Trafficking in persons

Adhikari, et al. v. Daoud & Partners, et al

UNODC No.:
USA008

Fact Summary

This case was brought by Plaintiff BPG and the surviving family members of twelve other men. Defendant Daoud & Partners ("Daoud") is a Jordanian corporation. Daoud had entered into a number of contracts with the United States for the provision of services at military bases, including Al Asad Air Base in Iraq. Defendant KBR is a business conglomerate; one such KBR subsidiary serves as a contractor with the United States Government to perform specific duties at United States military installations in Iraq.

In an effort to fulfill their contractual obligations, the Defendants "willfully and intentionally formed an enterprise with the goal of procuring cheap labor and increasing profits", and therefore engaged in human trafficking. Most of the men were told that they would be employed by a luxury hotel in Amman, Jordan. Some were told that that they would be working in an American camp. They were promised a salary of approximately $ 500 per month. The men and their families incurred substantial debt to pay the brokerage fees in seeking out this employment.

The men were held in Jordan by Daoud and agents of Daoud; all of the men were required to turn over their passports to Daoud. It was there that they first discovered that they were actually being sent to Iraq to work on Al Asad Air Base, Iraq. At least one of the men informed his family that he and the other men were being kept in a dark room and were unable to see. The men were also informed that they would be paid only three quarters of what they were initially promised. Daoud transported the victims into Iraq on or about August 19, 2004, via an unprotected automobile caravan.  Daoud was aware of the significant and well-known risks involved in traveling on this highway.  No security was provided for the caravan.

Between August 20 and August 24, the Ansar al-Sunna Army posted an internet statement that it had captured ten (10) of the men, on or about August 31, 2004. International media outlets broadcasted video of the Ansar al-Sunna Army executing the twelve (12) plaintiffs. The group beheaded one of the men, and shot the other eleven men in the back of their heads.  Plaintiff BPG’s car was not captured by the insurgents and arrived at Al Asad base as scheduled. He was told by both Daoud and KBR that he could not leave until his work in Iraq was complete. After fifteen months, during which he experienced frequent mortar fire without protection, BPG was permitted to return to Nepal.

The plaintiffs alleged that:

-           KBR knew or should have known prior to August 2004 of the circumstances under which the men were being brought to Iraq to work;

-           Daoud was previously involved in an incident in which eighteen Indian laborers were forcibly kept in a camp in Fallujah where they worked, although they had quit their jobs months before;

-           KBR had the authority to terminate all subcontractors who mistreated employees, unlawfully compelled employees to perform work, or unlawfully compelled employees to remain somewhere against their will.

Commentary and Significant Features

This complex case established extraterritorial jurisdiction for Alien Tort Statute claims, and Racketeer Influenced & Corrupt Organizations Act claims in the United States as applied to human trafficking cases;

It clears a pathway for civil liability claims against American citizens and organizations involved in human trafficking abroad.

Author:
UNODC

Keywords

Acts:
Recruitment
Organized Crime Convention:
Article 10 UNTOC
Form of Trafficking:
Internal
Transnational
Organized Criminal Group
Purpose of Exploitation:
Forced labour or services
Means:
Abduction
Deception
Abuse of power or a position of vulnerability
Sector in which exploitation takes place:
Other sectors
Trafficking in Persons Protocol:
Article 6, Trafficking in Persons Protocol

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Civil
 

The plaintiffs, Nepali laborers, and surviving family members, brought a suit against the defendants, a U.S. contractor and its affiliates (contractors), and others, alleging claims under the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C.S. § 1595; the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. § 1962(c), the Alien Tort Statute (ATS), and negligence. The contractors filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(6), “failure to state a claim,” and 12(b)(1), “court lacks subject matter jurisdiction.”

The Defendant’s subsequent appeal was denied on March 1, 2010.

 
 

Victims / Plaintiffs in the first instance

Victim:
R.A.
Gender:
Male
Nationality:
Nepalese
Victim:
B.P.G.
Gender:
Male
Nationality:
Nepalese
Victim:
D.A.
Gender:
Male
Nationality:
Nepalese
Victim:
J.B.K.
Gender:
Male
Nationality:
Nepalese
Victim:
R.K.
Gender:
Female
Nationality:
Nepalese
Victim:
B.S.K.
Gender:
Male
Nationality:
Nepalese
Victim:
P.D.K.
Gender:
Male
Nationality:
Nepalese
Victim:
C.L.
Gender:
Male
Nationality:
Nepalese
Victim:
K.T.M.
Gender:
Female
Nationality:
Nepalese
Victim:
M.T.M.
Gender:
Female
Nationality:
Nepalese
Victim:
B.M.T.M.
Gender:
Female
Nationality:
Nepalese
Victim:
T.S.
Gender:
Female
Nationality:
Nepalese
Victim:
N.S.
Gender:
Male
Nationality:
Nepalese
Victim:
R.K.S.
Gender:
Male
Nationality:
Nepalese
Victim:
N.S.
Gender:
Male
Nationality:
Nepalese
Victim:
D.B.S.
Gender:
Male
Nationality:
Nepalese
Victim:
G.M.S.
Gender:
Female
Nationality:
Nepalese
Victim:
S.N.S.
Gender:
Female
Nationality:
Nepalese
Victim:
R.D.S.
Gender:
Male
Nationality:
Nepalese
Victim:
R.N.T.
Gender:
Male
Nationality:
Nepalese
Victim:
S.D.T.
Gender:
Female
Nationality:
Nepalese
Victim:
J.D.T.
Gender:
Female
Nationality:
Nepalese
Victim:
B.B.T.
Gender:
Male
Nationality:
Nepalese
Victim:
B.M.T.
Gender:
Male
Nationality:
Nepalese
Victim:
B.T.
Gender:
Male
Nationality:
Nepalese
Victim:
K.P.T.
Gender:
Male
Nationality:
Nepalese
Victim:
D.R.M.
Gender:
Female
Nationality:
Nepalese

