Benton then determined that the district court properly denied a mandatory stay because the issues in the case are not referable to arbitration. He wrote that a trier in this case "will decide only the theories pled in the complaint. … The factual allegation underlying this case is that the defendants negligently operated the facility. The factual allegation underlying the arbitration is breach of contract. ... Courts frequently address indemnification in separate proceedings from those determining liability." Even if Peru must step in and defend the claims, "that fact … does not preclude the children from continuing the case."
The plaintiffs' lawyer, Michael Wolff, counsel to Schlichter, Bogard & Denton in St. Louis, said his clients are pleased that the Eighth Circuit agreed the case is not subject to a stay pending the arbitration between the defendants and the government of Peru. But the plaintiffs are also a "bit dismayed" by the court's expansive application of the jurisdictional statute, he said.
Although the ruling that the convention offers a broad right to remove cases to federal court could be a major issue in other cases, "in our case, we're less worried about that. We're mostly pleased just to be able to finally pursue our claims after all of these years of delays in the court," Wolff said.
James Bennett of Dowd Bennett in St. Louis, who argued for the appellants, did not respond to a request for comment. Lewis, Rice & Fingersh, also of Saint Louis, also represented Doe Run. Williams Venker & Sanders of St. Louis represented D.R. Acquisition, another defendant.