A. et al v. Doe Run Resources Corporation et al

Filing 1322

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR APPLICATION OF PERUVIAN LAW AND SUMMARY JUDGMENT - IT IS HEREBY ORDERED that defendants' Motion for Application of Peruvian Law and Summary Judgment Under Peruvian Law, or, Alternatively, Dismissal Under Transnational Law Doctrines 1230 is GRANTED in part and DENIED in part as follows: (See full order for details.) Signed by District Judge Catherine D. Perry on 01/20/2023. (KRZ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.O.A., et al.,
Plaintiffs,
v.
IRA L. RENNERT, et al.,
Defendants.

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Case No. 4:11 CV 44 CDP

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR
APPLICATION OF PERUVIAN LAW AND SUMMARY JUDGMENT
UNDER PERUVIAN LAW, OR, ALTERNATIVELY,
DISMISSAL UNDER TRANSNATIONAL LAW DOCTRINES

Table of Contents
I. Introduction............................................................................................................3
II. Procedural History ................................................................................................4
III. Background .........................................................................................................7
IV. The Defendants and Related Entities................................................................11
V. Choice of Law ....................................................................................................15
A. Legal Standard ................................................................................................17
B. Article 1971 and Negligence ..........................................................................21
1. Actual Conflict .............................................................................................22
2. Peruvian Law Applies to the Immunity Defense .........................................24
3. Summary Judgment Not Warranted ............................................................26
C. Article 1981 and Vicarious Liability of the Upstream Defendants................28
1. No Actual Conflict .......................................................................................29

2. Missouri Law Applies to Vicarious Liability Claims ..................................31
a. Significant Contacts re Piercing the Corporate Veil ...............................32
i. Undercapitalization .............................................................................32
ii. Control ................................................................................................34
b. Significant Contacts re Agency ..............................................................39
VI. International Comity and Transnational Law Doctrines ..................................41
A.

Adjudicatory Comity, or International Comity Abstention .........................44

1. True Conflict ................................................................................................48
2. Place of Wrongful Conduct ..........................................................................52
3. United States-Peru Trade Promotion Agreement ........................................60
4. Consideration Given to Letters from Peruvian Officials .............................62
5. Abstention Not Warranted ...........................................................................66
B.

The Presumption Against Extraterritoriality ...............................................68

C.

Act of State Doctrine ..................................................................................70

D.

Foreign Affairs Doctrine ..............................................................................71

VII. Certification for Interlocutory Appeal.............................................................74

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I. Introduction
Plaintiffs are numerous Peruvian citizens who allege that they were injured
when they were exposed as children to toxic substances from the La Oroya
Complex, a metallurgical smelting and refining complex operating in La Oroya,
Peru. They claim that the defendants, several interrelated American companies
and their executives and directors, acting from Missouri and New York, prioritized
profit over safety by authorizing and directing the Complex to emit excessive
levels of toxic substances into the La Oroya environment without proper safety
protocols in place. Plaintiffs allege that defendants’ Missouri conduct is
responsible for their serious medical and developmental injuries from their
exposure to lead and other toxic substances emitted from the Complex.
This Order addresses defendants’ Motion for Application of Peruvian Law
and Summary Judgment Under Peruvian Law, or, Alternatively, Dismissal under
Transnational Law Doctrines. (ECF 1230.) In determining defendants’ earlier
motion to dismiss, I ruled that Missouri law would govern this dispute. A.O.A. v.
Rennert, 350 F. Supp. 3d 818 (E.D. Mo. 2018). In that same Order, I rejected
defendants’ argument that the case should be dismissed on the basis of
international comity. Id. Defendants now argue that the complete factual record
developed through discovery shows that those conclusions should change and,
further, that additional transnational doctrines warrant dismissal.
3

I continue to conclude, as I did before, that Missouri law applies to most of
this case. But I agree with defendants that it is appropriate to apply Peruvian law
to one issue: defendants’ claim that they are immune from liability because of
what they refer to as the “safe harbor” of Article 1971 of the Peruvian Civil Code.
Even under Peruvian law, however, numerous genuine issues of material fact
remain in dispute about whether Article 1971 precludes defendants’ liability in this
case.
I have also fully considered defendants’ alternative motion to dismiss based
on various transnational law doctrines. I again decline to abstain based on
international comity, and I conclude that dismissal under the other transnational
doctrines proffered by defendants is not warranted. I recognize, however, that
reasonable jurists might disagree on those issues. Because decisions on whether to
abstain and/or dismiss under transnational doctrines are governed by factors that
present controlling questions of law on which there is substantial ground for
difference of opinion, I will certify the issues for interlocutory appeal under 28
U.S.C. § 1292(b).
The many other motions filed by the parties remain pending.
II. Procedural History
The long and complicated history of this litigation began in 2007 when
Sister Kate Reid and Megan Heeney began filing in Missouri state court several
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actions as next friends on behalf of plaintiffs, alleging state tort claims against the
defendant companies, executives, and directors. The first case filed in October
2007 was removed to this Court and then remanded for lack of subject-matter
jurisdiction. (Case No. 4:07CV1874 CDP, ECF 61.) After amendment in state
court, the case was again removed, but plaintiffs dismissed it without prejudice.
(Case No. 4:08CV525 CDP, ECF 51.) Shortly thereafter, two additional cases
were filed in state court; they were removed and then remanded, again for lack of
subject-matter jurisdiction. (Case Nos. 4:08CV1416 CDP, ECF 19; 4:08CV1420
CDP, ECF 19.) After significant activity in the state court, one of the named
defendants, The Renco Group, instituted an arbitration proceeding against Peru in
2010, seeking indemnification for these cases. Defendants again removed in 2011,
this time based on the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, as implemented by 9 U.S.C. §§
201, et seq. I denied the plaintiffs’ motion to remand (ECF 45), and that denial as
well as my denial of the defendants’ motion to stay this consolidated case pending
arbitration was affirmed by the Eighth Circuit Court of Appeals. Reid v. Doe Run
Res. Corp., 701 F.3d 840 (8th Cir. 2012).
Since that time, more Peruvian plaintiffs have filed Missouri state-court
actions through next friends Reid and Heeney, and defendants removed those cases
to this Court asserting the same jurisdictional basis. All cases filed through next
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friends Reid and Heeney are consolidated into this action for pretrial purposes.
The consolidated action presently comprises 40 cases and more than 1420
individual plaintiffs.1 Sixteen of those plaintiffs are in a Discovery Cohort, and
discovery has been fully worked up and completed as to those plaintiffs.
Plaintiffs’ amended complaint filed February 21, 2017 (ECF 474) is the
operative complaint before the Court. In October 2018, on defendants’ motion to
dismiss that complaint, I applied Missouri law and dismissed several claims and
defendants. See generally A.O.A., 350 F. Supp. 3d 818 (E.D. Mo. 2018). The
remaining defendants have now filed a number of motions for summary judgment
on all remaining claims arguing, first, that Peruvian law applies to all aspects of
this case, under which they assert they are entitled to judgment as a matter of law
on all claims and, second, that they are entitled to summary judgment on all claims
even under Missouri law. Defendants also move to dismiss the case in its entirety
arguing that various transnational doctrines require abstention. Finally, both sides
have filed several motions to exclude or limit expert testimony.
For the reasons that follow, I will deny defendants’ motion to apply Peruvian

1

Several years after this litigation began, Father Chris Collins filed a number of cases as next
friend on behalf of additional Peruvian children, raising the same allegations against the same
defendants. All cases filed through next friend Collins are consolidated into a separate action,
which is pending before a different judge of this Court. See J.Y.C.C., et al. v. Doe Run Res.
Corp., et al., Case No. 4:15CV1704 RWS (E.D. Mo.). The plaintiffs in that consolidated case
number more than a thousand as well. The attorneys who represent the plaintiffs in the Collins
cases are not associated in any respect with plaintiffs’ attorneys in this Reid/Heeney case.
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law to the remaining claims in this action except to the extent defendants seek to
apply Article 1971’s “safe harbor” defense, and I will deny their motion for
summary judgment on that defense. I will also deny their motion to dismiss under
transnational doctrines. The other motions for summary judgment and to exclude
expert witnesses remain pending.
III. Background
In 1922, a private company founded and began operating the La Oroya
Complex in La Oroya, Peru. The Complex consisted of smelters and refineries that
processed minerals mined from the Andes mountains into copper, lead, zinc, and
other metals. In 1974, the government of Peru expropriated the Complex and
transferred its ownership and operations to Centromin Peru S.A., a Peruvian
government-owned company. As part of Peru’s plan to promote private
investment, Centromin reorganized in 1996 and created subsidiary companies,
which included establishing the La Oroya Complex as a subsidiary metallurgical
company, Metaloroya, which was then marked for privatization and offered for
sale in 1997. On October 23, 1997, defendants The Renco Group (Renco) and Doe
Run Resources Corporation (DRR) purchased Metaloroya (i.e., the Complex) from
Centromin pursuant to a Stock Transfer Agreement (STA). Because terms of the
bidding process required that sale of Metaloroya be to a Peruvian company, Renco
and DRR formed “Doe Run Peru” (DRP) in Peru for purposes of acquiring the
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Complex.2 They also formed “Doe Run Mining” in Peru as DRP’s direct parent
company.
When the STA was executed in October 1997, the Complex was operating
under a plan developed in January 1997 that required Centromin to incorporate
measures to reduce or eliminate emissions from the Complex within ten years to
bring the Complex into compliance with laws governing maximum allowable
levels of emissions. The plan was developed in accordance with the Programa de
Adecación y Manejo Ambiental (PAMA), which was a program established under
Peruvian environmental protection laws that required every mining company to
agree to an environmental remediation plan. Centromin’s PAMA was developed
after studies of the Complex’s environmental impact on La Oroya and its
surrounding area showed significant pollution of the environment, including lead
contamination in the soil.
Pursuant to the STA, Centromin and Metaloroya/DRP3 each agreed to
assume certain obligations under PAMA.4 Centromin agreed to continue some

2

The heading of the STA identified and defined the contracting parties as Metaloroya (the
“Company”), DRP (the “Investor”), and Centromin. (ECF 545-9.) Renco and DRR subscribed
to the STA and warranted DRP’s compliance with its terms. (Id. at hdr. p. 25, “Additional
Clause.”)
3

Metaloroya formally merged into DRP in December 1997.

4

Centromin’s original January 1997 PAMA was divided into the “Centromin PAMA” and the
“Metaloroya PAMA” to reflect each entity’s obligations.
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environmental clean-up projects that it had begun, including remedying the
environment around the La Oroya Complex. Centromin also agreed to assume all
liability for any claims by third parties arising from toxic emissions released before
the sale of the Complex. For its part, Metaloroya/DRP agreed to fulfill certain
projects and clean-up efforts identified in the PAMA and be responsible to third
parties for any damages it alone caused.
In accordance with its business plan, DRP began operating the Complex at
maximum capacity to increase production and output. The Complex operated
continuously until 2009. In early 2009, lenders severed their credit lines with
DRP, and DRP ceased operations at the Complex in June of that year. It went into
bankruptcy shortly thereafter.5
Plaintiffs are Peruvian citizens who allege that they were injured when they
were exposed as children to toxic substances emitted from the Complex beginning
October 24, 1997.6 They bring their claims against the companies that purchased
and invested in the Complex – Renco, D.R. Acquisition Corporation, and DRR; the
direct parent of DRP – Doe Run Cayman Holdings, LLC (Cayman Holdings); and
certain executives and officers at these companies – Ira L. Rennert, Marvin K.
5

On the evidence and information before the Court, it appears that DRP’s Peruvian bankruptcy
proceedings continue to date.
6

All plaintiffs were children when their respective cases were initially filed. Many have since
reached majority age.
9

Kaiser, Albert Bruce Neil, and Jeffrey L. Zelms. Plaintiffs allege that these
defendants, acting from Missouri and New York, controlled the Complex in a
manner that resulted in plaintiffs’ exposure to lead and other toxic substances,
causing serious medical and developmental injuries. They seek damages under
state tort theories of negligence, including breach of assumed duties, negligent
performance of an undertaking, and direct participation liability. For some of these
claims, the defendants’ liability rests upon plaintiffs’ assertions of agency and
control sufficient to pierce the corporate veil.
The claims that remain in this action are set out in seven counts of plaintiffs’
amended complaint:
Count I – Negligence against defendants Rennert, Renco, DRR, D.R.
Acquisition, and Cayman Holdings;
Count II – Negligence against Rennert, Kaiser, Neil, and Zelms;
Count VIII – Direct Liability for Breach of Assumed Duties Pertaining to
Foreseeable Harms against DRR, Cayman Holdings, Kaiser, Neil, and
Zelms;
Count IX – Direct Liability for Breach of Assumed Duties Pertaining to
Foreseeable Harms against Renco, D.R. Acquisition, and Rennert;
Count X – Negligent Performance of an Undertaking against DRR, Cayman
Holdings, Kaiser, Neil, and Zelms;
Count XI – Negligent Performance of an Undertaking against Renco, D.R.
Acquisition, and Rennert; and
Count XII – Direct Participation Liability against Renco and Rennert.
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IV. The Defendants and Related Entities
Ira L. Rennert – Rennert resides in New York, is Chairman and Chief
Executive Officer of Renco, and is the primary shareholder of Renco. He and
several trusts he established for himself and his family own 97.9% of Renco.
Rennert is also Director and Chairman of several other Renco-owned and affiliated
companies and entities, including those named in this lawsuit as described below.
The Renco Group, Inc. – Renco is a private, family-owned investment
holding company founded by Rennert in 1975. Renco was later incorporated in
New York, and its principal place of business is in New York. Rennert controls
Renco. Renco holds 100% of the shares of D.R. Acquisition.
D.R. Acquisition Corp. – D.R. Acquisition is a holding company
incorporated in Missouri in 1994 and owned 100% by Renco. Its principal place of
business is in Missouri. Rennert is Sole Director and Chairman of the Board of
D.R. Acquisition and, in this role, appoints its officers. D.R. Acquisition owns
100% of the shares of DRR.
Doe Run Resources Corp. – DRR is a natural resource company
incorporated in New York with its principal place of business in Missouri. Its
primary business is in mining, smelting, recycling, and fabrication of metals. It
was acquired in 1994 by Renco-owned D.R. Acquisition. Since 1994, Rennert has
served as DRR’s Chairman of the Board. He served as its Sole Director from 1994
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to 2002, was one of three Directors from 2002 to 2007, and has been Sole Director
again since 2007. From 1997 to 2007, DRR held the primary ownership interest in
Doe Run Cayman, Ltd., a non-party to this action.
(Non-parties) Doe Run Cayman, Ltd. and Doe Run Mining, S.R.L. –
Doe Run Cayman and Doe Run Mining were incorporated on September 10, 1997.
Doe Run Mining was formed in Peru as a holding company of wholly owned
subsidiary DRP for purposes of acquiring Metaloroya. Doe Run Cayman was
formed in the Cayman Islands as a holding company to acquire the stock of Doe
Run Mining. Rennert was Chairman and Sole Director of Doe Run Cayman. Doe
Run Cayman was a wholly owned subsidiary of DRR. Neither Doe Run Cayman
nor Doe Run Mining had any independent operations.
Doe Run Mining merged into DRP in June 2001. With this merger, Doe
Run Cayman became the direct parent of DRP.
Doe Run Cayman Holdings, LLC – Cayman Holdings is a Missouri
limited liability company with its principal place of business in Missouri. It was
formed in February 2007 by its Sole Member, D.R. Acquisition, to hold 100%
interest in Doe Run Cayman. Shortly thereafter, in March 2007, D.R. Acquisition
transferred the shares of Doe Run Cayman to Cayman Holdings pursuant to a
Share Transfer Agreement approved and executed by Rennert. As a result, DRR
no longer had an interest in Doe Run Cayman. Also in March 2007, D.R.
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Acquisition executed a dividend of its membership interest in Cayman Holdings to
Renco, transferring 100% of its membership interest to Renco. Renco thus became
the Sole Member of Cayman Holdings, the direct parent of DRP. Cayman
Holdings has no independent operations.
(Non-party) Doe Run Peru – DRP was formed in Peru in September 1997
for the purpose of acquiring Metaloroya from Centromin. At the time, Doe Run
Mining was the direct parent of DRP, owning more than 99% of its shares, with the
remainder owned by DRP employees. With Doe Run Mining’s merger into DRP
in 2001, Doe Run Cayman became DRP’s direct parent. In March 2007, through
the transactions described above, Cayman Holdings became the direct parent of
DRP. DRP ceased operating the Complex in June 2009 and has been in
bankruptcy under Peruvian law since that time.
Jeffrey Zelms – During the period relevant to this litigation, Zelms was a
Missouri resident7 and held the following positions in several Doe-Run-affiliated
organizations, having been appointed to those positions by Rennert:
 President and CEO of DRR from 1994 to 2006;
 Vice Chairman of DRR from 1999 to 2006;
 President and CEO of D.R. Acquisition from 1994 to 2005;

