809 F.2d 195 (2nd Cir. 1987), 301, In re Union Carbide Corp. Gas Plant Disaster at Bhopal

Docket Nº:301, 383 and 496, Docket 86-7517, 86-7589 and 86-7637.
Citation:809 F.2d 195
Party Name:Envtl. In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984. The PLAINTIFFS IN ALL CASES WHICH HAVE BEEN CONSOLIDATED INTO THIS PROCEEDING BY ORDER OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION dated February 6, 1985, and Order of this Court dated April 25, 1985, together with those Plaintiffs in all other relat
Case Date:January 14, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 195

809 F.2d 195 (2nd Cir. 1987)

Envtl.

In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT

BHOPAL, INDIA IN DECEMBER, 1984.

The PLAINTIFFS IN ALL CASES WHICH HAVE BEEN CONSOLIDATED

INTO THIS PROCEEDING BY ORDER OF THE JUDICIAL PANEL ON

MULTIDISTRICT LITIGATION dated February 6, 1985, and Order

of this Court dated April 25, 1985, together with those

Plaintiffs in all other related actions which may be

consolidated subsequent to the filing of this notice of

appeal, including but not limited to all those cases which

are all those tort cases filed in this Court which the

undersigned are aware of, except The Union of India v. Union

Carbide Corporation, No. 85 Civ. 2696 and except those cases

consolidated as shareholders or derivative cases by

Executive Committee Members, Stanley M. Chesley and F. Lee

Bailey, and the Union of India, Plaintiffs-Appellants, Cross-Appellees,

v.

UNION CARBIDE CORPORATION, Defendant-Appellee, Cross-Appellant.

Nos. 301, 383 and 496, Docket 86-7517, 86-7589 and 86-7637.

United States Court of Appeals, Second Circuit

January 14, 1987

Argued Nov. 24, 1986.

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Stanley M. Chesley, Cincinnati, Ohio, Waite Schneider, Bayless and Chesley Co., L.P.A., Cincinnati, Ohio, and F. Lee Bailey, New York City (Jack S. Hoffinger (Liaison Counsel), Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, of counsel; Phillip B. Allen, Cincinatti, Ohio, Arnold Levin, David J. Perlman, Howard J. Sedran, Philadelphia, Pa., Michael C. Zwal, on brief), Howard Beach, N.Y., for appellant individual plaintiffs.

Bud G. Holman, New York City (William Krohley, Robert E. Crotty, Lisa E. Cleary, Kelley Drye & Warren, New York City, of counsel), for Union Carbide Corp.

Michael V. Ciresi, Minneapolis, Minn. (Bruce A. Finzen, Robert M. Wattson, Roberta B. Walburn, Robins, Zelle, Larson & Kaplan, Minneapolis, Minn. (D.S. Sastri, Silver Springs, Md.); Gerald A. Novack, Barrett, Smith, Schapiro, Simon & Armstrong, New York City, of counsel), for The Union of India.

Rob Hager, Washington, D.C. for amicus curiae Christic Institute.

Before MANSFIELD, PRATT and ALTIMARI, Circuit Judges.

MANSFIELD, Circuit Judge: [*]

This appeal raises the question of whether thousands of claims by citizens of India and the Government of India arising out of the most devastating industrial disaster in history--the deaths of over 2,000 persons and injuries of over 200,000 caused by lethal gas known as methyl isocyanate which was released from a chemical plant operated by Union Carbide India Limited (UCIL) in Bhopal, India--should be tried in the United States or in India. The Southern District of New York, John F. Keenan, Judge, granted the motion of Union Carbide Corporation (UCC), a defendant in some 145 actions commenced in federal courts in the United States, to dismiss these actions on grounds of forum non conveniens so that the claims may be tried in India, subject to certain conditions. The individual plaintiffs appeal from the order and the court's denial of their motion for a fairness hearing on a proposed settlement. UCC and the Union of India (UOI), a plaintiff, cross-appeal. We eliminate two of the conditions imposed by the district court and in all other respects affirm that court's orders.

