[00:00:04] Speaker 00: Case number 18-7193 at L. Danny Davis, air crash over the southern Indian Ocean on March 8, 2014. [00:00:12] Speaker 00: Elizabeth Smith as personal representative of the spouses, next to Ken, other statutory beneficiaries, and the estate of the MH370 passenger. [00:00:22] Speaker ?: See complaint for statutory beneficiaries. [00:00:28] Speaker 06: Good morning. [00:00:51] Speaker 06: Good morning, Your Honor. [00:00:52] Speaker 06: May it please the Court, Stephen Rosenthal on behalf of the Gaspard and Weisner plaintiffs, otherwise known as the Potter's Group, and the Smith plaintiffs, also known as the Motley Rice Group. [00:01:01] Speaker 06: The mystery of the disappearance of Flight MH370 was unprecedented in aviation history, and that's quoting from the official ICAO NX13 report. [00:01:12] Speaker 06: Those unprecedented circumstances give rise in the law to an equally exceptional constellation of variables applicable to the forum non-convenience analysis. [00:01:23] Speaker 06: You have claims against the U.S. [00:01:25] Speaker 06: manufacturer of the United States-made aircraft, Boeing, that was lost at sea where virtually no useful wreckage was found for piecing together what happened in the accident. [00:01:34] Speaker 06: filed in the only form in which jurisdiction was almost certain to be obtained against the manufacturer, or in this case, certain. [00:01:42] Speaker 03: But now Boeing has stipulated to accept and be amenable to the jurisdiction of the Malaysian courts. [00:01:48] Speaker 06: Correct. [00:01:49] Speaker 06: And obviously, that was not knowable at the time that the actions were filed. [00:01:53] Speaker 06: And the Malaysian courts, where Boeing has sought to litigate these cases, is a location where the crash did not happen. [00:02:02] Speaker 06: It's the country where there's no overwhelming majority or even plurality of the passengers who are from and that the plane was not manufactured in. [00:02:10] Speaker 06: So those factors are very different from the vast majority, in fact, every international aviation case that we're aware of. [00:02:17] Speaker 06: In this case, the district court clearly abused its discretion by violating several different components of this circuit's law. [00:02:24] Speaker 06: And I'd like to, in the limited time that I have, rest on the briefs of the various parties and try to focus the court on two or possibly three issues, if time permits. [00:02:31] Speaker 06: And Ms. [00:02:31] Speaker 06: Hubbard may be speaking to one of those. [00:02:33] Speaker 06: Those are Sinechem, Shi, and Rezipsa. [00:02:37] Speaker 06: In Sinechem, the Supreme Court's precedent, that says that the court must presume the existence of the jurisdiction, and then it can pass on to the FNC analysis. [00:02:45] Speaker 06: Here, the district court [00:02:47] Speaker 06: made that apparent presumption, but then actually factored the absence of jurisdiction against keeping the case. [00:02:54] Speaker 06: And that's a violation of the sine chem principle. [00:02:57] Speaker 06: Secondly, with respect to she, just in terms of an overall lay of the land, this court, which the district judge did not have the benefit of at the time she ruled, clarified that there's a sliding scale of deference applied to the plaintiff's choice of forum, and that [00:03:13] Speaker 06: sliding scale is focused upon the degree to which the plaintiff's choice of forum indicates a legitimate choice as opposed to some type of manipulation designed to vex or harass the defendant. [00:03:24] Speaker 06: And in this case, there is strong evidence, because of the existence of jurisdiction over Boeing here, that the plaintiff's choice was legitimate. [00:03:31] Speaker 06: With respect to the foreign plaintiffs, whom I'm addressing specifically [00:03:35] Speaker 06: The district court's opinion makes no reference whatsoever to the application of that standard. [00:03:40] Speaker 06: Even though it was referenced in the standards of the opinion, she did not apply it to the foreign plaintiffs. [00:03:46] Speaker 06: And one is left with the unfortunate conclusion that there was no deference given to those plaintiffs' foreign choice at all. [00:03:51] Speaker 06: Those two errors of law compel the court to reverse and remand at a minimum for re-evaluation of these factors in view of the new law in she and the correct application of sign account. [00:04:03] Speaker 06: And the last major point is this Rez Ipsa point, which is that because of the unique features of this accident where really no real evidence was found to allow the international committee to reconstruct what was most likely the cause, the plaintiffs are candidly forced to rely upon the Rez Ipsa loquitur fallback cause of action. [00:04:24] Speaker 06: And as a result of that, that places the burden and the onus on us to come forward and at least prove that the other potential causes of the accident were less likely than the one that we submit was the cause, which was a cascade of electrical failures that are pointing to Boeing as the responsible party. [00:04:43] Speaker 06: By not taking into account the fact that it's a theory that the plaintiffs are primarily treading upon, flips the burden