12:52 P.M.
The courtroom was lost in time. Built at the end of the 1970s, it straddled the divide between the soulless brutalism of the postwar years and the more fashionable marriage of classicism and modernism that followed. The ceiling was high and coffered, the furnishings hewn out of dark wood. But the historic veneer was only skin deep. There were no windows, no brass accents, no scrollwork on the molding as in older courtrooms. The place looked hastily designed and half-created, like a museum exhibit or a movie set, which was also, at that moment, the way it felt.
The gallery was crammed with bodies, most of them holding notepads and sketchbooks. Apart from the occupants of the first two rows, everyone was a reporter or a spectator fortunate enough to have survived the gauntlet outside the courthouse. Josh was sitting by the wall just outside the bar. Madison and Lewis were in front of him at the counsel table with John Remington and Peter Chavez. Lily was beside Josh on the bench, having inveigled her mother and her teacher to turn the hearing into a class project. Next to Lily sat Alya, clad in a blue sari and headscarf. Jashel was beside her, and then Ashik, both dressed in suits, hands in their laps, staring silently forward. Sonia sat next to her father, her frail body swaddled in green. Rana was at the end of the row, sporting a headset connected wirelessly to earpieces worn by the plaintiffs. For the duration of the case, he would serve as translator.
When everyone was in place, Josh glanced across the aisle at Presto’s legal team. There were nine of them down from Washington, a cadre of tailored suits and lambskin briefcases. Cameron Alexander was in the first row, doodling on a legal pad. Josh had tried to catch his eye when he walked in, but Cameron ignored him. It had been more than a year since Josh had last seen him. His hair looked slightly grayer, but that was probably an effect of the lighting. Josh puzzled again over the mystery of his motives. Over the past months, he’d done some digging and solved the only riddle in Cameron’s public life—the cause of his wife’s death. The obituary published by her family had given no details, referring only to a “tragic accident.” But Josh had followed a hunch, called in a favor at the Metro police, and ferreted out the truth. Yet it didn’t explain anything. What did Cameron’s guilt over Olivia have to do with Presto?
“All rise!” the bailiff intoned, and Josh stood. “The Honorable Ambrose Pickens Chandler, Chief United States District Judge, presiding. Please be seated and come to order.”
Judge Chandler entered the courtroom with two law clerks in tow. He climbed the steps to the bench and sat down in a tall black chair. He smiled sardonically, surveying the gallery. “It’s always a joy to see so many people interested in the justice system. Mr. Ames, I see you’ve brought some guests from Bangladesh. Would you please introduce them?”
Lewis stood and gestured toward the first row. “Your Honor, this is Sonia Hassan and her father, Ashik Hassan. This is Jashel Sayed Parveen, and this is Alya Begum. This is their first time in a courtroom. They asked me to thank you for hearing their case.”
The judge gave the plaintiffs an inviting smile. “It’s a pleasure to meet all of you.” He turned to the defense table and his expression flattened. “Mr. Blackwell, we’re here on your motion. We’re all waiting with bated breath to hear why this case is misconceived.”
As Rusty stood and went to the podium, Josh suppressed a smile. Madison had told him about the dust-up in chambers over Presto’s recusal motion. The judge had overruled it in a one-paragraph order the day after Rusty filed it, and there the story died. No one in the media cared about the judge’s family connection to Lewis or his penchant for siding with the underdog. The judge’s decision had proven Lewis a prophet. It was he who had argued over the objection of Rana Jalil and Peter Chavez that they should file the case in Virginia, not California. If I’m going to put my name on this lawsuit, he’d said, we’re going to keep it here. Ambrose Chandler will take it, and he’ll give us the best chance we’ll get anywhere in the country.
Rusty opened his notebook and spoke in a somber tone. “Your Honor, before I get into the more technical aspects of our motion, I’d like to reiterate something that Vance Lawson told the public back in November. Everyone at Presto sympathizes with the plaintiffs. I think we can all admit that someone deserves to pay for the terrible things that happened to them. But that someone is not in this courtroom. That someone is not the defendant.”
