Category: Corporate governance

SGI hosts a Lobbying Disclosure and Lobbying Alignment Webinar

SGI hosts a Lobbying Disclosure and Lobbying Alignment Webinar

Chris Cox

Companies invest billions of dollars in political influence through lobbying, campaign contributions, and other means. Corporations are societally chartered institutions of enormous importance and value, creating jobs, producing goods and services that consumers rely upon, impact the environment we live in and pay salaries to worker who hope to lead fulfilling lives. At the same time, corporations spend vastly greater sums on lobbying than the funds available to pro-consumer, pro-environment, and pro-worker organizations. Hence, we consider this an important, basic area of corporate governance, and adequate disclosure of corporate lobbying remains a pressing shareholder proposal topic.

SGI members filed or co-filed 12 proposals related to lobbying for the 2023 proxy season. Over the last few years, resolutions have moved from beyond basic disclosure to reporting on alignment and misalignment between a company’s stated position and the lobbying efforts that a company funds indirectly via trade associations,  501(c)(4) social welfare nonprofits, and 527 political organizations, often referred to as “dark money.” Those reports are important as the reveal the risks of lobbying misalignment.

To dig deeper into these themes, we hosted Tim Smith, senior policy advisor at ICCR, and John Keenan, Corporate Governance Analyst for Capital Strategies for the American Federation of State, County and Municipal Employees (AFSCME), for a webinar on Lobbying Disclosure and Lobbying Alignment.

The webinar also points investors to valuable resources concerning lobbying:

We are grateful for Tim Smith and John Keenan joining us. We want to thank all of our members and guests for attending our webinar.

Slides are available here. The video is available here.

Join SGI for a Webinar on Lobbing Disclosure and Alignment

Join SGI for a Webinar on Lobbing Disclosure and Alignment

Chris Cox

Join us for our first webinar of 2023 on Wednesday, February 15th, at 10:00 a.m. Central. We will address efforts for increased lobbying disclosure. Similar to previous years, SGI members filed or co-filed a dozen resolutions that pertain to lobbying disclosure and lobbying alignment. Joining us will be Tim Smith, newly returning to the ICCR staff, and John Keenan, of AFSCME. Register for the webinar here. 

Why is this important? Visit any company’s website. Take a look at the company’s existing disclosures and assess:

  • Do they currently provide you with a clear idea of how and where the company is lobbying, to what end and with what efficacy, and how those activities are aligned with your interests?
  • Could you cite a number that represents how much the company has spent on influencing public policy, directly or indirectly, and with what partners, and on what issues?
  • Beyond its activities in the US, do you have a clear understanding of how the company attempts to impact policies in non-US jurisdictions?

Corporations are societally chartered institutions of enormous importance and value, creating jobs, producing goods and services that consumers rely upon, impact the environment we live in and pay salaries to worker who hope to lead fulfilling lives. At the same time, corporations spend vastly greater sums on lobbying than the funds available to pro-consumer, pro-environment, and pro-worker organizations. Hence, we consider this an important, basic area of corporate governance, and, in this webinar, we are going to dig into these engagements and resolutions.

Again, please, join us!

SEC Finalizes Pay Versus Performance Disclosure Rules

SEC Finalizes Pay Versus Performance Disclosure Rules

Chris Cox

Last Friday (August 25), the Securities and Exchange Commission (SEC) adopted final rules implementing the “pay versus performance” disclosure requirement, completing a 12-year journey to fulfill a provision of the 2010 Dodd-Frank Act.

Under the rule, U.S. public companies must provide a new table in their annual proxy filings that contains executive compensation and financial performance measures covering a period of up to five years. While this new rule does not mandate any action that will narrow the pay disparity between executives and workers or reduce wealth inequality in the U.S., the rule requires companies to provide data comparing executive pay to financial performance. This table and the new figures will provide investors some clearer information for the mandatory (advisory) “Say on Pay” votes in every company’s proxy.

