     08-1589-cv
     Aguas Lenders Recovery Group LLC v. Suez, S.A.

 1                             UNITED STATES COURT OF APPEALS
 2
 3                                 FOR THE SECOND CIRCUIT
 4
 5                                   August Term, 2008
 6
 7   (Argued: April 15, 2009                          Decided: October 23, 2009)
 8
 9                                 Docket No.       08-1589-cv
10
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12
13   AGUAS LENDERS RECOVERY GROUP LLC,
14
15                  Plaintiff-Appellant,
16
17                        v.
18
19   SUEZ, S.A., SOCIEDAD GENERAL DE AGUAS DE BARCELONA, S.A.,
20
21                  Defendants,
22
23   AGUA Y SANEAMIENTOS ARGENTINOS, S.A.,
24
25                  Defendant-Appellee.*
26
27   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
28
29   B e f o r e:         WINTER, CABRANES, and SACK, Circuit Judges.
30
31         Appeal from a judgment of the United States District Court

32   for the Southern District of New York (Robert L. Carter, Judge)

33   dismissing a complaint on the grounds of forum non conveniens.

34   The district court held that a non-signatory to agreements

35   containing forum selection provisions is not bound by these

36   provisions even if it is a successor in interest to a signatory

37   and otherwise bound by the agreements.               We vacate the judgment.

           *
               The Clerk of the Court is instructed to amend the caption as shown.

                                                1
 1                                  JENNIFER R. SCULLION (Louis M.
 2                                  Solomon, Daniella M. Rudy, on the
 3                                  brief), Proskauer Rose LLP, New
 4                                  York, New York, for Plaintiff-
 5                                  Appellant.
 6
 7                                  JOHN J. KERR, Jr., Simpson Thatcher
 8                                  & Bartlett LLP, New York, New York
 9                                  for Defendant-Appellee.
10
11   WINTER, Circuit Judge:

12        Aguas Lenders Recovery Group, LLC (“ALRG”) appeals from

13   Judge Carter’s dismissal of its complaint on the ground of forum

14   non conveniens.   The principal issue is whether, for the purposes

15   of the doctrine of forum non conveniens, a non-signatory to an

16   agreement may be bound by a forum selection clause and forum non

17   conveniens waiver contained in contracts entered into by an

18   entity alleged to be a predecessor in interest.

19        We hold that such a non-signatory may be so bound.   We

20   therefore vacate the judgment and remand for limited discovery

21   and a hearing on whether Agua y Saneamientos Argentinos, S.A.

22   (“AySA”) is a successor in interest to Aguas Argentinas, S.A.

23   (“Aguas”).

24                               BACKGROUND

25        This is an appeal from a dismissal of a complaint without a

26   factual hearing on the grounds of forum non conveniens.   We

27   therefore accept the facts alleged in the complaint as true.    See

28   Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 93 n.1 (2d Cir.




                                      2
1    2000).1

2          In 1992, the Republic of Argentina solicited bids from

3    private companies for a thirty-year concession, which allowed the

4    winning bidder to modernize and operate Buenos Aires’ residential

5    water and sewer system and collect fees for its use.            Until then,

6    a wholly government-owned company, Obras Sanitarias de la Nación,

7    had provided the services.

8          Aguas was the winning bidder.        It consisted of a consortium

9    of seven companies that included two multinational water

10   companies, Suez, S.A., and Sociedad General de Aguas de

11   Barcelona, S.A.     On April 28, 1993, Aguas entered into the

12   concession agreement with the Argentine government and was

13   thereafter incorporated under the laws of Argentina.            Under the

14   terms of the concession, the Argentine government ceded to Aquas

15   the right to possess and use certain assets necessary to the

16   operation and maintenance of the water and sewer system, but

17   expressly reserved title to the assets.          Aguas provided water and

18   sewer services to Buenos Aires from 1993 to 2006.

