Issue 41, June 2022 View this email in your browser
Welcome to our Corporate Legal Accountability Quarterly Update -- highlighting a specific topic each quarter, as well as key developments in corporate legal accountability.  The Corporate Legal Accountability hub on our website provides objective, concise information about lawsuits against companies in which human rights abuses are alleged .
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Key Resources

Quarterly Highlight

Legislative developments signal increasing commitment to corporate accountability for human rights abuses

In ensuring companies’ respect for human rights and affected people’s access to remedy, voluntary initiatives such as the UN Guiding Principles on Business and Human Rights, even when supported by creative lawyering, are frequently shown to be insufficient. Robust legal frameworks, complete with regulatory consequences, are required to ensure consistent corporate accountability for human rights abuses.

Recent developments suggest that political will, supported by civil society efforts and an increasing number of companies, is growing across a range of jurisdictions to more fully regulate corporate behaviour through legislation.

At the EU level, the recent publication of the Proposal for a Directive on Corporate Sustainability Due Diligence marks an important first step in developing mandatory human rights and environmental due diligence legislation. The Representative Actions for the Protection of the Collective Interests of Consumers Directive also represents a milestone in the EU’s attempts to ensure consumer protection. And across the world, Canada’s Bill C-262 and the United States’ Alien Tort Statute Clarification Act, as well as the federal Fashioning Accountability and Building Real Institutional Change (FABRIC) Act, confirm the growing trend of requiring businesses to respect human rights and provide legally enforceable redress to victims of abuses on the basis of regulatory requirements.

These legislative developments offer high hopes for expansion of corporate legal accountability and for affected communities seeking justice. They could also pave the way for other countries or regional blocks to follow suit.

Click here for an overview of recent examples.

Lawsuit Profiles

Updates to existing lawsuit profiles

African Barrick Gold lawsuit (re Tanzania, filed in the UK): In 2020, 10 Tanzanians filed a lawsuit in the UK against Barrick Tz Ltd alleging serious abuses by security forces, including local police, employed at Barrick’s North Mara gold mine in Tanzania. In April 2022, the High Court of England and Wales ordered Barrick Gold’s subsidiaries to disclose documents about police shootings and security-related violence at the mine.

Auchan lawsuit (re deceptive business practices, filed in France): In 2015, NGOs filed a complaint in France against the supermarket Auchan alleging the company used misleading advertisements regarding the conditions in which its clothing was produced since labels from its “In Extenso” clothing range were found in the rubble of the Rana Plaza factory in Bangladesh. The plaintiffs highlight that the company has made public statements regarding its commitment to social and environment standards in its supply chain. Auchan has denied the claims. In May 2022, the NGOs announced they were appealing the April 2022 decision dismissing the case due to lack of evidence. They denounced "the failure of the international legal assistance system, which did not allow for a thorough investigation".

BHP & Vale lawsuit (re dam collapse in Brazil, filed in the UK): In 2018, over 240 000 Brazilians filed a lawsuit in the UK against BHP Billiton, seeking£5 billion in compensation over the Fundaõ dam collapse in Brazil that killed 19 and caused extensive environmental damage. On 4 April 2022, there was a hearing before the Court of Appeal to establish if the case can be heard in the UK.

Clearview AI lawsuit (re consent over scanning of online photos, filed in the US): In May 2020, six NGOs filed a complaint against Clearview AI in the Circuit Court of Cook County in Illinois, USA. The plaintiffs allege that Clearview used facial recognition technology to capture “faceprints” from Illinois residents using online photos without obtaining their consent, which violates Illinois law. In May 2022, Clearview AI settled the lawsuit without admission of liability and agreed not to sell its facial recognition database to most US companies. The company must also provide an online "opt-out" form on its website so Illinois residents can make sure their faceprints can be blocked from search results if they are in the database. The settlement needs to be approved by a judge.

Lafarge lawsuit (re complicity in crimes against humanity in Syria, filed in France): In 2016, 11 former Syrian employees and two NGOs filed a criminal complaint against cement company Lafarge (part of LafargeHolcim), before French courts. The lawsuit alleges that during Syria’s civil war, the company’s subsidiary bought raw material from jihadist groups, including ISIS, and negotiated safe passage of its workers and products in exchange for compensations amounting to 13 million euros. On 18 May 2022, the Paris Court of Appeals reinstated the charge of "complicity in crimes against humanity" against Lafarge. The company is also charged with financing terrorism and endangering the lives of others. Holcim declared that it disagrees with the decision and will appeal to the French Supreme Court.

RWE lawsuit (re climate change impact in Peru, filed in Germany): In 2015, a Peruvian farmer filed a lawsuit against RWE in German court alleging his home is threatened by climate change caused by RWE as a major emitter of greenhouse gases, and causing glacial melting and increased flood risk. The plaintiff asks RWE to pay repair costs for his home, relative to the percentage the company has contributed to global warming. RWE maintains a single company cannot be held responsible for climate change. In May 2022, judges and experts appointed by the court visited Peru to assess the risk and level of damage to the city of Huaraz from the nearby melting glaciers.

