the forum non conveniens analysis. Calavo Growers of California v. Belgium, 632 F.2d 963, 967 (2d Cir. 1980), cert. denied 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871 (1981). Nevertheless, in light of the advances in transportation and communication since 1947, the year Gulf Oil was decided, this factor will be accorded less weight in this Court's calculus. See Overseas Programming Co. v. Cinematographische Commerzanstalt, 684 F.2d 232 (2d Cir. 1982); Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981).
2. Compulsory Process for Unwilling Witnesses and Costs of Obtaining Willing Witnesses
The Bank Defendants state that the majority of the witnesses whom they expect to call reside in Australia. These witnesses include numerous current and former employees of the Bank Defendants, employees of the various Linter companies, and the Linter companies' Australian accountants. The Bank Defendants argue that the inability of any of the parties to compel the attendance of the non-party Australian witnesses would prejudice the Bank Defendants. Gulf Oil, 330 U.S. at 51. As well, they claim that the difficulty and expense of transporting willing witnesses from Australia to New York would be disruptive and burdensome and therefore favors dismissal.
Plaintiffs respond that their party witnesses as well as important third party witnesses are located in New York. These third party witnesses, including personnel at Drexel, the underwriter of the Debentures, and at Skadden Arps Slate Meagher & Flom, Linter Textile's counsel, would be beyond the reach of compulsory process if the case were prosecuted in Australia.
A sheer numerical calculus would seem to indicate that Australia would be a more convenient forum than New York for the potential witnesses to this action. However, prosecution in either forum will prohibit compulsory process over some of the possible third party witnesses.
E. Public Interest Factors
1. Court Congestion
There is no delay for trial in this part, nor has there been for over one year. Upon completion of discovery, this case will be scheduled for an immediate trial. Accordingly, the Court does not consider calendar congestion a factor which favors dismissal.
2. Local Interest in the Controversy
The Bank Defendants argue that because the Complaint alleges fraud against major Australian banking institutions and major Australian companies, Australian courts have a great interest in the resolution of this dispute. While the Australian courts do have an interest in the conduct of Australian businesses, the United States courts easily have as great or a greater interest in this action. This Court has a substantial interest in affording United States citizens a forum, in enforcing the federal securities laws, and in preserving the integrity of markets for securities in the United States.
Plaintiffs are all investors with principal places of business located in the United States. Pursuant to a registration statement and Prospectus filed with the SEC, they purchased the Debentures in the United States from a United States underwriter. The alleged misrepresentations took place in the United States. The alleged purpose of these misrepresentations was to defraud United States investors. Accordingly, this Court has an interest in overseeing the resolution of this dispute. See Bersch v. Drexel Firestone, 519 F.2d at 993 (anti-fraud provisions of the federal securities laws apply to losses from sales of securities to U.S. citizen-residents whether or not the acts of material importance occurred in the U.S.); S.E.C. v. Banca Della Svizzera Italiana, 92 F.R.D. 111, 117 (S.D.N.Y. 1981) (strength of the U.S. interest in enforcing its securities laws to ensure the integrity of its financial markets "cannot seriously be doubted").
3. Familiarity With Applicable Law
As presently framed, this action will require the application of United States securities law, not Australian laws. Accordingly, there is no risk that this Court will have to apply law with which it is not familiar.
4. Unfair Burden
Because this suit involves United States plaintiffs and seeks relief for breaches of United States law, there is no unfairness in burdening the citizens of New York with the obligation of assisting in its resolution.
Prosecution of this action in Australia might be somewhat more convenient for the numerical majority of the witnesses involved. The overall expense involved might be less in Australian court than here, and it would clearly be more convenient for the Bank Defendants. Those factors alone, however, are insufficient to deny Plaintiffs their chosen home forum. The Bank Defendants have not met the substantial burden of proof required for this Court to dismiss this case in favor of prosecution in Australia.
For the reasons stated above, the motions to dismiss brought by Barclays Australia, Chase AMP, Sumitomo, and Security Pacific are denied. The Bank Defendants' joint motion to dismiss is also denied.
All counsel are ordered to attend a pretrial conference on Tuesday, January 28, 1992 at 9:00 a.m. in courtroom 302 to set a schedule for discovery and trial.
IT IS SO ORDERED.
Dated: New York, New York
January 9, 1992
Robert P. Patterson, Jr.