19         The concession was expected to require $4.1 billion in

           1
            The factual recitation here, while primarily taken from the complaint,
     is supplemented with information from affidavits. See, e.g., Alcoa S.S. Co.
     v. M/V Nordic Regent, 654 F.2d 147, 149 (2d Cir. 1978) (en banc) (“The
     district court took the motion to dismiss on submission, based on the
     pleadings, affidavits and briefs of the parties -- a practice long recognized
     as acceptable and followed from time immemorial in the busy Southern District
     of New York in determining forum non conveniens motions.”); Vanity Fair Mills,
     Inc. v. T. Eaton Co., 234 F.2d 633, 645 (2d Cir.) cert. denied, 352 U.S. 871
     (1956) (“[I]n determination of a motion to dismiss for forum non conveniens,
     the court may consider affidavits submitted by the moving and opposing
     parties.”).

                                           3
1    capital investments over its duration, but a substantial portion

2    had to be invested early for modernization and expansion of the

3    systems.   Aguas secured financing, primarily by recourse to

4    international capital markets, including the United States.             On

5    July 15, 2004, following a series of defaults on the loan

6    agreements, Aguas restructured a number of these loans in two

7    interim financial agreements (“IFA’s”).         Pursuant to these

8    agreements, the lenders bought out some of Aguas’s debt in

9    exchange for payment of past-due interest according to a schedule

10   of installments.     The IFA’s contained a New York forum selection

11   clause and a forum non conveniens waiver (collectively “forum

12   provisions”).    They also contained a New York choice of law

13   provision and a provision binding “successors and assigns.”2

14        In January 2005, Aguas defaulted on the interest payments

15   owed under the IFA’s.      Subsequently, in July 2005, Aquas

16   initiated a contractually established procedure for the

17   termination of the concession.       Thereafter, on March 21, 2006,

18   the Argentine government terminated the concession, alleging that

19   Aguas had failed to meet its obligations under the concession, at


          2
            The IFA’s differ somewhat with respect to the relevant provisions. One
     contains a New York choice of law provision, a forum selection clause
     providing that “any legal action, suit or proceeding against the Company or
     any Purchasing Sponsor arising out of or relating to this Agreement or the
     other Transaction Documents may be brought in the courts of the State of New
     York or of the United States of America for the Southern District of New
     York”, a forum non conveniens waiver, and a provision binding successors. The
     second IFA contains substantially similar provisions save that it does not
     include a forum non conveniens waiver.



                                          4
1    least in part due to toxic levels of nitrates found in various

2    water sources.    The Argentine government temporarily assumed

3    operation of the water and sewer facilities pursuant to an

4    executive decree.    It soon after assigned the concession to AySA,

5    the appellee here, an entity incorporated on March 3, 2006 for

6    that purpose.

7         The Argentine government currently owns ninety percent of

8    AySA’s stock while AySA’s employees, virtually all of whom are

9    former employees of Aguas, own the remaining ten percent pursuant

10   to an employee stock ownership program.     The assets transferred

11   to AySA included not only the concession itself but physical

12   assets that had been built, improved, or acquired with the money

13   borrowed by Aguas.    No payment was made to Aguas for the transfer

14   of the assets, or to any of its lenders on the outstanding debt.

15        After the Argentine government terminated the concession

16   with Aguas, Aguas filed for protection from its creditors on

17   April 28, 2006.    At the time of the district court’s decision

18   under review, Aguas’s insolvency proceedings were pending in

19   Argentina.

20        ALRG was formed under the laws of New York.    It is composed

21   of original and subsequent parties to various loan agreements

22   with Aguas between 1998 and 2004.     ALRG’s constituent members

23   include entities organized under the laws of Delaware, Germany,

24   the Cayman Islands, the British Virgin Islands, and the Bahamas.


                                       5
1    On September 29, 2006, these various lenders assigned to ALRG

2    their claims to unpaid amounts under financing agreements with

3    Aguas.   ALRG appears to hold no assets other than the claims

4    based on the loan agreements.