Rusty cast a sideways glance at Lewis. “This is a straightforward case of mistaken identity. Presto is a retailer, not a manufacturer. It contracts with suppliers all over the world to produce the clothing it sells. It exercises no control over the operations of those suppliers. It doesn’t tell them how to manage their employees or produce their garments. The only control it exercises is over quality. As independent contractors, the suppliers alone are responsible for what happens at their factories. If conditions are dangerous or abusive, if workers are lured into employment on false pretenses, if their labor is less than voluntary, it is not Presto’s doing—”
“Pardon me, Counsel,” the judge interjected, “but the plaintiffs included Presto’s Code of Conduct in the complaint, along with language from the company’s website informing the public of its dedication to sustainability and ethical sourcing. Are you telling me that the Code exists solely to cover Presto’s derriere, not to benefit the workers who make its products?”
Rusty came up short, caught on the horns of a dilemma. “That question was answered by the Ninth Circuit in Doe v. Wal-Mart,” he said at last. “The Code of Conduct is part of the bargain between Presto and its suppliers. The workers who are employed by those suppliers, including the plaintiffs in this lawsuit, are not parties to that bargain. They benefit from it indirectly. But they are not intended beneficiaries, from a legal standpoint, at least.”
The judge frowned. “So what you’re telling me is that Presto’s commitment to worker welfare is just fodder for the PR department?”
The defense lawyer chose his response with care. “All of Presto’s public statements are accurate reflections of the company’s moral commitment to worker safety and human rights, but they are not part of its supplier contract. That is correct.”
Josh heard whispers behind him, along with the sound of pens scribbling furiously. If he knew Tony Sharif, that quote would appear above the fold in the Post tomorrow morning.
“Folks,” the judge said to the spectators, “I’m glad you’re paying attention, but please keep your thoughts to yourself. Mr. Blackwell, you may proceed.”
“Thank you, Your Honor,” Rusty said. “The most basic question raised by the complaint is whether, under US or Bangladeshi law, Presto is the plaintiffs’ effective employer. On this point, their argument is threadbare. While many facets of this case remain unclear, what is clear is who employed the plaintiffs. Their factories did. In the eyes of American law, employment has always been a function of managerial control, and I’ve seen no authority from Bangladesh to convince me that their law diverges from long-standing precedent on this point—”
Again, the judge interrupted him. “The basic legal concept of employment is an anachronism that owes far more to the nineteenth-century notion of masters and servants than to the economic realities of the twenty-first century. What about the concept of joint employer liability? Under the Hearst Publications and Rutherford Foods line of cases, factory workers who are part of an ‘integrated unit of production’ can be the legal employees of an off-site contractor like Presto. From my reading of the complaint—which is all we’re talking about—your client’s supply chain looks pretty integrated to me.”
Rusty shook his head forcefully. “Your Honor, the joint employer theory is limited to domestic cases brought under the National Labor Relations Act and the Fair Labor Standards Act. Those statutes, as the court is well aware, do not apply overseas.”
“So I’m clear,” the judge replied, “what you’re saying is that had the plaintiffs been making clothes for Presto in American factories, they could have availed themselves
of the joint employer theory. But because they were laboring outside the borders of the United States, I should kick their case out of court. Is that your position?”
As uncomfortable as Rusty appeared, he spoke without wavering. “That is our position, Your Honor. I didn’t set the boundaries of the law. Congress did.”
“And Presto benefits from it enormously,” the judge said sharply.
While Rusty fumbled for an answer, Josh glanced at Cameron. The general counsel was sitting ramrod straight, staring implacably at the bench. Josh searched his face for a glimmer of pleasure but saw none. He recalled Cameron’s sangfroid at the Lincoln Memorial, the complete absence of discomfort or fear. Cameron was one of the most self-disciplined human beings Josh had ever seen. Still, he found it strange. This whole spectacle was Cameron’s creation. Yet he looked more like the accused on trial than a playwright watching his masterpiece unfold.
“I have to take exception with that characterization,” Rusty said at last. “There are legal limitations on how Presto can behave when operating abroad. It must abide by all local laws and all federal laws that apply extraterritorially, such as the Federal Corrupt Practices Act.”
