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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RAMCHANDRA ADHIKARI et al.,

Plaintiffs,
v.
DAOUD & PARTNERS et al.,
Defendants.

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Civil Action No. H-09-1237

Judge Keith P. Ellison

BRIEF OF AMICI CURIAE

American Civil Liberties Union and Allard K. Lowenstein
International Human Rights Law Clinic
REBECCA L. ROBERTSON
Counsel of Record
ACLU OF TEXAS
TEXAS BAR NO. 00794542
1500 MCGOWEN, SUITE 250
HOUSTON, TEXAS 77004
T: (713) 946 8142 EXT. 116
RROBERTSON@ACLUTX.ORG

Counsel for Amici Curiae

April 5, 2013

STEVEN M. WATT (PRO HAC VICE)

AMERICAN CIVIL LIBERTIES UNION
125 BROAD ST, 17TH FLOOR
NEW YORK, NEW YORK 10004
T: (212) 519 7870
SWATT@ACLU.ORG
HOPE METCALF (PRO HAC VICE)
ALLARD K. LOWENSTEIN INTERNATIONAL
HUMAN RIGHTS LAW CLINIC
127 WALL ST
NEW HAVEN, CT 06511
T: (203) 432 9404
HOPE.METCALF@YALE.EDU

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................. ii
STATEMENT OF AMICI .................................................................................................... vi
SUMMARY OF ARGUMENT...............................................................................................1
LEGAL ARGUMENT.............................................................................................................1
I. INTERNATIONAL LAW AND PRACTICE PROHIBIT TRAFFICKING AND
FORCED LABOR

A. The International Prohibitions Against Trafficking and Forced Labor Impose Individual
Liability.......................................................................................................................3
B. The International Prohibitions Against Trafficking and Forced Labor Do Not Require
Force or Physical Coercion. ........................................................................................4
II. THE TVPA GIVES DOMESTIC EFFECT TO INTERNATIONAL LAW AND
STANDARDS ON TRAFFICKING AND FORCED LABOR
7
III. THE TVPA AND TVPRA PROVIDE FOR A COMPREHENSIVE SCHEME TO
HOLD LIABLE ALL PERSONS OR ENTITIES, THROUGH BOTH CRIMINAL
AND CIVIL REMEDIES
12
A. The TVPRAs Criminal Provisions Impose Secondary Liability to Reach Global
Trafficking and Forced Labor Networks. .................................................................12
B. The TVPRAs Civil Remedy Incorporates the Statutes Criminal Law Provisions As
Well As General Tort Principles As to Who Can be Held Liable. ...........................13
C. The TVPRA Holds Joint Employers Liable for Their Participation in Trafficking and
Forced labor Schemes. ..............................................................................................15
IV.

CONCLUSION

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TABLE OF AUTHORITIES
Cases
United States v. Dann,
652 F.3d 1160 (9th Cir. 2011) .................................................................................................................. 9
Acceptance Indem. Ins. Co. v. Maltez,
617 F. Supp. 2d 467 (S.D. Tex. 2007) .................................................................................................... 17
Adhikari v. Daoud & Partners,
697 F. Supp. 2d 674 (S.D. Tex. 2009) ...................................................................................................... 3
Astoria Fed. Sav. & Loan Assn. v. Solimino,
501 U.S 104 (1991)........................................................................................................................... 14, 17
Baker v. Stuart Broad. Co.,
560 F.2d 389 (8th Cir. 1977) .................................................................................................................. 18
Beliz v. W.H. McLeod & Sons Packing Co.,
765 F.2d 1317 (5th Cir. 1985) ................................................................................................................ 16
Boire v. Greyhound Corp.,
376 U.S. 476 (1964)................................................................................................................................ 16
Boucher v. Shaw,
572 F.3d 1087 (9th Cir. 2009) ................................................................................................................ 16
Bristol v. Board of County Comrs of County of Clear Creek,
312 F.3d 1213 (10th Cir. 2002) .............................................................................................................. 17
Castillo v. Givens, 704 F.2d 181
(5th Cir. 1983)......................................................................................................................................... 16
Doe I v. Unocal Corp.,
395 F.3d 932 (9th Cir. 2003) .................................................................................................................... 3
Doe v. Nestle,
748 F. Supp. 2d 1057 (C.D. Cal. 2010) .................................................................................................... 6
Doe v. Unocal Corp.,
963 F. Supp. 880 (C.D. Cal. 1997) ........................................................................................................... 3
Grace v. USCAR,
No. 05-72847, 2006 WL 2850357 (E.D. Mich. Oct. 4, 2006) ............................................................... 17
Hodgson v. Griffin & Brand of McAllen, Inc.,
471 F.2d 235 (5th Cir. 1973) .................................................................................................................. 16

ii

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In re World War II Era Japanese Forced Labor Litigation,

164 F. Supp. 2d 1160 (N.D. Cal. 2001) .................................................................................................... 3
Isbrandtsen Co. v. Johnson,
343 U.S. 779 (1952)................................................................................................................................ 17
Karr v. Strong Detective Agency, Inc., a Div. of Kane Services,
787 F.2d 1205 (7th Cir. 1986) ................................................................................................................ 17
Licea v. Curacao Drydock Co., Inc.,
584 F. Supp. 2d 1355 (S.D. Fla. 2008) ..................................................................................................... 3
Makousky v. Wing King Three, Inc.,
No. 6:05CV617 ORL-KRS, 2005 WL 3481538 (M.D. Fl. Dec. 20, 2005)............................................ 17
Martinez v. Calimlim,
651 F. Supp. 2d. 852 (2009) ................................................................................................................... 13
Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687 (1999).......................................................................................................................... 14, 17
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992)................................................................................................................................ 14
Prosecutor v. Krnojelac,
Case No. IT-97-25, Appeals Judgment
(Intl Crim. Trib. for the Former Yugoslavia Sept. 17, 2003) .................................................................. 6
Prosecutor v. Kunarac, Kovac & Vokovic,
Case No. IT-96-23/1-T, Appeal Judgment
(Intl Crim. Trib. for the Former Yugoslavia June 12, 2002) ................................................................... 2
Rivas v. Federacion de Associones Pecuarias de Puerto Rico,
929 F.2d 814 (1st Cir. 1991) ................................................................................................................... 17
Roe v. Bridgestone Corp.,
492 F. Supp. 2d 988 (S.D. Ind. 2007) ....................................................................................................... 6
Rutherford Food Corp. v. McComb,
331 U.S. 722 (1947)................................................................................................................................ 16
S.E.C. v. Joiner,
320 U.S. 344 (1943)................................................................................................................................ 13
Shultz v. Hinojosa,
432 F.2d 259 (5th Cir. 1970) .................................................................................................................. 16
Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984) .................................................................................................................. 3
Trevino v. Celanese Corp.,
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701 F.2d 397 (5th Cir. 1983) .................................................................................................................. 17

