D.C. Circuit Rejects Conflict Mineral Suit Against Apple and Other Tech Companies

Former cobalt miners cannot sue manufacturers for acquiring rare metals in relevant markets.

Today a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal of a lawsuit filed by former cobalt miners against several tech companies for acquiring cobalt that may have been mined using forced labor. Judge Neomi Rao wrote for the panel, joined by Judges Pillard and Srinivasan.

Judge Rao's opinion in Doe v. Apple begins:

Cobalt is an essential metal for producing the lithium-ion batteries that power modern electronics. Nearly two-thirds of the world's cobalt comes from the Democratic Republic of the Congo ("DRC"), where some of the metal can be traced to informal mining by Congolese nationals digging with primitive tools in unsafe conditions. Many of these informal miners are children, pressured into work by extreme poverty.

This lawsuit seeks to impose liability on five American technology companies for "forced labor" used for informal cobalt mining in the DRC. The plaintiffs, former cobalt miners injured in mining accidents and their representatives, sued the companies under the Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"). That statute makes it unlawful to "participat[e] in a venture" that engages in forced labor. The plaintiffs allege the technology companies participated in a venture with their cobalt suppliers by purchasing the metal through the global supply chain. The district court dismissed the suit for a variety of reasons, including lack of Article III standing and failure to state a claim.

Although we conclude that the plaintiffs have standing to pursue their damages claims, they have failed to state a claim for relief. Purchasing an unspecified amount of cobalt through the global supply chain is not "participation in a venture" within the meaning of the TVPRA. We therefore affirm the district court's dismissal of the complaint under Rule 12(b)(6).

Comments

[Dr. Ed 2]

Isn't the US State Department supposed to exclude goods produced by slavery? And for all of you who want to see more electric cars, how do you like this on your conscience?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Greenies haven't had any conscience for a long long time. These are the same humanitarians who spiked trees to injure anyone using a chain saw on them.

[Nige]

The Greenies... in the State Department?

[Nige]

Sorry, no, I get you now. Greenies want less cars. Fewer cars. Way, way fewer cars. They should be rarities in cities, and workhorses in the country.

[Zarniwoop]

It’s Doe v. Apple, not Doe v. Tesla:

RAO, Circuit Judge: Cobalt is an essential metal for producing the lithium-ion batteries that power modern electronics.

As usual, Grampa Ed can’t be arsed to read the very first line of the opinion.

But I would be completely not surprised if Grampa Ed has a land line, and not cell phone with a Li-ion battery in it.

This is an issue about global markets and fungible commodities; Co atoms don’t have a bar code on them to prove point of origin.

Go back to shaking your fist at the clouds.

[Absaroka]

Lithium-ion batteries using cobalt also power(ed) Teslas and other electric vehicles. The early Tesla's at least just used a zillion common 18650 cells, which you can also use in flashlights and the like.

The past-ish tense is that I think there is a shift in progress from Li-ion chemistries that use cobalt to other chemistries, in cars/electronics/solar...I know we bought some LFP chemistry batteries for our cabin solar system.

I see differing claims about Tesla chemistries. This says it's a mix. Some sources say they are largely moving away from cobalt chemistries, others say the newest 'gigafactory' produced cells may still be cobalt based.

Given the sheer number of batteries in an EV vs a phone, I'd guess that EV's use a pretty big fraction of Li-ion batteries (but I might be wrong; there are a lot more phones than electric cars).

[ReaderY]

Tesla is a defendant, and the opinion specifically mentioned Tesla as one of the major buyers of cobalt and a key party in the alleged venture. I don’t see any problem with using Tesla rather than one of the other tech company defendants in an example.

[John F. Carr]

China, cobalt, and cocoa are too big to fail. Realpolitik it is.

[OtisAH]

Repainting Congolese forced labor into an image of random villagers with sharpened sticks and stone tools providing a chunk of the world’s supply of cobalt certainly seems consistent with Rao’s “conservative” worldview.

[Dilan Esper]

I don't think a personal attack on Rao is worthy of anything, but suffice to say, there's a colorable argument on the other side here that the way big corporations "participate in a venture" of forced labor is precisely by sourcing their products with forced labor.

