Wiwa v. Royal Dutch Petroleum Co.

Nos. 99-7223[L], 99-7245[XAP] (226 F.3d 88) (2d Cir. September 14, 2000)

ELR Digest

The court upholds in part and reverses in part a district court dismissal on forum non conveniens grounds of individuals' Alien Tort Claims Act (ATCA) suit alleging that a foreign oil company participated in human rights violations in Nigeria. The court first holds that the district court properly held that the company is subject to personal jurisdiction in New York. Under New York law, a court may assert jurisdiction over a foreign corporation when it affiliates itself with a New York representative that renders services on behalf of the foreign corporation that go beyond mere solicitation and are sufficiently important to the foreign corporation that the corporation itself would perform equivalent services if no agent were available. The company employed a New York individual in an investor relations office, the sole business of which was to perform investor relations services on the company's behalf. Further, while the investor relations office was not directly involved with the core functions of the company's business, its work was meaningful to the company as a huge, publicly traded company. Moreover, the company located the office in New York because that was the best place for the office. Similarly, the investor relations office is not an activity incidental to the company's listing on the New York Stock Exchange. The large body of case law that the company points to at most stands for the proposition that, absent other substantial contacts, a company is not doing business in New York merely by taking ancillary steps in support of its listing on a New York exchange. The activities chargeable to the company go well beyond this minimum. Likewise, the investor relations office in New York constitutes a continuous systematic business presence in New York that satisfies minimum contacts. In addition, any inconvenience to the company in litigating in New York would not be great and does not violate the fairness requirement of the Due Process Clause.

The court next holds that the district court erroneously dismissed the ATCA suit against the company on forum non conveniens grounds. The district court applied an incorrect standard of law when it failed to credit the fact that two of the individual plaintiffs were U.S. residents entitled to greater deference in their choice of a U.S. forum. Further, the ATCA, as supplemented by the Torture Victim Prevention Act, communicates a policy that the United States has jurisdiction over, is receptive to, and can impose liability where an individual brings suit alleging torture under color of law of a foreign nation. Allowing such a case to be dismissed on forum non conveniens grounds would do little to enforce such a policy. In addition, the forum non conveniens grounds relied on by the district court in dismissing the case are not compelling. For any non-party witness, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of trial in England. Further, the additional cost and inconvenience to the company of litigating in New York is fully counterbalanced by the cost and inconvenience to the individuals of requiring them to reinstitute the litigation in English courts, especially given the individuals minimal resources in comparison to the company's vast resources.

The full text of this opinion is available from ELR (18 pp., ELR Order No. L-279).

Counsel for Plaintiffs
Jennifer M. Green
Center for Constitutional Rights
666 Broadway, 7th Fl., New York NY 10012
(212) 614-6464

Counsel for Defendants
Rory O. Millson
Cravath, Swaine & Moore
Worldwide Plaza
825 8th Ave., New York NY 10019
(212) 474-1000

[31 ELR 20166]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]