United States v. Bradley,
390 F.3d 145 (1st Cir. 2004) ..................................................................................................................... 9
United States v. Calimlim,
538 F.3d 706 (7th Cir. 2008) .................................................................................................................. 10
United States v. Sabhani,
539 F. Supp. 2d 617 (E.D.N.Y. 2008) .................................................................................................... 12
United States v. Smith,
198 F.3d 377 (2d Cir. 1999).................................................................................................................... 12
Velez v. Sanchez,
693 F.3d 308 (2d Cir. 2012).................................................................................................................. 2, 6

Statutes
18 U.S.C. 1589............................................................................................................................... 8, 12, 16
18 U.S.C. 1590............................................................................................................................... 8, 12, 16
18 U.S.C. 1592........................................................................................................................................... 8
22 U.S.C. 7101........................................................................................................................................... 1
22 U.S.C. 7102........................................................................................................................................... 8
28 U.S.C. 1350........................................................................................................................................... 2
National Defense Authorization Act for Fiscal Year 2013,
H.R. Res. 4310, 113th Cong., (2013)...................................................................................................... 11
Trafficking Victims Protection Reauthorization Act of 2003,
Pub. L. No. 108-193, 117 Stat. 2875 (2003)............................................................................................. 7
Trafficking Victims Protection Reauthorization Act of 2005,
Pub. L. No. 109-164, 119 Stat. 3558 (2006)............................................................................................. 7
Victims of Trafficking and Violence Protection Act of 2000,
Pub. L. No. 106-386.................................................................................................................................. 7
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub L. No. 110-457, 122 Stat. 5044 (2008).............................................................................................. 7

iv

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Other Authorities
Council of Europe, Convention on Action Against Trafficking in Human Beings,
May 16, 2005, C.E.T.S. 197 ..................................................................................................................... 4
H.R. Rep. No. 106-939 (2000).................................................................................................................. 8, 9
ILO, A Global Alliance against Forced Labor (2005) .................................................................................. 6
ILO, Human Trafficking and Forced Labour ExploitationGuidance for Legislation and Law
Enforcement (2005) .................................................................................................................................. 5
ILO No. 29 Concerning Forced or Compulsory Labor, June 28, 1930, 39 U.N.T.S. 55.............................. 5
U.N. High Comm. for Human Rights, Fact Sheet No. 14, Contemporary Forms of Slavery, July 1991..... 2
U.N. Office on Drugs and Crime, Human Trafficking ................................................................................. 5
U.S. Dept of State, Office to Monitor and Combat Trafficking in Persons,
Trafficking in Persons Report 2012 (2012) ...................................................................................... 1, 2, 6
U.S. Dept of State, Office to Monitor and Combat Trafficking in Persons,
Trafficking in Persons Report 2011 (2011) .............................................................................................. 7
United Nations Convention Against Transnational Organized Crime,
G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Nov. 15, 2000) ..................................................................... 4
United Nations Office on Drugs and Crime, Legislative Guide for the Implementation of the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized
Crime (Mar. 2003) .................................................................................................................................... 4
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing United Nations Convention Against Transnational
Organized Crime, G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49,
U.N. Doc. A/55/49 (Vol. I) (2001) .................................................................................................. passim
American Civil Liberties Union & The Allard K. Lowenstein International Human
Rights Clinic,Victims of Complacency: The Ongoing Trafficking and Abuse of
Third Country Nationals by U.S. Government Contractors (June 2012) ........................................... v, 10

Regulations
Exec. Order No. 13627, Strengthening Protections Against Trafficking in Persons in Federal
Contracts, 77 Fed. Reg. 60029 (Sept. 25, 2012) ..................................................................................... 11

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STATEMENT OF AMICI
This brief of amici curiae is respectfully submitted by the American Civil Liberties Union
(ACLU) and the Allard K. Lowenstein International Human Rights Law Clinic (Amici).
Amici are legal experts in the field of international law and human rights, with particular
expertise in the issues of trafficking and forced labor of third country nationals serving under
U.S. government contracts in Iraq and Afghanistan.

This expertise was acquired in the

preparation of a comprehensive report on these issues, Victims of Complacency: The Ongoing

Trafficking and Abuse of Third Country Nationals by U.S. Government Contractors (June 2012),
available at http://www.aclu.org/files/assets/hrp_traffickingreport_web_0.pdf, which included an
extensive literature review; in-depth research into U.S. laws relating to trafficking, forced labor
and other related abuses; and in-person interviews with government officials, journalists,
trafficking experts, contracting industry representatives and former third country national
contract workers. Amici believe this case raises important issues concerning international law
and human rights law and are particularly concerned by Defendant KBRs position that the facts
alleged by Plaintiffs do not constitute a scheme of trafficking for forced labor, which they plainly
do. Moreover, amici urge this Court to reject Defendants narrow reading of the TVPRA, which
would, as a matter of law, insulate U.S. contractors from liability for the plain violations alleged
here. Amici submit this brief to provide the Court with an additional perspective on these
important issues.1

Counsel gratefully acknowledges the assistance of Leah Zamore and Julie S. Hunter, third-year students at Yale
Law School, with the research and writing of this amicus curiae brief.

