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Nike lawsuit (Kasky v Nike, re denial of labour abuses)

Author: Business & Human Rights Resource Centre, Published on: 18 February 2014

Marc Kasky filed suit against Nike in California state court in 1998 suing the company for unfair and deceptive practices under California’s Unfair Competition Law and False Advertising Law.  Prior to the lawsuit, various news reports alleged poor working conditions at Nike’s overseas supplier factories.  In response, Nike issued press releases and other public statements rebutting the allegations.  Kasky alleged that Nike’s public statements regarding the working conditions in its overseas suppliers’ factories contained false information and material omissions of fact.  Specifically, Kasky took issue with Nike’s statements regarding the following: that workers who make Nike products are protected from physical and sexual abuse, they are paid in accordance with applicable local laws and regulations governing wages and hours, they are paid on average double the applicable local minimum wage, they receive a “living wage”, they receive free meals and health care, and their working conditions are in accordance with applicable local laws and regulations regarding occupational health and safety.  Nike claimed that the lawsuit was barred by the US Constitution’s First Amendment guarantee of free speech.  The trial court agreed with Nike and dismissed the claim.  Kasky appealed, and the California Court of Appeals affirmed the lower court’s ruling.  Kasky appealed further to the California Supreme Court, which reversed the lower courts’ rulings and held that Nike’s statements were commercial speech which is entitled to less constitutional protection than non-commercial speech.  Following the California Supreme Court’s ruling, Nike appealed (petitioned for certiorari) to the US Supreme Court, which agreed to hear the appeal.  In 2003, the US Supreme Court issued a decision in this case stating that it had granted certiorari improvidently and dismissed the case, which effectively let stand the California Supreme Court’s ruling.  Several months after the US Supreme Court decision, Nike and Kasky agreed to settle the case for $1.5 million.  The settlement involved investments by Nike to strengthen workplace monitoring and factory worker programmes.

- “Nike's Big Ticking-Off”, Duncan Campbell, Guardian [UK], 17 Nov 2003

- “Nike Settles Speech Case”, William McCall, Associated Press, 13 Sep 2003

- “Supreme Court Won't Rule in Case About Nike and Anti-Globalization”, Anne Gearan, Associated Press, 26 Jun 2003

- Nike: NIKE, Inc. and Kasky Announce Settlement of Kasky v. Nike First Amendment Case, 12 Sep 2003

- ReclaimDemocracy.org: Kasky v. Nike [background on case and links to legal documents]

- US Supreme Court: Nike v. Kasky, 26 Jun 2003

- Supreme Court of California: [PDF] Kasky v. Nike , 2 May 2002