Defendants / Respondents in the first instance

Defendant:
: Daoud & Partners, Jordanian corporation, (Daoud & Partners, Kellogg Brown & Root, Inc., Kellogg Brown & Root Services, Inc., John Does, KBR, Inc., KBR Holdings, LLC, Kellogg, Brown & Root, LLC, KBR Technical Services, Inc., Kellogg, Brown & Root International, Inc., Service Employees International Inc. and Overseas Employment Administration)
Legal Reasoning:

(1)       The plaintiffs established a cause of action under the Alien Tort Statute:

a.         The court rejected the defendant’s motion to dismiss due to a jurisdiction claim, (KBR argued that permitting the suit would apply a law not in existence at the time retroactively) because:  “Regardless of the extent of this Court's jurisdiction to hear claims, the passage of the TVPRA plainly created an express public duty to refrain from acts of trafficking.

b.         That a defendant, subject to the laws of the United States, chose to commit a criminal act in a location where this Court may not have had jurisdiction does not alter the criminality of the act itself” and that “human trafficking is by nature an ‘international’ crime; it is difficult clearly to delineate those trafficking acts which are truly ‘extraterritorial’ and those which sufficiently reach across U.S. borders.”

c.         The traditional presumption against the retroactive application of statutes would contravene the clear purpose of the TVPRA, and would inappropriately absolve those who could in fact be guilty of violating its provisions. The civil remedies authorized by Section 1595 attach when a claim is properly brought before a court of law.

d.         Changes in the manner in which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes, do not violate the Ex Post Facto Clause.

e.         The form of human trafficking that the Plaintiffs allege the Defendants engaged in was still a criminal act at the time that the alleged incidents occurred. Section 1596 did nothing to alter or expand the criminality of the actions itself. Therefore, a conclusion that Section 1596 does indeed apply to this case does not violate the Ex Post Facto Clause of the Constitution.

f.          The court also rejected the Defendant’s argument that the pleadings were insufficient, stating that: “all that is required at this stage is that the claims made by the Plaintiffs are plausible, not that they show probability of success.  By providing significant, though not indisputable factual support for their allegations of trafficking, the Plaintiffs met that burden in this case.”

g.         The court rejected the Defendant’s argument that the Alien Torts Statute requires state action, stating that “to the extent that Plaintiffs can show that private acts of trafficking have become universally prohibited, the ATS state action requirement does not apply,” thus “human trafficking and forced labor, whether committed by states or private individuals, have been recognized as violations of ius cogens norms, and therefore fall within the jurisdictional grant of the ATS.”

h.         The court also accepted that the trafficking and forced labor alleged in this case qualified as universal international norms to merit a cause of action under Sosa (cognizable claims under the ATS are “specific, universal, and obligatory”).

i.          The Alien Tort Statute and Torture Victims Protection Act (TVPA) provides separate paths to relief, thus the ATS is not pre-empted by the TVPA as grounds for relief.

(2)        The Plaintiffs had sufficiently alleged violations to proceed under the Racketeer Influenced & Corrupt Organizations Act:

a.         Alleged victims of trafficking violations have RICO standing for claims of denied wages; these claims exist irrespectively of death of the victim;

b.         Allegations that an individual/organization actively associated themselves with another complicit actor are enough to establish that they were acting as part of an enterprise to achieve a common purpose;

c.         One method of alleging continuity is to show that the offenses are part of an entity’s “regular way of doing business;”

d.         A conspirator must intend to further an endeavor which, if completed, would satisfy all the elements of a substantive criminal offense, but it suffices that he adopt the goal of further, or facilitating the criminal endeavor;

e.         Vicarious liability is able to be alleged under a principle-agent theory.

(3)        The Plaintiffs negligence claim was dismissed:

a.         Statute of limitations had tolled because geographic location and personal hardship cannot provide the sole basis for tolling an otherwise applicable statute of limitations.

DECISION:

Defendants’ Motion to Dismiss denied in part, granted in part:

(1)        RICO, ATS claims allowed to proceed;

(2)        Negligence claim dismissed per statute of limitations.

Charges / Claims / Decisions

Defendant:
: Daoud & Partners, Jordanian corporation, (Daoud & Partners, Kellogg Brown & Root, Inc., Kellogg Brown & Root Services, Inc., John Does, KBR, Inc., KBR Holdings, LLC, Kellogg, Brown & Root, LLC, KBR Technical Services, Inc., Kellogg, Brown & Root International, Inc., Service Employees International Inc. and Overseas Employment Administration)
Charge / Claim:
civil remedy for trafficking
Legislation / Statute / Code:
18 U.S.C. § 1595; Trafficking Victims Protection Reauthorization Act ("TVPRA")
Charge / Claim:
Prohibited Activities
Charge / Claim:
Alien's action for tort

Court

United States District Court for the Southern District of Texas (Houston Division)

Sources / Citations

Adhikari, et al. v. Daoud & Partners, et al., 697 F.Supp.2d 674

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