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SUMMARY OF ARGUMENT
The Trafficking Victims Protection Act of 2000 (TVPA) reflects Congress
recognitionechoed in international law and by other nations worldwidethat trafficking and
forced labor are forms of modern day slavery that demand a robust government response. The
TVPA, in combination with the Trafficking Victims Protection Reauthorization Act of 2003
(TVPRA), codifies international standards, sets forth an expansive definition of prohibited
conducted, and provides both criminal and civil remedies. Plaintiffs allegations that they were
deceived into leaving their homes, transported against their will to a war zone, and subjected to
grievous mistreatment resulting in the deaths of all but one of them, amount to a scheme, plan
or pattern of trafficking for forced labor, for which Defendant KBR may be subject to criminal
and civil liability. Defendant urges this court to narrowly interpret the TVPRA such that only
those directly involved in such schemes may be held liable. Such a narrow interpretation is
contrary to the text of the statute and to congressional intent to eradicate modern-day slavery
through a comprehensive scheme to hold liable all those who knowingly participate in trafficking
and forced labor, in whatever capacity.
LEGAL ARGUMENT
I.

INTERNATIONAL LAW AND PRACTICE PROHIBIT TRAFFICKING AND

FORCED LABOR.
As this Court has already recognized, Plaintiffs allegations of human trafficking for

forced labor constitute modern-day variants of slavery. See, e.g., TVPA, 22 U.S.C. 7101(a)
(recognizing human trafficking as a contemporary manifestation of slavery); U.S. Dept of
State, Office to Monitor and Combat Trafficking in Persons, Trafficking in Persons Report 7
(2012) [hereinafter Trafficking in Persons Report] (referring to human trafficking as modern
slavery which manifests in many guises including debt bondage, or forced labor.); Prosecutor
1

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v. Kunarac, Kovac & Vokovic, Case No. IT-96-23/1-T, Appeal Judgment, 117 (Intl Crim.
Trib. for the Former Yugoslavia June 12, 2002) (examining customary international law
prohibiting slavery and finding that the norm has evolved to encompass various contemporary
forms of slavery); U.N. High Comm. for Human Rights, Fact Sheet No. 14, Contemporary
Forms of Slavery, July 1991, available at http://www.unhcr.org/refworld/docid/4794773b0.html
([t]he word slavery today covers a variety of human rights violations. . .). The modern trade
in human beings has developed from state-sanctioned slavery into sophisticated global networks
involving multiple private actors, often under the guise of legitimate business.

See, e.g.,

Trafficking in Persons Report 11, 36 (2012) (providing examples of forced labor in various
nations and industries, with case study of New Zealand fishing industry).
As the flow and pattern of human bondage have shifted, so has the law. A number of
treaties and other international instruments specifically target trafficking and forced labor. See,
e.g., United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing United Nations Convention Against Transnational
Organized Crime, G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N.
Doc. A/55/49 (Vol. I) (2001) (entered into force Dec. 25, 2003) [hereinafter U.N. Trafficking
Protocol] (identifying slavery or practices similar to slavery as exploitative purposes of
trafficking).
U.S. courts, including this one, have repeatedly recognized the international prohibitions
against trafficking and forced labor, which have been held to be cognizable under the Alien Tort
Statute, 28 U.S.C. 1350 [hereinafter ATS]. See, e.g., Velez v. Sanchez, 693 F.3d 308, 319
(2d Cir. 2012) (The international prohibition against slavery has evolved to encompass more
modern variants such as forced labor and servitude.); Doe I v. Unocal Corp., 395 F.3d 932, 945

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(9th Cir. 2003) (holding that forced labor is so widely condemned that it has achieved the status
of a jus cogens violation); Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674, 688 (S.D. Tex.
2009) (the trafficking and forced labor alleged . . . qualify as universal international norms
under Sosa, such that they are actionable under ATS); Licea v. Curacao Drydock Co., Inc., 584
F. Supp. 2d 1355 (S.D. Fla. 2008) (finding that alleged forced labor and human trafficking of
plaintiff constituted violations of international law); In re World War II Era Japanese Forced
Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) (concluding that forced labor
violates the law of nations); Doe v. Unocal Corp., 963 F. Supp. 880, 892 (C.D. Cal. 1997)
(finding allegations that defendants participated and benefited from forced labor sufficient to
establish jurisdiction under the ATS).
A. The International Prohibitions Against Trafficking and Forced Labor Impose
Individual Liability.
Slavery in all its forms, including trafficking and forced labor, is one of a handful of
international law violations that do not require state action for liability to attach and to which
the law of nations attributes individual liability. Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 79495 (D.C. Cir. 1984) (Edwards, J., concurring); see also Doe I v. Unocal Corp., 395
F.3d 932, 947 (9th Cir. 2003) (stating that forced labor is a modern variant of slavery that, like
traditional variants of slave trading, does not require state action to give rise to liability under
the ATS). No international legal instrument limits, or purports to limit, these norms to any
particular class of perpetrator. The U.N. Trafficking Protocol, a component part of the U.N.
Convention Against Transnational Organized Crime, extends to offences that are transnational
in nature and involve an organized criminal group, U.N. Trafficking Protocol art. 4, including
commercial carriers and companies that may be involved in transnational trafficking. Id. at art.