As a result, I hope that this makes Rosanna Landis Weaver’s work for As You Sow a little easier as she annually prepares a report on “The 100 Most Overpaid CEOs.” Previously, she had to dig through the not-so-transparent data in the “Compensation Discussion and Analysis” (CD&A), a required part of a company’s annual proxy statement, to generate her figures. Theoretically, the new rule will allow for a more straightforward means of comparison. (Worth noting: Year after year, the report uncovers overpaid CEOs who underperform on “Total Shareholder Return.”)

As You Sow, The 100 Most Overpaid CEOs, 2022

Some will take issue with the new disclosure rule as it is all about financial performance. Rightfully, socially responsible investors may be concerned because these new required charts do not include non-financial disclosure (i.e., human rights performance or emissions reduction). However, the rule does not preclude a company from including that information.

The new rule may draw companies to better tell their story, rather than bury shareholders in legalese. At the end of the day, the rule is not just about filling out the table, but that companies devote time to develop a narrative that helps investors understand how pay and performance align.

Even after this rulemaking, the SEC has yet to finish the implementation of Dodd-Frank. Perhaps we may see the SEC finalize the long-delayed provision for a clawback rule for accounting missteps mandated by Dodd-Frank. And we may be light years from reducing pay disparity and acting on wealth inequality, but better disclosure is a small step in the right direction.

Both Chair and CEO? Formula for Disaster

Both Chair and CEO? Formula for Disaster

Chris Cox

The Guardian recently revealed new problems from Travis Kalanick’s tenure as WeWorks CEO and chair of the board. Combining the two roles often leads to disaster. It is actually an old storyline:

Boards and investors want CEOs who hunger for improving the company. Boards want to hire winners. But the chair serves a different role, representing the shareholders and other stakeholders. Only an exceptional leader could fill both the role of CEO and chair. Surprisingly, a combined CEO and chair position led over  40% of S&P 500 companies in 2021. Too many boards, like the residents of Lake Wobegon, seem to think their CEOs “are all above average.”

One person holding both titles brings about conflicts of interest. The board guides, evaluates, and compensates the CEO. Legal & General’s Clare Payn describes it this way: “the CEO role is a full-time strategic role; the chair role is to manage the board.” She continues, “It’s like marking your own homework if you hold both roles.”

In our view, the best practice is that the chair should be an independent director. Most well-governed entities have checks and balances in place to ensure accountability and not vest excessive authority in one person or office. Throughout history, we have seen what happens when one person or institution is delegated too much power.

The practice of a combined chair and CEO is uncommon in Europe. In fact, UK Corporate Governance Code recommends that a CEO should not become chair of the same company. Without the formal guidance, investors must make the push in the U.S. Separate chair and CEO resolutions were the second-most voted proposal type in the 2021 proxy season (with 44 voted proposals in the January 1-June 30 period).

For the 2022 proxy season, SGI members co-filed this resolution at Exxon Mobil, Meta (Facebook), and Bristol-Myers Squibb. And the Conference Board suggests that it is making a difference outside of the S&P 500: “The trend toward CEO-board chair separation, previously more pronounced among smaller businesses in the Russell 3000, is extending to the S&P MidCap 400.”

To learn more about SGI’s work in corporate governance, please, visit here.

Photo credit: Mark Zuckerberg F8 2018 Keynote | Anthony Quintano | FLICKR (CC BY 2.0)

Time for a Say-on-Pay

Time for a Say-on-Pay

Chris Cox

The proxy statements for 2022 are arriving, and we debate anew: “How much is too much?”

Mandated under the Dodd-Frank Act, say-on-pay is a nonbinding, advisory shareholder vote on the compensation policies for the company’s executive officers. In their proxy statement, companies must disclose how their compensation strategy has considered the results of their most recent say-on-pay vote, but the law does not require the company to make any changes based on the vote. Nonetheless, the say-on pay vote is a barometer for shareholder perception of the company’s executive compensation practices.