“It seems to me,” said the judge, “that the plaintiffs have made out a prima facie case under the corruption act. But that’s not something I can consider, is it?”
Backed into another corner, Rusty cleared his throat. “Congress saw fit to leave the FCPA in the hands of the Justice Department. The plaintiffs have no cause of action.”
The judge nodded. “All right then, let’s talk about the trafficking act. Assuming the plaintiffs’ allegations are true—as I must at this stage—the terms of Mr. Parveen’s and Ms. Begum’s recruitment and employment constitute forced labor. What I’m wrestling with is whether the allegations are sufficient to implicate Presto. Clearly Presto benefited from the way its suppliers obtained workers on the cheap. But did Presto benefit knowingly or recklessly?”
In an instant, Rusty’s confidence reasserted itself. “I’m happy you raised that, Your Honor. That is the critical inquiry under the trafficking act and a fatal flaw in the complaint. What did Presto actually know about its suppliers’ hiring practices? Who at Presto knew? How did they know? When did they know? The complaint offers no details about my client’s knowledge. As the Supreme Court has stated time and again, a complaint that rehearses bald-faced legal conclusions is not entitled to the assumption of truth. It should be dismissed.”
The judge wrote something on his pad, then focused on Rusty again. “Anything else?”
“No, Your Honor,” said the defense lawyer. “That’s all I have for now.”
Judge Chandler focused on Lewis. “Mr. Ames? Let’s hear from you.”
“Actually, Your Honor,” Lewis said, lifting himself halfway out of his chair, “I’m going to let my daughter handle this. She’s not only smarter than I am, she’s better looking.”
The judge grinned, and people in the gallery laughed softly. “Very well. Ms. Ames?”
Madison stood up and caught Josh’s eye, then Lily’s, as she moved to the podium. She was wearing a white pantsuit with black accents, along with a string of pearls around her neck. She had almost put her dark hair back in a clip, but Josh convinced her to leave it down. Let the world see you as a woman, he’d said. Not just a lawyer.
“Your Honor, it’s a privilege to be here,” she began, speaking without notes. “I have to admit the longer I’ve lived with this case, the more it’s gotten to me. My daughter is here today. She’s nine years old. In the lottery of birth she was pretty fortunate. She was born into a family of means in a country of laws and opportunity. She suffers from leukemia, but it’s treatable and she’s getting top-notch care. Her school is exceptional. She’ll go to college one day. Unless the sky falls, she’ll never have to labor in a firetrap like Sonia Hassan. She’ll never be forced to work as a slave like Jashel Sayed Parveen. She’ll never be raped by a supervisor like Alya Begum. These are the thoughts that comfort me when I’m falling asleep at night. The world is full of misery, but at least my daughter is safe. Then it hits me. I shop at Presto. I’ve bought pants for Lily like the ones Sonia Hassan wore as a mask. When the fire happened, Sonia’s sky did fall, and because of it I know the truth. And so do all of you.”
She swept her hand over the courtroom. “Look around us, Your Honor. Some of these people are here for a story, but most of them are here because they’re fascinated by the world my husband uncovered, the world that exists under our noses, that creates the things we love to buy, that fuels our economy, that props up our retirement accounts, that makes some of us very rich at the expense of the very poor. They’re here because the matrix has malfunctioned and the illusion that keeps us buying more and more as if the products just magically appear has been revealed as false. And this implicates all of us, not just Presto. It implicates me. It implicates you.”
Madison took a breath, her eyes shining with emotion. “All too often, we lawyers act as if the law exists for its own sake. It doesn’t. It exists to protect people. It exists because without it factory owners get away with murder, and labor brokers entrap and enslave workers, and managers abuse young women. We’re not here arguing about abstractions. We’re here because real people have been terrorized by a system of commerce that is, in many respects, exploitative, and from which the defendant has profited handsomely. We’ve crafted the complaint as carefully as we can, recognizing that we’re stretching the boundaries of existing law. But as Your Honor pointed out, existing law is lost in the past. Indeed, the law pertaining to the production of goods abroad is barely a law at all. It is up to this court to give that law teeth.”
