Congress's conscious denial of restitution to victims of forced labor.

AuthorZieja, David M.

David v. Signal Int'l, L.L.C., 2012 U.S. Dist. LEXIS 114247, at *1 (E.D. La., Jan. 3, 2012).

In an attempt to reduce the thousands of men, women, and children who fall victim to human trafficking each year, the United States passed the Victims of Trafficking and Violence Protection Act of 2000. (1) Among the various immoral enterprises that are fueled by human trafficking, the eradication of forced labor was one of the TVPA's primary objectives. (2) In David v. Signal Int'l, LCC, (3) the U.S. District Court for the Eastern District of Louisiana was confronted with a question of first impression when approximately five-hundred foreign ship and rig workers (Plaintiffs) attempted to certify themselves as a class for their forced labor claim under 18 U.S.C. [section] 1589 ([section] 1589) of the TVPA. (4) In compliance with [section] 1589's restrictive focus on the consent of each alleged victim, the court denied the Plaintiffs' motion for class certification because it would be improper to evaluate the consent of each individual via generalized class-wide proof. (5)

In 2004, Malvern C. Burnett, an immigration attorney and his business Gulf Coast Immigration Law Center, LLC and Law Offices of Malvern C. Burnett, A.P.C. (collectively, Burnett), labor recruiter and broker Michael Pol and his company Global Resources, Inc. (collectively, Pol), labor broker Billy Wilks and the two companies through which he operated, J & M Associates Inc. of Mississippi and J & M Marine & Industrial, LLC (collectively Wilks), Kurella Rao and his company Indo-Ameri Soft, LLC (IAS), and Indian labor recruiter Sachin Dewan and his company Dewan Consultants Pvt., Ltd. (collectively, Dewan), jointly developed a plan to recruit foreign laborers to work for their clients through the permanent residency process. (6) Recruitment of the laborers, which occurred solely in India, required each applicant to pay a fee of approximately $10,000 to $12,000 in order to be eligible for the program. (7) In light of this exorbitant fee, applicants sold their possessions or borrowed money from family and friends in hopes of acquiring permanent residency in the United States; a process, which they were told, was allegedly going to take two years. (8) As of February 2006, however, none of the green cards that were promised to the approximately 362 applicants came to fruition. (9) Many of the applicants, frustrated by the absence of progress, demanded refunds only to be denied by the recruiters. (10) Just when it seemed as if the recruitment scheme was completely futile, the recruiters found opportunity in the desolation that followed two of the most catastrophic hurricanes to ever hit the United States. (11)

As communities throughout the Gulf Coast struggled to physically and emotionally recover from the devastation inflicted by Hurricanes Katrina and Rita, corporations were focusing their efforts on filling the void of inexpensive labor now apparent in the area. (12) Pol contacted Signal International, LCC (Signal), a marine and fabrication company that provides overhaul, repair, upgrade, and conversion to offshore drilling operations, about providing foreign workers to alleviate its depleted workforce. (13) In order to expedite the immigration process, Pol and Signal offered the Plaintiffs H-2B visas in the immediate future and promised permanent residency later on, with the caveat that Signal would be able to test the applicant's skill set before the applicant traveled to the United States. (14) Dewan, Pol, and Burnett, however, were cognizant of the fact that such an arrangement violated U.S. immigration policy, in that an applicant for an H-2B visa who expressed a desire to obtain permanent residency in the United States would not be approved. (15) Therefore, Dewan employees escorted applicants to their consulate interviews and warned them not to mention anything about obtaining permanent residency or the substantial amount of money the applicant paid to participate in the recruitment program. (16) Applicants who complied with the recruiters' demands, paid the extortionate fees, and satisfied Signal's competency test received H-2B visas which enabled them to arrive in Texas and Mississippi to the unpleasant reality that working for Signal was not as advertised. (17)

The Plaintiffs were forced to live and work in abominable conditions without any mention of obtaining permanent resident status. (18) Not only were they forced to live in overcrowded, substandard living quarters, more conducive to the spreading of illness and disease, as sleeping quarters, but payment for such accommodations were deducted from their wages. (19) Furthermore, the Plaintiffs were isolated from the rest of the workforce, subject to security checks, and required to undertake the most dangerous and least desirable jobs. (20) Despite the despondent everyday life at Signal, the Plaintiffs "contend that they were left with no choice but to endure the unpleasant and abysmal conditions at Signal or go back to India financially bankrupt and socially scarred." (21) By March 2009, when many of the workers started to become disgruntled with their circumstances and reach out for legal help, Signal terminated the employment of eight Plaintiffs. (22) In the aftermath of the mayhem that followed the terminations, the Plaintiffs filed a lawsuit against all six defendants for violation of the TVPA's statute against forced labor, [section] 1589. (23)

The modern concept of forced labor stems from the Supreme Court's dilemma in United States v. Kozminski. (24) In Kozminski, the defendants utilized the labor of two mentally retarded men without concern for their physical and mental health. (25) While there was evidence of the defendant's using or threatening to use physical abuse, the prosecution relied primarily on acts of psychological coercion, such as denial of pay, subjection to substandard living conditions, and isolation to establish that the two men were victims of involuntary servitude under 18 U.S.C. [section] 1584 ([section] 1584). (26) The legislative intent behind [section] 1584, however, indicated that the term "involuntary servitude" did not extend protection to victims of psychological coercion, but only physical and legal coercion. (27) Therefore, the Court concluded that while [section] 1584 could not serve as a shield against psychological coercion, the defendant's conviction was still justified because the appalling treatment of the victims constituted physical and legal coercion in clear violation of [section] 1584. (28)

Twelve years after the Court's decision in Kozminski, it became apparent that [section] 1584 was inadequate to substantively deter slavery in the twenty-first century. (29) Unlike with individuals forced into involuntary servitude in the past, modern human traffickers began to more commonly utilize coercion, fraud, and peonage to manipulate vulnerable people into servitude for profit. (30) At the tail end of the Clinton administration, Congress passed the TVPA in order to properly address the issue. (31) The TVPA expanded the scope of forced labor and sex trafficking laws, and also increased the severity of the penalties for violations. (32) More specifically, by including [section] 1589 within the TVPA, Congress expanded the definition of forced...

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