Trial Magazine

The “fastest growing criminal enterprise in the world” is human trafficking.¹ The fight against human trafficking and to protect survivors is a social justice issue that trial lawyers and the civil justice system cannot ignore.

The Trafficking Victims Protection Act of 2000 identified “severe forms of human trafficking” as either sex trafficking² or labor trafficking.³ Human trafficking is both pervasive and invisible in our society.⁴ In some respects, its pervasiveness depends on its invisibility.⁵ Although most media coverage of human trafficking focuses on the sex trafficking industry, according to the International Labour Organization (ILO), the estimated number of people subjected to sex trafficking in the private sector (4.5 million people) is far outweighed by the estimated number of people subjected to labor trafficking  (21 million people).⁶ These millions of laborers may remain invisible if they work in environments where people are especially vulnerable to forced labor conditions, such as farms, hotels, and salons.⁷

No “single profile” exists for the estimated tens of millions of people subjected to private and public sector human trafficking globally, including the hundreds of thousands of people trafficked within the United States.⁸ However, certain demographic markers do indicate a heightened vulnerability to human trafficking. Runaway youth,⁹ foreign nationals,¹⁰ people with disabilities,¹¹ and people who have suffered previous violence or trauma¹² are especially vulnerable.

Pre-Litigation Considerations

Civil lawsuits on behalf of human trafficking survivors explicitly became possible under federal law in 2003.¹³ Often, survivors of human trafficking do not know they can seek redress for their injuries through private rights of action. Compared to clients in other civil matters, survivors of human trafficking may depend even more heavily on their counsel for education and emotional support in all aspects of litigation and even in other areas, such as accessing social services to find stable housing, food assistance, or employment readiness training.¹⁴

When representing a survivor of human trafficking, it is important to build rapport early and to candidly discuss the personal toll the litigation is likely to take. Reliving the horror of the experience through discovery and trial could retraumatize the client, and you should assess this possibility at the outset. For instance, if your potential client is not being treated for emotional trauma, you could refer that person to an experienced therapist who can advise the client directly about whether he or she is emotionally ready to proceed with the demands of a lawsuit.

Once the client’s readiness has been assessed, determine whether a civil lawsuit is the right option. Some clients will feel vindicated by publicly telling their story; others will not. If we are to meaningfully serve survivors of trafficking, we should represent clients who have made informed choices to proceed with civil litigation.

Here are some other factors to assess early on: If the trafficker has not been apprehended, discuss and address any potential danger to the client’s safety.¹⁵ You may need to use pseudonyms in the complaint to protect your client’s identity or seek temporary restraining or protective orders to shield your client (and your client’s records) from the trafficker.¹⁶

If your client is a foreign national in need of immigration relief, you must work quickly to solve the problem. You could, for example, help the client apply for “T” nonimmigrant status (or a “T visa”), which was specifically designed to protect survivors of human trafficking.¹⁷ Similarly, the “U” visa, which was designed to protect crime victims who have suffered substantial mental or physical abuse, may also be ­available to survivors of human trafficking.¹⁸ Alternatively, your client may qualify for “continued presence” status, a temporary immigration relief status provided to human trafficking survivors that allows them to lawfully remain in the United States to help ongoing investigations of the trafficking-related crimes committed against them.¹⁹

Also consider whether the client has any pending criminal charges and, if so, how those charges should be addressed and how civil litigation may affect them. If a civil lawsuit is filed while a client’s criminal charge is pending, for example, your client could be in the awkward position of invoking Fifth Amendment protections while testifying in a civil deposition. The best practice is for the client to obtain (by appointment or retention) separate counsel for the criminal matter and for you to establish a good working relationship with the client’s criminal defense attorney.

This issue may arise more frequently than it should because survivors of human trafficking are often treated like perpetrators of crimes rather than victims. Although increasing efforts to decriminalize the conduct of survivors of trafficking are being made, you must confront this issue in your initial assessment of a potential case.²⁰

Finally, assess collectability of damages and insurance coverage issues. For example, although third parties—such as motel owners and website operators—may be overlooked in criminal prosecutions, name them in your civil lawsuit if they are joint tortfeasors or vicariously liable for the traffickers’ acts. They may be the only parties able to satisfy a judgment on behalf of the trafficking survivor.²¹

Potential Remedies

Many statutory and common law remedies are available to survivors of human trafficking. The Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA) allows a trafficking survivor to bring a private cause of action for forced labor, trafficking into servitude, sex trafficking, and any other violation of 18 U.S.C. §77 in federal court against the perpetrator or anyone who “knowingly benefits” from the ­enterprise.²² The statute of limitations is 10 years.²³