For instance, Apple proposes a $99 million pay package for CEO Tim Cook this year, but shareholder advisory firm ISS has recommended a “no” vote. I understand the basis for ISS’ recommendation is because it is triple the package of peer median pay and serves no purpose for retaining Cook, as he will earn shares in retirement. On the contrary, Glass Lewis, the other large proxy advisor, recommended supporting the package.

It is almost certain that the Apple say-on-pay resolution will have a majority of support as most shareholders routinely vote in favor of these packages. This will have a cascading effect on executive compensation in 2023 as peer companies will try to keep up. Cook’s proposed salary may simply be keeping up with the Joneses as Alphabet’s CEO Sundar Pichai was awarded more than $280 million in 2019.

Last year, however, bore seeds of hopeful news. Failure rates on compensation packages in 2021 were considerably higher than 2020 and 2019 levels as numerous companies experienced a “failed” vote for the first time, including AT&T, Marathon, Starbucks, and Walgreens. A more complete list of failed say-on-pay votes can be found here.

There are, of course, better ways to ask the question than “How much is too much?” We hosted a webinar last year on Pay and Wealth Disparity. One of the participants, Rosanna Landis Weaver, will host her annual webinar on Thursday: “100 Most Overpaid CEOs: Are Fund Managers Asleep at the Wheel?” (You can register here.) As well, one can turn to the AFL-CIO’s Executive Paywatch.

SGI has a long history in this space. From our founding in 1973, Fr. Mike Crosby, O.F.M., Cap. advocated for a living wage. SGI consistently advocates for increasing the federal minimum wage.

In 2013, President Obama said, “Rising income inequality is the defining challenge of our time.” Pope Francis, in the same year, noted, “How can it be that it is not a news item when an elderly homeless person dies of exposure, but it is news when the stock market loses two points?” As a consequence, one of Fr. Mike’s final efforts was a campaign for pay equity in 2014, filing shareholder resolutions with 12 retailers. The SEC allowed companies to omit the resolution based on ‘micro management.’ SGI members continue to challenge retailers and restaurants to pay living wages, for their own workers and for those in their supply chain.

In hopes of building an economy that works for the many, not one that concentrates more and more wealth in the hands of a privileged few, we keep coming back to this issue to see if there are new ways that we can address income and wealth disparity. The Franciscan Sisters of Perpetual Adoration proposal in 2021 on racial equity & starting pay at the Walmart AGM obtained strong shareholder support for a first-time resolution (12.5% of total shares or 27% of independent shares voted). SGI members have joined this year’s ICCR campaign asking restaurants to raise their sub-minimum wage for tipped workers.

Increasingly, economists have come to see that wealth and income disparity harm the economy. Rising concern for pay and wealth disparity in proxy voting and changes at the SEC lead us to think the tide may be shifting, and so we call upon shareholders to act.

Time to Reckon with Insider Trading

Time to Reckon with Insider Trading

Chris Cox

News outlets have unleashed an avalanche of allegations of insider trading:

These articles heighten a sense to ordinary people that the system is rigged; they call for significant action, but major problems remain unattended.

Insider trading consists of buying or selling a security, being in possession of material, nonpublic information (MNPI) about the security, in breach of a fiduciary duty or other relationship of trust and confidence. The action is damaging whether one is the person who shared or “tipped” the information or the person who traded the securities based on the information. The trading can occur in the anticipation of “bad” news for a company, selling before the stock crashes, or it may coincide with the announcement of favorable news and a stock rising to new heights.

As executives and board members regularly are exposed to MNPI, the window of opportunity to trade their own shares without violating insider trading rules is narrow. So, the SEC adopted Rule 10b5-1 in 2000, which allows insiders of publicly-traded corporations to set up a trading plan – whereby the executive sells a predetermined number of shares at predetermined intervals –  to facilitate effective selling of personal shares of company stock.

