d at 1088.

14

6. The ATS Applies Extraterritorially.

Firestone also argues that the ATS does not apply to extraterritorial conduct. Def. Mot.

24-29. That Firestone does not cite a single case for this strained argument should end the

inquiry. Indeed, counsel for Firestone made and lost this very argument in Bowoto. See 557 F.

Supp.2d at 1088-89. From the inception of the ATS to the present, it has been clear that the13

ATS reaches international conduct. Steinhardt Decl. ¶¶ 42-44. Dozens of federal opinions would

topple if Firestone’s argument is accepted because every reported ATS decision involves an

offshore “law of nations” violation. Indeed, in Sosa, the Supreme Court was presented with this

argument and ignored it; the argument did not even merit a footnote in a decision laced with

them. See id. ¶ 42. Instead, Sosa cited with approval cases that did find the ATS applied

extraterritorially. Id. For example, in the landmark Filártiga decision, the court found the ATS

reached an extrajudicial killing in Paraguay. 630 F.2d at 885. See also Trajano v. Marcos, 978

F.2d 493, 500 (9th Cir. 1992) (“we are constrained by what 1350 shows on its face: no

limitations as to the citizenship of the defendant, or the locus of the injury”).14

7. There Are No “Practical Consequences” Justifying Dismissal.

Firestone trivializes Plaintiffs’ actual allegations of forced child labor under brutal

conditions and attempts through repetition to characterize this case as being about safe working

conditions for child laborers. This tactic reaches its crescendo when Firestone concocts a parade

of horribles that would occur if this Court allows Plaintiffs’ claims to proceed to trial. Def. Mot.

30-31. This case is not about improving the terms or conditions of employment for the children

There are only four reported cases, all cited in section II.B.1., supra, in which there was a contemporary example15

of a company engaged in the extreme crime of forced labor.

15

working on Firestone’s Plantation. Plaintiffs are seeking an end to a system in which Firestone

has been utilizing forced child labor and requiring the children to work long hours under

hazardous conditions, to the detriment of their education. Plaintiffs now present admissible

evidence supporting these allegations. See infra, Section II.C.1. The extreme and excessive

conditions on the Firestone Plantation make this case shockingly unique. Courts faced with

extreme cases of forced labor, let alone forced child labor, allowed the victims of this crime their

day in court. Firestone stands alone as a company that profited for over 80 years from forced15

child labor. This Court already found that Plaintiffs’ allegations present a “sufficiently extreme

case” to overcome any concerns of “practical consequences.” Roe I, 492 F.Supp.2d at 1022.

C. Firestone’s Summary Judgement Motion Should Also Be Denied.

Firestone’s brief summary judgement motion raises just two issues, neither of which even

remotely allows a finding that there are no material facts in dispute.

1. Plaintiffs Worked for Firestone Against their Will and Performed HazardousWork.

Firestone argues there is merely one ultimate fact at issue: “Convention 182 does not

apply where employees choose to use their children as helpers.” Def. Mot 32. Plaintiffs have

established, repeatedly, that this case is not about the mechanical application of Convention 182,

a single source for the “law of nations.” Further, Firestone’s assertion that the case is solely about

whether Plaintiff child laborers were working on the Plantation at the behest of their fathers begs

so many questions as to render this aspect of its summary judgment motion frivolous. Firestone

actually expects this Court to accept as true and undisputed three “facts” it mentions in passing,

that “Firestone does not require its tappers to use their children to do any work,” that “Tappers

16

can complete their actual jobs without any children,” and that it is the “tappers [who] choose to

violate Firestone’s ban on child labor.” Def. Mot 33. Not only do Plaintiffs have abundant

evidence to dispute these three facts, infra Section II.C.1.a., 1.b. and 1.c., they offer the following

substantial evidence to support their legal theory and actual claims that Firestone violated the

law of nations by designing and implementing a system built on forced child labor, and forced

the Plaintiffs to perform hazardous work that also deprived them of an education:

a. Firestone’s System of Production is Built on Child Labor: The Daily QuotaRequires the Use of Multiple Unpaid Workers to Complete.

On November 12, 2005, five days before Plaintiffs filed the complaint in this case, Dan

Adomitis, the President of Firestone Natural Rubber Company, admitted in a CNN interview that

“each tapper will tap about 650 trees a day where they spen[d] perhaps a couple of minutes at

each tree.” Ex. 17, at 1-2 (Transcript of 11/12/05 CNN interview). CNN did the math and 650

trees a day, at two minutes per tree equals more than 21 hours of work a day. Id. Cooper

Kweme, a former child laborer and later a Divisional Supervisor on the Firestone Plantation,

confirms that the tapping process “takes at least two minutes for each tree.” Kweme Declaration,

¶¶ 2, 3, 7, 11-12. Mr. Kweme also notes that the “de facto” number of trees a tapper must tap per

day is even higher than 650 and takes even longer, 30.83 hours. Id. ¶ 12.

The present system of relying upon child labor was instituted at the start of the Firestone

Plantation system. Mr. Kweme confirms that his father was among the early laborers whom

Firestone uprooted from their home, enslaved, and forced their children to work. Id. ¶ 3.

Virtually every adult tapper Firestone deposed testified that he was a child laborer and was

deprived of an education as a child. See infra, Section d. That system remains essentially

unchanged today. The daily production quotas, coupled with low wages, make it impossible for

Firestone’s own documents state that re-tasking, on paper, purportedly occurred only very recently in 2006. See16

Dkt. 144-7, ¶¶ 4-5. Firestone admits that even according to the CBAs, which Plaintiffs contest as not reflecting

actual sizes, between 1995 and 2008, the number of trees in each task was between 550 and 650. Ex. 20 (No. 84).

See also Ex. 1, 24:8-12; Ex. 6, 35:1-5; 6A, 72:19-21; 73:1-3; Ex. 7, 49:5-50:3; 125:21-132:25; Ex. 2, 54:13;17

60:11-17; 39:17-18; Ex. 3, 54:15; 55:23-25; 58:23-59:21; Ex. 4, 58:4-12-59:25; Ex. 5, 69:1-17; 70:21-71:4; Ex. 5A,

56:9-57:2; Ex. 6, 44:1; Ex. 7, 50:6-14; Ex. 8, 22:7-25:3; Ex. 9, 32:14-21; Ex. 9A, 27:6-17; Ex. 10, 73:11-74:5; Ex.

11, 162:12-163:15; 165:14-21; 275:10-276:6.

17

one tapper to meet the job requirements without the assistance of unpaid helpers, and as

Firestone designed and intended, the Plantation system depends upon children to do this.

Kweme Decl. ¶¶ 12-13. Every guardian who was deposed and asked the question, testified that

at the time of his deposition, his task sizes remained at around 750 trees (or more), which is far

more than the “513 to 600” trees Firestone cites, Def. Mot. 5, and each tapper has three tasks or16

“farms.” See, e.g., Ex. 3, 51:22; Ex. 4, 54:25-55:19; Ex. 6, 29:9-12; Ex. 8, 16:3-20; Ex. 10,

69:25-70:5; Ex. 7, 75:2-80:4; Ex. 5, 54:11-56:9; Ex. 9, 34:19-22; Ex. 2, 21:11-16; Ex. 11, 155:2-

15. The 2008 Collective Bargaining Agreement (“CBA”) that Firestone touts as great progress

remains, like Firestone’s child labor policies, un-enforced and unimplemented. See, e.g., Edwin

Cisco Decl. ¶ 12. Thus, the task sizes listed in the most recent CBA do not reflect the actual size

of the tappers’ workloads. Id. “Re-tasking,” another “improvement” Firestone touts, has

occurred for some tappers, but as one explained, his new tasks required “high panel” tapping,

which took even longer. See, e.g., Ex. 7, 75:2-80:4; Ex. 5, 54:19-55:3.