Although the TVPRA allows for recovery of actual damages (and reasonable­ attorney fees), it does not specify how those damages should be measured. Courts, however, have awarded plaintiffs compensatory damages for lost wages and emotional distress.²⁴ The TVPRA does not explicitly contemplate punitive damages, but “every court to consider the issue has held that punitive damages are available.”²⁵

Furthermore, 40 states and the District of Columbia also have enacted legislation²⁶ that allows survivors to sue their traffickers.²⁷ For example, Alabama’s human trafficking statute contains a specific civil remedy allowing a survivor to recover damages against not only the perpetrator but also any facilitator.²⁸

Survivors also can bring claims under various federal laws. For example, the Alien Tort Claims Act provides federal civil remedies for human rights violations that may have occurred outside the United States.²⁹ The Racketeer Influenced and Corrupt Organizations Act,³⁰ the Fair Labor Standards Act,³¹ the Migrant and Seasonal Agricultural Worker Protection Act,³² the Immigration Reform and Control Act,³³ and Title VII of the Civil Rights Act³⁴ also provide potential causes of action for trafficking survivors.

Survivors also may bring state law claims for intentional torts (such as assault and battery) and negligence, as well as contractual and quasi-contractual claims. For example, a breach of contract may be established when a trafficked person accepts an employment offer and is then denied the opportunity or the salary that the parties agreed to.³⁵

If a criminal case is pending against your client’s trafficker, you should work with the prosecutor to encourage the pursuit of restitution, which is mandatory in many cases.³⁶ Importantly, civil damages awarded to a survivor of human trafficking can supplement any damages awarded via a criminal restitution order. Only the named criminal defendant is subject to the restitution order, while civil litigation may provide the survivor an opportunity to recover damages from third parties.³⁷ Moreover, civil damages awards may exceed criminal restitution awards because other forms of relief may be available in a civil case: pain and suffering, punitive, statutory, liquidated, and treble damages.³⁸

Current State of Litigation

Federal criminal prosecutions to combat human trafficking have steadily increased over recent years.³⁹ The ­plaintiff bar has a duty to join the fight by pursuing civil justice remedies on behalf of survivors when appropriate. Several relatively recent cases involving labor trafficking and sex trafficking are worth highlighting here.

In February 2015, a federal jury awarded $14.1 million to five plaintiffs in one of the country’s largest human trafficking and forced labor cases.⁴⁰ The plaintiffs were Indian guest workers to the United States who had been subjected to forced labor along the Gulf Coast in the aftermath of Hurricane Katrina. Defendant Signal International, LLC, eventually filed for bankruptcy protection, and all the remaining 11 cases were settled for $20 million.⁴¹

Also, in early 2015, a federal jury in Atlanta awarded damages to an African domestic worker who was held as a virtual slave in a couple’s home for nearly two years.⁴² Following the verdict, plaintiff counsel stated that “the only way to really stop trafficking is to have civil damages against traffickers.”⁴³

There also have been several recent legal victories for victims of sex trafficking. For example, several months ago, the Oregon Bureau of Labor and Industries secured a $1.25 million award—the largest settlement the bureau has ever secured for an individual worker—against an Oregon strip club in favor of a survivor who was forced to work there as a prostitute when she was only 13 years old.⁴⁴ Another survivor, who was 15 years old at the time of the trafficking, was recently awarded $1 million under an administrative law judge’s ruling on the charges filed by the Oregon bureau; her civil case is ongoing.⁴⁵

Recent decisions in lawsuits filed by trafficking survivors against defendants other than traffickers may set important precedent for survivors seeking civil remedies against parties who have financially benefitted from “hosting” a human trafficking operation. A fed­eral appellate court recently held that a plaintiff-survivor, who asserted numerous claims under the TVPRA’s civil liability provision, sufficiently pleaded several claims against a motel operator for knowingly benefitting from participation in a venture that involved forced labor and sex trafficking.⁴⁶

Another recent case suggests that liability for hosting trafficking operations need not be limited to hotel and motel operators. Overcoming  earlier decisions against sex trafficking survivors suing Backpage.com—the website where they were bought and sold for sexual services as children—in late 2015, the Washington Supreme Court held that even under the Communications Decency Act of 1996 (CDA), plaintiff-survivors were entitled to proceed to trial.⁴⁷ Specifically, the court explained that while the CDA shields website operators from state law liability for merely hosting content, it did not protect those operators who develop the content.⁴⁸ Because the plaintiffs alleged the defendants not only provided the forum but also helped develop the ads, the plaintiffs stated a plausible claim for relief, and the defendants could not win a motion to dismiss.⁴⁹

As these cases show, the civil justice system is another way for survivors of human trafficking to have a chance at a new life. Plaintiff attorneys have fought and won significant social justice battles before, and our collective effort can help eliminate the scourge of human trafficking—one of our era’s greatest human rights crises.

