Forum non conveniens -- 2012



Carijano v. Occidental Petroleum Corp.   (9th Circuit)

Use of U.S. advocacy group to oppose forum non conveniens motion

A California trial judge dismissed a suit by 25 plaintiffs from Peru against Occidental Petroleum for alleged environmental damage in Peru, finding that California was not the most convenient forum to hear the case. The Ninth Circuit reversed, holding that since Amazon Watch, based in California, later joined the suit as a plaintiff, nearly conclusive weight should be given to the forum chosen by that group. That group joined in the litigation after Occidental announced its intention to file a forum non conveniens motion.

The NAM and other business organizations filed an amicus brief urging review of this decision en banc, by a larger group of judges in the Ninth Circuit. Unless reversed, the ruling will allow foreign plaintiffs to bring their suits in U.S. courts simply by enlisting a U.S. advocacy group with a humanitarian interest in the suit's subject matter to serve as a nominal plaintiff. We argued that federal law already requires that no one factor be given decisive emphasis when balancing the factors that govern where a case should be decided. The presumption in favor of a plaintiff's choice of forum applies with less force when the plaintiffs or real parties in interest are foreign. Moreover, the decision in this case is of exceptional importance since foreign plaintiffs can be expected to bring many more cases into courts in the Ninth Circuit's region.

The NAM continues to oppose efforts by foreign nationals to use U.S. courts to sue U.S. companies for activities that took place in foreign countries. U.S. courts are extremely attractive to foreign plaintiffs, offering such plaintiff-friendly features as extensive discovery, jury trials and contingency fees, but foreign jurisdictions are where the evidence and witnesses are located.

On June 1, 2011, the 3-judge panel reversed itself in part, revising its opinion to conclude that Peru is an adequate forum after all. The court continued to defer to Amazon Watch's choice of a U.S. forum, but sent the case back to the trial court to determine if that group has standing. The petition for en banc review was denied May 31, 2012.


Related Documents:
NAM brief  (January 20, 2011)