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On the evidence and information before the Court, Zelms continues to reside in Missouri.
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 President of Doe Run Cayman from 1997 to 2007.
From 1994 through his retirement, Zelms – in his various roles – reported directly
to Rennert. Upon his retirement and continuing through 2013, Zelms was a paid
consultant for DRR pursuant to an agreement executed by Rennert.
Marvin K. Kaiser – During the period relevant to this litigation, Kaiser held
the following Doe-Run-affiliated positions:
 Vice President and CFO of DRR from 1994 to 2006;
 Vice President and CFO of D.R. Acquisition from 1994 to 2005;
 Vice President of Doe Run Cayman from 1997 to 2007;
 Finance Manager of Doe Run Mining from 1997 to 2000;
 Finance Manager of DRP from 1997 to 2001;
 Executive Vice President of DRP beginning 2002.
Kaiser resided in Missouri from 1994 to 2003. During his last few years as an
officer of DRR, he commuted from Kentucky to Missouri for his work.
Albert Bruce Neil – Neil worked for DRR as General Manager of a
smelting plant in Glover, Missouri. In 2003, Zelms transferred him from that plant
to DRP and appointed him President and General Manager of DRP. During the
period relevant to this litigation, Neil held the following positions:
 President and General Manager of DRP from 2003 to 2006;
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 Vice President of DRR from 2004 to 2005;
 Vice Chairman, President, and CEO of DRR from 2006 to 2012
(appointed by Rennert);
 President of D.R. Acquisition from 2006 to 2011;
 President of Doe Run Cayman in 2007;
 President of Cayman Holdings from 2008 to at least 2009.
Neil lived in Peru from 2003 through 2005. During all other periods relevant to
this litigation, Neil lived in Missouri. After assuming his officer and director roles
with DRR in 2006, Neil acted with Rennert’s approval as a consultant to DRP on
an as-needed basis and was involved in apprising Rennert of DRP’s status.
V. Choice of Law
In my October 2018 Order, I determined that Missouri law applied to this
case, concluding that the laws of Peru and Missouri did not actually conflict in any
significant, substantive way with regard to the claims in the case, and that the
allegations of the amended complaint were sufficient to state claims under either
forum’s laws. A.O.A., 350 F. Supp. 3d at 847-48. In their current motion,
defendants contend that the summary judgment record requires me to take a fresh
look at the choice-of-law issue because, according to defendants, the record now
establishes that plaintiffs cannot recover against them under Peruvian law.
Defendants assert that this circumstance shows that the relevant Missouri and
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Peruvian laws conflict and that, under choice-of-law rules on the facts of this case,
I must apply Peruvian law. And under Peruvian law, defendants argue, they are
entitled to judgment as a matter of law.
Defendants raise three specific arguments to support their assertion: 1) that
testimony from plaintiffs’ proffered experts shows that plaintiffs cannot recover for
negligence because defendants complied with relevant government regulations; 2)
that expert testimony shows that plaintiffs cannot recover from the upstream
defendants on their veil-piercing and agency theories of liability for DRP’s alleged
negligent conduct; and 3) that, because of 1 and 2 above, plaintiffs’ claims cannot
survive under Articles 1971 and 1981 of the Peruvian Civil Code, respectively.
These arguments are largely based on a very restricted reading of the testimony of
plaintiffs’ standard-of-care expert witness, Dr. Jack Matson, and of plaintiffs’
financial expert witness, Kyle Ann Midkiff. Defendants interpret Dr. Matson’s
testimony as limiting plaintiffs’ claims to DRP’s delay in completing four discrete
projects relating to fugitive lead emissions, and as admitting that the projects were
completed timely under PAMA. They interpret both Dr. Matson’s and Ms.
Midkiff’s testimony as showing that DRP was never inadequately capitalized and
that defendants never exercised control over DRP. Defendants also attribute
statements to their own Peruvian law expert, Keith S. Rosenn, that he did not
make.
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For the following reasons, I continue to conclude that there is no conflict
between the relevant Missouri and Peruvian laws as they apply to plaintiffs’
asserted claims in this action and that Missouri law applies to the claims.
Defendants’ “safe harbor” immunity defense under Article 1971, however, is
different. Because there is no Missouri analogue to this defense, an actual conflict
exists between Missouri and Peruvian law on the issue. Applying Missouri’s
choice-of-law analysis, I conclude that Peru has the most significant relationship to
this defense and therefore apply Peruvian law to that issue alone. But because
genuine issues of material fact exist on the Article 1971 defense, that is, whether
defendants were acting “in the regular exercise of a right,” defendants are not
entitled to summary judgment under Peruvian law.
A.

Legal Standard
As indicated above, federal subject-matter jurisdiction in this action lies with

defendants’ invocation of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards. See 9 U.S.C. § 203 (“An action or proceeding falling
under the Convention shall be deemed to arise under the laws and treaties of the
United States.”). Although the case arises under the laws and treaties of the United
States, it raises only state-law claims. In Cassirer v. Thyssen-Bornemisza
Collection Found., 142 S. Ct. 1502 (2022), the Supreme Court recently held that in
a case upon which federal subject-matter jurisdiction is based on the laws and
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treaties of the United States, but which raises only non-federal claims “(relating to
property, torts, contracts, and so forth)” that turn only on state law and have no
substantive federal component, the district court should apply the forum State’s
choice-of-law rule instead of a federal one. Id. at 1507-08, 1509 (case brought
under Foreign Sovereign Immunities Act raising non-federal property-law claims).
Noting that the forum State’s choice-of-law rule would apply if the state-law suit
was filed in state court, or in federal court under diversity-of-citizenship
jurisdiction, the Court saw no reason for federal law to supplant an otherwise
applicable rule. Id. at 1509. See also California Dep’t of Toxic Substances
Control v. Jim Dobbas, Inc., 54 F.4th 1078, 1089 (9th Cir. 2022) (Supreme Court
in Cassirer dispelled uncertainty in which choice-of-law rule to apply in federal
question and other cases in which jurisdiction not grounded in diversity). I
therefore apply Missouri’s choice-of-law rules to this action.
Under Missouri law, the first step in a choice-of-law analysis is to examine
whether the different states’ laws at issue actually conflict. Nestlé Purina PetCare
Co. v. Blue Buffalo Co., 129 F. Supp. 3d 787, 790 (E.D. Mo. 2015). If there is
such a conflict, then I must determine which law applies. Id. at 791. If there is no
conflict, I need not undergo a choice-of-law analysis; I apply the forum State’s
law, provided that that State has significant contact or aggregate contacts to the
parties and occurrence at issue, creating State interests, “such that choice of its law
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is neither arbitrary nor fundamentally unfair.” Allstate Ins. Co. v. Hague, 449 U.S.
302, 313 (1981). See also In re Dollar Gen. Corp. Motor Oil Mktg. & Sales Pracs.
Litig., No. 16-02709-MD-W-GAF, 2019 WL 1418292, at *4 (W.D. Mo. Mar. 21,
2019) (class action) (same).
The parties appear to dispute what constitutes an actual conflict for choiceof-law purposes. Defendants cite Second Circuit precedent stating that an actual
conflict does not require demonstration that the choice of which rule to apply will
be outcome determinative, but instead only requires different substantive rules that
have a “significant possible effect on the outcome of the trial.” Finance One Pub.
Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir. 2005).
Plaintiffs, in a footnote, suggest that I look to “whether ‘a person subject to
regulation by two states can comply with the laws of both.’” (ECF 1275 at hdr. p.8
18 n.37 (quoting Hartford Fire Ins. Co. v. California, 509 U.S. 764, 799 (1993)).)
Last year, the United States District Court for the Western District of Missouri
articulated that “[u]nder Missouri law, a conflict of laws does not exist unless the
interests of the two states cannot be reconciled.” Rey v. General Motors LLC, No.
4:19-CV-00714-DGK, 2021 WL 4786469, at *3 (W.D. Mo. Oct. 13, 2021)

8

Given the inconsistent pagination of the briefs and several thousand pages of exhibits submitted
in this action, I will refer to the page number identified in the ECF header of a filed document
when citing to that document.
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(internal quotation marks and citation omitted) (appeal pending). Applying that
standard to the circumstances of that case, the court appeared to adopt the test
urged by the defendants here by finding an actual conflict where application of
each forum’s law was “potentially outcome determinative.” Id. (emphasis added).
I will apply the standard urged by defendants and used by the Western
District in Rey and look to whether the relevant law of each forum is potentially
outcome determinative on the issues raised. Under the principle of “dépéçage,” I
apply this test individually to each particular issue. In re NuvaRing® Prods. Liab.
Litig., 957 F. Supp. 2d 1110, 1113 (E.D. Mo. 2013) (citing Glasscock v. Miller,
720 S.W.3d 771, 775 (Mo. Ct. App. 1986)); Johnson v. Avco Corp., No.
4:07CV1695 CDP, 2009 WL 4042747, at *3 (E.D. Mo. Nov. 20, 2009).
If I find a conflict between the relevant laws, I must apply the mostsignificant-relationship test as set forth in the Restatement (Second) of Conflict of
Laws to determine the applicable law. See Reid v. Doe Run Res. Corp., 74 F.
Supp. 3d 1015, 1023-24 (E.D. Mo. 2015); A.O.A., 350 F. Supp. 3d at 847. “When
tort claims are at issue, the applicable law is ‘the local law of the state which, as to
that issue, has the most significant relationship to the occurrence and the parties.’”
Nestlé Purina PetCare, 129 F. Supp. 3d at 791 (quoting Thompson by Thompson v.
Crawford, 833 S.W.2d 868, 870 (Mo. banc 1992)). See also Restatement (Second)
of Conflict of Laws § 145 (1971). To determine which state has the most
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significant relationship, Missouri courts must consider: (1) the place where the
injury occurred; (2) the place where the conduct causing the injury occurred; (3)
the domicile, residence, nationality, place of incorporation, and place of business
of the parties; and (4) the place where the relationship, if any, between the parties
is centered. Id. at § 145(2). “These contacts are to be evaluated according to their
relative importance with respect to the particular issue.” Id.
Against this backdrop, I turn to defendants’ claim that Articles 1971 and
1981 of Peru’s Civil Code conflict with Missouri law on the relevant issues and
that consideration of the Restatement factors dictates that Peruvian law applies.
B.

Article 1971 and Negligence
Article 1971.1 of Peru’s Civil Code provides that there can be no civil

liability for one who acts “in the regular exercise of a right.” Defendants interpret
this to mean that they are immune from liability for any personal injury or
environmental damage caused by any actions they or DRP may have taken so long
as they complied with their obligations under the PAMA. Because Missouri law
provides no such immunity, defendants argue an actual conflict exists. And,
defendants argue, because the summary judgment record shows that they complied
with PAMA regarding the four projects they claim plaintiffs’ experts concede are
the only bases for plaintiffs’ negligence claims, they are entitled to judgment as a
matter of law under Article 1971.
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1.