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11.2 See also Council of Europe, Convention on Action Against Trafficking in Human Beings,
May 16, 2005, C.E.T.S. 197 (explicitly referring to corporate liability for human trafficking).
B. The International Prohibitions Against Trafficking and Forced Labor Do Not
Require Force or Physical Coercion.
The most recent effort to combat trafficking and forced labor internationally, the U.N.
Trafficking Protocol, establishes a broad and authoritative definition of human traffickingone
that encompasses Plaintiffs claims of trafficking specifically for purposes of forced labor. The
Protocol, ratified by the United States on November 3, 2005, defines trafficking as:
the recruitment, transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the consent of a person
having control over other persons, for the purpose of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services, slavery or practices similar
to slavery, servitude or the removal of organs.
U.N. Trafficking Protocol art. 3(a).3
The U.N. Office on Drugs and Crime, which oversees Member State compliance with the
Protocol, concludes from this language that the crime of trafficking requires that the victim be
recruited, transferred, harbored, or received for an exploitative purposefor example, forced

2

Article 10 (1) of the U.N. Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc.
A/RES/55/25 art. 10(1) (Nov. 15, 2000), discusses the liability of legal persons, noting that [s]ubject to the legal
principles of the State Party, the liability of legal persons may be criminal, civil or administrative. Id.

While the U.N. Trafficking Protocol does not define forced labor, it draws upon and preserves prior definitions of
the practice. The Legislative Guidelines for the Protocol written by the U.N. Centre for Organized Crime state that:
The basic principle established is that any rights, obligations or responsibilities which applied to a
State Party prior to the Protocol are maintained and not affected by the Protocol. The Protocol
does not narrow or diminish rights, obligations or responsibilities, and only adds to them to the
extent that is provided for in the text.
See United Nations Office on Drugs and Crime, Legislative Guide for the Implementation of the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime 11 (Mar. 2003).

Case 4:09-cv-01237 Document 532

labor.4

See

U.N.

Office

on

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Drugs

and

Crime,

Human

Trafficking,

http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html.

The

Protocol recognizes that overt forms of coercion or force are not the only means by which
traffickers bring victims into, or maintain victims in, conditions of servitude or exploitation, and
emphasizes subtle tactics, such as deception or abuse of power or a position of vulnerability,
commonly used by traffickers. U.N. Trafficking Protocol art. 3(a).
Forced labor is also barred in all its forms. A key treaty defines forced labor broadly as
all work or service which is exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily. International Labor Organization
(ILO) Convention No. 29 Concerning Forced or Compulsory Labor art. 2, June 28, 1930, 39
U.N.T.S. 55 (entered into force May 1, 1932) [hereinafter Convention 29]. Forced labor for the
benefit of private individuals, companies or associations is also prohibited. Id. at art. 4.
A perpetrators conduct need not involve physical force or coercion to constitute forced
labor. According to the ILO, any of the following six acts indicate the existence of a forced
labor situation: (1) physical or sexual violence, or threat of violence; (2) restriction of movement
of the worker; (3) debt bondage or bonded labor, including where the debt is incurred during the
process of recruitment or transportation; (4) withholding wages or refusing to pay the worker; (5)
retention of passports and identity documents; or (6) threat of denunciation to the authorities.
See ILO, Human Trafficking and Forced Labour ExploitationGuidance for Legislation and
Law Enforcement 1920 (2005), available at http://www.ilo.org/wcmsp5/groups/public/--
4

Pursuant to Article 3 of the Protocol, there are three distinct elements of the crime of human trafficking: (1) the act
of trafficking, which includes recruitment, transportation, harboring, or receipt of persons; (2) the means of
trafficking, including the threat or use of force, coercion, abduction, fraud, deception, abuse of power or of a
position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person; and (3) the purpose of trafficking, which encompasses sexual exploitation,
forced labor or services, slavery or slavery-like practices, servitude, or organ removal. U.N. Trafficking Protocol art.
3(a).

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ed_norm/---declaration/documents/publication/wcms_081999.pdf.

In

addition,

the

ILO

considers the following to be indicators of forced labor: deception or false promises about types
and terms of work; deprivation of food, shelter, or other necessities; removal of rights or
privileges; dismissal from current employment or exclusion from future employment; financial
penalties; induced indebtedness; and psychological compulsion, including in the form of an order
to work backed up by a credible threat of penalty for non-compliance. ILO, A Global Alliance
against

Forced

Labor

(2005),

http://www.ilo.org/public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf.

available

at

Labor can also be

forced if it occurs within a climate of fear in which consent is impossible, even if the victim
is not threatened directly with any penalty.

Prosecutor v. Krnojelac, Case No. IT-97-25,

Appeals Judgment, 194 (Intl Crim. Trib. for the Former Yugoslavia Sept. 17, 2003).
Although the United States has not yet ratified Convention 29, U.S. courts have
repeatedly applied the broad definition of forced labor the Convention and other ILO instruments
adopt in ATS cases alleging forced labor. See, e.g., Velez v. Sanchez, 693 F.3d 308, 324 (2d Cir.
2012) (incorporating ILO standards on forced labor); Doe v. Nestle, 748 F. Supp. 2d 1057 (C.D.
Cal. 2010) (explicitly adopting the definition of forced labor supplied by ILO Convention 29);
Roe v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007) (citing ILO reports on forced
labor). The U.S. State Department also defines forced labor broadly, listing a number of indicia
of the practice, ranging from confiscation of passports to employer control of housing to
exploitative workplace conditions and denial of medical care. Trafficking in Persons Report at
17.

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In sum, under international standardswhich have been incorporated by U.S. courts and
the Executive Branchthe conduct prohibited by trafficking and forced labor reaches the subtle
tactics often employed by traffickers to exploit their victims.
II.

THE TVPA GIVES DOMESTIC EFFECT TO INTERNATIONAL LAW AND

STANDARDS ON TRAFFICKING AND FORCED LABOR.
The centerpiece of the United States efforts to combat human trafficking is the TVPA,

which was signed into law on October 28, 2000 and reauthorized and expanded in three
subsequent reauthorizations.5

The TVPA adopts substantially similar standards for the

elimination of human trafficking as the U.N. Trafficking Protocol.6

Indeed, the TVPA is

essentially an implementation of article 5 of the Protocol, which requires states to adopt specific
anti-trafficking legislation making the act of trafficking an offense.

