Civil Litigation on Behalf of Victims of Human Trafficking

Civil Litigation on Behalf of Victims
of Human Trafficking
Kathleen Kim
Associate Professor
Loyola Law School
kathleen.kim@lls.edu
Charles Song
Pro Bono Manager
Howrey, LLP
SongC@howrey.com
Dan Werner
Deputy Director, IJP
Southern Poverty Law Center
daniel.werner@splcenter.org
Civil Human Trafficking Cases:
General Reflections on Litigated Cases
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How many cases?
Where have cases been litigated?
What types of industries?
Who are the plaintiffs?
Who are the defendants?
How much $$ have clients received?
The Anatomy of a Civil Trafficking Case
What to consider before taking a
case
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Your resources
Client’s safety
Psychological, social, economic and
legal stability of client
Defendant’s location and assets
Impact of and on a criminal
investigation/prosecution
Other civil litigation pros/cons
Do No Harm
Excellent representation requires:
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Cultural competence
Therapeutic lawyering
Understanding and collaborating with
your client, who is an equal partner in
the process
Your Client Wants to Move Forward
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Identify your allies
Determine whether your client
applied for and received a T or U
visa
Determine whether there is an
ongoing criminal case and at what
stage it is
Basic Procedure:
Parties, Timing, Venue
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More than one plaintiff?
More than one defendant?
When to file?
Where to file?
Basic Procedure:
Impact of a Criminal Prosecution
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A concluded criminal case may help
a civil lawsuit:
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Judicial/collateral estoppel
Evidence
Other benefits: client’s safety,
restitution
An ongoing criminal prosecution
may complicate a civil lawsuit:
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The “stay”
Basic Procedure:
Protective Mechanisms
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Use pseudonyms in the complaint to
protect the identity of the trafficked
client.
Seek a temporary restraining order
and/or preliminary injunction to prevent
the defendant from contacting your client.
Motion for protective orders to prevent
the defendant’s discovery of your client’s
identification information.
Basic Procedure:
Final Thoughts
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Defense tactics
Client’s credibility
Aggressive discovery
Settlement negotiations
Calculating damages
Causes of Action
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Trafficking Victims Protection Reauthorization
Act of 2003
Racketeer Influenced and Corrupt Organizations
Act
Thirteenth Amendment and Involuntary
Servitude
Alien Tort Claims Act
Title VII
Sec. 1981
Sec. 1985(3)
Fair Labor Standards Act
Migrant and Seasonal Agricultural Worker
Protection Act
State torts and contract claims
State labor codes and other statutes
Causes of Action:
TVPRA of 2003, 18 U.S.C. § 1595
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Provides a private right of action for
damages and attorneys’ fees for
violations of:
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18 U.S.C. § 1589: Forced labor
 obtaining labor or services by (1) threats of
serious harm to, or physical restraint against
victim or another person; (2) scheme, plan,
etc. causing victim to believe she’d suffer
serious harm or physical restraint if
labor/services not performed; (3) abuse or
threatened abuse of law or the legal process.
Causes of Action:
TVPRA of 2003, 18 U.S.C. § 1595
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18 U.S.C § 1590: Trafficking with
respect to servitude
“Whoever knowingly recruits, harbors,
transports, provides, or obtains by any
means, any person for labor or services in
violation of this chapter…”
 “…this chapter” is Chapter 77 of the U.S.
criminal code, which includes all peonage,
involuntary servitude, and forced labor
provisions.
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Causes of Action
TVPRA of 2003, 18 U.S.C. § 1595
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18 U.S.C § 1591: Sex trafficking
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“whoever knowingly … recruits, entices,
harbors, transports, provides, or obtains
by any means a person; or benefits,
financially or by receiving anything of
value, from participation in a venture …
knowing that force, fraud, or coercion …
will be used to cause the person to
engage in a commercial sex act, or that
the person has not attained the age of 18
years and will be caused to engage in a
commercial sex act… .”
