A network of activist trial attorneys is trying to change Ohio and federal laws by suing an Ohio company for what they claim is human trafficking and racketeering charges, while a sober look at the facts demonstrates that is far from the reality. The underlying fact pattern in the case, Carmen v. Health Carousel, makes it clear that the trafficking and RICO claims are completely inappropriate for the actual dispute.
Lawyers from Minnesota and Tennessee filed the original complaint in Ohio state court on behalf of their client, a foreign-educated nurse who immigrated to Pennsylvania from the Philippines through her then-employer, Cincinnati-based Health Carousel. The complaint alleges that by including a standard non-compete agreement and a liquidated damages clause for breach in its employment contract, Health Carousel subjected its employees to indentured servitude and forced labor in violation of the federal Trafficking Victims Protection Act (TVPA) and Ohio’s human trafficking law.
A year and a half after the case was moved to federal court, a Colorado nonprofit called Towards Justice and a California attorney joined the case. They brought with them plaintiffs from Colorado and West Virginia and completely rewrote the complaint, tacking on additional claims under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act and the Ohio Corrupt Practices Act (OCPA) – laws designed to address organized crime.
These workers wanted out of a contract they had freely entered into because they thought they could do better on their own. This after Health Carousel had already spent tens of thousands of dollars to pay for all of the costs for them to immigrate to and obtain licensure in the United States. Rather than trying to argue that the liquidated damages and non-compete clauses were unenforceable under accepted theories of law, the lawyers have decided to go with headline-grabbing, donation-inspiring impact litigation.
While established anti-trafficking organizations like Polaris and the Human Trafficking Legal Center continue to focus on the truly disenfranchised, activists like Polly Pittman of George Washington University’s Milken Institute School of Public Health have advocated for using the TVPA to prohibit U.S.-based recruiters of foreign-educated healthcare workers from seeking damages when a worker breaches their contract. In fact, Pittman tweeted her congratulations to Towards Justice for their work on the case.
Impact litigation is typically brought by a coalition of interest groups and lawyers with shared social or political goals seeking to change law and public policy to meet those goals. Though the plaintiffs do play an important role as sympathetic, media-friendly representatives of the purported class, the goal of these lawsuits is not to win justice for the plaintiffs, but to change laws and policy according to the missions of the coalition groups. A loss at trial may be expected, perhaps even preferred, so that a higher court can set precedent upon appeal.
In other words, these cases seek, above all else, to serve the interests of the groups and lawyers involved, even at the cost of the plaintiffs and regardless of the collateral damage it may do to other parties.
These lawsuits are an excellent fundraising opportunity for the nonprofits and interest groups involved. If they win, they are heroes; if they lose, they need more support to take on the system. Nonprofits can also help the cause by bringing more attention to the case.
Impact litigation can be a fast-track to success for individual attorneys as well. Winning a strategic lawsuit using a novel legal theory, opening the gates for others to use the same approach, would be the ultimate victory for an impact litigator. This case is an example of such an approach. The application of the TVPA to situations beyond those most would recognize as trafficking appears to have become a trend, and the lawyers involved in this case appear to be members of the Pittman camp, seeking to bend the TVPA and Ohio’s anti-trafficking law to further their own goals. Towards Justice has two pending TVPA cases against correctional facilities, and two of the other lawyers have brought TVPA claims against other parties since filing this case.
If this case goes the way these activists want, donations will pour in along with speaking invitations and awards for the lawyers and Towards Justice. New precedent that completely changes the way the TVPA and Ohio’s anti-trafficking law are enforced could distort lawmakers’ intentions and force employers to change long-accepted practices, ultimately harming the quality of U.S. healthcare and diminishing opportunities for foreign-educated healthcare professionals.
These activists, who have no stake or connection to Ohio’s laws or labor markets, will celebrate that fact. Meanwhile, it could cause irreparable damage to an Ohio company that provides hundreds of local jobs and has been recognized for its ethical recruitment practices. Health Carousel has helped thousands of foreign-educated nurses and physical therapists who, in turn, provide much needed healthcare services for tens or hundreds of thousands of patients across the country. Without companies like Health Carousel, the national nurse shortage would be exacerbated and thousands of hopeful immigrants would lose an opportunity to come to the United States and pursue a career in healthcare.
George Landrith is president of Frontiers of Freedom, a public policy think tank.