“Ms. Ames,” the judge said, “I appreciate your words. But this court has no legislative or executive power. If gaps exist in the law, there is very little I can do to fix that. I understand your joint employer argument on the negligence claims. But on the Code of Conduct, I’m struggling to understand how you can infer that Presto was obligated to maintain the plaintiffs’ working environment when the Code places that burden squarely on the shoulders of Presto’s suppliers.”
Madison nodded. “As Your Honor pointed out, the Code is, in a certain sense, a cynical piece of window dressing. At the same time, it is part of a binding agreement between Presto and its suppliers that is only rational if Presto intends to enforce it. And, indeed, Presto has enforced it with auditors and inspections and its color-coded list. It would be one thing if Presto simply sent orders to its suppliers and paid for shipments without saying anything about the way its products were being made. But Presto does care. At least, it says it cares. Its promise to pay is conditioned upon its suppliers’ agreement to treat their workers with dignity. That treatment is intended by the agreement, even if it isn’t the central feature of it.”
Judge Chandler angled his head thoughtfully. “I see where you’re going, and I’ll take it under advisement. Let’s talk about the trafficking claims. I agree with Mr. Blackwell that Presto’s knowledge is the only issue at the pleadings stage. In the old days, I would have upheld your claims without a second thought. But now we have Twiqbal, a set of rulings as ugly as they sound. It isn’t enough for you to allege that Presto knew what their suppliers were doing, or that they recklessly disregarded the obvious. You have to give me more.”
Madison picked up a copy of the complaint and flipped to a page near the end. “We were acutely conscious of Twiqbal when we drafted the pleadings, Your Honor. Like all companies, Presto is highly secretive about its internal procedures. What we obtained in our research gave us a basis for our last two counts. We allege that ‘Presto employees and executives in legal and/or compliance departments in the United States and overseas either actively knew or had reason to know about the deceptive and exploitative manner in which foreign workers from Bangladesh were being supplied to its factories in Malaysia and Jordan. Presto employees and executives allowed such abuses to take place, and Presto benefited financially from those
abuses.’”
“I’m familiar with the language,” the judge replied. “But I don’t see the detail.”
Madison pursed her lips, her composure starting to slip. “With all due respect, detail is the purpose of discovery.”
At this comeuppance, Judge Chandler raised an eyebrow. “Fair enough. I’ll give it a second look—or a fourth.” He grinned. “Anything else, Ms. Ames?”
“Just this,” Madison said, holding up the complaint. “If these pages, all one hundred and four of them, and the stories of these people”—she held out her arm toward Sonia and Jashel and Alya—“aren’t compelling enough to force Presto to come clean about the way it sources the clothing it sells to people like me, what will ever be compelling enough?”
When Madison sat down beside her father, Lily tugged on Josh’s blazer and leaned in close. “I think she did great,” she whispered.
“She’s a terrific lawyer,” he replied softly.
Lily tugged on his sleeve again. “I’m not sure the judge agrees with her.”
He gave his daughter a squeeze, but her doubt was a precise reflection of his own. He examined Madison from behind, saw the tension in her shoulders, sensed her dismay about the way her colloquy had ended. The question of Presto’s awareness was another issue they had debated ad nauseam. Josh had played them the recording of his meeting with Cameron, and they had gleaned from it what they could. But it wasn’t much. So they had leveraged Cameron’s position in the company without implicating him directly. The judge, however, had homed in on their weakness. From the way he had grilled Rusty, it was obvious how he wanted to rule.
The question was, what would he do when the law contradicted his conscience?
CHAPTER EIGHT
HAMILTONS’ AT FIRST & MAIN
CHARLOTTESVILLE, VIRGINIA
APRIL 1, 2016
12:36 P.M.
The chandelier-lit table in the private dining room was empty except for two place settings, one for Cameron, the other for Vance. Cameron was at his seat, munching mindlessly on crab cakes. The food was irrelevant. The only thing that mattered was the conversation happening across the room on Vance’s mobile phone. The chief executive was standing by the windows, his face a mask of tension. The phone was on speaker. Lane Donaldson, founder of the world’s third-largest investment fund, was on the line.
A Harvest of Thorns Page 29