The Department of Justice (DOJ) recently announced the formation of the Procurement Collusion Strike Force, which will focus on one of the DOJ’s top priorities: protecting public funds from bid rigging and fraud. As DOJ’s Deputy Assistant Attorney General for Criminal Enforcement stated in a speech just before the announcement, it is DOJ’s view that
Michael J. Navarre
Alleged Human Trafficking Victims Seek Supreme Court Review of Alien Tort Statute Standards
As many commentators anticipated after the Fifth Circuit’s January 3, 2017 decision in Adhikari v. Kellogg Brown & Root, Inc., No. 1520225 (5th Cir. Jan. 3, 2017), the Adhikari plaintiffs are seeking Supreme Court review of the Fifth Circuit’s decision. The January 2017 decision held that claims asserted against a US defense contractor for alleged human trafficking and related injuries in Nepal, Jordan, and Iraq were not cognizable under the Alien Tort Statute (ATS). The Fifth Circuit, applying the US Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., held that the presumption against extraterritorial application of a statute bars claims under the ATS for injuries occurring abroad.
The Supreme Court in Kiobel concluded that the ATS could create jurisdiction over violations of “the law of nations or a treaty of the United States” occurring overseas only when claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” The plaintiffs in Adhikari alleged that although the injuries occurred outside the United States, Kiobel’s “touch and concern” language permitted their claims because the complaint alleged that trafficking was conducted by agents of KBR’s US operations, KBR paid the agent from US banks, KBR employees in the US were aware of the trafficking scheme, and that KBR’s contract was issued and directed from the United States, supported the US military, and performed on a US military base in Iraq. As we noted previously, here, the Adhikari court, however, held that the “focus” of the ATS is “conduct that violates international law.” Because the alleged conduct in violation of international law occurred in Nepal, Jordan, and Iraq, the claims did not “touch and concern” the US and were, therefore, barred under Kiobel.
Continue Reading Alleged Human Trafficking Victims Seek Supreme Court Review of Alien Tort Statute Standards
Fifth Circuit Rules on Extraterritoriality of ATS Claims, Creating Circuit Split
On January 3, 2017, the United States Court of Appeals for the Fifth Circuit issued a decision in Adhikari v. Kellogg Brown & Root, Inc., No. 1520225 (5th Cir. Jan. 3, 2017) relevant to US government contractors and subcontractors performing contracts overseas. In the decision, the court held that claims asserted against a US …
OFPP Issues Proposed Combating Trafficking in Persons Best Practices for Government Contractors and Contracting Officials
The Office of Federal Procurement Policy (OFPP), in conjunction with an inter-agency task force on combating trafficking in persons recently published for public comment a set of “Anti-Trafficking Risk Management Best Practices & Mitigation Considerations.” The task force states that the proposed guidance was developed as a set of best practices and mitigation…
Human Trafficking Rule Clarification: US Government Contractors Face Broad Prohibitions on Employee Paid “Recruitment Fees”
The latest regulatory action by the Obama administration to address human trafficking in contractor supply chains occurred on May 11, 2016 when the Federal Acquisition Regulation (FAR) Council published a proposed definition of prohibited “recruitment fees.” The proposed definition would supplement the recently revised FAR Combating Trafficking in Persons regulations, and define “recruitment fees” for…