Better Together? The Peril and Promise of Aggregate Litigation for Trafficked Workers.

• Author: Price, Nikko

AUTHOR. Yale Law School, J.D. expected 2020. I am deeply grateful to James E. Tierney, Peter Brann, Terri Gerstein, Jane Flanagan, Burt Johnson, Judge Virginia M. Kendall, Ambassador Luis C.deBaca, and Jordan Dannenberg for their valuable comments and support. Thanks also to Mary Charlotte Carroll and the editors of the Yale Law Journal for reading many drafts and offering terrific suggestions. All errors are my own.

NOTE CONTENTS INTRODUCTION 1216 I. FORCED LABOR AND THE BATTLES TO STOP IT 1220 A. Labor Trafficking and Its Victims 1221 B. The TVPA: Silver Bullet or Pipe Dream? 1222 II. CURRENT STRATEGIES TO COMBAT TRAFFICKING 1227 A. Prosecutions 1227 B. Alternative Civil Claims 1229 1. The FLSA and State Employment Law 1229 2. RICO 1231 C. The Trafficking Class Action 1233 1. Reinterpreting Rule 23 1233 2. Empirical Analysis 1236 III. A MISSED OPPORTUNITY 1242 A. Forced Labor in the Land of Lincoln 1243 B. A Curious Neglect 1244 C. Benefits of the TVPA 1247 IV. THE PROPOSED STRATEGY 1252 A. The Parens Patriae Power 1252 B. Parens Patriae Authority Under the TVPA 1255 1. Statutory Interpretation of the Parens Patriae Power 1255 2. Legislative and Purposive Support for the Parens 1258 Patriae Power C. Benefits of the Proposed Strategy 1262 CONCLUSION 1269 APPENDIX 1271 INTRODUCTION

Sabulal Vijayan bet everything on America. The thirty-nine-year-old father of two from Kerala--a state on India's southwest coast--sold his family's possessions, (1) mortgaged his house and land, and paid fifteen thousand dollars to labor recruiters who promised him permanent residency in the United States. (2) Instead, he found himself living and working in "slave-like conditions" on Mississippi's Gulf Coast. (3) When Vijayan started speaking out, the company threatened him with deportation. (4) Out of options and unwilling to "go back home... [w]ith empty hands," he attempted to take his life. (5)

Vijayan is one of nearly six hundred skilled metalworkers brought to the United States by Signal International. (6) Following Hurricane Katrina, the marine oil-rig company and subcontractor to defense giant Northrup Grumman received lucrative contracts to rebuild the Gulf's oil infrastructure. (7) Signal promised workers like Vijayan good jobs and "permanent lifetime settlement" in the United States. (8) Some workers paid as much as twenty-five thousand dollars to Signal's labor recruiters for the opportunity to work in the company's shipyards in Mississippi and Texas. (9) But the workers arrived in the United States to find isolated labor camps surrounded by chain-link fences and patrolled by private guards. (10) One worker recalled twenty-four men sharing a single twelve-foot-by-eighteen-foot room in the labor camp at Signal's shipyard. (11) Conditions were so squalid that one supervisor noted, "Our Indians have been dropping with sickness like flies." (12) Yet Signal deducted more than a thousand dollars a month from workers' paychecks for room and board. (13) And instead of green cards, the men received temporary H-2B guest-worker visas, which typically expire after nine months. (14) Worse still, if the workers quit, they would lose their visas, forcing them back to India with less money in their pockets than when they left. (15)

This double bind is what led Vijayan to attempt to end his life in a bunkhouse bathroom. (16) He ultimately survived and later set out with nearly one hundred other men from Signal's labor camps on a nine-day journey to Washington, D.C., where they began a month-long hunger strike, pleading for the U.S. Department of Justice (DOJ) to prosecute Signal and grant the men asylum in America. (17) But DOJ refused. (18) No criminal charges were ever brought against Signal International or the recruiters who deceived the men into leaving their homes half a world away. Instead, the workers endeavored to do it themselves. In March 2008, they filed a complaint in federal court, alleging, among other claims, violations of recently enacted federal laws that prohibit trafficking humans for their labor. (19) The case, David v. Signal International, LLC, (20) was the largest human-trafficking lawsuit in the history of the United States.

