Abigail N. Burke

A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains

Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, such as enacting supplier codes of conduct, those efforts have not led to significant change. Because voluntary efforts have thus far been ineffective, victims have pursued domestic litigation against MNCs to compensate their losses and encourage future reform. In the recent case of Nestlé USA, Inc. v. Doe, the U.S. Supreme Court cut off one popular avenue for such suits, the Alien Tort Statute, leaving plaintiffs with little ability to sue under federal law. State law tort claims, however, are a strong alternative. Plaintiffs can argue, and indeed have argued in one federal circuit court case, that MNCs have undertaken a duty of care to them as third-party beneficiaries of their supplier codes of conduct. This Note argues that plaintiffs making this claim should point to analogous cases in construction law, where courts have often found that design professionals overseeing a construction site have a duty of care towards their contractors’ employees. In analyzing construction law cases, this Note draws out five factors that have influenced courts to find liability. Future plaintiffs suing for labor violations should use these factors to show that MNCs owed them a duty of care under their supplier codes of conduct and may therefore be held liable for labor rights violations in their international supply chains.

Introduction

Shiuli Begum was working as a sewing machine operator in Bangladesh when a massive crack appeared in the wall of the factory where she was employed.1 1.Dana Thomas, Why Won’t We Learn from the Survivors of the Rana Plaza Disaster?, N.Y. Times (Apr. 24, 2018), https://www.nytimes.com/2018/04/24/style/survivors-of-rana-plaza-disaster.html [https://perma.cc/D93X-LHE8].Show More An engineer called to the site that afternoon recommended that the building be immediately condemned, but managers ordered the employees to report back to work the following morning.2 2.Id.Show More Shortly after the shift started on April 24, 2013, the Rana Plaza garment factory collapsed, trapping Ms. Begum under concrete for over sixteen hours until her neighbors helped pry her out with iron pipes.3 3.Id.Show More Ms. Begum suffered damage to her hips and spinal column and was rendered infertile and unable to work.4 4.Id.Show More She received “a bit of financial assistance from nonprofits” but nothing from the clothing brands for which she sewed.5 5.Id.Show More In all, over 1,100 people died in the Rana Plaza factory collapse that day, and 2,500 more were injured.6 6.Rana Plaza: Bangladesh Jails Owner of Factory Building that Collapsed in 2013 for Corruption, ABC News (Aug. 29, 2017, 9:33 AM), https://www.abc.net.au/news/2017-08-29/rana-plaza-owner-of-collapsed-bangladesh-building-jailed/8854240 [https://perma.cc/U6​ST-ZCW5].Show More However, victims of the 2013 collapse have yet to receive justice from the Bangladeshi court system—a court sentenced the factory’s owner to three years in prison in 2017 for illegal earnings,7 7.Id.Show More but resolution of the charges against eighteen others involved in factory management has met repeated delays.8 8.Rana Plaza Court Case Postponed in Bangladesh, Al Jazeera (Aug. 23, 2016), https://www.aljazeera.com/news/2016/8/23/rana-plaza-court-case-postponed-in-bangladesh [https://perma.cc/HB6Y-DMXN].Show More

Several prominent American companies, including Walmart, J.C. Penney, and The Children’s Place, have previously been linked to suppliers producing goods in Rana Plaza at the time of the disaster.9 9.Clare O’Connor, These Retailers Involved in Bangladesh Factory Disaster Have Yet to Compensate Victims, Forbes (Apr. 26, 2014, 5:29 PM), https://www.forbes.com/sites/c​lareoconnor/2014/04/26/these-retailers-involved-in-bangladesh-factory-disaster-have-yet-to-compensate-victims/?sh=489c7609211b [https://perma.cc/FS9L-2FEB].Show More These companies, like many others, have achieved tremendous cost savings through their contracts with suppliers in developing countries, where labor costs and regulatory burdens are low. However, profiting off unsafe and unjust factory conditions has also made large multinational corporations (“MNCs”) a popular target of domestic litigation aiming to secure compensation for victimized employees like Shiuli Begum.10 10.For an overview of cases using different legal strategies to sue MNCs for labor violations, see Ramona L. Lampley, Mitigating Risk, Eradicating Slavery, 68 Am. U. L. Rev. 1707 (2019).Show More There is a great deal at stake in the outcome of these lawsuits. Besides the normative argument that these corporations collect unjust profits, there is the practical reality that MNCs are currently in the best position to take responsibility for poor labor practices in their supply chains. As the Rana Plaza example illustrates, victimized workers in developing countries often cannot rely on their own court systems to hold direct offenders accountable, making suits against MNCs one of the only options for legal redress. MNCs also have greater incentives and more resources to bring about better treatment of workers because the companies are usually better known and more financially reliant on maintaining good reputations than their suppliers.11 11.See Andrew Herman, Note, Reassessing the Role of Supplier Codes of Conduct: Closing the Gap Between Aspirations and Reality, 52 Va. J. Int’l L. 445, 450 (2012) (describing how MNCs have adopted supplier codes of conduct in response to activist pressure).Show More