Firestone presents no evidence that children were not an integral part of the production

process during the liability period of this case. Regardless, Plaintiffs present substantial evidence

to rebut Firestone’s unsupported assertion. Tappers and their children begin their day before

dawn, most at approximately 4:00 a.m., and regularly do not finish until later in the afternoon

with multiple helpers, including their children. See, e.g., Ex. 4, 57:23-60:5. All walk long17

distances – up to an hour – just to reach their “farm” where they will begin the tapping or

See also Ex. 3, 54:21-25; Ex. 4, 14:22, 54:12-55:18 (30 minutes to furthest task); Ex. 5, 69:10-14; Ex. 6, 43:22-18

44:2; Ex. 8B, 41:16-24, 43:5-12; Ex. 7B, 180:14-181:18 (gets up at 3:00 to go to the tank at 4:00); Ex. 11, 173:3-

174:1 (it takes up to 35 minutes just to walk from Farm C to the tank, carrying latex).

See, e.g., Ex. 10B, 36:4-38:5; Ex. 2A, 72:7-20; Ex. 10, 84:6-24; 85:6-13; 85:14-20; 86:14-20. 19

See also Ex. 3, 64:8-65:17, 68:21-23; Ex. 8B, 41:16-42:6; Ex. 10, 79:4-10; Ex. 11, 256:20-258:5; Ex. 6, 38:16-20

41:2; Ex. 4, 56:22-57:16; Ex. 7, 50:5-16. See also Ex. 4, 57:2-11 (required double-tapping). Cf. Def. Mot. 4, n.1.

18

between the task and the tank. See, e.g., Ex. 1A, 72:14-21; Ex. 2A, 89:6-11. First, they must18

clean the cups, which means they collect the coagulated latex (“cup lump”) that accumulated

overnight from one entire task of trees. See Kweme Decl. ¶ 11. They transport this cup lump to

collection areas where it is cut and weighed. Ex. 6, 48:24:49:5. Each tapper must also tap an19

entire task of trees and tote the liquid latex in 45 or 70 pound-buckets to collection tanks. Ex. 6,

46:13-47:8, 101:24-102:1. Laying panel, slashing (until recently), applying stimulants and

fungicides, scraping the cups, and ring weeding are also regular, but not every day, work that

elongate the tappers’days. See e.g., Ex. 6, 51:2-52:12. Double tapping, also known as recovery

or make-up tapping, in which the tapper is forced to tap an additional half or whole task is not

optional and is frequently imposed – not “occasionally,” as Firestone contends. See, e.g., Ex. 9,

52:3-15; 39:15-19; 40:4-7. Double tapping often means tapping 1125 trees or more. See, e.g.,20

Ex. 3, 64:8-65:17. Firestone states that when a tapper double taps, “the job can still be

completed in 8 to 9 hours.” Def. Mot. 4, n. 1 (stating “John Kerkula completed “double tapping”

by 2:30 p.m.). Firestone fails to mention that in its example, John Kerkula finished that day at

2:30 p.m. because his brother, David, and a helper, also tapped. Ex. 9, 38:24-39:24. On that

day, at least three individuals completed the double tapping for a total of at least 24 to 27 hours

of work.

Even today, tappers are left without any recourse to challenge the conditions that

necessitate the use of child labor. See, e.g., Ex. 9, 40:4-19; Ex. 3, 68:8-21. The newly elected

union had to wage a lengthy court-battle to even be recognized by Firestone, and after agreeing to

Contrary to Firestone’s assertion, Saah Foryor did not give conflicting testimony about when he learned about21

Firestone’s policy concerning child labor, nor did his answer range from “2002 to last month.” Def. Mot. 5, n.3. He

testified that “I heard it, but it was a long time, it wasn’t being enforced,” Ex. 1, 23:21-24:12, and he “[had] been

hearing it.” Id. at 30:5-12.

See also Ex. 7, 281:9-282:6; Ex. 9 34:23-35:5, 35:2-36:12; Ex. 10A, 19:22-21:19; Ex. 10B, 41:8-17 (laying panel22

is very difficult and one person cannot complete it in a day); Ex. 1A, 86:12-17; Ex. 2, 59:15-60:17; Ex. 3, 55:23-25;

Ex. 4, 37:13-21; Ex. 5, 112: 1-4; Ex. 6, 94:9-12; Ex. 7, 281:8-282:6; Ex. 8B, 31:18-21; Ex. 9A, 43:23-44:5; Ex. 11,

275:10-276:6. Additionally, if the tapper can even afford to pay one or more helpers, reliable helpers are not

necessarily available. See, e.g., Ex. 3, 185:3-12; Ex. 5, 155:1-7; Ex. 8, 40:10-23.

The crop book excerpts Firestone attaches to the declaration are largely illegible and they provide no legend to23

decipher the meaning of the various notations and numerical marks that correspond to each guardian Firestone

attacks. Additionally, Firestone again misrepresents the evidence. Saah Foryor, Sr. and Jr. testified that his children

continued to work with him at the time of the deposition, in addition to a helper. See Ex. 1, 38:5-39:16; 53:1-6; see

also Ex. 1A, 82:21-25. As of April 2008, Saah Foryor’s son helped him every day, but reduced this to weekends at

the time of the depositions See id. Moses Dolo did not complete his tapping alone during the limited time period

leading up to his deposition (one week) because he had a helper and Firestone did not ask him if any children helped

him; it asked if Bendu helped him. Ex. 5, 68:17-75:13. Aaron Kollie, Sr. testified that the job is so big, the entire

family needs to help. Except for the week before the deposition during which time a helper and his wife were

available to assist him, his children were necessary to help him complete his tapping duties. 37:23-38:15; 94:2-12.

19

a new CBA in 2008, Firestone is not implementing the more favorable terms for the workers,

such as reduced wages and task sizes. Cisco Decl. ¶ 12; see also Ex. 4, 32:17-33:18.

The guardians testified that they could not complete their assigned tasks and other duties

associated with tapping, without the assistance of their children; some guardians were required21

to use their children and pay one or more helpers. See, e.g., Ex. 4, 37:13-21. As several22

guardians explained, when they must pay helpers, there is little, if anything, left over. See, e.g.,

Ex. 8, 40:13-23; Ex. 6, 39:16-25; Ex. 7, 301:13-24. Guardians are constantly in debt because of

costs for basic necessities. Some “loans” are given by the headmen – another way that Firestone

extorts work from the tappers. See, e.g., Ex. 9, 17:24-18:11; 90:21-91:18.