of proof, the district judge was placing the onus more on the defense and the fact that they would need this evidence regarding other potential causes. [00:04:59] Speaker 06: But in fact, it is we who really need it. [00:05:01] Speaker 06: It's a very different circumstance than most cases. [00:05:04] Speaker 03: I don't understand that argument. [00:05:09] Speaker 03: Just because you have the burden of proof doesn't mean that the party, that the defendants don't need the evidence. [00:05:22] Speaker 06: was a reason why the location of the evidence prong of the private interest test tipped in favor of dismissal. [00:05:28] Speaker 06: And we submit that that's the wrong way to look at it. [00:05:31] Speaker 06: Clearly, the defendants wish to point to other things. [00:05:34] Speaker 06: They have not articulated which of those different theories, by the way, they believe to be the most likely one to be at issue in the case, which is its own problem. [00:05:42] Speaker 06: But the district court said it tipped in favor of dismissal. [00:05:46] Speaker 06: But in our view, [00:05:49] Speaker 06: any difficulties in accessing evidence in Malaysia are more a burden on the plaintiff in this case. [00:05:55] Speaker 03: Because if we don't meet our burden of proof, the defendant... Just because they're a burden, more of a burden on you doesn't mean that they're not a burden on the defendants and not a burden on the court and not a reason to transfer the case to Malaysia where the evidence would be more available. [00:06:10] Speaker 06: I think that the point I'm trying to make simply is that the district court said that the plaintiff's theory is something that weighs in favor of tipping it toward dismissal. [00:06:18] Speaker 06: And I'm not looking at the entirety of the private interest factors right now, which I think the court judge may be adverting to. [00:06:23] Speaker 06: But with respect to the theory of the case, that actually tips. [00:06:27] Speaker 06: If it tips in favor of the plaintiff's theory, it at least is in equipoise and should not have been weighed in favor of dismissal. [00:06:32] Speaker 06: But I think that the more substantial points that are really weighty that truly independently compel reversal are the sine chem problem [00:06:38] Speaker 06: and the non-application of the sliding scale of deference in she, which, again, the district court in deference to her did not have the benefit of at the time she ruled. [00:06:47] Speaker 06: But the sinecum problem is a very material problem here, because it clearly says you must presume the existence of jurisdiction. [00:06:55] Speaker 06: And the district judge, despite having nearly 100 pages of briefing and oral argument on the subject of whether or not there's a waiver to the FSIA or not through the foreign carrier permit, [00:07:04] Speaker 06: And there were very substantial issues presented on that to the point where the defendants conceded that they were thorny and complex issues. [00:07:12] Speaker 06: Decided, as was her right, not to rule on those issues. [00:07:15] Speaker 06: But what she should not have done is then put one arm behind our back and hold it against us, which is to say, with respect to the access to evidence held by MAS and MAV, the Malaysian carrier, [00:07:27] Speaker 06: that that would not be accessible because they might not be subject to jurisdiction. [00:07:31] Speaker 06: Well, she's got to presume that they're accessible. [00:07:33] Speaker 02: Are those jurisdictional issues forfeited, though, because they weren't raised in the opening briefs? [00:07:37] Speaker 06: No, I don't think so. [00:07:38] Speaker 06: In fact, the defendant actually asked the court. [00:07:41] Speaker 02: Due to word limits, I think it said that they weren't being briefed. [00:07:43] Speaker 06: Well, here's the thing. [00:07:45] Speaker 06: The district judge denied the motions to dismiss on a jurisdiction. [00:07:51] Speaker 06: So it certainly wasn't incumbent upon the appellants to appeal those rulings in their favor. [00:07:57] Speaker 06: The defendants were the ones who had to raise those issues in their brief at a minimum, even though they had invited the district court not to rule upon them. [00:08:04] Speaker 06: They did not properly raise those issues in their brief. [00:08:06] Speaker 06: So to the extent the court's question is, you know, were they forfeited? [00:08:10] Speaker 06: They were forfeited by the defense, and we have argued that in our reply brief. [00:08:14] Speaker 06: I see I'm into my rebuttal time, so I think having touched on these major issues, I'll reserve time and see them remitted to Ms. [00:08:20] Speaker 06: Hubbard for the primary argument. [00:08:22] Speaker 03: Thank you. [00:08:23] Speaker 06: Thank you. [00:08:35] Speaker 01: Good morning, Your Honors. [00:08:36] Speaker 01: May it please the Court. [00:08:37] Speaker 01: My name is Caitlin Hubbard, and I represent Mr. Thomas Wood, the brother of MH370 passenger Philip Wood. [00:08:43] Speaker 01: As Mr. Rosenthal explained, the District Court clearly abused his discretion in dismissing the consolidated actions for foreign nonconvenience. [00:08:50] Speaker 01: This especially is true with respect to Mr. Wood's