See U.N. Trafficking

Protocol art. 5.7

5

The TVPA was introduced as part of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No.
106-386, and was amended first by the Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No.
108-193, 117 Stat. 2875 (2003) [hereinafter TVPRA]; then by the Trafficking Victims Protection Reauthorization
Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2006) [hereinafter TVPRA 2005]; and finally by the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L. No. 110-457, 122 Stat. 5044 (2008)
[hereinafter TVPRA 2008]. See Pub. L. 110-457, Title II, 223(a).

See U.S. Dept of State, Office to Monitor and Combat Trafficking in Persons, Trafficking in Persons Report 2011,
at 16 (2011) (The standards in the TVPA [] are largely consistent with the framework for addressing trafficking in
persons as set forth in the [U.N. Trafficking Protocol], both in form and in content. Both define trafficking in
persons as a set of acts, means and purposes. Both emphasize the use of force, fraud or coercion to obtain the
services of another person. And both acknowledge that movement is not required, framing the crime around the
extreme exploitation that characterizes this form of abuse.).

Art. 5 provides:
(1) Each State party shall adopt such legislative and other measures as may be necessary to
establish as criminal offenses the conduct set forth in article 3 of this Protocol when
committed intentionally.
(2) Each State Party shall also adopt such legislative and other measures as may be necessary to
establish as criminal offenses: (a) Subject to the basic concepts of the legal system, attempting
to commit an offense established in accordance with paragraph 1 of this article; (b)
Participating as an accomplice in an offense established in accordance with paragraph 1 of
this article; and (c) Organizing or directing other persons to commit an offense established in
accordance with paragraph 1 of this article.
U.N. Trafficking Protocol art. 5, G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc.
A/55/49 (Vol. I) (2001) (entered into force Dec. 25, 2003).

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Consistent with the standards set forth in the Protocol, the TVPA imposes liability on
[w]hoever knowingly recruits, harbors, transports, provides, or obtains by any means, any
person for labor or services in violation of this chapter [Chapter 77]. 18 U.S.C. 1590. And,
like the U.N. Trafficking Protocol, the TVPA recognizes that nonviolent forms of coercion can
be a crucial element in both trafficking and forced labor schemes. See 22 U.S.C. 7102(2), (5)
(defining coercion and involuntary servitude for trafficking provisions); 18 U.S.C. 1589,
1590. The statutes definition of coercion incorporates a very broad range of behavior, including
behavior of a non-physical nature, namely: [a]ny scheme, plan, or pattern intended to cause a
person to believe that failure to perform an act would result in serious harm to or physical
restraint against any person, as well as [t]he abuse or threatened abuse of law or legal process.
22 U.S.C. 7102(2); 18 U.S.C. 1592.
The TVPAs legislative conference report demonstrates that Congress included the above
provisions to address the increasingly subtle methods that traffickers use to place their
victims in modern-day slavery. H.R. Rep. No. 106-939, at 101 (2000). Such subtle methods
include those where traffickers threaten harm to third persons, restrain their victims without
physical violence or injury, or threaten dire consequences by means other than overt violence.
Id. (emphases added). Congress intended the term serious harm to encompass a broad array
of harms, including both physical and nonphysical, in order to help prosecutors prove forcedlabor violations in the absence of physical harm or threats of force against victims; as well as
in cases where, in addition to direct threats, traffickers employ a scheme, plan, or pattern
amounting to a subtler, but no less effective, form of coercion. Id. For example, a scheme,
plan, or pattern intended to cause a belief of serious harm may refer to intentionally causing the
victim to believe that [his or her] family will face harms such as banishment, starvation, or

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bankruptcy in their home countrythus, a victim can be coerced into a situation of forced labor
out of fear for his or her family members back home. Id.
Several circuit courts have found that situations involving exploitation and non-physical
coercion satisfy the trafficking and forced labor definitions under the TVPA. In United States v.
Dann, the Ninth Circuit ruled that severe financial coercion is sufficient to meet the serious
harm requirement under 1589. United States v. Dann, 652 F.3d 1160, 116970 (9th Cir.
2011). In upholding Danns conviction of forced labor under 1589, the Ninth Circuit held that
Dann threatened victim Pea Canal with serious financial harm and that for an immigrant
without access to a bank account and not a dollar to her name, a juror could conclude that the
failure to pay herand thus the lack of money to leave or livewas sufficiently serious to
compel Pea Canal to continue working.8 Id. at 1171.
In United States v. Bradley, laborers recruited to work on a tree farm in New Hampshire
were paid less than promised and forced to work in substandard conditions. United States v.
Bradley, 390 F.3d 145, 148 (1st Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005).9 A
federal court found the defendants guilty under the TVPAs forced-labor provision. Id. at 149
50. On appeal, the First Circuit rejected the defendants argument that forced labor required

The defendant in the case, Mabelle de la Rosa Dann, had kept the passport of her Peruvian live-in nanny and
housekeeper, Zoraida Pea Canal, forbade her from speaking to anyone outside the home, refused to pay her wages
for two years, and continually threatened to send her back to Peru. Eventually, Dann told Pea Canal that she owed
Dann $8,000 in expenses and asked her to sign a false statement that she had been paid minimum wage. United
States v. Dann, 652 F.3d 1160, 116970 (9th Cir. 2011).

Plaintiffs in the case, laborers from Jamaica, were promised wages of $15-20 an hour in addition to free lodging.
Instead, they received only $7 an hour, worked unconscionably long hours, and were charged rent for their lodging,
which consisted of a dilapidated shack with no running water. When one of the workers complained to his employer,
he was told that he only needed to stay and work long enough to repay $1,000 that the employer allegedly spent on
his plane ticket. United States v. Bradley, 390 F.3d 145, 149150 (1st Cir. 2004), vacated on other grounds, 545
U.S. 1101 (2005).

