We’ve had a little time to review Monday’s ruling from the Ninth Circuit Court of Appeals, which held that ERI’s case against Occidental Petroleum should be heard in federal court in Los Angeles, rather than sent to Peru as Oxy was seeking. (The case page has all the relevant docs.) We represent victims of pollution from the Achuar indigenous group in the Peruvian Amazon. There are several points worth noting, both for their impact on this case and in future cases.
A bit of background
We filed this case in 2007 and Oxy responded with a motion to dismiss for “forum non conveniens” (FNC), which is a bit of legal Latin that simply means “inconvenient forum”–basically, that even if the court has jurisdiction over of the case, there’s another court somewhere else that would be a better place to hear it. Oxy also sought to dismiss Amazon Watch as a plaintiff because they argued that Amazon Watch did not have standing to sue. The trial court dismissed the case based on FNC, ruling that it should be heard in Peru, and found that it didn’t need to decide whether Amazon Watch had standing.
The Ninth Circuit’s ruling
It’s interesting to note that the FNC test has several parts, and the Ninth Circuit found problems with the trial court’s approach at every step. First, FNC requires that there be an alternate forum–a court somewhere else–that can hear the case. The Ninth Circuit found that the Peruvian courts were not adequate to hear this case. Although the court took pains to emphasize that it was not issuing a general indictment of the Peruvian legal system, it did say that based on the unique circumstances presented here, it wasn’t appropriate to send the case to Peru. What are those circumstances? The court didn’t precisely enumerate them, but it did mention that Oxy intends to argue that the statute of limitations has run in Peru, that Peruvian law appeared to offer no more than nominal compensation for injuries, that Peru would provide no remedy to Amazon Watch, and that Oxy’s own expert witness had submitted evidence substantiating corruption in the judicial system.
Second, if there is an adequate forum, the court goes on to balance various factors and weigh them against a presumption that the plaintiff is entitled to choose where to sue. The Ninth Circuit found that the trial court did not give the proper degree of deference to the plaintiffs’ choice of suing in Los Angeles, in part because Amazon Watch is a California resident, but also because it was apparent that the Achuar came to where Oxy was headquartered because they could be certain of obtaining jurisdiction over Oxy there. The Ninth Circuit also found that the trial court did not properly analyze the various factors at issue. Two issues are particularly noteworthy here. The trial court failed to consider the enforceability of a judgment in Peru, which the Ninth Circuit found to be a serious problem. Also, the Ninth Circuit found that California has a “significant interest in providing a forum for those harmed by the actions of its corporate citizens.”
Third, the Ninth Circuit found that even if dismissal was appropriate, the trial court should have imposed conditions on the dismissal–including that Oxy would need to satisfy a judgment issued by a Peruvian court, and that Oxy would need to abide by the discovery rules that apply in the US.
So what happens next?
On Tuesday, Oxy filed a motion for an extension of time to file a petitioner for rehearing (PFR), which would ask the Ninth Circuit to reconsider its decision. PFRs are rarely granted, but the appeal isn’t over until the case is back in front of the district court. Oxy is seeking to file its PFR on January 10, and the Ninth Circuit would need to wait at least 21 days before ruling on it, which could be extended for any number of reasons–so it will take at least a couple of months before the case is back to the trial court. Then the trial court will need to consider the question of Amazon Watch’s standing to sue, which the Ninth Circuit punted back. Oxy may also try to dismiss the case for other reasons. And then we get into discovery. So this decision brings the Achuar closer to justice, but there’s still a long road ahead.