Aguinda V. Texaco, Inc., 1994 WL 142006 Forum for Aliens Suing United States Entities for Vi- (S.D.N.Y

Page 1 142 F.Supp.2d 534 (Cite as: 142 F.Supp.2d 534)

170BI(B) Right to Decline Jurisdiction; Ab- stention Doctrine United States District Court, 170Bk45 k. Forum non conveniens. Most S.D. New York. Cited Cases Maria AGUINDA, et al., Plaintiffs, To prevail on a motion to dismiss on the v. grounds of forum non conveniens, a defendant must TEXACO, INC., Defendant. demonstrate (1) that there exists an adequate altern- Gabriel Ashanga Jota, et al., Plaintiffs, ative forum, and (2) that the ordinarily strong pre- v. sumption favoring the plaintiff's chosen forum is Texaco, Inc., Defendant. overcome by a balance of the relevant factors of private and public interest weighing heavily in fa- Nos. 93 CIV. 7527, 94 CIV. 9266. vor of the alternative forum. May 30, 2001. [2] Federal Courts 170B 45 Citizens of Peru and Ecuador brought suit alleging that oil company polluted rain forests and 170B Federal Courts rivers in those two countries, causing environment- 170BI Jurisdiction and Powers in General al damage and personal injuries. The United States 170BI(B) Right to Decline Jurisdiction; Ab- District Court for the Southern District of New stention Doctrine York, Rakoff, J., 945 F.Supp. 625, dismissed com- 170Bk45 k. Forum non conveniens. Most plaint on grounds of international comity, forum Cited Cases non conveniens, and failure to join indispensable Oil company seeking, on forum non conveni- parties. The Court of Appeals, 157 F.3d 153, va- ens grounds, dismissal of tort suit, brought by cated and remanded. The District Court denied mo- claimants alleging damages arising out of negligent tion for recusal, and the Court of Appeals, 241 F.3d management of oil pipelines on land owned by 194, affirmed. Thereafter, oil company renewed Ecuadorian government, satisfied requirement that motion for dismissal on forum non conveniens it show courts of Ecuador to be satisfactory altern- grounds, after supplying additional information and ate forum, even though claimants argued that tort consenting to suit in Ecuador and Peru. The District claims were seldom brought in Ecuador. Court held that: (1) Ecuador was adequate alternate forum; (2) Ecuadorian law, providing that filing of [3] Federal Courts 170B 45 lawsuit outside of country precluding bringing of similar action in Ecuador, did not preclude dis- 170B Federal Courts missal; (3) private and public factors favored dis- 170BI Jurisdiction and Powers in General missal and (4) presence of claim under Alien Tort 170BI(B) Right to Decline Jurisdiction; Ab- Claims Act (ATCA) did not preclude dismissal. stention Doctrine 170Bk45 k. Forum non conveniens. Most Case dismissed. Cited Cases Oil company seeking, on forum non conveni- West Headnotes ens grounds, dismissal of tort suit, brought by claimants alleging damages arising out of negligent [1] Federal Courts 170B 45 management of oil pipelines on land owned by 170B Federal Courts Ecuadorian government, satisfied requirement that 170BI Jurisdiction and Powers in General it show courts of Ecuador to be satisfactory altern-

ate forum, despite unavailability of class actions in 170BI Jurisdiction and Powers in General Ecuador; many world nations did not authorize 170BI(B) Right to Decline Jurisdiction; Ab- class actions, and due to differing circumstances of stention Doctrine individual cases it was unlikely that case could pro- 170Bk45 k. Forum non conveniens. Most ceed as class action in United States. Cited Cases Ecuadorian law, providing that filing of lawsuit [4] Federal Courts 170B 45 outside of country precluded bringing of similar action in Ecuador, did not preclude dismissal on for- 170B Federal Courts um non conveniens grounds of tort suit, brought by 170BI Jurisdiction and Powers in General claimants alleging damages arising out of negligent 170BI(B) Right to Decline Jurisdiction; Ab- management of oil pipelines on land owned by stention Doctrine Ecuadorian government; law was adopted after suit 170Bk45 k. Forum non conveniens. Most in question was commenced, and it was doubtful Cited Cases that it would be interpreted to bar suit in Ecuador Oil company seeking, on forum non conveni- following foreign dismissal on forum non conveniens grounds, dismissal of tort suit, brought by ens grounds. claimants alleging damages arising out of negligent management of oil pipelines on land owned by [7] Federal Courts 170B 45 Ecuadorian government, satisfied requirement that it show courts of Ecuador to be satisfactory altern- 170B Federal Courts ate forum, despite claims of Ecuadorian procedural 170BI Jurisdiction and Powers in General deficiencies, including need for protracted adminis- 170BI(B) Right to Decline Jurisdiction; Ab- trative proceedings prior to suit, discovery restric- stention Doctrine tions, cross-examination limitations and tendency 170Bk45 k. Forum non conveniens. Most to have court appointed experts. Cited Cases Private factors favored dismissal, on forum non [5] Federal Courts 170B 45 conveniens grounds, of tort suit, brought by claimants alleging damages arising out of negligent 170B Federal Courts management of oil pipelines on land owned by 170BI Jurisdiction and Powers in General Ecuadorian government; claimants lived in Ecuador 170BI(B) Right to Decline Jurisdiction; Ab- or nearby in Peru, site inspection could be conduc- stention Doctrine ted in Ecuadorian action but not in American, 170Bk45 k. Forum non conveniens. Most Ecuador could be joined as party in Ecuadorian Cited Cases suit, and only conduct arguably involving sued oil Oil company seeking, on forum non conveni- company was participation by fourth tier subsidi- ens grounds, dismissal of tort suit, brought by ary, not joined as party, in consortium causing dam- claimants alleging damages arising out of negligent ages, with most of subsidiary's activities occurring management of oil pipelines on land owned by in Ecuador Ecuadorian government, satisfied requirement that it show courts of Ecuador to be satisfactory altern- [8] Federal Courts 170B 45 ate forum, despite claims that Ecuadorian judiciary was corrupt. 170B Federal Courts 170BI Jurisdiction and Powers in General [6] Federal Courts 170B 45 170BI(B) Right to Decline Jurisdiction; Ab- stention Doctrine 170B Federal Courts 170Bk45 k. Forum non conveniens. Most

Cited Cases *536 Cristobal Bonifaz,Law Offices of Cristobal Private factors favored dismissal, on forum non Bonifaz, Amherst, MA, Martin J. D'Urso, Joseph C. conveniens grounds, of tort suit, brought by Kohn, Kohn, Swift & Graf, P.C., Philadelphia, PA, claimants alleging damages arising out of negligent for Plaintiffs. management of oil pipelines on land owned by Ecuadorian government; Ecuadorian local interest George S. Branch, Daniel J. King, King & Spald- in problems of environmental pollution and alleged ing, Atlanta, GA, Milton Schubin, Kaye, Scholer, government corruption, relating to pipelines, ex- Fierman, Hays & Handler, LLP, Ronald Minkoff, ceeded any possible American interest in problems, Beldoch Levine & Hoffman LLP, Jonathan S. and local courts were better equipped to handle Abady, Emery Celli Brinckerhoff & Abady LLP, evidence and language problems. New York City, for Defendant.

[9] Federal Courts 170B 45 OPINION AND ORDER 170B Federal Courts RAKOFF, District Judge. 170BI Jurisdiction and Powers in General Pending before the Court is the renewed mo- 170BI(B) Right to Decline Jurisdiction; Ab- tion of defendant Texaco to dismiss these cases in stention Doctrine favor of their being pursued in the courts of 170Bk45 k. Forum non conveniens. Most Ecuador (or in the courts of Peru by any Peruvian Cited Cases plaintiff who prefers*537 that forum). Because Court would dismiss, on forum non conveniens Texaco has carried its burden on every element of grounds, tort suit brought by claimants alleging the motion, and because the record establishes damages arising out of negligent management of oil overwhelmingly that these cases have everything to pipelines on land owned by Ecuadorian govern- do with Ecuador and nothing to do with the United ment, even though suit included claim under Alien States, the Court grants the motion and dismisses Tort Claims Act, which provided federal forum for the cases on the ground of forum non conveniens. aliens suing United States entities for violations of Familiarity with the facts and prior proceedings law of nations; alleged conduct of oil company be- in these cases is here assumed. See, e.g., Aquinda v. ing sued was not sufficiently egregious. 28 Texaco, Inc., 945 F.Supp. 625 (S.D.N.Y.1996), re- U.S.C.A. § 1350. consid. denied, 175 F.R.D. 50 (S.D.N.Y.1997), va- [10] Federal Courts 170B 45 cated sub nomine, Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998). To recapitulate briefly, plaintiffs 170B Federal Courts in the Aquinda suit are 76 residents of the Oriente 170BI Jurisdiction and Powers in General region of Ecuador and plaintiffs in the Ashanga suit 170BI(B) Right to Decline Jurisdiction; Ab- are 23 residents of the adjoining area in Peru (and stention Doctrine four related organizations), each group of plaintiffs 170Bk45 k. Forum non conveniens. Most purporting to sue on behalf of a corresponding class Cited Cases of thousands of such residents. See Complaint, Alien Tort Claims Act, which provided federal Aguinda v. Texaco, Inc., 1994 WL 142006 forum for aliens suing United States entities for vi- (S.D.N.Y. April 11, 1994) (“Aguinda Compl.”), at olations of law of nations, did not alter balance of ¶¶ 3–4 & Exs. B, C, D; Complaint, Ashanga v. private and public factors undertaken in determin- Texaco, Inc., 94 Civ. 9266 (“Ashanga Compl.”), at ing whether to dismiss suit on forum non conveni- ¶¶ 3, 13. ens grounds, in favor of litigation in other nations. 28 U.S.C.A. § 1350. Neither lawsuit alleges any injury to persons,

property, or commerce in the United States. In- broad but conclusory allegations that Texaco dir- stead, plaintiffs allege they “have or will suffer ectly controlled the Consortium's activities from the property damage, personal injuries, and increased United States, see Aguinda Compl. at ¶¶ 2, 28; risk of disease,” Aguinda Compl. ¶ 11, in Ecuador Ashanga Compl. at ¶¶ 11, 25. Faced with similar al- and Peru respectively, as a result of negligent or legations in a parallel action brought against otherwise improper oil piping and waste disposal Texaco by some of the same plaintiffs as here, the practices that were initiated several decades ago, on United States District Court for the Southern Dis- lands owned by the Republic of Ecuador, by a con- trict of Texas dismissed the case in favor of its be- sortium (the “Consortium”) in which Texaco held ing pursued in the courts of Ecuador. See *538 Se- an indirect interest. See Ashanga Compl. ¶¶ 6–7; quihua v. Texaco, Inc., 847 F.Supp. 61, 63 Aguinda Compl. ¶¶ 6–7; Defendant Texaco, Inc.'s (S.D.Tex.1994). Here, however, the late Judge Bro- Appendix of Affidavits, Documents and Other Au- derick (to whom these cases were originally as- thorities in Support of Its Renewed Motions to Dis- signed)—while expressing doubts that these suits miss (“Texaco App.”), Ex. 2, Affidavit of Texaco would survive a similar motion to dismiss, see Petroleum Co. (“TexPet Aff.”), at ¶ 7. Aguinda v. Texaco, Inc., 1994 WL 142006, at *2 (S.D.N.Y. Apr. 11, 1994) —allowed plaintiffs to No present or former member of the Consorti- conduct considerable discovery as to the alleged um is a party to these lawsuits. That includes the Texaco involvement. Government of Ecuador, which, either directly or through the state-owned corporation PetroEcuador, Nonetheless, the plaintiffs, after taking numer- regulated the Consortium from the outset, acquired ous depositions and obtaining responses to no fewer a minority stake in 1974, acquired full operational than 81 document requests and 143 interrogatories, control in 1990, and acquired exclusive ownership were unable to adduce material competent evidence in 1992. See, e.g., Jota, 157 F.3d at 156; Texaco of meaningful Texaco involvement in the miscon- App., Ex. 2, TexPet Aff. at ¶¶ 6–10 & Ex. B; duct complained of—to the point that plaintiffs es- Texaco App., Ex. 3, Deposition of William C. sentially stipulated as much. See Texaco App., Ex. Benton (“Benton Dep.”) at 201. Not only is the 21, Stipulation and Order, Aguinda v. Texaco Inc., Government of Ecuador not named as a party but 93 Civ. 7527, dated July 12, 1995. Accordingly, also it cannot be sued as a third-party defendant, this judge (to whom the cases were ultimately reas- since it has now formally affirmed that it will not signed following Judge Broderick's death) dis- waive sovereign immunity with respect to these missed the cases on the ground, inter alia, of forum cases, see infra. non conveniens. See Aquinda v. Texaco, Inc., 945 F.Supp. 625 (S.D.N.Y.1996), reconsid. denied, 175 Even before the Government of Ecuador took F.R.D. 50 (S.D.N.Y.1997); Ashanga v. Texaco, complete control of the Consortium, Texaco's only Inc., 94 Civ. 9266 (judgment, Aug. 13, 1997). The interest consisted of its indirect investment in Court of Appeals reversed, however, finding, so far Texaco Petroleum Company (“TexPet”), a as forum non conveniens was concerned, that the Delaware corporation and fourth-tier subsidiary of district court had failed to obtain “a commitment by Texaco, which initially operated the petroleum con- Texaco to submit to the jurisdiction of the Ecuador- cession for the Consortium and held varying in- an courts for purposes of this action” and, further, terests in the Consortium until 1992. See Jota, 157 had relied too heavily on the determinations of the F.3d at 156; TexPet Aff. at ¶¶ 2, 3, 10. But TexPet, District Court for the Southern District of Texas in though sued in the courts of Ecuador, see infra, is weighing the factors relevant to a forum non con- not named as a party here. veniens dismissal. Jota, 157 F.3d at 159.

