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November 07, 2013 Articles

Coordinated Suits Signal Change in Human-Trafficking Litigation

An unprecedented cooperative effort to address the problem of corporate-sponsored human trafficking that often evades prosecution.

By Morgen Morrissette – November 7, 2013

In 2008, 12 named plaintiffs brought suit against Signal International, LLC, on behalf of a class of 500 Indian nationals allegedly trafficked into the United States by Signal and an organized international-trafficking ring that included a network of labor recruiters and an immigration attorney. David v. Signal Intern., LLC, 588 F. Supp. 2d 718, 718–25 (E.D. La. 2008).

The suit alleged that Signal worked closely with labor recruiters in India and the United Arab Emirates to target and recruit skilled Indian workers to work in Signal’s shipyards post-hurricane Katrina. Signal, through its recruiters and an immigration attorney, Malvern C. Burnett, and his business Gulf Coast Immigration Law Center, LLC, and Law Offices of Malvern C. Burnett, A.P.C. (collectively “Burnett”), promised victims high wages, long term employment, and, most importantly, green cards for workers and their families, which would pave the way to permanent US residency.

To obtain employment with Signal, however, victims were required to pay exorbitant recruitment fees, up to $25,000, to Signal and recruiters. Third Amended Complaint at 30, David v. Signal Intern., LLC, 588 F. Supp. 2d 718 (E.D. La. 2008). Once in the United States, victims were subject to extraordinarily inhumane working and living conditions in guarded labor camps. The promised wages were seriously reduced as workers were forced to pay $1,050 a month for room and board, and to purchase their own tool kits and supplies from Signal. Those who requested to live outside of the labor camps were informed the payment would be deducted regardless. Wages that were received were required to be deposited in specific banks in accounts that were largely controlled by Signal, and which denied several workers who fled the camps access to their accounts. Rooms were cramped and unsanitary, management often employed violence and threats against Indian workers, and workers were often sick due to poor sanitation in the cafeteria. In addition, movement was highly restricted: Victims were not permitted to freely leave the camps, were rarely permitted to have visitors, and had their personal belongings subject to random searches by Signal.

Victims were threatened with “abuse of the legal process, physical restraint and/or other serious harm” if they left Signal’s employ while in the United States. Representatives of Signal allegedly informed victims that Signal would not be able to obtain the promised green cards for workers who quit or fled, and that those workers would be subject to deportation. In reality, the frequent promises of green cards were empty; Signal’s employees entered the United States on temporary, nonimmigrant H-2B guestworker visas that could not be used to obtain permanent residency.

According to the complaint, only Indian workers, not U.S. workers, were subject to these conditions and required to live in the camps. Efforts to organize were brutally put down, with Signal contacting workers’ families to warn them to cease organizing efforts, and assaulting, detaining without food or water, and forcibly “deporting” organizers. One worker, plaintiff Sabulal Vijayan, faced with the threat of deportation back to India, where he faced extraordinary debts obtained to pay Signal’s recruiting fees, attempted to take his own life while being chased by Signal security guards.

The suit was brought under the Victims of Trafficking and Violence Protection Act (TVPA), the Racketeer Influenced and Corrupt Organizations Act (RICO), the Civil Rights Act, the Ku Klux Klan Act, and other statutes. In addition to the federal claims, the named plaintiffs brought claims based on fraud, breach of contract, and negligent misrepresentation.

The suit was poised to be the largest human-trafficking suit in U.S. history when class certification was denied by the U.S. Court for the Eastern District of Louisiana. The TVPA claims were based on two statues: 18 U.S.C. § 1589 (forced labor) and 18 U.S.C. § 1590 (trafficking with respect to peonage, slavery, involuntary servitude, or forced labor). Certification was denied in part because the court did not find that the Rule 23(b)(3)'s requirement that common issues of law and fact predominate over individual issues was met. Decision on Class Certification, David v. Signal Intern., LLC, 588 F. Supp. 2d718 (E.D. La. 2008), 52–54.

An analysis of a forced-labor claim, for example, must analyze not only whether a defendant’s conduct was unlawful, but also “whether the defendant’s conduct was sufficient to make the specific alleged victim render labor involuntarily,” which requires a determination of the “causal connection between what the defendant did, what the victim did, and why the victim did it,” precluding an analysis that fails to consider the motivations of individual plaintiffs. Because the analysis must consider whether the individual plaintiff labored without consent, consent cannot be a class wide question of fact. Because a forced-labor analysis is “fundamentally about individual consent,” “the very nature of a forced labor claim precludes plaintiffs from meeting their burden of demonstrating that the predominance requirement of Rule 23(b)(3) is satisfied.”

Despite this setback, several individual suits are scheduled to go forward. The Southern Poverty Law Center has spearheaded efforts to work with top U.S. law firms to represent the plaintiffs pro bono. In May 2013, three firms—Latham & Watkins LLP; Kilpatrick Townsend & Stockton LLP; and Sutherland Asbill & Brennan LLP—filed suit on behalf of 83 trafficked workers. In August 2013, five more suits were filed against Signal on behalf of 60 trafficking victims by DLA Piper and Fredrikson & Byron P.A. In addition, McDermott Will & Emery; Skadden, Arps, Slate, Meagher & Flom LLP; and the Equal Justice Center have agreed to represent over 100 other victims.

In addition, the Equal Employment Opportunity Commission has brought a separate federal suit against Signal, alleging that Signal violated federal human trafficking and hostile-work-environment laws in its treatment of the same victims.

The lawsuits in their totality represent an unprecedented cooperative effort to address the problem of corporate-sponsored human trafficking that often evades prosecution by burying activities in a complex and far-flung network of recruiters and traffickers, and by targeting individuals unable to assert their rights, or who can be dissuaded from doing so because of their precarious legal status in the United States and perceived indebtedness to employers. The coming lawsuits may provide a blueprint for future efforts to hold corporations accountable for human trafficking, despite the initial setback of the class action.

Keywords: civil rights litigation, human trafficking, immigration, class action, Signal International, Katrina, forced labor

Morgen Morrissette is an attorney based in Columbus, Ohio.

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