[David Nieporent]

Attacks on judges rather than their arguments are bad enough, but attacking individual judges for unanimous panel decisions by ideologically disparate panels is really dumb.

[Rev. Arthur L. Kirkland]

Maybe he was focusing on Rao's claimed authorship of an imperious, humanity-deprived (but vividly Republican) opinion.

[ReaderY]

I find myself more sympathetic to the miners’ position. The plaintiffs aren’t alleging the defendants are buying cobalt on the “global market” that might have through some unknown convoluted process have originally come from DRC forced labor. They are alleging the defendants are buying from specific, named intermediary companies which in turn are buying from identified DRC companies that are directly managing and forcing the forced labor. That’s a much shorter chain than merely being a buyer on some generalized, unspecified “global market.”

I think the plaintiffs would be entitled to introduce evidence that this alleged relationship, by which everybody knows forced labor is happening and exactly who the tech companies are buying from, consists not of mere innocent buying on the global market, but that the intermediary shell companies, rather than just magically coming into being, as having an existence wholly unrelated to the defendants’ conduct, were specifically and knowingly constructed to provide a fig leaf smoke screen to attempt to shield the tech company buyers from the legal consequences of their actions. I am not convinced that the plaintiffs would be unable to show that what is going on has characteristics of a joint venture sufficient to meet the statute’s “venture” element.

Based on the opinion’s recitation of the facts, I think the plaintiffs might be able to introduce such evidence. I would not dismiss but let the parties proceed to discovery. The plaintiffs might not be able to prove their case. But I think that what they alleged could turn out to be a joint venture, depending on the evidence.

[Rev. Arthur L. Kirkland]

One more issue better Americans can address as the culture war continues to improve American society, culture, finance, and jurisprudence.

The liberal-libertarian mainstream has accomplished much in shaping our national progress for more than a half-century; I expect better Americans to accomplish at least as much during the next half-century or so.

Clingers hardest hit.

[David Nieporent]

It doesn't matter how long the chain is; buying a commodity available on the market is not being part of a "venture." There were no allegations that the intermediary companies had any connection to the tech companies beyond that of seller-buyer. Innocence vs. knowledge isn't the test. Involvement is.

[ReaderY]

Auto theft ring openly sells its stolen cars “on the global market” to a single specific fence who then openly sells “on the global market” to an auto dealer who sells the cars to the public. Auto dealer has full knowledge of what’s going on. Innocent? No venture because legally separate corporations? Car owners have no claim against the auto dealer (or the ultimate car buyers)?

[Rossami]

Distinction without a difference. There is no "generalized, unspecified global market". Buying from intermediaries who buy from suppliers is the global market.

I have a lot less sympathy than you do for the miners' legal position. If they were mistreated, they should sue the companies who actually did the mistreating in the country where the mistreatment occurred. If the local judiciary won't allow that kind of suit, organize a revolution and fix it. Stop trying to use our court system as a lottery instead of fixing your own.

[ReaderY]

The Constitution specifically permits Congress to provide alien tort causes of action, and Congress established a cause of action here. It’s the job of courts to administer what Congress did fairly. I understand you think the Framers were stupid to have allowed alien tort suits and Congress was stupid to have taken up on it. But this having been done, you’re not entitled to ignore what the Framers and Congress did based on your own policy views.

The Framers enabled Congress to enact nationalist, xenophobic policies if they want to. But they also enabled Congress to enact liberal, universalist policies if they want to.

This happens to be one of the areas where Congress’ policy orientation tilts more towards Professor Somin’s view than Donald Trump’s. It’s the job of a judge to implement it, and implement it fairly, regardless of the judge’s personal views on what the policy tilt should be.

[Nige]

Back when anti-globalisation meant objecting to corporations outasourcing factories to countries with poor to terrible working conditions, we were informed that this was how the word progressed. Turns out they were innoculating us to accept that slave labour, child labour, people trafficking and human rights abuses at a far enough remove in the chain of production was perfectly normal. Of course, Republicans are bringing back child labour in their states, so I guess it's all coming home.

[Rev. Arthur L. Kirkland]

Relax. The trajectory of American progress -- moral, legal, political, cultural, technical, societal -- is well-established (a half-century and more), admirable, and positioned to be followed for so far as can reasonable be foreseen. I doubt this is an issue we can't resolve.