Instead, the sole defendant is Texaco, based on

Following remand, Texaco provided the miss- Oil Corp. v. Gilbert, 330 U.S. 501, 508–10, 67 ing commitment to submit to the jurisdiction of the S.Ct. 839, 91 L.Ed. 1055 (1947) (“Gilbert ”); DiRi- courts of Ecuador (and Peru, as well) and then re- enzo, 232 F.3d at 56–57; PT United Can Co., 138 newed its motion to dismiss on ground of forum F.3d at 73–74. non conveniens. After receiving further briefing from the parties and obtaining clarification from the [2] The requirement of an adequate alternative Government of Ecuador as to its current posture re- forum “[o]rdinarily ... will be satisfied when the de- specting these lawsuits, cf. Jota, 157 F.3d at 160, fendant is ‘amenable to process' in the other juris- this Court, by Order dated January 21, 2000, indic- diction.” Piper Aircraft, 454 U.S. at 255 n. 22, 102 ated that it was leaning toward granting the motion S.Ct. 252 (quoting Gilbert, 330 U.S. at 506–07, 67 but would defer ruling in order to give the plaintiffs S.Ct. 839); see also Blanco v. Banco Industrial de the chance to reopen an issue they had previously Venezuela, S.A., 997 F.2d 974, 980 (2d Cir.1993). abandoned, i.e., whether the courts of Ecuador Furthermore, “[a]n agreement by the defendant to (and/or Peru) are sufficiently independent and im- submit to the jurisdiction of the foreign forum can partial to provide the requisite modicum of due pro- generally satisfy this requirement.” DiRienzo, 232 cess. See Bridgeway Corp. v. Citibank, 201 F.3d F.3d at 57; see also Jota, 157 F.3d at 159. Here, 134, 141–42 & n. 1 (2d Cir.2000). Texaco has now unambiguously agreed in writing to being sued on these claims (or their Ecuadorian After briefing on this issue was completed, the equivalents) in Ecuador, to accept service of pro- matter was further delayed by plaintiffs' mandamus cess in Ecuador, and to waive for 60 days after the petition to the Court of Appeals seeking this Court's date of this dismissal any statute of limitations- recusal. That petition having now been denied, see based defenses that may have matured since the fil- In re Aguinda, 241 F.3d 194, 2000 WL 33182244 ing of the instant Complaints. See Texaco Inc.'s (2d Cir. Feb. 23, 2001), and plaintiffs' further peti- Memorandum of Law In Support of Its Renewed tion for rehearing en banc of that denial having also Motions to Dismiss Based on Forum Non Conveni- been denied by order of the Court of Appeals filed ens and International Comity (“Def.'s Mem.”) at May 29, 2001, the Court is now free to rule on the 12–13; Texaco App., Exs. 18 & 19, Texaco Inc.'s pending motion. Notice of Agreements in Satisfying Forum Non Conveniens and International Comity Conditions; [1] To prevail on a motion to dismiss on the transcript of hearing on defendant's renewed motion ground of forum non conveniens, a defendant must to dismiss, Feb. 1, 1999 (“Tr.”) at 5. Though not re- demonstrate (1) that there exists an adequate altern- quired to do so by the Court of Appeals, Texaco has ative forum, see DiRienzo v. Philip Servs. Corp., also provided identical assurances with respect to a 232 F.3d 49, 56 (2d Cir.2000); Evolution Online Peruvian forum, should any of the Peruvian resid- Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 ents in Ashanga prefer that forum. See Def.'s Mem. F.3d 505, 510 (2d Cir.1998); PT United Can Co. v. at 12–13; Texaco App., Ex. 19. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir.1998), and (2) that the ordinarily strong pre- While plaintiffs argue that these commitments sumption favoring the plaintiff's chosen forum is by Texaco do not extend beyond the named overcome by a balance of the relevant factors of plaintiffs to other, unnamed members of the putat- private and public interest weighing heavily in fa- ive classes, this is not a reasonable reading of the vor of the alternative forum, see Piper Aircraft Co. commitments and the Court does not so construe v. Reyno, 454 U.S. 235, 255–57, 102 S.Ct. 252, 70 them. Lest there be any doubt, however, the Court L.Ed.2d 419 (1981), reh'g denied, *539455 U.S. directs that if Texaco does not agree that these 928, 102 S.Ct. 1296, 71 L.Ed.2d 474 (1982); Gulf commitments extend, mutatis mutandis, to all mem-

bers of the putative classes, it must so inform the several of these cases. See Perez Aff., Exs. A, B. Court in writing within three business days of receiving this Opinion and Order, in which case the More generally, section 2241 of the Ecuadorian Court will re-open the otherwise final dismissal of Civil Code expressly provides that persons injured these cases. in their person or property by another's negligence or intentional wrongdoing may sue in the Ecuadori- Even though, as mentioned, such submission an courts for monetary damages and equitable re- by a defendant to being sued in a foreign forum is lief. See Texaco App., Ex. 10, Affidavit of Dr. En- normally sufficient in itself to satisfy the threshold rique Ponce y Carbo (“Ponce y Carbo Aff.”) at ¶¶ requirement of an adequate alternative forum in a 12–14; see also Delgado v. Shell Oil Co., 890 motion to dismiss on grounds of forum non con- F.Supp. 1324, 1359–60 (S.D.Tex.1995), aff'd, 231 veniens, plaintiffs, in their opposition to defendant's F.3d 165 (5th Cir.2000). Plaintiffs concede as instant motion, raise several additional objections much, but nevertheless assert, through their “legal to the adequacy of an Ecuadorian forum. The first expert,” that “very few such actions are filed in the is that “Ecuador Is Not An Adequate Forum Be- [Ecuadorian] courts.” See Plaintiffs' Appendix of cause Its Jurisprudence, For All Practical Purposes, Affidavits, Documents and Other Authorities in Does Not Recognize Tort Claims.” Memorandum Opposition of [sic ] Texaco's Motions to Dismiss, in Support of Plaintiffs' Reply to Defendant's Mo- Ex. 79, Affidavit of Alberto Wray (“Wray Aff.”) at tion to Dismiss the Complaint, dated Jan. 25, 1999 ¶ 8. Professor Wray, however, supplies little ex- (“Pls.' Jan. 25, 1999 Mem.”) at 5. Rather remark- planation or description of his methodology in ably, this argument ignores the undisputed evidence reaching this conclusion, and it appears to be based that certain members of the putative Aguinda class, on nothing more than a tenuous inference from the as well as three affected Ecuadorian municipalities, fact that in Ecuador (as in the United States) few have already brought tort actions in the Ecuadorian tort cases reach the nation's Supreme Court. Com- courts, on some of the very claims here alleged, parable inferences have been held insufficient to against TexPet, Petroecuador and other present or deem a foreign forum inadequate. See In re Union former members of the Consortium, and have, in Carbide Corp. Gas Plant Disaster at Bhopal, India some of these cases, obtained tort judgments in in December, 1984, 634 F.Supp. 842, 848–52 plaintiffs' favor. See Texaco App., Ex. 14, Affidavit (S.D.N.Y.1986) (Indian forum found adequate for of Dr. Vicente Bermeo Lañas at ¶ 13; Texaco App., mass tort case despite assertions of “little reported Ex. 15, Affidavit of Dr. Rodrigo Perez Pallares case law in the tort field,” “no tort law relating to (“Perez Aff.”) at ¶ 4 & Ex. A; see also Texaco disputes arising out of complex product or design App., Ex. 13, Affidavit of Dr. Adolfo Callejas Rib- liability,” and other indications of lesser-developed adeneira, dated Dec. 28, 1998 (“Callejas Aff. I”) at tort law), aff'd as modified, 809 F.2d 195 (2d ¶¶ 2–5 *540 & Exs. A—D; Texaco, Inc.'s Reply Cir.1987); see also Alnwick v. European Micro Memorandum of Law in Support of Its Renewed Holdings, Inc., 2001 WL 391952, at *6 (E.D.N.Y. Motions to Dismiss Based on Forum Non Conveni- Mar. 22, 2001) (Dutch forum adequate “even as- ens and International Comity (“Def.'s Reply suming that Dutch law does not recognize the tort Mem.”), Ex. 1, Affidavit of Dr. Adolfo Callejas of fraud”); and cf. Capital Currency Exch., N.V. v. Ribadeneira, dated Jan. 22, 1999 (“Callejas Aff. National Westminster Bank PLC, 155 F.3d 603, II”) at ¶¶ 3–4 & Ex. A. Likewise, although unre- 609–11 (2d Cir.1998) (England adequate forum lated to the particular claims here made, numerous despite fact that English courts had never awarded Ecuadorian oilfield workers have brought personal money damages in antitrust case). injury suits against TexPet in Ecuador based on claims of alleged negligence and have prevailed in Here, moreover, any speculation about the

Ecuadorian courts' alleged unreceptiveness to tort despite plaintiff's claim that American contingency cases is put to rest by the undisputed evidence, fee was only way he could afford a lawyer). supra, that tort claims based on the very occur- rences here at issue have been successfully prosec- It seems doubtful, moreover, that the instant uted in the Ecuadorian courts. Furthermore, several cases would qualify for class action status even if United States courts have previously found Ecuador they were to remain in the United States, see gener- to be an adequate forum to address similar (and, in ally Amchem Prods., Inc. v. Windsor, 521 U.S. 591, some cases, identical) tort claims to those of 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and hence plaintiffs here. See, e.g., Delgado, 890 F.Supp. at the alleged deprivation of this device may be no 1359–61 (Ecuador adequate for personal injury deprivation at all. To begin with, there are immense cases based on pesticide exposure); Sequihua, 847 due process problems inherent in providing ad- F.Supp. at 64 (Ecuador adequate to address person- equate notice and representation to the thousands of al injury and property damage from oil pollution); Amazonian residents that plaintiffs seek to include Ciba–Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d in their proposed classes, see generally, Ortiz v. 1111, 1117 (Fla.Dist.Ct.App.1997) (Ecuador ad- Fibreboard Corp., 527 U.S. 815, 843–48, 119 S.Ct. equate to address property damage from fungicide 2295, 144 L.Ed.2d 715 (1999); Allison v. Citgo Pet- exposure). In short, plaintiffs' first objection to the roleum Corp., 151 F.3d 402, 412 (5th Cir.1998). It adequacy of an Ecuadorian forum is entirely is also obvious that the multiplicity of ways in without foundation. which plaintiffs allege that the Consortium's activities have directly and indirectly impacted various [3] Plaintiffs' second objection to the adequacy plaintiffs' various interests, or will impact them in of an Ecuadorian forum is that “Ecuador is Not an the future, renders it problematic whether questions Adequate Forum For This Litigation Because of law or fact common to the members of the class Ecuador Does Not *541 Recognize Class Actions predominate over questions affecting individual and Has No Comparable Procedure to Grant members. See, e.g., Amchem, 521 U.S. at 623–25, Plaintiffs the Equitable Remedy They Are Princip- 117 S.Ct. 2231; see also Aguinda, 1994 WL at *2. ally Seeking.” Pls.' Mem. at 10. This, again, is un- persuasive. The class action mechanism, added to Even the bare question of liability could not the Federal Rules of Civil Procedure in 1937, is ul- readily be handled here as a class action, given the timately nothing more than a “convenient procedur- multiple causation issues raised by plaintiffs' claims al device,” Beamon v. Brown, 125 F.3d 965, 969 of indirect injuries extending over hundreds of (6th Cir.1997) (quoting 3B James Wm. Moore, et miles and dozens of years and affecting individual al., Moore's Federal Practice ¶ 23.02 (2d members of the classes (including future claimants) ed.1980)), which most of the world's nations have in a multitude of different ways, ranging from the chosen not to adopt and the merits of which contin- pollution of wells to the development of ue to be debated even in the United States. Its ab- “pre-cancerous growths.” See Jota, 157 F.3d at sence does not ordinarily render a foreign forum 155–56. Indeed, many of the injuries claimed by “inadequate” for purposes of forum non conveniens even the named plaintiffs are in the nature of analysis. See, e.g., Beamon, 125 F.3d at 969–70; In “increased risks” and other future contingent claims re Union Carbide Corp. Gas Plant Disaster at Bho- that have not yet ripened into actual injuries. See, pal, India in December, 1984, 809 F.2d 195, 199 e.g., Aguinda Compl. ¶¶ 11–26; Ashanga Compl. ¶¶ (2d Cir.1987); In re Lloyd's Am. Trust Fund Litig., 13–23. While conceivably some of these problems 954 F.Supp. 656, 673 (S.D.N.Y.1997); and cf., e.g., might be mitigated through the creation and ad- Murray v. British Broadcasting Corp., 81 F.3d 287, equate representation of numerous subclasses (none 292–93 (2d Cir.1996) (England adequate forum of which plaintiffs provide for), it is difficult to see

