Civil Litigation on Behalf of Victims of Human Trafficking

1. Dan Werner Deputy Director, IJP Southern Poverty Law Center daniel.werner@splcenter.org Kathleen Kim Associate Professor Loyola Law School kathleen.kim@lls.edu Charles Song Pro Bono Manager Howrey, LLP SongC@howrey.com Civil Litigation on Behalf of Victims of Human Trafficking

2. Civil 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?

3. The Anatomy of a Civil Trafficking Case What to consider before taking a case • 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

4. Do No Harm Excellent representation requires: • Cultural competence • Therapeutic lawyering • Understanding and collaborating with your client, who is an equal partner in the process

5. 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

6. Basic Procedure:Parties, Timing, Venue • More than one plaintiff? • More than one defendant? • When to file? • Where to file?

7. Basic Procedure: Impact of a Criminal Prosecution • A concluded criminal case may help a civil lawsuit: • Judicial/collateral estoppel • Evidence • Other benefits: client’s safety, restitution • An ongoing criminal prosecution may complicate a civil lawsuit: • The “stay”

8. Basic 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.

9. Basic Procedure:Final Thoughts • Defense tactics • Client’s credibility • Aggressive discovery • Settlement negotiations • Calculating damages

10. 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

11. Causes 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 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.

12. Causes 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.

13. 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… .”

14. 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

15. Causes of Action:RICO, 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).

16. Causes 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.

17. Causes of Action:RICO, 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.

18. Causes 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 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.

19. Causes 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 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.

20. Causes of Action:13th 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

21. Causes of Action:Civil Rights Statutes • 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, * 16-17 (E.D. Va. 2006) (trafficking case)

22. Causes of Action:Employment, 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

23. 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