Professor Daniel Taylor of the Wharton School at the University of Pennsylvania has done a deep dive into Rule 10b5-1, and his research has exposed some “cracks” in this system that are ripe for abuse. He and his colleagues reported on some “red flags” in January of 2021:

  1.  An archaic paper-filing system for sales from Rule 10b5-1 plans. A simple remedy is to make them digital and put on the SEC website through the EDGAR portal.
  2. Rule 10b5-1 requires no interval between the creation of a plan and its execution. A recent study found that more than one-third of the plans adopted in a given quarter saw an insider execute a trade before that quarter’s earnings announcement, avoiding considerable losses. A remedy to restore confidence would be to require a cooling off period of four to six months.
  3. Some insiders create Rule 10b5-1 plans to effect a single trade. Prohibiting this option makes for a reasonable remedy.
  4. Some insiders create multiple Rule 10b5-1 plans to run concurrently and cancel all but the most advantageous plans. Prohibiting a single person or entity to have more than one Rule 10b5-1 plan at a time would advance the credibility of the system.
  5. Currently, the Form 4 disclosures of insider trades lack relevant information. The date of plan adoption or modification provides greater transparency.
  6. Boards and/or compensation committees may not be giving sufficient oversight to the issue. The board or compensation committee should monitor executive stock sales.

(If you prefer a podcast, Taylor describes the issue here.)

In June, Chairman Gary Gensler acknowledged that “these plans have led to real cracks in our insider trading regime” and asked the SEC staff for recommendations on how to “freshen up” Rule 10b5-1. As well, the Investor-as-Owner Subcommittee of the SEC Investor Advisory Committee has released draft recommendations and discussed the topic at its September meeting.

Even if the studies by Professor Taylor and his peers cannot determine with absolute certainty whether any insiders that avoided losses or otherwise achieved “market-beating returns” actually traded on the basis of MNPI misses the point; insider trades must not only be legal, they must also appear ethical. The current system allows for far too much ethical ambiguity and erodes basic trust in the common good.

“Effective governance is a pillar of sustainable companies,” according to Cindy Bohlen of Riverwater Partners. “Executive alignment with company success is a governance factor considered important by many investors, including Riverwater. It is imperative that insider trading rules allow executives to share in the success of the businesses they run, while at the same time ensuring they are not afforded preferential outcomes given their insider status.”

Follow the Money

Follow the Money

Chris Cox

Multiple crises over the past year reminded us that our global economy and our democracies are unjust and fragile. With decades of lobbying and political spending, companies have contributed to the breakdown of trust in the system by distorting elections, policymaking, law enforcement, and citizens’ ability to hold power to account.

Why do industries like meatpacking enjoy little oversight under both Democrat and Republican administrations? A recent report from the nonprofit advocacy group Feed the Truth suggests a disquieting answer. The report documents how the largest companies in the U.S. food system invest a significant sum in lobbying and campaign donations, all but guaranteeing a friendlier regulatory environment.

Corporate political spending and lobbying are possibly the major factors obstructing progress on critical policy issues including the climate crisis, corporate tax loopholes, fossil fuel subsidies, pharmaceutical pricing, minimum wage, worker rights, and youth tobacco use. Companies impede legislators and regulators from acting on evidence and for the common good. The 2010 Citizens United court ruling only exasperated corporate political influence.

Investors try to address this. For example, SGI members led or co-filed 10 political spending or lobbying resolutions.

When It comes to political spending on elections, we rely on guidance from the Center for Political Accountability (CPA). CPA, collaborating with the Zicklin Center for Business Ethics Research and Wharton School of Business at the University of Pennsylvania, developed a model code of conduct. They apply that code and produce an annual report on political spending disclosure.

Capturing information on corporate lobbying is more difficult. Generally, it comes in three streams:

  1. Corporations directly employ lobbyists for matters of concern on the federal, state, and local level. The laws regarding disclosure vary in each jurisdiction making it difficult to track. For example, e-cigarette maker Juul admitted to Congress that it lobbies in 48 states, but try to gather all that data on your own.
  2. Corporations also make payments to trade associations that lobby on their behalf without specific disclosure or accountability. The US Chamber of Commerce has spent more than $1.6 billion since 1998.
  3. Corporations make payments to 501(c)(4) social welfare nonprofits and 527 political organizations, often referred to as “dark money,” that can create legal and reputational risk for companies. Ohio utility FirstEnergy is under investigation for funneling $60 million through a dark money 501(c)(4) group called Generation Now that was used for bribery. In another example, the Rule of Law Defense Fund is a social welfare group that helped organize the protest before the January 6th riots and is an arm of the Republican Attorneys General Association (RAGA).