how the vastly complicated, if not entirely unman- action device, might well be a more adequate forum ageable lawsuit that would then emerge would offer than the United States for purposes of providing greater efficiencies than could be achieved in complete equitable relief. In short, the absence of Ecuador through more conventional lawsuits invok- the class action device in Ecuador is not a sufficient ing traditional principles of stare decisis and join- impediment to render the Ecuadorian forum inad- der. Indeed, even where class actions are permitted, equate. as in the United States, experience has shown that the premature and undifferentiated aggregation of [4] Plaintiffs' final objection to the adequacy of hundreds or thousands of tort claims has often an Ecuadorian forum is that “Procedural Processes proved counterproductive. See Report on Mass Tort in Ecuador Make It Difficult if Not Impossible to Litigation To the Judicial Conference of the *542 Litigate These Tort Actions There.” Memorandum United States (“Judicial Conference Report ”) 5–6, of Law in Opposition to Defendant's Motion to Dis- 22, 36, 39–40 (1999). miss the Complaint, Jan. 11, 1999 (“Pls.' Jan. 11, 1999 Mem.”) at 9; see also id. at 13–14. Under this While plaintiffs try to skirt some of these ob- heading, plaintiffs first argue that claims of envir- jections by claiming in conclusory fashion that they onmental contamination commenced in Ecuador are “principally” seeking equitable, injunctive re- must initially be filed with administrative agencies lief, see Pls.' Mem. at 10, they have in no respect and that these agencies are slow to take action. See relinquished their claims for billions of dollars in id. at 9. Plaintiffs' only support for these assertions damages and other legal relief, see Jota, 157 F.3d at is a typically conclusory opinion from Professor 161. Without such relinquishment, it is highly Wray, who cites no authority to justify his conclu- doubtful that the equitable aspects of these cases sions in this regard. See Wray Aff. ¶ 12. Defendant, could be separately litigated in a way that would by contrast, has adduced detailed affidavits from its satisfy Rule 23, Fed.R.Civ.P. See Allison, 151 F.3d Ecuadorian legal experts specifically denying that at 425–26. Indeed, much of the equitable relief here any such impediment exists to filing these claims sought (such as “medical monitoring” for a variety directly with the Ecuadorian courts and asserting, of potential future medical injuries) is inextricably instead, that the administrative agencies simply intertwined with the individualized claims for dam- provide an alternative forum for certain of ages and the individualized issues of multiple caus- plaintiffs' claims. See Ponce y Carbo Aff. at ¶ 17; ation. Callejas Aff. I at ¶ 5; Callejas Aff. II at ¶¶ 3–5. Moreover, even if Professor Wray were right and Even assuming arguendo that plaintiffs' claims plaintiffs had to first pursue their administrative for equitable relief could be separated from the rest remedies, such an “exhaustion” requirement, com- of the litigation, it is equally doubtful, as the Court monplace to much United States litigation, is hardly of Appeals recognized, see Jota, 157 F.3d at 162, a ground for deeming the Ecuadorian forum inad- that a United States court could, in the absence of equate. See generally DiRienzo, 232 F.3d at 57 the Government of Ecuador, fully address many of (“Even if particular causes of action or certain de- plaintiffs' claims for equitable relief; and that Gov- sirable remedies are not available in the foreign for- ernment has now made clear that it will neither um, that forum will usually be adequate so long as waive sovereign immunity nor participate as a party it permits litigation of the subject matter of the dis- in these actions here, see Texaco App., Ex. 17, Let- pute, provides adequate procedural safeguards and ter to the Court from Ambassador of Ecuador; see the remedy available in the alternative forum is not also Tr. at 59. Since, by contrast, the Government so inadequate as to amount to no remedy at all.”). of Ecuador can be joined as a party in Ecuador, an Ecuadorian forum, even in the absence of the class Plaintiffs' other argument under their third

heading essentially consists of listing some of the between the United States and Ecuadorian legal differences between United *543 States procedures systems of which plaintiffs most complain, i.e., the and those of civil law systems like Ecuador's that supposed inability of an Ecuadorian court to com- make the former a more favorable forum for pel discovery from Texaco even if Texaco submits plaintiffs generally. Such differences include, for to the court's jurisdiction, see Pls.' Jan. 11, 1999 example, Ecuador's tighter restrictions on discov- Mem. at 13, not only is challenged by Texaco's leg- ery, its denial of oral cross-examination in certain al expert as an inaccurate assertion, see Ponce y circumstances, and its preference for court-ap- Carbo Aff. at ¶ 18, but also is, in any event, pointed experts over party-retained experts. See rendered largely irrelevant by the fact that Texaco Wray Aff. ¶¶ 4–7. Some would argue that these fea- has expressly stipulated that the very substantial tures of civil law systems render those systems discovery plaintiffs have already obtained from more, not less, adequate to the fair determination of Texaco in these cases, see Aguinda v. Texaco, Inc., justice; and certainly in recent years the United 1994 WL 142006, at *1 (S.D.N.Y. Apr. 11, 1994), States has itself moved in the direction of imposing can be utilized in the Ecuador courts by any more limits on discovery and giving courts more plaintiff bringing suit there, see Def.'s Mem. at 13. control over expert testimony. But whatever the merits of these debates, the notion that any of these In sum, none of the objections to the adequacy differences renders “inadequate” in any fundament- of an Ecuadorian forum that plaintiffs have spe- al sense the civil law system employed by Ecuador, cifically raised in response to the instant motion has by most other nations in South America, and by merit. most of the nations of Europe is insulting to those FN1 [5] Earlier in this litigation, plaintiffs also ap- nations and absurd on its face. See generally peared to raise, and then abandon, the further objec- DiRienzo, 232 F.3d at 57–59; Lockman Found. v. tion that the Ecuadorian courts were subject to cor- Evangelical Alliance Mission, 930 F.2d 764, 768 rupting influences and outside pressures, especially (9th Cir.1991); Borden, Inc. v. Meiji Milk Prods. from the military, that rendered them inadequate to Co., 919 F.2d 822, 829 (2d Cir.1990); Potomac dispense independent, impartial justice in these Capital Inv. Corp. v. Koninklijke Luchtvaapt cases. Compare, e.g., Plaintiffs' Memorandum in Maatschapplj N.V., 1998 WL 92416, at *5 Opposition to Texaco, Inc.'s Motions to Dismiss, (S.D.N.Y. Mar. 4, 1998); Manela v. Garantia Bank- dated Feb. 20, 1996 (“Pls.' 1996 Mem.”) at 40 n. 72 ing Ltd., 940 F.Supp. 584, 590–91 & n. 11 (“Even since the military junta relinquished power (S.D.N.Y.1996); Polanco v. H.B. Fuller Co., 941 in 1979, corruption has tainted the Ecuadorian judi- F.Supp. 1512, 1527 (D.Minn.1996). ciary.”) with id. at 42 (“Plaintiffs do not rely on any FN1. Following remand from the Court of such assumption [that Ecuadorian courts are unable Appeals, the Government of Ecuador ex- to dispense justice].”). When the instant motion was pressly confirmed to this Court, at a hear- renewed on remand from the Court of Appeals, ing attended not only by its counsel but plaintiffs, in their memoranda in opposition, made also by its Procurador General and its no mention of this issue whatever. United Nations Ambassador, that it be- *544 Nevertheless, in late January 2000, after lieved that, while its legal procedures were members of the Ecuadorian military joined protest- different from those of the United States, it ors (including indigenous dissidents) in what ulti- nonetheless could provide an adequate for- mately proved to be an abortive coup, this Court, um for this litigation. See Tr. at 63. sua sponte, invited renewed consideration of this is- Further still, the asserted procedural difference sue, see Memorandum Order dated Jan. 31, 2000. In response, submissions were eventually received

not only from the parties but also from the U.S. De- here alleges corruption of the judiciary or the judi- partment of State and the Government of Ecuador. cial process on the part of any of these corpora- Unfortunately, most of these papers proved of little tions. On the contrary, the Chairman of Ecuador's use to the Court, since they largely consisted judicial disciplinary committee, who while in (perhaps understandably) of broad, conclusory as- private practice successfully litigated numerous sertions as to the relative corruptibility or incorrupt- cases against TexPet, affirms that Ecuadorian ibility of the Ecuadorian courts, with scant refer- courts do not give preferential treatment to multi- ence to specifics, evidence, or application to the in- national companies like Texaco. See Vaca Aff. at stant cases. As Judge Broderick pointed out early in ¶¶ 1,6. this litigation, “the courts of the United States are properly reluctant to assume that the courts of a sis- (3) The failure of the military coup of January ter democracy are unable to dispense justice,” 21, 2000 reaffirmed Ecuador's insistence on demo- Aguinda v. Texaco, Inc., 1994 WL 142006 at *2, cratic, civilian control of its institutions. While no and something more than bald assertion is required one claims the Ecuadorian judiciary is wholly im- to overcome this presumption. See, e.g., El–Fadl v. mune to corruption, inefficiency, or outside pres- Central Bank of Jordan, 75 F.3d 668, 678 sure, the present Government of Ecuador, headed (D.C.Cir.1996); Blanco, 997 F.2d at 982; Mercier by a former law school dean, has taken vigorous v. Sheraton Int'l, Inc., 981 F.2d 1345, 1351 (1st steps to further the independence and impartiality Cir.1992). of the judiciary, see Texaco Rebuttal App., Ex. 34, Declaration of Dr. Ramon Jiménez–Carbo, When one looks beyond gross generalizations Ecuador's Attorney General, dated Apr. 5, 2000. As to relevant particulars, one finds the following: summarized by the U.S. Department of State in its most recent Human Rights “Country Report” on (1) There is not the slightest indication, in any Ecuador, dated February, 2000 (“2000 Country Re- of the papers submitted on this issue, of any impro- port”), available at http://www.state.gov, at 5: priety on the part of Texaco or any of its affiliates, or indeed on the part of any present or former mem- The Supreme Court that took office in 1997 pub- ber of the Consortium, with respect to any judicial licly recognized the shortcomings of the judicial or administrative proceeding of any kind in system and pledged *545 to improve the quality Ecuador. Indeed, as previously mentioned, TexPet and training of judges. In May 1998, the Supreme and PetroEcuador have already been sued in Court supervised the selection by open competi- Ecuador on some of the same or related claims by tion of all appellate judges. A Judicial Council, some of the same or related plaintiffs as are in- charged with administering the court system and volved here, and several of these suits have resulted disciplining judges, took office in the fall of in judgments involving substantial payments to cer- 1998. In November 1999, the Council's disciplin- tain of the plaintiffs. See Callejas Aff. I at ¶¶ 2–5 & ary committee fired two judges and two court Exs. A–K; Texaco, Inc.'s Appendix of Rebuttal Ex- employees for their role in the release of suspec- hibits in Support of Its Reply Memorandum of Law ted drug traffickers. All four faced criminal (“Texaco Rebuttal App.”), Ex. 22, Affidavit of Dr. charges. During the year, the Judicial Council re- Ricardo Vaca Andrade (“Vaca Aff.”), at ¶ 1. moved at least two judges and a number of minor officials from their jobs. (2) There are presently pending in Ecuador's courts numerous cases against multinational corpor- See also Letter to A.U.S.A. Edward Scarvalone ations. See Callejas Aff. I at ¶ 5; Texaco Rebuttal from U.S. Dept. of State, dated June 8, 2000, Ex. A App., Ex. 25, Supplemental Aff. of Dr. Alejandro (1999 Country Report for Ecuador) at 6 (to same Ponce Martinez, at ¶ 2. None of the submissions effect); Bridgeway Corp., 201 F.3d at 142–43