actions and those of the other American plaintiffs in this case. [00:08:55] Speaker 01: The Court knows Mr. Wood is an American citizen. [00:08:58] Speaker 01: He's suing on behalf of an American decedent against in part a major American manufacturer. [00:09:03] Speaker 01: His interests in litigating in the United States are truly as legitimate as they come, and the law, especially this circuit's precedent, requires that those interests be honored. [00:09:13] Speaker 01: And you know from our briefing that we believe the district court failed to accord Mr. Wood's actions the appropriate deference, and I don't wish to belabor that point. [00:09:20] Speaker 01: Instead, I'd like to dedicate my time to a separate error touched on briefly by Mr. Rosenfall, which is really the district court's treatment of this case, as though it were like any other standard airplane crash litigation that has come before the federal courts. [00:09:34] Speaker 01: The district court dismissed Mr. Wood's action, along with the other consolidated actions, on the unsupported notion that we are going to have a standard causation trial requiring swaths of foreign evidence. [00:09:46] Speaker 01: It cited Piper, Payne, Clarides, cases in which the plans were found and significant foreign interests were extinct, or, for instance, the jurisdictional issues were known and resolved. [00:09:59] Speaker 01: In this case, they were not. [00:10:00] Speaker 03: So how is this case really that different than Piper? [00:10:04] Speaker 01: Well, Piper number one had a true jurisdictional make way in which you had a legal secretary that was representing all foreign families and there were all foreign decedents on the plane. [00:10:14] Speaker 01: The plane also crashed in Scotland and was even stored in Scotland. [00:10:18] Speaker 01: There was a reference in Piper to the fact that there might be a need to examine the plane. [00:10:23] Speaker 01: There was evidence in that case truly and things to still be unearthed to determine a direct product defect or causation type issue. [00:10:31] Speaker 01: The carrier also was foreign. [00:10:33] Speaker 01: We don't have that constellation of factors in this case. [00:10:35] Speaker 03: Well, you're assuming, I mean, your theory is that there was a product defect here. [00:10:39] Speaker 03: But I mean, there were humans flying the plane. [00:10:42] Speaker 03: And there is significant evidence of human error. [00:10:45] Speaker 03: And to examine that, you need to examine witnesses, the relatives of those humans and people who had interacted with them. [00:10:55] Speaker 03: They're all in Malaysia. [00:10:56] Speaker 01: Your Honor, I would disagree that there's significant evidence of any human error. [00:11:00] Speaker 01: There's a significant lack of evidence altogether. [00:11:03] Speaker 01: It's striking. [00:11:03] Speaker 03: Wasn't that the preliminary finding? [00:11:06] Speaker 01: There was preliminary finding of significant lack of evidence. [00:11:09] Speaker 01: There was no finding whatsoever as to a particular cause. [00:11:12] Speaker 01: I think that's a really important point to make. [00:11:14] Speaker 01: It's striking to me that in this case plaintiffs are candidly proceeding in these actions on a recipse of theory, and yet we have MAB and MAS coming before the court and saying, well, although we've withdrawn this Article 21 excess damages. [00:11:29] Speaker 05: I thought the report said it was likely that the change of course was a result of manual [00:11:36] Speaker 05: rather than an automatic pilot. [00:11:38] Speaker 01: Respectfully, Your Honor, the report came to no conclusion. [00:11:41] Speaker 01: It said that due to the significant lack of evidence, it could neither confirm nor deny any possible factor. [00:11:47] Speaker 03: We're talking about the ultimate cause. [00:11:51] Speaker 05: I think Judge Randolph was talking about... I was talking about the change of course and also the disabling of the communications on the plane was likely done manually. [00:12:02] Speaker 01: Your Honor, I think at most it's a probability. [00:12:04] Speaker 01: That's really what Recepts is about, though. [00:12:06] Speaker 01: That would be for a jury to determine, for us to put on evidence. [00:12:09] Speaker 01: In the Annex 13 report, by the way, most of this evidence is publicly known. [00:12:13] Speaker 01: Even the Air France Court in a footnote said, look, I'm not going to weigh evidence one way or the other that's publicly known. [00:12:19] Speaker 01: And the fact is, [00:12:20] Speaker 01: All of these facts are largely undisputed. [00:12:22] Speaker 01: They're in the Annex 13 report. [00:12:25] Speaker 01: And under this court's precedent, an Henry Korean Airlines disaster, that is admissible. [00:12:29] Speaker 01: We're going to have experts in this case come in and put on a recipe theory. [00:12:34] Speaker 01: And I see my time is almost done, so I would like to make just two preliminary point – two final points. [00:12:39] Speaker 01: And that is with respect to M.A.S. [00:12:41] Speaker 01: and M.A.V., the notion that they can go and withdraw an Article 21 excess damages defense in Australia and then they can never – and the record shows