Punitive damages. Strict liability. Liberal discovery. Contingency fees. These are some of the distinctively American, plaintiff–friendly features of the U.S. legal system that attract plaintiffs to file lawsuits in U.S. courts, even when foreign courts are better suited to hear their cases. It would seem logical that defendants should embrace an equal and opposite reaction—pressing to avoid litigation in U.S. courts in favor of litigation abroad. This conventional wisdom has driven defendants to routinely seek dismissal of lawsuits under the common-law doctrine of forum non conveniens (FNC, for short), which gives U.S. courts discretion to decline jurisdiction in favor of an alternative, more convenient foreign forum to resolve a dispute.
Defendants might be well-served, however, to question their reflexive instinct to avoid U.S. courts. Recent trends in international litigation, including foreign laws that discriminate against U.S. defendants and foreign courts that award substantial judgments, raise new questions about whether defendants should be so eager to prefer foreign tribunals in lieu of U.S. courts.
U.S. courts have developed a three-part test to identify which country’s forum is most convenient to resolve a particular dispute. First, the defendant must show the existence of an alternative forum in a foreign country that is both available and adequate. Second, the court must balance the private and public interests to determine if dismissal is appropriate, Third, the court must determine the degree of deference to afford the plaintiff’s choice of forum. If, on balance, these factors lead a court to conclude that a foreign forum is superior to the United States for litigating the dispute, the lawsuit should be dismissed on FNC grounds.
This paper offers practical tips to help defense counsel navigate the evolving FNC landscape and to gauge when and how to seek FNC dismissal.