(2000) (status of Country Reports). ruption or undue influence might be brought to bear if this litigation were pursued in Ecuador seems ex- (4) While the State Department nonetheless ceedingly remote. See Texaco Rebuttal App., Ex. continues to describe Ecuador's legal and judicial 23, Affidavit of Dr. Fabian Corral Burbano de Lara systems as “politicized, inefficient, and sometimes at ¶ 9. corrupt” so far as certain “human rights” practices are concerned, see 2000 Country Report at 1, this is FN2. Pacari is the leader of Pachakutik, an based, as the Country Reports make clear, on cases Ecuadorian political party of substantial largely involving confrontations between the police and increasing power having its primary and political protestors. Id. By contrast, not one of support among indigenous groups in the the cases described by the 1999 and 2000 Country Amazon and Sierra regions of Ecuador. Reports as evidence of such conclusions remotely See U.S. Dept. of State, FY 2001 Country resembles the kind of controversy here at issue. See Commercial Guide: Ecuador (“2001 1999 and 2000 Country Reports; see also Diaz v. Ecuador Commercial Guide”) at 18, avail- Aerovias Nacionales De Colombia, 1991 WL able at http://www.state.gov. 35855, at *1 (S.D.N.Y. Mar. 12, 1991), aff'd, 948 F.2d 1276 (2d Cir.1991). Accordingly, the Court is satisfied on the basis of the record before it that the courts of Ecuador (5) As previously noted, in the past decade can exercise with respect to the parties and claims alone numerous United States courts have found here presented that modicum of independence and Ecuador to be an adequate alternative forum for the *546 impartiality necessary to an adequate alternat- determination of civil disputes involving United ive forum. See Bridgeway Corp., 201 F.3d at States companies, see, e.g., Patrickson v. Dole 141–42 & n. 1. While the Court has been presented Food Co., Civil No. 97–01516 (D.Haw.1998) (slip with less information on which to assess the ad- op. at 41–51), available at Texaco App., Ex. 25; equacy of the Peruvian courts in this respect, but Espinola–E v. Coahoma Chem. Co., Civil No. see Torres v. Southern Peru Copper Corp., 965 96cv360RR (S.D.Miss.1998) (slip op. at 5–9), F.Supp. 899, 903 (S.D.Tex.1996), aff'd, 113 F.3d available at Texaco App., Ex. 26; Delgado, 890 540 (5th Cir.1997) (finding Peru to be an adequate F.Supp. at 1359–60; Sequihua, 847 F.Supp. at 64; alternative forum); Vargas v. M/V Mini Lama, 709 Ciba–Geigy Ltd., 691 So.2d at 1117. Nor has any F.Supp. 117, 118 (E.D.La.1989) (same), the case held to the contrary since Ecuador became a Ecuadorian courts provide in any event an adequate democratic constitutional republic in 1979. forum in which the Peruvian plaintiffs here can bring their claims. See Callejas Aff. I at ¶¶ 11–13; FN3 (6) Finally, the underlying claims here in issue Ponce y Carbo Aff. at ¶¶ 9, 11, 14. The Peruvi- have been and continue to be the subject of public an forum, therefore, is simply an alternative option scrutiny and political debate in Ecuador, a fact that the Peruvian plaintiffs may, if they wish, elect. made prominent even by the Government of Ecuador's own statements to this Court, see, e.g., FN3. While plaintiffs claim the Ecuadorian Plaintiffs' Supplemental Submission In Further Re- courts are biased against Peruvians, they sponse To This Court's January 31, 2000 Memor- adduce no competent evidence of this al- andum Order And This Court's May 2, 2000 Con- legation but simply make reference to the ference, Ex. 46, Letter from Ecuador's Attorney border dispute between the two countries General to Nina Pacari Vega, Second that was settled in 1998. Vice–President of the Ecuadorian National Con- FN2 gress, dated Apr. 26, 2000. Given such public While Ecuador therefore provides an adequate scrutiny in Ecuador, even the possibility that cor- alternative forum for these cases, the United States,

by contrast, is a palpably inadequate forum for of Ecuadorian judges over the matter. these cases in some notable respects. As Judge Bro- derick stated in indicating, at the very outset of this Exhibits In Support of Plaintiffs' Opposition to litigation, his preliminary belief that dismissal on Defendant's Motion to Dismiss the Complaint, Ex. forum non conveniens grounds might well be ap- 1. propriate: “[d]isputes over class membership, de- Plaintiffs argue that, under Law 55, their filing termination of individualized or common damages, of these suits in the United States has deprived the and the need for large amounts of testimony with Ecuadorian courts of jurisdiction. This argument, interpreters, perhaps often in local dialects, would however, rests on two doubtful assumptions. The make effective adjudication in New York problem- first is that Law 55 is retroactive and applies to atic at best.” Aguinda, 1994 WL 142006 at *2, lawsuits, like these, that were filed prior to the en- quoted also in Jota, 157 F.3d at 156–57. Similarly, actment of Law 55 in 1998. This seems dubious on in its Memorandum Order of January 31, 2000, this its face, *547 since it posits that such plaintiffs Court noted that “the notion that a New York jury would be conclusively held to a choice of forum (which plaintiffs have demanded) applying made before they had any reason to believe either Ecuadorian law (which likely governs the claims that such a choice would be conclusive or that it here made) could meaningfully assess what oc- would forever deprive them of even the possibility curred in the Amazonian rainforests of Ecuador in of an alternative forum. The second assumption is the late 1960's and early 1970's is problematic on that Law 55 applies even after a case is dismissed its face.” Aguinda, 2000 WL 122143, at *1. A on grounds like forum non conveniens. This also court, no matter how steeped in due process, whose seems highly doubtful, since the ostensible purpose fact-finders are called upon to adjudicate matters so of the law is to require plaintiffs to proceed in a extremely far removed from their everyday experi- single forum, not to be deprived of any forum ence may not itself provide an adequate forum. whatever (let alone the forum found most relevant). [6] Although not strictly an issue of See Ponce y Carbo Aff. at ¶ 32. “adequacy,” mention should also be made under While the Ecuadorian courts have yet to re- this rubric of the fact that in early 1998 Ecuador, solve these issues, see Tr. at 59–61; see also Calle- apparently in reaction to the fact that certain dis- jas Aff. II at ¶¶ 6–11 & Ex. B, and while the Gov- putes between Ecuadorian shrimp farmers and an ernment of Ecuador has taken no position as to ap- American pesticide manufacturer were the subject plicability vel non of Law 55 to the instant case, see of parallel litigation in both the Ecuadorian courts Tr. at 59–61, the unlikelihood that Ecuadorian and the state courts of Florida, see Tr. at 17–18, courts would ultimately adopt both these dubious passed Interpretive Law 55, which reads in pertin- assumptions makes Law 55 an insufficient basis for ent part as follows: concluding that the Ecuadorian forum is unavail- Without prejudice to the meaning of its literal able. See Patrickson v. Dole Food Co., slip op. at tone let articles 27, 28, 29 and 30 of the Code of 43–44. Nevertheless, as a safeguard, this Court, like Civil Procedure be interpreted in the sense that the Court in Patrickson, supra, will qualify the dis- when dealing with concurrent international com- missals here to provide that in the event that a court petency, the claimant will be able to choose of last review in Ecuador finally affirms the dis- freely between filing the lawsuit in Ecuador or missal for lack of jurisdiction pursuant to Law 55 abroad ... Should the lawsuit be filed outside of any action raising the claims here at issue pur- Ecuadorian territory, this will definitely terminate sued in good faith in Ecuador by any of the national competency as well as any jurisdiction plaintiffs here, this Court, upon motion made within 60 days, will resume jurisdiction over that action.

[7] Having carried its burden of proving that an trict court to proceed with care and circumspection. adequate alternative forum exists, defendant must *548 But having done its level best to proceed in next “demonstrate that the ordinarily strong pre- this manner, this Court is of the view that the bal- sumption favoring the plaintiff's chosen forum is ance of both private and public interest factors tips countered by the private and public interest factors here overwhelmingly in favor of dismissal of these set out in Gilbert, which weigh so heavily in favor cases. of the foreign forum that they overcome the presumption for plaintiffs' choice of forum.” DiRienzo, Under Gilbert, the “private interest” factors in- 232 F.3d at 56–57. See also, e.g., Piper Aircraft, clude the relative ease of access to sources of proof, 454 U.S. at 255–56, 102 S.Ct. 252; Gilbert, 330 the cost of obtaining the attendance of willing wit- U.S. at 508, 67 S.Ct. 839. It is true that in certain nesses, the availability of compulsory process for circumstances “a foreign plaintiff's choice deserves obtaining attendance of unwilling witnesses, the less deference,” Piper Aircraft, 454 U.S. at 256, possibility of viewing the relevant premises, and 102 S.Ct. 252, notably where, as here, the plaintiffs other such practical concerns. Gilbert, 330 U.S. at involved are all foreign nationals residing abroad. 508, 67 S.Ct. 839. Here, these factors weigh heavily See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 in favor of an Ecuadorian forum. On plaintiffs' own F.3d 88, 103 (2d Cir.2000); In re Union Carbide, submissions, these cases concern the ongoing con- 809 F.2d at 198. But the Second Circuit has also tamination of the rain forest of eastern Ecuador and chosen not to apply this lesser deference “when a adjoining areas as a result of allegedly negligent oil treaty with a foreign nation accords its nationals ac- piping and waste disposal practices undertaken cess to our courts equivalent to that provided Amer- there. An Ecuadorian court would be able to view ican citizens.” Blanco, 997 F.2d at 981. Since it ap- those premises and assess the allegations made in pears that the United States has such a treaty with respect to them in ways no New York jury could Ecuador, see Treaty with Ecuador, June 13, 1839, hope to approximate. Likewise, all plaintiffs, as art. 13, 8 Stat. 534, 538, this Court will assume ar- well as all members of their putative classes, reside guendo that plaintiffs' choice of forum carries a in eastern Ecuador or nearby areas of Peru, all of strong presumption of validity that may only be their alleged personal and property injuries oc- overcome by a balance of relevant factors that curred there, and virtually all witnesses to the man- heavily favors dismissal in favor of an alternative ner in which such injuries occurred reside there, forum. See, e.g., Evolution Online Sys., 145 F.3d at along with all the relevant medical and property re- 510. cords. See Texaco App., Ex. 1, Affidavit of Daniel J. King (“King Aff.”) at ¶¶ 24–29; Ashanga Compl. In weighing this balance, the Court must con- at ¶¶ 41–48, 64; Aguinda Compl. at ¶¶ 3, 11. Fur- sider the “private interest” and “public interest” ther still, defendant has made an essentially unre- factors set out in Gilbert, as well as other relevant butted showing that both the documentary and test- factors special to the case. See Gilbert, 330 U.S. at amentary evidence of the allegedly negligent acts 508–09, 67 S.Ct. 839. In so doing, a prudent district and decisions taken by the Consortium resides in court should proceed with caution, since the assign- Ecuador, see King Aff. at ¶ 26, along with the ing of relative weights in such circumstances often primary evidence supporting defendant's defenses calls for a nice exercise of discretion. The fact that, including evidence bearing on the key roles of Pet- because of the district court's greater familiarity roecuador and the Government of Ecuador, see id. with the full “feel” and “flavor” of the case, such at ¶¶ 22, 24–26, 28. exercise of discretion is subject to limited appellate review, see, e.g., Alfadda v. Fenn, 159 F.3d 41, 45 By contrast, what, if anything, occurred in the (2d Cir.1998), is only the more reason for the dis- United States? While plaintiffs continue to allege in

conclusory fashion that Texaco directed the Con- Ex. 21, Doyle Dep. at 32–33, 47–51. Plaintiffs also sortium's oil operations from the United States, they provide some evidence that certain unbudgeted and have wholly failed, despite years of discovery, to other contracts by TexPet were required to receive adduce competent evidence to support this asser- LAWA approval, largely for financial, legal, and tion. On the contrary, the record before the Court, tax purposes. See Pls.' 1996 Mem. at 15–17; see when scrutinized in terms of admissible evidence, also, e.g., Pls.' App., Ex. 20, Benton Dep. at 31–33, establishes overwhelmingly that Texaco's only 48–49, 92–93. But at most this evidence simply es- meaningful involvement in the activities here com- tablishes the obvious fact that Texaco, as a corpor- plained of was its indirect investment in its fourth- ate parent, exercised some general oversight over tier subsidiary, TexPet, which is not a party here the expenses and revenues of its subsidiaries. None and which conducted its participation in the activit- of these procedures indicates any parental control ies here complained of almost exclusively in or direction over the pipe design, waste disposal, Ecuador. See, e.g., TexPet Aff. at ¶¶ 3–10. and other allegedly negligent practices of the Con- sortium that are at issue in this case. The record before the Court also clearly establishes that all of the Consortium's key activities, in- FN4. For example, even though plaintiffs cluding the decisions and practices here at issue, state that “TexPet required the approval of were managed, directed, and conducted by Consor- Texaco personnel regarding the merits of tium employees in Ecuador, see, e.g., Texaco App., all proposed wells in Ecuador,” Pls.' 1996 Ex. 5, Deposition of William P. Doyle (“Doyle Mem. at 17 (emphasis in original), the Dep.”) at 101, 104, 109; Texaco App., Ex. 6, De- evidence they cite in support of this state- position of Robert M. Bischoff (“Bischoff Dep.”) at ment shows only that Texaco provided 219; Texaco App., Ex. 8, Deposition of Robert C. some funding and occasional technical as- Shields (“Shields Dep.”) at 57, 136, 142, 184–85; sistance. See Pls.' App., Ex. 2, Shields Benton Dep. at 202, 206. By contrast, no one from Dep. at 77–80, 326; Pls.' App., Ex. 35. In- Texaco or, indeed, anyone else operating in the deed, the witness whose deposition United States, made any material decisions as to the plaintiffs cite in support of their statement Consortium's activities and practices that are at is- actually testified to the contrary, affirming sue here, id.; see also, e.g., Benton Dep. at 170–84; that “Texaco, Inc. had no involvement in Texaco App., Ex 11, Deposition of Richard K. drilling wells in Ecuador.” Pls.' App., Ex. Meyers (“Meyers Dep.”) at 149–51; Bischoff Aff. 2, Shields Dep. at 325. at 219; Texaco App., Ex. 9, Deposition of Denis York Lecorgne at 72–73. Plaintiffs also emphasize that the Consortium from time to time went beyond TexPet to contract In response, plaintiffs rely on conjecture or ir- with various other U.S.-based subsidiaries of relevancy—as well as misstatement*549 and mis- Texaco (also non-parties here) for technical and FN4 citation —to try to supplant what their evid- other assistance, largely with regard to specific is- ence wholly fails to show. For example, plaintiffs sues or in response to special requests. For ex- emphasize certain indications that the president of ample, the U.S.-based Texaco Marine Department TexPet reported as a general matter to the president and the Central Offshore Engineering Department of Texaco's Latin American/West Africa division provided advice, pursuant to contracts with the (“LAWA”), based in Coral Gables, Florida, and Consortium, regarding offshore oil installations and that the budgets of TexPet, along with those of equipment, see Pls.' App., Ex. 20, Benton Dep. at many other subsidiaries, were reviewed by LAWA. 150–51, 158–60, and the Consortium also received See Pls.' 1996 Mem. at 11–14; see also Pls.' App., technical assistance from the U.S.-based Texas