that they have not pointed to any other culpable actor in Malaysia, and yet they can come into a U.S. [00:12:55] Speaker 01: court solely to procure a dismissal and say, you know what, we might revive that. [00:12:58] Speaker 01: Even though the plaintiffs are proceeding on RCEPSA, we can point to someone else as solely responsible. [00:13:05] Speaker 01: We respectfully submit that granting deference to that bears no relation to an analysis that under this circuit's precedent requires focus on the issues likely to be tried and genuinely in dispute. [00:13:16] Speaker 03: How would you obtain jurisdiction over the MAB given the FSIA? [00:13:22] Speaker 01: Well, respectfully, Mr. Wood's actions have the strongest arguments for jurisdiction that was conceded even below by appellees. [00:13:30] Speaker 01: Under Sinecom, those are presumed in our favor. [00:13:32] Speaker 01: And to another point, we don't believe that that's waived by any means because we're appealing the district court's forum nonconvenience analysis. [00:13:39] Speaker 01: That was error under Sinecom. [00:13:40] Speaker 01: We didn't have a duty to relitigate all of those issues that were set forth in 40 and 50 page briefs in the district court. [00:13:47] Speaker 01: So with respect to Mr. Wood and the FSAIA to directly answer your question, Montreal Convention jurisdiction, with respect to Mr. Wood, is clear. [00:13:55] Speaker 01: He's a resident. [00:13:57] Speaker 01: And the Air France case directly supports that decision, so it's misleading for athletes to say that clearly there's no jurisdiction. [00:14:03] Speaker 03: But you're seeking to prosecute beyond the Montreal Convention, right? [00:14:08] Speaker 01: I'm sorry, Your Honor, help me understand your question. [00:14:10] Speaker 03: You're seeking to prosecute tort claims. [00:14:12] Speaker 01: Tort claims against Boeing, RACPSA. [00:14:15] Speaker 01: Yes, Your Honor. [00:14:16] Speaker 03: but not against M-A-B. [00:14:18] Speaker 01: M-A-B and M-A-S are purely Montreal Convention claims. [00:14:22] Speaker 01: And with that, we would respectfully ask that the court reverse. [00:14:25] Speaker 01: Thank you. [00:14:26] Speaker 03: Thank you. [00:14:42] Speaker 04: I'm Eric Wolf, appearing on behalf of all the defendants. [00:14:48] Speaker 04: This was a terrible tragedy. [00:14:50] Speaker 04: It was unprecedented in a lot of ways, and it was the greatest aviation mystery, really, of all time. [00:15:00] Speaker 04: treated it very carefully, and applied subtle precedent very carefully, allowed discovery on foreign non-convenience, had massive briefing. [00:15:10] Speaker 04: We held a lengthy hearing here in December of 2017, and the District Court wrote a very careful, thorough opinion that absolutely does not abuse its discretion in any respect. [00:15:22] Speaker 04: And I will just go through some of the items that were just discussed. [00:15:26] Speaker 04: I'll start with facts about the accident, and then I'll talk about precedent, and then I'll talk about the Foreign Sovereign Immunities Act issues. [00:15:35] Speaker 04: On the accident, I heard things that [00:15:38] Speaker 04: are just incorrect, has cited in the district court's opinion and in the final report from the Malaysian investigation, the official investigation. [00:15:48] Speaker 04: So it is true in the report that they found it was more likely that a human being made that sharp left turn. [00:15:56] Speaker 04: That's right in the report and that's cited in the district court's opinion. [00:16:01] Speaker 04: And the district court, to its credit, [00:16:03] Speaker 04: We held a lengthy hearing and then the district court waited for that final report to come out so that it would have the benefit of that. [00:16:11] Speaker 04: And so the district court was able to put that into the opinion. [00:16:16] Speaker 04: So that big left turn that's made was manual. [00:16:20] Speaker 04: The report actually goes through. [00:16:22] Speaker 04: It's kind of interesting. [00:16:25] Speaker 04: They tried to get autopilot to do that turn with the speed and the angle that it was done. [00:16:30] Speaker 04: They know the speed and the angle of the turn, and autopilot can't do the turn like that. [00:16:35] Speaker 04: So they know that a human being did that. [00:16:37] Speaker 04: They also said it was more likely, and just before that turn, the communication system is turned off. [00:16:44] Speaker 04: Not entirely because there's still satellite communication, but the communication system is turned off. [00:16:50] Speaker 04: And this is also just as the aircraft is leaving Malaysian airspace. [00:16:55] Speaker 05: Does the pilot have control over the oxygen supply to the cabin? [00:17:00] Speaker 04: Yes, the pilot would have control over that. [00:17:02] Speaker 04: And there's been speculation about, assume somebody takes control of the plane, then what do you do? [00:17:11] Speaker 04: The pilot could put on his own oxygen [00:17:14] Speaker 04: depressurized the cabin, and that would render everybody unconscious. [00:17:18] Speaker 04: That's a scenario that could have occurred. [00:17:22] Speaker 02: It has been the plane flight for many hours. [00:17:24] Speaker 02: Doesn't that all go to the merits? [00:17:25] Speaker 02: So talking about jurisdiction here, we have, at least in the case of Mr. Wood, we have an American plaintiff seeking wrongful death claims for an American decedent against an American company. [00:17:40] Speaker 02: I mean, why shouldn't we defer to that really strong interest? [00:17:45] Speaker 04: For several reasons, and it's not just an American company. [00:17:48] Speaker 04: You also have the other defendants who are not American companies and an individual. [00:17:55] Speaker 04: First of all, on the liability evidence issues. [00:17:59] Speaker 04: Mr. Wood is no different than any of the other plaintiffs. [00:18:02] Speaker 04: So Mr. Wood has a race epsilon quitter theory, and under that theory, he says he can rule out other causes. [00:18:10] Speaker 04: So then he needs to rule out this potential cause, among others, that is more likely, which is that a human being interfered, as opposed to some defect in the airplane. [00:18:20] Speaker 04: So all those things would be ruled out with Malaysian evidence. [00:18:24] Speaker 04: And in fact, evidence from Boeing has not figured it all in any of this. [00:18:29] Speaker 04: So they're not pointing to some aspect of the plane that, oh, we need to go to the state of Washington and learn about that. [00:18:37] Speaker 04: That's not part of the background here. [00:18:40] Speaker 04: Everything's in Malaysia. [00:18:41] Speaker 04: And then it's not just control of the airplane. [00:18:44] Speaker 04: You also have maintenance. [00:18:46] Speaker 04: You also have the final report notes that air traffic control waited over four hours longer than they should have to alert that this plane had deviated from its flight path. [00:18:56] Speaker 04: You have the military seeing it on radar and not reporting it. [00:18:59] Speaker 04: In fact, taking so long to report it that the initial search was in the wrong area. [00:19:03] Speaker 04: It was in the South China Sea, even though the military knew that the plane had turned. [00:19:08] Speaker 04: So every decedent here is currently being represented in other proceedings. [00:19:14] Speaker 04: and a number of them are in Malaysian proceedings. [00:19:17] Speaker 04: And in the Malaysian proceedings, they list out all these other defendants, all these other entities that could hold some responsibility. [00:19:26] Speaker 04: And Boeing's point is that if it's all about Malaysian evidence and if other Malaysian entities are involved, you can't bring any of that evidence [00:19:38] Speaker 04: or any of those entities into a US court proceeding. [00:19:41] Speaker 04: And that is very unfair. [00:19:44] Speaker 04: And it is indistinguishable from Piper and Payne. [00:19:48] Speaker 04: And you asked about Piper. [00:19:52] Speaker 04: And I heard it said that the district court made some error by treating it like any other accident. [00:19:59] Speaker 04: Well, actually, it's much more extreme. [00:20:02] Speaker 04: than those other accidents. [00:20:04] Speaker 04: I mean, pain, this court's opinion of pain, which is, it's a very good opinion. [00:20:09] Speaker 04: It's now, it's from 1980, so it's not the most recent opinion, but it's very well done. [00:20:14] Speaker 04: That was a helicopter crash in the North Sea. [00:20:17] Speaker 04: Relatively small accident when you think of like, the amounts of evidence and the parties and whatnot. [00:20:23] Speaker 04: This case, [00:20:24] Speaker 04: far larger, far more evidence, farther away. [00:20:28] Speaker 04: So if form of non-convenience was correct in Payne, and in Payne you had an American decedent who was working on an oil rig, and you had an American plaintiff, his mother, and this court affirmed the dismissal. [00:20:41] Speaker 04: If that applies in Payne, Payne is still good law. [00:20:45] Speaker 04: Payne is cited multiple times in Piper as good law, including in footnote 23 of Piper, which says that having an American citizen does not automatically mean you can't have forum non-convenience. [00:20:58] Speaker 04: If Payne is still good law, then the district court here could not have abused its discretion. [00:21:04] Speaker 05: Where do matters stand in the parallel proceedings in Malaysia? [00:21:09] Speaker 05: I'm sorry. [00:21:10] Speaker 05: Where do matters stand in the parallel proceedings in Malaysia? [00:21:14] Speaker 04: I don't have a current update, but at the time of the district court's decision, nearly all of the decedents in this proceeding were represented there. [00:21:25] Speaker 04: Some of them, represented by Motley Rice, had sought a stay. [00:21:28] Speaker 04: They wanted the Malaysian court to [00:21:32] Speaker 04: wait for the – for litigation here to determine whether it was going to proceed in the U.S. [00:21:40] Speaker 04: And the Malaysian court denied that. [00:21:42] Speaker 04: So to move forward, there was also a discovery dispute where, or not a dispute, but discovery was propounded. [00:21:50] Speaker 04: And that's the last I know. [00:21:52] Speaker 04: Boeing is not in those cases. [00:21:55] Speaker 04: Boeing has, as was discussed, Boeing has stipulated that it will participate. [00:21:59] Speaker 05: I'm just