The accident occurred on the night of December 2-3, 1984, when winds blew the deadly gas from the plant operated by UCIL into densely occupied parts of the city of Bhopal. UCIL is incorporated under the laws of India. Fifty and nine-tenths percent of its stock is owned by UCC, 22% is owned or controlled by the government of India, and the balance is held by approximately 23,500 Indian citizens. The stock is publicly traded on the Bombay Stock Exchange. The company is engaged in the manufacture of a variety of products, including chemicals, plastics, fertilizers and insecticides, at 14 plants in India and employs over 9,000 Indian citizens. It is managed and operated entirely by Indians in India.

Four days after the Bhopal accident, on December 7, 1984, the first of some 145 purported class actions in federal district courts in the United States was commenced on behalf of victims of the disaster. On January 2, 1985, the Judicial Panel on Multidistrict Litigation assigned the actions to the Southern District of New York where they became the subject of a consolidated complaint filed on June 28, 1985.

In the meantime, on March 29, 1985, India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, granting to its government, the UOI, the exclusive right to represent the victims in India or elsewhere. Thereupon the UOI, purporting to act in the capacity of parens patriae, and with retainers executed by many of the victims, on April 8, 1985, filed a complaint in the Southern District of New York

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on behalf of all victims of the Bhopal disaster, similar to the purported class action complaints already filed by individuals in the United States. The UOI's decision to bring suit in the United States was attributed to the fact that, although numerous lawsuits (by now, some 6,500) had been instituted by victims in India against UCIL, the Indian courts did not have jurisdiction over UCC, the parent company, which is a defendant in the United States actions. The actions in India asserted claims not only against UCIL but also against the UOI, the State of Madhya Pradesh, and the Municipality of Bhopal, and were consolidated in the District Court of Bhopal.

By order dated April 25, 1985, Judge Keenan appointed a three-person Executive Committee to represent all plaintiffs in the pre-trial proceedings. It consisted of two lawyers representing the individual plaintiffs and one representing the UOI. On July 31, 1985, UCC moved to dismiss the complaints on grounds of forum non conveniens, the plaintiffs' lack of standing to bring the actions in the United States, and their purported attorneys' lack of authority to represent them. After several months of discovery related to forum non conveniens, 1 the individual plaintiffs and the UOI opposed UCC's motion. After hearing argument on January 3, 1986, the district court, on May 12, 1986, 634 F.Supp. 842, in a thoroughly reasoned 63-page opinion granted the motion, dismissing the lawsuits before it on condition that UCC:

(1) consent to the jurisdiction of the courts of India and continue to waive defenses based on the statute of limitations,

(2) agree to satisfy any judgment rendered by an Indian court against it and upheld on appeal, provided the judgment and affirmance "comport with the minimal requirements of due process," and

(3) be subject to discovery under the Federal Rules of Civil Procedure of the United States.

On June 12, 1986, UCC accepted these conditions subject to its right to appeal them; and on June 24, 1986, the district court entered its order of dismissal. In September 1986 the UOI, acting pursuant to its authority under the Bhopal Act, brought suit on behalf of all claimants against UCC and UCIL in the District Court of Bhopal, where many individual suits by victims of the disaster were then pending.

In its opinion dismissing the actions the district court analyzed the forum non conveniens issues, applying the standards and weighing the factors suggested by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 955 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). At the outset Judge Keenan concluded, in accordance with the Court's expressed views in Piper that, since the plaintiffs were not residents of the United States but of a foreign country, their choice of the United States as a forum would not be given the deference to which it would be entitled if this country were their home. See Piper, 454 U.S. at 256, 102 S.Ct. at 266. Following the dictates of Piper, the district court declined to compare the advantages and disadvantages to the respective parties of American versus Indian Laws or to determine the impact upon plaintiffs' claims of the laws of India, where UCC had acknowledged that it would make itself amenable to process, except to ascertain whether India provided an adequate alternative forum, as distinguished from no remedy at all. Judge Keenan reviewed thoroughly the affidavits of experts on India's law and legal system, which described in detail its procedural and substantive aspects, and concluded that, despite some of the Indian system's disadvantages, it afforded an adequate alternative forum for the enforcement of plaintiffs' claims.

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The Indian judiciary was found by the court to be a developed, independent and progressive one, which has demonstrated its capability of circumventing long delays and backlogs prevalent in the Indian courts' handling of ordinary cases by devising special expediting procedures in extraordinary cases, such as by directing its High Court to hear them on a daily basis, appointing special tribunals to handle them, and assigning daily hearing duties to a single judge. He found that Indian courts have competently dealt with...

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