5         On September 29, 2006, ALRG brought the present action

6    against AySA to recover on the defaulted loans and IFA’s.3

7    ALRG’s complaint alleged that AySA is “not entitled to step into

8    Aguas’[s] shoes, yet disclaim Aguas’[s] loans” and is liable to

9    ALRG for the full amount of Aguas’s loans, unpaid interest, and

10   other charges.    Specifically, ALRG alleged that AySA:          (i) as

11   successor in interest to Aguas, breached the underlying loan

12   agreements, which had been modified by the IFA’s; and (ii)

13   received a fraudulent transfer of Aguas’s assets to AySA.

14        On March 3, 2008, the district court dismissed ALRG’s claims

15   against AySA on the ground of forum non conveniens.           See Aguas

16   Lenders Recovery Group, LLC v. Suez S.A., 2008 WL 612669

17   (S.D.N.Y. Mar. 3, 2008).      The court reasoned that “district

18   courts need not afford great deference to waivers of forum non

19   conveniens upon non-signatories, even where the non-signatory is

20   an alleged successor to the waiver.”         Id. at *4 (citing Yung v.

21   Lee, 160 F. App’x 37, 40 (2d Cir. 2005)).          It concluded that

22   because neither party to the suit was a signatory to the IFA’s


          3
            The complaint included claims against Suez, S.A., and Sociedad General
     de Aguas de Barcelona, S.A. ALRG settled its claims with these two defendants
     prior to the district court order that is the subject of this appeal.

                                          6
1    and the defendant “did not even exist when the agreements were

2    created,” ALRG could not invoke the forum provisions.    Id.

3    Absent a binding contractual provision, the district court

4    declined to apply the strict, contract-based forum non conveniens

5    analysis dictated by M/S Bremen v. Zapata Off-Shore Co., 407 U.S.

6    1, 15 (1972), which held that contractual forum selection clauses

7    should be enforced absent a showing of unreasonableness, fraud,

8    or overreaching.   Instead, applying the traditional forum non

9    conveniens analysis set out by Gulf Oil Corp. v. Gilbert, 330

10   U.S. 501 (1947), the district court concluded dismissal was

11   appropriate.   See Aguas, 2008 WL 612669 at *4, *9.   ALRG then

12   brought this appeal.

13                               DISCUSSION

14        A district court’s dismissal of a complaint on the ground of

15   forum non conveniens is reviewed for abuse of discretion.      Norex

16   Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.

17   2005).   A district court abuses its discretion in dismissing on

18   the ground of forum non conveniens when its decision “(1) rests

19   either on an error of law or on a clearly erroneous finding of

20   fact, or (2) cannot be located within the range of permissible

21   decisions, or (3) fails to consider all the relevant factors or

22   unreasonably balances those factors.”    Pollux Holding Ltd. v.

23   Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir. 2003) (citations

24   omitted).   We disagree with the district court’s conclusion that


                                      7
1    because AySA was a non-signatory of the contracts at issue, it

2    was per se not bound by their forum provisions for purposes of

3    applying the doctrine of forum non conveniens.

4         The enforcement of forum selection clauses in international

5    disputes is governed by M/S Bremen v. Zapata Off-Shore Co., 407

6    U.S. 1 (1972).   M/S Bremen noted the important role of forum

7    selection and choice of law clauses in eliminating uncertainty in

8    international commerce and held that such clauses are entitled to

9    a presumption of enforceability, unless “enforcement would be

10   unreasonable and unjust, or . . . the clause was invalid for such

11   reasons as fraud or overreaching.”       M/S Bremen, 407 U.S. at 15.

