No Longer Safe at Home: Preventing the Misuse of Federal Common Law of Foreign Relations as a Defense Tactic in Private Transnational Litigation

In an increasingly common litigation strategy, plaintiffs in Patrickson v. Dole Food Company, laborers in the banana industries of Costa Rica, Ecuador, Guatemala and Panama, brought a classaction suit in Hawaii state court against Dole Food and other defendants. Plaintiffs brought only state law causes of action, alleging that they had been harmed by Dole Food's use of DBCP, a toxic pesticide banned from use in the United States. Dole Food removed the case to federal district court seeking the procedural advantages of a federal forum, as corporate defendants facing alien tort plaintiffs seeking redress for overseas conduct invariably do. The advantages Dole Food sought from a federal forum included: stricter standing requirements, stricter burdens of proof, and a more liberal standard for forum non conveniens dismissal.

Of these, federal forum non conveniens doctrine was, arguably, Dole Food's strongest weapon. A forum non conveniens dismissal that forces plaintiffs to seek recovery in Central American courts, as was the case in Patrickson, generally equates to a victory for a corporate defendant. As is often the case, the district court granted Dole Food's motion to dismiss based on forum non conveniens.