Gregory Zarzaur is a founding member and lead trial attorney at Zarzaur Mujumdar & Debrosse in Birmingham, Ala. He can be reached at gregory@zarzaur.com.

Notes

1. Human Rights First, Corporate Liability and Human Trafficking 24 (Dec. 2015), https://tinyurl.com/y8jn9muw; see also Tom Lowery, What Is Human Trafficking? Huffington Post (Mar. 26, 2017), https://tinyurl.com/yabxqpz5.
2. Sex trafficking is defined in this context as the “recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act . . . induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.” 22 U.S.C. §§7102(10), (9)(A) (2012). 
3. Labor trafficking is defined as the “recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” 22 U.S.C. §7102(9)(B). 
4. See generally Stephanie Hepburn & Rita J. Simon, Human Trafficking Around the World: Hidden in Plain Sight (2013). 
5. See generally Polaris, Sex Trafficking in the U.S.: A Closer Look at U.S. Citizen Victims (May 2015), https://tinyurl.com/yce5ece8.
6. See Int’l Labour Org., Forced Labour, Modern Slavery and Human Trafficking (1996–2017), https://tinyurl.com/k6c2eex; see also Int’l Labour Org., 2017 Global Estimates of Modern Slavery and Child Labour (1996–2017), https://tinyurl.com/y94gmb3u. 
7. See Lowery, supra note 1.
8. See Nat’l Human Trafficking Hotline, The Victims, https://tinyurl.com/lmqr2wt; see also Priscilla Alvarez, When Sex Trafficking Goes Unnoticed in America, The Atl. (Feb. 23, 2016), https://tinyurl.com/k9xqfdc. Note: “private sector” refers to private businesses while “public sector” refers to governments that engage in trafficking.
9. See, e.g., Nat’l Network for Youth, Human Trafficking and the Runaway and Homeless Youth Population, https://www.1800runaway.org/wp-content/uploads/2015/05/Homeless-Youth-and-Human-Trafficking.pdf.
10. See, e.g., Office of Justice Programs, Human Trafficking Task Force e-Guide: Foreign National Victims, https://tinyurl.com/yaaswlrv.
11. See generally Human Trafficking Pro Bono Legal Ctr., Trafficking of Persons With Disabilities in the United States (Apr. 2016), https://tinyurl.com/y7zox7xn.
12. See United Nations Office on Drugs & Crime, An Introduction to Human Trafficking: Vulnerability, Impact and Action 83 (Jan. 2008), www.unodc.org/documents/human-trafficking/An_Introduction_to_Human_Trafficking_-_Background_Paper.pdf.
13. Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No: 108-193, 117 Stat. 2875 (Dec. 19, 2003) (codified at 22 U.S.C. §7101 n.). See generally Polaris, Current Federal Laws, https://polarisproject.org/current-federal-laws.
14. For a list of federal social support services available to survivors of human trafficking, see U.S. Dep’t of State, Trafficking in Persons Report 389–93 (June 2016), https://www.state.gov/documents/organization/258876.pdf.
15. See, e.g., Carol Morello, Human Trafficking Survivors Recommend Changes in U.S. Policies, Wash. Post (Oct. 18, 2016), https://tinyurl.com/y9x4xose.
16. See Daniel Werner & Kathleen Kim, Civil Litigation on Behalf of Victims of Human Trafficking 12–15 (3d ed., Oct. 2008), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/splc_human_trafficking.pdf. 
17. See U.S. Citizenship & Immigration Servs., Victims of Human Trafficking: T Nonimmigrant Status, https://tinyurl.com/lh4hy5j. 
18. See U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://tinyurl.com/kyeq7dj. 
19. 22 U.S.C. §7105(c)(3) (2012); U.S. Immigration & Customs Enforcement, Continued Presence: Temporary Immigration Status for Victims of Human Trafficking (Aug. 2010), https://www.dhs.gov/xlibrary/assets/ht-uscis-continued-presence.pdf.