For our purposes, though, the size of the suit is less important than the form it took. Vijayan and the other men sued Signal not as individual plaintiffs but as a class. It was one of the first labor-trafficking class actions in the country, (21) making use of a 2003 law that created a private right of action for trafficking victims. (22) Since the law's passage, trafficking class actions alleging TVPA claims have grown increasingly popular. (23)

Yet, more than two decades after the Signal workers filed their complaint in the U.S. District Court for the Eastern District of Louisiana, we still know next to nothing about whether class actions are generally an effective tool for trafficked workers. (24) For Vijayan and the Signal workers, at least, it was not. The district court ultimately denied their motion for class certification, leaving the men no choice but to file a dozen independent suits against the company. (25) It took more than seven years for the plaintiffs to obtain any sort of justice for the physical and psychological terror they endured. (26) And while the putative class that the district court declined to certify contained nearly six hundred plaintiffs, these nonclass suits included fewer than three hundred. (27) Nearly half the workers lost access to the courts.

All these years later, it is fruitful to ask whether the failure of the class action against Signal portended a troubled future for labor-trafficking class actions more generally, or whether it was a minor deviation from an otherwise encouraging trend. (28) Do class actions serve as "a viable option and valuable deterrent to combating the magnitude of [trafficking] in the twenty-first century," (29) as one commentator has argued? If not, what options remain? To answer these questions, this Note undertakes an original empirical analysis of putative class actions brought by trafficked workers, assessing the frequency with which courts certify classes asserting TVPA claims. The Note concludes that, although workers in recent years have begun using the class action with increased frequency, courts have largely been reluctant to certify classes. (30) In this respect, then, the case against Signal was not an anomaly but a warning.

Faced with this discouraging evaluation of the labor-trafficking class action, I propose an alternative litigation strategy. This strategy, too, asserts strength in numbers, but it sidesteps the procedural hurdles inherent in class certification. The strategy I suggest calls on states to bring suits on behalf of workers. I argue that state attorneys general should make use of their common-law parens patriae power to vindicate the rights of trafficking victims. Although a number of state attorneys general have recently begun focusing their attention on workers' rights, (31) none have yet brought civil trafficking claims against employers who exploit their workers. Instead, state attorneys general bring traditional labor-and employment-law claims. This Note seeks to highlight a missed opportunity. As state attorneys general begin advocating for the rights of workers in earnest, they should embrace perhaps the most important tool the law provides to that end: the parens patriae suit. Because criminal prosecutions are rare, and large class actions often unsuccessful, a broad invocation of the parens patriae power by state attorneys general might not only be the best option for workers; in many cases, it might also be their only option.

The Note proceeds as follows: Part I briefly outlines the scope of the labor-trafficking problem in the United States today and then looks at the civil right of action enshrined in the TVPA in 2003. Part II examines the current strategies to combat trafficking. The first strategy, criminal prosecutions, has been rarely employed at both the federal and state level. Individual civil claims, too, seem to hold little promise. As a last resort, trafficking victims are increasingly turning to class actions. I undertake an empirical study to determine whether this new strategy is sound. Concluding that it likely is not, I examine in Part III why state attorneys general have not stepped into the breach and show what they leave on the table by failing to bring TVPA claims. Finally, Part IV introduces the alternative litigation strategy, arguing that aggregate action initiated at the state level through the parens patriae power could prove more fruitful than private class actions. Such a strategy can vindicate the collective rights of trafficked workers while avoiding the precarious procedural terrain of the modern class action.

1. FORCED LABOR AND THE BATTLES TO STOP IT

   The labor trafficking problem is vast and varied. Here, I examine its scope, the victims most affected by it, and the illegal profits that perpetuate it. Then, I explore the recent and, to date, only federal law specifically targeted at human trafficking and discuss the issues that prompted Congress to act. I conclude this Part with a brief examination of the 2003 amendment to that law granting victims a private right of action.

   1. Labor Trafficking and Its Victims

      Scholars estimate that more than four hundred thousand workers in the United States are forced to work against their will. (32) But not all labor trafficking is as conspicuous as in the Signal case. One need not be locked in a trailer within a gated camp to be trafficked. Other forms of trafficking involve subtler methods of control such as withholding or falsifying workers' documents, extortion, physical and psychological manipulation, and threats or use of force against family members. (33) Traffickers often take advantage of their victims' tenuous immigration status, threatening revocation of visas or deportation. (34) Additionally...