Samsung lawsuit (re misleading advertising & labour rights abuses, filed in France): In January 2018, two NGOs filed a deceptive marketing practices lawsuit against Samsung Electronics France and its South Korean parent company in France, using consumer protection laws. The NGOs argue that Samsung's public ethical commitments constitute misleading advertising in light of evidence of alleged labour rights violations in the companies' factories in Vietnam and South Korea. In March 2022, the Supreme Court rejected the NGOs' appeal, confirming an April 2021 decision that declared the case inadmissible and annulled the indictment of the company. The judge agreed with Samsung's argument that the NGOs did not have the required approval by the Ministry of Justice to file a complaint for deceptive marketing practices.

NSO Group lawsuit (re hacking WhatsApp users, filed in the US): In 2019, WhatsApp filed a lawsuit in California state court against NSO Group alleging that the company had hacked the WhatsApp server to plant Pegasus spyware on 1 400 user devices worldwide, targeting journalists, lawyers, religious leaders, and political dissidents. Plaintiffs argue that this violates the US Computer Fraud and Abuse Act and California Comprehensive Data Access and Fraud Act, and seek damages as well as an injunction to prevent NSO Group from accessing their computer system. On 6 April 2022, NSO Group asked the US Supreme Court to review the decision of the Appeals Court for the Ninth Circuit, rejecting NSO's claim of protection under sovereign immunity laws and allowing the lawsuit to proceed. NSO now asks to be recognised as a foreign government agent and therefore be entitled to sovereign immunity.

Shell lawsuit (re executions in Nigeria, Kiobel v Shell, filed in the Netherlands): In June 2017, Esther Kiobel and three other women launched a civil case against Shell in the Netherlands. They claim the company was complicit in the 1995 killings of their husbands, part of the Ogoni Nine activists who contested Shell's operations and the Nigerian Government over the effects of oil pollution. Shell has denied any involvement in their executions. On 23 March 2022, a court in The Hague dismissed the case due to insufficient evidence to link Shell to bribing witnesses to give false testimony at the activists’ trial that led to their execution. Esther Kiobel said she will appeal the decision.

Legal Developments

Mexico: EDF's Gunaa Sicarú wind energy project has contract cancelled following a court ruling, WindPower Monthly, 9 Jun 2022

Yemen: NGOs file criminal complaint in France against arms companies over alleged complicity in aiding and abetting war crimes, Sherpa, Amnesty International France, European Center for Constitutional and Human Rights (ECCHR) & Mwatana for Human Rights, 2 Jun 2022

Glencore 'to admit' charges related to $25m bribes for oil contracts, Sky News, 25 May 2022

Philippines: Landmark ruling against Marcopper Mining Corporation for negligence in one of the country’s worst mining disasters, Legal Rights Center, 23 May 2022

Kenya: Former employee sues Meta & its contractor Sama for alleged human trafficking & poor mental health support, BBC, 13 May 2022

Human rights groups intervene in historic class action for lead poisoning launched by Zambian children in a South African court,  The Southern Africa Litigation Centre & Amnesty International; University of the Witwatersrand, 9 May 2022
Philippines: Commission on Human Rights releases national inquiry on climate change & calls for carbon majors to be held accountable, Greenpeace Southeast Asia & Commission on Human Rights of the Philippines, 6 May 2022

European Court of Human Rights condemns Italy for failure to uphold rights violated in cases related to ILVA steel plant pollution, FIDH, 6 May 2022 
So. Korea: District court orders sale of some Mitsubishi Heavy Industries assets seized in wartime labour lawsuit, Japan Times, 2 May 2022 
USA: NGO files lawsuit in Washington DC against Bumble Bee over deceptive marketing claims regarding its labour practices, Seafood Source & Global Labor Justice - International Labor Rights Forum, 10 Apr 2022

Turkey: Yves Rocher, the French cosmetics company, facing court proceedings for failure to ensure workers' rights and trade union rights, Sherpa, ActionAid France & Petrol-Iş, 24 Mar 2022

Nigeria: Environmental lawyer awarded the Goldman Environmental Prize for work on holding Shell accountable for oil spills, CNN, 23 May 2022
Click here for more legal news

Key Resources

From Business and Human Rights Resource Centre

EU Commission survey: Resource Centre feedback on the Corporate Sustainability Due Diligence proposal, 23 May 2022

Africa Quarterly Update: African communities seek justice in court, 20 May 2022

Unbearable harassment: The fashion industry and widespread abuse of female garment workers in Indian factories, 21 Apr 2022

Human rights defenders and business in 2021: Protecting the rights of people driving a just transition, 5 Apr 2022

Internet shutdowns in Africa: Addressing the human rights responsibilities of telecoms companies, 29 Mar 2022

Updated resource page on France’s Duty of Vigilance Law

From other organisations

Strategic Litigation: A New Phenomenon in Dispute Resolution, Burkhard Hess, Max Planck Institute, May 2022

Climate Action Portal and Call for case studies, PILnet, 25 May 2022

OHCHR Feedback on the Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence, OHCHR, 23 May 2022

EU: Over 220 CSOs call for proposed corporate sustainability due diligence law to be strengthened, ECCJ & others, 11 May 2022
Greenwashing: Exploring the risks of misleading environmental marketing in the UK, Canada, France and Singapore, Gowling WLG, 28 Apr 2022
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