Firestone submits crop books to suggest that tappers need not use their children and can

easily pay one helper. Firestone also refers to several guardians who stated their children stopped

helping them – only the month before their deposition in 2008. Def. Mot. 5, n. 5. First, even

Firestone concedes that the evidence shows each of the tappers they reference failed to complete

their tasks every day after their depositions. See Dkt. 144-7, ¶¶ 9-16. Second, Firestone’s 23

Elijah Peter testified that he still worked with is father, George Peter, at the time of his deposition. Ex. 11A,24

128:20-130:11. Mr. Peter had the assistance of his son and other helpers. Ex. 11, 225:11-228:3. Fayiah Varnie’s

children have helped him in the field numerous times since 2005. Princess and Alex Varnie assisted in scraping the

cups since 2005. Ex. 8, 24:8-25:7. Samuel Varnie, however, testified that in 2005 he heard about the child labor

policy and he temporarily stopped working in the bush. Ex. 8B, 31:2-32:5; Ex. 8, 27:22-24. When his father’s

headman saw that the work was too difficult for Mr. Varnie without Samuel’s assistance, the headman encouraged

the tappers to use their children again. Ex. 8B, 31:2-32:5. Samuel had worked with Mr. Varnie soon before his

deposition, in 2007 or 2008. Ex. 8, 17:20-23. Flomo Thomas’s children helped him work until the month before the

deposition when he was told for the first time that he should not bring children to work under the penalty of

dismissal. Ex. 10, 58:15-59:13; 65:14-22.

The chemicals applied to the trees are indisputably hazardous. See Ex. 24 (material safety data sheets). 25

20

comparisons are inapt because there is no testimony or records concerning how many people

were needed to complete the tasks to avoid dismissal after their testimony. Id. In fact, contrary24

to Firestone’s assertions, Moses Dolo testified truthfully that he diluted latex because he could

not complete his daily quota without the assistance of children, as he had been doing with

Firestone’s knowledge and direction for years, nor could he afford to hire helpers. See, e.g.,

Ex.3, 108:22-113:14. Firestone demands the work of many for the pay of one. Plaintiff Daniel

Flomo articulated this horrible reality when he was asked in his deposition why in 2007 he “did

not stop applying chemicals, washing cups, and collecting with [his] father.” He replied: “I did25

not stop because that is our livelihood. Without that, we can’t survive.” Ex. 7A, 147:1-25. At

the time of his deposition, he still worked every day to help his family “get food to eat.” Id.

b. Every Named Plaintiff has Performed Labor as a Young Child that Constitutes aWorst Form of Child Labor on the Plantation.

Firestone presents no evidence to the Court that demonstrates the work Plaintiffs

performed was not hazardous, grueling, and back-breaking – because it cannot in the face of

thousands of pages of deposition testimony demonstrating otherwise. Firestone argues that “for

the purposes of this motion . . . Defendants need not contest that at least some of the plaintiffs

helped their fathers on occasion,” Def. Mot. 7, because “if any child did any ‘worst form’ of child

labor, it was because his or her father chose not only for that child to work at that age, but also

Neither the Plaintiffs, nor their guardians, can consent to performing work that constitutes the worst forms of child labor26

and Plaintiffs address this legal argument infra at Section II.B.1.

See Def. Mot. 6, n.11 (citing Dkt. 144 at 16-30). Plaintiffs have already refuted these baseless attacks. See Pls’27

Reply, at 6-17 (Dkt. 153). Regardless, however, credibility issues are left to the jury and are not appropriately

decided by the Court on a Motion for Summary Judgment. See Brown v. Sara Lee Corp., 2009 WL 995755, at *1

(S.D. Ind., Apr. 14, 2009) (Hamilton, J.) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

Demonstrating the level of toxicity of the chemicals, John Flomo testified he could not see documents shown to28

him in his deposition because of an eye injury he sustained when applying chemicals. Firestone did not provide

protective equipment. See Ex. 7, 244:4-11; 252:8-21; 206:18-208:8.

21

selected that particular task for the child.” Def. Mot. 9. Without legal or factual support for its26

contention that the fathers are to blame, Firestone simply misrepresents the record. It is27

Firestone’s high production quotas and low wages that force children to work – not their fathers

– and Firestone managers actively encourage this. In any event, this is a disputed fact.

Firestone’s unilateral assertion cannot be accepted as true on a summary judgment motion.

Without exception, every named Plaintiff from a young age: 1) worked long hours; 2)

performed hazardous and grueling work that exposed them to toxic chemicals and sharp tools; 3)

worked without any safety equipment; and 4) walked long distances carrying heavy buckets. See,

infra; see also, e.g., Ex. 1A, 72:14-73:4; Ex. 10A, 35:25-36:3; Ex. 10B, 44:2-6; Ex. 3A, 216:8-

10. Most were directly injured while working and had inadequate medical care. 28

Saah, Jr. and Abraham Foryor: Saah Foryor began working when he was approximately six

years old. Ex. 1A, 72:14-73:4. Beginning at 6 and 7, he cleaned cups, did round weeding, held

the bucket; at 8 he began to lay panel and slash; and by 9 he applied medicine to the trees. Ex.

1A, 59:3-25; 61:6-14. For much of the time he’s been working, he left for work at 4:00 a.m. and

arrived at the task at 5:00 a.m. and finished at approximately 3:00 p.m. Id. at 72:19-73:3.

Abraham began working when he was 4 or 5 years old and started the work at about 5:00 a.m.

Ex. 1, 54:19-25; 55:1-9; Ex. 1B, 39:22-24; 43:5-8; 45:5-9. In the morning, he washes cups,

collects and carries the cup lump to the bench, and cuts it and “picks the dye from in it.” Ex. 1B,

49:10-13. He also lays panel and applies the chemicals. Id. 45:4-22. Abraham testified that the

22

bucket of cup lump was heavy on his head, he went “far” up hill, in the sun with nothing to eat

before doing the work. Id. 50:15-52:23. The work is literally backbreaking, as Saah Foryor, Sr.

testified: “you know the kind of work that we do, it give us problem, especially sore from here

(indicating), the back of my neck, through my spine, my back and the side. These things hurt me

most of the time.” Ex. 1, 47:9-13. Saah, Jr. testified: “Because the tasks are very large. Some

of the tasks are 23 lines and some of the tasks are up the hill, so when you rush, if you are not

careful you can slip and hit the ground.” Ex. 1A, 96:17-21. Firestone does not give them any

protective gloves or masks to use and sometimes the chemicals drop in his eyes and cause

burning and redness for weeks. Ex. 1A, 102:1-8; 103:1-23; Ex. 1B, 59:15-20.

Andrew and Matu Fayiah: Andrew was about 10 years old when he began working. He did

round weeding, cleaned cups, laid panel, applied chemicals and stimulants. Ex. 2A, 42:15-17-

43:2-6. He also took cup lump to the tank, collected latex, and applied chemicals such as

stimulant and Difolatan, and slashed. Ex. 2A, 44:19-24-46:5; 49:12-17, 50:20-23, 51:12-14,

52:7-11, 52:24-53:1, 53:8-14, 54:4-16. When he was 12, he was injured while cleaning cups in

the bush when a stump penetrated his slipper and punctured his foot. Ex. 2A, 119:19-120:2,

120:4-25. He had to return to work the next day even though he was limping because there was

no helper to clean the cups, otherwise his father may not have finished his work, and would have

been marked a half day without full pay. Id. at 121:6-122:13. Matu began working when she was

about 5, before attending Kindergarten. She provided details about how she collected the cup

lump and carried the latex in a heavy bucket on her head to the tank up a hill. Ex. 2B, 32:1-

37:17; 41:1-23; 45:21-48:10. She was injured when the bucket hit her in the forehead and caused

her to bleed to such an extent that she required stitches. See id. The headman saw her working,

Some named Plaintiffs were not deposed: Jannaba Fallah, Rebecca Kollie, Nyamah Flomo, Tamba Leayon, Jr.29

Saah Leayon, Princess Varnie. Defendants have not, however, contested that these Plaintiffs worked with their

guardians on the Plantation. Their declarations all demonstrate that they performed hazardous labor beginning at a

young age. See Exs. 12-12E. Saah Leayon has as not completed the discovery process due to illness.

