UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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SAJIDA BANO, HASEENA BI, SUNIL KUMAR, DR. STANLEY NORTON, ASAD KHAN, SHIV NARAYAN MAITHIL, DEVENDRA KUMAR YADAV, BHOPAL GAS PEEDIT MAHILA UDYOG SANGATHAN (BGPMUS), GAS PEEDIT NIRASHRIT PENSION BHOGI SANGHARSH MORCHA (GPNPBSM), BHOPAL GAS PEEDIT MAHILA STATIONERY KARMACHARI SANGH (BGPMSKS), BHOPAL GAS PEEDIT SANGHARSH SAHAYOG SAMITI (BGPSSS), and BHOPAL GROUP FOR INFORMATION AND ACTION (BGIA), on behalf of themselves and all others similarly situated,

Plaintiffs,

- against -

UNION CARBIDE CORPORATION and WARREN ANDERSON,

Defendants.

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Index No.

99 Civ. 11329 (JFK)

 

 

 

 

NOTICE OF APPEAL

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SIRS:

PLEASE TAKE NOTICE that Plaintiffs, Sajida Bano, Haseena Bi, Sunil Kumar, Dr. Stanley Norton, Asad Khan, Shiv Narayan Maithil, Devendra Kumar Yadav, Bhopal Gas Peedit Mahila Udyog Sangathan ("BGPMUS"), Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha ("GPNPBSM"), Bhopal Gas Peedit Mahila Stationery Karmachari Sangh ("BGPMSKS"), Bhopal Gas Peedit Sangharsh Sahayog Samiti ("BGPSSS"), and Bhopal Group for Information and Action ("BGIA"), in the above-captioned case, by their attorneys, hereby appeal to the United States Court of Appeals for the Second Circuit from the final judgment entered in this action on the 28th day of August 2000, a copy of which is annexed hereto as Exhibit A. Plaintiffs appeal from the following portions of the judgment:

    1. whether the judgment constituted dismissal under Fed. R. Civ. P. 12(b) or a grant of summary judgment under Fed. R. Civ. P. 56 and, if both, on which portions of the pleadings did the Court enter summary judgment and which portions did the Court dismiss;
    2. whether the judgment applied the proper standards of review in granting dismissal under Fed. R. Civ. P. 12(b) and/or the proper standards of review in granting summary judgment under Fed. R. Civ. P. 56;
    3. whether the Court’s dismissal of seven claims asserted by the Amended Complaint for environmental contamination and spoliation entirely unrelated to the Bhopal Disaster constitutes an abuse of discretion;
    4. whether the Court erred in concluding that there was no prejudice to Plaintiffs from the conduct of Defendants in absconding from criminal prosecution in India;
    5. whether the Court erred in refusing to apply the fugitive disentitlement doctrine, as requested by Plaintiffs, in order to strike the affirmative legal defenses advanced by Defendants on their motion;
    6. whether the Court erred in concluding that the Bhopal Act constitutes an "automatic" extraterritorial restriction upon Plaintiffs’ standing before the courts of the United States;
    7. whether the Court erred in concluding that Plaintiffs’ claims under the Alien Tort Claims Act for violations of international law were encompassed within the terms of the Bhopal Act;
    8. whether the Court’s reading of the Bhopal Act violates principles of international law and U.S. public policy concerning subject-matter jurisdiction of Article III courts and the Alien Tort Claims Act;
    9. whether the Court erred in concluding that Plaintiffs’ claims under international law and the Alien Tort Claims Act were released under the terms of the settlement as judicially fashioned and approved by the Supreme Court of India under Article 142(1) of the Indian Constitution;
    10. whether the Court erred in concluding that the Supreme Court of India did not incorporate criminal prosecution as a material term and condition in order to accomplish "complete justice" between the parties under Article 142(1) of the Indian Constitution;
    11. whether the Court erred in concluding that Defendants can claim the benefit of the judicially fashioned settlement because Union Carbide complied with all terms and conditions of that settlement;
    12. whether the Court erred in concluding that the Supreme Court of India was obliged to expressly require the Defendants to submit to the criminal jurisdiction of Indian courts in order to effectively mandate and direct the criminal prosecution of Defendants as an actual term of the judicially fashioned settlement;
    13. whether the Court abused its discretion in concluding that the Defendants’ conveyance of its properties in India to the "Bhopal Hospital Trust" in order to avoid attachment and forfeiture by the Bhopal District Court for failure to appear in the criminal case did not constitute a breach of the settlement;
    14. whether the Court erred in concluding that the Indian Supreme Court did not direct Union Carbide to fund and pay for the construction of the hospital out of its own assets instead of assets which had been forfeited pursuant to the orders of the Bhopal District Court;
    15. whether the Court erred as a matter of law and abused its discretion by drawing an impermissible inference from the fact that the Indian Supreme Court did not condition the sale of Union Carbide India Ltd. shares upon Union Carbide’s appearance in the Bhopal District Court to face the criminal charges pending against it.

Dated: New York, New York

September __, 2000

  GOODKIND LABATON RUDOFF
& SUCHAROW LLP
 

Of COUNSEL:

Prof. Upendra Baxi

University of Warwick School of Law

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

Kenneth F. McCallion (KM 1591)

H. Rajan Sharma (HS 3598)

100 Park Avenue

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(212) 907-0700

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LAW OFFICES OF CURTIS

TRINKO, LLP

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EARTHRIGHTS INTERNATIONAL

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Attorneys for Plaintiffs

TO:

Kelley Drye & Warren, LLP

William A. Krohley, Esq.

William C. Heck

101 Park Avenue

New York, NY 10178