12   Thus, where parties contract to a so-called mandatory forum

13   selection clause, in which they agree in advance on a forum that

14   is exclusive of all others, the choice of forum is accorded the

15   M/S Bremen presumption of enforceablity.       Phillips v. Audio

16   Active Ltd., 494 F.3d 378, 386 (2d Cir. 2007).

17        In contrast, where parties contract to a so-called

18   permissive forum selection clause, that is, one that designates a

19   forum in advance, but does not preclude a different choice, the

20   M/S Bremen presumption of enforceability does not apply.       See

21   id.; see also Blanco v. Banco Industrial de Venezuela, S.A., 997

22   F.2d 974, 979-80 (2d Cir. 1993).       Instead, in such cases, the

23   traditional forum non conveniens standards articulated by the

24   Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947),


                                        8
1    apply.    Blanco, 997 F.2d at 980; see also Iragorri v. United

2    Techs. Corp., 274 F.3d 65, 71-74 (2d Cir. 2001) (en banc)

3    (articulating three-step forum non conveniens analysis based on

4    Gilbert).

5         We need not decide whether the forum selection clauses in

6    the present matter are, standing alone, mandatory or permissive.

7    At least one of the contracts -- one of the IFA’s -- contains a

8    waiver of any claims of forum non conveniens in addition to a

9    forum selection clause.    The combination of these clauses amounts

10   to a mandatory forum selection clause at least where the

11   plaintiff chooses the designated forum, as ALRG did here.      See

12   AAR Int’l, Inc. v. Nimelia’s Enter. S.A., 250 F.3d 510, 525-26

13   (7th Cir. 2001) (“[I]n this case we have more than merely a

14   permissive forum selection clause; we have such a clause plus

15   unambiguous language providing that the lessee shall not object

16   to venue . . . on the ground . . . [of] inconvenient forum. . . .

17   [W]e conclude that the stricter standards announced in Bremen

18   . . . should control . . . .”).    On the present record, it

19   appears that litigation over that IFA involves issues, witnesses,

20   and documentary evidence that almost fully overlap with the other

21   claims.    If that part of the litigation must remain in New York,

22   it would be quite inconsistent with the purposes of forum non

23   conveniens to dismiss the remaining claims under that doctrine.

24   Therefore, we see no reason to engage in further inquiry as to


                                       9
1    the mandatory or non-mandatory nature of the forum selection

2    clauses standing alone.

3         We thus turn to the issue of whether, even if successorship

4    doctrine binds a non-signatory to the obligations of a contract,

5    such a non-signatory/successor is not bound by a mandatory forum

6    selection clause and may freely invoke the doctrine of forum non

7    conveniens.   We conclude that, if successorship is established, a

8    non-signatory is subject to the M/S Bremen presumption of the

9    enforceability of mandatory forum selection clauses.

10        Any other conclusion would be inconsistent with the

11   rationales of both successorship doctrine and M/S Bremen.

12   Successorship doctrine prevents parties to contracts from using

13   evasive, formalistic means lacking economic substance to escape

14   contractual obligations.   See United States v. Mexico Feed and

15   Seed Co., Inc., 980 F.2d 478, 487 (8th Cir. 1992); Anspec Co. v.

16   Johnson Controls, Inc., 922 F.2d 1240, 1246 (6th Cir. 1991).      We

17   see no reason to treat forum selection provisions differently

18   from other contractual obligations.    As M/S Bremen explained, a

19   forum selection clause involving sophisticated parties to an

20   international transaction is an obligation that is calculated by

21   parties into the cost of a contract.   See M/S Bremen, 407 U.S. at

22   14 (“[I]t would be unrealistic to think that the parties did not

23   conduct their negotiations, including fixing the monetary terms,

24   with the consequences of the forum clause figuring prominently in


                                     10
1    their calculations.”).   Consequently, a forum selection clause is

2    integral to the obligations of the overall contract, and a

3    successor in interest should no more be able to evade it than any

4    other obligation under the agreement.

