D.C. Circuit upholds forum non conveniens dismissal in MH370 litigation

In re Air Crash Over the Southern Indian Ocean (D.C. Cir. Jan. 10, 2020).  In the multidistrict litigation in the U.S. District Court for the District of Columbia against Malaysian Airline System Berhad, Malaysia Airlines Berhad and other defendants arising out of the disappearance of flight MH370, the court granted the defendants’ motion to dismiss based on the doctrine of forum non conveniens, ruling that the defendants had met their burden of proving that (i) Malaysia is an “adequate alternative forum” for litigation of the plaintiffs’ claims, and (ii) the balance of public and private interest factors strongly weighed in favor of litigating the claims in Malaysia.

On appeal, the D.C. Circuit upheld the trial court’s decision, ruling that the lower court had not engaged in a “clear abuse of discretion” in arriving at that decision.  As to the alternative forum portion of the analysis, the appeals court ruled that, because MAS appeared to have an insurance policy that would apply to the appellants’ Montreal Convention claims, the trial court had not clearly abused its discretion in ruling that Malaysia would be an adequate forum.  The appeals court noted that a foreign forum is not inadequate just because it has less favorable substantive law than the chosen U.S. forum.  According to the appeals court, a foreign forum is adequate if it would provide a plaintiff “at least some remedy,” and it “appears undisputed” that Malaysia would provide “at least some remedy” to the appellants.

As to the public and private interest factors balancing test, the trial court had ruled that Malaysia’s public interest in adjudicating the subject claims “far outweighs that of the United States” because Malaysia has an “overwhelming interest in the resolution of any Montreal Convention claims that have been asserted against its own national carrier due to one of the largest aviation disasters in Malaysian history.”  As to the private interest factors, the trial court had ruled that such factors weighed strongly in favor of litigating the claims in Malaysia “given the overwhelming amount of evidence and witnesses located in Malaysia and the potentially insurmountable challenges that would arise from attempting to make that evidence available in a United States court.”  The appeals court held that the trial court had not clearly abused its discretion in making these rulings and, accordingly, affirmed the forum non conveniens dismissal.


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