23

did nothing to stop her, and asked her why she had missed work a few days before her

deposition. Ex. 2B, 16:1-14; 37:18-39:1.

Doris Fallah: Doris began working when she was approximately 8 years old. Ex. 3, 103:15-29

18. She cleaned cups, collected latex, slashed, and applied chemicals. Ex. 3, 103:22-104:15.

Wearing only shower slippers, she was injured while collecting latex when a stake in the ground

hurt her foot. Ex. 3A, 216:19-220:22.

Johnny Myciaga: Johnny was approximately 6 years old when he began ring weeding, laying

panel, and cups cleaning; later he slashed, collected latex, and rubbed Difolatan on the trees. Ex.

4, 25:2-26:9; 27:2-12; 30:24-31:1; 37:13-21. Johnny was injured while using the slashing iron

when he was 9 years old. Ex. 4A, 25:4-26:2.

Bendu Dolo: Beginning at around 13 years old, Bendu washed cups, collected latex, slashed,

applied chemicals, carried the cup lump, and did ring weeding so that her uncle, Moses could

feed his family. Ex. 5, 102:7-104:10; 108:22-109:4; Ex. 5A, 56:9-60:23; Ex. 5A, 42:12-14. The

bucket that she carried on her head was heavy. Ex. 5A, 56:9-60:23; 42:12-14. Bendu arrived in

the field at about 5:00 a.m. and worked until about 2:00 or 3:00 p.m. Ex. 5A, 63:11-65:2.

Aaron Jr. and Martha Kollie: At the age of 10, Martha was starting work at about 4:00 a.m.

Ex. 6B, 29:8. She washed cups, laid panel, rubbed medicine, slashed, collected, cut and counted

the cup lump, scraped cups and did ring weeding. Ex. 6B, 19:9-20:15; 23:11-25:17; 26:16-

27:20. Aaron Jr. was approximately 10 years old when he started helping his father. Ex. 6,

102:11-14. For much of the time he has worked, he began his work at about 5:00 a.m.; he has

cleaned cups, collected latex, rubbed medicine, slashed, and tapped. Ex. 6A, 188:4-21; 194:9-

Aaron Jr. testified that when he slashed two times per year, it takes one month each time to slash all the trees in30

each of his father’s three tasks. Ex. 6A, 275:19-23. Similarly, rubbing medicine on all trees in all tasks once per

month, takes three days per month to complete. Ex. 6A, 276:22-277:1.

24

198:18; 203:3-5-204:25; 208:19; 210:11-211:22; 214:7-215:7; 220:3-17; 223:7-224:7; 226:22;

228:1-229:3; 234:7-236:22; 275:19-23; 276:22-277:1. 30

Daniel and Boimah Flomo: Daniel and Boimah’s work on the Plantation was captured on film

and they appear carrying heavy buckets of latex on the cover of a SAMFU report. Dkt. 145, Ex.

32. Their father identified their picture in his deposition. Ex. 7, 93:13-97:16. Both children

have cleaned and washed cups, collected and toted latex, laid panel, applied chemicals and

stimulation. Ex. 7, 81:13-87:25; 92:25-93:7; Ex. 7A, 142:18-150:11; 7B, 201:24-204:13. Daniel

was approximately 12 years old when he started working and Boimah was 10. Ex. 7A, 142:18-

150:11; Ex. 7, 80:20-25, 85:17-86:25. Daniel testified that he must work even when he is sick

because the work is so great. Ex. 7A, 96:21-102:6. When he is sick, he can’t seek treatment if it

is not Monday, Wednesday, or Friday when the hospital is open. Ex. 7A, 98:6-99:2; 104:1-18.

Boimah was cut by the sharp bucket and cutlass he used. Ex. 7B, 236:2-240:10.

Samuel and Alex Varnie: Samuel started working when he was approximately 10 years old.

Ex. 8B, 60:24-61:3; 27:11-18. When he was 10, he was already scraping and cleaning cups,

cleaning around the trees, and rubbing medicine, both the yellow Difolatan and the red chemical.

Later, he also laid panel, tapped, and collected latex. Ex. 8B, 28:16-25; 29:11-22; 44:21-46:16;

61:4-62:1. Samuel was injured badly while transporting liquid latex to the tank. When Samuel

reached the tank with a very full bucket of latex on his head, the headman saw that if Samuel

were to take the bucket off his head he would spill the latex, so the headman told Samuel to

climb the ladder, open the tank, and pour the latex in. Ex. 8, 26:11-27. When Samuel did so, the

strong scent of ammonia caused him to pass out. He spilled the latex on his face and body. Id. at

25

27:3-24; 38:23-39:7. Alex recalls beginning to work in the bush when he was 5 years old. Ex.

8A, 46:14-22. He used to scrape and clean cups and carry cup lump to the tank. Ex. 8A, 48:4-

55:25; see also Ex. 8, 20:4-18. The bucket he used was heavy and he got tired after walking a

long distance. Id. Samuel and Alex have been injured while scraping a cup with a knife. Ex.

8A, 69:17-72:21; Ex. 8B, 44:21-46:15-16.

John Kerkula: John began working on the Plantation when he was approximately 9 years old,

long before Firestone hired his brother. Ex. 9A, 51:20-54:1; 58:19-23; 97:1-98:9; 114:3-9. He

has tapped, cleaned cups, slashed, did ring weeding, applied chemicals, and collect/toted latex.

Ex. 9, 31:5-13; 86:17-87:8. John was badly injured when he was working and a large tree branch

fell and hit him on his side. John was refused treatment at the hospital because he did not have

an identification card. Ex. 9A, 104:17-111:15.

Samuel and Joshua Thomas: Samuel began working in approximately 1997 when he was

about 9 years old and has not stopped. Ex. 10A, 16:1-20; 19:22-22:12-25; 23:2-10. He currently

helps his father in the mornings before he goes to school. Id. at 15:20-25. He described in detail

how he collected cup lump, cleaned cups, and carried it in a bucket on his head. Id. at 22:12-25.

He also rubbed chemicals on the trees, which the headman gave him. Id. at 23:11-23. He cut a

stick in the bush, cleaned it very well, then chewed it until it turned into a toothbrush, dipped that

in the medicine and rubbed it on the tree. Id. at 24:1-12. He reached above his head to put the

chemicals on the tree. Id. at 24:18-20. He applied the medicine more than once during a month.

Id. at 25:4-6. When he was 11, Samuel also began laying panel with a sharp knife, collecting

latex, round wedding, carrying the liquid latex, and slashing. Id. at 25:13-26:20; 26:21-27:1-

28:18-22. Joshua began working when he was approximately 7 years old. Ex. 10B 6:13-17, Ex.