wondering how that impacts the evidentiary question about access to the evidence. [00:22:05] Speaker 05: If the evidence has already been produced in Malaysia, I take it that [00:22:09] Speaker 05: that both sides will have access to. [00:22:12] Speaker 04: In Malaysia? [00:22:14] Speaker 05: If they have it in Malaysia, they can have it here. [00:22:17] Speaker 05: All you have to do is digitally transfer it. [00:22:21] Speaker 04: I suppose that could be true with certain documents. [00:22:24] Speaker 04: I don't think that would be true with human beings. [00:22:27] Speaker 04: And you have a number of government actors. [00:22:30] Speaker 04: For example, you have [00:22:31] Speaker 04: Malaysian investigators in the civil investigation, then you had a Malaysian police investigation, which went to the pilot's residence and seized material from the pilot's residence, and I don't see any way that things like that are going to come to the United States. [00:22:46] Speaker 04: You have some wreckage, some of it's in Malaysia, some of it's elsewhere. [00:22:51] Speaker 04: Typically, in these accidents, the evidence doesn't travel to an American courtroom. [00:22:58] Speaker 04: I mean, in a lot of accidents, you have the flight data recorder and the cockpit voice recorder, and those things don't travel. [00:23:04] Speaker 04: You might get a transcript. [00:23:08] Speaker 04: But like the Boeing investigators who provide technical analysis on things, they did not receive access to most of the documents in the investigation. [00:23:19] Speaker 04: So I'm not sure that [00:23:20] Speaker 04: what happens in Malaysia can just be transported here, and certainly not the human beings. [00:23:28] Speaker 04: On the Sinochem and Foreign Sovereign Communities Act questions, there's a [00:23:36] Speaker 04: there's a bit of misdirection in how they're being discussed. [00:23:38] Speaker 04: So the first Sovereign Immunities Act, Foreign Sovereign Immunities Act question is can the plaintiffs proceed against the airline or MAB? [00:23:53] Speaker 04: That's kind of the initial Foreign Sovereign Immunities Act question. [00:23:56] Speaker 04: And I don't read the district court's opinion in saying one thing or the other about that. [00:24:01] Speaker 04: But then there's the question of [00:24:03] Speaker 04: Can Boeing suit the airline, which is pretty common in these aviation accidents, which is can you impede usually the pilot or the operator or something like that. [00:24:16] Speaker 04: And on that, there was no argument really that Boeing could impede MAS, because MAS would have sovereign immunity on that. [00:24:27] Speaker 04: It's a national carrier. [00:24:30] Speaker 04: So that's what I read the district court is pointing out about the Foreign Sovereign Immunities Act. [00:24:35] Speaker 04: It's in the discussion about Boeing. [00:24:37] Speaker 05: Do they have immunity in Malaysia as well? [00:24:42] Speaker 04: I mean, they have not put forward immunity in Malaysia. [00:24:46] Speaker 04: So I don't, in terms of a claim from Boeing? [00:24:50] Speaker 04: Yeah. [00:24:51] Speaker 04: Boeing's not there yet. [00:24:52] Speaker 04: I don't know the answer to that, actually, Your Honor. [00:24:55] Speaker 04: But I have proceeded on a sub-trute. [00:24:57] Speaker 05: If they would, then it's a wash. [00:25:01] Speaker 04: I suppose that would be true. [00:25:03] Speaker 04: I have proceeded on the assumption that in a Malaysian proceeding, which we've stipulated we would participate in, and obviously the other defendants have said that they think this case should proceed in Malaysia, that I have proceeded on the assumption that those defenses as raised here would not be raised there. [00:25:28] Speaker 04: The last thing I'll say on the district court's treatment of Mr. Wood, the district court made clear that it was looking in isolation at the different types of plaintiffs. [00:25:44] Speaker 04: Most of the plaintiffs have no connection to the United States at all. [00:25:48] Speaker 04: In fact, a number of the plaintiffs can't even establish Montreal jurisdiction, so they have no way of [00:25:55] Speaker 04: keeping the airline in a proceeding. [00:25:59] Speaker 04: So it's really only two or three potential plaintiffs who can even raise these FSIA issues, but Wood is the most prominent. [00:26:10] Speaker 05: And if form of inconvenience is appropriate for Wood, then... Why would some plaintiffs not have a jurisdiction under the Montreal Treaty? [00:26:19] Speaker 04: So the Motley Rice plaintiffs are mostly Chinese, [00:26:25] Speaker 04: And under Montreal, it's based on domicile or where you purchased your ticket. [00:26:30] Speaker 04: And then if you had a destination in the US or something like that, which of course that's not the case here. [00:26:34] Speaker 04: So they don't have any of that. [00:26:36] Speaker 04: You only have Mr. Wood, who they make the argument that he had a domicile. [00:26:41] Speaker 04: in the United States, even though he had been working for quite a few years overseas. [00:26:46] Speaker 04: So he's using that route. [00:26:49] Speaker 04: And then he also made an argument, which a couple other folks made, that sort of how they purchased