Doe

with whom , O’SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, M. SMITH, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Unfortunately, the panel majority here has substituted sympathy for legal analysis. I quite agree plaintiffs are deserving *947 of sympathy. They are alleged former child slaves of Malian descent, dragooned from their homes and forced to work as slaves on cocoa plantations in the Ivory Coast. But they do not bring this action against the slavers who kidnapped them, nor against the plantation owners who mistreated them. Instead the panel majority concludes that defendant corporations, who engaged in the Ivory Coast cocoa trade, did so with the purpose that plaintiffs be enslaved, hence aiding and abetting the slavers and plantation owners. By this metric, buyers of Soviet gold had the purpose of facilitating gulag prison slavery.

How was the cocoa buyers’ purpose shown? By their purchase of cocoa and their conduct of “commercial activities [such] as resource development,” conduct one of our sister circuits has explained does not establish that a defendant acted with the required purpose. 1 The panel majority’s conclusion is…

ORDER

Judge Rawlinson voted to grant the petition for rehearing and petition for rehearing en banc.

Judge Nelson and Judge Wardlaw voted to deny the petition for panel rehearing. Judge Wardlaw voted to deny the petition for rehearing en banc and Judge Nelson so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Judges Graber, Ikuta, Watford, Owens, and Friedland did not participate in the deliberations or vote in this case.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

Judge Bea’s dissent from the denial of rehearing en banc is filed concurrently with this order.