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evidence of physical force, reasoning that the TVPA was intended to encompass subtle
psychological methods of coercion.10 Id. at 150.
In United States v. Calimlim,11 the Seventh Circuit clarified what constitutes a threat for
purposes of coercion under the TVPRA. 538 F.3d 706 (7th Cir. 2008). In upholding the
defendants conviction, the court noted that:
the Calimlims intentionally manipulated the situation so that Martinez would feel
compelled to remain. They kept her passport [] and [t]heir vague warnings that
someone might report Martinez and their false statements that they were the only
ones who lawfully could employ her could reasonably be viewed as a scheme to
make her believe that she or her family would be harmed if she tried to leave.
Id. at 713.
The TVPA also declares that a traffickers forceful, deceptive, or coercive conduct
renders immaterial any consent the trafficked individual may have given initially to the work
situation. This is an important distinction, as many victims of trafficking and forced labor are
not physically coerced or threatened into situations of trafficking or forced labor, but drawn into
them under false pretenses.12 Congress and the Executive Branch have recently identified this
aspect of trafficking for forced labor schemes as one of particular concern in the U.S.
government contracting process. A recent Executive Order, Strengthening Protections Against

10

The court also upheld the constitutionality of jury instructions that emphasized the victims special
vulnerabilities and the power imbalances between the defendants and the victims as relevant factors in determining
whether the victims could have felt compelled to work by the defendants conduct. Finally, the First Circuit found
that the fact that the workers may have had the opportunity to flee was not determinative of the question of forced
labor insofar as the workers reasonably believed that they could not in fact leave. 390 F.3d at 150.

11

The case involved the forced labor of a live-in maid who willingly entered the United States but whose passport
was confiscated by the defendants, who was made to work from 6:00 a.m. to 10:00 p.m. daily, who was never
directly remunerated (the family instead sent paltry and insufficient compensation directly to the womans family in
the Philippines) and whose movement outside of the home was highly regulated. United States v. Calimlim, 538
F.3d 706, 708709 (7th Cir. 2008).

12

For more information, see, e.g., American Civil Liberties Union & The Allard K. Lowenstein International
Human Rights Clinic, The Recruiting Process 2123, in Victims of Complacency: The Ongoing Trafficking and
Abuse of Third Country Nationals by U.S. Government Contractors (June 2012), available at
http://www.aclu.org/files/assets/hrp_traffickingreport_web_0.pdf.

10

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Trafficking in Persons in Federal Contracts, reaffirms the governments zero-tolerance policy

against all forms of trafficking and forced labor by U.S. contractors and orders the Federal
Acquisition Registry (FAR) to strengthen agency contracting requirements to better prevent and
deter trafficking of workers serving under U.S. government contracts. See Exec. Order No.
13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, 77 Fed.
Reg. 60029 (Sept. 25, 2012).

Specifically, the Order reaffirms that contractors and sub-

contractors are prohibited from trafficking-related activities such as confiscating passports,

charging recruitment fees, and using misleading or fraudulent recruitment practices during the
recruitment of employees. Id. The Ending Trafficking in Government Contracting Act, passed
on January 3, 2013, likewise strengthens compliance and monitoring requirements and highlights
a broad array of barred conduct by contractors and sub-contractors that directly support or
advance trafficking in persons, including destroying, concealing, removing, confiscating, or
otherwise denying access by an employee to employees identity or immigration documents,
failing to provide return transportation or pay for return transportation costs to an employee
from a country outside the United States to the country from which the employee was recruited
, [s]oliciting a person for the purpose of employment, or offering employment, by means of
materially false or fraudulent pretenses, representations or promises regarding that employment,
charging recruited employees unreasonable placement or recruitment fees, and providing or
arranging housing that fails to meet the host country housing and safety standards. National
Defense Authorization Act for Fiscal Year 2013, H.R. Res. 4310, 113th Cong., 1702 (2013)
(enacted).

11

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III.

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THE TVPA AND TVPRA PROVIDE FOR A COMPREHENSIVE SCHEME TO

HOLD LIABLE ALL PERSONS OR ENTITIES, THROUGH BOTH CRIMINAL
AND CIVIL REMEDIES.
Plaintiffs allege that Defendants KBR and Daoud were involved in a scheme to traffic

them to Iraq for purposes of forced labor. Plaintiffs allegations plainly rise to the level of such a
scheme, plan or pattern, and Defendants may be found both criminally and civilly liable for
their unlawful conduct under the TVPRA.
A. The TVPRAs Criminal Provisions Impose Secondary Liability to Reach Global
Trafficking and Forced Labor Networks.
The TVPAs criminal provisions, Sections 1589 (prohibition of forced labor) and 1590
(prohibition of trafficking with respect to forced labor), were enacted on the understanding that
traffickers do not operate in isolation but rely on a network of actors to carry out their unlawful
ends. To address this reality and to ensure that all those who knowingly participate in or
contribute to a trafficking for forced labor scheme are subject to punishment, Sections 1589 and
1590 hold criminally responsible a broad array of actors. In relevant part, Section 1589 holds
responsible whoever knowingly provides or obtains the labor or services of a person by means
of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not
perform such labor or services, that person or another person would suffer serious harm or
physical restraint 18 U.S.C. 1589 (a)(4).13 Section 1590 is equally encompassing, and
extends criminal liability to [w]hoever knowingly recruits, harbors, transports, provides or
obtains by any means, any person for labor or services in violation of this chapter 18 U.S.C.
1590(a) (emphasis added).

13

See, e.g., United States v. Sabhani, 539 F. Supp. 2d 617, 632 (E.D.N.Y. 2008) (upholding conviction under 18
U.S.C. 1589 where defendants actions demonstrate that he joined and shared in the underlying criminal
endeavor and that his efforts contributed to its success.) (quoting United States v. Smith, 198 F.3d 377, 383 (2d
Cir. 1999)), affd by United States v Sabhani, 599 F.3d 215 (2d Cir. 2010).