Actual Conflict

Defendants argue that Dr. Matson’s testimony effectively limited plaintiffs’
negligence claims to the alleged delay in completing four projects at the Complex
that would have reduced fugitive lead emissions. Defendants contend that when
this testimony is juxtaposed with Ms. Midkiff’s that DRP was not undercapitalized
at the time plaintiffs claim the projects should have been completed, defendants
cannot be found liable for DRP’s failure to implement the projects earlier than it
did because 1) they lacked the necessary control over DRP, and 2) Dr. Matson
agreed that the four projects were timely completed under PAMA.
Plaintiffs’ evidence of negligence, however, is not limited to the testimony
of Dr. Matson cited by defendants, and their evidence of upstream control is not
limited to the testimony of Ms. Midkiff.
Dr. Matson stated he agreed with plaintiffs’ prior expert, Dr. Cheremisinoff,
who is now deceased, that defendants did not exercise reasonable care when they
failed to apply practices and implement controls recognized by industry and
authoritative sources to reduce emissions.9 Dr. Matson testified that defendants
had knowledge of the harmful effects of lead emissions, that they knew fugitive
emissions were a major source of contamination that could cause injury, and that

9

Plaintiffs indicate that they believe some of Dr. Cheremisinoff’s deposition testimony may be
admissible at trial, but they did not submit any of that testimony in response to this motion.
22

the PAMA did not prevent them from taking necessary remedial actions. Plaintiffs
also cite to defendants’ own documents that show that even after completion of
certain enclosure projects they undertook later, defendants still expected dangerous
levels of fugitive lead emissions. Contrary to defendants’ assertions, Dr. Matson’s
testimony does not show that plaintiffs could not recover under Peruvian law on
their negligence claims; nor is there anything in the evidence that shows that the
laws of Missouri and Peru conflict on the torts alleged in the amended complaint.
The summary judgment record does not show that my earlier ruling on the
application of Missouri law to plaintiffs’ asserted claims should be changed.
But defendants’ immunity defense under Article 1971 is different.
Defendants argue that Article 1971 provides a “safe harbor” or immunity from
liability so long as they complied with the requirements of the PAMA. Missouri
law provides no such immunity.10 And they argue Dr. Matson’s testimony that the
four fugitive emissions projects were timely completed under PAMA entitles them
to this defense. Because which law applies to this defense is potentially outcome

10

The government contractor defense recognized in Boyle v. United Techs. Corp., 487 U.S. 500
(1988), seems somewhat analogous, but upon examination is not. That defense is a creation of
federal common law for products liability cases and imposes different requirements than Article
1971: it requires that the government approved precise specifications for whatever equipment
caused the injury, that the equipment conformed to the specifications, and that the supplier
warned the government about risks from the product that were known to the supplier but not the
government. See In re: Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2:18-mn2873-RMG, 2022 WL 4291357 (D.S.C. Sept. 16, 2022).
23

determinative, I conclude that an actual conflict between Peruvian and Missouri
law exists on this issue, but on this issue alone.11
2.

Peruvian Law Applies to the Immunity Defense

Having concluded that an actual conflict exists between Missouri and
Peruvian law on defendants’ immunity defense, I look to Missouri’s choice-of-law
rule to determine which forum’s law applies to the issue.
Consideration of the § 145 Restatement factors governing tort claims as set
out above leads me to a neutral conclusion as to which law applies. While
plaintiffs’ injuries occurred in Peru, the conduct that plaintiffs claim caused the
injuries is alleged to have largely occurred in Missouri through the overarching
decisions and actions of the defendants taken here. Likewise, although the
nationalities of the parties are diverse, the defendants are incorporated and/or have
their principal place of business here, reside here, and/or conducted substantial
business here directly related to this cause of action. Finally, the relationship
between the parties is centered in Peru, given that plaintiffs’ connection to the

11

Plaintiffs argue that Peru’s environmental laws are more specific than Article 1971 and render
1971 inapplicable here. On the earlier motion to dismiss, both sides argued about whether
Section 142.2 of the General Environment Act (GEA) rendered Article 1971 inapplicable to a
mining operation. Plaintiffs continue to make this argument, but in their reply brief to the instant
motion for summary judgment, defendants point out that the GEA was not passed until 2005
(ECF 843-12), so it could not apply to actions taken before that date. The provisions of the
previous Environmental and Natural Resources Code, passed in 1990, are far more general (ECF
843-6), and neither party has addressed how those provisions interact with Article 1971.
24

Complex is in Peru and their exposure to the toxins emitted by the Complex
occurred there.
Consideration of additional factors as set out in § 146 of the Restatement,
however, leads me to conclude that the law of Peru, and specifically Article 1971
of its Civil Code, applies. Section 146 of the Restatement (Second) of the Conflict
of Laws governs actions for personal injury and creates a presumption in favor of
applying the law of the jurisdiction where the injury occurred. Dorman v. Emerson
Elec. Co., 12 F..3d 1354, 1359 (8th Cir. 1994). That presumption may be rebutted,
however, if “with respect to the particular issue, some other state has a more
significant relationship[.]” Restatement (Second) of the Conflict of Laws § 146.
In determining which state has a more significant relationship, § 146 directs that I
look to the principles stated in § 6 of the Restatement. Those principles are:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and,
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of the Conflict of Laws § 6.
Here, for several reasons, Peru has the most significant relationship with
regard to the particular issue of defendants’ Article 1971 immunity defense. First
and foremost, plaintiffs’ injuries occurred in Peru, so I start with the presumption
25

that Peruvian law applies. Moreover, Article 1971 states a policy of Peru to
provide immunity to parties who are exercising a “right” given to them by the
government. In the context of this case, that immunity would deprive injured
Peruvian citizens of compensation that would otherwise be available to them. This
may reflect a policy decision by Peru that economic interests may override the
interests of compensating injured persons, although the Article is not specific to
mining situations. Additionally, and especially when considered in light of
PAMA, Peru has a strong interest in the certainty, predictability, and uniformity of
result for claims related to PAMA. Accordingly, Article 1971 applies to
defendants’ “safe harbor” immunity defense.
3.

Summary Judgment Not Warranted

Assertion of this immunity defense under Article 1971, of course, is not the
same as proving entitlement to summary judgment thereon.12 Defendants argue
that Article 1971 absolves them from all liability on plaintiffs’ claims because the
work at the Complex was the result of their assumption of obligations under

12

Summary judgment must be granted when the pleadings and proffer of evidence demonstrate
that no genuine issue of material fact exists and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the
evidence in the light most favorable to the nonmoving party and accord it the benefit of all
reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007). My function is not to weigh
the evidence but to determine whether there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
26

PAMA and because they complied with the PAMA timeline regarding the four
fugitive emissions projects they assert constitute the only remaining bases for
plaintiffs’ negligence claims.13/14
This protection is not as broad as defendants urge. On the earlier motion to
dismiss, both sides presented expert witnesses who testified about this provision of
Peru’s Civil Code. Mr. Rosenn, defendants’ expert, described Article 1971 as
follows: “If Doe Run Peru complied with the environmental obligations it
assumed under the La Oroya PAMA and the STA, it would come within the
principle of non-liability created by Article 1971 of the Civil Code.” (ECF 150-1
at hdr. p. 26, ¶ 57. Emphasis added.) He went on to state that under Peruvian law,
whether DRP did or did not meet the criteria for exclusion from liability is a
“factually dense question.” (Id. at hdr. p. 28, ¶ 60.)
This factually dense question must remain for trial, as genuine disputes
remain on the issue. Whether defendants fully complied with PAMA is itself
disputed. Although the evidence is extremely confusing about which PAMA

13

As discussed above, the summary judgment record shows that plaintiffs’ viable claims are not
so limited.
14

Notably, defendants now argue that this is an element of plaintiffs’ case and not an affirmative
defense despite their position taken earlier in this litigation that Article 1971 provided them a
“defense.” (See ECF 909, Defts.’ Reply Memo. re Appl. of Foreign Law, at hdr. p. 80 –
referring to whether defendants could “successfully utilize the Article 1971 defense”; id. –
referring to their “simple argu[ment] that the defense is available”; id. at hdr. p. 81 – referring to
whether defendants “will later successfully establish immunity under Article 1971.”)
27

projects DRP was obligated to perform versus those retained by Centromin, the
parties agree at least as to one of the projects that DRP did not complete: building
new sulfuric acid plants. But plaintiffs assert that completion of the specific
“projects” listed in PAMA is not all that was required to comply with Peruvian
law, given that PAMA’s purpose was to reduce emissions to levels at or below
Peru’s environmental standards. In the currently pending arbitration between Peru
and Renco, Peru itself asserts that defendants had not met all PAMA obligations at
the time they shut down the smelter. And there is evidence that defendants had
internal discussions about whether the substantial payments DRP was obligated to
send to DRR were limiting DRP’s ability to make further environmental
improvements.15 From the contested evidence, a jury could also conclude that
defendants acted recklessly or maliciously, which certainly would not be insulated
by PAMA. These “factually dense” questions cannot be resolved on summary
judgment, as the material facts remain genuinely contested.
Accordingly, while Peruvian law applies to defendants’ Article 1971
immunity defense, defendants are not entitled to summary judgment on the
defense.
C.

Article 1981 and Vicarious Liability of the Upstream Defendants
In my October 2018 Order, I set out the substantive law of Missouri and

15

See discussion post at Section VI.A.
28

Peru on veil-piercing and agency theories of liability and determined that there was
no actual conflict between the two forums’ laws. A.O.A., 350 F. Supp. 3d at 83640, 847. And I found that plaintiffs’ allegations fell squarely within the relevant
laws of both fora and, if proven, could provide a basis to impose liability on
defendants under those theories. Id. at 836-40. In their current motion here,
defendants do not challenge those earlier findings nor ask that I revisit them.
Instead, defendants assert a new argument that Article 1981 of Peru’s Civil Code
precludes plaintiffs from pursuing their veil-piercing and agency claims in the
circumstances of this case, whereas Missouri law does not.16 Given this actual
conflict, defendants argue, I must apply Peruvian law to plaintiffs’ claims and
dismiss them under Article 1981. For the following reasons, I continue to
conclude that no actual conflict exists and that Missouri law applies to plaintiffs’
theories of vicarious liability.
1.

No Actual Conflict

Under Peruvian law, when a subordinate relationship exists and the
subordinate acts on behalf of the parent and causes damage, then the parent may be
liable for the acts of the subordinate. (ECF 871-121, Espinoza Report at ¶ 5.24.)

16

Defendants aver that because plaintiffs’ direct liability claims rely on the same facts and
factors as the veil-piercing/agency claims, they determined to address only the vicarious liability
theories here. (ECF 1231 at hdr. p. 16, n.4.)
29

This type of relationship is a low bar, only requiring a “causal relationship”
between the parties. (Id. at ¶ 5.25.) Thus, if it is possible to exercise power over a
party, then a subordinate relationship is present because of the mere existence of
the relationship and the exercise of control. Accordingly, the relationships
between defendants, their agents, and DRP as their alter-ego could qualify as
“subordinate” relationships if plaintiffs can prove their veil-piercing or agency
allegations. And liability under Peruvian law is established when there is the mere
existence of a relationship between the principal and agent. (Id. at ¶ 5.26.) When
a party directs another to act, and the latter causes damages while performing those
duties, then the “direct principal and the vicarious principal are subject to joint
liability.” (Id. at ¶ 5.27.) This is not substantively different from the law of
Missouri.
Regarding this vicarious liability, defendants contend that Article 1981 of
Peru’s Civil Code requires that, in order for a principal to be liable for a
subordinate’s conduct, there must have been an actual adjudication of the
subordinate’s liability in a prior judicial proceeding. And they assert that expert
testimony establishes that that adjudication must have been made in a prior
separate judicial proceeding. But the experts do not say that. Instead, the experts
agree that for there to be liability of the principal, liability of the subordinate must
simply be proven. This, of course, is no different from what Missouri law requires.
30

The experts also agree that there must be a “judicial determination” of the
subordinate’s liability before the principal is determined to be liable, but none of
the experts say that that must take place in a separate judicial proceeding.17 It is
not at all uncommon in Missouri and federal courts to hold bifurcated trials or to
ask the jury to answer special interrogatories, either of which could easily
accomplish this prior determination requirement. Thus, Article 1981 does not
preclude plaintiffs’ claims to the extent they rest on veil-piercing or agency
theories of liability, and there remains no conflict between the substance of
Missouri and Peruvian law on these issues.
2.

Missouri Law Applies to Vicarious Liability Claims

With no conflict, I apply Missouri law to plaintiffs’ veil-piercing and agency
claims given the State’s significant contacts with the defendants, their challenged
conduct, and the occurrences giving rise to this cause of action, creating State
interests. Hague, 449 U.S. at 313; In re Dollar Gen. Corp., 2019 WL 1418292, at
*4. Several significant contacts are set out in my October 2018 Order on
defendants’ motion to dismiss. See A.O.A., 350 F. Supp. 3d at 848. And evidence
adduced through discovery and presented on summary judgment further shows
17

Defendants’ expert, Mr. Rosenn, says it is not uncommon for a criminal case against an
agent/employee to be followed by a civil case against the principal/employer. (ECF 843-17 at
hdr. p. 17, ¶ 39.) While it may be not uncommon in that context, neither Mr. Rosenn nor any
other expert says two different proceedings are required for the type of civil liability alleged
here.
31

Missouri’s significant contacts as they relate to plaintiffs’ veil-piercing and agency
claims.
a. Significant Contacts re Piercing the Corporate Veil
Defendants argue that the testimony of plaintiffs’ relevant experts shows that
DRP was not undercapitalized and that defendants lacked the requisite control over
DRP and thus that plaintiffs cannot demonstrate that any liability-inducing conduct
occurred in Missouri.18 I disagree. As described above, defendants read the
testimony of plaintiffs’ experts too narrowly, and plaintiffs have presented
sufficient evidence beyond expert testimony that shows relevant aggregate contacts
with Missouri.
i. Undercapitalization
Defendants strenuously argue that plaintiffs cannot demonstrate that DRP
was undercapitalized and, on that basis alone, cannot proceed on their veil-piercing
claim. But undercapitalization is not required to be shown in order to pierce the
corporate veil, although it can be used to show that control of a subordinate entity

