At our July 8, 2021 hearing on the companies’ motion to dismiss, Microsoft’s lawyer, on behalf of Microsoft and all of the defendants, stressed repeatedly that the company does not have a sufficient relationship to its suppliers to be responsible for what happens in the DRC cobalt mines. He stressed they are merely “buying cobalt.” These tech companies, which claim to be green, forward-looking, woke, and great places to work are merely taking a bloody page from the corporate playbook and hope that they can lie to consumers and claim the problem is solved because they have “policies” against child labor while arguing in court that they merely buy cobalt and have no ability to control what goes on in the cobalt mines. This is a bald-faced lie. They DO have contacts and contracts with their mining companies, they just fail to enforce their child labor policy because they don’t care about the issue as long as they can get away with merely saying they have a policy.

Because the companies have failed to take responsibility for their supply chains, despite claiming to have “policies” that allow them to monitor for and enforce their prohibition on child labor, we had no choice but to sue them. A victory in this case will set an important precedent that companies that knowingly support forced labor or trafficking in their distant supply chains can be held liable in a U.S. Court. 

Plaintiffs have a strong case that the companies are liable under the TVPRA for using forced and trafficked child labor to mine the cobalt that is essential for their electronic products. They also have “common law” claims for unjust enrichment, negligent supervision, and infliction of emotional distress.

The TVPRA was originally enacted as a criminal statute to prohibit trafficking and forced labor, and it was primarily targeting sex-trafficking. It has since been amended several times and now has parallel civil provisions that allow victims of trafficking or forced labor to file a claim for damages and injunctive relief. As a group of Members of Congress recently asserted in an amicus brief filed in the Supreme Court in IRAdvocates’ Alien Tort Statute case against Nestle and Cargill, the TVPRA is tailor made for supply chain cases. Based on 18 U.S.C. §§ 1589 (a) and 1595, there are four clear elements to a TVPRA claim:

1.     A person or company must “participate in a “venture”

The first element of § 1589(b)—“participation in a venture”—raises the most novel legal question. “Venture” is not defined in § 1589 (a).  One method of interpretation is to simply look to the ordinary definition, which would suggest “venture” refers to any risk-bearing activity.  Another option is to look to § 1591(c)(3), which defines “venture” in the criminal child sex-trafficking context as “any association in fact.” In this case, the defendant companies all have close relationships with the two main cobalt mining companies in DRC, Glencore, a notoriously bad global mining company based in Switzerland, and Huayou, a Chinese company that has successfully hidden behind the veil of Chinese secrecy. There are several examples of the companies working together to protect their access to DRC cobalt, including their support for and participation in the “Fair Cobalt Alliance,” a bogus company-controlled initiative to improve conditions for cobalt miners and end the use of child miners. It was formed in response to public reports of the horrors of cobalt mining and appears to be a mere public relations ploy. Most important, based on the companies’ own assertions, each of them claim to have the contractual right to enforce their policies against child labor in the mines of their suppliers. Apple, Alphabet (Google), Dell, Microsoft, and Tesla are more than mere purchasers of cobalt; they have developed contractual relationships with their cobalt suppliers to ensure a steady supply of cheap cobalt. This should be more than sufficient to establish their participation in a “venture.”

2. The companies “knowingly benefit from” their participation in the venture.

DRC cobalt is essential to the operations of the defendant tech companies. By establishing relationships with Glencore and Huayou, the companies that are mining cobalt with forced and trafficked child labor, the defendants benefit from a steady supply of cheap cobalt that they need for every one of their products.

3.     The cobalt venture utilizes trafficked or forced labor as defined by § 1589(a).

Based on the terms of the statute, the venture the defendants participate in uses “force, threats of force, physical restraint, or threats of physical restraint” to require the Plaintiffs to work without compensation and perform labor that is well within the definition of ILO Convention 182 for the Worst Forms of Child Labor. There was also a “scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.”

Plaintiffs in this case are eleven children who were severely injured in tunnel collapses and legal representatives for five children who were buried alive and died in tunnel collapses while they were forced to perform extremely dangerous cobalt mining work for the benefit of defendants and their cobalt mining venture. Each of the living Plaintiffs will testify how they were recruited by labor brokers and then ordered to perform the dangerous work in the cobalt mines. They were threatened by intimidating overseers and most of them were told if they didn’t do what they were told they would never work in any mines in the area and would starve. The surviving relatives of the five children who were killed while mining cobalt will relate similar details. The fact that the Plaintiffs were young children when they were coerced into working amplifies that they were easily intimidated. It’s hard to imagine that a child would go to work in a dangerous cobalt mine, knowing that the mines collapse all the time, unless he had no choice.

4.     The Defendant companies knew or recklessly disregarded that the venture was using forced or trafficked child labor.

Plaintiffs’ complaint has numerous examples of public reports of the horrible conditions facing children in DRC cobalt mines. At a minimum, this provided the companies with constructive knowledge of child labor in the mines of their suppliers. In one example, Amnesty international contacted the companies and raised questions about how they were ensuring that children were not being killed or maimed in the mines of the companies’ suppliers. In addition, the fact that the companies claimed to have policies against child labor certainly supports the inference that they had reason to believe there was child labor in their suppliers’ mines. Plaintiffs here certainly have made sufficient allegations of the companies’ knowledge to allow a jury to find that they knew or should have known of the forced child labor in the cobalt mines.