26

10 54: 10-14. He explained the details of how he cleaned cups, laid panel, applied chemicals,

and did ring weeding. Ex. 10B, 33:5-39:8. The cup lump buckets were very heavy and it took

him between 20 and 25 minutes to reach the tank from the task area. Ex. 10B, 36:4-13. When he

cut the cup lump at the bench, he used a “cutter” knife, which had injured “them [us]” before. Id.

at 37:22-25. Joshua had to hurry to finish working so he could rush to school, but he was often

late. Id. at 21:18-22:12; 39:15-40:15.

Elijah Peter: Elijah began working in approximately 2001 when he was about 9 years old. Ex.

11, 222:8-223:4. Elijah applied the medicine to the trees, did round weeding, slashing, collected

latex, cleaned cups, and transported latex to the tank. Ex. 11, 223:6-229:24. While toting cup

lump in a bucket on his head, he slipped, fell, and cut his head with the sharp bucket. He was

bleeding, fell unconscious, and felt weak. Ex. 11A, 134:23-141:22.

c. Firestone’s “Zero-Tolerance” Policy for Child Labor was a Paper Tiger: Un-enforced, Unimplemented, and a Post-litigation Tactic.

As an initial matter, the law is clear that Firestone does not merely get to point to a paper

policy as a complete solution to the child labor problem that it created and perpetuated for over

80 years. See, e.g., Gentry v. Export Packaging Co., 238 F.3d 842, 847-48 (7 Cir. 2001)(noticeth

of sexual harassment in violation of policy requires employer to prevent prohibited conduct);

Monteagudo v. Asociacion De Empleados Del Estado Libre Asociado De Peurto Rico, 554 F.3d

164, 176 (1st Cir. 2009)(employer must demonstrate “good faith compliance.” Issuing a written

policy without more is not sufficient).

Plaintiffs dispute any factual assertion by Firestone that it issued or implemented an

effective policy to change 80 years of exploitive practices. It is absolutely undisputed that

Firestone did not have a policy prohibiting the use of child labor on the Plantation prior to June

27

20, 2000. Def. Mot. 10. Firestone’s first policy statement in 2000 explicitly identified work on

the Plantation that Firestone believed constituted the “worst forms of child labour on the estate,”

and included all the work Plaintiffs have performed at young ages: tapping, cups cleaning,

latex/cuplump collection, slashing ring weeding, and Difolatan and stimulant applications. Ex.

15. On July 3, 2000, in a second policy statement concerning child labor, Firestone admitted that

“[i]t has been observed by management that tappers occasionally use their children to assist them

in carrying out various tasks in their areas of assignment.” Ex. 13.

For five years, Firestone issued no other policies or statements concerning child labor on

the Plantation. Further, Firestone presents no evidence that it did anything to alter its historical

reliance upon child labor, and Plaintiffs have presented abundant evidence that after 2000, child

labor continued to be an integral part of the Firestone system of production. In a July 2005,

memorandum, signed by company President Charles Stuart, Firestone again stated, “it has been

observed that employees, especially tappers, occasionally still use their children to assist them in

carrying out various tasks in their areas of assignment.” Ex. 14. Thus, Firestone admits that

child labor was still being used on the Plantation. Id. Five days later, Plaintiffs filed this suit on

November 17, 2005, and Firestone issued its first and only “zero tolerance” policy on November

23, 2005 – a week after the lawsuit was filed. Ex. 16.

The guardians’ and Plaintiffs’ testimony make clear that, although Firestone has this

paper policy, it consistently maintained a practice of using child labor on the Plantation. Without

exception, every guardian and Plaintiff testified that the earliest they had heard of a prohibition of

child labor—if at all – was in late 2005, after Plaintiffs filed their lawsuit. See, e.g., Ex. 4A,

30:17-20 (2006); Ex. 9, 54:18-55:24 (“after we have complained of suing Firestone to the human

See also Ex. 4, 67:7-68:4; Ex. 1, 65:1-67:6 (“law” only became serious in April 2008, right before his deposition);31

Ex. 11,86:22-25; 87:1-15 (learned about punishment for child labor only in November 2007); Ex. 2, 39:24-40:13;

52:9-11 (October 2007); Ex. 4, 37:22-38:1; 38:16-25 (work stopped for only two days in 2005, but became serious

just the Sunday before his deposition in April 2008); Ex. 10, 62:12-18 (in 2005 “we used to hear about it once in a

while, but it wasn’t a policy that was in force”); Ex. 8B, 36:1-22; 36:23-37:4; 37:23-38:1 (father’s headman told him

in late 2005 the in spite of the policy, they still want him to work so when he comes to work make sure he hides

when he hears or sees a Firestone car approaching). Whether Plaintiffs and guardians know about Firestone’s

policies says nothing about whether Firestone enforces these policies. Plaintiff Samuel Varnie testified: “his father

he said this is the rule, but our big, big people say you should still be working.” Ex. 8B, at 31:24-5-32:7-14.

Additionally, children nor guardians can consent to work that constitutes the worst forms of child labor. See supra,

Section II.B.1.

28

rights people”); Ex. 11, 91:7-25 (policy issued after the suit). As one guardian stated, in 2005,

without mentioning any “rule,” the headman told the kids to hide if they saw a car “because

Firestone is sued in America, and their jobs [are] now under threat. Should any superintendent

see this happening, they are immediately suspended for two months.” See Ex. 4, 67:7-68:4. The

hiding only lasted for a few days and then it went back to children openly working – business as

usual on the Firestone Plantation. See id. 31

Even after Firestone’s so-called “zero tolerance” policy in 2005, guardians and Plaintiffs

consistently testified that headmen, overseers, and superintendents not only saw their children

working without taking any action to stop the child labor, they directly encouraged the children

to continue working so their guardians could complete their tasks “because their production was

going down.” Ex. 7, 256:6-260:23. See also Ex. 7B, 169:13-173:2; Ex. 9A, 115:6-118:22.

Plaintiff Elijah Peter testified that when he dropped latex from the bucket he was carrying on his

head, the headman spoke to him about “wasting” the latex he had dropped. Ex. 11A, 134:13-

135:10. Plaintiff, Samuel Thomas, testified that when he was 11 years old, the headman handed

the medicine out to the children – each boy at the tank “was entitled to a cup.” See, e.g., Ex.

10A, 23:25-24:1; Ex. 1A, 84:11-85:16. The superintendent, Saliyah Blamah, showed Bendu

Dolo how to perform her job in 2006 when he stopped the car he was driving and told her she

wasn’t washing the cup properly and he told her to rewash it. Ex. 5, 73:15-74:25. Martha Kollie

Headmen at the tank regularly weighed and counted latex and cup lump that the children brought to the tank. See,32

e.g., Ex. 10B, 36:4-38:5; 2A, 72:7-20; Ex. 10, 84:6-24; 85:6-13; 85:14-20; 86:14-20.

29

testified that the headman instructed her to “cut the cup lump and count it” and to put more panel

red on it. Ex. 6B, 29:24-25; 31:3-9. Cf. Ex. 3A, 188:16-24; Ex. 3, 109:21-113:2; 169:9-1732

(headman thanked her for working; the job was too much for her father alone.). One guardian

was suspended for a week not because his child worked, but because he did not correctly use the

panel red. The headman said his son should stop working because “for each time [the boy’s]

working, he should have the panel red in the bucket. But because the boy didn’t have the panel

red in the bucket that time, so he shouldn’t work again.” Ex. 1, 65:17-25; Ex. 7B, 168:12-179:17

(overseer made sure the children were collecting the cup lump properly); 7B, 155:3-160:25.