18

To pierce the corporate veil under Missouri law, plaintiffs must show defendants’ dominant
control of DRP, that the control was used to commit a fraud or wrong or breach of a duty, and
that the control and breach of duty proximately caused plaintiffs’ injury. Collet v. American
Nat’l Stores, Inc., 708 S.W.2d 273, 284 (Mo. Ct. App. 1986). In this motion, defendants
challenge plaintiffs’ evidence on the first Collet factor, i.e., control, and argue that
undercapitalization is required to meet the second factor. For purposes of this motion, I address
only those arguments and do not undertake an exhaustive analysis of all three Collet factors.
32

was used for an improper purpose. Radaszewski by Radaszewski v. Telecom Corp.,
981 F.2d 305, 307-08 (8th Cir. 1992). The Midkiff testimony defendants point to
on capitalization therefore does not end the analysis. And even on this point, there
is sufficient evidence that pivotal decisions regarding DRP’s capitalization were
made in Missouri and directly affected Missouri corporations.
First, the financing structure for DRP’s purchase of Metaloroya was
arranged by Renco and implemented by Zelms and Kaiser in their executive roles
with DRR. This structure included a $125 million capital contribution to
Metaloroya that was immediately “loaned” back from Metaloroya to Doe Run
Mining and never directed to DRP. This financing decision implemented by
decisionmakers in Missouri thus deprived DRP of its own purported capital.
Indeed, evidence shows that DRP was structured from its inception to be
undercapitalized as a stand-alone entity, especially regarding its ability to comply
with its environmental obligations. Cf. Collet v. American Nat’l Stores, Inc., 708
S.W.2d 273, 284 (Mo. Ct. App. 1986) (veil-piercing analysis focuses on the
“transaction attacked”).
Evidence also shows that Renco and DRR arranged for DRP to be a
guarantor on DRR’s debts to DRR’s bondholders despite DRP’s difficulties
meeting its own obligations. Moreover, the upstream Renco/Doe Run entities
caused substantial monies to be transferred to themselves from DRP through
33

service and management contracts, fees, and other methods, which decreased
DRP’s on-hand capital needed to meet its environmental obligations. Indeed,
evidence shows that Eric Peitz, DRP’s Treasurer, warned his superiors at DRR as
early as 1998 that DRP would not be able to afford to undertake additional
environmental remediation as long as it was burdened with the upstream payments.
ii. Control
Plaintiffs have also produced evidence showing that defendants controlled
DRP from Missouri.19
First, defendants Renco and DRR caused DRP’s incorporation. DRP’s
ownership is directly traceable to and dependent upon the panoply of Renco/Doe
Run upstream companies, including companies incorporated in and managed from

19

Collet, 708 S.W.2d at 284, sets out eleven factors to consider when measuring the degree of
control exercised by a dominant corporate entity/shareholder over a subordinate:
(1) The parent corporation owns all or most of the capital stock of the
subsidiary.
(2) The parent and subsidiary corporations have common directors or officers.
(3) The parent corporation finances the subsidiary.
(4) The parent corporation subscribes to all of the capital stock of the subsidiary or
otherwise causes its incorporation.
(5) The subsidiary has grossly inadequate capital.
(6) The parent corporation pays the salaries and other expenses or losses of the subsidiary.
(7) The subsidiary has substantially no business except with the parent corporation or no
assets except those conveyed to it by the parent corporation.
(8) In the papers of the parent corporation or the statements of its officers, the subsidiary
is described as a department or division of the parent corporation, or its business or
financial responsibility isreferred to as the parent corporation’s own.
(9) The parent corporation uses the property of the subsidiary as its own.
(10) The directors or executives of the subsidiary do not act independently in the interest of
the subsidiary but take their orders from the parent corporation and the latter’s interest.
(11) The formal legal requirements of the subsidiary are not observed.
34

Missouri by their executives, including their Director, Rennert.
Evidence also shows significant overlap of officers and directors throughout
the Renco/Doe Run entities, including DRP. The individual defendants (including
some Missouri citizens) simultaneously held executive and board positions among
the various entities (including Missouri corporate citizens): Zelms was President,
CEO, and Vice Chairman of DRR at the same time he was President and CEO of
D.R. Acquisition, and at the same time he was President of Doe Run Cayman,
DRP’s direct parent. Likewise, Kaiser was Vice President and CFO of DRR at the
same time he was President of D.R. Acquisition and Doe Run Cayman, which
overlapped with his time as Finance Manager of both Doe Run Mining and DRP
and as Executive Vice President of DRP. As for Neil, he was Vice President of
DRR at the same time he was President and General Manager of DRP and later
was Vice Chairman, President, and CEO of DRR while simultaneously serving as
President of Doe Run Cayman/Cayman Holdings, DRP’s direct parent. And
although Rennert did not hold the title of “Director” or “Chairman” with DRP
directly, he nevertheless was Director and Chairman of all other entities who
themselves exerted control over DRP, and he established policies under which he
“controlled [DRP] in a manner similar to other Renco companies (normally by
[himself] in [his] capacities as shareholder and director)[.]” (ECF 640-10, Mar. 13,
1998 Memo to Zelms from Rennert.) Finally, evidence before the Court shows
35

that other individuals likewise held officer and/or director positions simultaneously
in the Renco/Doe Run entities, including but not limited to Kenneth R. Buckley
(DRP, Doe Run Mining, and DRR), Dennis A. Sadlowski (Doe Run Cayman and
DRR), and John Binko (Renco and DRR).
Plaintiffs have also presented evidence that salaries and bonuses of some
DRP executives and employees, including DRP General Managers and Presidents
Buckley and Neil, were paid exclusively by DRR in Missouri pursuant to
employment agreements with DRR and compensation packages arranged and
signed by Rennert. In addition, several DRR employees acted as advisors and/or
consultants to DRP to establish policies and protocols in safety, sales, financial
operations, environmental issues and more, and to participate in discussions and
negotiations with the Peruvian government regarding DRP’s PAMA obligations.
Several intercompany agreements required DRP to pay several million dollars each
year to DRR and Renco for these services, and other agreements required DRP to
pay millions of dollars upstream in “flat fees.”20 And as further evidence of the
overlap of executive duties, Buckley signed these agreements in his capacity as an
officer of DRP, Doe Run Mining, and DRR. Kaiser also signed a bond indenture
on behalf of DRR as issuer and on behalf of Doe Run Cayman, Doe Run Mining

20

When DRP sought extensions from the Peruvian government to meet its PAMA obligations,
the government conditioned its approval on DRP stopping these upstream money transfers.
36

and DRP, as guarantors.
There is also evidence that DRP took orders from DRR, which itself was
directed by Renco and Rennert in its dealings with DRP. For instance, although
Buckley was part of the due diligence team regarding the purchase of the Complex
and was appointed General Manager of DRP upon its purchase, DRR nevertheless
counseled Buckley as to which employees to retain at the smelter; and it was DRR,
not DRP, that awarded the contract for upgrades to the Complex. Dan Vornberg,
Director of Environmental Affairs at DRR, oversaw the environmental issues at the
Complex because DRP did not have anyone capable of performing such work.
Evidence also shows that DRR and Renco negotiated contracts with third parties
for the Complex to process and provide certain refined metals. DRP was not
involved in these negotiations and indeed was deliberately excluded from the
conversations. (See Chaput Dep., ECF 1277-56 at hdr. pp. 10-11, dep. pp. 27274.) In addition, when Peitz sounded the alarm that DRP’s financial health and
PAMA obligations were in peril in part because of the millions of dollars being
sent upstream to DRR, DRR continued to demand – and DRP continued to pay –
the upstream payments.21 And when Vornberg repeatedly informed Zelms in 2000
and 2001 of DRP’s immediate need to move forward on the zinc-ferrites project to

21

Evidence shows that Peitz had these concerns and shared them as early as 1998. (ECF 64077.)
37

address profitability issues and environmental concerns, Zelms did not act upon it.
(See ECF 640-2, June 14, 2017 Zelms Dep. at hdr. pp. 35-37, dep. pp. 133-44.)
Follow-up requests for permission to move forward on the project went
unanswered, which financial personnel described as “incredible.” (See ECF 127938.)22
Finally, plaintiffs have presented evidence showing that Renco, DRR, and
their executives described, referred to, and publicly acknowledged DRP as a
department or division of Renco/DRR and not an independent entity. Such
evidence includes but is not limited to DRP being described as the “Peruvian
operations” of DRR, as one of DRR’s “facilities,” as DRR’s “fifth division,” as
one of Renco’s “locations,” and as an “expansion” of DRR. (E.g., Blinko Dep.,
ECF 1277-54; DRR Corporate Profile, ECF 1277-64; Renco Investment Booklet,
ECF 640-58.) Organizational charts identified executive roles at DRP as positions
over DRR’s “Peru Operations.” (E.g., Neil Dep., ECF 1277-60 at hdr. pp. 7-8,
dep. pp. 70-74.) Zelms, as President and CEO of DRR, referred to DRR and DRP
jointly when referring to profitability of operations and implementation of projects.
Memoranda originating from Kaiser as DRR’s CFO referred to “the Peruvian
activities” of DRR. (E.g., Kaiser Memo., ECF 640-37.) Indeed, despite holding

22

Actual work on the ferrites project began in June 2005. (ECF 1277-72.)
38

executive positions for several years at Doe Run Cayman, Doe Run Mining, and
DRP, Kaiser identifies his professional work during this time as being performed
on behalf of DRR only. (See Kaiser Resumé, ECF 1277-78.)
b. Significant Contacts re Agency
In their motion, defendants appear to conflate the elements of veil-piercing
and agency, arguing that plaintiffs’ failure to provide evidence of complete control
and undercapitalization defeats their claims based on both theories. But agency
liability and veil-piercing are based on different factors.
Unlike piercing the corporate veil, “[c]omplete domination or control of the
agent by the principal . . . is not required to establish an agency relationship.”
Blanks v. Fluor Corp., 450 S.W.3d 308, 380 (Mo. Ct. App. 2014). “A traditional
agency theory focuses on the arrangement between the parent and the subsidiary,
the authority given in that arrangement, and the relevance of that arrangement to
the plaintiff’s claim.” Id. There are three essential elements of an agency
relationship:
1) that an agent holds a power to alter legal relations between the
principal and a third party;
2) that an agent is a fiduciary with respect to matters within the scope
of the agency; [and]
3) that a principal has the right to control the conduct of the agent
with respect to matters entrusted to the agent[.]
Id. at 382-83. A power of attorney creates a principal-agent relationship. See
Randall v. Randall, 497 S.W.3d 850, 855 (Mo. Ct. App. 2016); Arambula v.
39

Atwell, 948 S.W.2d 173, 176 (Mo. Ct. App. 1997). And a corporation can act only
through its agents. State ex rel. Cedar Crest Apartments, LLC v. Grate, 577
S.W.3d 490, 495 (Mo. banc 2019).
In their various motions for summary judgment, defendants address
plaintiffs’ agency theory of liability only as it pertains to DRP as an agent acting
on behalf of the defendants. (See ECF 1233 at hdr. p. 93; ECF 1242 at hdr. pp. 4041.) Defendants do not address plaintiffs’ theory as to any other alleged agentactor, other than generally asserting in a cursory manner that plaintiffs’ agency
claims fail. (See ECF 1301 at hdr. pp. 47-48.) In response, plaintiffs abandon their
corporate agency theory of liability as to DRP acting as an agent of defendants.
(See ECF 1276 at hdr. p. 13, n.1; hdr. p. 149.)
Throughout the amended complaint, however, and indeed in each of the
remaining Counts, plaintiffs plainly allege that Missouri citizen DRR as well as
Renco and/or Rennert committed tortious conduct “by and through” their agents or
that they “and their agents” committed such conduct. The amended complaint
plainly identifies the individual defendants (all who lived and conducted business
in Missouri during the relevant time) and others as agents on behalf of the Missouri
corporate defendants and related entities, as well as the bases on which those
individuals achieved agent status, including holding powers of attorney to act on
behalf of the relevant principal-entities in relation to the transactions at issue in this
40

case. These allegations go unchallenged by defendants, and they are sufficient to
show Missouri’s significant contacts to plaintiffs’ agency claims.
Accordingly, because there is no conflict between Article 1981 and Missouri
law on plaintiffs’ veil-piercing and agency claims, and because Missouri has
significant contacts creating State interests on the claims, I continue to find that
Missouri law governs the claims. I will therefore deny defendants’ motion to
apply Peruvian law to these theories of liability. Because Peruvian law does not
apply, defendants’ contention that they are entitled to summary judgment on the
claims under Article 1981 of Peru’s Civil Code is without merit and will be denied.
VI. International Comity and Transnational Law Doctrines
Defendants alternatively move to dismiss this action under the doctrine of
international comity as well as various other transnational doctrines. Defendants
argue that dismissal of this action is warranted under those doctrines because
proceeding on plaintiffs’ claims in this Court would transgress “bedrock principles
of transnational law and sovereignty.” (ECF 1231 at hdr. p. 36.)
International comity “is the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of its own
citizens, or of other persons who are under the protection of its laws.” Hilton v.
Guyot, 159 U.S. 113, 163-64 (1895). “Although more than mere courtesy and
41

accommodation, comity does not achieve the force of an imperative or obligation.”
Somportex Ltd. v. Phila. Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971).
Rather, it “is a discretionary rule of practice, convenience, and expediency.” JP
Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423
(2d Cir. 2005) (internal quotation marks and citations omitted).
The doctrine has been variously described as amorphous, fuzzy, and elusive.
JP Morgan, 412 F.3d at 423 (quoting Harold G. Maier, Extraterritorial
Jurisdiction at a Crossroads: An Intersection Between Public and Private
International Law, 76 Am. J. Int’l L. 280, 281 (1982)); Laker Airways Ltd. v.
Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984). But courts
generally understand international comity to encompass two distinct doctrines.
See, e.g, Mujica v. AirScan Inc., 771 F.3d 580, 598-99 (9th Cir. 2014). The first is
prescriptive comity, “the respect sovereign nations afford each other by limiting
the reach of their laws.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817
(1993) (Scalia, J., dissenting). “That comity is exercised by legislatures when they
enact laws, and courts assume it has been exercised when they come to interpreting
the scope of laws their legislatures have enacted.” Id. The second is adjudicatory
comity, which is referred to as a “comity among courts” and viewed as “a
discretionary act of deference by a national court to decline to exercise jurisdiction
in a case properly adjudicated in a foreign state[.]” In re Maxwell Commc’n Corp.
42

plc by Homan, 93 F.3d 1036, 1047 (2d Cir. 1996).
Defendants argue that both prescriptive and adjudicatory comity require
dismissal of plaintiffs’ claims. First, they argue that adjudicatory comity requires
that I decline to exercise jurisdiction over this action because Peru has the greater
interest, thereby making Peru the more appropriate forum for adjudication of
plaintiffs’ claims. I previously rejected this argument in ruling defendants’ earlier
motion to dismiss. A.O.A., 350 F. Supp. 3d at 848-53. But “comity is a fluid
doctrine that can change in the course of the litigation[,]” Cooper v. Tokyo Elec.
Power Co. Holdings, Inc., 960 F.3d 549, 569 (9th Cir. 2020) (internal quotation
marks and citation omitted), and defendants contend that legal and factual changes
merit reconsideration of my earlier decision. Second, defendants argue that the
presumption against extraterritoriality, a prescriptive comity doctrine, requires
dismissal of plaintiffs’ claims because Missouri common law does not apply to
conduct in Peru. Third, they argue that dismissal is also required under the act of
state doctrine, another prescriptive comity doctrine, because adjudicating
plaintiffs’ claims will necessitate ruling on the validity of acts taken by Peru within
its own territory. Finally, defendants invoke the foreign affairs doctrine to argue
that adjudicating plaintiffs’ state-law claims will encroach upon the federal
government’s exclusive power over foreign affairs.
For the following reasons, defendants’ arguments fail, and I will deny their
43

alternative motion to dismiss under transnational law doctrines.
A.