12

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B. The TVPRAs Civil Remedy Incorporates the Statutes Criminal Law Provisions
As Well As General Tort Principles As to Who Can be Held Liable.
Like the criminal provisions, the TVPRAs civil remedy was enacted against a
background understanding that trafficking involves a network of actors, each of whom may be
held liable for forced labor and trafficking. Both the text of Section 1595 and the overall
structure and purpose of the TVPRA and TVPA confirm that Congress intended to extend tort
liability to all those who knowingly participate, either directly or indirectly, in trafficking and
forced labor schemes.
Textually, Section 1595 incorporates Sections 1589 and 1590 by reference: [a]n
individual who is a victim of a violation of 1589, 1590 or 1591 may bring a civil action against
the perpetrator in an appropriate district court of the United States and may recover damages and
reasonable attorney fees. 18 U.S.C 1595. This makes clear that the laws civil remedy must
be interpreted against the backdrop of its criminal sections. Thus anyone who violates the
criminal provisions of the TVPA may also be held liable as a perpetrator in a civil suit under
Section 1595 by the victims. See Martinez v. Calimlim, 651 F. Supp. 2d. 852, 865 (2009). The
overall structure and purpose of the TVPRA additionally indicates that Congress intended for the
civil remedy to extend also to those who are indirectly responsible for violating the statutes
criminal provisions.
To understand the full scope of the TVPRAs civil remedy provision, the text must be
examined in the light of the statutes overarching purpose and its context. See, e.g., S.E.C. v.
Joiner, 320 U.S. 344, 35051 (1943) (courts will construe the details of an act in conformity
with its dominating general purpose, will read the text in the light of context and will interpret
the text so far as the meaning of the words fairly permits so as to carry out in particular cases the
generally expressed legislative policy ); see also, e.g., Morales v. Trans World Airlines, Inc.,
13

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504 U.S. 374, 383 (1992) (determining congressional intent by reference to the language of the
provision at issue, as well as the overall structure and purpose of the statute). In discerning
Congressional intent from the TVPRAs text, dominating general purpose and context, courts
should also presume that Congress legislated in light of the background [principles] of tort
liability when it created this new tort action. See, e.g., Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 709 (1999) (citations omitted); see generally, e.g., Astoria Fed.
Sav. & Loan Assn. v. Solimino, 501 U.S 104, 108 (1991) (Congress is understood to legislate
against a background of common-law principles).
Applying this analytic methodology to the TVPRA, it is plain that Congress intended to
include within the scope of the statutes civil remedy all possible defendants who knowingly
participate in any scheme, plan, or pattern of trafficking or forced labor. First, the explicit
incorporation of the statutes criminal provisions into Section 1595 reflects this congressional
purpose and Congresss desire to include within its scope all persons or entities that engage in a
concerted effort to subject anyone to forced labor and trafficking. Moreover, given both the
context of the TVPRA and the presumption that Congress legislates against a background of
traditional common-law tort principles, the civil remedy is clearly intended to impose liability
not only on the direct actors of forced labor and trafficking but as well on those who knowingly
but indirectly support or participate in such schemes.
Various provisions of the TVPA support this conclusion. Section 102, the statutes
purposes and findings section, for example, indicates that Congress sought to establish a
comprehensive framework for the worldwide eradication of forced labor and trafficking through
effective criminal punishment and deterrence of those persons or entities involved in such
activities, regardless of the nature of such involvement. Congress thus recognized that, in

14

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carrying out their plans, traffickers require the concerted participation of many actors. Section
102(14) accordingly notes that [e]xisting legislation and law enforcement in the United States
and other countries are inadequate to deter trafficking and bring traffickers to justice and
acknowledges the need for criminal prosecutions of all persons or entities involvedin whatever
capacityin the planning and implementation of forced labor and trafficking schemes.
Congresss purpose is clear: to enable victims of such schemes to seek civil redress against those
exact same persons. If such indirect forms of liability are not also recognized under Section
1595, congressional intent to eradicate forced labor and trafficking through a comprehensive
legislative framework affording victims redress against all those persons and entities responsible
for these acts will be undermined. Likewise, properly construed, the civil cause of action created
by Section 1595 incorporates traditional principles governing tort liability, and thus extends its
reach to all defendants directly or indirectly involved in trafficking and forced labor schemes. A
contrary interpretation would lead to an absurd result, whereby civil liability cannot attach to
conduct that is clearly criminal.
C. The TVPRA Holds Joint Employers Liable for Their Participation in
Trafficking and Forced labor Schemes.
The foregoing demonstrates that, in enacting Section 1595, Congress imposed few
restrictions on who may be found liable for forced labor or trafficking. The text of the civil
remedy provision, read in light of the overall structure and dominating general purpose of the
TVPRA and TVPA, confirms this conclusion. For these reasons, Section 1595 should be
construed to encompass joint employers who knowingly engage in a scheme of trafficking for
forced labor.
First, the text of the TVPRA makes this plain. That Congress intended to include a civil
remedy for forced labor and trafficking arising out of a wide range of relationships is evident
15

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from the language of Section 1595, which is not limited to mere employment.14 Rather, through
its explicit incorporation of the statutes criminal provisions, Congress extends civil liability to
[w]hoever knowingly . . . obtains the labor or services of a person by means of any scheme,
plan, or pattern . . . . Thus, Section 1595 is sufficiently broad in scope to encompass those
persons and entities, like Defendant KBR, who knowingly participate in a scheme, plan or
pattern of trafficking for forced labor.
Second, as discerned from the overarching purpose and structure of the TVPA and
TVPRA, congressional intent in enacting Section 1595 supports a finding that joint employers
may be subject to liability under this provision. As discussed, the TVPA and TVPRA were
enacted to protect not only employees, but anyone who provides labor or services from being
subjected to trafficking and forced labor. 18 U.S.C. 1589 (a) (4) & 18 U.S.C. 1590(a). The
statutes are more broadly aimed at protecting from trafficking and forced labor anyone in any
context, including the labor or services market. Thus, like the FLSA, the TVPRA must be
given an expansive interpretation in order to effectuate [its] broad remedial purposes. See
Boucher v. Shaw, 572 F.3d 1087, 1090 (9th Cir. 2009); see generally Castillo v. Givens, 704
F.2d 181, 188 (5th Cir. 1983).15