Firestone managers also used various forms of coercion and intimidation to require child

labor, including threatened actions against tappers if the children do not perform more or better.

See, e.g., Ex. 1A, 86:12-19 (worked last month on the farm “[b]ecause the job is too much for my

father. And usually when the medicine on the farm, and if my father does not complete the task,

they will set him down. And the headman usually tell my father to send for his children to help

him and then afterwards tell them to go back to town.”); Ex. 7A, 282:3-283:15 (Daniel felt sick

and testified, “although I did not want to go into the bushes, but forced me to go into the bushes,

because he say if I had not gone, my father wouldn’t complete his job.”); Ex. 11A, 134:16-135:1

(headman told him not to waste the latex he was spilling from the bucket on his head).

Aside from the Plaintiffs’ own potent testimony, there are other indicators that child labor

continued unabated on the Plantation even after the lawsuit was filed. After Firestone’s so-called

November 2005 “zero-tolerance” policy, in May 2006, the U.N. Mission in Liberia issued a

report, “Human Rights in Liberia’s Rubber Plantations: Tapping into the Future” (May 2006),

Firestone admits that it did not discipline anyone for child labor before 2005, which was five years after it passed33

its so-called first policy against child labor. See Ex. 20 (Nos. 21, 23).

30

in which United Nations investigators reported that although management at the Firestone

Plantation claimed that child labor was prohibited, they spoke to a number of children between

10 and 14 years old who were working on the Firestone Plantation, and management told them

that Firestone and the Liberian government did not effectively monitor compliance with policies

against child labor. Ex. 18, at 45. Also, in 2006, after Firestone’s so-called zero-tolerance

policy, some workers participated in a strike in which they noted that wages were so low, young

children were being forced to help their parents meet production quotas. Exs. 21, 22. In 2007,

the Government of Liberia sent Charles Stuart, Firestone’s President, a letter stating that it was

still receiving reports of child labor on the Plantation. Ex. 23.

Firestone asserts that it held workshops in 2004, 2005, 2006, and 2007 about the

prohibition of child labor. See Def. Mot. 11, Dkt. 144-9, ¶ 8. As of September 30, 2008,

Firestone had not held any workshops for 2008. Id. None of the guardians or Plaintiffs asked in

their depositions about them had heard of these workshops and no Plaintiff participated in the so-

called “Red Card to Child labor” event. See, e.g., Ex. 4A, 61:2-4; Ex. 7, 223:2-15; Ex. 7A,

219:3-12; Ex. 11, 101:16-25, 102:1-17. The workshops were only conducted in four limited

locations on a Plantation that is approximately 240 square miles in size. Dkt. 144-9, ¶ 8. Of the

thousands of tappers, Firestone presents no evidence of how many participated, and the events

were not mandatory. Id. Firestone cites no other education, training, or dissemination of its

policy against child labor. In fact, one guardian, recently rehired on April 26, 2008, just six days

before his deposition, testified Firestone did not provide him with a copy of the policy against

child labor or tell him child labor was prohibited. Ex. 5, 125:3-12. Except for citing the 200833

See also 11A, 130:23-131:9; 131:17-19; 142:10-143:1; 145:19-25; Ex. 2A, 74:18-75:20; 77:11-20; 78:9-13; 84:4-34

12; 84:21-85:1; Ex. 2B, 37:18-22; 38:4-12; 38:18-21; 39:14-17; 39:20-23; 40:7-15; See also Ex. 2A, 79:3-17; 80:7-

18; 81:12-18; 81:20-82:8; 82:10-16; Ex. 2B, 37:24-38:1; 38:13-17; 38:23-39:1; 61:19-62:9; Ex. 10, 88:14-92:8

(overseer); 93:21-94:15; 94:17-25; 95:9-25 (superintendent); Ex. 8, 20:9-20; 37:21-38:1; 38:2-8; 38:10-18; 20:21-

21:1 (headman said, “Well, the job is so difficult, please, you can bring your children, but they shouldn’t be by the

roadside.’); Ex. 8A, 63:8-21; 64:7-10; 64:12-25; 65:2-6 (headman showed him how to scrape the cup, clean the cup

and what to do when he took the cup lump to the tank); Ex. 10, 87:2-17; 87:18-23; Ex. 7B, 168:12-179:17.

Firestone deliberately omits contextual excerpts that clarify the deponents intent and then infers that the deponent35

is a liar. See, e.g., Def. Mot. 11-12, n.19. For example, Daniel Flomo did not contradict his interrogatory responses

and he explains exactly what he means by a child labor policy. Of course, Firestone omits these salient pages of

testimony from its citations. Compare Def. Mot. 11-12, n. 19 (citing Dkt. 144-18, Ex. 43, 214:11-215:15; 219:14-

220:10 with Pls’ Ex. 7A, 216:7-218:12. In fact, it is clear from the testimony that Daniel finds it confusing that

Firestone says it has a policy, yet Firestone’s supervisors encourage the kids to continue working. Id. Similarly,

Joseph Fayiah did not deny knowing about the policy; in context with a complete citation, he states he only learned

of the no child labor policy in October of “last year”(2007). Compare Def. Mot. 12, n. 19 (citing Dkt. 144-17, Ex.

39:23-25) with Pls’ Ex. 2, 40:1-13.

31

CBA, which Plaintiffs contend remains un-enforced, Firestone does not assert that it has done

anything to actually change its system that depends upon child labor to harvest latex.

Firestone also attempts to persuade the Court without evidence that it made gallant

enforcement efforts that were thwarted only by the guardians who told their children to hide in

the trees from Firestone supervisors. Def. Mot. 11-12. Even after 2005, the children hid on the

instruction of headmen and high level managers who knew the parents cannot meet the

production quotas without the assistance of their children. They also encouraged the children to

keep working. See supra, Section 1.b.; see also Ex. 8B, 40:4-41:10; Ex. 10, 96:4-21; 96:14-23;

96:24-97:4-21; Ex. 1A, 75:6-25; 76:2-15; 77:12-20; 79:11-12 (superintendent and overseer saw

him working and gave him medicine to apply); Ex. 1B, 53:13; 54:6-7, 62:15-18; 63:4. Daniel34

Flomo testified that at the end of 2005, without explanation as to why, the headman and overseer

told the children to hide when they see a car. Ex. 7A, 216:7-218:12. This lasted for about a35

week only. Id. Another Plaintiff explained: “they can’t be looking out for children working on

the farm . . . because they know the workers suffering and they alone can’t do the work. . .” Ex.

3A, 38:3-19. Only the month before Saah Foryor’s deposition, his headman said, “the work is so

much” that when the children come to work, let them hide. Ex. 1, 68:19-25. Similarly, George

Firestone states that if a headman told the fathers to hide their children, this would be a violation of its policy. Def.36

Mot. 12, n.20. It says it investigated such reports based on this testimony “and found no support for such claims.”

Id. This investigation is irrelevant and only demonstrates there is a material issue of fact in dispute. Indeed, any

credibility findings concerning the veracity or accuracy of statements must be left to a jury to decide and is not

appropriate for adjudication by the Court on summary judgment. See Brown, 2009 WL 995755, at *1 (citing

Anderson, 477 U.S. at 242). Similarly, any contradictions in testimony – to the extent they exist and are not grossly

exaggerated by Firestone, must be left to a jury. Id.

