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November 17, 1983


The opinion of the court was delivered by: GREENE



 Laker Airways, a transatlantic air carrier now in liquidation, filed an action in this Court (C.A. No. 82-3362) on November 24, 1982, against six major airlines *fn1" and two other corporations, *fn2" charging them with a predatory scheme to drive it out of business, in violation of the Sherman and Clayton Anti-trust Acts, 15 U.S.C. §§ 1, 2, 15. *fn3" Two months later, on January 21, 1983, four of the defendants -- British Airways, British Caledonian Airways, Lufthansa, and Swissair -- without notice either to plaintiff or to this Court, and without having raised any issue in this Court regarding jurisdiction -- filed a suit in the High Court of Justice, Queen's Bench Division in England (hereinafter referred to as the "Queen's Bench") seeking to enjoin Laker from continuing its action in this Court. They also applied for and were immediately granted, ex parte, an injunction against any interference with the English proceedings.

 Thereafter, Laker sought and, following full briefing and argument, this Court granted injunctions restraining those defendants which had not yet appeared in the English courts from securing orders similar to those which the Queen's Bench had issued on January 21, 1983. See Laker Airways Ltd. v. Pan American Airways, 559 F. Supp. 1124 (D.D.C. 1983). *fn4" The Court subsequently considered the issue of the appropriate forum for the dispute between the parties -- again with the benefit of full briefing and argument -- and it concluded, on the basis of generally accepted principles of forum non conveniens,5 that the controversy was properly triable in this Court. Laker Airways, Ltd. v. Pan American World Airways, 568 F. Supp. 811 (D.D.C. 1983). *fn6"


 In the meantime, British Airways, British Caledonian Airways, Lufthansa, and Swissair kept pressing their claim before the Queen's Bench that the controversy should be resolved in the English courts rather than those of this nation. However, on May 20, 1983, Mr. Justice Parker of the Queen's Bench issued a lengthy and thoughtful opinion in which he held that jurisdiction was properly laid in this Court, and that there was no basis for English judicial interference. *fn7" Accordingly, he proceeded to dissolve his earlier injunctive orders. The two British airlines took an appeal to the English Supreme Court of Judicature, Court of Appeal (hereinafter referred to as the "Court of Appeal"), and that tribunal first reinstated the injunctions on a temporary basis and ultimately, on July 26, 1983, granted the permanent relief requested by the airlines. *fn8"

 The Opinion of the Court of Appeal, authored by Sir John Donaldson, Master of the Rolls, duly acknowledged that this Court has jurisdiction of the instant controversy:


First let it be said, and said loud and clear, that no one has ever suggested that the United States District Court is without jurisdiction to try Lakers' complaint against the appellants both under the Sherman and Clayton Acts and in respect of the commission of an intentional tort. Both appellants carry on business in the United States of America sufficiently to make them amenable to the jurisdiction of its courts. If any such submission had been made, it would have been rejected out of hand.

 Transcript of Proceedings of July 26, 1983, at p. 4.

 The court went on candidly to acknowledge that "the reported authorities do not disclose any case in which consideration has ever been given to restraining the prosecution of proceedings in a foreign court when, as here, there is no alternative English forum before which the same, or substantially the same, right could be asserted," and that, accordingly, its decision was "the first occasion" upon which this had ever been done. Transcript of Proceedings, at pp. 5, 32.

 Having said all that, and much more, the Court of Appeal issued an order flatly enjoining Laker from proceeding with its action in this Court against the British airlines or permitting anyone else to do so on its behalf.

 The Court of Appeal judgment is broader even than this necessarily brief recitation suggests, in two respects.

 First, by its reasoning and on the basis of the authority which is said to support it (see Part III infra), the decision applies not merely to Laker's lawsuit against the British companies; it also prohibits Laker from proceeding in this Court against non-British corporations, i.e., Lufthansa and Swissair. *fn9"

 Second, the decision provides for detailed involvement of the English tribunals in the conduct of the litigation here, albeit on a carefully selective basis, to the end that the English courts may, depending upon the tactical situation, allow Laker to file some pleadings in this Court and prohibit it from filing others. Thus, on October 19, 1983, the Queen's Bench issued an injunction, based upon the Court of Appeal judgment, restraining Laker from "taking any further steps" in this Court or "commencing or prosecuting any other proceedings" against Lufthansa or Swissair, *fn10" but it exempted from that prohibition one matter -- proceedings concerning the motion filed by the major airlines in this Court to disqualify Laker's counsel. *fn11"

  In short, the English injunctions are as broad and intrusive as they are unprecedented.