While corporate and traditional PAC direct donations to politicians have strict limits, company payments to trade associations and 501(c)(4) social welfare nonprofits for lobbying have no restrictions. This means companies can give unlimited amounts to third-party groups that spend millions on lobbying and undisclosed grassroots activity. Thus, shareholder proposals for lobbying disclosure capture indirect spending through trade associations or social welfare groups.

The CPA-Zicklin Index found that, among companies listed in S&P 500, only 18% fully disclose their contributions to 501(c)(4) advocacy groups, only 24% fully disclose their contributions to trade associations, and only 30% fully disclose their donations to 527 political organizations. So there is a long way to go.

In the wake of January’s attack on the U.S. Capitol and the pause imposed by some companies on their political donations, prospects for a change in the status quo may be improving. In February, ICCR asked companies to consider ending political spending on elections. This proxy season, shareholders sent a clear message for more disclosure and alignment of corporate political spending and lobbying.

This post is in a series that exams the outcome of the 2021 proxy season. For a complete list of SGI resolutions from 2021, please visit this page.

Supreme Court rules on Nestlé USA, Cargill child labor case

Supreme Court rules on Nestlé USA, Cargill child labor case

Chris Cox

Today, in an 8-1 ruling, the Supreme Court issued a decision in favor of two corporations accused of links to child slavery in the Ivory Coast. The case, Nestlé v. Doe, was a lawsuit brought by six Mali citizens against the companies Nestlé USA and Cargill. The lawsuit claimed that the chocolate makers aided and abetted child slavery on African cocoa farms, reversing a ruling that allowed the claims to proceed under the Alien Tort Statute (ATS). Writing for the majority, Justice Clarence Thomas said the companies’ activities in the United States were not sufficiently related to the alleged abuses to be subject to suit under the ATS. The decision, the latest in a series of rulings, sets increasingly strict limitations on federal lawsuits based on foreign human rights abuses. Justice Samuel Alito wrote the lone dissent.

I wrote about the December 2020 oral arguments here. The decision feels like a setback, especially as we observed World Day Against Child Labor just last week (June 12th), and, yesterday, the U.S. State Department heralded the 10th anniversary of the UN Guiding Principles on Business and Human Rights (UNGPs):

These principles recognize a three-pronged approach to protecting human rights in the context of business activity: States have the duty to protect human rights; businesses have a responsibility to respect human rights; and victims affected by business-related human rights issues should have access to remedy. We commemorate the achievements made over the last decade in these areas, and take heed of the substantive work that still needs to be done toward realization of these principles.

Antony J. Blinken, Secretary of State, Press Statement

While the Supreme Court ruled in favor of Nestlé USA and Cargill, hope is not lost. The majority of justices rejected a notion of corporate immunity under the statute. The ruling continues to hold that corporations can be sued under international law for actions within their supply chain. The case will be remanded to a lower court where the six trafficked children will seek to amend their case in such a way as to satisfy today’s ruling. I join in the hopes that they have their day in court and that justice is done.

Taking “heed of the substantive work that still needs to be done,” SGI urges Nestlé and Cargill to take action to action to eliminate the grave crime of child slavery from their supply chain, and we will continue to call upon all companies with whom we engage to see and act on their responsibility for protecting and respecting human rights and providing remediation for those instances were human rights have been violated.