Because the United States largely lacks other legal mechanisms to incentivize MNCs to perform supply chain due diligence,12 12.By contrast, some European countries have mandatory due diligence legislation. For example, the French and Dutch parliaments adopted legislation in 2017 that would require companies to investigate and report on human rights violations in their supply chains. Sharan Burrow, Eliminating Modern Slavery: Due Diligence and the Rule of Law, Bus. & Hum. Rts. Res. Ctr. (Aug. 8, 2017), https://www.business-humanrights.org/en/blog/​eliminating-modern-slavery-due-diligence-and-the-rule-of-law/ [https://perma.cc/5LTK-4UVK].Show More there is a large body of literature analyzing the potential for lawsuits to compensate victims and encourage reform. Much of this literature has focused on federal claims under the Alien Tort Statute (“ATS”) and the Trafficking Victims Protection Reauthorization Act (“TVPRA”),13 13.See, e.g., Jennifer M. Green, The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute, 35 U. Pa. J. Int’l L.1085, 1086, 1108–09 (2014); Lampley, supra note 10, at 1729–45; Debra Cohen Maryanov, Comment, Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain, 14 Lewis & Clark L. Rev. 397, 417–18 (2010); Laura Ezell, Note, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499, 512–25 (2016); David Shea Bettwy, Drones, Private Military Companies and the Alien Tort Statute: The Looming Frontier of International Tort Liability, 47 Cal. W. Int’l L.J. 1 (2016).Show More though the recent Supreme Court case Nestlé USA, Inc. v. Doe throws the former category’s viability into question by holding that “general corporate activity” in the United States does not create a sufficient nexus to impose liability for aiding and abetting forced labor abroad.14 14.141 S. Ct. 1931, 1937 (2021).Show More Due to obstacles in bringing successful claims under federal law, a growing number of scholars have moved on to consider the viability of state tort and contract-based claims.15 15.See, e.g., Allie Robbins, Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry, 80 U. Pitt. L. Rev. 369, 372 (2018); Alexandra Reeve, Within Reach: A New Strategy for Regulating American Corporations That Commit Human Rights Abuses Abroad, 2008 Colum. Bus. L. Rev. 387, 388–90; Lampley, supranote 10, at 1708, 1750; Joe Phillips & Suk-Jun Lim, Their Brothers’ Keeper: Global Buyers and the Legal Duty to Protect Suppliers’ Employees, 61 Rutgers L. Rev. 333, 334–35 (2009); Maryanov, supra note 13, at 429–36.Show More

This Note contributes to the existing literature on state tort law claims by suggesting a novel legal strategy through which plaintiffs could better plead the existence of a duty on the part of MNCs to monitor their suppliers, thus far an insurmountable barrier in the few attempted cases. In one U.S. Court of Appeals for the Ninth Circuit case, the plaintiffs argued that supplier codes of conduct, which many MNCs have imposed on the entities comprising their supply chain, can give rise to liability through third-party beneficiary theory.16 16.Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009).Show More This Note will extend that theory, arguing that the case was wrongly decided and that construction law can serve as a helpful model for plaintiffs going forward. There is a limited amount of scholarship on the potential applicability of common law doctrines regarding general contractors in the construction context to MNCs in the supply chain context.17 17.See Maryanov, supra note 13, at 431–32; Lampley, supranote 10, at 1713–14 (noting that worker-plaintiffs have unsuccessfully analogized themselves to independent contractors when trying to establish that they were owed a duty by employer-defendants); Phillips & Lim, supranote 15, at 364–65 (explaining the contemplated categorization of buyer-companies as “general contractors” owing a duty to “independent contractor” employees of suppliers in claims where the buyer allegedly “retained sufficient control over jobsite health and safety”).Show More However, this Note is the first to closely analyze the doctrine of third-party beneficiary theory as applied to architects and engineers in construction law and use it as a model to distill factors that are applicable to the MNC context.

Part I begins with an explanation of how economic forces, reputational harms, and technological developments have converged to make supply chain management cheaper, easier, and more important for MNCs who rely on a geographically disparate supply chain. This Part also discusses the history of supplier codes of conduct, the principal method by which companies currently attempt to mitigate harms in their supply chain. Part II provides greater background on different litigation strategies to hold MNCs accountable for labor violations, beginning with federal claims and their limitations before examining state claims. After establishing the primary procedural requirements for foreign workers to bring a case in state court, Part III then explains how construction law cases using third-party beneficiary theory are closely analogous to supply chains. In construction law cases, courts have generally focused on five factors to guide their analysis of whether a design professional—such as an architect or engineer—owed a duty to contractors’ employees. These factors include foreseeability, contract specificity, actual practice of supervision, ability to stop work, and actual knowledge of safety issues. Part IV applies those five factors to a current supplier code of conduct, providing a model for future plaintiffs to advocate a totality of the circumstances analysis based on those factors. This Part also addresses counterarguments. Finally, this Note concludes with a summary of how plaintiffs should approach third-party beneficiary claims in the future.