14

The failure of Section 1595 to reference a relationship of employment is not fatal to a determination that a person
or entity is a joint employer. Whether a party is a joint employer is a question of fact that depends not on the form
of the relationship but on the economic reality. Hodgson v. Griffin & Brand of McAllen, Inc. 471 F.2d 235, 237
(5th Cir. 1973) (quoting Shultz v. Hinojosa, 432 F.2d 259, 264 (5th Cir. 1970) (determining whether a company
might be a joint employer for purposes of the Fair Labor Standards Act of 1938, 1 et seq., 29 U.S.C.A. 201 et
seq.). In the inquiry, what matters is whether the work done, in its essence, follows the usual path of an employee
Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947). In this analysis, courts consider a number of
factors including, the broader purposes of the statute, see, e.g., Castillo v. Givens, 704 F.2d 181, 188 (5th Cir. 1983);
the degree of control exercised by the potential joint employer, see, e.g., Beliz v. W.H. McLeod & Sons Packing Co.,
765 F.2d 1317, 1322 (5th Cir. 1985); whether the employment takes place on the prospective employers premises,
see, e.g., id. at 1317; and whether the company has the power to hire, fire, or modify employment conditions, see,
e.g., id. at 1322.

15

Other statutes where courts have determined the existence of a joint employer-employee relationship, absent an
explicit statutory or regulatory mandate to do so, are broadly aimed at providing a remedy to employees from
abusive workplace situations. See, e.g., Boire v. Greyhound Corp. 376 U.S. 476, 481 (1964) (National Labor

16

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Absent an explicit exclusion of joint employers from Section 1595, this Court should also
presume that joint employers may be found liable when they violate its provisions. See Astoria
Federal Savings & Loan Assn, 501 U.S. 104, 108 (1998) (where a common law principle is
well established, . . . the courts may take it as a given that Congress has legislated with an
expectation that the principle will apply except when a statutory purpose to the contrary is
evident. (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779,783 (1952))). See also Monterey v.
Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999). Joint employer liability forms
part of the law of agency, and is a common law doctrine that has long been recognized and
applied by courts absent a congressional or regulatory mandate to do so. See, e.g., Grace v.
USCAR, No. 05-72847, 2006 WL 2850357, at n.9 (E.D. Mich. Oct. 4, 2006) affd in part, revd
in part, 521 F.3d 655 (6th Cir. 2008) (explaining that the doctrine of joint employment from
agency law is a separate and distinct concept from the regulatory use of the term joint
employment discussed in conjunction with Plaintiffs FMLA claims).16 Whether joint
employers may be found liable under the TVPRA is a question of Congressional intent. Cf.
Karr, 787 F.2d at 1207 ( we need to give [joint employer doctrine] an expansive

Relations Act); Makousky v. Wing King Three, Inc., No. 6:05CV617 ORL-KRS, 2005 WL 3481538, at *3 (M.D. Fl.
Dec. 20, 2005) (Pregnancy Discrimination Act); Rivas v. Federacion de Associones Pecuarias de Puerto Rico, 929
F.2d 814, 81920 (1st Cir. 1991) (Age Discrimination in Employment Act); Bristol v. Board of County Comrs of
County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002) (Americans with Disabilities Act); Trevino v.
Celanese Corp., 701 F.2d 397, 40304 (5th Cir. 1983) (Title VII of the Civil Rights Act (employment
discrimination provisions)).
16

See also Karr v. Strong Detective Agency, Inc., a Div. of Kane Services, 787 F.2d 1205, 1207 (7th Cir. 1986)
(Because we deal with a statutory construction of the FLSA, our determination of [defendants ]status is not limited
by the previous common law notion of joint employer); Acceptance Indem. Ins. Co. v. Maltez, 617 F. Supp. 2d
467, 475 (S.D. Tex. 2007) (Texas courts apply the common law right of control test to determine whether two
nominally distinct entities are joint employers).

17

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interpretation in order to effectuate Congress remedial intent in enacting the FLSA).17 As

explained above, the text, purpose and context of the TVPRA demonstrate congressional intent
to hold all participants in trafficking and forced labor schemes liable through criminal and civil
remediesincluding joint employers.
IV.

CONCLUSION

For the reasons stated, the circumstances surrounding Plaintiffs recruitment in Nepal and
their subsequent transport to Jordan and Iraq amount to a scheme of trafficking for forced labor
prohibited under international and U.S. law. Defendant KBRs knowing participation in this
scheme gives rise to civil liability under Section 1595 of the TVPA. At the very least, this Court
should decline KBRs invitation to hold that, as a matter of law, the conduct alleged is
insufficient to amount to forced labor and trafficking, and instead find triable issues of material
fact in these allegations. For this Court to accept the arguments advanced by KBR would mean
that no entity in KBRs position could ever be legally liable for trafficking or forced labor under
the TVPRA. This would be an erroneous reading of the statute, and a significant impediment to
congressional efforts to eradicate the scourge of trafficking and forced labor from the
government contracting process.

17

See also Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th Cir. 1977) (finding joint employer liable under Title
VII of the Civil Rights Act of 1964 by according the Act a liberal construction in order to carry out the purposes of
Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination.)

18

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RAMCHANDRA ADHIKARI et al.,

Plaintiffs,
v.
DAOUD & PARTNERS et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. H-09-1237

Judge Keith P. Ellison

ORDER
The Court orders the following:
It is hereby ORDERED that American Civil Liberties Union (ACLU) and Allard
K. Lowenstein International Human Rights Law Clinics Motion for Leave to File Brief
as Amicus Curiae is GRANTED.
ENTERED, this ___ day of _________, 2013.
______________________________
The Honorable Keith P. Ellison
United States District Judge