Pay and Wealth Disparity: Still our greatest social challenge

Pay and Wealth Disparity: Still our greatest social challenge

Chris Cox

By Frank Sherman

Sister Sue Ernster’s (Franciscan Sisters of Perpetual Adoration) proposal on racial equity & starting pay at the Walmart AGM earlier this week obtained strong shareholder support for a first-time resolution (12.5% of total shares or 27% of independent shares voted). Congratulations to Sue and the many ICCR co-filers.

I’m reminded of Father Mike Crosby’s 2015 campaign on income disparity. At that time, President Obama called the growing pay & wealth gap in our country “the greatest social challenge of our time“…. and it hasn’t gotten better since then. We didn’t get very far back then after the SEC’s sided with the companies, permitting them to omit our proposal from the proxy based on the “ordinary business” exclusion.

Starting in 2011, the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 required companies to include disclosure of the total compensation of the top 5 paid executives in their annual proxy statements. Shareholders are allowed to cast a non-binding advisory vote for or against these pay packages (“say-on-pay”). Very few companies “failed” their say-on-pay vote in recent years. A failure occurs if the company does not obtain majority support from shareholders for the executive compensation proposal.

The tide may be shifting. Twice as many say-on-pay proposals failed this year as in previous years, including some companies that had never had a failure in these resolutions. As You Sow’s Rosanna Landis Weaver does great work digging through the fine print of the “Compensation Discussion and Analysis” section of each company’s proxy statement with an annual report on the 100 Most Overpaid CEOs. A recent NEI article on CEO compensation (A Promising Start To The Challenge Of Excessive CEO Pay) notes that support for pay packages among S&P 500 firms fell to an average of 87%, down 3 percentage points from 2020 and 2019, and down 4 points from 2016 to 2018. It references a report from the Institute for Policy Studies (Pandemic Pay Plunder: Low-Wage Workers Lost Hours, Jobs, and Lives. Their Employers Bent the Rules – to Pump up CEO Paychecks) which found that 51 of the S&P 500 firms with the lowest median worker wage revised their pay rules in 2020, so that median worker pay fell 2%, while CEO pay rose—by 29%.

Investors pushed corporations to tie their pay packages to stock performance (…to better align management pay with investor returns) in the early ’90s. Little did they know that this would be used by companies to successively ratchet up CEO, and as a result, the rest of management’s, comp packages every year to a level that makes U.S. CEOs stand out on the global stage.

The Dodd–Frank Act also required companies to disclose the ratio of CEO compensation to the median compensation of their employees. The rule has only been in effect since 2017, but the SEC allows companies “substantial flexibility” in the calculation of the ratio, making it difficult for investors and society to make meaningful comparisons.

Of course, CEO’s know that their pay relative to the median pay of their workers is out of control. But even if they wanted to change this (and I’m not sure many “want” to do so), they are reluctant to be a first mover on restructuring pay because it would “negatively impact retention and make them less competitive”.

As we complete the next draft of SGI’s strategic plan and think about our engagement focus for the 2022 season (which starts this summer), I believe pay disparity has to be high on our list. I hope you concur.

Supreme Court to weigh in on Child Slavery

Supreme Court to weigh in on Child Slavery

Chris Cox

Today (December 2nd) is International Day for the Abolition of Slavery.

Yesterday, in a cruel irony, the U.S. Supreme Court heard consolidated oral arguments in Nestlé USA, Inc v. Doe I, Docket number 19-416 and Cargill, Inc v. Doe I, a consolidated case on U.S. corporations and liabilities for alleged child slave labor violations abroad.

The basic facts of what happened are beyond dispute: six Africans were trafficked out of Mali as children, where they were forced to work long hours on Ivory Coast cocoa farms and locked at night into shacks. Attorneys for the six Africans argued that the companies should have better monitored their cocoa suppliers in West Africa and have liability. The countries of the region grow about two-thirds of the world’s cocoa, and child labor is endemic.

Looking at the docket files for the case, one finds amicus briefs from Coca-Cola, Chevron, the U.S. Chamber of Commerce, and a joint filing for three trade associations (National Confectioners Association, the World Cocoa Foundation, and the European Cocoa Association), all in support of Cargill. As well, the Washington Legal Foundation and the Cato Institute filed amicus briefs in support of the corporations.

