July 9, 2021, Washington, D.C.–This week, Maxima Acuña Atalaya and her family filed a petition for certiorari with the U.S. Supreme Court in their case against Newmont Mining Corporation. The family is requesting that the high court review a flawed procedural legal doctrine that frequently blocks cases based on the notion that it is more “convenient” for a U.S. corporation to litigate in a foreign court rather than in its home state. The petition argues that without guidance from the Supreme Court, lower courts will continue to adopt conflicting rules in applying the doctrine that fails to safeguard a fair hearing and depart sharply from the doctrine’s original justifications. The filing follows a ruling by the U.S. Court of Appeals for the Third Circuit last December that upheld a lower court decision that the family’s case against the U.S.-based corporation should be heard in Peru rather than in the United States. EarthRights International represents the family. 

“Maxima and her family took Newmont Mining to court for years of harassment and intimidation because they refused to leave their farm to make way for a massive gold mine,” said Wyatt Gjullin, Staff Attorney for EarthRights. “Yet U.S. courts in the very state the company is incorporated, Delaware, have repeatedly used a flawed technical procedural doctrine to stop the family from holding Newmont accountable. The family has now taken their struggle to the highest court in the land, fighting for their day in court and to set a precedent for other human rights defenders facing corporate abuse.”

Farmers and land defenders from the rural highlands of Cajamarca, Peru, Maxima, and her family, sued Newmont in the United States for abuse at the hands of the company’s security forces. Last March, the U.S. District Court for the District of Delaware dismissed the case in favor of sending it to Peru, without ruling on the underlying facts. In December, the Third Circuit upheld that decision, ruling that the result was permissible despite “recent, serious allegations of corruption” in the Peruvian judiciary. After almost four years, U.S. courts have not reached the merits of the family’s claims. The district court’s dismissal was “without prejudice,” meaning that U.S. courts have left open the possibility that the family could return to the U.S. if the Peruvian courts refuse to hear the case or if Newmont doesn’t abide by the conditions of the dismissal. 

In their case, Maxima Acuña Atalaya and her family allege that Newmont has intimidated and sent police and security to physically attack them, killing their animals and destroying their property, all to force them from their farm to pave the way for a massive open-pit gold mine. The family sued the mining company in its home forum of Delaware. Asserting that it would inconvenience them to litigate at home, Newmont sought dismissal of the case, arguing that it should instead be brought in Peru, notwithstanding a judicial corruption crisis there. 

The district court found that, under the doctrine known as “forum non-conveniens,” Newmont had shown that litigating in its home state was too “inconvenient” and that Peruvian courts could fairly hear the family’s claims. It did so despite recognizing concerning evidence of judicial corruption in Peru, including evidence of Newmont’s own past attempts to corrupt the Peruvian courts.

The Third Circuit affirmed the decision, even though it noted “recent, serious allegations of corruption.” The court also ignored the ongoing political chaos consuming Peru, in which Peru’s reformist president was ousted by its Congress in what many called a coup, sparking massive, deadly protests.

Kate Fried
EarthRights International
(202) 257.0057