Civil Litigation on Behalf of Victims of Human Trafficking

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Civil Litigation on Behalf of Victims of Human
Trafficking

• Dan Werner
• Deputy Director, IJP
• Southern Poverty Law Center
• daniel.werner_at_splcenter.org

• Kathleen Kim
• Associate Professor
• Loyola Law School
• kathleen.kim_at_lls.edu
• Charles Song
• Pro Bono Manager
• Howrey, LLP
• SongC_at_howrey.com

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Civil Human Trafficking CasesGeneral
Reflections on Litigated Cases

• 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?

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The Anatomy of a Civil Trafficking Case

• What to consider before taking a case
• Your resources
• Clients safety
• Psychological, social, economic and legal
  stability of client
• Defendants location and assets
• Impact of and on a criminal investigation/prosecut
  ion
• Other civil litigation pros/cons

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Do No Harm

• Excellent representation requires
• Cultural competence
• Therapeutic lawyering
• Understanding and collaborating with your client,
  who is an equal partner in the process

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Your Client Wants to Move Forward

• 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

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Basic ProcedureParties, Timing, Venue

• More than one plaintiff?
• More than one defendant?
• When to file?
• Where to file?

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Basic Procedure Impact of a Criminal Prosecution

• A concluded criminal case may help a civil
  lawsuit
• Judicial/collateral estoppel
• Evidence
• Other benefits clients safety, restitution
• An ongoing criminal prosecution may complicate a
  civil lawsuit
• The stay

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Basic ProcedureProtective Mechanisms

• 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
  defendants discovery of your clients
  identification information.

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Basic ProcedureFinal Thoughts

• Defense tactics
• Clients credibility
• Aggressive discovery
• Settlement negotiations
• Calculating damages

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Causes of Action

• 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

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Causes of ActionTVPRA of 2003, 18 U.S.C. 1595

• Provides a private right of action for damages
  and attorneys fees for violations of
• 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 shed suffer serious
  harm or physical restraint if labor/services not
  performed (3) abuse or threatened abuse of law
  or the legal process.

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Causes of ActionTVPRA of 2003, 18 U.S.C. 1595

• 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 ActionTVPRA of 2003, 18 U.S.C. 1595

• 18 U.S.C 1591 Sex trafficking
• 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 .

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Causes of ActionTVPRA of 2003, 18 U.S.C. 1595

• General trends in the utilization of the TVPRA
• Meaning of serious harm
• Limitations of the TVPRA

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Causes of ActionRICO, 18 U.S.C. 1960-1968

• 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).

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Causes of ActionRICO, 18 U.S.C. 1960-1968

• In a nutshell, requires a defendant to
  participate in the affairs of an enterprise
  through an ongoing pattern of racketeering
  activity.
• 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 dont know which enterprise to plead,
  think about pleading several alternatively.

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Causes of ActionRICO, 18 U.S.C. 1960-1968

• Ongoing pattern of racketeering activity
  requires
• 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 ten-year period.

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Causes of ActionRICO, 18 U.S.C. 1960-1968

• Trafficking cases may involve multiple predicate
  acts
• 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.

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Causes of ActionRICO, 18 U.S.C. 1960-1968

• Also look at RICO conspiracy under 1962(d)
• 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.

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Causes of Action13th Amendment and ATCA

• 13th Amendment
• 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
• 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

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Causes of ActionCivil Rights Statutes

• Title VII
• Discrimination in employment due to employees
  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,
  16-17 (E.D. Va. 2006) (trafficking case)

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Causes of ActionEmployment, Torts, and
Contracts

• Fair Labor Standards Act
• Migrant and Seasonal Agricultural Worker
  Protection Act
• Torts
• Assault/battery, false imprisonment, intentional
  infliction of emotional distress,
  misrepresentation
• Negligence
• Contracts
• Breach of oral/written contract
• Unjust enrichment
• Quantum meruit

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Final Thoughts

• 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