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IN RE VITAMINS ANTITRUST LITIGATION
October 6, 2000
IN RE VITAMINS ANTITRUST LITIGATION, THIS DOCUMENT RELATES TO: CARGILL, INC., ET AL.
F. HOFFMAN-LAROCHE LTD., ET AL. NBTY, ET AL. V. F. HOFFMAN-LAROCHE, LTD., ET AL. PERRIGO CO., ET AL. V. F. HOFFMAN-LAROCHE LTD., ET AL. NATURAL ALTERNATIVES INTERNATL. INC., ET AL. V. F. HOFFMAN-LAROCHE LTD., ET AL. LEINER HEALTH PRODUCTS, INC. V. F. HOFFMAN-LAROCHE LTD., ET AL.
The opinion of the court was delivered by: Thomas F. Hogan, United States District Judge.
MEMORANDUM OPINION Re:
Pending before the Court are defendant Roland Bronnimann's
("Bronnimann") Motion to Dismiss the Cargill complaint for lack of
personal jurisdiction and the Cargill plaintiffs' Motion to Compel Roland
Bronnimann's testimony.*fn1 Upon careful consideration of the parties'
briefs, the oral arguments presented at the September 13, 2000 hearing,
and the entire record herein, this Court will deny the Motion to Compel
and defer ruling on the Motion to Dismiss pending further jurisdictional
Roland Bronnimann ("Bronnimann") was head of the Vitamins and Fine
Chemicals Division of defendant F. Hoffman LaRoche Ltd. ("Roche Ltd.")
from January 1990 until May 1999 when he purportedly left the company in
connection with Roche Ltd's guilty plea. In addition, from January 1990
to May 1999, Bronnimann was a member of Roche Ltd.'s Executive Committee
which oversees Roche Ltd.'s worldwide operations. On October 29, 1999
Bronnimann pled guilty to criminal violations of the Sherman Act for his
role in the global conspiracy among Roche Ltd. and the other principal
producers of vitamins to allocate sales volumes, products, territories and
customers and to rig bids and fix prices of vitamins sold in the United
States and elsewhere. As part of his guilty plea, Bronnimann agreed to
pay a $150,000 fine and serve a five-month prison term in the United
Plaintiffs sued Bronnimann in the Northern District of Illinois
alleging that jurisdiction in Illinois was proper under Section 12 of the
Clayton Act and the Illinois long-arm statute. On January 12, 2000,
Bronnimann moved to dismiss the complaint for lack of personal
jurisdiction. In conjunction with this Motion, Bronnimann filed an
affidavit denying that he has had any contacts with Illinois or the
District of Columbia relevant to this lawsuit.
Pursuant to the Stipulated Order which this Court endorsed on April
14, 2000, plaintiffs took Bronnimann's deposition on April 19, 2000 at
the Allenwood Federal Prison Camp in Montgomery, Pennsylvania, two days
before his release from federal custody. Bronnimann asserted the Fifth
Amendment in response to all substantive questions.
Bronnimann's affidavit states, in pertinent part:
During the relevant time period, I have had no
commercial contacts with Illinois or the District of
Columbia relevant to this lawsuit. I have had no
contacts with Illinois or the District of Columbia for
my own personal benefit. I do not have an Illinois or
District of Columbia address, office, telephone
listing or bank account. I have conducted no personal
business in Illinois or the District of Columbia
myself or through an agent, nor have I ever brought a
lawsuit or administrative proceeding in Illinois or
the District of Columbia.
See Def.'s Exh. A at ¶ 4. The Cargill plaintiffs argue that this
"deliberate and voluntary decision to submit sworn testimony with his
selective version of his contacts with Illinois and the United States"
constitutes a waiver of Bronnimann's Fifth Amendment privilege and thus
the Court should find that Bronnimann waived his Fifth Amendment rights
at least as to all details regarding the statements in his affidavit and
compel Bronnimann to appear for another deposition to answer questions
regarding such statements. See Pl's Sur-reply/Motion to Compel at 9.
Additionally, the Cargill plaintiffs argue that the Court can draw
adverse inferences from Bronnimann's Fifth Amendment invocations against
both Bronnimann personally and his employer Roche Ltd. in connection with
their motions to dismiss for lack of personal jurisdiction.*fn2 Id.
On the other hand, Bronnimann argues that the Court cannot find a
waiver of the Fifth Amendment in this case because his affidavit poses no
danger that the trier of fact will rely on a distorted view of the truth
since the Court can easily disregard the affidavit and decide
Bronnimann's Motion to Dismiss without it. Bronnimann also argues that
his affidavit cannot constitute a waiver because the statements contained
therein are net incriminating and a witness does not lose his Fifth
Amendment privilege unless he testifies to an incriminating fact.
Finally, Bronnimann argues that plaintiffs' discussion of the Court's
ability to draw adverse inferences from his invocation of the Fifth
Amendment privilege is premature since the Court has not ruled on his
Motion to Dismiss and thus it has not yet determined whether
jurisdictional discovery is appropriate with respect to that Motion.
The first question when a witness invokes the Fifth Amendment privilege
against self-incrimination is whether that privilege is applicable to the
case at hand. As a general rule, where there can be no further
incrimination, there is no basis for the assertion of the privilege.
Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d
424 (1999). "If no adverse consequences can be visited upon the convicted
person by reason of further testimony, then there is not further
incrimination to be feared." Id. Moreover, the feared adverse
consequences must be criminal; the Fifth Amendment right serves to
protect individuals from criminal, not civil liability. Federal Savings
& Loan Insurance Corp. v. Dixon, 835 F.2d 554, 566 (5th Cir. 1987).
Finally, fear of foreign criminal prosecution is insufficient. United
States v. Balsys, 524 U.S. 666, 669, 118 S.Ct. 2218, 141 L.Ed.2d 575
(1998) (holding that concern with foreign prosecution is beyond the scope
of the Self-Incrimination Clause). Therefore, the Fifth Amendment
privilege applies in Bronnimann's case only if there is a legitimate fear
of state criminal prosecution. See id. at 680, 118 S.Ct. 2218 ("the
constitutional privilege against self-incrimination protects . . . a
federal witness against incrimination under state as well as federal
law"). Since Bronnimann's statements, if he were compelled to answer
plaintiffs' questions, could subject him to state criminal prosecution and
since there is no language in Bronnimann's plea agreement that would
preclude the initiation of state criminal charges against him, the Fifth
Amendment privilege against self-incrimination would apply to this case.
However, finding that Bronnimann has a Fifth Amendment privilege does
not end the matter. The next question is whether, given Bronnimann's
guilty plea in the criminal action and his submission of a sworn
affidavit denying jurisdictional contacts with Illinois and the District
of Columbia in this civil action, his Fifth Amendment privilege can be
deemed waived in this case.
This Court finds that Bronnimann's guilty plea is not sufficient to
warrant a waiver of his Fifth Amendment privilege. In Mitchell v. United
States, the Supreme Court found that "a guilty plea is more like at)
offer to stipulate than a decision to take the stand" and that the
"purpose of Rule 11 is to inform the defendant of what she loses by
forgoing the trial, not to elicit a waiver of the privilege for
proceedings still to follow." Mitchell, 526 U.S. at 323, 119 S.Ct. 1307.
Although Mitchell concerned the issue of whether a defendant's guilty
plea functioned as a waiver of the defendant's right to remain silent at
sentencing and thus did not directly address the relationship between a
guilty plea and subsequent civil proceedings that occur after sentencing
and subsequent to release from prison, ...