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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.
V.
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: Bronnimann Motions

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 discovery.

I. BACKGROUND

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 States.

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.

II. DISCUSSION

A. Motion to Compel

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.

1. The Guilty Plea

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, ...


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