Adjudicatory Comity, or International Comity Abstention
“Federal courts have a ‘virtually unflagging obligation’ to exercise the

jurisdiction conferred upon them.” Turner Entm’t Co. v. Degeto Film GmbH, 25
F.3d 1512, 1518 (11th Cir. 1994) (quoting Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976)). But in some private international
disputes, principles of adjudicatory comity counsel courts to refrain from
exercising that jurisdiction. Id. Thus, adjudicatory comity is an abstention
doctrine. The task for a court evaluating a request for dismissal on adjudicatory
comity grounds “is not to articulate a justification for the exercise of jurisdiction,
but rather to determine whether exceptional circumstances exist that justify the
surrender of that jurisdiction.” Royal & Sun Alliance Ins. Co. of Canada v.
Century Int’l Arms, Inc., 466 F.3d 88, 93 (2d Cir. 2006). Because there is no clear
test for identifying such exceptional circumstances in the adjudicatory comity
context, “courts have been left to cobble together their own approach[.]” Mujica,
771 F.3d at 603 (quoting Donald Earl Childress III, Comity as Conflict:
Resituating International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11, 51
(2010)) (internal quotation marks omitted).
In their earlier motion to dismiss, defendants argued that both prescriptive
and adjudicatory comity were implicated here and that consideration of the factors
44

set out in § 403(2) of the Restatement (Third) of Foreign Relations Law required
dismissal of plaintiffs’ claims.23 In response, plaintiffs argued that defendants’
prescriptive comity defense failed because there was no true conflict between
Missouri and Peruvian law. (See ECF 640 at hdr. pp. 78-79.) As to adjudicatory
comity, plaintiffs recognized that the Eighth Circuit had not yet spoken on its
prospective application – that is, in the absence of a foreign judgment or parallel
foreign proceeding – and argued that neither the Restatement factors nor other tests
articulated by other circuit courts warranted abstention. (Id. at hdr. pp. 79-92
(citing In re: Vitamin C Antitrust Litig., 837 F.3d 175, 184 (2d Cir. 2016)24;
Mujica, 771 F.3d at 603-08.) Looking at both the Restatement and the test

23

Those factors are:
(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the
activity takes place within the territory, or has substantial, direct, and foreseeable effect upon
or in the territory;
(b) the connections, such as nationality, residence, or economic activity, between the
regulating state and the person principally responsible for the activity to be regulated, or
between that state and those whom the regulation is designed to protect;
(c) the character of the activity to be regulated, the importance of regulation to the regulating
state, the extent to which other states regulate such activities, and the degree to which the
desirability of such regulation is generally accepted.
(d) the existence of justified expectations that might be protected or hurt by the regulation;
(e) the importance of the regulation to the international political, legal, or economic system;
(f) the extent to which the regulation is consistent with the traditions of the international
system;
(g) the extent to which another state may have an interest in regulating the activity; and
(h) the likelihood of conflict with regulation by another state.

24

After briefing closed on the earlier motion to dismiss, the Supreme Court vacated and
remanded In re: Vitamin C. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138
S. Ct. 1865 (2018).
45

described by plaintiffs, which required me to assess the strength of the United
States’ interest in using a foreign forum, the strength of Peru’s interests, and the
adequacy of the alternative forum, see Ungaro-Benages v. Dresdner Bank AG, 379
F.3d 1227, 1238 (11th Cir. 2004); Mujica, 771 F.3d at 603,25 I concluded that
abstention was inappropriate in the circumstances of this case.
In reaching my conclusion, I reasoned that, under either test urged by the
parties, the most important factor was the interests of each sovereign. A.O.A., 350
F. Supp. 3d at 850. I noted that neither the United States nor Peru adopted a
specific position on this litigation: the State Department was silent on the issue,
and plaintiffs and defendants presented letters from Peruvian officials asserting
contradictory positions. I also determined that there was no true conflict between
the relevant Missouri laws and their Peruvian analogues. I concluded that a
comparable form of relief existed under Peruvian law for each of plaintiffs’
plausible claims and that defendants could have complied with the laws of both
Missouri and Peru. Id. at 851-52. The location of the conduct, the nationality of
the parties, and the character of the conduct in question did not support dismissal

25

Mujica also considers several factors outlined in Timberlane Lumber Co. v. Bank of Am., N.T.
& S.A., 549 F.2d 597, 614 (9th Cir. 1976), to assess each sovereign’s interest: “(1) the location
of the conduct in question, (2) the nationality of the parties, (3) the character of the conduct in
question, (4) the foreign policy interests of the [countries], and (5) any public policy interests.”
Mujica, 771 F.3d at 603-04. See also Cooper, 960 F.3d at 566 (applying the three-factor
Ungaro-Benages test and the five-factor Timberlane test).
46

either. Plaintiffs are Peruvian children injured in Peru, but they chose to sue
United States defendants in the United States for defendants’ alleged decisions and
actions taken in the United States. While Peru has an interest in providing a forum
for redressing the injuries of its citizens, the United States also has a “significant
interest in providing a forum for those harmed by the actions of its corporate
citizens.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1232 (9th Cir.
2011) (addressing California’s interest in its resident corporations). Cf. CLAlexanders Laing & Cruickshank v. Goldfeld, 709 F. Supp. 472, 481 (S.D.N.Y.
1989) (addressing motion to dismiss on grounds of forum non conveniens, court
noted that a cognizable state interest exists when a United States corporation
executes securities fraud abroad). I determined that the remaining factors were
neutral. A.O.A., 350 F. Supp. 3d at 852. Finally, I determined that Peru was not an
adequate alternative forum because it was likely unable to exercise jurisdiction
over defendants. Id.
Because neither the United States nor Peru clearly opposed the Court’s
exercise of jurisdiction, the strength of Peru’s interest in providing a forum for the
litigation did not outweigh the United States’ interest, and it was not clear that Peru
provided an adequate alternative forum, I declined to surrender my “virtually
unflagging obligation” to exercise jurisdiction and denied defendants’ motion to
dismiss on international comity grounds. A.O.A., 350 F. Supp. 3d at 853. Where,
47

as here, there is no parallel foreign proceeding, abstention “requires a serious
problem that would be created by federal court proceedings but that would not be
present if the matter were adjudicated abroad.” GDG Acquisitions, LLC v. Gov’t of
Belize, 749 F.3d 1024, 1032-33 (11th Cir. 2014). Defendants failed to show such a
problem.
Defendants now argue that I need to reevaluate that conclusion in light of the
summary judgment record, asserting specifically that the record shows 1) a true
conflict between Missouri and Peruvian law; 2) the alleged wrongful conduct took
place in Peru, with no nexus between defendants’ conduct in the United States and
the relevant conduct in Peru; and 3) that foreign interests embodied in the United
States-Peru Trade Promotion Agreement, or TPA, dictate that adjudication of
plaintiffs’ environmental claims must take place in Peru.
1.

True Conflict

Defendants rely on their factual averments made in relation to their choiceof-law analysis to argue that a true conflict exists between Missouri and Peruvian
law, thus warranting abstention. If the analysis were that simple, I would deny this
argument for the reasons set out in Section V above. But determining whether a
true conflict of law exists for purposes of abstaining under international comity
principles is not so straightforward.
First of all, the Eighth Circuit has not determined whether adjudicatory
48

comity requires a true conflict of law. And other courts have taken diverse
positions, primarily differing in their treatment of the Supreme Court’s “true
conflict” analysis in Hartford Fire. In Hartford Fire, when determining whether
the district court should have declined to exercise jurisdiction over Sherman Act
claims against London reinsurers, the Supreme Court noted that “[t]he only
substantial question in this litigation is whether ‘there is in fact a true conflict
between domestic and foreign law.’” 509 U.S. at 798 (quoting Société Nationale
Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 555
(1987) (Blackmun, J., concurring in part and dissenting in part)). The Court
explained that “[n]o conflict exists, for these purposes, ‘where a person subject to
regulation by two states can comply with the laws of both.’” Id. at 799 (quoting
Restatement (Third) of Foreign Relations Law § 403, Comment e). Because there
was no true conflict between British law and the law of the United States, the
Court reasoned that there was “no need . . . to address other considerations that
might inform a decision to refrain from the exercise of jurisdiction on grounds of
international comity.” Id.
The Tenth Circuit has interpreted this language to require a true conflict to
invoke adjudicatory comity. See United Int’l Holdings, Inc. v. Wharf (Holdings)
Ltd., 210 F.3d 1207, 1223 (10th Cir. 2000). And the Third Circuit views the
language as requiring a true conflict of law in the absence of a foreign judgment or
49

ongoing proceeding in a foreign tribunal. See Gross v. German Found. Indus.
Initiative, 456 F.3d 363, 393 (3d Cir. 2006). The Ninth Circuit, however, does not
require proof of a true conflict. Mujica, 771 F.3d at 602. Because Hartford Fire
did not address the “other considerations” bearing on comity, and other courts have
generally required proof of such a conflict only when prescriptive comity was at
issue, the Ninth Circuit concluded that, “[a]t least in cases considering adjudicatory
comity, we will consider whether there is a conflict between American and foreign
law as one factor in, rather than a prerequisite to, the application of comity.” Id. at
600-02.26

26

The court noted that the Second, Eleventh, and Federal Circuit Courts had also not required
proof of a true conflict when considering adjudicatory comity. Mujica, 771 F.3d at 600-01
(citing JP Morgan, 412 F.3d at 424; Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir. 2006);
Ungaro-Benages, 379 F.3d at 1238; Int’l Nutrition v. Horphag Rsch. Ltd., 257 F.3d 1324, 1329
(Fed. Cir. 2001)). After the Ninth Circuit decided Mujica, the Second Circuit explained that it
did not consider the presence of a true conflict as sufficient to warrant dismissal; but it did not
decide, as the Ninth Circuit did in Mujica, that a showing of “true conflict” is merely a factor,
rather than a threshold requirement, for abstention. In re: Vitamin C Antitrust Litig., 837 F.3d
175, 185 (2d Cir. 2016), vacated and remanded sub nom. Animal Sci. Prods., Inc. v. Hebei
Welcome Pharm. Co. Ltd., 138 S. Ct. 1865 (2018). Though it noted an earlier case in which it
did not require a true conflict in an adjudicatory comity context, the court did not decide whether
abstention requires a true conflict because there was a true conflict before it. Id. at 186. In its
opinion after remand, the Second Circuit noted that the Supreme Court did not disturb that
portion of its previous decision, and it therefore applied the same approach. See In re: Vitamin C
Antitrust Litig., 8 F.4th 136, 145 n.11 (2d Cir. 2021), cert. denied sub nom. Animal Sci. Prods.,
Inc. v. Hebei Welcome Pharm. Co., 143 S. Ct. 85 (2022). While acknowledging Hartford Fire’s
explanation that “to warrant dismissal on the basis of international comity, the two countries’
legal demands must be irreconcilable,” 8 F.4th at 144 (citing Hartford Fire, 509 U.S. at 799), the
Second Circuit nevertheless described a true conflict as “merely ‘an important criterion for a
comity dismissal.’” Id. at 145 (quoting Figueiredo Ferraz E Engenharia de Projeto Ltda. v.
Republic of Peru, 665 F.3d 384, 391 (2d Cir. 2011)). The Second Circuit’s position thus appears
to be more ambiguous than as ascribed by the Mujica court.
50

Whether a true conflict is an absolute requirement or merely a factor to
consider, none exists here “for these purposes” to warrant abstention. As they did
in their conflicts/choice-of-law argument, defendants again take a narrow view of
Dr. Matson’s testimony, and specifically his testimony that “Doe Run Peru could
satisfy Peruvian environmental standards for air quality and yet not satisfy the
standard of care.” (ECF 1231-3, Matson Dep., hdr. p. 9, dep. p. 131.) Defendants
contend that this statement shows that Peruvian and Missouri environmental
standards differ and thus are in conflict for comity purposes. But Dr. Matson does
not purport to be an expert on Peruvian law, and plaintiffs do not offer his opinion
for this reason. In any event, under Federal Rule of Civil Procedure 44.1, the
determination of foreign law is a ruling on a question of law made by the Court,
not by Dr. Matson. And, as noted above and in my October 2018 Order, the
relevant Peruvian and Missouri laws governing plaintiffs’ asserted claims do not
conflict. But even accepting Dr. Matson’s statement as true, the relevant inquiry in
the comity analysis is not whether it is possible to comply with the law of one
sovereign and not the other. Rather, it is whether “a person subject to regulation
by two states can comply with the laws of both.” Hartford Fire, 509 U.S. at 799
(internal quotation marks and citation omitted). Defendants do not argue that, with
regard to the standard of care, it was impossible to comply with both Missouri and
Peruvian law. Under Hartford Fire, therefore, there is no true conflict for
51

international comity purposes.
2.

