The United States Law Week

INSIGHT: Human Trafficking, Mass Torts, and Using Data to Support Civil Litigation

May 7, 2019, 8:01 AM

According to the National Human Trafficking Hotline website, there are 40.3 million victims of human trafficking globally, with hundreds of thousands in the United States.

The victims are men and women, adults and children, foreign nationals and U.S. citizens, and the economy generated by human trafficking is in the tens of billions of dollars.

Figures like these are part of why the time is coming—if not already here—for human trafficking to take its place among mass tort cases.

Civil Litigation and Public-Private Collaboration

In 2003, Congress reauthorized and expanded the Trafficking Victims Protection Act, adding a civil cause of action which the Human Trafficking Legal Center notes “has proven particularly critical to survivors of forced labor …. .” Since 2003, plaintiffs have filed 299 cases under the federal civil trafficking provision of the TVPRA.

The role of civil litigation is crucial because:

  • It is a route to restitution for victims.
  • In spite of growing political awareness of human trafficking, it can take years for legislation to pass.
  • Civil litigators can move quickly on victims’ behalf to gather the facts of a case and go to trial—taking on third parties such as the owners of truck stops, hotels, restaurants, websites and other actors who know or should know that traffickers are relying on their businesses to commit ongoing crimes.

However, litigators cannot do this alone. To effectively stem the trafficking tide and enact justice for victims requires a public-private collaboration of law enforcement officials, social service and government agencies, nonprofit groups, lawyers and financial institutions.

Law enforcement’s capabilities, combined with social service agencies’ on-the-ground involvement in identifying and assisting victims, can provide civil litigators with valuable information they need to take action against actors for whom civil rather than criminal action is most appropriate, while trafficking bills make their slow way through Congress and state legislatures.

Through civil actions, litigators can help law enforcement and government agencies gather more extensive data that can further help to sharpen the picture of how and where human traffickers operate.

As human trafficking cases come to civil courts, questions arise as to how these cases will be prosecuted effectively, how these matters will be processed and perhaps most importantly, how settlements will be structured to ensure that the victims of forced labor receive the ongoing help they need to rebuild shattered lives.

Careful consideration must be given to the deliberate gathering of useful data and careful mining of data for valuable insights that will buttress a strong litigation strategy, lead to the best compensation and claims settlements, and inform public policy to prevent future wrongs.

Social Taboos as Unique Challenges

The social taboos that prevent many victims from coming forward willingly present some unique challenges to civil litigators in their efforts to seek justice for victims. Proceeding with individual actions will proceed slowly (see above statistic of only 299 civil cases brought since 2003) precisely because victims—once freed from their traffickers—often disappear because of drug addiction, undocumented immigrant status, or other challenges of poverty that keep them dependent upon what little “support” the traffickers provided them.

Because of the difficulty of finding enough victims to bring the volume of civil cases that will provide the pressure needed to actually make wide-scale changes that must be made to adequately address the scourge of human trafficking, we call upon experienced class action lawyers to develop new legal theories to bring actions for injunctive and monetary damages on behalf of all victims rather than the slow drip, drip, drip of individual cases.

Should these novel legal theories be successful—and we have no doubt they will be, eventually—careful thought must be given before victory to how any monetary awards will be distributed. Many of the victims of human trafficking need far more than money to put their lives back together.

Direct monetary awards may—cruel as it might sound—do more harm than good. Instead, funds should be set aside in special needs trusts to provide for housing, food security, psychological counseling, addiction counseling, and job training. Only through a holistic approach to restoring the dignity of the people who have been wronged will justice truly be achieved.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Mark Eveland is the CEO of Verus LLC, a litigation support services provider headquartered in Princeton, N.J. He can be reached at meveland@verusllc.com.

To read more articles log in. To learn more about a subscription click here.