Presentation on theme: "Civil Litigation on Behalf of Victims of Human Trafficking"— Presentation transcript:
1Civil Litigation on Behalf of Victims of Human Trafficking Kathleen KimAssociate ProfessorLoyola Law SchoolCharles SongPro Bono ManagerHowrey, LLPDan WernerDeputy Director, IJPSouthern Poverty Law Center
2Civil Human Trafficking Cases: General 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?
3The Anatomy of a Civil Trafficking Case What to consider before taking a caseYour resourcesClient’s safetyPsychological, social, economic and legal stability of clientDefendant’s location and assetsImpact of and on a criminal investigation/prosecutionOther civil litigation pros/cons
4Do No Harm Excellent representation requires: Cultural competence Therapeutic lawyeringUnderstanding and collaborating with your client, who is an equal partner in the process
5Your Client Wants to Move Forward Identify your alliesDetermine whether your client applied for and received a T or U visaDetermine whether there is an ongoing criminal case and at what stage it is
6Basic Procedure: Parties, Timing, Venue More than one plaintiff?More than one defendant?When to file?Where to file?
7Basic Procedure: Impact of a Criminal Prosecution A concluded criminal case may help a civil lawsuit:Judicial/collateral estoppelEvidenceOther benefits: client’s safety, restitutionAn ongoing criminal prosecution may complicate a civil lawsuit:The “stay”
8Basic Procedure: Protective 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 defendant’s discovery of your client’s identification information.
9Basic Procedure: Final Thoughts Defense tacticsClient’s credibilityAggressive discoverySettlement negotiationsCalculating damages
10Causes of ActionTrafficking Victims Protection Reauthorization Act of 2003Racketeer Influenced and Corrupt Organizations ActThirteenth Amendment and Involuntary ServitudeAlien Tort Claims ActTitle VIISec. 1981Sec. 1985(3)Fair Labor Standards ActMigrant and Seasonal Agricultural Worker Protection ActState torts and contract claimsState labor codes and other statutes
11Causes of Action: TVPRA 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 laborobtaining 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.
12Causes of Action: TVPRA 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.
13Causes of Action TVPRA 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… .”
14Causes of Action TVPRA of 2003, 18 U.S.C. § 1595 General trends in the utilization of the TVPRAMeaning of “serious harm”Limitations of the TVPRA
15Causes of Action: RICO, 18 U.S.C. §§ 1960-1968 Treble damages for damages to business or property proximately caused – or directly related to – the violationAttorneys’ feesCivil RICO claims can be brought as a Rule 23 class actionBeware! 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).
16Causes of Action: RICO, 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 don’t know which enterprise to plead, think about pleading several alternatively.
17Causes of Action: RICO, 18 U.S.C. §§ 1960-1968 “Ongoing pattern of racketeering activity” requiresthe racketeering predicates are related and that they amount to or pose a threat of continued criminal activity; andat least two predicate acts of racketeering committed within a ten-year period.
18Causes of Action: RICO, 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 passportFraud/misuse of visas, permits, and other documents*Peonage and slaveryActivities prohibited under Mann ActImportation of an alien for immoral useExtortion* Subject to heightened pleading requirements of Rule 9.
19Causes of Action: RICO, 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 actsall that is necessary for such a conspiracy is that the conspirators share a common purposeif 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.
20Causes of Action: 13th Amendment and ATCA Criminally enforced through 18 U.S.C. 1584, which prohibits involuntary servitudeSome courts have recognized an implied private right of action under this statuteTVPA expanded definition of involuntary servitude to include psychological coercionATCAGrants 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
21Causes of Action: Civil Rights Statutes Title VIIDiscrimination 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. § 1981Discrimination 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, * (E.D. Va. 2006) (trafficking case)
22Causes of Action: Employment, Torts, and Contracts Fair Labor Standards ActMigrant and Seasonal Agricultural Worker Protection ActTortsAssault/battery, false imprisonment, intentional infliction of emotional distress, misrepresentationNegligenceContractsBreach of oral/written contractUnjust enrichmentQuantum meruit
23Final ThoughtsHuman trafficking is the exploitation of immigrant workers– there is no dividing lineApproach these cases with a broad perspectiveCo-counsel with and consult the expertise of immigrant workers’ rights organizations