Place of Wrongful Conduct

Defendants again return to Dr. Matson’s and Ms. Midkiff’s testimony to
argue that any alleged misconduct took place only in Peru and not in the United
States. Reasserting their claim that the four fugitive emission projects are all that
remain of plaintiffs’ case, defendants assert that both experts agreed that DRP itself
had enough capital to complete the projects within the first two years of operating
the Complex, that neither expert identified any instance where Renco or Rennert
prohibited DRP from completing a necessary environmental project, and that
neither expert could identify a circumstance where a parent company of DRP
denied an expenditure request for environmental projects. Defendants argue that
this testimony shows that the relevant decisions regarding environmental projects
were made by DRP in Peru and not by any other actor elsewhere. Therefore,
defendants contend, “all that is left” to support plaintiffs’ claims against them are
typical activities common to a domestic corporation, which is not enough under
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), to create a nexus between DRP’s
conduct in Peru and defendants’ domestic conduct sufficient to maintain
jurisdiction in this forum. For the following reasons, this argument is unavailing.
In Nestlé, the plaintiffs sought a judicially-created cause of action under the
Alien Tort Statute (ATS) to recover damages from two companies based in the
52

United States who allegedly aided and abetted the plaintiffs’ enslavement by
providing technical and financial resources to their enslavers in Ivory Coast. 141
S. Ct. at 1935. To determine whether the plaintiffs sought an impermissible
extraterritorial application of the ATS, the Court analyzed whether the “conduct
relevant to the statute’s focus occurred in the United States.” Id. at 1936 (quoting
RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 337 (2016)) (internal
quotation marks omitted). Even though plaintiffs alleged that “every major
operational decision by both companies [was] made in or approved in the U.S.,”
the Court determined that nearly all the conduct allegedly aiding and abetting
forced labor – “providing training, fertilizer, tools, and cash to overseas farms” –
occurred in Ivory Coast. Id. at 1937. Because making “operational decisions” is
an “activity common to most corporations,” the Court reasoned that “generic
allegations of this sort do not draw a sufficient connection between the cause of
action respondents seek—aiding and abetting forced labor overseas—and domestic
conduct.” Id. at 1937.
Defendants argue that the Court’s reasoning in Nestlé should apply here
because, as the Ninth Circuit has noted, “the guiding principle of [the Supreme
Court’s ATS] cases applies equally in the context of adjudicatory comity: the
weaker the nexus between the challenged conduct and U.S. territory or U.S.
parties, the weaker the justification for adjudicating the matter in U.S. courts and
53

applying U.S. federal or state law.” Mujica, 771 F.3d at 605-06. Defendants
contend that, like in Nestlé, there is no nexus between the challenged conduct –
DRP’s operations in Peru – and defendants’ corporate decision-making in the
United States.
I agree with defendants that the nexus between the challenged conduct and
the United States is critical in the adjudicatory comity analysis, and that the
location of the relevant conduct is a salient factor when assessing that nexus. See
Mujica, 771 F.3d at 605 (“Kiobel [v. Royal Dutch Petroleum Co., 569 U.S. 108
(2013)] and the lower-court decisions that have followed in its wake confirm the
importance of” the location of the conduct and nationality of the parties). I also
agree that, as in Nestlé, many important facts in this case concern conduct abroad –
here, the operation of the La Oroya Complex. But the similarities with Nestlé end
there.
In their amended complaint, plaintiffs do not merely make generic
allegations that defendants made general operational decisions in the United States.
Plaintiffs assert instead that defendants exerted complete control over DRP from
their offices in Missouri and New York, which included making decisions that
caused DRP to emit toxins and other harmful substances at levels harmful to
plaintiffs, despite knowing of such harm. Plaintiffs also claim that despite their
knowledge of their ability to rectify the harm, defendants failed to implement
54

measures to do so, failed to take various actions to protect plaintiffs, and/or
actively concealed evidence of the harm they caused. Plaintiffs allege that
defendants made these decisions and took these actions in the United States so as
to make substantial profit for their United States companies at the expense of
plaintiffs’ health. (ECF 474, Amd. Compl.) Unlike in Nestlé, the plaintiffs here
allege more domestic activity than general decision-making. They allege that the
specific decisions to engage in the conduct that forms the bases of their claims
were made in the United States. And decisions to engage in tortious conduct
cannot be considered activities “common to most corporations.”
Much of the evidence that has now been developed during discovery
supports plaintiffs’ claims. For instance, plaintiffs have submitted evidence that:
 Defendants dominated and controlled DRP; 27

27

See supra Section V.C.2(a)(ii). Despite defendants’ insistence that DRP was wholly
responsible for its operations, they have stated elsewhere that DRP was subject to their control or
relied on their expertise. For example, in its 1998 Senior Note Offering, DRR explained that
“Doe Run and the Guarantors are indirect subsidiaries of Renco, of which Mr. Ira Leon Rennert
is the controlling shareholder. As a result of his indirect ownership of Doe Run and the
Guarantors, Mr. Rennert is, and will continue to be, able to direct and control the policies of Doe
Run and the Guarantors, including mergers, sales of assets and similar transactions.” (ECF
1229-16, Doe Run Senior Notes Offering Memorandum, at hdr. p. 215.) As noted above, DRP
was one of the Guarantors. And when SUNAT, the Peruvian tax authority, initiated an audit in
2003 to determine the true market value of the services provided by DRR to DRP under the
intercompany agreements, DRR instructed its employees to emphasize that American DRR
executives controlled DRP’s day-to-day operations: “The key decision makers in Peru, and the
ones who control the day to day services from the United States, are Ken Buckley, Ken Hecker,
Eric Peitz, Tony Worcester in the Lima office, and Bob Roscoe in the Cobriza facility.” (ECF
1279-35, Technical, Managerial and Professional Services Agreement for Services Performed
Partially Within and Partially Outside of Peru Memorandum, at hdr. p. 3.) They also encouraged
DRP employees to reiterate to SUNAT that “reliance on US personnel for technical, managerial
55

 As part of the financing structure that was arranged by Renco and
implemented by Zelms and Kaiser, DRP financed nearly all of its original
purchase price and was a Guarantor of $255 million to $355 million on
DRR Senior Notes;28
 DRP transferred over $100 million to DRR and Renco through
intercompany agreements and interest payments on its acquisition loan
between 1998 and 2008; 29
 Defendants knew that these upstream payments and financial structure
hampered DRP’s ability to meet its PAMA obligations;30
 Defendants knew that DRP could not finance its PAMA projects out of
and professional assistance” was “critical” to DRP’s “continued success in operations.” (Id. at
hdr. p. 4.)
28

See ECF 871-21, March 12, 1998 Indenture Agreement; ECF 871-19, October 23, 1997
Promissory Note, at hdr. pp. 4-5; ECF 871-14, June 28, 2017 Kaiser Dep. at hdr. pp. 3-5, dep.
pp. 95-101; ECF 871-3, June 14, 2017 Zelms Dep. at hdr. pp. 11-12, 14, dep. pp. 158-63, 202;
ECF 871-25, April 2, 1998 Working Capital Facility Letter.
29

See, e.g., ECF 640-29, March 20, 1999 Doe Run Peru Financial Statements; ECF 640-30,
March 9, 1998 Technical, Managerial and Professional Services Agreement; ECF 640-32 – 64036 (Service Agreements); ECF 640-41 (detailing $86,018,977 in intercompany fees from 1998 to
2007); ECF 871-23, December 22, 2008 Email from Gary Mard to Dennis Sadlowski and Neil
(“The combined total of cash received from Peru is $125,390,157.”).
30

See ECF 871-42, January 29, 2001 Email from Ken Hecker to Kaiser at hdr. p. 2 (“Doe Run
Peru has been requested to transfer $3.0 million to Doe Run Resources (U.S.) this week. In my
opinion, Doe Run Peru’s financial condition precludes any such transfer of funds until
commercial circumstances change significantly. As you know, Doe Run Peru’s heavy interest
burden and reduced commercial environment have reduced our liquidity and brought into
question our ability to meet PAMA requirements and complete necessary capital investments.”);
ECF 871-44, December 28, 2005 Email from Dante Circi to Wayne Rich re DRP’s transfer of
$333,000 to DRR (“Increasing your liquidity is obviously reducing our liquidity, and is putting
in danger the objective to extend the PAMA.”); ECF 871-43, July 27, 2017 Peitz Dep. at hdr. p.
5, dep. pp. 273-74 (DRR had an adverse effect on DRP’s ability to complete environmentalrelated projects to control emissions), hdr. p. 2, dep. p. 78 (“[D]uring the time you were at
[DRP], then, as a result of this undercapitalization, was there difficulty with [DRP] having
sufficient funds to pay for environment – environmental improvements including modernizing
the facility?” “Yes.”).
56

its cash flow31 and that DRP’s financial distress was attributable, in part,
to its debt financing and intercompany payments;32
 DRR/Renco employees handled efforts to seek outside financing, but the
institutions they approached expressed concern over DRP’s financial
obligations to DRR;33
 DRR/Renco continued to demand the payments anyway,34 and DRP
continued to guarantee DRR’s debt until 2007;35
 DRR employees Buckley, Neil, Vornberg, and Zelms managed DRP’s
environmental and modernization projects;36

31

See ECF 871-38, December 31, 1998 Memo from Vornberg to Chaput (“We are expected to
finance [the PAMA projects] out of cash flow. We CANNOT finance all of the PAMA projects
(as a separate question from revenue generating process projects) out of cash flow, especially the
acid plant, but maybe the wastewater projects as well.”).
32

See ECF 871-40, September 4, 2000 Strategy Memo from Buckley and Hecker to Zelms, at
hdr. pp. 3-4 (“All of the above illustrate that Doe Run’s business model – 100% debt financing –
is flawed . . . . DRP, for example, has financed all of its purchase price, embarked on a major
capital investment program, and sent large intercompany payments north. That is simply not a
reasonable expectation, and we are unaware of any company, in any industry, that has managed a
similar feat. . . . The handling of the $125 million capital contribution when La Oroya was
purchased in 1997 has created a potentially difficult situation in light of DRP’s current liquidity
problems.”); ECF 871-44.
33

See ECF 871-26, June 30, 2000 Email from Credit Lyonnais to Kaiser; ECF 871-27, July 4,
2000 Email from Credit Lyonnais to Peitz; ECF 871-28, December 1, 2000 Memo from WestLB
to Peitz; ECF 871-29, September 5, 2000 Email from Credit Lyonnais to Peitz and Kaiser; ECF
871-53, October 11, 2005 Presentation from financial strategist to Kaiser, Neil, Peitz, Chaput, at
hdr. p. 4 (“No bank will proceed with arranging financing for Doe Run Peru until they are
assured that adequate collateral will be available to back up the new Facility. If they want Doe
Run Peru to have access to the Financing, Renco and the Note Holders will have to agree that
the new lenders have first and unencumbered access to Doe Run Peru’s cash and assets.”).
34

See ECF 871-42; ECF 871-44.

35

See ECF 871-56, December 18, 2006 DRR Memo.

36

See, e.g., ECF 871-3, June 14, 2007 Zelms Dep. at hdr. pp. 5-6, dep. pp. 115-19 (Vornberg
assigned to handle environmental matters and provided environmental reports to Buckley and
Zelms), hdr. p. 7, dep. pp. 123-24 (hiring decisions and communications with NGO task force),
57

 Defendants received regular reports about the pollution control projects
at DRP and addressed the environmental affairs during monthly meetings
in Missouri that were attended by Rennert and DRR’s top executives;37
 Beginning in 1999, DRP’s expenditures for environmental remediation
projects exceeding $10,000 required approval from Rennert and several
DRR executives or their delegates38; and by 2004, Rennert required AFEs
for all expenditures exceeding $5000;39
 Defendants knew before they purchased the Complex that “ambient
concentrations in the region around La Oroya” were “exceedingly high”
and required controlling fugitive and secondary stack emissions;40

hdr. pp. 8-9, dep. pp. 128-29 (Vornberg reported to Zelms on all important projects affecting
Complex); hdr. p. 9, dep. p. 132 (Zelms agreeing that he was “instrumental in environmental
improvements over the La Oroya complex,” which was “one of [his] responsibilities as president
of [DRR]”), hdr. p. 10, dep. pp. 137-38 (Zelms felt need for monthly reports from Vornberg on
environmental projects), hdr. p. 20, dep. p. 269-70 (Vornberg established agenda for Rennert re
environmental portion of executive meeting). See also, e.g., ECF 871-39, June 9, 2017 Buckley
Dep. at hdr. p. 2, dep. p. 71; hdr. p. 7, dep. pp. 230-32.
See also, e.g., ECF 871-65, November 1, 1999 Peru Environmental Tracking Report from
Vornberg to Zelms and Buckley; ECF 871-71, March 23, 2005 DRR Board Meeting Minutes
(Neil asked to lead long-term lead abatement plan). DRP personnel were encouraged to reiterate
to SUNAT that assistance from “senior US environmental people” was specifically needed in the
environmental area, described as “one of the key areas” where it made economic sense to rely on
“the expertise of US personnel in Doe Run.” (ECF 1279-35 at hdr. p. 5.)
37

E.g., ECF 871-3, June 14, 2017 Zelms Dep. at hdr. pp. 8-9, dep. pp. 128-29; hdr. p. 10, dep.
pp. 137-38; hdr. p. 18-19, dep. pp. 262-68; hdr. p. 20, dep. pp. 269-70.
See also, e.g., ECF 871-14, June 28, 2017 Kaiser Dep. at hdr. p. 11, dep. p. 201; ECF 871-39,
June 9, 2017 Buckley Dep. at hdr. pp. 3-4, dep. pp. 196-98; ECF 1279-36, February 10, 2004
Vornberg email to Kaiser on Neil’s PAMA Presentation on Rennert.
38

ECF 640-22, June 9, 1999 Spending Authorization Procedure.

39

ECF 871-3, June 14, 2017 Zelms. Dep. at hdr. p. 17, dep. p. 244; ECF 640-23 at hdr. pp. 1516, February 11, 2004 Binko Letter to Zelms.
40

ECF 1233-15, 1996 Knight Piésold report at hdr. pp. 28, 39-43. See also ECF 871-48, Sept.
20, 2017 Neil Dep. at hdr. p. 2, dep. p. 120; hdr. pp. 3-4, dep. pp. 124-25; hdr. p. 5, dep. p. 138.
58

 Defendants knew that fugitive emissions were a significant source of
contamination that was not being controlled under the PAMA, with
effects on air quality eight times greater than stack emissions;41
 By February 2004, no comprehensive fugitive metal emissions inventory
had been performed;42
 DRP’s articulated goal for its first year of operating the Complex was to
operate at maximum capacity with minimum investment;43
 DRP’s business plan provided that operations of the copper, lead, and
zinc smelters and refineries would immediately increase to maximum
capacity in order to produce several additional tons of products;44 and
 In March 2005, more than seven years after Renco and DRR purchased
the Complex, Rennert recognized that defendants needed to develop a
long-term plan regarding lead abatement.45
From the evidence submitted on the record, a factfinder could conclude that
defendants exerted control over DRP to such a degree that the tortious conduct
committed at the Complex was the act of defendants themselves – born out of their
conduct and decisions made in the United States. There is a sufficient nexus,
therefore, between defendants’ conduct in the United States and DRP’s operations

41

ECF 871-48, Sept. 20, 2017 Neil Dep. at hdr. p. 2, dep. p. 120; hdr. pp. 3-4, dep. pp. 124-25;
hdr. p. 5, dep. p. 138. See also ECF 1233-66, Feb. 17, 2004 Letter from Neil o/b/o DRP to
Peru’s Ministry of Energy and Mines, at hdr. p. 7.
42

See ECF 871-48, Sept. 20, 2017 Neil Dep. at hdr. p. 6, dep. p. 152.

