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Covington & Burling Obtains Victory for Defendant Corporation in Alien Tort Claims Act Lawsuit

August 1, 2002

August 1, 2002 - WASHINGTON, D.C. - On July 16, 2002, Senior Judge Charles S. Haight, Jr. of the United States District Court for the Southern District of New York dismissed the Alien Tort Claims Act (ATCA) lawsuit filed by Peruvian plaintiffs against Southern Peru Copper Corporation (SPCC). Covington & Burling partners Peter J. Nickles and Thomas L. Cubbage III led the team that secured this victory for SPCC.

The ATCA is a federal statute that permits "aliens" to bring claims in United States federal court for alleged violations of "the law of nations" - i.e., international law. In recent years, plaintiffs' attorneys have sought to employ the ATCA as the basis for lawsuits in U.S. courts by foreign plaintiffs suing corporations for their activities outside the United States. Observers such as the Harvard Law Review and the U.S. Council for International Business have commented on the increasing frequency with which such lawsuits have been brought against multinational corporations. Those lawsuits often are supported by activist political or environmental organizations and academics who advocate expansive definitions of the meaning and applicability of "international law."

The Flores v. SPCC lawsuit is a good example of such litigation. The plaintiffs were eight residents of Peruvian city of Ilo. In December 2000, they filed suit in federal court in New York City, alleging that the environmental effects of SPCC's mining and smelting activities around Ilo, and alleged health risks related to them, constituted violations of international law for which the corporation could be held liable by the U.S. court.

In a significant 52-page opinion with important implications for other ATCA litigation, Judge Haight rejected the plaintiffs' effort to convert conventional tort claims based on conduct abroad into matters of international law enforceable in U.S. courts. Despite the plaintiffs' aggressive advocacy, supported by lengthy submissions by two law professors, Judge Haight ruled that plaintiffs could not establish that allegedly high levels of environmental pollution, allegedly causing "harm to human life, health, and sustainable development within a nation's borders, violate any well-established rules of customary international law."

Focusing on the core of the plaintiffs' argument - which mirrors that of foreign plaintiffs in many ATCA cases - Judge Haight rejected the notion that abstract and indefinite principles of human rights, such as the "right to life," "right to health," or "right to sustainable development," by themselves constitute international law that can be enforced against corporations. The court also rejected the argument that the applicability of international law depends on a subjective evaluation of the "egregiousness" of the defendant's conduct. Judge Haight therefore dismissed the Peruvian plaintiffs' lawsuit because their claims of environmental pollution do not involve international law, and the ATCA does not support a cause of action by them in the U.S. courts.

Notably, Judge Haight also explained that, if he had not dismissed the ATCA claims as legally unfounded, he would have dismissed the lawsuit on the basis of forum non conveniens. Under that important judicial doctrine, an action may be dismissed if it has little connection to the forum in which it has been filed, and would more conveniently be litigated elsewhere. Because the Flores case had no connection to New York, involved parties and witnesses located in Peru, and would turn upon testimony and documentary evidence in Spanish, Judge Haight readily concluded that Peru would be the more appropriate forum for the dispute. In doing so, the U.S. judge declined to rule, as the plaintiffs urged, that no remedy could be obtained in Peru because its laws do not recognize punitive damages and its courts should be deemed corrupt. In this regard, Judge Haight's ruling should influence the disposition of similar forum non conveniens motions to decline jurisdiction that arise in most ATCA cases in U.S. courts.

As the English jurist Lord Denning observed, "as a moth is drawn to the light, so is a litigant drawn to the United States" and its courts. Covington & Burling has long represented businesses sued in the United States for claims arising from activities abroad. For example, in 1996, Messrs. Nickles and Cubbage obtained the dismissal of claims brought by other Peruvian plaintiffs against SPCC in Texas (Torres v. SPCC); that dismissal came just six months after the case was filed and was affirmed on appeal in 1997.

For more information on the Flores case, developing ATCA issues, and Covington & Burling's experience in defending claims by foreign plaintiffs in U.S. courts, please contact Peter Nickles at 202.662.5394, or Thomas (T.L.) Cubbage at 202.662.5161.

For more information, please contactPeter J. Nickles, 202.662.5394.

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