Pipeline Company, also a subsidiary of Texaco, for tractor bids for a planned expansion of the main certain pipeline problems, see, e.g., Pls.' App., Ex. Ecuadorian pipeline and recommended a contractor 2, Shields Dep., at 157–58. Some technical advice for the project, see Pls.' 1996 Mem. at 23–24; Pls.' was even procured from Texaco's U.S.-based Envir- App., Ex. 45, they offer no evidence that Texas onmental Health and Safety Division. See, e.g., Pls.' Pipeline Company personnel decided the design or App., Ex. 20, Benton Dep. at 159–60. However, the specifications of the proposed expansion or that record is clear that all these services were limited to such decisions caused any portion of the environ- providing specific technical analyses requested by mental harms that are the subject matter of this lit- the Consortium to help implement design and other igation. Indeed, they concede that they do not even decisions previously reached in Ecuador, and it is know whether the proposed expansion was ever the design and other decisions reached in Ecuador built in accordance with these specifications, see that are challenged in these lawsuits. Conversely, Pls.' 1996 Mem. at 23 n. 48; and, in fact (as the de- there is no evidence that any of these service con- fendant has now shown) it was not, but rather was tractors exercised any authority or direction, or en- built in accordance with different specifications de- gaged in any decision-making whatever, as to the creed by the Ecuadorian Government. See Texaco Consortium's activities here at issue. For example, App., Ex. 4, Executive Decree No. 925, at § 18.2. while plaintiffs allege that chemical analyses of samples used for environmental monitoring were The simple fact of the matter is that, after hav- performed in the United States, see Pls.' 1996 Mem. ing deposed numerous Texaco witnesses and re- at 28 n. 57; Pls.' App., Ex. 54, Meyers Dep. at viewed tens of thousands of Texaco documents in 68–71, they offer no evidence to rebut defendant's an effort to establish a meaningful nexus between evidence that the analyses themselves were neutral the United States and the decisions and practices here complained of, plaintiffs have come up bone and accurate and that the decisions of what actions FN5 to take on the basis of these analyses were made dry. Indeed, on July 11, 1995, after much of solely by the Consortium in Ecuador, see, e.g., this discovery had been completed, plaintiffs stipu- Texaco App., Ex. 3, Benton Dep. at 174–77; lated that they had: Texaco App., Ex. 5, Doyle Dep. at 155–57, 168, FN5. It should also be noted that, to the ex- 251–52. tent any of this discovery taken from *550 In similar fashion, while plaintiffs allege Texaco is even arguably relevant to any in conclusory fashion that “Texaco personnel in the action brought in any Ecuadorian or Per- United States directed the response to [some] envir- uvian court by any plaintiff here, Texaco onmental problem[s] in Ecuador,” the only evid- has agreed to its admissibility there. See ence they adduce in support of this statement is an Def.'s Mem. at 13; Texaco App., Exs. 18 & indication that some U.S.-based Texaco personnel 19, at § B.4. provided technical information requested by TexPet no knowledge, information or documents having on such topics as the maximum safe levels of salt any tendency to prove or disprove (or otherwise and oil in water and how to clean up oil spills, see lead to the discovery of information or docu- Pls.' 1996 Mem. at 29, which was then forwarded to ments that might tend to prove or disprove) the the Consortium for its use and decision-making. existence or non-existence of any facts relating Thus, far from “directing” the response, Texaco to... simply provided some data for a decision made in Ecuador by the Consortium. Furthermore, while (a) “events relating to the harm alleged by plaintiffs emphasize that another Texaco subsidi- plaintiffs occurring in the United States, includ- ary, the Texas Pipeline Company, received con- ing specific or generalized directions initiating

events to be implemented elsewhere, communica- 97–98 (S.D.N.Y.1978). tions to and from the United States and discus- sions in the United States concerning, or assist- [8] The Gilbert “public interest” factors include ance to or guidance for events occurring else- local interest in the controversy, court congestion, where; and avoidance of unnecessary problems in application of foreign law, and avoidance of imposing jury duty (b) events occurring outside the United States to on residents of a jurisdiction having little relation- the extent the information can be furnished or se- ship to the controversy. See Gilbert, 330 U.S. at cured voluntarily or through directives to parties 508–09, 67 S.Ct. 839. Here, these factors also over- in the United States to secure the information; whelmingly support an Ecuadorian (and to a lesser and extent Peruvian) forum in preference to one in this District or anywhere else in the United States. (c) the extent, if any, to which conduct in the United States caused actionable harm under the The Ecuadorian local interest in the contro- criteria discussed in [Judge Broderick's April 11, versy is, on plaintiffs' own showing, very substan- 1994 discovery Order].” tial, whereas the public interest of the United States is much more modest. According to plaintiffs, the Texaco App., Ex. 21 (quoting Aguinda, 1994 WL acts complained of resulted in environmental pollu- 142006 at *1; Mem. Decision and Order, dated tion of Ecuador's rainforest regions and other prop- June 19, 1995, at 2–3) (emphasis in original). erty, and thereby injured tens of thousands of Nothing plaintiffs have discovered since then in Ecuadorian and Peruvian citizens in their property any way modifies these concessions or supplies and/or persons. While, if these allegations are true, the missing nexus. the United States still has an interest in not permit- ting its companies to participate in such miscon- Finally, in any fair balancing here of the relev- duct, the uncontested role of the Government of ant “private interests,” reference *551 must again Ecuador in authorizing, directing, funding, and be made to the glaring facts that neither the Gov- profiting from these activities necessarily lessens ernment of Ecuador nor PetroEcuador, the state-run the United States' interest in the litigation while fur- oil company that owns the Consortium and had ther increasing that of Ecuador. primary control of it through much of the relevant time period, are parties to the instant suits, whereas On any fair view of the evidence so far ad- they could be joined in any similar suit brought in duced in this case, the alleged preference given by Ecuador, see Bermeo Aff. at ¶ 11. Indeed, Petroe- the Consortium to oil exploitation over environ- cuador was in fact so impleaded in one of the simil- mental protection was a conscious choice made by ar suits brought against TexPet in Ecuador. See the Government of Ecuador in order to stimulate its FN6 Callejas Aff. I at ¶ 2. economy. The public interest of the United States in second-guessing those decisions is modest Accordingly, the balance of the Gilbert indeed. While plaintiffs allege that the piping and “private interest” factors heavily supports dismissal waste disposal practices used to implement this of this case in favor of Ecuador (and, if any Peruvi- choice were “negligent” (in the sense of causing an resident prefers, Peru). See, e.g., Stewart v. Dow more environmental harm than other, more expens- Chemical Co., 865 F.2d 103, 107 (6th Cir.1989); ive alternatives available to the Consortium would De Melo v. Lederle Labs., 801 F.2d 1058, 1062–63 have caused), they have not adduced anything but (8th Cir.1986); Doe v. Hyland Therapeutics Div., conclusory statements to suggest that the Govern- 807 F.Supp. 1117, 1125–26 (S.D.N.Y.1992); ment of Ecuador was unaware of the trade-off; and, Abouchalache v. Hilton Int'l Co., 464 F.Supp. 94, in any case, whether or not the Government of

Ecuador was or was not aware of these alleged con- Kuehner, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64, sequences can only be determined, in any meaning- 286 N.E.2d 454 (N.Y.1972)). Because the courts of ful way, if the litigation is brought in Ecuador, Ecuador are in the best position to find and apply where (as noted) the Government of Ecuador can be their own law, this factor weighs significantly in fa- joined as a party. vor of dismissal. See Hyland Therapeutics, 807 F.Supp. at 1129–30; Travelers Indem. Co. v. S/S FN6. According to the U.S. State Depart- Alca, 710 F.Supp. 497, 501–02 (S.D.N.Y.1989), ment, “Until the 1970's, Ecuador was an aff'd, 895 F.2d 1410 (2d Cir.1989); Abiaad v. Gen- agrarian country dependent on commodity eral Motors Corp., 538 F.Supp. 537, 543 exports.... Starting in 1972, oil develop- (E.D.Pa.1982), aff'd, 696 F.2d 980 (3d Cir.1982). ment in the Amazon basin fueled a decade of rapid growth, averaging 9 percent annu- Finally, as already discussed, the notion that a ally, that financed expanded public ser- New York federal jury is better equipped than an vices, state enterprises, infrastructure, and Ecuadorian judge to apply Ecuadorian law to Span- import-substitution manufacturing.” 2001 ish-language testimony and documents relating to Ecuador Commercial Guide at 4. 30 years' of activities by an Ecuador-sponsored Consortium in an Amazonian rain forest is prepos- *552 While bringing these suits in Ecuador terous. and/or Peru may impose material burdens on the courts there, the well-known congestion of Americ- [9] Plaintiffs argue, however, that this balance an dockets is undoubtedly greater than that of less of Gilbert factors heavily favoring dismissal needs litigious societies like Ecuador and Peru. Indeed, in to be re-weighed in light of the fact that, in addition terms of engendering inordinate delays, the history to their more conventional claims, they have also of mass tort class litigation in the United States is alleged a claim under the Alien Tort Claims Act not such as to inspire confidence, see Judicial Con- (“ATCA”), 28 U.S.C. § 1350, which provides a ference Report, supra. On its face, it seems more federal forum for aliens suing United States entities likely that the individual plaintiffs in the instant for violations of the law of nations. Whatever the cases would obtain any recovery to which they are abstract merits or demerits of this argument, dis- entitled much faster by bringing the kind of indi- cussed infra, it is of little relevance to this case, for vidualized actions that have already been brought two reasons. against TexPet in Ecuador, and successfully prosec- uted to completion there, than by serving as named First, the specific claim plaintiffs purport to plaintiffs in the massive lawsuits the U.S.-based bring under the ATCA—that the Consortium's oil plaintiffs' counsel here propose. extraction activities violated evolving environmental norms of customary international law, see, e.g., As to applicable law, it follows from the facts Pls.' Jan. 11, 1999 Mem. at 18–19; Pls.' 1996 Mem. that Ecuadorian lands and Ecuadorian people are at 64–68—lacks any meaningful precedential sup- the primary focus of this case that Ecuador's in- port and appears extremely unlikely to survive a terests in this case vastly outweigh those of New motion to dismiss. See Beanal v. Free- York and that Ecuadorian law will therefore apply port–McMoran, Inc., 197 F.3d 161, 166–67 (5th to most, if not all of, the claims raised in these Cir.1999); Amlon Metals, Inc. v. FMC Corp., 775 cases. See Zurich Ins. Co. v. Shearson Lehman Hut- F.Supp. 668, 671 (S.D.N.Y.1991). As the Fifth Cir- ton, Inc., 84 N.Y.2d 309, 319, 618 N.Y.S.2d 609, cuit Court of Appeals stated in dismissing a sub- 642 N.E.2d 1065 (N.Y.1994); Schultz v. Boy Scouts stantially similar claim in Beanal, supra, “the of Am., Inc., 65 N.Y.2d 189, 201, 491 N.Y.S.2d 90, [ATCA] ‘applies only to shockingly egregious viol- 480 N.E.2d 679 (N.Y.1985) (citing Neumeier v. ations of universally recognized principles of inter-

national law.’ See Zapata v. Quinn, 707 F.2d 691, incident which, if mishandled by a state court, 692 (2d Cir.1983) (per curiam)... [F]ederal courts might blossom into an international crisis.”); Fil- should exercise extreme caution when adjudicating artiga v. Pena–Irala, 630 F.2d 876, 890 (2d environmental claims under international law to in- Cir.1980) (the kinds of questions that arise under sure that environmental policies of the United the FTCA “are fraught with implications for the na- States do not displace environmental*553 policies tion as a whole, and therefore should not be left to of other governments.” Beanal, 197 F.3d at 167. the potentially varying adjudications of the courts of the fifty states”). While the apparent purpose of Second, even if the ATCA claim had greater ATCA, then, was simply to afford aliens a federal facial promise, the discovery already taken in this forum in preference to a state forum, the effect of case has established overwhelmingly that no act its text is to afford aliens a forum in the United taken by Texaco in the United States bore materi- States to assert violations of international law. But ally on the pollution-creating activities of which nothing in that text suggests that the United States plaintiffs complain. This is not a case, then, where forum should therefore be given preference over a the United States was specially used as a base from more convenient foreign forum which is adequate which to direct violations of international law vis- to handle the case. ited on some foreign site. Conversely, the actions in question occurred overwhelmingly in Ecuador, Accordingly, courts have applied forum non where courts are fully capable of interpreting al- conveniens analysis to cases involving claims leged violations of international law. The United brought under the ATCA in essentially the same States therefore has no special public interest, under manner as applied to all other cases. See, e.g., In re the ATCA or otherwise, in providing a forum for Estate of Ferdinand E. Marcos Human Rights Lit- plaintiffs pursuing an international law action ig., 978 F.2d 493, 500 (9th Cir.1992) (“Such limita- against a United States entity that plaintiffs can ad- tions as venue and the doctrine of forum non con- equately pursue in the place where the violation ac- veniens are available in [ATCA] cases as in any tually occurred. other.”); Cabiri v. Assasie–Gyimah, 921 F.Supp. 1189, 1199 (S.D.N.Y.1996) (conducting forum non [10] As a more general matter, moreover, the conveniens analysis in case involving claims under presence of a claim under the ATCA does not alter the Alien Tort Claims Act); Eastman Kodak Co. v. the standard forum non conveniens analysis to any- Kavlin, 978 F.Supp. 1078, 1084 (S.D.Fla.1997) thing like the degree suggested by plaintiffs. While (same); see also Kadic v. Karadzic, 70 F.3d 232, “the original purposes of the ATCA remain the sub- 250 (2d Cir.1995) (noting the United States' state- ject of some controversy... the most learned exposi- ment suggesting that ordinary forum non conveni- tion of the statute's original purposes ... suggest[s] ens analysis should apply to the ATCA claims there FN7 that the statute was originally motivated by a desire stated). to insure that claims by an alien against U.S. citizens or for incidents occurring in the United States FN7. Similarly, ordinary forum non con- were litigated in federal court rather than state veniens analysis has been held to apply to court, so as to prevent the states from mishandling claims under a variety of other federal stat- such cases and creating international incidents.” utes providing for special federal jurisdic- Wiwa, 226 F.3d at 105 n. 10. See also Tel–Oren v. tion and/or special venue rules. See, e.g., Libyan Arab Republic, 726 F.2d 774, 782 Capital Currency Exch. v. National West- (D.C.Cir.1984) (Edwards, J. concurring) (“There is minster Bank PLC, 155 F.3d 603, 608–09 evidence ... that the intent of this section was to as- (2d Cir.1998) (forum non conveniens ap- sure aliens access to federal courts to vindicate any plies to Sherman Act claims despite special