5         We find ample support for the conclusion that the fact a

6    party is a non-signatory to an agreement is insufficient,

7    standing alone, to preclude enforcement of a forum selection

8    clause.   See, e.g., Holland Am. Line Inc. v. Wärtsilä N. Am.,

9    Inc., 485 F.3d 450, 456-57 (9th Cir. 2007) (holding that forum

10   selection clauses applied to non-signatories because larger

11   contract involved transactions that included non-signatories);

12   Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190,

13   202-04 (3d Cir. 1983) (binding a non-signatory third-party

14   beneficiary to a forum selection clause), overruled on other

15   grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989);

16   TAAG Linhas Aereas de Angola v. Transam. Airlines, Inc., 915 F.2d

17   1351, 1354-55 (9th Cir. 1990) (applying M/S Bremen to enforce

18   forum selection clause against non-signatory plaintiff); Marano

19   Enters. of Kansas v. Z-Teca Rests., L.P., 254 F.3d 753, 757-58

20   (8th Cir. 2001) (holding non-signatories were bound by forum

21   selection clause because non-signatories were “closely related”

22   to the signatory or had acquiesced to clause by voluntarily

23   bringing suit with signatories); Lipcon v. Underwriters at

24   Lloyd’s, London, 148 F.3d 1285, 1299 (11th Cir. 1998) (holding


                                     11
1    non-signatories bound to forum selection clause on grounds that

2    the non-signatories, who had provided letters of credit to

3    signatories, had interests in the litigation that were “directly

4    related to, if not predicated upon” those of the signatories

5    (citation omitted)); see also Hugel v. Corp. of Lloyd’s, 999 F.2d

6    206, 209 (7th Cir. 1993) (“In order to bind a non-party to a

7    forum selection clause, the party must be ‘closely related’ to

8    the dispute such that it becomes ‘foreseeable’ that it will be

9    bound.” (citations omitted)); Bonny v. Soc’y of Lloyd’s, 3 F.3d

10   156, 162-63 (7th Cir. 1993) (subjecting non-contracting

11   defendants to forum selection clause because integrally related

12   to contracting defendants such that suit should be kept in a

13   single forum).     Cf. Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287,

14   1297 & n.8 (3d Cir. 1996) (reversing district court’s dismissal,

15   on ground of forum selection clause, of all of plaintiff’s claims

16   as to non-signatories to those agreements, except for one Italian

17   corporation who plaintiff alleged was successor to signatory).4


           4
            In arguing to the contrary, defendants rely on two summary orders, Yung
     v. Lee, 160 F. App’x 37 (2d Cir. 2005), and Acosta v. JPMorgan Chase & Co.,
     219 F. App’x 83 (2d Cir. 2007), which, of course, do not provide binding
     authority. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 370 n.11
     (2d Cir. 2003) (noting that summary order disposition is not precedential).
           Even if they were binding authority, however, neither decision would be
     dispositive of the present appeal. In Yung, the district court accorded a
     “strong favorable presumption” to the plaintiffs’ choice of a New York forum
     to resolve a dispute. See Yung, 160 F. App’x at 40. While Yung cautioned
     against applying forum selection clauses to non-signatories, it did not
     involve a claim that the non-signatory defendants were successors in interest
     to a party to the contract. The appellants in Yung disputed only the level of
     deference accorded their choice under the traditional forum non conveniens
     analysis. Id.
           Nor does Acosta lend support to AySA’s claims. In that case, the
     successorship issue was never reached. The court concluded instead that the

                                          12
1          The successorship issue must, therefore, be resolved for

2    purposes of applying forum non conveniens.          As a threshold

3    matter, the parties dispute whether the question is governed by

4    the law of New York or of Argentina.         ALRG urges that New York

5    law applies but argues that its complaint contains factual

6    allegations sufficient to support a theory of successorship under

7    either New York or Argentine law.         In response, AySA contends

8    that Argentine law applies, but that, in any event, no

9    successorship finding is possible under the law of either

10   Argentina or New York.

11         We intimate no view as to, inter alia, whether New York or

12   Argentine law applies or whether the outcome on the merits

13   depends upon the choice of law.        For the reasons stated below, we

14   believe that the present record is not sufficient to allow us to

15   dispose of this case without factual findings by the district

16   court, and it would be unwise for us to resolve legal issues

17   that, after factual findings are made, may drop from the case.

