A. v. Doe Run Resources Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

A.O.A., et al., )

)

Plaintiffs, )

)

v. ) Case No. 4:11 CV 44 CDP

)

IRA L. RENNERT, et al., )

)

Defendants. )

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

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.

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

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

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.

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

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.

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.

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.

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

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.

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;

7 On the evidence and information before the Court, Zelms continues to reside in Missouri.

 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;

 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

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.

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

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

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 choice-

of-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.

(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 most-

significant-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

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.

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.

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-mn-

2873-RMG, 2022 WL 4291357 (D.S.C. Sept. 16, 2022).

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.

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

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).

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.”)

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.

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 836-

40, 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.)

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.

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.

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.

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

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.

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

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.

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. 272-

74.) 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 640-

77.)

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 1279-

38.)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.)

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.

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. 40-

41.) Defendants do not address plaintiffs’ theory as to any other alleged agent-

actor, 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

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

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.

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

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

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).

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).

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. CL-

Alexanders 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,

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 choice-

of-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

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

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.

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

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

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

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

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

 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 – 640-

36 (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 environmental-

related 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.”).

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),

 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. 15-

16, 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.

 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.

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.

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[.]

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

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.)

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,

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.

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.)

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’

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

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

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.”).

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

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,

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.

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

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

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 15-

1082-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).

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

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

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).

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.