 The decision of the Court of Appeal rests upon orders -- so-called General Directions -- issued in June of this year by the English Secretary of State for Trade and Industry. After referring to the pendency of this civil action and of a grand jury investigation, and to the possibility that commercial documents and information not within the territorial jurisdiction of the United States might be required to be produced in connection with these American proceedings, the Secretary directed that (Directions of July 1, 1983):


Except with the consent of the Secretary of State no person or persons in the United Kingdom shall comply, or cause or permit compliance, whether by themselves, their officers, servants or agents, with any requirement to produce or furnish to the United States' Department of Justice, the grand jury or the District Court any commercial document in the United Kingdom or any commercial information which relates to the said Department of Justice investigation or the grand jury or District Court proceedings. *fn12"

 In a separate order issued on the same date, the Secretary prohibited any "person in the United Kingdom who carries on business there" from complying with any requirement or prohibition imposed pursuant to the United States antitrust laws that would contravene the Secretary's general orders. *fn13"

 The Court of Appeal determined that, under the Secretary of State's directions, the major airlines would be unable to furnish information to this Court or to the plaintiff relevant to the instant actions; that this would hinder the airlines in their defense; and that the appropriate remedy was to enjoin Laker from continuing with the prosecution of its lawsuit. *fn14" And that is what the court proceeded to do.

 Following entry of the Court of Appeal judgment, Laker applied for further review by the House of Lords. The Court is advised that the House of Lords has recently granted such review; that its decision on the merits is not likely to be issued for many months; and that the Court of Appeal injunction will remain in effect during the interim.


 As a consequence of the English proceedings, the situation before this Court is as follows. This Court, by its own decision and by the decision of the two English tribunals which have passed on the issue, has jurisdiction over the controversy -- a conclusion which would appear obvious in any event because (1) the lawsuit involves alleged violations of United States laws (the Sherman and Clayton Acts), jurisdiction over which is expressly vested by Congress in the federal district courts (15 U.S.C. § 15), and (2) the English courts do not try antitrust claims, let alone antitrust claims arising under American law. The Court likewise plainly has jurisdiction over the parties because all of them did at the time of the alleged violations -- and indeed do today -- conduct business in the United States.

 Having jurisdiction of the parties and the subject matter, the Court also has exclusive jurisdiction to decide two ancillary issues: first, the effect, if any, of the Bermuda 2 agreement on this litigation (see note 12 supra); and second, what remedies are appropriate if the order of the English Secretary of State prevents Laker, the major airlines, or both, from producing the necessary documents.

 As concerns the first of these issues, the United States Constitution itself provides in Article VI that


. . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . . *fn15"

 As arbiters of United States law, the federal courts have long exercised their responsibility of interpreting treaties and examining their impact in legal disputes.

 Similarly, the federal courts have often had occasion to decide the question of what action is appropriate in cases where documents located abroad are not discoverable due to the compulsion of foreign authorities. *fn16" A foreign court, which lacks jurisdiction over the underlying controversy, has no valid basis whatever for displacing the decision-making authority of the United States courts with regard to any of these questions.

 Moreover, the decision of the English tribunal is premature and therefore improper even on its own terms. No one can know at this time what documents located in Great Britain, if any, will ultimately be needed in this litigation, nor can it be predicted that the English Secretary of State will not authorize the release of the necessary documents at the appropriate time (as he has the authority to do under his own charter). Thus, the English Court of Appeal is asserting the right to abort this litigation because documents may be needed which may not be made available under the Secretary of State's directions, and because the nonproduction of the documents may harm the major airlines more than Laker. To state that proposition is to demonstrate its speciousness. *fn17"


 A variety of significant interests are seriously threatened by the English decisions.

