Stephen Greenhouse on how American retailers like Wal-Mart and Gap are opposing proposed regulatory plans for factory conditions that produce clothing precisely because they might be legally binding and thus mean something. Now they probably aren’t actually legally binding, thanks to our lovely Supreme Court, which in Kiobel v. Royal Dutch Petroleum decided that the Alien Tort Statute does not apply outside the United States (I wonder how reasonable conservative Sam Alito voted on that!).
John C. Coffee Jr., a professor of corporate law at Columbia University, said American companies generally faced a higher risk of litigation than overseas competitors, largely because the court systems differ significantly. Unlike the system in the United States, courts in Europe generally prohibit class-action lawsuits, do not allow contingency fees for lawyers who win cases and require losing parties to pay legal fees for both sides. Those policies often discourage lawyers and plaintiffs from filing lawsuits.
But Professor Coffee also cited a Supreme Court decision last month that could greatly reduce the ability of overseas factory workers and their families to file lawsuits in United States courts.
“It may be that those retailers who worry about legal liability are pointing to an outdated sense of what liability is for actions taken abroad,” Professor Coffee said. He added that if an accident occurred abroad — for instance, at a factory in Bangladesh — “there is an increasing doubt that the American retailer could be sued in the United States,” because the Supreme Court ruling, Kiobel v. Royal Dutch Petroleum, went far to curb such lawsuits under the Alien Tort Claims Act.
So a Court attempting to recreate the Gilded Age is a huge problem for those who want to create regulations that would transcend national boundaries. Yet for the apparel companies this isn’t good enough. Given that they profit off a system of maximum exploitation, they want nothing more than to say they care without actually caring one iota. That’s why without meaningful penalties for violations, any agreement is worthless. There is of course another alternative–corporations could sacrifice a tiny bit of profit so that 12 year old girls can go to school and workers toil in factories that don’t collapse on top of them. But what kind of a fantasy world am I living in to even dream of such a future!
“This whole fear of lawsuits is a straw man,” said Philip J. Jennings, general secretary of Uni Global Union, a worldwide federation of 20 million retail and service workers, who has negotiated with various retailers to develop the plan and persuaded them to join it. “If these American retailers get 20 lawyers in a room, they start hyperventilating about lawsuits and they’ll have a communal anxiety attack.”
Matthew Shay, president of the National Retail Federation, gave another reason for opposing the Bangladesh plan, saying it “seeks to advance a narrow agenda driven by special interests,” a reference to the labor unions that helped shape the plan and then pressed retailers to sign on.
This as opposed to the narrow agenda driven by another group of special interests to keep Bangladeshi workers dying on the job.
Still, at least we are talking about this now and exposing the barriers to humane treatment of Asian workers by American corporations.