20. See Trafficking Victims Advocacy Project & Int’l Women’s Human Rights Clinic at the City Univ. of N.Y., Criminalization of Trafficking Victims (Apr.–May 2015), www.law.cuny.edu/academics/clinics/iwhr/publications/Criminalization-of-Trafficking-Victims.pdf.
21. See Werner & Kim, supra note 16, at 23–27.
22. See 18 U.S.C. §1595(a) (2012), §1589 (forced labor), §1590 (trafficking into servitude), and §1591 (sex trafficking of children).
23. See 18 U.S.C. §1595(c).
24. Lipenga v. Kambalame, 219 F. Supp. 3d 517, 531 (D. Md. 2016) (citing cases); cf. Francisco v. Susano, 525 F. App’x 828, 835 (10th Cir. 2013). 
25. David v. Signal Int’l, LLC, No. 2:08-CV-01220, at 2 (E.D. La. Jan. 28, 2015), https://www.workplaceclassaction.com/wp-content/uploads/sites/214/2015/02/Signal-1.pdf (internal citation omitted); see, e.g., Francisco, 525 F. App’x at 835; Carazani v. Zegarra, 972 F. Supp. 2d 1, 26 (D.D.C. 2013); Doe v. Howard, 2012 WL 3834867, at *4–5 (E.D. Va. Sept. 24, 2012); accord Macolor v. Libiran, 2016 WL 1488121, at *5 (S.D.N.Y Mar. 25, 2016).
26. See Polaris, Human Trafficking Issue Brief: Civil Remedy (Fall 2015), https://polarisproject.org/sites/default/files/2015%20Civil%20Remedy%20Issue%20Brief.pdf.
27. See Polaris, 2014 State Ratings on Human Trafficking Laws (Sept. 2014), https://tinyurl.com/y8ygjwmt; Shared Hope Int’l, 2016 State Report Cards—Protected Innocence Challenge (2017), https://tinyurl.com/y8qyh6gl.
28. See Ala. Code §§13A-6-155(a)-156 (2013).
29. See 28 U.S.C. §1350 (2012). Be wary, however, of pursuing claims that do not touch and concern the United States. See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013). 
30. See 18 U.S.C. §§1961-68 (2012).
31. 29 U.S.C. §§201-19 (2012). 
32. See 29 U.S.C. §§1801-72 (2012).
33. See 8 U.S.C. §1101 (2012).
34. See 42 U.S.C. §§2000e-16 (2012).
35. See e.g., Carazani v. Zegarra, 972 F. Supp. 2d 1, 16–21 (D.D.C. 2013); see also Werner & Kim, supra note 16, at 72–73. 
36. See 18 U.S.C. §1593.
37. Werner & Kim, supra note 16, at 2. 
38. Id. 
39. See U.S. Dep’t of State, supra note 14, at 389. 
40. See Associated Press, Judge Rules Against Signal International, Awards Indian Guest Workers $14M in Trafficking Case, AL.com (Feb. 19, 2015), https://tinyurl.com/y6uj6ff4. See generally David, No. 2:08-CV-01220, at 2. 
41. See S. Poverty Law Ctr., $20 Million Settlement Agreement Reached in Labor Trafficking Cases Coordinated by SPLC on Behalf of Exploited Indian Guest Workers (July 13, 2015), https://tinyurl.com/ya48e6xl.
42. See Dlamini v. Babb, 2014 WL 5761118 (N.D. Ga. Nov. 5, 2014), 2015 WL 3849693 (N.D. Ga. Apr. 28, 2015). 
43. See R. Robin McDonald, Ellenwood Couple in Human Trafficking Case Ordered to Pay $365K to Victim, Daily Rep. (May 6, 2015), https://tinyurl.com/ycw4kkcr.
44. Associated Press, Ore. Strip Club to Pay $1.25 Million to 13-Year-Old Dancer, U.S. News & World Rep. (June 20, 2017), https://tinyurl.com/y9eqy9co. 
45. Everton Bailey Jr., Stars Cabaret Should Pay $1 Million to Ex-Dancer, 15, Subjected to Sexual Harassment, Judge Says, The Oregonian (July 19, 2017), http://www.oregonlive.com/beaverton/index.ssf/2017/07/stars_cabaret_should_pay_1_mil.html. 
46. See, e.g., Ricchio v. McLean, 853 F.3d 553 (1st Cir. 2017). 
47. See J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714 (Wash. 2015) (en banc).
48. Id. at 715. 
49. Id. at 715–16.