George Peter was born on the Plantation and worked as a child laborer on the Plantation with his father who did37

exactly the same work George does today. He never saw any punishment for children working when he was growing

up. Ex. 11, 90:18-25, 91:1-6. Joseph Fayiah similarly grew up on the Plantation, never went to school, and helped

his father do the same work Joseph does today as an adult. Ex. 2, 13:16-17; 22:14-17. See also, e.g., Ex. 8, 16:21-

25; Ex. 10, 10:14-20; 24:21-24 (only attended Bible school and learned to read there); Ex. 10, 123:15-24 (came to

Plantation when he was 13 and worked as a child laborer). Many of the guardians are illiterate. See supra, Section

II.C.1.d.

32

Peter testified that his headman said the work “is very heavy, tedious” so if his son works he

should do so in the corner. Ex. 11, 82:21-83:5. Even after the policy came out in 2005, the

supervisors told one Plaintiff to work freely and “they had the power on the plantation, whatever

they say, that’s what we go by.” Ex. 9A, 118:25-121:5. 36

d. Firestone’s Perpetuation of the Plantation System: Limited Education withLimited Access Ensures a New Generation of Child Laborers who BecomeUneducated Tappers.

Virtually every guardian was born on the Firestone Plantation and grew up as a child

laborer. See, e.g., Cisco Decl. ¶¶ 3-4; Kweme Decl. ¶ 3; Ex. 7, 156:24-158:9. Fayiah Myciaga

testified, “there was no way that I could go to school. Because every time my father leaving to

go to work on the farm, he took me there,” and he cannot read. Ex. 4, 15:2-8. When Fayiah’s

father retired, he took over his tapping job. Ex. 4, 8:5-11. Daniel Flomo, a child Plaintiff,37

succinctly explained the entrenched system of child labor and its passage from generation to

generation: “when the father is a tapper, his children become tappers; when the father is an

overseer, his children become overseers.” Ex. 7A, 189:13-190:1. Firestone uses this to its

advantage. Firestone managers enlist older boy children to assume the father’s tapping job when

they notice the father aging and nearing retirement. Id. at 188:7-189:9; 202:19-204:6.

Firestone touts the so-called virtues of its “free” education system on the Plantation. Def.

33

Mot. 9-10. As late as 2004, Firestone only operated 15 schools for the entire Plantation. See Ex.

27. For a Plantation that covers approximately 240 square miles, Firestone admits that it operates

only one high school, which was only recently opened in 2006 after this lawsuit was filed. Ex.

20 (No. 58). In reality, the education system has been structured to maximize the children’s

availability for work and it is inaccessible to many children. Some Plaintiffs have never attended

a Firestone school, or their start was delayed because they do not have registration cards. See,

e.g., Ex. 5A, 70:18-20; Ex. 11A. Fathers reported that if a child is not born in a Firestone

hospital, they must go to Monrovia to obtain a birth certificate, which costs $25.00 U.S. dollars,

plus $10.00 for the Firestone registration card. See, e.g., Ex. 4, 46:12-24; Ex. 11, 127:22-25;

128:1-10; Ex. 11A, 44:4-21. Guardians must also pay for school uniforms and school supplies.

See, e.g., Ex. 9, 17:24-18:11. As an example, Elijah Peter did not start school until he was

approximately 16 years old because he was not born in the Firestone hospital and therefore did

not have a registration card. Ex. 11, 128:12-23; 213:10-15; 127:22-128:1-10. Elijah worked

with his father prior to starting school in 2007, but after he continued to get up very early to

collect the cup lump and then returns home to get ready for school. Ex. 11A, 42:8-43:18. He

also works on Saturdays and Sundays. Ex. 11, 235:12-236:16. He often arrives late to school

and he is “usually put outside” and punished. Ex. 11A, 38:21-39:9; 47:25-48.

Many Plaintiffs’ education has been interrupted or delayed because the work was so hard.

Andrew Fayiah was forced to drop out of Harbel Junior High School in the 9 grade becauseth

there was no time for him to study his subjects and work. Ex. 2, 39:8-11; Ex. 2A, 39:12-24;

103:3-7; 103:13-22; 103:9-13. He was late sometimes two or three days a week when he was

working in the fields. Id. at 103: 15-21. When he was late, his teacher would strike him or make

Martha Kollie, at the age of 19, is unable to read and is currently enrolled in the 4 grade. She was forced to slash38 th

grass at school, which she knew how to do from her work on the Plantation. See Ex. 6B, 27:18-29:1.

34

him cut grass around the campus with a hook. Id. at 103:23-106:25. Boimah Flomo is38

approximately 13 and only in the second grade. Ex. 7B, 76:17-78:19. Boimah stopped going to

school in 2003 because the work was too hard. Ex. 7, 87:11-90:10, 43:22-49:16. Matu Fayiah

only recently started school in 2007, and she goes to school after she works with her father, but

missed school to do more work, just a few days before her deposition to collect cup lump and

ring weed. Ex. 2, 38:22-39:22. Another Plaintiff, Joshua Thomas, was approximately 18 years

old at the time of his deposition, but only in the 6 grade. Ex. 10B, 6:11-7:8. He helped histh

father before school in the morning, and was sometimes late to school because he “was in the

bush and work was so hard.” Id. at 39:22-40:6. He worked about 45 minutes to an hour from his

house and had to go home before school started to get ready. Id. at 56:20-21-57:5-8. He was

sometimes switched, whipped or sent home when he was late. Id. 40:5-19. Samuel Thomas was

about 19 years old at the time of his deposition, but only in the 8 grade. Ex. 10A, 6:15-7:1. th

Saah Foryor, Jr. summed up in his own words the relationship between the child labor

policy, the workload, and education: Regardless of the policy, there is too much work for his

father to complete alone, but “[w]hen you help your father, you wouldn’t be serious in school

because of the job.” Ex. 1A, 57:10-13; 57:20-21.

Plaintiffs have provided evidence not only to dispute Firestone’s simplistic

characterization of the case, but to support their own legal theory, which Firestone has not even

addressed. In the event the Court finds Plaintiffs’ evidence on any of the factual issues discussed

herein insufficient, the summary judgement ruling should be deferred. See Plaintiffs’ Rule 56 (f)

Motion, with supporting declaration, filed concurrently herewith. Plaintiffs have yet to have

35

discovery from any Firestone supervisors on any issues. Plaintiffs intend to depose Firestone’s

headmen, overseers and supervisors to establish, among other issues, the historical and current

systematic use of child labor on the Firestone Plantation, and that the child labor policies are a

sham and were not implemented.

2. Plaintiffs Can Sue Firestone Directly for Forced Child Labor, But if Required, They DoHave Sufficient Evidence to Show that Firestone Acted Under “Color of Law.”

As demonstrated in Section II.A.4., Plaintiffs need not demonstrate Firestone acted under

“color of law” because a private party can be sued directly for participating in forced child labor.

If, however, the Court concludes that Plaintiffs must show that Firestone acted under “color of

law,” Plaintiffs have sufficient evidence to survive summary judgment on this point. As the

Court recently pointed out, “the standard for surviving summary judgment is a low one – far less

than what is required at trial.” Dkt. 215, at 8 (citing Fed. R. Civ. Pro. 56(c)). Moreover, the state

action inquiry is highly fact-specific and requires “sifting and weighing [of] circumstances

[before] the nonobvious involvement of the State in private conduct can be attributed its true

significance.” Id. at 8-9 (citation omitted); see also Brentwood Academy, 531 U.S. at 296.