their ticket should count. [00:26:56] Speaker 04: So he used an American Express-related portal through IBM. [00:27:02] Speaker 04: And they say, well, that account is having purchased it in the US, even though he actually was in Malaysia. [00:27:06] Speaker 04: when he did it, and then there was another person I think who had used, again they weren't in the US, but they'd used something that got ratted through orbits in Chicago, and they tried to say that that should count under Montreal, so that's what they do there. [00:27:20] Speaker 04: The district court was very careful in looking at each individual. [00:27:24] Speaker 04: And with respect to Mr. Wood, pain is really not distinguishable. [00:27:28] Speaker 04: Judge Breyer wrote a very good opinion in the Air France case that in certain respects is nearly identical. [00:27:36] Speaker 04: It had two Americans. [00:27:38] Speaker 04: They had been working in Brazil. [00:27:40] Speaker 04: They were actually from Texas. [00:27:41] Speaker 04: And he agreed that that case should proceed in France because on liability, [00:27:49] Speaker 04: Mr. Wood is no different than anyone else in terms of where the evidence is going to be. [00:27:54] Speaker 04: Yes, on damages he's going to have more evidence that's in the United States, but that's just private interest. [00:28:01] Speaker 04: When we get to public interest, the Malaysian interest is overwhelming. [00:28:06] Speaker 04: The National Carrier of Malaysia, they led the investigation. [00:28:09] Speaker 04: There were 38 Malaysians on board, took off from Kuala Lumpur. [00:28:13] Speaker 04: Judge Breyer used an analogy that I think is helpful in sort of thinking through public interest, and that is to just make everything American and see how we would feel if litigation were somewhere else. [00:28:26] Speaker 04: So if we had, let's say America had a national carrier, like maybe Amtrak had an airline, and then that national carrier was [00:28:34] Speaker 04: I know. [00:28:37] Speaker 04: That national carrier was taking off from Washington, D.C. [00:28:41] Speaker 04: on an international flight, and just after it leaves U.S. [00:28:44] Speaker 04: airspace, it makes some turn, and then it goes out to sea and crashes. [00:28:50] Speaker 04: and the investigation is led by the United States, there are allegations of potential criminal conduct by the crew that was based in the United States, no one would think that that litigation, that the most public interest in that litigation would be somewhere else. [00:29:04] Speaker 04: I think that would be true even if it were an Airbus airplane. [00:29:06] Speaker 02: Should U.S. [00:29:07] Speaker 02: courts weigh foreign public interests the same as it weighs U.S. [00:29:11] Speaker 02: interests? [00:29:12] Speaker 04: I'm sorry, say that one more time. [00:29:13] Speaker 02: You know, in the public interest analysis, should a U.S. [00:29:16] Speaker 02: court consider the foreign public interests with the same weight that it would give to American public interests? [00:29:23] Speaker 04: So certain foreign interests, yes, and Piper speaks to this. [00:29:26] Speaker 04: So Piper talks about the interest in regulating the manufacturer. [00:29:30] Speaker 04: And it said that the Supreme Court said, we don't think that interest is sufficient. [00:29:37] Speaker 04: And other courts have pointed out that, and this is certainly the case, you know, these airplanes are sold all around the world, operated all around the world. [00:29:45] Speaker 04: Every other country that is flying on these airplanes, is regulating these airplanes, has an interest in their safe [00:29:51] Speaker 04: operation and design. [00:29:54] Speaker 04: And so I think there is an American interest, and that's acknowledged, but the foreign interest in safety is likely to be about the same in most cases. [00:30:05] Speaker 04: There's a little bit of extra interest for Mr. Wood because he's an American. [00:30:08] Speaker 04: The district court acknowledged that. [00:30:09] Speaker 04: But in the overall, in the totality of the public interest, the Malaysian public interest is significantly greater, and there was no abuse of discretion. [00:30:19] Speaker 05: Before you sit down, I have one question that I'm not clear about. [00:30:22] Speaker 05: As I understand it, the plaintiffs say, Mr. Wood as plaintiff, says that the court erred by attributing weight to the fact that Mr. Wood [00:30:35] Speaker 05: before lived in Malaysia and and the plaintiffs say that's a mistake because an error because the real question is whether his relatives representatives whatever are Malaysian and not and they're not they're in the United States was and the district court did say that yeah, what's your answer to I think that [00:30:56] Speaker 04: I think the most reasonable way to deal with that is probably to recognize what they otherwise recognize, which is there is a sliding scale. [00:31:06] Speaker 04: And so to get the most deference, if you were an American living and working in the US and you're represented by, or your state is represented by folks who are in the US, that would be the most. [00:31:19] Speaker 04: And he's a couple ticks below that. [00:31:22] Speaker 04: So