federal venue provision); TransUnion concluded that “[t]his is not to suggest that the Corp. v. Pepsico, Inc., 811 F.2d 127, TVPA has nullified, or even significantly dimin- 129–30 (2d Cir.1987) (same, for RICO ished, the doctrine of forum non conveniens.” Id. at claims); Cruz v. Maritime Co. of Philip- 106. A fortiori, the doctrine applies in undiminished pines, 702 F.2d 47, 48 (2d Cir.1983) fashion to ATCA suits that do not fall within the (same, for Jones Act claims); Wells Fargo purview of the TVPA. & Co. v. Wells Fargo Express Co., 556 F.2d 406, 431 (9th Cir.1977) (same, for Accordingly, even if one assumes for the sake Lanham Act claims); see generally Gilbert, of argument the hypothesis that Texaco participated 330 U.S. at 507, 67 S.Ct. 839 (forum non in a violation of international law that would sup- conveniens available “even when jurisdic- port the claim here brought under the ATCA, tion is authorized by the letter of a general neither that assumption nor any of the other consid- venue statute.”). erations special to these cases materially alters the balance of private and public interest factors that, *554 In support of their contrary position that as previously discussed, “tilt[s] strongly in favor of the ATCA materially alters forum non conveniens trial in the foreign forum,” Wiwa, 226 F.3d at 106 analysis, plaintiffs point to Flatow v. Islamic Re- (quoting R. Maganlal & Co. v. M.G. Chemical Co., public of Iran, 999 F.Supp. 1, 25 (D.D.C.1998), in 942 F.2d 164, 167 (2d Cir.1991)), and, indeed, vir- which a district court held that forum non conveni- tually mandates dismissal in favor of Ecuador or, if ens review is inappropriate for cases brought under any plaintiff prefers, Peru. the state-sponsored terrorism exception to the For- eign Sovereign Immunities Act, 28 U.S.C. § For the foregoing reasons, the defendant's mo- 1605(a)(7). However, that statute applies only tion to dismiss these cases on grounds of forum non where the plaintiff or victim of terrorism is a conveniens is hereby granted. Clerk to enter judg- United States national at the time of the incident, 28 ment in both cases. U.S.C. § 1605(a)(7)(B)(ii), so that the United States SO ORDERED. has a special interest in “ensuring that its citizens have an opportunity to seek redress in the United S.D.N.Y.,2001. States,” Flatow, 999 F.Supp. at 25, whereas the Aguinda v. Texaco, Inc. ATCA, by contrast, only applies to alien plaintiffs. 142 F.Supp.2d 534

More importantly, the Second Circuit recently END OF DOCUMENT had occasion to review the entire issue in compar- ing the wording of the original ATCA, here applicable, with the wording of an amendment to the ATCA, known as the Torture Victims Protection Act (“TVPA”), 28 U.S.C. § 1350 App., that extends jurisdiction under the ATCA to cases brought, not by aliens but by U.S. residents, who have been victims of foreign torture. See Wiwa, supra. Based on the wording differences between the original ATCA and the amendment, the Court divined a special United States receptivity to TVPA suits not necessarily present in the case of other ATCA suits. See Wiwa, 226 F.3d at 104–05. But even then the court

eracion de Comunidades Nativas Del Medio Napo- Feconamn, (Federation of Native Communities of United States Court of Appeals, the Middle Napo), Federacion del Pueblo Yagua del Second Circuit. Bajo Amazona y Bajo Napo-Fepybaban (Federation Maria AGUINDA, Individually, and as guardians of the Yagua People of the Lower Amazon and for Gesica Grefa, Carlos Grefa, Individually and as Lower Napo), Federacion del Bajo Amazona y Bajo guardians for Gresica Grefa, Gesica Grefa, Catarina Napo-Fepybaban (Federation of the Yagua People Aguinda, Mercedes Grefa, Lidia Aguinda; Patricio of the Lower Amazon and Lower Napo), Plaintiffs- Chimbo, Individually and as guardian for his minor Appellants, children, Elias Piyaguaje, Individually and as v. guardian for Lola Piyaguaje, Edicon Piyaguaje, TEXACO, INC., 2000 Westchester Avenue, White Paulina Piyaguaje, Jimena Piyaguaje and Elias Piy- Plains, New York 10650, Defendant-Appellee. aguaje, Lola Piyaguaje, Edison Piyaguaje, Paulina Piyaguaje, Jimena Piyaguaje, Elias Piyaguaje, Docket Nos. 01-7756L, 01-7758C. Delfin Payaguajo, Individually and as guardian for Argued March 11, 2002. his minor children, Homer Conde, Individually and Decided Aug. 16, 2002. as guardian for his minor children, Santo Guillermo Ramirez, Individually and as guardian for Danilo Citizens of Peru and Ecuador brought two pu- Ramirez, Danilo Ramirez, Juana Tanguila, Addi- tative class actions alleging that oil company pol- tional Plaintiff, Listed In Exhibits “B”, “C” and luted rain forests and rivers in those two countries, “D” Hereto and Incorporated Herein by Reference., causing environmental damage and personal injur- Individually and on behalf of all others similarly ies. The United States District Court for the South- situated, Gabriel Ashanga Jota, individually and as ern District of New York, Jed S. Rakoff, J., 945 Guardian for Raul Antonio Ashanga Casteno, Paula F.Supp. 625, dismissed complaint in one action on Nerida Ashanga Casteno, Christian Ashanga grounds of international comity, forum non con- Casteno and Judith Reutegui Casteno, Manuel Ant- veniens, and failure to join indispensable parties, onio Canelos Duende, Alimpio Coquinche Noteno, and denied reconsideration and Ecuador's motion to Arsenio Condo, Juan Marcos Coquinche Mercier, intervene, 175 F.R.D. 50. After second complaint Ronald Coquinche Noteno, indivudally and as was dismissed and citizens appealed, the Court of Guardian for Tarcila Conquinche and Saul Appeals, 157 F.3d 153, vacated and remanded. Oil Coquinche, Santiago, individually and as Guardian company renewed motion for dismissal on forum for Julian Coquinche and Santiago Coquinche, non conveniens grounds, after supplying additional Florentino Noteno, individually and as Guardian for information and consenting to suit in Ecuador and Mery Noteno, Greine Noteno, Armilda Noteno and Peru. The District Court, 142 F.Supp.2d 534, gran- Noris Noteno, Remedia Paz Duende, individually ted motion. Citizens appealed. The Court of Ap- and as Guardian for Lizzie Pena Paz and Jackie peals, Leval, Circuit Judge, held that: (1) courts of Pena Paz and on behalf of all others similarly situ- Ecuador provided adequate alternative forum for ated, Associacion Internica De Desarrollo de la citizens' claims, and (2) balance of private and pub- Selva Peruana-Aidesep, (Multi-Ethnic Association lic interest factors weighed strongly in favor of trial of the Development of the Peruvian Rainforest), in in Ecuadorian courts, warranting conditioned dis- representation of its members and of its member or- missal on forum non conveniens grounds. ganizations, Organizacion Kichuaruna wangurina- Affirmed as modified. Orkiwan, (Organization Quichua Wangurina), Fed-

West Headnotes other forum is clearly unsatisfactory, the other forum may not be an adequate alternative. [1] Federal Courts 170B 45 [4] Federal Courts 170B 45 170B Federal Courts 170BI Jurisdiction and Powers in General 170B Federal Courts 170BI(B) Right to Decline Jurisdiction; Ab- 170BI Jurisdiction and Powers in General stention Doctrine 170BI(B) Right to Decline Jurisdiction; Ab- 170Bk45 k. Forum Non Conveniens. Most stention Doctrine Cited Cases 170Bk45 k. Forum Non Conveniens. Most After determining the degree of deference Cited Cases owed to plaintiff's choice of forum, a district court Courts of Ecuador provided adequate alternat- deciding motion to dismiss on forum non conveni- ive forum for claims in which citizens of Peru and ens grounds engages in a two-step inquiry, first Ecuador alleged that United States-based oil com- considering whether an adequate alternative forum pany polluted rain forests and rivers in their coun- exists, and, if so, balancing a series of factors in- tries, causing environmental and personal injuries, volving the private interests of the parties in main- satisfying requirement for actions to be dismissed taining the litigation in the competing fora and any on forum non conveniens grounds; citizens failed to public interests at stake. show that Ecuadorian law deprived Ecuador courts of jurisdiction because actions were first filed in [2] Federal Courts 170B 45 United States and that Ecuadorian courts were unreceptive to tort claims, unavailability of class action 170B Federal Courts was not so burdensome as to deprive citizens of ef- 170BI Jurisdiction and Powers in General fective forum in light of ability to join similar litig- 170BI(B) Right to Decline Jurisdiction; Ab- ants together in lawsuit under Ecuadorian law, al- stention Doctrine leged availability of more streamlined procedures 170Bk45 k. Forum Non Conveniens. Most in United States did not make Ecuador courts inad- Cited Cases equate as alternative forum, and finding that undue Defendant seeking dismissal on forum non con- influence over Ecuadorian courts was unlikely in veniens grounds bears the burden both as to wheth- citizens' actions was not abuse of discretion. er adequate alternative forum exists and balancing of public and private interest factors. [5] Federal Courts 170B 45

[3] Federal Courts 170B 45 170B Federal Courts 170BI Jurisdiction and Powers in General 170B Federal Courts 170BI(B) Right to Decline Jurisdiction; Ab- 170BI Jurisdiction and Powers in General stention Doctrine 170BI(B) Right to Decline Jurisdiction; Ab- 170Bk45 k. Forum Non Conveniens. Most stention Doctrine Cited Cases 170Bk45 k. Forum Non Conveniens. Most In dismissing on forum non conveniens Cited Cases grounds class actions in which citizens of Peru and Ordinarily, under forum non conveniens ana- Ecuador alleged that United States-based oil com- lysis, the requirement of an adequate alternative pany polluted rain forests and rivers in their coun- forum will be satisfied when defendant is amenable tries, causing environmental and personal injuries, to process in the other jurisdiction; in rare circum- one year, as opposed to 60 days, was appropriate stances, however, where the remedy offered by the time period to allow for assertion of claims in

Ecuadorian courts exempt from limitations defenses process for attendance of unwilling, and cost of ob- based on limitations periods expiring after date of taining attendance of willing, witnesses, possibility filing of United States actions, given that class ac- of view of the premises, if view would be appropri- tion procedures were not recognized in Ecuador, ate to the action, and all other practical problems and that citizens, who had sought to represent that make trial of a case easy, expeditious, and in- nearly 55,000 plaintiffs, would therefore be re- expensive. quired to obtain signed authorizations for each individual plaintiff. [8] Federal Courts 170B 45

[6] Federal Courts 170B 45 170B Federal Courts 170BI Jurisdiction and Powers in General 170B Federal Courts 170BI(B) Right to Decline Jurisdiction; Ab- 170BI Jurisdiction and Powers in General stention Doctrine 170BI(B) Right to Decline Jurisdiction; Ab- 170Bk45 k. Forum Non Conveniens. Most stention Doctrine Cited Cases 170Bk45 k. Forum Non Conveniens. Most Public interest considerations in deciding mo- Cited Cases tion to dismiss on grounds of forum non conveniens Balance of private and public interest factors include administrative difficulties associated with weighed strongly in favor of trial in Ecuadorian court congestion, the unfairness of imposing jury courts, warranting conditioned dismissal on forum duty on a community with no relation to the litiga- non conveniens grounds of putative class actions in tion, the interest in having localized controversies which citizens of Peru and Ecuador alleged that decided at home, and avoiding difficult problems in United States-based oil company polluted rain conflict of laws and the application of foreign law. forests and rivers in their countries, causing environmental and personal injuries; relative ease of ac- *472 Cristóbal Bonifaz, Law Offices of Cristóbal cess to sources of proof favored proceeding in Bonifaz (John C. Bonifaz, Steven Donziger on the Ecuador, it would be onerous for New York court brief), Amherst, MA; Sarah Altschuler, Tonya L. to manage translation difficulties arising from cases Putnam, Amherst, MA, law clerks; Joseph C. Kohn, with 55,000 putative class members of different in- Martin D'Urso, Craig Hillwig, Kohn Swift & Graf, digenous groups speaking various dialects, view of Philadelphia, PA; Amy Damen, Sullivan & Damen, polluted areas would be more feasible for Ecuadori- White Plains, NY; Arthur L. Berney, Boston Col- an court, and Republic of Ecuador and state-owned lege Law School, Newton, MA, on the brief, for oil agency could be joined as parties in Ecuador. Plaintiffs-Appellants.

