In a significant forum non ruling involving a multi-national cast of characters all swirling around Bernie Madoff, Judge Huck has sent the Madoff/Banco Santander litigation off to the Emerald Isle with a traditional (if somewhat off color) Irish toast:
Here’s to our wives and girlfriends:
May they never meet!
Oh no, that’s definitely not it! Let me try again:
Here’s to a long life and a merry one.
A quick death and an easy one.
A pretty girl and an honest one.
A cold pint– and another one!
Sheesh, I keep messing this up — way off. One more time:
Since the Court lacks personal jurisdiction over half (and apparently some of the most important) of the Defendants in this action, including the Bahamian funds’ auditor, custodian, administrator, and a director, it makes little sense to try an expensive and time-consuming case in Florida while another court, in a virtually duplicative proceeding over four thousand miles away, potentially adjudicates the same legal and factual issues. The Plaintiffs do not agree that the inability to try this entire case in the United States weighs in favor of trying all claims together in another venue. The Court, however, considers this a textbook example of a private convenience factor favoring forum non conveniens dismissal. Choice of law considerations also favor trying this case in Ireland. In their motions to dismiss, many of the Defendants argue that the Plaintiffs’ claims are barred by Irish and Bahamian law, which, under applicable choice of law rules, appear to govern many of the Plaintiffs’ claims. The Court also notes the possibility that the laws of other nations, such as Switzerland or Spain, may also be applicable to some aspects of the transactions at issue. Even though the relevant transactions took place between foreign parties outside the United States, the Plaintiffs insist the New York common law—and not the law of any other jurisdiction—governs all of their common law claims. Despite the fact that the Supreme Court has expressly declined to extend federal securities law to the claims at issue and the distinct possibility that other nations may have laws and regulations that govern the securities transactions here (not to mention the near certainty that foreign law governs most, if not all, of the Plaintiffs’ common law claims), the Plaintiffs contend that a Florida court should apply federal securities law and New York common law in adjudicating claims between, for instance, a Spanish investor and a Spanish bank, a British Virgin Islands company and an Irish auditor, or a Mexican investor and a Swiss investment manager, none of whom contracted to perform any services for the Plaintiffs in the United States.
The Court finds that it is not appropriate to try to force a square peg (claims by foreign parties, governed by foreign law and concerning foreign securities) into a round hole (an American court). Because Ireland offers an available and more convenient alternative for trying this case on the merits, it should be tried there. As the Eleventh Circuit has explained, forum non conveniens is a favored and workable intellectual tool that, by “separating out for hearing only those cases where contacts with the American forum predominate,” offers a reasonable solution to “vexing jurisdictional” and “complicated international choice of law questions increasingly presented to district courts.” Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1519 n.10 (11th Cir. 1985).
May the road rise to meet you (I’m paraphrasing….).