because he had been working overseas for a while, [00:31:25] Speaker 04: And one way that I've thought about this is let's say he had a car accident when he was in Malaysia. [00:31:33] Speaker 04: And he claimed that it was an American car and it was defective. [00:31:37] Speaker 04: But there was a police report that said actually somebody else was driving it. [00:31:40] Speaker 04: That there was some involvement of somebody there. [00:31:42] Speaker 04: And that would seem entirely foreign. [00:31:45] Speaker 04: It wouldn't seem unreasonable. [00:31:47] Speaker 04: And that would be a product of the fact that he's living and working overseas. [00:31:51] Speaker 04: So I think the district court was entirely reasonable in not giving the maximum possible deference. [00:31:59] Speaker 04: And then on the representatives, this did occur in Piper where you had a legal secretary who became the administratrix. [00:32:11] Speaker 04: Obviously, that's not the situation with Mr. Wood. [00:32:13] Speaker 04: That was basically the situation with some of the other decedents here. [00:32:17] Speaker 04: But for Mr. Wood, it's different. [00:32:18] Speaker 04: And so you don't take that Piper discount off of it. [00:32:22] Speaker 04: There's more because it is family. [00:32:23] Speaker 04: Thank you. [00:32:29] Speaker 03: All right. [00:32:29] Speaker 03: How much time did Council have left? [00:32:34] Speaker 06: In that two minutes, I'll try to hit six points. [00:32:36] Speaker 06: That may or may not be possible. [00:32:38] Speaker 06: Starting with the last point about the degree of deference to the American family, unquestionable American family, Wood, there should have been no taking off from the top level of deference, because at a minimum, in a motion to dismiss, you've got to defer and decide fair inferences in favor of the non-movement. [00:32:54] Speaker 06: And here there was evidence that – of an intention to return to the United States for the Wood family and some of the other families as well. [00:33:01] Speaker 06: With respect to access to evidence, I believe defense counsel said that, you know, most of this stuff was in Malaysia, but what's not mentioned is that Boeing, in its declaration, said it has the maintenance records, or many of the maintenance records, and the training records. [00:33:14] Speaker 06: That's at Joint Appendix 162. [00:33:16] Speaker 06: There's a lot of information that Boeing picks up as a participant to the NTSB, American Representative to the International Investigation. [00:33:26] Speaker 06: Secondly, with respect to the issue of impeding [00:33:29] Speaker 06: M.A.S. [00:33:30] Speaker 06: and M.A.B. [00:33:30] Speaker 06: that Boeing wishes to do. [00:33:32] Speaker 06: The court found this to be, the district court, a relatively dispositive point. [00:33:36] Speaker 06: At page 762 of the Joint Appendix, in her opinion, she says that on balance, the inability to impede third parties is what tips the private interest factors. [00:33:45] Speaker 06: Our position is that she could not have made that conclusion without mistakenly engaging in the Synecom analysis because she found that M.A.S. [00:33:54] Speaker 06: and M.A.B. [00:33:55] Speaker 06: would not be accessible. [00:33:56] Speaker 06: Now, one of the questions the court asked was whether or not there is an ability of Boeing, with respect to the jurisdictional question that's not really been briefed before the court, to bring in MAS and MAB. [00:34:07] Speaker 06: And the answer is it was argued. [00:34:08] Speaker 06: I direct the court to the transcript of the hearings before the district judge where counsel, Mr. Altman, my former partner now on the federal bench, [00:34:17] Speaker 06: did make the argument that in our view, and it was briefed, the same waivers that were applicable to the FSIA also imply the ability in a waiver by Malaysia to be sued by Boeing. [00:34:31] Speaker 06: I seem down to the last moment, so let me try to wrap up with this. [00:34:35] Speaker 06: The Malaysian government defendants are of minor importance. [00:34:38] Speaker 06: If you look in documentary 37-1, there's a complaint filed in Malaysia. [00:34:44] Speaker 06: Most of the claims filed there are about post-accident infliction of emotional distress by failing to locate the downed plane in time. [00:34:54] Speaker 06: And so those are not the main issues to be tried. [00:34:56] Speaker 06: The main issues to be tried in this case are inevitably and intellectually a res ipsa scenario. [00:35:02] Speaker 06: And that's a scenario in which both sides will have equal access to evidence, especially if MAS and MAV are in this case and what Boeing has. [00:35:10] Speaker 06: The district judge's ruling really did not fairly balance the factors because of one [00:35:15] Speaker 06: the Sineken error, and two, primarily, the failure to give the sliding scale of deference and measure that both to the Wood family and as well to the foreign plaintiffs. [00:35:25] Speaker 06: For those reasons, the court cannot have confidence in the balancing that the district court did, and we urge the court to reverse and remand. [00:35:32] Speaker ?: Thank you. [00:35:33] Speaker ?: I'll take the matter under advisement.