[7] Federal Courts 170B 45 Ronald C. Minkoff, Beldock Levine & Hoffman LLP, New York, NY; Jonathan S. Abady, Emery 170B Federal Courts Cuti Brinckerhoff & Abady, P.C., New York, NY, 170BI Jurisdiction and Powers in General on the brief, for the Republic of Ecuador, amicus 170BI(B) Right to Decline Jurisdiction; Ab- curiae in support of Plaintiffs-Appellants. stention Doctrine 170Bk45 k. Forum Non Conveniens. Most J. Martin Wagner, EarthJustice Legal Defense Cited Cases Fund, San Francisco, CA, submitted a brief for Private interests considered in determining amicus curiae the Sierra Club in support of whether dismissal on grounds of forum non con- Plaintiffs-Appellants. veniens is warranted include the relative ease of ac- Richard L. Herz, EarthRights International, Wash- cess to sources of proof, availability of compulsory

ington, DC, submitted a brief for amicus curiae ant Texaco, began oil exploration and drilling in the EarthRights International in support of Plaintiffs- Oriente region of eastern Ecuador. In 1965 TexPet Appellants. started operating a petroleum concession for a consortium (the “Consortium”) owned in equal shares George S. Branch, King & Spalding (Daniel J. King by TexPet and Gulf Oil Corporation. In 1974 the , Richard T. Marooney, Jr., Jeanette M. Viggiano government of the Republic of Ecuador on the brief), Atlanta, GA and New York, NY, for (“Republic” or “Ecuador”), through its state-owned Defendant-Appellee. oil agency known as PetroEcuador, obtained a 25 percent share in the Consortium. Within two years, Before: CARDAMONE, LEVAL, and SOTOMAY- PetroEcuador acquired Gulf Oil's interest and be- OR, Circuit Judges. came the majority stakeholder in the Consortium. Through 1989 TexPet operated a Trans Ecuadorian oil pipeline, at which time PetroEcuador took over LEVAL, Circuit Judge. that function. TexPet operated the Consortium's These are consolidated appeals from judgments drilling activities until July 1990, when PetroE- of the United States District *473 Court for the cuador took over that responsibility as well. In June Southern District of New York (Jed S. Rakoff, 1992, TexPet relinquished all its interests in the Judge ) dismissing two putative class actions for Consortium, leaving it owned entirely by PetroE- forum non conveniens. Plaintiffs are residents of the cuador. See Jota, 157 F.3d at 155-56 & n. 4. Oriente region of Ecuador and an adjoining area in Peru. Defendant is Texaco, Inc. (“Texaco”), a B. Prior Proceedings and Proceedings Below United States-based oil company, which, at the per- tinent time, was headquartered in New York. The 1. The Complaints and Proceedings Before Judge complaints allege environmental and personal injur- Broderick ies arising out of Texaco's oil exploration and ex- In November 1993, Ecuadorian plaintiffs filed traction operations in the Oriente region between the first of two class action lawsuits against Texaco 1964 and 1992. in the Southern District of New York on behalf of We modify the judgments in one respect ex- some 30,000 inhabitants of the Oriente region. See plained below, but otherwise affirm the dismissal of Aguinda v. Texaco, Inc., Dkt. No. 93 Civ. 7527 the actions by reason of forum non conveniens. (S.D.N.Y. filed Nov. 3, 1993) (“ Aguinda plaintiffs”). In December 1994, residents of Peru BACKGROUND living downstream from Ecuador's Oriente area The background of this case is described in de- brought a separate class action against Texaco in tail in the decisions of the district court, see the Southern District of New York on behalf of at Aquinda v. Texaco, Inc., 945 F.Supp. 625 least 25,000 residents of Peru. See Jota v. Texaco, (S.D.N.Y.1996); Aguinda v. Texaco, Inc., 142 Inc., Dkt. No. 94 Civ. 9266 (S.D.N.Y. filed Dec. F.Supp.2d 534 (S.D.N.Y.2001), and in our October 28, 1994) (“ Jota plaintiffs”). Both complaints al- 1998 opinion in the appeal from the district court's leged that between 1964 and 1992 Texaco's oil op- 1996 decision, see Jota v. Texaco, Inc., 157 F.3d eration activities polluted the rain forests and rivers 153 (2d Cir.1998). We briefly summarize the back- in Ecuador and Peru. The complaints alleged that ground as follows. Texaco's activities in Ecuador were “designed, controlled, conceived and directed ... through its opera- A. Texaco's Oil Operations in Ecuador tions in the United States.” In 1964, Texaco Petroleum Company (“TexPet”), a fourth-level subsidiary of the defend- The complaints sought money damages under

theories of negligence, public and private nuisance, claims. Id. at *3-4. strict liability, medical monitoring, trespass, civil conspiracy, and violations of the Alien Tort Claims 2. Proceedings Before Judge Rakoff Act, 28 U.S.C. § 1350 (“ATCA”). They also sought After Judge Broderick's death in March 1995, extensive equitable relief to redress contamination the cases were reassigned, ultimately to Judge of the water supplies and environment, including: Rakoff. Following discovery, in November 1996 financing for environmental*474 cleanup to create Judge Rakoff granted Texaco's motion to dismiss access to potable water and hunting and fishing the Aquinda suit on grounds of forum non conveni- grounds; renovating or closing the Trans Ecuadori- ens and international comity. See Aquinda, 945 an Pipeline; creation of an environmental monitor- F.Supp. at 627-28. The court also justified dis- ing fund; establishing standards to govern future missal by reason of the failure to join PetroEcuador Texaco oil development; creation of a medical and the Republic of Ecuador, on the theory that monitoring fund; an injunction restraining Texaco they were indispensable parties because their ab- from entering into activities that risk environmental sence would make it impossible for the court to or- or human injuries, and restitution. See Jota, 157 der the extensive equitable relief sought by F.3d at 156 n. 2. plaintiffs. Id. at 627. The court found that the For- eign Sovereign Immunities Act, 28 U.S.C. §§ Both cases were initially assigned to Judge 1603(b) and 1604 prevented the assertion of juris- Vincent Broderick. In December 1993, before the diction over either. Finally, the court ordered the Jota action was filed, Texaco moved to dismiss the Jota plaintiffs to show cause why their case should Aquinda complaint on grounds of 1) failure to join not be controlled by the Aquinda dismissal. Id. at the Republic of Ecuador; 2) international comity; 628. and 3) forum non conveniens. Along with this motion, Texaco submitted a letter from Ecuador's am- The Republic of Ecuador then filed a motion to bassador to the United States addressed to the U.S. intervene on behalf of the plaintiffs, and submitted Department of State, asserting that the Government the affidavit of Ecuador's Attorney General stating of Ecuador considered the suit an affront to that the Republic sought “to protect the interests of Ecuador's national sovereignty. While reserving de- the indigenous citizens of the Ecuadorian Amazon cision, the district court stated that dismissal might who were seriously affected by the environmental be appropriate as to the money damages claims be- contamination attributed to the defendant com- cause “[d]isputes over class membership, determin- pany.” Jota, 157 F.3d at 158. The district court ation of individualized or common damages, and found that in making the motion the Republic did the need for large amounts of testimony with inter- not express willingness to waive its sovereign im- preters, perhaps often in local dialects, would make munity. The Ecuadorian Attorney General respon- effective adjudication in New York problematic at ded that the Republic ratified “it[s] participation in best.” Aguinda v. Texaco, Inc., No. 93 Civ. 7527, this lawsuit ... to procure the necessary indemniza- 1994 WL 142006, at *2 (S.D.N.Y. Apr. 11, 1994). tion in order to alleviate the environmental damages The court specified, however, that any dismissal on caused by Texaco,” id. (first alteration in original), forum non conveniens grounds would be condi- but refused to waive the Republic's sovereign im- tioned upon Texaco's consent to jurisdiction in munity as to any claims made by the Jota plaintiffs Ecuador. Concluding that dismissal was premature, or counterclaims asserted by Texaco. The Aquinda the court ordered discovery as to whether Texaco in plaintiffs also had requested reconsideration*475 of fact directed activities in Ecuador from the United the court's prior dismissal. The district court denied States and whether extensive evidence from both the Aquinda plaintiffs' motion for reconsidera- Ecuador would be necessary to prove plaintiffs' tion and the Republic's motion to intervene. See

Aquinda v. Texaco, Inc., 175 F.R.D. 50 any manner to become or be treated as a party to (S.D.N.Y.1997). Shortly thereafter, the court dis- the Lawsuit.” missed the Jota complaint as well. Texaco consented to personal jurisdiction in 3. Plaintiffs' First Appeal Ecuador as to the Aquinda plaintiffs and in Peru or On appeal, this court vacated the dismissal and Ecuador as to the Jota plaintiffs. Texaco stipulated remanded for reconsideration. We ruled that forum it would waive its statute of limitations defenses non conveniens dismissal was inappropriate, “at that matured during the period of time between the least absent a commitment by Texaco to submit to filing of the complaint and the 60th day after the the jurisdiction of the Ecuadorian courts....” Jota, dismissal of the action by the district court. It pre- 157 F.3d at 159. We instructed the district court to served such defenses, however, with respect to the “independently reweigh the factors relevant to a passage of time prior to the initial filing of the com- forum non conveniens dismissal, rather than simply plaints. It also offered to stipulate that plaintiffs rely” on the reasoning of Sequihua v. Texaco, Inc., could utilize the discovery obtained thus far in re- 847 F.Supp. 61 (S.D.Tex.1994). Jota, 157 F.3d at sumed proceedings in Ecuador or Peru. Texaco then 159. As to comity, we advised the district court to renewed its motion to dismiss by reason of forum weigh the same considerations as with respect to non conveniens. forum non conveniens, and to reexamine the issue “in light of all the then current circumstances, in- 5. Judge Rakoff's Second Dismissal of Plaintiffs' cluding Ecuador's position with regard to the main- Complaints tenance of this litigation” in the United States. Id. at The district court deferred ruling on Texaco's 160-61. We also ruled that the district court's motion to dismiss “in order to give plaintiffs the “reasoning regarding the plaintiffs' failure to join an chance to reopen an issue they had previously aban- indispensable party sufficed only to support dis- doned, i.e., whether the courts of Ecuador (and/or) missing so much of the complaint as sought to en- Peru are sufficiently independent and impartial to join activities currently under the Republic's con- provide” due process. After briefing on this issue trol.” Id. at 155. Regarding Ecuador's post- was completed, plaintiffs moved to disqualify judgment motion to intervene, we agreed with the Judge Rakoff. Judge Rakoff denied the motion, see district court that Ecuador's motion was untimely Aguinda v. Texaco, Inc., 139 F.Supp.2d 438 and insufficient to waive sovereign immunity. Id. at (S.D.N.Y.2000), and we denied plaintiffs' sub- 162-63. sequent petition for a writ of mandamus, see In re Aguinda, 241 F.3d 194 (2d Cir.2001). 4. Events Following Remand Following our decision, Ecuador's ambassador *476 On May 30, 2001, the district court gran- to the United States informed the district court that ted Texaco's motions to dismiss the Aquinda and the Republic “is not willing, under any circum- Jota complaints. See Aguinda, 142 F.Supp.2d at stance, to waive its sovereign immunity and be sub- 554. The court ruled that Texaco had demonstrated ject to rulings by Courts in the United States.... the availability of an adequate alternative forum Therefore, the intervention of the Republic of and that the ordinarily strong presumption favoring Ecuador as a party is not necessary.” Ecuador's at- the plaintiffs' chosen forum was overcome by a bal- torney general agreed to the same view in a separ- ance of the relevant private and public interest ately submitted declaration, stating that Ecuador factors tilting heavily in favor of the alternative for- “will accept any decision of the U.S. courts as to um. The district court underscored that Texaco had whether they have jurisdiction over the matter or now consented to jurisdiction in Ecuadorian and not, ... [b]ut the Republic will not accept or agree in Peruvian courts. The court rejected each of plaintiffs' objections to the adequacy of an