Causes of Action
TVPRA of 2003, 18 U.S.C. § 1595
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General trends in the utilization of the
TVPRA
Meaning of “serious harm”
Limitations of the TVPRA
Causes of Action:
RICO, 18 U.S.C. §§ 1960-1968
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Treble damages for damages to business
or property proximately caused – or
directly related to – the violation
Attorneys’ fees
Civil RICO claims can be brought as a Rule
23 class action
Beware! Courts HATE Civil RICO and attorneys
often plead it incorrectly. See, e.g., Zavala v.
Wal-Mart Stores, Inc., 393 F. Supp. 2d 295
(D.N.J. 2005) (RICO claims dismissed in
human trafficking case because elements
missing from each underlying predicate act).
Causes of Action:
RICO, 18 U.S.C. §§ 1960-1968
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In a nutshell, requires a defendant to
participate in the affairs of an enterprise
through an ongoing pattern of
racketeering activity.
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“Association of fact” RICO enterprise most
common.
 “Person” must be separate from “enterprise”
 “Enterprise” must exist separate and apart
from the racketeering activities (ie.
association cannot exist solely for the purpose
of racketeering).
 If you don’t know which enterprise to plead,
think about pleading several alternatively.
Causes of Action:
RICO, 18 U.S.C. §§ 1960-1968
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“Ongoing pattern of racketeering
activity” requires
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the racketeering predicates are related
and that they amount to or pose a
threat of continued criminal activity;
and
at least two predicate acts of
racketeering committed within a tenyear period.
Causes of Action:
RICO, 18 U.S.C. §§ 1960-1968
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Trafficking cases may involve multiple
predicate acts:
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Trafficking in persons (new after TVPRA)
Mail and/or wire fraud*
Fraud in connection with ID documents*
Forgery or false use of passport
Fraud/misuse of visas, permits, and other
documents*
Peonage and slavery
Activities prohibited under Mann Act
Importation of an alien for immoral use
Extortion
* Subject to heightened pleading requirements of
Rule 9.
Causes of Action:
RICO, 18 U.S.C. §§ 1960-1968
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Also look at RICO conspiracy under
§ 1962(d)
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a RICO conspiracy defendant need not
himself commit or agree to commit
predicate acts
all that is necessary for such a
conspiracy is that the conspirators
share a common purpose
if some conspirators agree to a plan in
which some conspirators will commit
crimes and others will provide support,
the supporters are as guilty as the
perpetrators.
Causes of Action:
13th Amendment and ATCA
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13th Amendment
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Criminally enforced through 18 U.S.C. 1584, which
prohibits involuntary servitude
Some courts have recognized an implied private
right of action under this statute
TVPA expanded definition of involuntary servitude
to include psychological coercion
ATCA
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Grants federal jurisdiction for “any civil action by an
alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.”
Courts have recognized slavery, forced labor and
human trafficking as violations of international law
Causes of Action:
Civil Rights Statutes
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Title VII
 Discrimination in employment due to employee’s race,
color, sex, national origin, religion, or pregnancy.
 Applies only to employers who have 15 or more
employees.
 Complaint filed with the EEOC within 180 to 300 days
(depending on state) of the discriminatory act.
42 U.S.C. § 1981
 Discrimination in contracts/contractual relationships.
 Must be based on race (national origin in some cases)
 No EEOC/exhaustion requirement; longer statute of
limitations.
42 U.S.C. § 1985(3)
 Conspiracy to interfere with civil rights of “any person
or class of persons.”
 Deressa v. Gobena, 2006 U.S. Dist. LEXIS 8659, * 1617 (E.D. Va. 2006) (trafficking case)
Causes of Action:
Employment, Torts, and Contracts
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Fair Labor Standards Act
Migrant and Seasonal Agricultural Worker
Protection Act
Torts
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Assault/battery, false imprisonment,
intentional infliction of emotional distress,
misrepresentation
Negligence
Contracts
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Breach of oral/written contract
Unjust enrichment
Quantum meruit
Final Thoughts
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Human trafficking is the exploitation
of immigrant workers– there is no
dividing line
Approach these cases with a broad
perspective
Co-counsel with and consult the
expertise of immigrant workers’
rights organizations