  1. Dana Thomas, Why Won’t We Learn from the Survivors of the Rana Plaza Disaster?, N.Y. Times (Apr. 24, 2018), https://www.nytimes.com/2018/04/24/style/survivors-of-rana-plaza-disaster.html [https://perma.cc/D93X-LHE8]. ↑
  2. Id. ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6.  Rana Plaza: Bangladesh Jails Owner of Factory Building that Collapsed in 2013 for Corruption, ABC News (Aug. 29, 2017, 9:33 AM), https://www.abc.net.au/news/2017-08-29/rana-plaza-owner-of-collapsed-bangladesh-building-jailed/8854240 [https://perma.cc/U6​ST-ZCW5]. ↑
  7. Id. ↑
  8.  Rana Plaza Court Case Postponed in Bangladesh, Al Jazeera (Aug. 23, 2016), https://www.aljazeera.com/news/2016/8/23/rana-plaza-court-case-postponed-in-bangladesh [https://perma.cc/HB6Y-DMXN]. ↑
  9. Clare O’Connor, These Retailers Involved in Bangladesh Factory Disaster Have Yet to Compensate Victims, Forbes (Apr. 26, 2014, 5:29 PM), https://www.forbes.com/sites/c​lareoconnor/2014/04/26/these-retailers-involved-in-bangladesh-factory-disaster-have-yet-to-compensate-victims/?sh=489c7609211b [https://perma.cc/FS9L-2FEB]. ↑
  10. For an overview of cases using different legal strategies to sue MNCs for labor violations, see Ramona L. Lampley, Mitigating Risk, Eradicating Slavery, 68 Am. U. L. Rev. 1707 (2019). ↑
  11. See Andrew Herman, Note, Reassessing the Role of Supplier Codes of Conduct: Closing the Gap Between Aspirations and Reality, 52 Va. J. Int’l L. 445, 450 (2012) (describing how MNCs have adopted supplier codes of conduct in response to activist pressure). ↑
  12. By contrast, some European countries have mandatory due diligence legislation. For example, the French and Dutch parliaments adopted legislation in 2017 that would require companies to investigate and report on human rights violations in their supply chains. Sharan Burrow, Eliminating Modern Slavery: Due Diligence and the Rule of Law, Bus. & Hum. Rts. Res. Ctr. (Aug. 8, 2017), https://www.business-humanrights.org/en/blog/​eliminating-modern-slavery-due-diligence-and-the-rule-of-law/ [https://perma.cc/5LTK-4UVK]. ↑
  13. See, e.g., Jennifer M. Green, The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute, 35 U. Pa. J. Int’l L.

    1085, 1086, 1108–09 (2014); Lampley, supra note 10, at 1729–45; Debra Cohen Maryanov, Comment, Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain, 14 Lewis & Clark L. Rev. 397, 417–18 (2010); Laura Ezell, Note, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499, 512–25 (2016); David Shea Bettwy, Drones, Private Military Companies and the Alien Tort Statute: The Looming Frontier of International Tort Liability, 47 Cal. W. Int’l L.J. 1 (2016). ↑

  14. 141 S. Ct. 1931, 1937 (2021). ↑
  15. See, e.g., Allie Robbins, Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry, 80 U. Pitt. L. Rev. 369, 372 (2018); Alexandra Reeve, Within Reach: A New Strategy for Regulating American Corporations That Commit Human Rights Abuses Abroad, 2008 Colum. Bus. L. Rev. 387, 388–90; Lampley, supra note 10, at 1708, 1750; Joe Phillips & Suk-Jun Lim, Their Brothers’ Keeper: Global Buyers and the Legal Duty to Protect Suppliers’ Employees, 61 Rutgers L. Rev. 333, 334–35 (2009); Maryanov, supra note 13, at 429–36. ↑
  16. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009). ↑

  17. See Maryanov, supra note 13, at 431–32; Lampley, supra note 10, at 1713–14 (noting that worker-plaintiffs have unsuccessfully analogized themselves to independent contractors when trying to establish that they were owed a duty by employer-defendants); Phillips & Lim, supra note 15, at 364–65 (explaining the contemplated categorization of buyer-companies as “general contractors” owing a duty to “independent contractor” employees of suppliers in claims where the buyer allegedly “retained sufficient control over jobsite health and safety”). ↑

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