Ecuadorian forum, which it found to be adequate [1][2] After determining the degree of defer- for the Jota plaintiffs as well. Plaintiffs also con- ence owed to a plaintiff's choice of forum, a district tested the adequacy of Ecuador as a forum on the court engages in a two-step inquiry. First, the court basis of a recent Ecuadorian statute, Law 55, which must consider whether an adequate alternative for- plaintiffs argued strips Ecuador's courts of concur- um exists. If so, it must “then balance a series of rent jurisdiction over suits which have been filed factors involving the private interests of the parties first in a foreign forum. The court expressed doubt in maintaining the litigation in the competing fora about plaintiffs' interpretation of Law 55, but quali- and any public interests at stake.” Wiwa, 226 F.3d fied its dismissal, expressing willingness to recon- at 100; see also Iragorri, 274 F.3d at 73. The de- sider if an Ecudorian court of last review were to fendant seeking dismissal bears the burden as to uphold dismissal on grounds of Law 55. See id. at both questions. Wiwa, 226 F.3d at 100. After as- 538-52. suming a strong presumption of validity for plaintiffs' choice of forum, the district court found With regard to the private and public interests, that the presumption was overcome by the balance the court found that “[t]hese cases have everything of public and private interest factors. to do with Ecuador and nothing to do with the United States.” Id. at 537. The court was not per- A. Does an Adequate Alternative Forum Exist? suaded by plaintiffs' argument that the balance of [3][4] Ordinarily, the requirement of an ad- public interests should be re-weighed in light of equate alternative forum “will be satisfied when the their claim under the Alien Tort Claims Act. It con- defendant is ‘amenable to process' in the other jur- cluded: 1) the conventional doctrine of forum non isdiction. In rare circumstances, however, where the conveniens “applies in undiminished fashion” to remedy *477 offered by the other forum is clearly ATCA claims, id. at 554 (citing Wiwa v. Royal unsatisfactory, the other forum may not be an ad- Dutch Petroleum Co., 226 F.3d 88, 104-06 (2d equate alternative....” Piper Aircraft Co. v. Reyno, Cir.2000)); 2) because environmental torts are un- 454 U.S. 235, 255 n. 22, 102 S.Ct. 252, 70 L.Ed.2d likely to be found to violate the law of nations, 419 (1981); DiRienzo v. Philip Servs. Corp., 232 plaintiffs' ATCA claim is unlikely to survive dis- F.3d 49, 57 (2d Cir.2000) (“[A]n agreement by the missal; 3) the United States has no special public defendant to submit to the jurisdiction of the for- interest in hosting an international law action eign forum can generally satisfy th[e] [alternative against a U.S. entity that can be adequately pursued forum] requirement.”), vacated on other grounds, in the place where the violation actually occurred; 294 F.3d 21 (2d Cir.2002). Plaintiffs raise several and 4) the ATCA does not compel providing a U.S. objections to the availability and adequacy of an FN1 forum when an adequate and more convenient for- Ecuadorian forum. eign forum exists. See id. at 552-53. FN1. The district court's assessment of an This appeal followed. alternative forum focused primarily on Ecuador. As to Peru, the court observed DISCUSSION that “[w]hile [it] has been presented with Plaintiffs contend that the district court abused less information on which to assess the ad- its discretion in determining that Ecuador was an equacy of the Peruvian courts, ... the adequate alternative forum and that the balance of Ecuadorian courts provide in any event an private and public interest factors tilted in favor of adequate forum in which the Peruvian dismissal. See Iragorri v. United Techs. Corp., 274 plaintiffs here can bring their claims. The F.3d 65 (2d Cir.2001) (en banc). Finding no abuse Peruvian forum, therefore, is simply an al- of discretion, we affirm with modification. ternative option that the Peruvian plaintiffs

may, if they wish, elect.” Aguinda, 142 eign law, the foreign forum will be available). F.Supp.2d at 546. The district court considered plaintiffs' claim that Ecuadorian FN2. Plaintiffs make a similar argument courts are biased against Peruvians, but with respect to Ecuador's Code of Civil dismissed the objection because plaintiffs Procedure Article 15, which provides that could “adduce no competent evidence of “the judge ... who summons the defendant this allegation but simply make reference first, acquires exclusive jurisdiction.” to the border dispute between the two Plaintiffs did not raise this issue below, countries that was settled in 1998.” Id. at and, in any event, we find the argument to 546 n. 3. As neither party on appeal con- be without merit. centrates attention on Peru as an alternat- We find no merit in plaintiffs' further argument ive opinion, we limit our analysis to that Ecuadorian courts are unreceptive to tort Ecuador and conclude that it is a suitable claims. The record shows that several plaintiffs forum for both sets of plaintiffs. have recovered judgments against TexPet and Pet- Plaintiffs contend first that Ecuador does not roEcuador for claims arising out of the very facts offer an alternative forum because Law 55 pre- here alleged. Other U.S. courts have found Ecuador cludes them from proceeding in Ecuadorian courts. to be an adequate forum for hosting tort suits. See, Law 55 provides, “[S]hould the lawsuit be filed e.g., Delgado v. Shell Oil Co., 890 F.Supp. 1324, outside Ecuadorian territory, this will definitely ter- 1359-60 (S.D.Tex.1995) (Ecuador adequate to host minate national competency as well as any jurisdic- mass tort suit for pesticide exposure); Ciba-Geigy tion of Ecuadorian judges over the matter.” Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1117 Plaintiffs argue that Law 55 deprives Ecuadorian (Fla.Dist.Ct.App.1997) *478 (finding Ecuadorian courts of competency to assert jurisdiction because forum adequate for hosting suit for fungicide ex- both suits were first filed in the United States. They posure). In addition, Texaco has offered unrebutted contend that dismissal for forum non conveniens evidence of other types of successful tort claims would leave them without a forum in which to pro- brought in Ecuadorian courts, including personal ceed. We agree with the district court's skepticism injury claims by Ecuadorian oilfield workers as to the law's retroactivity, as well as its applica- against TexPet. tion to cases dismissed for forum non conveniens. Plaintiffs' contention is predicated on the ab- We note furthermore that following oral argument sence of tort actions on the docket of Ecuador's Su- the parties submitted to us an April 30, 2002 de- preme Court. Given Texaco's showing that tort cision of the Ecuadorian Constitutional Court de- judgments are awarded by Ecuador's courts, their claring Law 55 unconstitutional. We need not de- absence from the docket of the Supreme Court of termine the scope of Law 55, as the district court Ecuador appears to be of little significance. qualified its dismissal specifying that, in the event the cases were dismissed in Ecuador under Law 55 Plaintiffs' third objection is that Ecuadorian and this result were affirmed by Ecuador's highest courts do not recognize class actions. On the other court, it would be open to reconsider the question. FN2 hand, Ecuador permits litigants with similar causes But see Bank of Credit and Commerce Int'l v. of action arising out of the same facts to join to- State Bank of Pak., 273 F.3d 241, 248 (2d gether in a single lawsuit. While the need for thou- Cir.2001) (suggesting that the degree of protection sands of individual plaintiffs to authorize the action that must be afforded by a conditional dismissal on in their names is more burdensome than having forum non conveniens grounds will vary depending them represented by a representative in a class ac- on how certain the court is that, under unsettled for- tion, it is not so burdensome as to deprive the

plaintiffs of an effective alternative forum. Cf. district court, timely claims were brought on behalf Blanco v. Banco Industrial de Venezuela, S.A., 997 of nearly 55,000 plaintiffs. In Ecuador, because F.2d 974, 982 (2d Cir.1993) (“[T]he unavailability class action procedures are not recognized, signed of beneficial litigation procedures similar to those authorizations would need to be obtained for each available in the federal district courts does not individual plaintiff. This presents a formidable ad- render an alternative forum inadequate.”). ministrative task for which we believe 60 days is inadequate time. We therefore direct the district Plaintiffs point further to several respects in court to modify its ruling to make dismissal condi- which Ecuadorian procedure is less efficient than tioned on Texaco's agreeing to waive any defense U.S. procedure. While Ecuador's judicial proced- based on a statute of limitations for limitation peri- ures may be less streamlined than ours, that does ods expiring between the date of filing these United not make Ecuador's procedures ineffective or States actions and one year (rather *479 than 60 render Ecuador inadequate as an alternative forum. days) following the dismissal of these actions. See id., 997 F.2d at 982; DiRienzo, 232 F.3d at 58-59. B. Balancing Private and Public Interest Factors [6] Having demonstrated the availability of an Plaintiffs contend that Ecuadorian courts are adequate alternative forum, Texaco must next es- subject to corrupt influences and are incapable of tablish that the balance of private and public in- acting impartially. After ordering supplemental terest factors “tilt[s] strongly in favor of trial in the briefing on this question, Judge Rakoff made de- foreign forum.” Wiwa, 226 F.3d at 100. tailed findings. He found: 1) no evidence of impro- priety by Texaco or any past member of the Con- 1. Private Interest Factors sortium in any prior judicial proceeding in Ecuador; [7] Private interests include “the relative ease 2) there are presently pending in Ecuador's courts of access to sources of proof; availability of com- numerous cases against multinational corporations pulsory process for attendance of unwilling, and the without any evidence of corruption; 3) Ecuador has cost of obtaining attendance of willing, witnesses; recently taken significant steps to further the inde- possibility of view of the premises, if view would pendence of its judiciary; 4) the State Department's be appropriate to the action; and all other practical general description of Ecuador's judiciary as politi- problems that make trial of a case easy, expeditious cized applies primarily to cases of confrontations and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 between the police and political protestors; 5) nu- U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). merous U.S. courts have found Ecuador adequate We find no abuse of discretion in the district court's for the resolution of civil disputes involving U.S. conclusion that these interests “weigh heavily” in companies; and 6) because these cases will be the favor of an Ecuadorian forum. The relative ease of subject of close public and political scrutiny, as access to sources of proof favors proceeding in confirmed by the Republic's involvement in the lit- Ecuador. All plaintiffs, as well as members of their igation, there is little chance of undue influence be- putative classes, live in Ecuador or Peru. Plaintiffs ing applied. See Aguinda, 142 F.Supp.2d at 544-46. sustained their injuries in Ecuador and Peru, and We cannot say that these findings were an abuse of their relevant medical and property records are loc- discretion. See Leon v. Millon Air, Inc., 251 F.3d ated there. Also located in Ecuador are the records 1305, 1313 n. 3 (11th Cir .2001). of decisions taken by the Consortium, along with evidence of Texaco's defenses implicating the roles [5] Finally, plaintiffs challenge the district of PetroEcuador and the Republic. By contrast, court's allowance of only 60 days for the assertion plaintiffs have failed to establish that the parent of plaintiffs' claims in Ecuador exempt from claims Texaco made decisions regarding oil operations in of preclusion. We agree with this objection. In the

Ecuador or that evidence of any such decisions is ted in the Sucumbios province. located in the U.S. *480 2. Public Interest Factors If these cases proceeded to trial, it would be [8] Public interest considerations include ad- onerous for a New York court to manage the trans- ministrative difficulties associated with court con- lation difficulties arising from cases with 55,000 gestion; the unfairness of imposing jury duty on a putative class members of different indigenous community with no relation to the litigation; the in- groups speaking various dialects. In addition, it terest in having localized controversies decided at would be far more feasible for an Ecuadorian court home; and avoiding difficult problems in conflict of to view the polluted areas in question than for a laws and the application of foreign law. Gilbert, New York court to do so. We also find significant 330 U.S. at 508-09, 67 S.Ct. 839. The district court that the Republic and PetroEcuador, neither of was within its discretion in concluding that the pub- FN3 which are parties to the current suits, could be lic interest factors tilt in favor of dismissal. joined if the cases were resumed in Ecuador. See Piper Aircraft, 454 U.S. at 259, 102 S.Ct. 252 FN3. Plaintiffs contend we should interpret (noting that “inability to implead potential third- the ATCA to encompass their environ- party defendants” supports holding trial in Scot- mental claim, cf. Beanal v. Freeport-Mc- land). We agree with the district court's observation Moran, Inc., 197 F.3d 161, 167 (5th that in the absence of the Ecuadorian Republic as a Cir.1999), and to express, like the Torture party, a U.S. court would be incapable of effect- Victims Protection Act, a strong U.S. ively ordering several aspects of the equitable relief policy interest in providing a forum for the sought in the complaints. adjudication of such claims. Compare Wiwa, 226 F.3d at 105. We have no need To the extent that evidence exists within the to pass on either question. Even if we were U.S., plaintiffs' concerns are partially addressed by to accept plaintiffs' view of the law on both Texaco's stipulation to allow use of the discovery questions, the private and public interest already obtained. Furthermore, Texaco's counsel factors that affect this case would nonethe- agreed at oral argument that Texaco would not op- less require that we affirm the district pose further discovery in Ecuador that would other- court's judgment. wise be available in the U.S. We conclude that the district court was within Finally, plaintiffs raise two additional practical its discretion in dismissing the actions on the basis FN4 concerns: 1) They contend the filing fee for any of forum non conveniens. civil action in Ecuador is cost prohibitive for plaintiffs, many of whom are low-income subsist- FN4. Plaintiffs also cursorily argue that in- ence farmers; and 2) there is currently a travel ad- ternational comity considerations militate visory by the U.S. State Department for the against dismissal and that Judge Rakoff Ecuadorian province of Sucumbios, where plaintiffs should have recused himself. We have con- assert trial would be held. It is sufficient answer sidered both claims and find them to be that these contentions need not be recognized when without merit. raised for the first time on appeal. In addition, CONCLUSION however, plaintiffs acknowledge the passage of The district court's judgment dismissing for new law in Ecuador whereby filing fees for indi- forum non conveniens is AFFIRMED, subject to the gent persons are reduced to a minimal level. With modification that the judgment be conditioned on regard to the travel advisory, plaintiffs have given Texaco's agreement to waive defenses based on no explanation as to why litigation must be conduc-

statutes of limitation for limitation periods expiring between the institution of these actions and a date one year subsequent to the final judgment of dismissal.

C.A.2 (N.Y.),2002. Aguinda v. Texaco, Inc. 303 F.3d 470, 157 Oil & Gas Rep. 33, 33 Envtl. L. Rep. 20,010

END OF DOCUMENT