 First, and most obviously, a plaintiff who is properly in this Court seeking to vindicate his rights under the laws of this nation is being prevented, contrary to normal international usage, from pursuing his legal remedies here. Second, Laker Airways is in liquidation and its most important asset may be the instant lawsuit against these defendants which, according to the complaint, forced it into liquidation. *fn18" There are likely to be American creditors of Laker who, by the actions of the English officials, may be deprived of any possibility of recovering on their claims notwithstanding that the United States Constitution and laws grant them substantial rights in that regard. Third, this Court, and the appellate courts which have the power to review its decisions, are being deprived of their legitimate jurisdiction by the combined actions of the English judicial and executive officials. Fourth, the English actions may drain the United States antitrust laws of their vitality *fn19" with respect to multinational corporations, a growing form of industrial and commercial organization, centralization, and power. If the present lawsuit is aborted, it should not be difficult for other cartels or conglomerates in any line of commerce or industry to duplicate in England or elsewhere the interplay of executive and judicial action which brought about such a result here. *fn20"


 The Court has concluded that in these unusual circumstances -- where substantial legal interests are at stake but one of the parties is prevented from asserting its position as a consequence of the intrusion of foreign courts and foreign executive officials into the United States judicial process on bases that, at least prima facie, do not appear legitimate -- it should not simply sit by and permit these interests to be dissipated by default. To do so would be unjust, and the Court, acting as a court of equity, should prevent such injustice if possible. *fn21"

 During the pendency of the English proceedings, the processes of this Court have been essentially at a standstill. This is due in part to the precarious position of Laker which risks another order, followed by a possible contempt citation, with every paper it files in this Court, and in part to the fact that this Court, in the interest of comity, has deliberately taken no action, for a period of some ten months now, which might precipitate a conflict with the English courts. *fn22" However, as explained above, those courts have not felt so constrained. *fn23" Accordingly, because of the passage of time; the additional delays inherent in the proceeding before the House of Lords; the increasing intrusiveness of the English orders; and this Court's obligation to proceed with litigation within its jurisdiction, the Court has concluded that the time has come to end the paralysis and to proceed with these lawsuits.

 Since the crux of the problem is that, as a consequence of the actions of the English officials, the adversary process before this Court has broken down, and there is now no one to articulate any public or private interests other than those which the English tribunals permit to be articulated, the solution, it appears to the Court, is to reconstruct that process as best as that can be done under these circumstances.

 The most urgent and fundamental first step toward that end is the establishment of a method by which the Court may receive recommendations regarding the means for reviving these lawsuits. The Court cannot depend for that on the parties. The plaintiff is prevented from presenting its views to the Court, and defendants have limited themselves to advocating that all aspects of this controversy, whatever their posture, should be left to the English courts. As for the Court itself, it cannot act on its own, not only because it lacks the necessary facilities (e.g., for the investigation of such matters as the presence of American creditors and the magnitude of their interests) but also, and more importantly, because, consistently with our system, the issues should be explored and briefed independently, and those briefs should then be responded to by the parties, before the Court renders a final decision. *fn24"

 The Court has therefore decided to appoint an amicus curiae to act as a "friend of the court" in the most basic and original sense of that term to assist the Court in the restoration of the integrity of the litigation process. Stephen Pollak, Esq., a distinguished lawyer and a former president of the District of Columbia Bar, *fn25" has kindly agreed, at the Court's request, to accept this assignment. The amicus is hereby requested to undertake the necessary investigations of fact and law to assist the Court in determining what action by the Court is required or appropriate in light of the decisions of the English authorities and the resulting incapacity of the plaintiff.

 The Court has previously indicated that it might consider the appointment of a trustee or receiver to conduct the litigation on behalf of the plaintiff to the extent that the plaintiff is incapable of representing its own interests. See 559 F. Supp. at 1139 n.65. The amicus may wish to explore that option, including such practical issues as the method of appointment and compensation, the powers of such a trustee, and the like. The amicus might also consider what relationship, if any, should be established with the Department of Justice or the Department of State to enlist their cooperation or assistance. Additionally, the amicus might explore whether it is possible to alleviate the concern of the English courts and executive officials that documents secured as a result of civil discovery in these lawsuits will subsequently be used for grand jury purposes. See, e.g., Mr. Justice Parker's judgment of May 20, 1983, at pp. 25-27.

 These subjects are listed herein only for illustrative purposes. The amicus will make his own determination as to what steps, if any, are appropriate, given the fact that equity must have "a certain power and freedom of action" to adapt old doctrines "to new relations, and shape . . . remedies to new circumstances. . . ." 1 J. Pomeroy, supra, § 60 at 78.

 When the report of the amicus is presented to the Court, all the parties, plaintiff as well as the defendants, will, of course, be given full opportunity to comment thereon, both in writing and at a hearing, before the Court takes further action with respect thereto.

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