43

ECF 909-24, Business Plan & Budget 1998, prepared Oct. 31, 1997.

44

Id.

45

ECF 871-71, March 23, 2005 DRR Board Meeting Minutes, at hdr. p. 5.
59

in Peru to maintain jurisdiction here over plaintiffs’ claims.
3.

United States-Peru Trade Promotion Agreement

In my October 2018 Order, I rejected defendants’ contention that exercising
jurisdiction would frustrate the goals or provisions of the TPA. I interpreted
Chapter 18.4 paragraph four of the TPA to allow this litigation, finding that it
provides that “each party . . . must provide remedies ‘for violations of a legal duty
under that Party’s law relating to the environment or environmental conditions
affecting human health, which may include rights such as: to sue another person
under that Party’s jurisdiction for damages under that Party’s laws.’” A.O.A., 350
F. Supp. 3d at 852 (quoting ECF 545-12, TPA Ch. 18, at hdr. p. 4)46 (emphasis
removed). In their current motion here, defendants argue that I essentially
construed Article 18.4(4) of the TPA to be a mini-ATS provision when I
determined that it provided for the citizens of one country to seek remedies for
violations of the environmental laws of another. They claim that the TPA instead
requires remedies for violations of a country’s laws relating to the environment to
be heard in that country’s own courts.
I continue to disagree with defendants’ contention that the TPA forbids this

46

Defendants attached Chapter 18 of the TPA as Exhibit 10 to its memorandum supporting its
motion to dismiss. It is docketed at ECF 545-12. In A.O.A., I errantly cited this document as
“ECF 545-10.” I correctly cite it here and provide this explanation in order to avoid any
confusion.
60

Court’s jurisdiction. When defendants raised the same claim in their earlier motion
to dismiss, they omitted language from the TPA to reach a more favorable
interpretation. They claimed that Article 18.3(5) “commits the United States to
refrain from ‘undertak[ing] environmental law enforcement activities in [Peru].’”
(See ECF 545 at hdr. p. 38 (quoting TPA, art. 18.3(5)).) But Article 18.3(5) is not
an interdiction; it merely provides that “[n]othing in this Chapter shall be construed
to empower a Party’s authorities to undertake environmental law enforcement
activities in the territory of another Party[.]” (ECF 545-12 at hdr. p. 3. Emphasis
added.) And the United States is not undertaking law enforcement activities in
Peru.
Likewise, defendants asserted that Article 18.4(4) “obligates Peru to . . .
provide its citizens with ‘effective access to remedies for violations of [Peru’s]
environmental laws or for violations of a legal duty under [Peru’s] law relating to
the environment or environmental conditions affecting human health.’” (ECF 545
at hdr. p. 38 (quoting TPA, art. 18.4(4)).) I agree that it does so, but defendants
altered some of the original language to suggest that the TPA requires such claims
to be litigated in Peru. Unadulterated, Article 18.4(4) provides that:
Each Party shall provide persons with a legally recognized interest
under its law in a particular matter appropriate and effective access to
remedies for violations of that Party’s environmental laws or for
violations of a legal duty under that Party’s law relating to the
environment or environmental conditions affecting human health[.]
61

The plain language of the Article appears to provide for this Court’s exercise of
jurisdiction over plaintiffs’ claims in this litigation, that is, that United States
defendants violated Missouri law relating to environmental conditions affecting
human health. Given this plain language, I decline defendants’ invitation to
examine the legislative history behind the TPA to construe its meaning. See
Gemsco v. Walling, 324 U.S. 244, 260 (1945) (“The plain words and meaning of a
statute cannot be overcome by a legislative history which through strained
processes of deduction from events of wholly ambiguous significance, may furnish
dubious bases for inference in every direction.”).
Nevertheless, defendants do not identify any provision in the TPA that
shows a United States foreign policy interest in resolving these claims in Peru.
Even though the TPA “recognize[s] the sovereign right of each Party to establish
its own levels of domestic environmental protection” (ECF 545-12 at hdr. p. 2,
TPA art. 18.1), and requires Peru to provide citizens with effective remedies for
violations of its laws, defendants do not explain how this Court’s exercise of
jurisdiction in this action impedes these rights or requirements.
Accordingly, I continue to conclude that application of the TPA does not
warrant dismissal of this action.
4.

Consideration Given to Letters from Peruvian Officials

In their motion here, defendants mention that my October 2018 decision to
62

deny international comity abstention was based in part on my conclusion that
neither the United States nor Peru had issued an express position on whether this
litigation should proceed in Missouri. (See ECF 1231 at hdr. p. 36.) That
conclusion was based in part on competing letters that the parties submitted from
Peruvian officials purporting to reflect the view of the Peruvian government. See
A.O.A., 350 F. Supp. 3d at 850-51. Although in the present motion defendants do
not relitigate the treatment I gave those letters, they state in a footnote that they
wish to preserve that issue for appeal. (ECF 1231 at hdr. p. 37 n.10.) I will
therefore revisit the issue myself.
As summarized in my October 2018 Order, the letters submitted by the
parties reflected different views on the propriety of plaintiffs’ claims being
litigated in this forum. Plaintiffs provided two letters dated August 2017 from
Peruvian Congressmen directed to Peru’s Ministry of Finance that spoke favorably
of these cases proceeding in Missouri. (ECF 640-85, 640-86.) Defendants
presented two letters – one dated October 2007 and the other dated April 2017 –
both from the Peruvian Minister of Economy and Finance directed to divisions of
the Department of State.47 The 2007 letter expressed the opinion that this case
should be heard in Peru and requested that the Department of State notify the

47

The 2007 letter was directed to the U.S. Ambassador to Peru. (ECF 545-13.) The 2017 letter
was directed to the Chief of Investment Arbitration, Office of the Legal Advisor. (ECF 545-3.)
63

relevant Missouri court that the lawsuit must be filed in Peru and, further, “take
such other steps” so that any court of the United States will refuse to review the
case. (ECF 545-13.) The April 2017 letter was sent pursuant to Article 10.21 of
the TPA in relation to arbitration proceedings brought by Renco and DRR against
Peru wherein the petitioners argued that Peru should appear in or assume liability
for this action. That letter outlined Peru’s understanding of Article 18 of the TPA
and its interests thereunder, and it referred to the 2007 letter that strongly
suggested that Peruvian authorities hear and resolve this dispute. (ECF 545-3.)
Because the letters from each side were contradictory and were obtained for
purposes of this litigation, I did not find either set to be persuasive regarding Peru’s
sovereign interest in this matter. A.O.A., 350 F. Supp. 3d at 851. And because the
April 2017 letter did not expressly advocate for dismissal of this action on the basis
of international comity and appeared equivocal on whether this litigation may
affect Peru’s sovereignty, I weighed this apparent lack of express interest heavily
against dismissal. Id.
Upon reflection, I may have been too dismissive of the representations made
in the April 2017 letter, especially given its lengthy recitation of Peru’s sovereign
interests under the TPA and its own laws, as well as the effect extraterritorial
determination of claims involving its policies regarding public health, the
environment, and natural resources could possibly have on its sovereign interests,
64

which the letter claims would run counter to the “text and spirit” of the TPA. Even
with more thoughtful consideration, however, and assuming that the positions
articulated in that letter reflect the official policy of Peru, my conclusion remains
the same that the sovereign interests of the United States and Peru do not warrant
abstention in the circumstances of this case.
As noted by the Eleventh Circuit, abstention in the absence of a parallel
foreign proceeding is reserved for “rare (indeed often calamitous) cases in which
powerful diplomatic interests of the United States and foreign sovereigns aligned
in supporting dismissal.” GDG Acquisitions, 749 F.3d at 1034. Defendants have
not demonstrated that the interest of the United States supports dismissal, and I am
not persuaded that the TPA reveals a policy of litigating these claims in Peru.
Moreover, while the April 2017 letter may articulate relevant Peruvian policy,
including a preference that the issues in this action that touch upon such policy be
litigated in Peru, I note that the Republic of Peru does not take this position in the
Renco/DRR arbitration.48 Indeed, Peru recently acknowledged in that proceeding
that “a federal court will hear the Missouri Plaintiffs’ claims” and “will apply
either Missouri negligence law or Peruvian negligence law to determine the

48

See The Renco Group, Inc. & Doe Run Resources, Corp. v. The Republic of Peru & Activos
Mineros S.A.C., Case No. 2019-47 (Perm. Ct. Arb.) (Respondents’ Counter-Memorial, Apr. 1,
2022), available at https://pcacases.com/web/sendAttach/35805.
65

substantive claims.”49 Notably absent is any advocation for a Peruvian forum to
hear these claims or an articulation that its sovereign interests are jeopardized by
this Court’s exercise of jurisdiction over them. There is nothing before the Court
showing that the powerful diplomatic interests of the United States and Peru are
aligned in supporting dismissal of this case.
Finally, the State Department has thus far remained silent in this case. I
agree that this silence does not equal indifference, and I am sure there are a variety
of reasons the State Department may have elected not to file a statement of interest
here. But where there is no true conflict between the laws of the United States and
a foreign sovereign, and there is no parallel proceeding affronted by this Court’s
exercise of jurisdiction, a showing by the United States that it is interested in
dismissal is critical to justifying the surrender of this Court’s “virtually unflagging
obligation” to exercise the jurisdiction granted to it. See Colorado River, 424 U.S.
at 817. Without such a statement, “simply because foreign relations might be
involved” does not diminish this obligation. Gross, 456 F.3d at 394.
5.

Abstention Not Warranted

As demonstrated above, defendants overstate the factual and legal changes
since my ruling on their earlier motion to dismiss. But even if 1) the location of
most of the relevant conduct took place in Peru, 2) the October 2007 and April

49

Id. at .pdf p. 138, brief p. 123. (Emphasis added.)
66

2017 letters assert the official policy of Peru opposing this Court’s jurisdiction, and
3) the TPA does not explicitly contemplate this kind of litigation to go forward – in
short, even if Peru has a strong interest in using a Peruvian forum to litigate
plaintiffs’ claims – defendants have nevertheless failed to identify “exceptional
circumstances” justifying what would be a rare surrender of jurisdiction.
Moreover, judicial economy and fairness to the parties weigh against
abstention. See Lawson v. Klondex Mines Ltd., 450 F. Supp. 3d 1057, 1076-77 (D.
Nev. 2020) (noting the Mujica factors are non-exhaustive and judicial economy
and fairness to the parties relate to the interest of the United States). Plaintiffs
have pursued their claims in this Court for more than a decade. The parties have
inter alia established an initial trial pool, identified several plaintiffs as members of
a discovery cohort, engaged and examined several expert witnesses, completed
extensive discovery, and submitted dispositive motions. To abstain now would
simply be unfair to plaintiffs and substantially postpone resolution of their claims.
Accordingly, because 1) there is no true conflict of laws or a parallel foreign
proceeding on plaintiffs’ claims, 2) Missouri and New York have an interest in the
conduct of its corporate citizens abroad, 3) there has been no showing of aligned
sovereign interests in dismissal, 4) there has been no showing of the United States’
official position on dismissal of this proceeding, and 5) abstention would postpone
resolution of plaintiffs’ already long-litigated claims, I will again deny defendants’
67

motion to abstain on international comity principles.
B.

The Presumption Against Extraterritoriality
Defendants next argue that the presumption against extraterritoriality

forecloses the application of Missouri common law to conduct in Peru. The
presumption against extraterritoriality is a canon of statutory construction derived,
in part, from international comity principles. Hartford Fire, 509 U.S. at 817
(Scalia, J., dissenting), cited approvingly in F. Hoffmann-La Roche Ltd. v.
Empagran S.A., 542 U.S. 155, 164 (2004). It provides that “[w]hen a statute gives
no clear indication of an extraterritorial application, it has none[.]” Kiobel, 569
U.S. at 115 (quoting Morrison v. National Austl. Bank Ltd., 561 U.S. 247, 254
(2010)) (internal quotation marks omitted) (second alteration added). The
presumption “rests on the perception that Congress ordinarily legislates with
respect to domestic, not foreign matters[,]” Morrison, 561 U.S. at 255, and “serves
to protect against unintended clashes between our laws and those of other nations
which could result in international discord.” EEOC v. Arabian Am. Oil Co., 499
U.S. 244, 248 (1991). See also RJR Nabisco, Inc., 579 U.S. at 335.
Defendants reason that because the presumption against extraterritoriality
would foreclose application of Missouri statutes abroad, the result should be the
same for Missouri common law claims. But defendants do not explain why. The
presumption against extraterritoriality guides courts as they determine what a
68

legislature has done; it is silent as to the common law. See Jeffrey A. Meyer,
Extraterritorial Common Law: Does the Common Law Apply Abroad?, 102 Geo.
L.J. 301, 334 (2014) (“To date, the presumption against extraterritoriality has been
applied to curb geographical extension of statutes but not the common law. The
presumption has been justified as an expression of implied legislative intent rather
than an implied limit on legislative authority or power.”); Katherine Florey, State
Law, U.S. Power, Foreign Disputes: Understanding the Extraterritorial Effects of
State Law in the Wake of Morrison v. National Australia Bank, 92 B.U. L. Rev.
535, 574 (2012) (“[B]ecause [the presumption] is first and foremost an interpretive
canon, it has little to say about common law that poses no issue of legislative
intent.”). Other courts have concluded the same. See Armada (Singapore) Pte Ltd.
v. Amcol Int’l Corp., 244 F. Supp. 3d 750, 758 (N.D. Ill. 2017); Leibman v.
Prupes, No. 2:14-CV-09003-CAS, 2015 WL 3823954, at *6 (C.D. Cal. June 18,
2015) (“[T]he presumption is limited to statutes by its terms.”).
Citing City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021),
defendants contend that the presumption also applies to common law claims. But
in City of New York, the Second Circuit opined “that foreign policy concerns
foreclose New York’s proposal here to recognize a federal common law cause of
action targeting emissions emanating from beyond our national borders.” Id. at
101 (emphasis added). By contrast, this Court is not being asked to recognize or
69

extend a new federal cause of action – it is only being asked to apply existing state
common law. Defendants cite no law limiting the reach of Missouri common law.
Nor do they identify any court that has found that state common law does not apply
extraterritorially. I will therefore deny defendants’ extraterritoriality argument as
well.
C.