Thus far in the discovery process, Defendants have produced the 1976, 2005, and 2008

Concession Agreements. These agreements demonstrate multiple ways in which the government

of Liberia has a partial stake in the Harbel Plantation. In fact, Firestone admits that the Liberian

National Police (“LNP”) and the Firestone Plant Protection Department (“PPD”) together

provide security on the Plantation, which Firestone purports includes the duty to patrol for the

use of child labor on the Plantation. Ex. 20 (No. 92); Ex. 25 (Supp. Rog. Response. No. 2).

Additionally, Firestone has the right to establish security checkpoints within the Production area

while the Government “has the right to assign security personnel to join with Firestones’ Plant

36

Protection Department to monitor any such security gates and checkpoints . . .” Ex. 26, (2008

Concession Agreement, at DEFS 00000188). Similarly, Firestone PPD must coordinate with the

Government’s police, law enforcement, and security authorities and periodically report to the

Ministry of Justice on the activities of the PPD. See id. at DEFS 00000192. Firestone and the

Government have established a “Coordination Committee” “for the purpose of discussing

Firestone’s “social obligations,” such as medical, health, safety, educational, environmental,

labor, personnel and any other matters related to Firestone Activities, in order to coordinate the

needs and plans of Firestone Liberia with the needs and plans of Government in matters affecting

or related to any of the above matters.” Id. at DEFS 00000201. In fact, Firestone is exempt from

import duties, prior to January 1, 2042, on “goods and materials to meet its social obligations

including approved medical and educational materials.” Id. at DEFS 00000204.

It is clear from the 2008 Concession Agreement, with similar provisions in the previous

agreements, that the Government of Liberia has knowledge of conditions on the Plantation and it

daily ratifies the acts that are at issue in this case. This involvement makes the government a co-

venturer with Defendants. Moreover, as described above, the Plantation has been protected by

government officials either through the provision of security services or payments made to such

officials, which has allowed the Plantation to continue the use of forced child labor.

This evidence, therefore, shows the required level of linkage between Liberian officials

and Firestone. As in Burton, where the state itself had a financial stake in a restaurant that

engaged in race discrimination and the Court allowed plaintiffs to sue the owners of the

establishment, 365 U.S. at 723-25, here the government of Liberia has ongoing financial

participation in the Firestone Plantation. See also, Brentwood Academy, 531 U.S. at 298-299

The Court recently granted in part Plaintiffs’ Motion to Compel. Dkt. 215. Among the categories of documents39

the Court ordered Firestone to produce are those related to state action. Id. at 7-9. These documents will not be

produced until approximately June 20, 2009.

37

(private association was sufficiently "entwined" with the public school system as evidenced by

the fact that the association, which provided "an integral element of secondary public schooling,"

was composed of public officials and financially supported by the public schools).

In the event that the Court finds Plaintiffs’ evidence on this point insufficient, Plaintiffs

have yet to have discovery on the linkages between Firestone and Liberian officials, and a

summary judgement ruling should be deferred until discovery on this issue is complete. See

Plaintiffs’ Rule 56 (f) Motion, and supporting declaration, filed concurrently herewith. 39

D. Firestone’s Supplemental Argument Regarding State Law Claims is Baseless.

Firestone’s supplemental submission argues that if Plaintiffs are able to amend their

Complaint to add Liberian state law claims, this would provide a basis to dismiss Plaintiffs’ ATS

claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Firestone’s

sole “authority” for applying to ATS cases the Bivens standard for creating new federal remedies

for Constitutional violations that would otherwise go unremedied is a 2006 law review article.

See Def. Supp. Mot. 2. Bivens does not control ATS claims; Sosa does, and there is not a single

court or any other authority that supports merging ATS claims with Bivens principles. Bivens

deals with the unique situation when federal courts are faced with Constitutional violations, but

such violations do not come with a remedy. Under limited circumstances, federal courts are

empowered by Bivens to fashion a remedy. One clear limitation is that no such remedy will be

created if there is an existing remedy that could be applied. See Wilkie v. Robbins, 127 S. Ct.

2588, 2600-01 (2007). Sosa, in sharp contrast, is not creating new causes of action or remedies. It

is applying a specific test, whether a particular norm of international law is “specific, universal,

38

and obligatory” such that it can be recognized as within the “law of nations.” 542 U.S. at 732.

The Sosa process for recognizing “law of nations” violations is designed to suit its unique

purpose and is necessarily restrictive in allowing claims to proceed. Steinhardt Decl. ¶¶ 3-9.

Unlike the Bivens situation, in an ATS analysis, the existence of substantive law similar to the

international norm at issue and applicable in the jurisdiction where the wrongful act occurred,

rather than being a barrier to a claim, is instead strong evidence of “state practice” that supports a

finding of universality. See Flores, 414 F. 3d at 248 n. 22.

Sosa’s sole expression of concern about overlapping remedies was to acknowledge that

the issue of exhaustion of administrative remedies might be applied in the appropriate case. 542

U.S. at 733, n.20. While the application of exhaustion of remedies to ATS cases continues to be

debated, see, e.g., Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008) (en banc), it was not raised

here as Plaintiffs could not have brought their claims in Liberia. See CT ¶¶ 7-8.

In short, the situations presented by Bivens cases versus ATS cases with respect to the

existence of alternative sources of law to be applied are very different. This Court should not be

the first to consider, let alone accept, that the unrelated requirements of Bivens should be grafted

upon the already-complex formula worked out in Sosa for ATS cases.

III. CONCLUSION

For all the forgoing reasons, this Court should deny in their entirety Defendants’ Motion

and Supplemental Motion for Judgment on the Pleadings or, in the Alternative, Motion for

Summary Judgment (Dkts. 209 & 213).

Dated: June 1, 2009Respectfully Submitted by:

s/Kimberly D. JeselskisKimberly D. JeselskisBarry A. Macey MACEY SWANSON AND ALLMAN

445 North Pennsylvania Street, Suite 401Indianapolis, Indiana 46204Phone: (317) 637-2345Fax: (317) 637-2369kjeselskis@maceylaw.com

Terry CollingsworthChristian Alexandra LevesqueNatacha ThysCONRAD AND SCHERER731 8th Street, SEWashington, DC 20003Phone: (202) 543-4001 Fax: (202) 527-7990tc@conradscherer.comcl@conradscherer.com

Nicole Nehama Auerbach Patrick J. Lamb Mark D. Sayre Hugh J. Totten THE VALOREM LAW GROUP35 East Wacker Drive, Suite 2900Chicago, IL 60661

Benjamin Schonbrun Paul L. Hoffman SCHONBRUN DESIMONE SEPLOW HARRIS& HOFFMAN723 Ocean Front Walk, Suite 100Venice, CA 90291

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2009, the foregoing was filed electronically. Notice of this

filing will be sent to the following parties by operation of the Court’s electronic filing system.

Parties may access this filing through the Court’s system.

KREIG DEVAULTMark J. R. Merklemmerkle@kdlegal.comMarc T. Quigleymquigley@kdlegal.com

JONES DAYRobert Mittelstaedtramittelstaedt@JonesDay.com Michael L. Ricemlrice@jonesday.comKatie J. Colopykjcolopy@jonesday.comThomas A. Rectortarector@jonesday.com

s/Kimberly D. Jeselskis