Forum Non Conveniens: Latin Phrase Gets Fourth Circuit Out of a Jam

A law professor (who shall remain anonymous) once said that the use of Latin phrases in an opinion is an indicator that the judge has no idea what he/she is doing.  Hyperbolic?  Yes.  Plausible?  Of course.  We all know nothing screams “astuteness” like a foreign language – especially a dead one.  Accordingly, Latin is the perfect culprit for disguising unsound legal reasoning and maintaining judicial integrity.  On a similar note, Latin phrases are also the ideal substitute for the greatest legal argument ever made – “that just doesn’t sound right.”  What to do when the facts of a case leave but one logical conclusion and the common and statutory law do not pave a clear path to get there?  Toss in some Latin.  Works every time.  Recently, in Tang v. Synutra International, No. 10-1487 (4th Cir. Sept. 6, 2011), the Fourth Circuit put our theory to the test when a class of Chinese citizens attempted to bring certain product liability claims against a Chinese manufacturer in Maryland.  The Court’s answer?  Forum non conveniens. That’s Latin, right?

In Tang, the plaintiff class consisted of a group of Chinese residents who had been injured in China by melamine-contaminated infant formula.  The formula was manufactured and distributed in China by Sheng Yuan Nutritional Food Company, a Chinese subsidiary of Syuntra International, Inc.  Because Syuntra has its principal place of business in Maryland, the plaintiffs elected to file suit in federal district court in Maryland, alleging various causes of action pertaining to the manufacturing, distributing, and marketing of the formula.  The district court granted Synutra’s motion to dismiss the complaint on the basis of forum non conveniens. The Fourth Circuit agreed, holding that China was an available, adequate forum for the plaintiffs’ claims.

Forum non conveniens (Latin for “forum not agreeing”) is a well-established common law concept.  Accordingly, no archaic language creativity was needed (but certainly the first judge to coin the phrase must have first thought, “that just doesn’t sound right”).  Like the many cases that came before it, this case could lead to but one conclusion.

The plaintiffs’ argued that the American venue was the proper venue to adequately protect their interests.   There was some evidence in the record showing that Chinese courts had thwarted contaminated formula lawsuits.  Voluntary lawyers had been warned that their involvement in the litigation could lead to social unrest.  Affidavits from two Chinese lawyers indicated that Chinese courts unreasonably delayed the litigation even after the Supreme People’s Court announced its readiness to hear the claims.  If true, the plaintiffs would obviously face difficulty in pursuing their claims through the Chinese legal system.

Despite their apparent struggles, allowing Chinese residents who were injured in China by a product manufactured and distributed in China to bring their claims in the United States just doesn’t sound right.  People deserve an avenue for redress, but there must be some legal concept – or Latin phrase – to prevent our courts from having to adopt an open door policy.  The Fourth Circuit held that these plaintiffs had an adequate forum – a fund established by the Chinese government to compensate those affected by the contaminated formula.  While the American court system may provide the potential for greater relief, it seems unreasonable to allow the plaintiffs to forum shop under the facts of this case.

The Fourth Circuit used Tang as a platform to affirm the reach of the forum non conveniens doctrine to non-judicial remedies.  However, we wish the Court could just informally state what the rest of use are thinking – “that just doesn’t sound right.”  Certainly there must be a Latin phrase for that.

For a thorough summary of the Fourth Circuit’s opinion, please read this piece from our friends at the Product Liability Monitor.