Act of State Doctrine
Defendants next argue that the act of state doctrine warrants dismissal of

plaintiffs’ claims. That doctrine requires that “the acts of foreign sovereigns taken
within their own jurisdictions shall be deemed valid.” W.S. Kirkpatrick & Co. v.
Env’t Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990).50 Defendants claim that
adjudicating plaintiffs’ claims will necessarily require me to second-guess the
validity of Peru’s actions. Specifically, they claim that it will require me to
evaluate which of plaintiffs’ injuries are attributable to DRP and which are
attributable to Peru’s state-owned entities. They also argue that I will have to
evaluate whether Peru’s environmental demands as contained in the PAMA
adequately addressed environmental concerns in the community and Complex.
Defendants’ arguments are meritless. “The act of state doctrine is not some
50

The act of state doctrine has been described as “closely related” to or a “manifestation” of
international comity. See In Re: Vitamin C, 8 F.4th at 162 n.44; William S. Dodge, International
Comity in American Law, 115 Colum. L. Rev. 2071, 2092 (2015). But see W.S. Kirkpatrick &
Co., 493 U.S. at 404 (“This Court’s description of the jurisprudential foundation for the act of
state doctrine has undergone some evolution over the years.”).
70

vague doctrine of abstention but a ‘principle of decision binding on federal and
state courts alike.’” W.S. Kirkpatrick & Co., 493 U.S. at 406 (quoting Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964)) (emphasis in W.S.
Kirkpatrick & Co.). “Act of state issues only arise when a court must decide—that
is, when the outcome of the case turns upon—the effect of official action by a
foreign sovereign.” Id. Here, I am not asked to decide the legality of the operation
of Peru’s state-owned entities or any Peruvian law. Even if adjudication of
plaintiffs’ claims requires me to evaluate whether Peru’s state-owned entities
caused some of plaintiffs’ injuries or the efficacy of Peru’s environmental
protections, the legality of those actions is not a question that must be decided.
“Accordingly, ‘the factual predicate for application of the act of state doctrine does
not exist’ here because ‘[n]othing in the present suit requires the Court to declare
invalid, and thus ineffective as a rule of decision for the courts of this country the
official act of a foreign sovereign.’” In Re: Vitamin C, 8 F.4th at 162 n.44 (quoting
W.S. Kirkpatrick & Co., 493 U.S. at 405) (alteration in In Re: Vitamin C).
D.

Foreign Affairs Doctrine
Finally, defendants argue that plaintiffs’ claims must be dismissed under the

foreign affairs doctrine. Under that doctrine, state laws that intrude into the federal
government’s exclusive authority over foreign affairs are preempted. See United
States v. Pink, 315 U.S. 203, 233 (1942) (“Power over external affairs is not shared
71

by the States; it is vested in the national government exclusively.”); Zschernig v.
Miller, 389 U.S. 429, 432 (1968) (Oregon statute was “an intrusion by the State
into the field of foreign affairs which the Constitution entrusts to the President and
the Congress.”).
Federal courts generally understand the foreign affairs doctrine to preempt
state laws through either conflict preemption or field preemption. See Mayor &
City Council of Balt. v. BP P.L.C., 31 F.4th 178, 213 (4th Cir. 2022); Movsesian v.
Victoria Versicherung AG, 670 F.3d 1067, 1071-72 (9th Cir. 2012); see generally
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 419-20 (2003). Under conflict
preemption, state law must yield when there is a “sufficiently clear conflict” with
federal foreign policy. Garamendi, 539 U.S. at 420. Courts consider “the strength
of the state interest, judged by standards of traditional practice, when deciding how
serious a conflict must be shown before declaring the state law preempted.” Id.
But even in the absence of an express policy, under field preemption, a state law is
preempted when a state “attempts to ‘establish its own foreign policy’ . . . [or] ‘has
more than some incidental or indirect effect in foreign countries.’” Mayor & City
Council of Balt., 31 F.4th at 213 (quoting Zschernig, 389 U.S. at 441, 434). See
also Movsesian, 670 F.3d at 1072 (citing Deutsch v. Turner Corp., 324 F.3d 692,
709 n.6 (9th Cir. 2003)). A state law has more than some incidental effect in
foreign countries when it “disturb[s] foreign relations,” Zschernig, 389 U.S. at 441,
72

or has “great potential for disruption.” Id. at 435.
Defendants argue that plaintiffs’ claims would “undoubtedly conflict” with
the express foreign policy laid out in the TPA for the same reasons they argue that
maintaining jurisdiction conflicts with the TPA, that is, because plaintiffs’ claims
would undermine Peru’s “sovereign right to ‘establish its own levels of domestic
environmental protection and environmental development priorities,’” and would
call into question the TPA’s broader policies of respecting Peruvian regulatory and
legal systems and allowing United States companies to do business in Peru under
Peruvian law. (ECF 1231 at hdr. pp. 44-45 (quoting TPA art. 18.1).)
But this argument fails for the same reasons described above. Though the
TPA recognizes Peru’s sovereign ability to set its own environmental standards
and priorities, plaintiffs’ claims do not hinder Peru’s ability to do so. To the extent
plaintiffs’ claims are directed to defendants’ conduct in the United States that
touches upon activity in Peru, there is no conflict of laws on plaintiffs’ asserted
claims. And to the extent Peru’s relevant laws and regulations may provide a
defense to plaintiffs’ claims, e.g., Article 1971, this potential for a defense under
Peruvian law and defendants’ ability to invoke it here furthers Peru’s policies and
does not thwart them. Accordingly, the TPA’s general policies of respecting
Peru’s legal systems and allowing United States companies to conduct business in
Peru under Peruvian law are not frustrated by litigating plaintiffs’ claims here.
73

In any event, these ostensible conflicts are insufficiently clear to preempt a
state law in “an area of ‘traditional competence’ for state regulation—tort law,”
Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1187 (C.D. Cal.
2005), which seeks to hold Missouri and New York corporate citizens accountable
for the harm they cause to others. Ning Xianhua v. Oath Holdings, Inc., 536 F.
Supp. 3d 535, 558 (N.D. Cal. 2021) (rejecting preemption argument in part
because of California’s “strong interest in the conduct of its corporations,” and
because the decision to violate California law allegedly occurred from defendants’
California headquarters).
To the extent defendants’ argument can be read to assert that plaintiffs’
claims are subject to field preemption, this contention fails as well. Missouri has
not attempted to “establish its own foreign policy” through its negligence law.
And defendants have not argued, let alone shown, that plaintiffs’ claims will
“disturb foreign relations” or have “great potential for disruption.” This litigation
has been pending in courts in the United States for more than 15 years; such
disruption would have become apparent by now. I will accordingly deny
defendants’ motion to dismiss on this basis as well.
VII. Certification for Interlocutory Appeal
Under 28 U.S.C. § 1292(b), a district judge may certify an otherwise
unappealable order for immediate appeal if the order “involves a controlling
74

question of law as to which there is substantial ground for difference of opinion”
and “an immediate appeal from the order may materially advance the ultimate
termination of the litigation[.]” I find that these criteria are met in this case.
I recognize that interlocutory appeals are discouraged and should be
authorized only sparingly and in extraordinary cases. Union Cty., Iowa v. Piper
Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008). In my more than 32 years as a
judge in the district court, I have considered several requests to certify orders for
interlocutory appeal under § 1292(b). I recall granting only two of those requests,
and on both occasions the Eighth Circuit granted appellants permission to appeal
the orders. See Bolon v. Rolla Pub. Sch., 917 F. Supp. 1423, 1434 (E.D. Mo.
1996), permission to appeal granted in part, Misc. Case No. 96-8031 (8th Cir. Oct.
1, 1996) (order); Munroe v. Cont’l W. Ins. Co., No. 4:10CV1942 CDP, 2012 WL
6553952, at *1 (E.D. Mo. Dec. 14, 2012), permission to appeal granted, Misc.
Case No. 12-8031 (8th Cir. Feb. 11, 2013) (order). The issues addressed in this
Order represent another rare and extraordinary circumstance where interlocutory
review by the appellate court is warranted.
Central to the Court’s analysis on defendants’ alternative motion to dismiss
are controlling questions of law dispositive of the issues in this case: First,
whether under transnational doctrines, including the doctrine of prospective
adjudicatory comity, it is appropriate to adjudicate in this forum a foreign citizen’s
75

claims that tortious conduct allegedly committed in the United States by a United
States citizen caused them to sustain personal injury wholly within the borders of a
foreign sovereign.51 Key to this issue is what role a “true conflict,” the presence or
absence of a parallel foreign proceeding, and the foreign policy of the United
States play in application of the doctrines. Second, whether the TPA renders the
claims nonjusticiable in this forum given that the claims are intertwined with
Peru’s environmental laws and/or legal duties under Peru’s laws relating to the
environment or environmental conditions affecting human health.
There are also substantial grounds for difference of opinion. Substantial
grounds exist when
(1) the question is difficult, novel and either a question on which there
is little precedent or one whose correct resolution is not substantially
guided by previous decisions; (2) the question is one of first
impression; (3) a difference of opinion exists within the controlling
circuit; or (4) the circuits are split on the question.
Alternative Med. & Pharmacy, Inc. v. Express Scripts, Inc., No. 4:14 CV 1469

51

See, e.g., Movsesian, 670 F.3d at 1071 (§ 1292(b) interlocutory appeal on question of
application of foreign affairs doctrine); Figueiredo Ferraz E Engenharia de Projeto Ltda. v.
Republic of Peru, 665 F.3d 384 (2d Cir. 2011) (§ 1292(b) interlocutory appeal on international
comity questions); Philipp v. Fed. Republic of Ger., 253 F. Supp. 3d 84, 87 (D.D.C. 2017)
(foreign policy preemption questions and issues of international comity appropriate for
interlocutory appeal), permission to appeal granted, Misc. Case No. 17-8002 (D.C. Cir. Aug. 1,
2017) (order) (per curiam); Crystallex Int'l Corp. v. Petróleos De Venezuela, S.A., No. CV 151082-LPS, 2016 WL 7440471, at *2 (D. Del. Dec. 27, 2016) (international comity implications
warrant immediate appeal), permission to appeal granted, Misc. Case No. 17-8001 (3d Cir. Jan.
25, 2017) (order).
76

CDP, 2016 WL 827934, at *1 (E.D. Mo. Mar. 3, 2016) (internal quotation marks
and citations omitted). The difference of opinion must arise out of genuine doubt
as to the correct legal standard. Id. As described in this Memorandum and Order,
genuine doubt exists as to the correct legal standard to be applied to each question.
For purposes of this Order, I resolved the questions based on my interpretation of
the law, but there is doubt as to which law applies and indeed as to what the law
actually is. As to international comity and transnational doctrines, the correct
resolution of the difficult and novel questions is not substantially guided by
previous decisions, the Eighth Circuit has not yet addressed this area of the law,
and the various circuits that have weighed in are split in their resolution with
differing definitions and applications of the controlling law. The TPA question is
likewise difficult and novel, has little if any precedent, and is one of first
impression in this circuit.
Moreover, conclusively resolving the questions would greatly advance the
termination of this litigation. If, as defendants contend, transnational doctrines
require me to abstain from exercising jurisdiction over this action or the TPA
precludes me from exercising jurisdiction, this litigation will be over – at least in
courts of the United States. But if, as plaintiffs contend and as I have found,
neither the asserted abstention doctrines nor the TPA requires me to dismiss this
case, then I will proceed to determine the substantive motions for summary
77

judgment on the merits of plaintiffs’ claims, and the parties and I will prepare for
hybrid jury and non-jury trials as well as anticipated litigation over appropriate
remedies. And discovery will continue – and in most cases will commence – on
the more than 1400 plaintiffs who are not yet part of a Discovery Cohort. United
States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per curiam) (“The
legislative history of subsection (b) of section 1292 . . . indicates that it was to be
used only in extraordinary cases where decision of an interlocutory appeal might
avoid protracted and expensive litigation.”), cited approvingly in Union Cty., 525
F.3d at 646; see also Alternative Med. & Pharmacy, 2016 WL 827934, at *1
(same). I understand that the parties have already put in great time and expense,
but without resolution of these novel, difficult, and case-dispositive legal
questions, this litigation will go on years into the future at even greater expense –
possibly unnecessarily so.
Finally, this is an exceptional case. As described above, it contains novel
controlling issues of law, is a consolidation of 40 lawsuits, and involves the claims
of more than 1420 plaintiffs of whom only 16 have had discovery completed on
their specific claims. See Union Cty., 525 F.3d at 647 (for § 1292(b) analysis, a
case that is a consolidation of “approximately 40 cases” is “extraordinary”); United
States Rubber Co., 359 F.2d at 785 (§ 1292(b) reserved for extraordinary cases
where decision on appeal may avoid protracted and expensive litigation). Under
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no circumstance can it be said that this is a typical case with typical questions not
worthy of consideration for interlocutory appeal. Cf. Union Cty., 525 F.3d at 647.
For these reasons, I will certify this Order under 28 U.S.C. § 1292(b) for
immediate appeal.52 Any party wishing to appeal has ten days from the date of this
Order within which to apply to the Eighth Circuit for permission to appeal.

Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion for Application of
Peruvian Law and Summary Judgment Under Peruvian Law, or, Alternatively,
Dismissal Under Transnational Law Doctrines [1230] is GRANTED in part and
DENIED in part as follows:
 Defendants’ motion for application of Peruvian law is granted only as to
their “safe harbor” defense under Article 1971 of Peru’s Civil Code. In all
other respects, the motion for application of Peruvian law is denied.
 Defendants’ motion for summary judgment under Peruvian law is denied.
 Defendants’ alternative motion for dismissal under transnational doctrines is
denied.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1292(b), this
Memorandum and Order is certified for immediate appeal. Any party wishing to
52

I am aware that because § 1292 permits interlocutory appeals from an “order,” the Eighth
Circuit may address “any issue fairly included within the certified order,” including an issue not
particularly certified. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).
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take an appeal must apply to the Eighth Circuit Court of Appeals within ten (10)
days of the date of this Order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 20th day of January, 2023.

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