Cargill and Nestle selected a lawyer well-known to MSNBC aficionados to represent them: Neal Katyal, a former Acting Solicitor General of the United States, and the creator of an inspiring TED Talk.  Both companies have strongly worded policies against child labor and human trafficking and the like. All of the amicus briefs stated that they abhor child slavery and the corporations actively take steps to eradicate such practices among their suppliers.

The broad outline of the companies’ argument is found in the second page of Katyal and his team’s brief:

Plaintiffs’ brief confirms that all they have alleged (and can allege) is that Nestlé USA lawfully purchased some cocoa from Côte d’Ivoire and exercised some generalized supervision. The true wrongdoers are the Malian and Ivorian traffickers, farmers, and overseers who injured Plaintiffs in West Africa.

In other words, the practices of Nestlé, Cargill and, by extension, Chevron, Coca-Cola, and all multi-national corporations with dispersed supply chains are sufficient. The terms of their contracts are clear and exclude child labor, human trafficking, and all forms of modern slavery. Occasionally, they do audits of their suppliers. Isn’t that enough? How can a company be responsible for all the actions of their suppliers?

At issue, according to the briefs, is liability under the Alien Tort Statute, a part of the Judiciary Act of 1789.  It has been enshrined in U.S. law for more than 230 years. To me, the most interesting exchange during the hearing was between Justice Elena Kagan and Katyal (pages 19-21 of the transcript):

JUSTICE KAGAN: Mr. Katyal, is child slavery, not aiding and abetting it but the offense itself, is that a violation of a specific universal and obligatory norm?

KATYAL: We’re — we’re not – yes, I think we’re not challenging that here. It’s just the aiding and abetting.

JUSTICE KAGAN: Okay. So, if that’s right, could a former child slave bring a suit against an individual slaveholder under the ATS?

KATYAL: So they — if it were – if it weren’t extraterritorial and it wasn’t a corporate action, yes.

JUSTICE KAGAN: Yeah, no problem extraterritorial, no problem aiding and abetting, just a straight suit.

KATYAL: Correct.

JUSTICE KAGAN: Okay. And could the same child — former child slave in the same circumstances bring a suit against 10 slaveholders?

KATYAL: You know, if they – if they met the — you know, the requirements under the — the law, yeah, sure. I mean, if they —

JUSTICE KAGAN: Okay. So if —

KATYAL: — if it was a plausible allegation.

JUSTICE KAGAN: — if you could bring a suit against 10 slaveholders when those 10 slaveholders form a corporation, why can’t you bring a suit against the corporation?

KATYAL: Because the corporation requires an individual form of liability under a norm, a specific norm, of — of – under international law, which doesn’t exist here. I think Sosa in Footnote —

JUSTICE KAGAN: I — I — I guess what I’m asking is, like, what sense does this make? This goes back to Justice Breyer’s question. What sense does this make? You have a suit against 10 slaveholders, 10 slaveholders decide to form a corporation specifically to remove liability from themselves, and now you’re saying you can’t sue the corporation?

Justice Kagan was pointing toward an amicus brief from the Yale Law School Center for Global Legal Challenges filed in support of the six Africans. In the brief, Oona Hathaway sets forth a compelling argument that:

Slavery, forced labor, and human trafficking constitute the worst forms of human exploitation. The law of nations has long prohibited these practices in specific, universal, and obligatory terms. Indeed, these prohibitions are among the most longstanding, deeply rooted prohibitions in international human rights law. Each of these prohibitory norms of international law extends, moreover, to natural and juridical [corporations] persons alike. (p. 33)

Citizens United v FEC decided that corporations are people, when it comes to political spending, but corporations are now arguing that they are not people when it comes to child labor, human trafficking, and modern slavery.

I won’t pretend to know how this court will decide the case, but it should go without saying that aiding and abetting slavery is wrong, whether it is done by an individual or a corporation.