18         Under New York law, the general rule is that an asset

19   purchaser is not liable for the seller’s debts.           New York

20   recognizes four common-law exceptions to this rule: “(1) a buyer

21   who formally assumes a seller’s debts; (2) transactions

22   undertaken to defraud creditors; (3) a buyer who de facto merged



     plaintiffs’ claims did not arise out of the contract containing the relevant
     forum provision. Acosta, 219 F. App’x at 86 n.2.



                                          13
1    with a seller; and (4) a buyer that is a mere continuation of a

2    seller.”   Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 45

3    (2d Cir. 2003).   Thus, for example, “when a successor firm

4    acquires substantially all of the predecessor’s assets and

5    carries on substantially all of the predecessor’s operations, the

6    successor may be held to have assumed its predecessor’s . . .

7    liabilities, notwithstanding the traditional rule.”   Nettis v.

8    Levitt, 241 F.3d 186, 193 (2d Cir. 2001), overruled on other

9    grounds by Slayton v. Am. Express Co., 460 F.3d 215 (2d Cir.

10   2006).   Similarly, ALRG has submitted affidavits stating that

11   under Argentine law, the transfer of a going concern to another

12   commercial entity that provides the same “commercial activities

13   . . . in the same building . . . [with] identical merchandise

14   . . . directed to the same clients” may subject that entity to

15   the liabilities of the predecessor.

16        ALRG argues that it has alleged a prima facie claim that

17   AySA was a successor in interest to Aguas.   Specifically, ALRG

18   claims that Aguas’s revenues were directly linked to Aguas’s

19   development of infrastructure and the expansion of the existing

20   municipal water and sewer system in Buenos Aires, that the loans

21   on which ALRG now seeks to recover were made to Aguas for this

22   purpose, that infrastructure improvements were made for which

23   Aguas was entitled to compensation under the terms of the

24   concession, and that the Argentine government terminated the


                                     14
1    concession, Aguas’s principal asset, and assumed control of Aguas

2    under the name of AySA, in which it maintained a ninety percent

3    ownership interest.   In so doing, ALRG alleges that AySA assumed

4    operating control of the facilities and infrastructure

5    improvements, as well as business channels, to deliver, without

6    interruption, the same services to Buenos Aires as Aguas.   ALRG

7    finds further support for its theory in an alleged continuity of

8    both employees and management, of ten percent equity ownership

9    through an employee stock ownership program, of assets, including

10   customer lists and accounts receivable, and of contracts.

11   Finally, ALRG notes that the agreements at issue expressly bind

12   Aguas’s “successors and assigns.”

13        Under both New York and what little we know of Argentine

14   law, the successor issue is highly fact-specific and, given the

15   present record, cannot be resolved with assurance in favor of one

16   party or the other.   ALRG’s complaint does allege facts that, if

17   proven, might support a successorship finding.   The district

18   court’s conclusion that a non-signatory per se could not be bound

19   by the forum provisions obviated the need to resolve the various

20   issues of law and fact relevant to the successorship question.

21   Because these issues are better left to resolution by the

22   district court in the first instance, we remand for discovery and

23   a hearing to ascertain, for the purposes of the claim of forum




                                     15
1   non conveniens, whether Argentine or New York law applies,5 and

2   whether Aguas is a successor in interest to AySA bound to the

3   IFA’s and loan agreements.       In light of our disposition of this

4   appeal, we do not reach the parties’ additional arguments

5   regarding whether ALRG’s claims are nonetheless barred under the

6   Foreign Sovereign Immunities Act and the act-of-state doctrine.

7                                    CONCLUSION

8         For the foregoing reasons, the judgment is vacated and the

9   case remanded for further proceedings.




          5
           Given the disputed issue of governing law and the fact-intensive nature
    of the successorship inquiry, the district court should make findings under
    both New York and Argentine law to facilitate appellate review and avoid
    another remand.



                                          16
