June 21, 2018
Calling the Plaintiffs’ Bar: A Corporate Law Suit on the Border Family Separation Horror?
Professor of Law and Michael and Helen Lee Distinguished Scholar, Boston College Law School
Americans are rising up in disgust, horror, and anger at the Trump administration policy of separating children from their parents at the border. Among those separated are children of those seeking asylum, a right guaranteed by domestic and international law.
Most immigration experts agree that the Trump administration is violating law by separating children from parents. Some have gone so far as to call it “state terrorism.”
The outcry appears to have had some effect. Trump announced yesterday that he had signed an executive order ending the separation policy. It appears, however, that the illegality may be continuing. Trump has promised “indefinite” detention for those held at the border. Even without separation, indefinite detention of children may itself be a violation of law.
This post is to raise another possible front to the resistance — that of suits brought against companies involved as contractors in operationalizing the Trump policies. I have been discussing this possibility with several attorneys and colleagues around the country today, and a number of people are actively looking into filing suits.
This post is meant to spur others into action and to provide the information needed to start thinking about filing your own suit against corporations collaborating with the Trump illegalities in various ways.
The quick summary of the idea is this: Corporations are chartered to conduct “lawful” business and to engage in “lawful” activities. To engage in illegality as a matter of corporate policy is ultra vires — beyond the power of the corporation. Though long thought to be dead, the doctrine of ultra vires survives to cabin corporate activity within the law. Moreover, the law that matters is not only domestic law but whatever law of whatever jurisdiction in which the company operates. That includes international law.
Shareholders or state attorneys general can sue to enjoin companies acting ultra vires in the chartering jurisdiction.
Importantly, the Supreme Court decisions limiting the ability to hold corporations accountable under the Alien Tort Statute, such as this Term’s decision in Jesner v Arab Bank, do not relate to ultra vires claims.
The ultra vires theory has already been used to good effect. It served as the basis for a lawsuit ACS board member Rueben Guttman helped bring against Hershey Corporation several years ago to challenge Hershey’s alleged use of illegal child labor in west Africa. That suit survived a motion to dismiss. (See links below.)
So plaintiffs’ lawyers, gird your loins. This is an “all hands on deck” moment to protect whatever is left of our national dignity.
And until the more than 2000 children separated under the initial policy are reunited with their parents, that initial illegality continues.
Following are some helpful links to those who may want to pursue this. Feel free to contact me at kent.greenfield@bc.edu if I can be of assistance to you in any way.
The illegality of Trump’s actions:
Possible Corporate Involvement in Implementing Border Policies (I have not independently confirmed any of the information in these posts):
https://www.nytimes.com/2018/06/21/us/migrant-shelters-border-crossing.html
https://www.npr.org/2017/11/21/565318778/big-money-as-private-immigrant-jails-boom
https://docs.google.com/document/u/1/d/16Z04gxhORlgmS5sDhnX_ryDfSF8T2a6AwZWV1PMY-H8/mobilebasic
https://www.ctpost.com/local/article/Defense-contractor-General-Dynamics-tied-to-13008540.php
Scholarly Development of the Ultra Vires Theory of Corporate Liability:
Kent Greenfield, Ultra Vires Lives! A Stakeholder Analysis of Corporate Illegality (With Notes on How Corporate Law Could Reinforce International Law Norms), 87 VA. L. REV. 1279 (2001).
Kent Greenfield and Adam Sulkowski, A Bridle, a Prod, and a Big Stick: An Evaluation of Class Actions, Shareholder Proposals, and the Ultra Vires Doctrine as Methods for Controlling Corporate Behavior, 79 ST. JOHN’S L. REV. 929 (2005).
Chapter 4 in Kent Greenfield, The Failure of Corporate Law: Fundamantal Flaws and Progressive Possibilities (Chicago Univ. Press, 2006).
Background Information About Suit Brought Against
Hershey for Violations of International Law:
ACS Blog post on the suit: Kent Greenfield, “Blood Chocolate, Corporate Law, and the ACS,” The ACSBlog, March 25, 2014.
Amicus brief filed by Nancy Gertner and Kent Greenfield in Hershey litigation
Article about the Hershey litigation
Article #2 About Hershey litigation
Sturm College of Law site on Hershey litigation
UPDATE: This theory is not the only one that might be marshaled in a suit against corporations and others involved in Trump’s immigration policy. See this link:
Also, the author has been approached by a funder who is eager to help finance impact litigation of this type. Contact the author for more information.